TOXIC TORT: Proposed Bill to Grant Air Quality Districts Unilateral Authority for Industry Shutdown


Proposed California legislation looks to substantially broaden regional emissions regulations. Specifically, AB1132 would authorize districts to issue an interim order of abatement without first giving notice and holding a hearing, as is required under existing law. If enacted, this legislation has the potential for massive disruption for plant manufacturers. The proposed rule comes, in part, out of concern for hexavalent chromium, a chemical used in the metal finishing industry.

“Something in the Paramount area is causing runny noses and watering eyes,” expressed Chairman William A. Burke at the April 7, 2017, meeting of the South Coast Air Quality Management District Board (“SCAQMD”). The suspected culprit: hexavalent chromium (they think). Chromium in its hexavalent form is used in the metal finishing industry to produce shiny, chrome-plated metal. The chemical is generally found in manufacturing plants involving welding and other types of "hot work" on stainless steel and other metals that contain chromium. Exposure to hexavalent chromium is believed to cause cancer.

Current California law authorizes regional air quality management districts, such as SCAQMD, to regulate the emissions of air pollutants by stationary sources. Under existing law, when air districts find a violation, they may only issue an order for abatement after giving notice and a holding a hearing. An abatement order requires a company to take specific actions or shut down its operations.

However, a pending bill in the California Legislature would change existing law to allow air quality management districts to issue abatement orders without first holding a hearing.

Specifically, AB1132 would authorize districts to issue an interim order of abatement if an officer determines a facility is in violation of a regulation and presents an “imminent and substantial endangerment” to the public health or welfare, or the environment. After issuing an interim order, the district would have 15 days to set a hearing and another 30 days to hold it. The order would remain in effect until a final determination on the merits, which could occur as much as 60 days after the hearing.

All told, under the terms of AB1132, a finding by a single officer in one of California’s 35 air quality management districts could result in the shutdown of a facility for up to 105 days before a determination is made.

The proposed bill has widespread implications. SCAQMD alone estimates it will identify and prioritize high-risk facilities from approximately 1,100 metal-processing operations in the Counties of Los Angeles, Orange, and the Inland Empire. SCAQMD further intends to amend its rules and regulations to encompass more metal manufacturing processes found to contribute to toxic emissions. Coupled with the existing authority to create environmental policy, the passage of AB1132 would give regional air quality management districts like SCAQMD unprecedented power to unilaterally shut down business operations.

Poole Shaffery has many years of experience advising and representing business entities in environmental matters arising before state and federal courts, and regulatory agencies, such as SCAQMD.

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