Governor Jerry Brown signed Assembly Bill 1132 (“AB 1132”) into law on August 7, 2017. The bill, authored by Democratic Assemblymember Cristina Garcia, adds Section 42451.5 to the Health and Safety Code which authorizes air districts to issue interim orders for abatement pending an abatement hearing for non-vehicular sources of air pollution. The South Coast Air Quality Management District sponsored the bill.
Existing law permits the governing boards and the hearing boards of California air districts to issue orders for abatement, after notice and an abatement hearing, whenever the air districts find a violation of any order, rule, or regulation prohibiting or limiting the discharge of air contaminants into the air. Health & Safety Code § 42451. AB 1132 goes one step further. Effective on and after January 1, 2018, AB 1132 permits an air pollution control officer to issue an interim abatement order, without a hearing, if the officer finds there is an “imminent and substantial endangerment to the public health or welfare, or the environment.” Id. § 42451.5(a) (emphasis added). It is not hard to imagine that most air pollution control officers will exercise this new power with zeal and impunity.
The new law offers few backstops for regulated entities and leaves much discretion to the air districts. Prior to issuing an interim order, the air pollution control officer must attempt to meet and confer with the regulated entity, and make a good faith effort to agree on a stipulated interim order. The air district must then schedule a hearing within 3 business days, and the hearing must be held “as soon as possible, but not later than 30 days after the receipt of the notice” of the interim abatement order. Id. § 42451.5(c). An interim abatement order shall remain in effect until the hearing board has made a final determination on the merits, which shall be as soon as possible, but not later than 14 days after the completion of the hearing. Id. § 42451.5(d). Reading between the lines here: Can California’s businesses survive what could be a 45-day cessation of operations? We doubt it. As a result, this new law could become an existential threat to California businesses for this reason.
Perhaps the most prominent unknown factor in the new law is that AB 1132 does not establish what constitutes an “imminent and substantial endangerment to the public health or welfare, or the environment.” This seems to set a threshold higher than a mere injury or nuisance, but it is unclear precisely what level of pollutants is “imminent and substantial.” We anticipate litigation to emerge challenging the law, and specifically over its trampling of due process rights and the application of the “imminent and substantial” standard.