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A Healthy Breathing Environment For Every Bay Area Resident
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Community Advisory Council FAQs
New
Frequently Asked Questions from the Community Advisory Council to Air District staff
New 13/08/2024
Permitting
Permit exemptions are listed in Regulation 2-1-113 through 2-1-128. Even if a source has a listed permit exemption, it requires a permit if the source cannot comply with all these backstop provisions:
• The source must meet Best Available Control Technology for Toxics and project risk limits per 2-1-316.1;
• The source or group of related sources cannot emit more than 2.5 tons per year of any single hazardous air pollutant or 6.25 tons per year of any combination of hazardous air pollutants per 2-1-316.2;
• The source cannot be a public nuisance per 2-1-317;
• If the source is located within a facility designated as a Prevention of Significant Deterioration Major Facility, the emissions of hazardous substances must be less than the quantities listed in Regulation 2-1-318;
• The source must not emit more than 5 tons per year of any regulated air pollutant, after abatement per Regulation 2-1-319.1.
Please note that all exempt equipment must still comply with all rules and regulations. For example, a graphic arts operation that is exempt from a permit per Regulation 2-1-119.5 must still comply with the requirements in Regulation 8-20 for Graphic Arts Printing and Coating Operations. The facility must be able to demonstrate at all times that they comply per Regulation 2-1-502.
Visit the Air District Rules web page.
View the Permit Handbook, Appendix A Permit Exemption Guidance, pages 230-244.
• The source must meet Best Available Control Technology for Toxics and project risk limits per 2-1-316.1;
• The source or group of related sources cannot emit more than 2.5 tons per year of any single hazardous air pollutant or 6.25 tons per year of any combination of hazardous air pollutants per 2-1-316.2;
• The source cannot be a public nuisance per 2-1-317;
• If the source is located within a facility designated as a Prevention of Significant Deterioration Major Facility, the emissions of hazardous substances must be less than the quantities listed in Regulation 2-1-318;
• The source must not emit more than 5 tons per year of any regulated air pollutant, after abatement per Regulation 2-1-319.1.
Please note that all exempt equipment must still comply with all rules and regulations. For example, a graphic arts operation that is exempt from a permit per Regulation 2-1-119.5 must still comply with the requirements in Regulation 8-20 for Graphic Arts Printing and Coating Operations. The facility must be able to demonstrate at all times that they comply per Regulation 2-1-502.
Visit the Air District Rules web page.
View the Permit Handbook, Appendix A Permit Exemption Guidance, pages 230-244.
All exempt sources are required to comply with all Air District Regulations. Just because an emissions source is not required to obtain a permit, that does not mean it is unregulated and not subject to any emissions limits or other regulatory requirements. Exemptions exist because for some equipment, we can regulate emissions in other ways that don’t require crafting individualized permit conditions specific to each individual piece of equipment. This is especially true in situations where the emissions and impacts from the equipment are expected to be minimal or very low. For example, home water heaters are regulated by specifying emissions performance requirements the manufacturer must implement when it manufactures and sells the water heater, not by requiring the person using the water heater to get a permit.
Other exemptions are based on keeping emissions to a minimum by requiring a facility to stay below a certain emission level or activity level. These facilities are responsible for monitoring and recordkeeping to demonstrate compliance with these emission or activity limits. An example of this would be the amount of solvent that a small paint shop uses.
Other exemptions are based on keeping emissions to a minimum by requiring a facility to stay below a certain emission level or activity level. These facilities are responsible for monitoring and recordkeeping to demonstrate compliance with these emission or activity limits. An example of this would be the amount of solvent that a small paint shop uses.
The Air District can seek to revoke permits and force a company to shut down based on repeated violations in certain circumstances. For example, if the company is engaged in a pattern of recurring or repeated violations that demonstrates it is effectively in ongoing, intermittent violation of the law, and if the company cannot address the problem and get back into compliance, the Air District would have a strong case that the company should have its permit revoked and be ordered to shut down. Shutting down a business is an extreme measure, and in most cases a court or hearing board would want to explore other alternatives to getting the business back into compliance, if it is possible to do so without jeopardizing public health. But if a company is constantly violating the law and refuses to do what is necessary to comply, and if it is emitting air pollution in violation of applicable limits that is harming public health, the Air District will not hesitate to take action seeking to shut the operation down. In some cases, that could mean seeking revocation of the facility’s permit, or alternatively the Air District could simply seek an order requiring the facility to immediately shut down.
