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