BILL NUMBER: AB 846 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 14, 2010
AMENDED IN SENATE MARCH 15, 2010
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 Section 12999.7 to the Food and Agricultural Code,
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 Director of Pesticide Regulation, the
Department of Toxic Substances Control, the State Air Resources
Board, the Department of Industrial Relations, and the State Water
Resources Control Board to update the maximum and minimum amounts of
specified civil and administrative penalties for inflation or
deflation using the Consumer Price Index, as provided. The bill would
require , if an administrative or civil penalty below the
maximum monetary level authorized pursuant to those provisions is
sought, that the penalty be assessed, at a minimum, at a
level that recovers non-de minimis economic benefits , as
defined, derived by the violator, except as specified.
Because local air districts, county agricultural commissioners, 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 2010.
SEC. 2. Section 12999.7 is added to the Food and Agricultural
Code, to read:
12999.7. (a) (1) The director shall update, by February 15, 2011,
and on January 1 every four years thereafter, all civil and
administrative penalties imposed pursuant to this article, Section
14027, and Article 5 (commencing with Section 11891) of Chapter 4 of
Division 6 to adjust the maximum and minimum amounts specified in
those provisions for inflation or deflation, as established by the
amount by which the Consumer Price Index for the month of June of the
year prior to the adjustment exceeds, or is less than, 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 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.
(b) (1) If the director or a commissioner seeks to impose an
administrative or civil penalty below the maximum monetary
level authorized pursuant to this article, Section 14027,
or Article 5 (commencing with Section 11891) of Chapter 4 of Division
6, as adjusted by subdivision (a), the director or a commissioner
shall calculate, and make express findings concerning, the non-de
minimis 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
director or a commissioner 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. The amount of economic benefits shall be
calculated using the BEN automated tool developed by the United
States Environmental Protection Agency. If use of that tool is
determined not to be practical, another equally reliable means of
determining the amount of economic benefits shall be used.
(2) As used in this subdivision, the following terms have the
following meanings:
(A) "De minimis" means an economic benefit that is likely to be
small, and substantially disproportionate resources would be required
to determine the amount and assess the penalty above that amount.
The director or a commissioner may adopt rules and regulations to
determine specific de minimis categories.
(B) "Economic benefit" means the benefit to the violator from
delaying or avoiding costs associated with compliance. "Economic
benefit" also means profits from illegal activities, including, but
not limited to, activities undertaken without a permit required by
law to engage in the activity.
(B) (i) "Economic benefit" means the benefit to the violator from
delayed costs or avoided costs associated with compliance, including,
but not limited to, operating and maintenance costs for pollution
control equipment and annual periodic costs including the cost of
leasing monitoring equipment. "Economic benefit" also means profits
from illegal activities, including, but not limited to, activities
undertaken without a permit required by law to engage in the
activity.
(ii) "Avoided costs," as used in this subparagraph, means those
expenditures that the violator did not and will not make. The
economic benefit of avoided costs are the amounts of return on the
unspent moneys that reasonably could have been realized by the
violator during the period of noncompliance and the present value of
the avoided costs.
(iii) "Delayed costs," as used in this subparagraph, means those
expenditures that have been deferred by the violator's failure to
comply, but that will be paid by the violator in the same or greater
amounts. The economic benefit of delayed costs are the amounts of
return on the unspent moneys that reasonably could have been realized
by the violator during the period of noncompliance.
(3) This subdivision does not affect the other enforcement options
available to the director or a commissioner, including settlements.
(c) The director shall report to the Legislature on the
implementation of this section.
SEC. 3. Section 25196.5 is added to the Health and Safety Code, to
read:
25196.5. (a) (1) The department shall update, by February 15,
2011, and on January 1 every four years thereafter, all civil and
administrative penalties imposed pursuant to this chapter to adjust
the maximum and minimum amounts specified in this chapter for
inflation or deflation, as established by the amount by which the
Consumer Price Index for the month of June of the year prior to the
adjustment exceeds, or is less than, 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 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.
(b) (1) If the department or a unified program agency seeks to
impose an administrative or civil penalty below the maximum
monetary level authorized pursuant to this chapter, as
adjusted by subdivision (a), the department or unified program agency
shall calculate, and make express findings concerning, the non-de
minimis 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. The amount of economic
benefits shall be calculated using the BEN automated tool developed
by the United States Environmental Protection Agency. If use of that
tool is determined not to be practical, another equally reliable
means of determining the amount of economic benefits shall be used.
