BILL NUMBER: AB 846 AMENDED
BILL TEXT
AMENDED IN SENATE JULY 1, 2009
AMENDED IN SENATE JUNE 25, 2009
AMENDED IN ASSEMBLY JUNE 1, 2009
AMENDED IN ASSEMBLY APRIL 13, 2009
INTRODUCED BY Assembly Member Torrico
FEBRUARY 26, 2009
An act to add Sections 25196.5 and 42402.6 to the Health and
Safety Code, to add Section 6437 to the Labor Code, and to add
Section 13363 to the Water Code, relating to civil and administrative
penalties.
LEGISLATIVE COUNSEL'S DIGEST
AB 846, as amended, Torrico. State agencies: civil and
administrative penalties.
The Administrative Procedure Act contains provisions governing
the conduct of administrative adjudication for state agencies.
This bill would require the Department of Toxic Substances
Control, the State Air Resources Board, the Department of Industrial
Relations, and the State Water Resources Control Board to
adjust update the maximum and minimum amounts of
specified civil and administrative penalties to take into
account for inflation on an annual
basis using the Consumer Price Index, as provided. The bill
would require, if a penalty below these maximum levels is sought,
that the penalty be assessed, at a minimum, at a level that recovers
economic benefits derived by the violator, except as specified.
Because local air districts and unified program agencies would be
subject to this requirement, this bill would impose a state-mandated
local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. This act shall be known, and may be cited, as the
California Civil Penalties Inflation Supplement and Enforcement Act
of 2009.
SEC. 2. Section 25196.5 is added to the Health and Safety Code, to
read:
25196.5. (a) (1) The department shall adjust on an
annual basis update, by February 15, 2010, and on
January 1 annually thereafter, all civil and administrative
penalties imposed pursuant to this chapter to adjust the maximum and
minimum amounts specified in this chapter to take into
account inflation using for inflation, as established
by the amount by which the Consumer Price Index for the month
of June of the year prior to the adjustment as compared with
exceeds the Consumer Price Index for June of
the calendar year in which legislation was last enacted establishing
or amending the amount of the penalty.
(2) The amount of any penalties determined pursuant to this
subdivision shall be rounded as follows:
(A) To the nearest multiple of ten dollars ($10) in the case of a
penalty less than or equal to one hundred dollars ($100).
(B) To the nearest multiple of one hundred dollars ($100) in the
case of a penalty greater than one hundred dollars ($100) but less
than or equal to one thousand dollars ($1,000).
(C) To the nearest multiple of one thousand dollars ($1,000) in
the case of a penalty greater than one thousand dollars ($1,000) but
less than or equal to ten thousand dollars ($10,000).
(D) To the nearest multiple of five thousand dollars ($5,000) in
the case of a penalty greater than ten thousand dollars ($10,000) but
less than or equal to one hundred thousand dollars ($100,000).
(E) To the nearest multiple of ten thousand dollars ($10,000) in
the case of a penalty greater than one hundred thousand dollars
($100,000) but less than or equal to two hundred thousand dollars
($200,000).
(F) To the nearest multiple of twenty-five thousand dollars
($25,000) in the case of a penalty greater than two hundred thousand
dollars ($200,000).
(3) Inflation adjustments made pursuant to this subdivision shall
be adopted as emergency regulations pursuant to
exempt from the requirements of Chapter 3.5 (commencing
with Section 11340) of Part 1 of Division 3 of Title 2 of the
Government Code. Notwithstanding subdivision (b) of Section
11349.6 of the Government Code, the Office of Administrative Law
shall not disapprove an emergency regulation adopted pursuant to this
subdivision solely because it determines that the situation
addressed by the regulation is not an emergency.
(b) If the department or a unified program agency seeks to impose
a penalty below the maximum levels set pursuant to this chapter, as
adjusted by subdivision (a), the department or unified program agency
shall calculate, and make express findings concerning, the economic
benefits, if any, derived by the violator from the acts that
constitute the violation. At a minimum, liability shall be assessed
at a level that recovers those economic benefits, unless the
department or unified program agency makes express findings that
document that good faith efforts to comply or inability to pay
justify a reduction and that the liability assessed will maintain the
deterrent effect of the penalty.
(c) The department shall report to the Legislature on the
implementation of this section.
