BILL ANALYSIS AB 846 Page 1 ASSEMBLY THIRD READING AB 846 (Torrico) As Amended June 1, 2009 Majority vote JUDICIARY 7-3 APPROPRIATIONS 12-5 ------------------------------------------------------------------- |Ayes:|Feuer, Brownley, Evans, |Ayes:|De Leon, Ammiano, Charles | | |Jones, Krekorian, Lieu, | |Calderon, Davis, Fuentes, | | |Monning | |Hall, John A. Perez, Price, | | | | |Skinner, Solorio, | | | | |Torlakson, Krekorian | | | | | | |-----+--------------------------+-----+----------------------------| |Nays:|Tran, Knight, Nielsen |Nays:|Nielsen, Duvall, Harkey, | | | | |Miller, | | | | |Audra Strickland | | | | | | ------------------------------------------------------------------- SUMMARY : Seeks to require specified agencies administering environmental, health, and workplace safety laws to adjust minimum and maximum civil and administrative penalties to account for annual inflation, and then, upon enforcement of those penalties, require the department or agency to assess liability that, at a minimum, recovers any economic benefits derived by the violator, with specified exceptions. Specifically, this bill : 1)Modifies practices for the assessment of civil and administrative penalties by four departments and agencies, namely the Department of Toxic Substances Control (DTSC), the State Air Resources Board (ARB), the Department of Industrial Relations (DIR), and the State Water Resources Control Board (SWRCB). 2)Requires each of these departments and agencies to adjust the minimum and 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 10 or 100. 3)Requires each department or agency, in cases where it seeks to impose a penalty below these maximum amounts, to calculate and AB 846 Page 2 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, at a minimum, assess liability at a level that recovers those economic benefits from the violator, 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 civil and administrative penalties for specified statutory violations, and typically authorize appropriate state departments and agencies to assess and collect these penalties as provided. FISCAL EFFECT : According to the Assembly Appropriations Committee: 1)DTSC . One-time special fund costs of about $40,000 for a non-substantive rulemaking, the legislative report and outreach, and ongoing costs of $115,000 for one analyst position for the economic analyses. 2)SWRCB . Ongoing special fund costs of $260,000 for two positions and $300,000 in contracts for the economic analyses. Additional one-time costs of $65,000 for a rulemaking to adjust the maximum penalties. 3)ARB . The board settles about 1,800 to 2,200 cases per year. Based on this workload, the board would probably incur annual special fund costs in the range of $1 million for additional staff to conduct the economic analyses. 4)DIR estimates ongoing costs of $1.1 million for six positions AB 846 Page 3 to provide economic analyses and $1.4 million for 11 positions to address workload associated with an expected increase in appeals based on the increased penalty amounts. 5)Revenues/Savings . No departments could estimate the amount of additional revenues from levying the maximum or higher penalties, but these would likely be significant and could more than offset the additional costs detailed above. COMMENTS : This bill requires the DTSC, ARB, DIR, and SWRCB to adjust the minimum and maximum amounts of specified civil and administrative penalties to account for annual inflation. The bill also requires these entities, if seeking a penalty below the applicable maximum amount, to assess liability that at a minimum recovers 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. Data from the 2008 NRDC report appears to show, for example, AB 846 Page 4 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 violations. (NRDC Report, p. 15.) According to the sponsor, this bill represents a legislative effort to implement at least one important recommendation contained in the NRDC report, namely, to increase penalty assessments to deter unlawful conduct and to prevent violators from profiting from their misconduct. As recently amended, the bill clarifies that the authorized departments or agencies shall assess liability at a level that, at minimum, is sufficient to recover economic benefits derived by the violator, but are not otherwise precluded from assessing liability at a level that exceeds this minimum level. Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334 FN: 0001262