(2) As used in this subdivision, the following terms have the
following meanings:
(A) "De minimis" means an economic benefit that is likely to be
small, and substantially disproportionate resources would be required
to determine the amount and assess the penalty above that amount.
The department or a unified program agency may adopt rules and
regulations to determine specific de minimis categories.
(B) "Economic benefit" means the benefit to the violator from
delaying or avoiding costs associated with compliance. "Economic
benefit" also means profits from illegal activities, including, but
not limited to, activities undertaken without a permit required by
law to engage in the activity.
(B) (i) "Economic benefit" means the benefit to the violator from
delayed costs or avoided costs associated with compliance, including,
but not limited to, operating and maintenance costs for pollution
control equipment and annual periodic costs including the cost of
leasing monitoring equipment. "Economic benefit" also means profits
from illegal activities, including, but not limited to, activities
undertaken without a permit required by law to engage in the
activity.
(ii) "Avoided costs," as used in this subparagraph, are those
expenditures that the violator did not and will not make. The
economic benefit of avoided costs are the amounts of return on the
unspent moneys that reasonably could have been realized by the
violator during the period of noncompliance and the present value of
the avoided costs.
(iii) "Delayed costs," as used in this subparagraph, are those
expenditures that have been deferred by the violator's failure to
comply, but that will be paid by the violator in the same or greater
amounts. The economic benefit of delayed costs are the amounts of
return on the unspent moneys that reasonably could have been realized
by the violator during the period of noncompliance.
(3) This subdivision does not affect the other enforcement options
available to the department or a unified program agency, including
settlements.
(c) The department shall report to the Legislature on the
implementation of this section.
SEC. 4. Section 42402.6 is added to the Health and Safety Code, to
read:
42402.6. (a) (1) The state board shall update, by February 15,
2011, and on January 1 every four years thereafter, all civil and
administrative penalties imposed pursuant to this division to adjust
the maximum and minimum amounts specified in this division for
inflation or deflation, as established by the amount by which the
Consumer Price Index for the month of June of the year prior to the
adjustment exceeds, or is less than, 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 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.
(b) (1) If the state board or a district seeks to impose an
administrative or civil penalty below the maximum monetary
level authorized pursuant to this division, as adjusted by
subdivision (a), the state board or district shall calculate, and
make express findings concerning, the non-de minimis 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. The amount of economic benefits shall be calculated
using the BEN automated tool developed by the United States
Environmental Protection Agency. If use of that tool is determined
not to be practical, another equally reliable means of determining
the amount of economic benefits shall be used.
(2) As used in this subdivision, the following terms have the
following meanings:
(A) "De minimis" means an economic benefit that is likely to be
small, and substantially disproportionate resources would be required
to determine the amount and assess the penalty above that amount.
The state board or a district may adopt rules and regulations to
determine specific de minimis categories.
(B) "Economic benefit" means the benefit to the violator from
delaying or avoiding costs associated with compliance. "Economic
benefit" also means profits from illegal activities, including, but
not limited to, activities undertaken without a permit required by
law to engage in the activity.
(B) (i) "Economic benefit" means the benefit to the violator from
delayed costs or avoided costs associated with compliance, including,
but not limited to, operating and maintenance costs for pollution
control equipment and annual periodic costs including the cost of
leasing monitoring equipment. "Economic benefit" also means profits
from illegal activities, including, but not limited to, activities
undertaken without a permit required by law to engage in the
activity.
(ii) "Avoided costs," as used in this subparagraph, are those
expenditures that the violator did not and will not make. The
economic benefit of avoided costs are the amounts of return on the
unspent moneys that reasonably could have been realized by the
violator during the period of noncompliance and the present value of
the avoided costs.
(iii) "Delayed costs," as used in this subparagraph, are those
expenditures that have been deferred by the violator's failure to
comply, but that will be paid by the violator in the same or greater
amounts. The economic benefit of delayed costs are the amounts of
return on the unspent moneys that reasonably could have been realized
by the violator during the period of noncompliance.
(3) This subdivision does not affect the other enforcement options
available to the state board or a district, including settlements.
(c) The state board shall report to the Legislature on the
implementation of this section.
SEC. 5. Section 6437 is added to the Labor Code, to read:
6437. (a) (1) The department shall update, by February 15, 2011,
and on January 1 every four years thereafter, all civil and
administrative penalties imposed pursuant to this part to adjust the
maximum and minimum amounts specified in this part for inflation or
deflation, as established by the amount by which the Consumer Price
Index for the month of June of the year prior to the adjustment
exceeds, or is less than, 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 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.
