BILL ANALYSIS                                                                                                                                                                                                    



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          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  








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            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  








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            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,  








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          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 


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