Enforcement, Fees and Penalties
The percentage of violators who defy an abatement order is very small. Some violators pursue their legal rights to contest a violation, for example, by seeking a variance from our Hearing Board, or by forcing us to take formal legal action by filing an abatement order or a court case. But once they have their day in court, nearly all violators comply with the ruling of the court and pay their penalties and/or comply with the resulting order.
The amount of a penalty is governed by state law and the California Legislature, not by the Air District’s rule and regulations. In the past, the Air District has advocated for changes in state law to increase penalties, but the California Legislature has only increased them in very few instances.
Yes, penalties are per violation. The draft policy that the Finance & Administration Committee considered on April 17th applies to each “penalty package.” So, if a single settlement agreement or court case covers multiple violations (which is often the case), the policy would apply to the combined penalties collected for all the violations in the penalty package.
The Air District can seek monetary penalties for violations of its regulations. Those penalties have to be imposed by a court after a violation is proven. Typically, however, the Air District convinces the violator to pay the fine voluntarily without having to file a lawsuit, and to make changes to facility operations to prevent or minimize future, similar issues if necessary. This avoids a court case and helps prevent future violations and emissions. If the penalty exceeds $10,000, it is reported to the Board of Directors and published in the Board agenda packet (available for each Board meeting). A list of the total penalty amounts received over the past six fiscal years is shown below.
*The Air District’s fiscal year is from July 1-June 30. Penalty collections for Fiscal Year 2023-2024 include penalties collected through May 31, 2024.
| Fiscal Year | Total Penalties Collected |
|---|---|
| 2018-19 | $2,172,335 |
| 2019-20 | $1,313,978 |
| 2020-21 | $4,195,513 |
| 2021-22 | $4,824,092 |
| 2022-23 | $2,498,106 |
| 2023-24* | $23,810,364 |
*The Air District’s fiscal year is from July 1-June 30. Penalty collections for Fiscal Year 2023-2024 include penalties collected through May 31, 2024.
The Air District is a regional regulatory agency, and its fees are used to recover the costs of issuing permits, performing inspections, and other associated regulatory activities. The Air District’s fees fall into the category specified in Section 1(e) of Article XIII C of the California Constitution which specifies that charges of this type assessed to regulated entities to recover regulatory program activity costs are not taxes.
The Air District’s fee regulation, with its various fee schedules, is used to allocate regulatory program costs to fee payers in a manner which bears a fair or reasonable relationship to the payer’s burden on, or benefits received from, regulatory activities. Permit fees are based on the type and size of the source being regulated, with minimum and maximum fees being set in recognition of the practical limits to regulatory costs that exist based on source size. Add-on fees are used to allocate costs of specific regulatory requirements that apply to some sources but not others (e.g., health risk screening fees, public notification fees, alternative compliance plan fees).
Emissions-based fees are used to allocate costs of regulatory activities not reasonably identifiable with specific fee payers. Since 2006, the Air District has used annual analyses of cost recovery performed at the fee-schedule level, which is based on data collected from a labor-tracking system, to adjust fees. These adjustments are needed as the Air District’s regulatory program activities change over time based on changes in statutes, rules and regulations, enforcement priorities, and other factors.
Penalties assessed for air pollution violations are not fees. Penalties are punitive in nature and are imposed to fine violators for their illegal conduct. Fees are assessed to recover the Air District’s costs of implementing its regulatory activities related to permitted emissions sources. In an ideal world, we would achieve perfect compliance and the Air District would never collect any penalties because no facility anywhere in the Bay Area would have any violations. But even if we achieve that goal, facilities will still be required to pay permitting fees, because the Air District will still incur costs to provide the regulatory programs necessitated by those facilities’ operations.
The Air District’s fee regulation, with its various fee schedules, is used to allocate regulatory program costs to fee payers in a manner which bears a fair or reasonable relationship to the payer’s burden on, or benefits received from, regulatory activities. Permit fees are based on the type and size of the source being regulated, with minimum and maximum fees being set in recognition of the practical limits to regulatory costs that exist based on source size. Add-on fees are used to allocate costs of specific regulatory requirements that apply to some sources but not others (e.g., health risk screening fees, public notification fees, alternative compliance plan fees).
