2010 California Code
Health and Safety Code
Article 1.5. District Review Of A Permit Applicant's Compliance History

42330.  The Legislature finds and declares that the effective
regulation of air pollution emissions requires that permit applicants
who have a demonstrated recurring pattern of air pollution control
violations, and who have consistently refused to take the necessary
steps to cooperate with a district to correct those violations, shall
be subject to appropriate permit actions to bring them into
compliance. The Legislature further finds that noncompliance may
endanger the public health and safety and the environment and places
permit applicants that are in compliance at a serious competitive
disadvantage.
   It is the intent of the Legislature in enacting this article to
provide districts with an effective enforcement tool to bring
noncompliant permit applicants into conformity with the applicable
air pollution control laws and regulations. It is further the intent
of the Legislature that any permit action authorized by this article
shall be taken only after a district has attempted to bring the
applicant into voluntary or required compliance, in accordance with
the procedural and due process requirements prescribed by this
article.



42331.  (a) Prior to issuing a permit pursuant to Article 1
(commencing with Section 42300), the air pollution control officer
may review the compliance history of the applicant submitted to the
district pursuant to Section 42336, under laws or regulations
governing the control of air pollution, including the Clean Air Act
(42 U.S.C. Sec. 7401 and following) and regulations adopted
thereunder, and this division and regulations adopted pursuant to
this division.
   (b) In reviewing the applicant's compliance history, the officer
shall take into account the size and complexity of the applicant's
operations, the compliance history of all sources within the facility
for which the permit is being sought, and the number of permits held
by the applicant.
   (c) For a permit for new or modified equipment at an existing
facility, the officer's review of an applicant's compliance history
shall be limited to the compliance history of the facility in
question and the compliance history of other permitted sources at
facilities owned, operated, or controlled by the applicant in the
district. As used in this subdivision, "modified equipment" means any
modification, including a change in the method of operation, that
would require a permit modification under district rules.



42332.  (a) Prior to renewing a permit, an air pollution control
officer may review the compliance history of the source in question
at the facility, as shown in district records, under laws or
regulations governing the control of air pollution, including the
Clean Air Act (42 U.S.C. Sec. 7401 and following) and regulations
adopted thereunder, and this division and regulations adopted
pursuant to this division.
   (b) In reviewing an applicant's compliance history, the officer
shall take into account the size and complexity of the applicant's
operations and the number of permits held by the applicant.



42333.  (a) An air pollution control officer may, pursuant to this
article, deny a permit, refuse to renew a permit, or specify
additional permit conditions to ensure compliance with applicable
rules and regulations, if the officer determines that each of the
following has occurred:
   (1) In the three-year period preceding the date of application,
the applicant has violated laws or regulations identified in
subdivision (a) of Section 42331 and subdivision (a) of Section 42332
resulting in either excessive emissions or violations at a facility
which is required to be permitted but is not permitted, owned or
operated by the applicant.
   (2) A notice of violation was issued for those violations.
   (3) A variance was not in effect with respect to those violations.
   (4) The violations demonstrate a recurring pattern of
noncompliance or pose or have posed a significant risk to the public
health or safety or to the environment.
   (5) Notice and an opportunity for an office conference was
provided pursuant to Section 42334.
   (b) This section does not apply to a permit to operate, or the
renewal of such a permit, issued by an air pollution control officer
for a facility which is owned or operated by an applicant, unless the
applicant has met the criteria set forth in paragraphs (1) to (4),
inclusive, of subdivision (a) at the source in question at that
facility.
   (c) For the purposes of determining a permit action under this
section, the air pollution control officer shall take into
consideration the size and complexity of the applicant's operations
and the number of permits held by the applicant.
   (d) The air pollution control officer's determination of whether
to deny a permit shall be based upon all of the following:
   (1) Whether the emissions violations forming the basis for the
denial were the result of circumstances beyond the reasonable control
of the applicant and could not have been prevented by the exercise
of reasonable care.
   (2) Whether a permit denial is not an appropriate action given the
severity of the violations, or that the denial is not supported by
the applicant's overall compliance history.
   (3) Whether a permit denial is not an appropriate action because
the equipment type, operational character, or emissions capacity of
the sources where the violations occurred are significantly different
than that of the source for which the permit is being sought.
   (4)  Whether the violation has been corrected in a timely fashion
or reasonable progress is being made.
   (5) Whether a permit denial is not an appropriate action because a
variance has been granted with respect to those violations.
   (6) Whether the violations demonstrate a recurring pattern of
noncompliance or pose or have posed a significant risk to the public
health or safety or to the environment.
   (7) Whether notice and an opportunity for an office conference was
provided pursuant to Section 42334.
   (e) A permit denial pursuant to subdivision (a) which is based
solely upon violations which have not been admitted by the applicant
or otherwise established by law shall be set aside by a hearing board
if a hearing has been requested by the applicant pursuant to Section
42302, unless the air pollution control officer, following the
presentation of substantial evidence and the applicant's opportunity
to rebut the evidence, proves that the violation did occur, and that
denial is supported by the applicant's overall compliance history.



42334.  If, in the course of enforcing existing permits and
conducting inspections relative thereto, an air pollution control
officer makes a preliminary determination that the person has met the
criteria prescribed in paragraphs (1) to (4), inclusive, of
subdivision (a) of Section 42333, the officer shall take all of the
following actions:
   (a) Notify the person, in writing, that the district has made a
preliminary determination that the person has met those criteria and
that the district may take action pursuant to subdivision (a) of
Section 42333. The notice shall include all facts relating to the
preliminary determination which are known to the officer.
   (b) Request, as part of the notification required by subdivision
(a), that the person confer with the officer in an office conference
to discuss the pattern of noncompliance.
   (c) Conduct the office conference.



42335.  A permit denied pursuant to Section 42333 shall be set aside
by the hearing board under either of the following conditions:
   (a) The applicant proves that either:
   (1) The emissions violations forming the basis for the denial were
the result of circumstances beyond the reasonable control of the
applicant and could not have been prevented by the exercise of
reasonable care.
   (2) The denial is not an appropriate action given the severity of
the violations, or is not supported by the applicant's overall
compliance history.
   (b) The violation has been corrected in a timely fashion or
reasonable progress is being made.


42336.  In addition to any other information required to be
submitted, an applicant for a permit to construct or a permit to
operate which involves a change of operator who has owned or operated
a facility pursuant to a permit issued by any district shall provide
a description of all emissions violations satisfying the criteria
specified in paragraphs (1) to (3), inclusive, of subdivision (a) of
Section 42333, under this division or any regulation adopted pursuant
to this division, and the Clean Air Act (42 U.S.C. Sec. 7401 and
following) or any regulations adopted thereunder, which occurred at
any facility permitted by any district and owned or operated by the
applicant in the state in the three years prior to the date of
application.



42337.  Any public notice provided by the district concerning the
issuance of a permit to an applicant shall include, in addition to a
description of the proposed project, a statement that information
regarding the facility owner's compliance history submitted to the
district pursuant to Section 42336, or otherwise known to the
district, based on credible information, is available from the
district for public review.



42338.  Nothing in this article limits the existing authority of the
district.


42339.  This article does not apply to nuisance complaints based on
odor emissions.