Litigation Assistance for Visble Emissions Observations
This page provides answers to commonly asked questions about Notice of Violations and what is often called the Mutual Settlement Program in many jurisdictions. Compliance Assurance Associates, Inc. can assist you in defining needs and defending against alleged Opacity or Visible Emission violations, review Observation documentation for technical weaknesses and assist in challenging newer technical methods such as the ASTM-D8306 Digital Opacity Camera Technique. Contact Arthur.Eberle@Compliance-Assurance.com for assistance.
- What is a Notice of Violation?
Think of this as a speeding ticket, or maybe I put my fence too close to my neighbor’s property or building.
A notice of violation (NOV) informs a person or business that a rule, state law, or permit condition has been violated. A NOV is issued when a violation is observed or discovered. Before a notice of Violation is issued there should be a review of the allegation with the local jurisdiction to “discover” the evidence. Essentially they review the items and evidence of violation and you have an opportunity to respond -- although this is often an informal meeting, be prepared (an ounce of prevention is worth a pound of cure). By seeking to resolve this matter before a NOV is issued, much trouble can be avoided.
The purpose of a NOV is to initiate corrective action that will stop the violation and to reduce air pollution. To provide an incentive for continuing compliance, there are substantial fines. Serious or repeated violations that show blatant disregard for the law and for public health may lead to criminal prosecution. Ok this is pretty rare, especially for Opacity violations because criminal prosecution requires PROOF BEYOND a REASONABLE SHADOW OF DOUBT. Under the Federal title V that is an inflation adjusted figure which started in 1997 as $27,000 per day per incident and is now in the mid-$30,000 range.
- What Should I Do If I Receive a Notice of Violation?
The first thing to do is take immediate action is to stop the violation and to bring your operation back into compliance. Then call Compliance Assurance Associates, Inc.
Within 10 days, send a copy of the notice with a written description of the corrective action you have taken to prevent continued or recurrent violations. If you have questions, call the local Jurisdiction (or the issuing authority) and be prepared to respond to the details and ask for complete documentation (if none was provided in the informal meeting prior to issuance).
Your main contact now is the inspector who issued the NOV. Send the information to the attention of the inspector who issued the NOV or bring it to the regional office indicated on the NOV.
- What If I Cannot Correct the Problem?
If you must continue operations which will cause the violation to continue, you should consider immediately applying for a variance. A variance is an administrative order granting temporary relief from specific provisions of a rule or permit condition. If approved, a variance allows you to continue operating while you take steps to come into compliance. If the violation is for creating a public nuisance or failure to obtain a permit, you are not eligible for a variance.
- What Happens Next?
Notices of violation can be handled in two ways:
1. By settlement.
2. By litigation. - Challenge the facts, findings, some point within the technical aspects of the methodology of determining the alleged violation, some technical point within the law or other relevant laws or challenge the law itself.
Most Notice of Violations I have seen provides a multitude of allegations from failure to complete proper housekeeping and dust abatement, watering roads, etc. all the way to the specific opacity violation(s). Essentially the regulatory agency wants a bunch of cookies to put on the table to begin their “negotiated settlement”….very few are cookies they are not willing to give up and they realize the majority of the allegation hinges upon those opacity readings. They want to be able to go back to the complaining citizen and show they did something! And the more they have to start with the more likely they can achieve a desirable settlement in their favor for the critical items of concern. Therefore it is critical for you to understand what the core problem is and correct that concern and the mis-information/understanding the complainant has over this matter.
One utility had an ongoing problem of dusting complaints from a neighborhood - until that found an unpermitted sandblasting operation in the neighborhood. Because they were the VISIBLE source they were the blame until proven otherwise.
- Mutual Settlement Program
In most cases, violations can be resolved through a Mutual Settlement Program. This program offers both the regulatory authority and you an opportunity to settle alleged violations without expensive and time-consuming litigation. When your violation is referred to the Mutual Settlement Program, you will receive a settlement offer which asks for the payment of a monetary penalty. It may also specify action to be taken by you to ensure continued compliance with the law. Alternatives to monetary settlements may also be considered on a case by case basis.
Although we recommend any legal settlement be reviewed by an attorney and should not either admit guilt nor should it be able to be brought up again as indication of a pattern of behavior.
You should respond to the offer within the time indicated. If more time is needed to obtain appropriate legal counsel ask for it, but remember when you get an NOV clear off your desk and put this on your desk (it is important, urgent and will only get worse with time). If you wish to discuss your case, you may schedule a settlement conference; this can occur over the phone or in person. We recommend in person, but that you be prepared first with a thorough knowledge of the law from your legal counsel and the technical issues from your consultant. Be prepared to litigate this because essentially that is what you are doing in this hearing before it goes to the regulatory attorneys. If you do not respond, or if the matter cannot be resolved, it will be referred to the agency’s legal counsel.
Every jurisdiction is a little different, but let’s look at our referenced item.