Emissions-based fees are used to allocate costs of regulatory activities not reasonably identifiable with specific fee payers. Since 2006, the Air District has used annual analyses of cost recovery performed at the fee-schedule level, which is based on data collected from a labor-tracking system, to adjust fees. These adjustments are needed as the Air District’s regulatory program activities change over time based on changes in statutes, rules and regulations, enforcement priorities, and other factors.
Penalties assessed for air pollution violations are not fees. Penalties are punitive in nature and are imposed to fine violators for their illegal conduct. Fees are assessed to recover the Air District’s costs of implementing its regulatory activities related to permitted emissions sources. In an ideal world, we would achieve perfect compliance and the Air District would never collect any penalties because no facility anywhere in the Bay Area would have any violations. But even if we achieve that goal, facilities will still be required to pay permitting fees, because the Air District will still incur costs to provide the regulatory programs necessitated by those facilities’ operations.
Per California Health and Safety Code (H&S Code) Section 42311(a), “A district board may adopt, by regulation, a schedule of annual fees for the evaluation, issuance, and renewal of permits to cover the cost of district programs related to permitted stationary sources authorized or required under this division that are not otherwise funded. The fees assessed under this section shall not exceed, for any fiscal year, the actual costs for district programs for the immediately preceding fiscal year with an adjustment not greater than the change in the annual California Consumer Price Index, as determined pursuant to Section 2212 of the Revenue and Taxation Code, for the preceding year. Any revenues received by the district pursuant to the fees, which exceed the cost of the programs, shall be carried over for expenditure in the subsequent fiscal year, and the schedule of fees shall be changed to reflect that carryover. Every person applying for a permit, notwithstanding Section 6103 of the Government Code, shall pay the fees required by the schedule. Nothing in this subdivision precludes the district from recovering, through its schedule of annual fees, the estimated reasonable costs of district programs related to permitted stationary sources.”
The Air District Board of Directors issues policy directing the Air District to amend Regulation 3 each year to recover the costs of regulatory activities in accordance with all applicable authorities. The Air District fees in Regulation 3 are in amounts no more than necessary to cover the reasonable costs of the Air District’s regulatory activities, and the manner in which the Air District fees allocate those costs to a payer bear a fair and reasonable relationship to the payer’s burdens on the Air District regulatory activities and benefits received from those activities. Fee increases must comply with the H&S Code section 41512.7(b) strict requirement that the Air District shall not “increase any existing fees for authority-to-construct permits or permits to operate by more than 15 percent in any calendar year.”
The Air District’s fee regulation was amended on June 5, 2024 and goes into effect on July 1, 2025. Regulation 3 increases fee revenue to help recover a greater share of the costs incurred by the Air District in implementing and enforcing regulatory programs.
View the Staff Report and Cost Recovery Report.
The Air District Board of Directors issues policy directing the Air District to amend Regulation 3 each year to recover the costs of regulatory activities in accordance with all applicable authorities. The Air District fees in Regulation 3 are in amounts no more than necessary to cover the reasonable costs of the Air District’s regulatory activities, and the manner in which the Air District fees allocate those costs to a payer bear a fair and reasonable relationship to the payer’s burdens on the Air District regulatory activities and benefits received from those activities. Fee increases must comply with the H&S Code section 41512.7(b) strict requirement that the Air District shall not “increase any existing fees for authority-to-construct permits or permits to operate by more than 15 percent in any calendar year.”
The Air District’s fee regulation was amended on June 5, 2024 and goes into effect on July 1, 2025. Regulation 3 increases fee revenue to help recover a greater share of the costs incurred by the Air District in implementing and enforcing regulatory programs.
View the Staff Report and Cost Recovery Report.
State law authorizes air districts to adopt fee schedules to cover the costs of various air pollution programs. California Health and Safety Code (H&S Code) section 42311(a) provides authority for an air district to collect permit fees to cover the costs of air district programs related to permitted stationary sources. H&S Code section 42311(f) further authorizes the Air District to assess additional permit fees to cover the costs of programs related to toxic air contaminants. H&S Code section 41512.7(b) provides that the Air District shall not “increase any existing fees for authority-to-construct permits or permits to operate by more than 15 percent in any calendar year.”