SEC. 3. Section 42402.6 is added to the Health and Safety Code, to
read:
42402.6. (a) (1) The state board shall adjust on an
annual basis update, by February 15, 2010, and on
January 1 annually thereafter, all civil and administrative
penalties imposed pursuant to this division to adjust the maximum and
minimum amounts specified in this division to take into
account inflation using for inflation, as established
by the amount by which the Consumer Price Index for the month
of June of the year prior to the adjustment as compared with
exceeds the Consumer Price Index for June of
the calendar year in which legislation was last enacted establishing
or amending the amount of the penalty.
(2) The amount of any penalties determined pursuant to this
subdivision shall be rounded as follows:
(A) To the nearest multiple of ten dollars ($10) in the case of a
penalty less than or equal to one hundred dollars ($100).
(B) To the nearest multiple of one hundred dollars ($100) in the
case of a penalty greater than one hundred dollars ($100) but less
than or equal to one thousand dollars ($1,000).
(C) To the nearest multiple of one thousand dollars ($1,000) in
the case of a penalty greater than one thousand dollars ($1,000) but
less than or equal to ten thousand dollars ($10,000).
(D) To the nearest multiple of five thousand dollars ($5,000) in
the case of a penalty greater than ten thousand dollars ($10,000) but
less than or equal to one hundred thousand dollars ($100,000).
(E) To the nearest multiple of ten thousand dollars ($10,000) in
the case of a penalty greater than one hundred thousand dollars
($100,000) but less than or equal to two hundred thousand dollars
($200,000).
(F) To the nearest multiple of twenty-five thousand dollars
($25,000) in the case of a penalty greater than two hundred thousand
dollars ($200,000).
(3) Inflation adjustments made pursuant to this subdivision shall
be adopted as emergency regulations pursuant to
exempt from the requirements of Chapter 3.5 (commencing
with Section 11340) of Part 1 of Division 3 of Title 2 of the
Government Code. Notwithstanding subdivision (b) of Section
11349.6 of the Government Code, the Office of Administrative Law
shall not disapprove an emergency regulation adopted pursuant to this
subdivision solely because it determines that the situation
addressed by the regulation is not an emergency.
(b) If the state board or a district seeks to impose a penalty
below the maximum levels set pursuant to this division, as adjusted
by subdivision (a), the state board or district shall calculate, and
make express findings concerning, the economic benefits, if any,
derived by the violator from the acts that constitute the violation.
At a minimum, liability shall be assessed at a level that recovers
those economic benefits, unless the state board or district makes
express findings that document that good faith efforts to comply or
inability to pay justify a reduction and that the liability assessed
will maintain the deterrent effect of the penalty.
(c) The state board shall report to the Legislature on the
implementation of this section.
SEC. 4. Section 6437 is added to the Labor Code, to read:
6437. (a) (1) The department shall adjust on an annual
basis update, by February 15, 2010, and on January 1
annually thereafter, all civil and administrative penalties
imposed pursuant to this part to adjust the maximum and minimum
amounts specified in this part to take into account
inflation using for inflation, as established by the
amount by which the Consumer Price Index for the month of June
of the year prior to the adjustment as compared with
exceeds the Consumer Price Index for June of the
calendar year in which legislation was last enacted establishing or
amending the amount of the penalty.
(2) The amount of any penalties determined pursuant to this
subdivision shall be rounded as follows:
(A) To the nearest multiple of ten dollars ($10) in the case of a
penalty less than or equal to one hundred dollars ($100).
(B) To the nearest multiple of one hundred dollars ($100) in the
case of a penalty greater than one hundred dollars ($100) but less
than or equal to one thousand dollars ($1,000).
(C) To the nearest multiple of one thousand dollars ($1,000) in
the case of a penalty greater than one thousand dollars ($1,000) but
less than or equal to ten thousand dollars ($10,000).
(D) To the nearest multiple of five thousand dollars ($5,000) in
the case of a penalty greater than ten thousand dollars ($10,000) but
less than or equal to one hundred thousand dollars ($100,000).
(E) To the nearest multiple of ten thousand dollars ($10,000) in
the case of a penalty greater than one hundred thousand dollars
($100,000) but less than or equal to two hundred thousand dollars
($200,000).
(F) To the nearest multiple of twenty-five thousand dollars
($25,000) in the case of a penalty greater than two hundred thousand
dollars ($200,000).
(3) Inflation adjustments made pursuant to this subdivision shall
be adopted as emergency regulations pursuant to
exempt from the requirements of Chapter 3.5 (commencing
with Section 11340) of Part 1 of Division 3 of Title 2 of the
Government Code. Notwithstanding subdivision (b) of Section
11349.6 of the Government Code, the Office of Administrative Law
shall not disapprove an emergency regulation adopted pursuant to this
subdivision solely because it determines that the situation
addressed by the regulation is not an emergency.
