HEALTH AND SAFETY CODE

Division 26 Air Resources

Part 1 General Provisions and Definitions Chapter 2 Definitions

§ 39011.5. “Agricultural source of air pollution” or “agricultural source”; Applicability of certain district rules or re gulations; Authority of dist rict to regulate a source

(a) “Agricultural source of air pollution” or “agricultural source” means a source of air pollution or a group of sources used in the prod uction of crops, or the raising of fowl or animals located on contiguous property un der common ownership or control that meets any of the following criteria: (1) Is a confined animal facility, including, but not limited to, any structure, building, installation, barn, corral, coop, feed storage area, milking parlor, or system for the collection, storage, treatment, and distribution of liquid and solid manure, if domesticated animals, including, but not limited to, cattle, calves, horses, sheep, goats, swine, rabbits, chickens, turkeys, or ducks are corralled, penned, or otherwise caused to remain in restricted areas for commercia l agricultural purposes and feeding is by means other than grazing. (2) Is an internal combustion engine used in the production of crops or the raising of fowl or animals, including, but not limited to, an engine subject to Article 1.5 (commencing with Section 41750) of Chapter 3 of Part 4 except an engine that is used to propel implements of husbandry, as th at term is defined in Section 36000 of the Vehicle Code, as that section existed on January 1, 2003. Notwithstanding subdivision (b) of Section 39601, the state board may not re vise this defi nition for the purposes of this section. (3) Is a Title V source, as that term is defined in Section 39053.5, or is a source that is otherwise subject to regulation by a districtpursuant to this division or the federal Clean Air Act (42 U.S.C. Sec. 7401 et seq.). (b) Any district rule or regulation affecting stationary sources on agricultural operations adopted on or before January 1, 2004, isapplicable to an agricultural source. (c) Nothing in this section limits the authority of a district to regulate a source, including, but not limited to, a stationary source that is an agricultural source, over which it otherwise has jurisdiction pursuant to this division, or pursuant to the federal Clean Air Act (42 U.S.C. Sec. 7401 et se q.) or any rules or regulations adopted pursuant to that act that were in effect on or before January 1, 2003, or to exempt an agricultural source from any requirement otherwise applicable under Section 40724 or 42301.16, based upon a finding by the districtin a public hearing that the aggregate emissions from that source do not exceed a de minimis level of more than one ton of particulate matter, nitrogen oxides, or volatile organic compounds per year.

Added Stats 2003 ch 479 § 2 (SB 700). Amended Stats 2004 ch 183 § 215 (AB 3082).

Amendments:

2004 Amendment: (1) Substituted “applicable to an agri cultural source” for “applicable to an agriculture source” in subd (b); and (2) amended subd (c) by substituting (a)
“under Section 40724 or 42301.16” for “und er Sections 40724 or 42301.16”; and (b)
“de minimis level” for “de minimus level”.

Note- Stats 2003 ch 479 provides:SECTION 1. (a) The Legisl ature finds and declares all of the following: (1) Agricultural operationsnecessary for growing crops or raising animals are a significant source of directly emitted particulates, and precursors of ozone and fine particulate matter. These emissions have a significant adverse effect on the ability of areas of the state, including, but not limit ed to, the San Joaquin Valley, to achieve health-based state and federal ambient air quality standards. (2) Since 1999, the agricultur e industry has reduced emissi ons of oxides of nitrogen (NO X ) by more than 2000 tons per year, emi ssions of particulate matter of 10 microns in diameter (PM 10) by more than 500 tons per year, and em issions of volatile organic compounds (VOCs) from agricultural chemical s by more than 20 percent. According to the state board, however, agricultural sources of air pollution still contribute twenty-six percent of the smog-forming emissions in the San Joaquin Valley. (3) In the San Joaquin Valley, a large portion of the sources of particulate emissions
are areawide sources whose emissions are dire ctly related to growth in population and the resulting vehicle miles traveled. Acco rding to the State Air Resources Board, however, agricultural source s of air pollution account for over fifty percent of the directly emitted particulate air pollution generated in the valley during the fall, amounting to over 170 tonsper day of emissions. (4) All parties living or operating a business in an area that has been classified as being a nonattainment area with respect to the attainment of federal or state ambient air quality standards share the responsibility of reducing emissions from air pollutants. (5) The federal Clean Air Act (42 U.S.C. Se c. 7401 et seq.) prohibits the state from adopting emission standards or limitations less stringent than those established under the federal act, including limitations on emissions from agricultural sources. (6) Division 26 (commencing with Section 39000) of the Health and Safety Code establishes numerous policies and programs to reduce air pollutants for the protection of public health. (7) The purpose of the act addi ng this section is to establish a new set of programs at the state and regional levels to reduce air emissions from agricultural sources in order to protect public health and the environment. (b) It is therefore the intent of the Legisl ature to require the State Air Resources Board and air quality management dist ricts and air pollution contro l districts in the state to regulate stationary, mobile, and area sources of agricult ural air pollution. SEC. 14. The provisions of the act adding this section are severable. If any provision of this act or its application is held invalid, th at invalidity shall not affect other provisions or applications that can be given effect wi thout the invalid provision or application. SEC. 15. No reimbursement is re quired by this act pursuant to Section 6 of Article XIIIB of the California Constitution for certain cost s that may be incurred by a local agency or school district because in that regard th is act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Ar ticle XIIIB of the California Constitution. In addition, no reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Consti tution for certain other cost s that may be incurred by a local agency or school district because a loca l agency or school dist rict has the authority to levy service charges, fees, or assessments sufficient to pay for the program or level of service mandated by this act, wi thin the meaning of Section 17556 of the Government Code.

NOTES OF DECISIONS

Cal. Health & Safety Code § 39011.5 confirmed that the San Joaquin Valley Unified Air Pollution Control District had authority to re gulate agriculture sources that were subjectto the Clean Air Act and made the District'spermitting requirements applicable to a dairy. Because the District had the authority to issue New Source Review (NSR)construction permits before the dairy obtained its building permits and before it began construction, a complaint that expressly alleged that the dairy failed to do so, stated a claim for which relief could be gran ted. Association of I rritated Residents v. Fred Schakel Dairy (2005) 2005 US Dist LEXIS 36769.

Cal. Health & Safety Code § 39011.5 gave the San Joaquin Valley Unified Air Pollution Control District authority to regulate agriculture sources th at were subject to the Clean Air Act and made the District'spermitting requirements applicable to a dairy. Because the District had the authorit y to issue New Source Review (NSR) construction permits before the dairy obtained its building perm its and before it began construction, a complaint that expressly alleged that the dairy failed to do so, stated a claim for which relief could be grante d. Association of Irritated Residents v. Fred Schakel Dairy (2005)
2005 US Dist LEXIS 36769.