SECTIONS 42330-42339

42330.  The Legislature finds and declares that the effectiveregulation of air pollution emissions requires that permit applicantswho have a demonstrated recurring pattern of air pollution controlviolations, and who have consistently refused to take the necessarysteps to cooperate with a district to correct those violations, shallbe subject to appropriate permit actions to bring them intocompliance. The Legislature further finds that noncompliance mayendanger the public health and safety and the environment and placespermit applicants that are in compliance at a serious competitivedisadvantage. It is the intent of the Legislature in enacting this article toprovide districts with an effective enforcement tool to bringnoncompliant permit applicants into conformity with the applicableair pollution control laws and regulations. It is further the intentof the Legislature that any permit action authorized by this articleshall be taken only after a district has attempted to bring theapplicant into voluntary or required compliance, in accordance withthe procedural and due process requirements prescribed by thisarticle.42331.  (a) Prior to issuing a permit pursuant to Article 1(commencing with Section 42300), the air pollution control officermay review the compliance history of the applicant submitted to thedistrict pursuant to Section 42336, under laws or regulationsgoverning the control of air pollution, including the Clean Air Act(42 U.S.C. Sec. 7401 and following) and regulations adoptedthereunder, and this division and regulations adopted pursuant tothis division. (b) In reviewing the applicant's compliance history, the officershall take into account the size and complexity of the applicant'soperations, the compliance history of all sources within the facilityfor which the permit is being sought, and the number of permits heldby the applicant. (c) For a permit for new or modified equipment at an existingfacility, the officer's review of an applicant's compliance historyshall be limited to the compliance history of the facility inquestion and the compliance history of other permitted sources atfacilities owned, operated, or controlled by the applicant in thedistrict. As used in this subdivision, "modified equipment" means anymodification, including a change in the method of operation, thatwould require a permit modification under district rules.42332.  (a) Prior to renewing a permit, an air pollution controlofficer may review the compliance history of the source in questionat the facility, as shown in district records, under laws orregulations governing the control of air pollution, including theClean Air Act (42 U.S.C. Sec. 7401 and following) and regulationsadopted thereunder, and this division and regulations adoptedpursuant to this division. (b) In reviewing an applicant's compliance history, the officershall take into account the size and complexity of the applicant'soperations and the number of permits held by the applicant.42333.  (a) An air pollution control officer may, pursuant to thisarticle, deny a permit, refuse to renew a permit, or specifyadditional permit conditions to ensure compliance with applicablerules and regulations, if the officer determines that each of thefollowing has occurred: (1) In the three-year period preceding the date of application,the applicant has violated laws or regulations identified insubdivision (a) of Section 42331 and subdivision (a) of Section 42332resulting in either excessive emissions or violations at a facilitywhich is required to be permitted but is not permitted, owned oroperated 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 ofnoncompliance or pose or have posed a significant risk to the publichealth or safety or to the environment. (5) Notice and an opportunity for an office conference wasprovided pursuant to Section 42334. (b) This section does not apply to a permit to operate, or therenewal of such a permit, issued by an air pollution control officerfor a facility which is owned or operated by an applicant, unless theapplicant has met the criteria set forth in paragraphs (1) to (4),inclusive, of subdivision (a) at the source in question at thatfacility. (c) For the purposes of determining a permit action under thissection, the air pollution control officer shall take intoconsideration the size and complexity of the applicant's operationsand the number of permits held by the applicant. (d) The air pollution control officer's determination of whetherto deny a permit shall be based upon all of the following: (1) Whether the emissions violations forming the basis for thedenial were the result of circumstances beyond the reasonable controlof the applicant and could not have been prevented by the exerciseof reasonable care. (2) Whether a permit denial is not an appropriate action given theseverity of the violations, or that the denial is not supported bythe applicant's overall compliance history. (3) Whether a permit denial is not an appropriate action becausethe equipment type, operational character, or emissions capacity ofthe sources where the violations occurred are significantly differentthan that of the source for which the permit is being sought. (4)  Whether the violation has been corrected in a timely fashionor reasonable progress is being made. (5) Whether a permit denial is not an appropriate action because avariance has been granted with respect to those violations. (6) Whether the violations demonstrate a recurring pattern ofnoncompliance or pose or have posed a significant risk to the publichealth or safety or to the environment. (7) Whether notice and an opportunity for an office conference wasprovided pursuant to Section 42334. (e) A permit denial pursuant to subdivision (a) which is basedsolely upon violations which have not been admitted by the applicantor otherwise established by law shall be set aside by a hearing boardif a hearing has been requested by the applicant pursuant to Section42302, unless the air pollution control officer, following thepresentation of substantial evidence and the applicant's opportunityto rebut the evidence, proves that the violation did occur, and thatdenial is supported by the applicant's overall compliance history.42334.  If, in the course of enforcing existing permits andconducting inspections relative thereto, an air pollution controlofficer makes a preliminary determination that the person has met thecriteria prescribed in paragraphs (1) to (4), inclusive, ofsubdivision (a) of Section 42333, the officer shall take all of thefollowing actions: (a) Notify the person, in writing, that the district has made apreliminary determination that the person has met those criteria andthat the district may take action pursuant to subdivision (a) ofSection 42333. The notice shall include all facts relating to thepreliminary 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 conferenceto discuss the pattern of noncompliance. (c) Conduct the office conference.42335.  A permit denied pursuant to Section 42333 shall be set asideby 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 werethe result of circumstances beyond the reasonable control of theapplicant and could not have been prevented by the exercise ofreasonable care. (2) The denial is not an appropriate action given the severity ofthe violations, or is not supported by the applicant's overallcompliance history. (b) The violation has been corrected in a timely fashion orreasonable progress is being made.42336.  In addition to any other information required to besubmitted, an applicant for a permit to construct or a permit tooperate which involves a change of operator who has owned or operateda facility pursuant to a permit issued by any district shall providea description of all emissions violations satisfying the criteriaspecified in paragraphs (1) to (3), inclusive, of subdivision (a) ofSection 42333, under this division or any regulation adopted pursuantto this division, and the Clean Air Act (42 U.S.C. Sec. 7401 andfollowing) or any regulations adopted thereunder, which occurred atany facility permitted by any district and owned or operated by theapplicant in the state in the three years prior to the date ofapplication.42337.  Any public notice provided by the district concerning theissuance of a permit to an applicant shall include, in addition to adescription of the proposed project, a statement that informationregarding the facility owner's compliance history submitted to thedistrict pursuant to Section 42336, or otherwise known to thedistrict, based on credible information, is available from thedistrict for public review.42338.  Nothing in this article limits the existing authority of thedistrict.42339.  This article does not apply to nuisance complaints based onodor emissions.