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