APCD and AQMD have a different process than OSHA or  CalOSHA

The notice of violation (NOV) is handled as a civil matter, your case will be reviewed by an attorney from the South Coast AQMD District Attorney’s office. They have three years to act on a violation after they became aware of the violation.  The first letter you get  is usually a “pre-suit” letter from one of the SCAQMD Lawyers, asking for information about your case. In unusually flagrant cases or those involving serious harm or danger, however, South Coast AQMD may immediately commence a legal action for civil penalties and a court-ordered injunction. South Coast AQMD also has the choice of seeking an Order for Abatement from the South Coast AQMD Hearing Board.

Either you or someone very knowledgeable ( Your CIH or Attorney) should contact the South Coast AQMD attorney named in the pre-suit letter to discuss your case. Explain to the AQMD attorney anything related to the violation that you believe South Coast AQMD should know in considering your case and in negotiating settlement terms. AQMD attorneys claim they make reasonable efforts to reach an amicable settlement. However, you are not obligated to settle. If you cannot settle with the AQMD they usually will file a lawsuit.  Then you will need to hire an attorney to represent you in  court.  The AQMD usually has to convince the District Attorney that their case has merit, so sometimes the NOV just dies in the hall.  If the SCAQMD decides that the NOV has no merit on it’s own it just dies in the hall.  You will not be getting a letter saying your NOV was dismissed,  “DOH”, “Sorry” or anything else.   So if you get an NOV, but never hear from the SCAQMD for three years, Oh Well On the other hand, if you do get that letter from a SCAQMD Attorney answer it right away.  

You must reply by the date indicated in the letter. If you fail to respond by that date, the South Coast AQMD attorney  will either file a lawsuit - a civil complaint - taking you to court, or institute an Order for Abatement proceeding before the South Coast AQMD Hearing Board if there is evidence of ongoing violations. This is kind of like a card game where you have to show your cards to another player, but he does not have to show you his cards. If the SCAQMD attorney files a lawsuit, you will be served a copy of the complaint and a summons requiring you to file a written response with the court within 30 calendar days.  Then you can ask to see the SCAQMD’s, the other guys cards.

After the SCAQMD complaint is filed, “Discovery” begins. During this process, both sides get to tell their story.  They may work to specify the main issues in the case. Written questions may be posed to you or your attorney. Individuals can be questioned under oath.  These are called interrogatories and depositions.  Everybody gets to be involved in this process.  The court requires that both sides appear at hearings to discuss a possible settlement.  

If an agreement cannot be reached during these hearings, a trial date is set. Then a Judge or a Jury gets to hear both sides argue about what happened.  After the trial decision a judge or jury  finds that the business was guilty and did violate South Coast AQMD rules, the judge imposes a fine.

Although the maximum civil penalty generally is $75,000 per day per violation, greater penalties may be imposed for violations resulting in risk of great bodily harm or death (see California Health & Safety Code Civil Penalties §§ 42402 - 42403).

Dan Napier, CIH © 2/29/2024
310-644-1924 x 103