H&S Code section 44380(a) authorizes air districts to adopt a fee schedule that recovers the costs to the air district and State agencies of the Air Toxics Hot Spots Program (AB 2588). The section provides the authority for the Air District to collect toxic inventory fees under Schedule N.
H&S Code section 42311(h) authorizes air districts to adopt a schedule of fees to cover the reasonable costs of the Hearing Board incurred as a result of appeals from air district decisions on the issuance of permits. Section 42364(a) provides similar authority to collect fees for the filing of applications for variances or to revoke or modify variances. These sections provide the authority for the Air District to collect Hearing Board fees under Schedule A.
H&S Code section 42311(g) authorizes air districts to adopt a schedule of fees to be assessed on area-wide or indirect sources of emissions, which are regulated but for which permits are not issued by the air district, to recover the costs of air district programs related to these sources. This section provides the authority for the Air District to collect asbestos fees (including fees for Naturally Occurring Asbestos operations), soil excavation reporting fees, registration fees for various types of regulated equipment, for Indirect Source Review, and fees for open burning.
H&S Code section 44380(a) authorizes air districts to adopt a fee schedule that recovers the costs to the air district and State agencies of the Air Toxics Hot Spots Program (AB 2588). The section provides the authority for the Air District to collect toxic inventory fees under Schedule N.
H&S Code section 42311(h) authorizes air districts to adopt a schedule of fees to cover the reasonable costs of the Hearing Board incurred as a result of appeals from air district decisions on the issuance of permits. Section 42364(a) provides similar authority to collect fees for the filing of applications for variances or to revoke or modify variances. These sections provide the authority for the Air District to collect Hearing Board fees under Schedule A.
H&S Code section 42311(g) authorizes air districts to adopt a schedule of fees to be assessed on area-wide or indirect sources of emissions, which are regulated but for which permits are not issued by the air district, to recover the costs of air district programs related to these sources. This section provides the authority for the Air District to collect asbestos fees (including fees for Naturally Occurring Asbestos operations), soil excavation reporting fees, registration fees for various types of regulated equipment, for Indirect Source Review, and fees for open burning.
Damage to property (e.g., particulate fallout onto property, contamination of soil, etc.) is definitely harm that we take into account in assessing penalties. One of the factors that determines the penalty in a particular case is “the extent of harm caused by the violation,” and harm to neighbors’ property is included within that factor, along with other things like harm to health and air quality. However, there is not a fixed “penalty deterrence formula.” Every violation must be assessed case-by-case based on the specific facts and circumstances, and there is no formulaic determination where we can plug the violation into a formula and get a specific dollar number out. So, we can take into account things like air pollution damaging property and causing it to lose value, although it will not automatically translate dollar-for-dollar into a penalty assessment. We are looking to develop a new penalty policy to guide how we assess penalties for particular violations, and this is something we can include in that policy.
This is an excellent idea, and there will likely be some good opportunities in the future for the CAC to work with Air District staff to support the District’s advocacy efforts in Sacramento. Staff will follow up with the Co-Chairs with some potential ideas for discussion by the CAC.
Compliance and Enforcement
View the ATSDR's Community Member Assessment of Environmental Odors for information on how to describe odors.
Anyone can view a summary of all Notices of Violation (NOVs) issued to facilities across the Bay Area over the past five years using this new web tool.
This web tool lists NOVs and related searchable information such as facility name, facility location, penalty resolution status, and (once the case is resolved) the penalty amount. The table is updated daily, and the data can also be downloaded.
The Air District also publishes information about significant penalty cases. This web page also allows members of the public to sign up to receive email notification about all penalty settlements over $100,000. In addition, Air District staff provide a monthly report to the Board of Directors of all penalties over $10,000 at each Board meeting. Those monthly reports are available to the public in the Board packets published with each Board meeting agenda.
This web tool lists NOVs and related searchable information such as facility name, facility location, penalty resolution status, and (once the case is resolved) the penalty amount. The table is updated daily, and the data can also be downloaded.
The Air District also publishes information about significant penalty cases. This web page also allows members of the public to sign up to receive email notification about all penalty settlements over $100,000. In addition, Air District staff provide a monthly report to the Board of Directors of all penalties over $10,000 at each Board meeting. Those monthly reports are available to the public in the Board packets published with each Board meeting agenda.