(b) If the division seeks to impose a penalty below the maximum
levels set pursuant to this part, as adjusted by subdivision (a), the
division shall calculate, and make express findings concerning, the
economic benefits, if any, derived by the violator from the acts that
constitute the violation. Notwithstanding any other provision of
law, at a minimum, liability shall be assessed at a level that
recovers those economic benefits, unless the division makes express
findings that document that good faith efforts to comply or inability
to pay justify a reduction and that the liability assessed will
maintain the deterrent effect of the penalty.
(c) The department shall report to the Legislature on the
implementation of this section.
SEC. 5. Section 13363 is added to the Water Code, to read:
13363. (a) (1) The state board shall adjust on an annual
basis update, by February 15, 2010, and on January 1
annually thereafter, all civil and administrative penalties
imposed pursuant to this division or pursuant to Section 25270.12,
25299, or 25299.76 of the Health and Safety Code to adjust the
maximum and minimum amounts specified in those provisions to
take into account inflation using for inflation, as
established by the amount by which the Consumer Price Index for
the month of June of the year prior to the adjustment as
compared with exceeds the Consumer Price Index for
June of the calendar year in which legislation was last enacted
establishing or amending the amount of the penalty.
(2) The amount of any penalties determined pursuant to this
subdivision shall be rounded as follows:
(A) To the nearest multiple of ten dollars ($10) in the case of a
penalty less than or equal to one hundred dollars ($100).
(B) To the nearest multiple of one hundred dollars ($100) in the
case of a penalty greater than one hundred dollars ($100) but less
than or equal to one thousand dollars ($1,000).
(C) To the nearest multiple of one thousand dollars ($1,000) in
the case of a penalty greater than one thousand dollars ($1,000) but
less than or equal to ten thousand dollars ($10,000).
(D) To the nearest multiple of five thousand dollars ($5,000) in
the case of a penalty greater than ten thousand dollars ($10,000) but
less than or equal to one hundred thousand dollars ($100,000).
(E) To the nearest multiple of ten thousand dollars ($10,000) in
the case of a penalty greater than one hundred thousand dollars
($100,000) but less than or equal to two hundred thousand dollars
($200,000).
(F) To the nearest multiple of twenty-five thousand dollars
($25,000) in the case of a penalty greater than two hundred thousand
dollars ($200,000).
(3) Inflation adjustments made pursuant to this subdivision shall
be adopted as emergency regulations pursuant to
exempt from the requirements of Chapter 3.5 (commencing
with Section 11340) of Part 1 of Division 3 of Title 2 of the
Government Code. Notwithstanding subdivision (b) of Section
11349.6 of the Government Code, the Office of Administrative Law
shall not disapprove an emergency regulation adopted pursuant to this
subdivision solely because it determines that the situation
addressed by the regulation is not an emergency.
(b) If the state board, a regional board, or a unified program
agency seeks to impose a penalty below the maximum levels set
pursuant to this division or pursuant to Section 25270.12, 25299, or
25299.76 of the Health and Safety Code, as adjusted by subdivision
(a), the state board, a regional board, or a unified program agency
shall calculate, and make express findings concerning, the economic
benefits, if any, derived by the violator from the acts that
constitute the violation. At a minimum, liability shall be assessed
at a level that recovers those economic benefits, unless the state
board, a regional board, or a unified program agency makes express
findings that document that good faith efforts to comply or inability
to pay justify a reduction and that the liability assessed will
maintain the deterrent effect of the penalty. This subdivision does
not affect the requirement to recover economic benefits from a
violator, imposed pursuant to subdivision (e) of Section 13385.
(c) Except as provided in subdivision (k) of Section 13350 and
paragraph (2) of subdivision (n) of Section 13385, and in Sections
25270.12, 25299, and 25299.50 of the Health and Safety Code
, Code, proceeds from the implementation of
subdivision (a) shall be deposited in the Clean Water Civil Penalty
Inflation Account, which is hereby created in the General Fund, to be
expended, upon appropriation by the Legislature, consistent with
Section 13441. "Proceeds" as used in this subdivision means the
amount of the penalty imposed and collected that is above the amount
that was authorized before the maximum penalty was first adjusted
pursuant to subdivision (a).
(d) The state board shall report to the Legislature on the
implementation of this section.
SEC. 6. If the Commission on State Mandates determines that this
act contains costs mandated by the state, reimbursement to local
agencies and school districts for those costs shall be made pursuant
to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of
the Government Code.