Notices of Violation
and the
Mutual Settlement Program
What is a Notice of Violation?
A notice of violation (NOV) is the APCD's official record that someone has
violated an APCD rule, permit condition, or state law relating to air pollution.
In order to provide consistency and to avoid even the appearance of favoritism,
the APCD does not give written or verbal warnings. An NOV is issued every time a
violation is observed or discovered.
The primary purpose of an NOV is to initiate corrective action which will reduce
air pollution. To provide an incentive for continuing compliance, NOVs may
result in monetary penalties. Serious or repeated violations which show blatant
disregard for the law and for public health, may lead to civil or criminal
prosecution. If You Receive a Notice of Violation, What Should You Do?
Don't panic! If you have any questions, call us. The first thing you should do
is take immediate action to bring your operation back into compliance. Each day
of non-compliance could be an additional violation.
Within 10 days, return a copy of the NOV to the APCD with a written description
of the corrective action you have taken to prevent continued or recurrent
violations. If you need help preparing this report, please call us. Send this
information to the attention of the inspector who issued the NOV, or bring it to
our Goleta office.
What if you cannot correct the problem?
If you must continue operations which do not comply with APCD rules or permit
conditions, you should immediately apply for a variance.
A variance is an administrative order granting temporary relief from specific
provisions of an APCD rule or permit condition. If approved, a variance allows
you to continue operations 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. However, there may be other operational or
administrative remedies available to you. Call us and we will work with you to
design a compliance strategy. For more information, call the APCD at
961-8800 and ask to speak to your inspector, or call us on the
Business Assistance Line at 961-8868.
What Happens Next?
Notices of violation are handled in one of two ways: by the APCD's Mutual
Settlement Program (which may include consultation with the APCD's legal
counsel, the Office of County Counsel), or by referring the case to an
independent enforcement agency such as the Santa Barbara County District
Attorney's office. Each of these is described below.
Mutual Settlement Program
In most cases, violations can be resolved through the APCD's Mutual Settlement
Program. This program offers the opportunity to settle your case by reaching an
agreement with the APCD to bring your operation into compliance and, in some
cases, to pay a penalty. When your violation is referred to the Mutual
Settlement Program, you will receive a settlement offer which may recommend the
payment of a monetary penalty and may specify actions to be taken by you to
ensure continued compliance with APCD rules and permit conditions.
You should respond to the offer within the time indicated and schedule a
settlement conference. A settlement conference may be held over the phone or at
our office, and we may include our legal counsel, which is the Santa Barbara
County Office of County Counsel, in these conferences. If you do not respond, or
if the matter cannot be resolved, it may be referred to an independent
enforcement agency, such as the Santa Barbara County District Attorney's Office.
Penalties
The Mutual Settlement Program penalties are generally based on 10-25% of the
maximum penalty allowed by law (California Health and Safety Code, Section
42403). Penalties may be further reduced based on one or more of the following
factors:
- The extent of harm caused by the violation.
- The nature and persistence of the violation.
- The length of time over which the violation occurs.
- The frequency of past violations.
- The record of maintenance.
- The unproven or innovative nature of the control equipment.
- Any action taken to mitigate the violation.
- The financial burden to the operator.
A complete description of the penalty structure as it applies to a violation at
your facility can be obtained from the Mutual Settlement staff.
Suspensions
To ease the financial burden of some penalty payments, a suspension
may be offered in cases where swift action was taken to achieve
compliance; there is a record of vigilant maintenance practices; the
pollution control equipment is innovative or unproven; or
non-compliance was of a short duration. Rather than requiring you to
pay the entire penalty at the time of settlement, a one-year
suspension of all or a portion of your penalty may be offered. If
additional violations occur within the year, the suspended amount
must be paid. If your operations are maintained in compliance for a
year, the suspended amount will be dismissed.
You may discuss penalty suspensions with the Mutual Settlement staff during your
settlement conference.
Legal Action
Violations which the Mutual Settlement Program are unable to resolve may be
referred to an independent enforcement agency, such as the District Attorney's
Office. Some of these cases may be settled out of court. However, the referral
of a violation to the District Attorney's Office may result in civil
prosecution. We may also consult the District Attorney's Office prior to
official referral when particularly difficult cases appear to be headed toward
deadlock.
Unusually serious violations which could have been prevented or which show
willful disregard for public health and air pollution control laws are not
considered for Mutual Settlement but are referred directly to the District
Attorney for consideration of criminal prosecution. Criminal penalties for such
violations may be as high as $25,000 and one year in jail for each day of
violation.
When Rules Change
Rule changes can affect your business. It is your responsibility to
know the current rules. A copy of the APCD's Rules and Regulations
can be purchased from the APCD. 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.
Be sure to familiarize yourself with all conditions of your APCD permit,
especially if you receive a modified or re-evaluated permit. You may wish to
retain an attorney to deal with variances before the Hearing Board or matters
referred to legal counsel.
For More Information, Call 805-961-8800
This provides answers to commonly asked questions about NOVs and the
Mutual Settlement Program. If you have specific questions about your
NOV, contact the inspector who issued it. For further information
about the Mutual Settlement Program or other compliance issues, call
961-8800 and ask for the Mutual Settlement Inspector, or call our
Business Assistance Line at 961-8868.
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