Mutual Settlement Program assess penalties based on California Health and Safety Code, Section 42403 which provides for up to $1,000,000 per day per violation based on the seriousness of the violation.
Penalties are based on the following factors:
• The extent of harm caused by the violation; so you are showing no harm.
• The nature and persistence of the violation; immediate and self-action.
• The length of time over which the violation occurs; immediate and self-action. The only problem we cannot solve is the one we deny so you can argue that a variance should have been granted if you can demonstrate a history of action.
• The frequency of past violations; well if you have worked your settlements to never be brought up again and never admitted guilt in settlements then there is “officially” no record and the agency is violating past agreements if they let it out.
• The record of maintenance; please don’t be a two–year old! I do the paper work for my 2 year old when he goes potty, adults do their own paper work and with thoroughness.
• The unproven or innovative nature of the control equipment; this does not to apply to many organizations.
• Any action taken to mitigate the violation.
• The financial burden to the operator.
- Legal Action
Violations that the Mutual Settlement Program are unable to resolve will be handled by the agency's legal counsel. The majority of the cases may are settled out of court, but may be pursued through the legal system. Normally this means civil litigation.
1. Never should they try to criminalize a civil dispute, and to do so is a violation of the law. So if they threaten criminal action in trying to elicit a settlement in the mutual settlement phase, you should have it documented.
2. This is a civil litigation meaning they must have more evidence than you to win. Equal evidence means you win, but they will litigate each issue.
3. This is a civil litigation - I said that before but folks need to remember that when the Judge sees you he is wondering why these two cannot see their bias - the judge approaches this as two biased parties are arguing over the truth and cannot see it for their own biases. If your and unbiased as possible it goes much in your favor, but in reality there is discovery, why don’t we settle this instead of wasting all this time, then counter discovery, why don’t we settle this before wasting all this time, I really don’t have a case/defense so why don’t we settle this before wasting all this time, then why don’t we settle this at the court house steps because I have milked my client for ALL the money he has anyway, the we have a hearing to set a hearing date, and the court insists then that you have a settlement hearing before that date in most jurisdictions with a certified arbitrator, then you have a hearing which gets postponed, then you have a day in court.
Unusually serious violations that could have been prevented or demonstrates willful disregard for public health and air pollution control laws may be referred to the District Attorney for criminal prosecution. Penalties for such violations may be as high as $1,000,000 per day for each day of violation, or one year in jail, or both. I have seen in California a criminal action for a case against a ship’s captain.
You might wish WILL NEED to retain an attorney to assist in matters referred to the Agency’s legal counsel… folks long before this you need such counsel, but remember that the good attorney’s always first represent themselves. You must manage your attorney, get them to explain the law and the process and make sure they properly file deposition requests for documentation (both First and Second Interrogatories), FOIA requests for similar litigation and settlements and represent YOU (not just their own interests to maximize billable hours). And not being an attorney I am sure I have missed something here. A good attorney is worth it.
- When Rules Change
Rule changes can affect your business. It is your responsibility to know the current rules. To be kept informed of rule changes, you can subscribe to the following individual services: rule updates, public notices of workshops and board hearings, copies of draft and proposed rules, and staff reports in most jurisdictions.
Also, be sure to familiarize yourself with all conditions of your District permit, especially if you receive a modified or re-evaluated permit.
- For More Information
Contact Arthur.Eberle@Compliance-Assurance.com for assistance.
VEO Notice of Violation Examples and Resources
Ship’s Captain arrested for alleged Opacity Violation
Operating the engines on idle to provide ships power in the heat of a San Diego Summer landed a ship’s captain in jail after he refused to discontinue the operation. The police were called and contact in the local jurisdiction air pollution control authority to perform a visible emission reading on the ships emissions. The ship’s owners retained legal counsel who consulted Compliance Assurance Associates, Inc. for a detailed review of the opacity observation documentation including several photographs. The ship had a twin stack system and from the perspective of the observation the reader did not have a clear view to assure that they were looking through only one diameter, nor was the sun angle or wind in ideal conditions. Through this and other items Compliance Assurance Associates, Inc. consultation was able to raise enough reasonable doubt that the ship’s captain was released with days of consulting with Compliance Assurance Associates, Inc. and the first interrogatory meeting.
Cement Storage – Batch Plant Facility
A grain loading facility had numerous photographs taken which were attempting to show the dust levels greatly exceeded the opacity limits. Compliance Assurance Associates, Inc. provided consultation services showing photos could not be used as evidence of opacity levels but could be used to show the context such that dust is blowing over the property boundary/line. The case was settled between the complainant and facility in an undisclosed and sequestered manner.
Resources for NOV Information
Uncombined water vapor can and should be excluded from your observations: http://courts.mrsc.org/mc/courts/zappellate/019wnapp/019wnapp0689.htm
A regulator's perspective and a good description of the process: http://www.valleyair.org/busind/comply/novbultn.htm
Perform a visible emission reading immediately to show you are not in violation if an opacity violation is alleged: California Regulations