The Green Sage case was a priority because there were large amounts of toxic diesel particulate being emitted in violation of regulatory standards that were impacting people living right next to the emissions sources. Using diesel generators in that manner is never allowed, and we needed to take action to stop it. The Valero hydrogen vent case was also a priority, although there were clearly some missteps at the outset with respect to how the Air District responded to that situation. But the Air District did obtain an order from the Hearing Board requiring Valero to address the emissions from the hydrogen vent exceeding the applicable regulatory standard.
Data Collection
The Air District uses Health Risk Assessments (HRAs) to model health risk from new and existing sources of toxic air contaminants that require a permit. The modeling results are used to determine whether the project risk meets requirements in Air District regulations. The Air District also uses computer modeling to assess potential health impacts and health benefits as part of the rule development process for new and revised rules and in community health protection programs such as AB617.
The Air District does not evaluate the presence or buildup of pollutants within individual people. We refer these requests to colleagues with this expertise at Biomonitoring California, a collaborative effort between the California Department of Public Health (CDPH), the Office of Environmental Health Hazzard Assessment (OEHHA), and the Department of Toxic Substances Control (DTSC).
While we do not measure buildup of pollutants in people or other biological effects of air pollution exposure, we do measure the levels of many air pollutants in the air that have health effects, and much of this data on environmental exposure to air pollution is used by OEHHA and other health researchers. These measurements are conducted at a network of 31 long-term air monitoring stations throughout the Bay Area. A complete list of what monitors are located at each air monitoring station is in the district’s Annual Air Monitoring Network Plan; examples include:
• 20 stations measuring ozone
• 18 stations measuring nitrogen dioxide
• 17 stations measuring PM2.5
• 7 stations measuring black and brown carbon, which are markers for diesel particulate matter and woodsmoke
• 21 stations measuring daily average levels of 22 VOCs, many of which are toxic
• 1 station measuring concentrations of compounds that are toxic or form ozone, including hourly concentrations of 56 VOCs (including benzene) and 8-hour concentrations of four carbonyls (including formaldehyde)
• 2 stations that are part of CARB’s statewide air toxics monitoring network, which in addition to the VOCs measured at other sites, measure formaldehyde and acetaldehyde.
• 4 stations that measure the composition of PM2.5, including toxic metals
• One station at Reid Hillview Airport measuring TSP-lead
We are expanding measurements in the refinery corridor to include real-time hourly measurements of benzene, ethylbenzene, toluene, and xylene, or BTEX, four more common toxic air contaminants that have serious health effects.
The Air District does not evaluate the presence or buildup of pollutants within individual people. We refer these requests to colleagues with this expertise at Biomonitoring California, a collaborative effort between the California Department of Public Health (CDPH), the Office of Environmental Health Hazzard Assessment (OEHHA), and the Department of Toxic Substances Control (DTSC).
While we do not measure buildup of pollutants in people or other biological effects of air pollution exposure, we do measure the levels of many air pollutants in the air that have health effects, and much of this data on environmental exposure to air pollution is used by OEHHA and other health researchers. These measurements are conducted at a network of 31 long-term air monitoring stations throughout the Bay Area. A complete list of what monitors are located at each air monitoring station is in the district’s Annual Air Monitoring Network Plan; examples include:
• 20 stations measuring ozone
• 18 stations measuring nitrogen dioxide
• 17 stations measuring PM2.5
• 7 stations measuring black and brown carbon, which are markers for diesel particulate matter and woodsmoke
• 21 stations measuring daily average levels of 22 VOCs, many of which are toxic
• 1 station measuring concentrations of compounds that are toxic or form ozone, including hourly concentrations of 56 VOCs (including benzene) and 8-hour concentrations of four carbonyls (including formaldehyde)
• 2 stations that are part of CARB’s statewide air toxics monitoring network, which in addition to the VOCs measured at other sites, measure formaldehyde and acetaldehyde.
• 4 stations that measure the composition of PM2.5, including toxic metals
• One station at Reid Hillview Airport measuring TSP-lead
We are expanding measurements in the refinery corridor to include real-time hourly measurements of benzene, ethylbenzene, toluene, and xylene, or BTEX, four more common toxic air contaminants that have serious health effects.
Spare the Air Status
Last Updated: 13/08/2024