The Nuances of

Public Complaints

& Nuisance

ENFORCEMENT SYMPOSIUM

October 2016

David Grose, Sacramento Metropolitan AQMD

Cher Snyder, South Coast AQMD

The most important section in the Health and Safety Code …

Nuisance

CH&SC §41700 Prohibited Discharges

Except as otherwise provided in Section 41705, a

person shall not discharge from any source

whatsoever quantities of air contaminants or other

material that cause injury, detriment, nuisance, or

annoyance to any considerable number of persons or

the public, or that endanger the comfort, repose,

health, or safety of any of those persons or the

public, or that cause, or have the natural tendency

to cause, injury or damage to business or property.

Nuisance

CH&SC §41700 Prohibited Discharges

Except as otherwise provided in Section 41705, a

person shall not discharge from any source

whatsoever quantities of air contaminants or other

material that cause injury, detriment, nuisance, or

annoyance to any considerable number of persons or

the public, or that endanger the comfort, repose,

health, or safety of any of those persons or the

public, or that cause, or have the natural tendency

to cause, injury or damage to business or property.

Nuisance

CH&SC §41700 Prohibited Discharges

Except as otherwise provided in Section 41705, a

person shall not discharge from any source

whatsoever quantities of air contaminants or other

material that cause injury, detriment, nuisance, or

annoyance to any considerable number of persons or

the public, or that endanger the comfort, repose,

health, or safety of any of those persons or the

public, or that cause, or have the natural tendency

to cause, injury or damage to business or property.

Nuisance

CH&SC §41700 Prohibited Discharges

Except as otherwise provided in Section 41705, a

person shall not discharge from any source

whatsoever quantities of air contaminants or other

material that cause injury, detriment, nuisance, or

annoyance to any considerable number of persons or

the public, or that endanger the comfort, repose,

health, or safety of any of those persons or the

public, or that cause, or have the natural tendency

to cause, injury or damage to business or property.

Nuisance

CH&SC §41700 Prohibited Discharges

Except as otherwise provided in Section 41705, a

person shall not discharge from any source

whatsoever quantities of air contaminants or other

material that cause injury, detriment, nuisance, or

annoyance to any considerable number of persons or

the public, or that endanger the comfort, repose,

health, or safety of any of those persons or the

public, or that cause, or have the natural tendency

to cause, injury or damage to business or property.

Nuisance

CH&SC §41700 Prohibited Discharges

Except as otherwise provided in Section 41705 …, a

person shall not discharge from any source

whatsoever quantities of air contaminants or other

material that cause injury, detriment, nuisance, or

annoyance to any considerable number of persons or

the public, or that endanger the comfort, repose,

health, or safety of any of those persons or the

public, or that cause, or have the natural tendency

to cause, injury or damage to business or property.

Nuisance - Exceptions

CH&SC §41705 Agricultural Odors

(a) Section 41700 does not apply to odors emanating from any of the following:

(1) Agricultural operations necessary for the growing of crops or the raising of fowl or animals.

(2) Operations that produce, manufacture, or handle compost as defined in Section 400166 of the Public Resources Code, if the odors emanate directly from the compost facility or operations.

Nuisance - Exceptions

CH&SC §41705 Agricultural Odors

(a) Section 41700 does not apply to odors emanating from any of the following:

(1) Agricultural operations necessary for the growing of crops or the raising of fowl or animals.

(2) Operations that produce, manufacture, or handle compost as defined in Section 400166 of the Public Resources Code, if the odors emanate directly from the compost facility or operations.

Nuisance - Exceptions

Rendering PlantsCalifornia Civil Code Section 3482.6,

“The Right to Farm Act”

Dairy Farms

Chicken & Turkey Farms

Nuisance - Exceptions

CH&SC §41705 Agricultural Odors

(a) Section 41700 does not apply to odors emanating from any of the following:

(1) Agricultural operations necessary for the growing of crops or the raising of fowl or animals.

(2) Operations that produce, manufacture, or handle compost as defined in Section 40116 of the Public Resources Code, if the odors emanate directly from the compost facility or operations.

Examples

Composting Facilities

Biodigesters

PRC 40116 (Jan 2016)

Public Nuisance

An unreasonable interference with the

rights of interests of the public (i.e., with

a considerable number of people),

especially when it affects or endangers

life, health, or property.

Resolution typically involves a

government agency.

Local air districts have authority to

resolve a public nuisance.

Private Nuisance

Use of property or course of conduct that unreasonably interferes with the legal rights or interests of private individuals in the private use and enjoyment of their land.

Resolution involves the affected private parties.

Some nuisances may be actionable under law but not within local air district jurisdiction.

Is it a public nuisance?

Confirmation of complaint

Speaking with complainant

Eliminating other sources

Upwind sources

Weather patterns

Visiting Plant

Importance of keeping complainants anonymous

Odor Confirmation Challenges

Facility must be:

• In operation

• Emitting odors

Each complainant

must be:

• At downwind home or

work location

• Willing & able to:

• Report odors

• Describe odors

• Complete & sign

complaint form

• Testify in court

if necessary

Inspector must be:

• Available to respond to complaints

• Careful not to solicit complaints

• Able to verify odors with complainants

• Able to track odors to their source,

eliminating all other possible sources

Odors must be:

• Of sufficient duration

and intensity

• To be detected

by complainants

• Not to dissipate

before inspector

arrives

• Bothersome to

complainants on

detection

Wind must be:

• Blowing downwind from facility

toward complainant

• Of sufficient velocity to

transport odors from facility to

complainants’ residences/places

of business

Is it a public nuisance?

Number of people

Typically based on 5 more people

Based on number of potentially effected

Common Table Approach

Is it a nuisance if no

one complained?

Yes, it can be

Anonymous complaints

Examples

Legal Risks

Using alleged complaints as primary

determiner

Soliciting complaints

Using multiple people from one home or

business (common table approach)

Children as complainants

Examples of Public

Nuisance

Aliso Canyon

Sunshine Canyon Landfill

Greg Industries

QUESTIONS?