(b) (1) If the division seeks to impose an administrative or civil
penalty below the maximum monetary level authorized
pursuant to this part, as adjusted by subdivision (a), the
division shall calculate, and make express findings concerning, the
non-de minimis 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. The
amount of economic benefits shall be calculated using the BEN
automated tool developed by the United States Environmental
Protection Agency. If use of that tool is determined not to be
practical, another equally reliable means of determining the
amount of economic benefits shall be used.
(2) As used in this subdivision, the following terms have the
following meanings:
(A) "De minimis" means an economic benefit that is likely to be
small, and substantially disproportionate resources would be required
to determine the amount and assess the penalty above that amount.
The division may adopt rules and regulations to determine specific de
minimis categories.
(B) "Economic benefit" means the benefit to the violator from
delaying or avoiding costs associated with compliance. "Economic
benefit" also means profits from illegal activities, including, but
not limited to, activities undertaken without a permit required by
law to engage in the activity.
(B) (i) "Economic benefit" means the benefit to the violator from
delayed costs or avoided costs associated with compliance, including,
but not limited to, operating and maintenance costs for pollution
control equipment and annual periodic costs including the cost of
leasing monitoring equipment. "Economic benefit" also means profits
from illegal activities, including, but not limited to, activities
undertaken without a permit required by law to engage in the
activity.
(ii) "Avoided costs," as used in this subparagraph, are those
expenditures that the violator did not and will not make. The
economic benefit of avoided costs are the amounts of return on the
unspent moneys that reasonably could have been realized by the
violator during the period of noncompliance and the present value of
the avoided costs.
(iii) "Delayed costs," as used in this subparagraph, are those
expenditures that have been deferred by the violator's failure to
comply, but that will be paid by the violator in the same or greater
amounts. The economic benefit of delayed costs are the amounts of
return on the unspent moneys that reasonably could have been realized
by the violator during the period of noncompliance.
(3) This subdivision does not affect the other enforcement options
available to the division, including settlements.
(c) The department shall report to the Legislature on the
implementation of this section.
SEC. 6. Section 13363 is added to the Water Code, to read:
13363. (a) (1) The state board shall update, by February 15,
2011, and on January 1 every four years 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 for inflation or deflation, as established by the
amount by which the Consumer Price Index for the month of June of the
year prior to the adjustment exceeds, or is less than, 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 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.
(b) (1) If the state board, a regional board, or a unified program
agency seeks to impose an administrative or civil penalty
below the maximum monetary level authorized 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 non-de minimis
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.
The amount of economic benefits shall be calculated using the
BEN automated tool developed by the United States Environmental
Protection Agency. If use of that tool is determined not to be
practical, another equally reliable means of determining the amount
of economic benefits shall be used.
(2) As used in this subdivision, the following terms have the
following meanings:
(A) "De minimis" means an economic benefit that is likely to be
small, and substantially disproportionate resources would be required
to determine the amount and assess the penalty above that amount.
The state board, a regional board, or a unified program agency may
adopt rules and regulations to determine specific de minimis
categories.
(B) "Economic benefit" means the benefit to the violator from
delaying or avoiding costs associated with compliance. "Economic
benefit" also means profits from illegal activities, including, but
not limited to, activities undertaken without a permit required by
law to engage in the activity.
(B) (i) "Economic benefit" means the benefit to the violator from
delayed costs or avoided costs associated with compliance, including,
but not limited to, operating and maintenance costs for pollution
control equipment and annual periodic costs including the cost of
leasing monitoring equipment. "Economic benefit" also means profits
from illegal activities,
including, but not limited to, activities undertaken without a
permit required by law to engage in the activity.
(ii) "Avoided costs," as used in this subparagraph, are those
expenditures that the violator did not and will not make. The
economic benefit of avoided costs are the amounts of return on the
unspent moneys that reasonably could have been realized by the
violator during the period of noncompliance and the present value of
the avoided costs.
(iii) "Delayed costs," as used in this subparagraph, are those
expenditures that have been deferred by the violator's failure to
comply, but that will be paid by the violator in the same or greater
amounts. The economic benefit of delayed costs are the amounts of
return on the unspent moneys that reasonably could have been realized
by the violator during the period of noncompliance.
(3) This subdivision does not affect the other enforcement options
available to the state board, a regional board, or a unified program
agency, including settlements.
(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, 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. 7. 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.