When someone receives a notice of violation (NOV) from the South Coast Air Quality Management District (SCAQMD), they very often react like a teenager who’s just crashed a parent’s car: Their hands start sweating, their heart starts beating rapidly, and they may even develop a cold sweat. In other words, they panic. At some point in the process, some will wonder if they are going to get fired from their job.
Getting an NOV is definitely not something that should be taken lightly. But knowing what to expect, such as how much it’s going to cost you, can help set your mind at ease. And that’s exactly the purpose of this post.
But before we get started, keep in mind that Envera Consulting is not a law firm, so this should not be viewed as legal advice, by any means. We are, however, familiar with the process that the SCAQMD uses to settle NOVs, and we’ve even settled a few NOV issues without the use of lawyers.
That said, resolving an SCAQMD NOV is sometimes best handled by an attorney, so you should always check with your management team to see if that is the best path forward for your situation.
With that out of the way, let’s get into it!
What Is an NOV and When Are They Issued?
An notice of violation is sort of like getting a traffic ticket, except that instead of being cited for speeding or running a red light, you’re being cited for noncompliance with one or more air quality regulations, permit conditions, or legal requirements.
SCAQMD inspectors issue an NOV usually after inspecting a noncompliant facility or when they are informed of an instance of noncompliance.
Do All Instances of Noncompliance Result in an NOV?
For the most part, no.
If there are minor violations that can easily be rectified, a company will receive a notice to comply (NTC), which is like a “fix-it-ticket.”
An NOV is considerably more serious and more expensive to resolve than an NTC. Every day that a company doesn’t operate in compliance can count as a separate violation, and every violation is subject to civil and/or criminal penalties.
Whether the facility receives an NTC or an NOV, it’s best to resolve the issue as quickly as possible to limit impacts to the bottom line.
How Is an NOV Resolved?
If your company receives an SCAQMD NOV, you will receive a letter from the District Prosecutor’s Office requesting more information about the violation.
After reviewing the facts, the SCAQMD will decide how to resolve the violation based on a number of factors, including company size, the nature of the violation, the length of time that the violation has been occurring, etc.
The Minor Source Penalty Assessment Program
The SCAQMD’s Minor Source Penalty Assessment Program handles violations at non-major sources with no prior violations. As part of this program, the SCAQMD and the company receiving the NOV typically agree on both the course of action that’s needed to comply with clean air requirements and the penalty for the violation. Reaching a settlement under this program is usually done without involving attorneys or the courts.
Civil Prosecution to Resolve an NOV
If a resolution is not reached under the Minor Source Penalty Assessment Program, the SCAQMD will proceed with a civil prosecution. The case will be reviewed by an SCAQMD attorney who will typically issue a “pre-suit” letter asking for information about the violation.
In more serious cases, the SCAQMD may immediately start a legal action for civil penalties and a court-ordered injunction. The SCAQMD can also seek an Order for Abatement from the SCAQMD Hearing Board.
When you receive a “pre-suit” letter, you should provide any information related to the violation that you would like the SCAQMD to know about when developing settlement terms.
Penalty Assessment for an NOV
The SCAQMD’s Prosecutor’s Office assesses each NOV on a case-by-case basis to ensure the assessment of a fair penalty, since the same fine that’s levied on a large company may not be fair for a small one.
In doing so, the SCAQMD implements a sliding scale for negotiating an appropriate penalty, based on nine factors for civil matters:
- The extent of harm caused by the violation
- The nature and persistence of the violation
- The length of time over which the violation occurred
- The frequency of past violations
- The record of maintenance
- The unproven or innovative nature of control equipment used
- The action (if any) taken by a company to mitigate the violation
- The financial burden to the company in violation
- The economic advantage gained by the company by operating in violation
In criminal proceedings, the SCAQMD turns the case over to the appropriate law enforcement agency to determine if the case warrants a criminal prosecution. During criminal prosecution, the person(s) in question are served with an arraignment letter or an arrest warrant; corporations are served with a summons. Criminal prosecutions are based on more serious factors, including:
- The type of pollutant(s) emitted
- The intent of the person(s) cited
- The extent of public health endangerment
- The company’s violation history
How Much Does an NOV Cost to Resolve?
Civil prosecution penalties for NOVs can cost individuals up to $250,000 per day, per violation, and it can cost corporations up to $1,000,000 per day, per violation. As mentioned above, the SCAQMD determines fees after assessing each case individually.
Also remember that the SCAQMD will work closely with your business to reach a fair settlement, so actual monetary penalties are usually much lower than the maximum limits.
You can see a summary of past penalties issued to companies that have settled an SCAQMD NOV here.
The costs that we’ve listed only describe the penalties that need to be paid to the SCAQMD for noncompliance. The costs don’t include the fees incurred if an attorney or consultant is hired to assist in correcting the violations or if additional equipment is needed to achieve compliance, the latter of which is usually in the four- to six-figure range, though that can vary greatly.
Need help with your NOV? Contact us for a consultation to see if we can help make the process as painless as possible.
