BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 846
                                                                  Page  1

          Date of Hearing:  April 21, 2009

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                  Mike Feuer, Chair
                    AB 846 (Torrico) - As Amended:  April 13, 2009
           
          SUBJECT  :   STATE AGENCIES:  CIVIL AND ADMINISTRATIVE PENALTIES

           KEY ISSUES  :  

          1)SHOULD SPECIFIED STATE AGENCIES ADMINISTERING ENVIRONMENTAL,  
            HEALTH, AND WORKPLACE SAFETY LAWS BE REQUIRED TO ADJUST THE  
            MAXIMUM AMOUNTS OF SPECIFIED CIVIL AND ADMINISTRATIVE  
            PENALTIES TO ACCOUNT FOR ANNUAL INFLATION, AS PROVIDED?  

          2)IN SEEKING ANY PENALTY BELOW THESE MAXIMUM AMOUNTS, AS  
            PROVIDED, SHOULD THE ENFORCING AGENCY BE REQUIRED TO ASSESS A  
            PENALTY THAT, AT MINUMUM, WILL RECOVER ANY ECONOMIC BENEFITS  
            DERIVED BY THE VIOLATOR, WITH CERTAIN EXCEPTIONS?

           FISCAL EFFECT  :  As currently in print this bill is keyed fiscal.

                                      SYNOPSIS

          This bill, sponsored by the National Resources Defense Council  
          (NRDC), seeks to require specified agencies administering  
          environmental, health, and workplace safety laws to adjust  
          maximum civil and administrative penalties to account for annual  
          inflation.  In addition, these agencies must assess a penalty  
          that, if less than the maximum penalty prescribed by law, is  
          still sufficient to recover any economic benefits derived by the  
          violator from his or her misconduct.  The sponsor contends that  
          this penalty assessment policy will deter unlawful conduct and  
          prevent violators from profiting from their misconduct when the  
          modest existing penalty provides an improper incentive to commit  
          a violation.  There is no known opposition to this bill.

           SUMMARY  :  Seeks to require specified agencies administering  
          environmental, health, and workplace safety laws to adjust  
          maximum civil and administrative penalties to account for annual  
          inflation, and then, upon enforcement of those penalties,  
          require the department or agency to assess a penalty that, if  
          below the applicable maximum amount, is sufficient to recover  
          any economic benefits derived by the violator, with specified  
          exceptions.  Specifically,  this bill :   








                                                                  AB 846
                                                                  Page  2


          1)Modifies practices for the assessment of civil and  
            administrative penalties by four departments and agencies,  
            namely the Department of Toxic Substances Control, the State  
            Air Resources Board, the Department of Industrial Relations,  
            and the State Water Resources Control Board.

          2)Requires each of these departments and agencies to adjust the  
            maximum amounts of specified civil and administrative  
            penalties to account for annual inflation using the Consumer  
            Price Index, as provided, and specifies a method for rounding  
            the adjusted penalties to multiples of ten or one hundred.

          3)Requires each department or agency, in cases where it seeks to  
            impose a penalty below these maximum amounts, to calculate and  
            make express findings concerning any economic benefits derived  
            by the violator from the acts that constitute the violation.   
            Further requires the department or agency to assess liability  
            at a level that recovers those economic benefits from the  
            violator, if any, unless the department or agency expressly  
            finds that: (a) good faith efforts to comply or inability to  
            pay justify a reduction, and (b) the liability assessed will  
            maintain the deterrent effect of the penalty.

          4)Requires each department or agency to report to the  
            Legislature on the implementation of these provisions.

          5)Provides that, if the Commission on State Mandates determines  
            this bill contains costs mandated by the state, reimbursement  
            for those costs shall be made pursuant to these statutory  
            provisions.

           EXISTING LAW  , the Administrative Procedures Act, contains  
          provisions governing the conduct of administrative adjudication  
          for state agencies.  Various chapters of California law also  
          create countless civil and administrative penalties for  
          specified statutory violations, and typically authorize  
          appropriate state departments and agencies to assess and collect  
          these penalties as provided.

           COMMENTS  :  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 the maximum amounts of  
          specified civil and administrative penalties to account for  








                                                                  AB 846
                                                                  Page  3

          annual inflation.  The bill also requires these entities, if  
          seeking a penalty below the applicable maximum amount, to assess  
          liability sufficient to recover any economic benefits derived by  
          the violator, with specified exceptions.

          The sponsor of the bill, the National Resources Defense Council  
          (NRDC), believes this bill is needed to "level the playing field  
          for law-abiding businesses", who otherwise face a competitive  
          disadvantage from complying with the state's environmental,  
          health, and workplace safety laws.  The NRDC writes in support:

               A 2008 NRDC report showed widespread noncompliance  
               with environmental, health, and workplace safety  
               laws suggesting that current penalty assessments are  
               inadequate to deter unlawful conduct.  Many state  
               penalty caps are significantly lower than the  
               parallel federal penalty caps for the same kinds of  
               violations, and unlike federal penalties, are not  
               updated for inflation.  

               Even when environmental laws have penalty caps that  
               are high enough, enforcement agencies are not  
               consistently using their authority to impose  
               penalties sufficient to strip violators of the  
               economic benefits of their misconduct.  Polluters do  
               not have an incentive to comply with the law if the  
               penalties for noncompliance are less than the  
               economic benefits the polluter derives from the  
               violation of the law or if the penalties do not  
               reflect current economic values.  

           Empirical Data Illustrate Problems with Enforcement and  
          Deterrence  :  Data from the 2008 NRDC report appears to show, for  
          example, that there were 3,799 facilities in violation of  
          existing water pollution regulations, yet nearly 23% of the  
          violating facilities went without enforcement by the appropriate  
          authorities.  (An Uneven Shield: The Record of Enforcement and  
          Violations Under California's Environmental, Health, and  
          Workplace Safety Laws, NRDC, p. 12.)  Maximum federal  
          administrative penalties for drinking water violations range  
          from $6,000 to $27,500, while maximum state administrative  
          penalties for similar misconduct are generally capped at $200 to  
          $1000. (NRDC Report, p. 15.)  The report's authors concluded  
          that some Water Boards appear to be assessing only the mandatory  
          minimum penalty-or assessing no penalty at all-even for serious  








                                                                  AB 846
                                                                  Page  4

          violations. (NRDC Report, p. 15.) 

          According to the sponsor, this bill represents a legislative  
          effort to implement at least one important recommendation by the  
          report's authors, in this particular case to increase penalty  
          assessments to deter unlawful conduct and to prevent violators  
          from profiting from their misconduct.  The bill appears  
          reasonably crafted to accomplish these objectives, and there is  
          no opposition to the bill.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          National Resources Defense Council (sponsor)

           Opposition 
           
          None on file
           
          Analysis Prepared by  :   Anthony Lew / JUD. / (916) 319-2334