BILL ANALYSIS Bill No: AB 846 SENATE COMMITTEE ON GOVERNMENTAL ORGANIZATION Senator Roderick D. Wright, Chair 2009-2010 Regular Session Staff Analysis AB 846 Author: Torrico As Amended: June 24, 2010 Hearing Date: June 29, 2010 Consultant: Art Terzakis SUBJECT State Agencies: civil and administrative penalties. DESCRIPTION AB 846 enacts the "California Civil Penalties Inflation Supplement and Enforcement Act of 2010" which requires certain state entities that administer environmental, health, and workplace safety violations to update minimum and maximum civil and administrative penalties to account for annual inflation. Specifically, this measure: 1)Modifies practices for the assessment of civil and administrative penalties for four state entities, namely the Department of Pesticide Regulation (DPR), the Department of Toxic Substances Control (DTSC), the Department of Industrial Relations (DIR), and the State Water Resources Control Board (SWRCB). 2)Requires the aforementioned state entities to update and adjust the minimum and maximum amounts of specified civil and administrative penalties for inflation or deflation using the Consumer Price Index (CPI) and specifies a method for rounding the penalties to the nearest multiple of 10; 100; 1,000; 5,000; 10,000; or 25,000. Also, provides that the inflation updates shall be exempt from the Administrative Procedures Act (APA). 3) Stipulates that the updated penalties must be filed with the Secretary of State and published in the California Code of Regulations. AB 846 (Torrico) continued Page 2 EXISTING LAW 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. BACKGROUND Purpose of AB 846: This measure requires specified entities that regulate environmental, health, and workplace safety violations to adjust the minimum and maximum penalties for inflation. The sponsor, the National Resources Defense Council (NRDC), believes AB 846 is needed to "level the playing field for law-abiding businesses," which 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." Proponents contend that in order to effectively deter businesses from violating workers' rights and environmental protections, penalties for wrongdoing must be sufficient to create an economic disincentive. Proponents argue that when penalty caps are artificially low, businesses are more likely to try to cut costs by breaking the law. Proponents emphasize that at a time of budget cutbacks and shrinking enforcement, it is especially important that serious wrongdoing can result in serious penalties; otherwise, the benefits outweigh the risks. Arguments in Opposition: The business community is opposed to this measure on the basis that it would significantly increase the cost of doing business in California by AB 846 (Torrico) continued Page 3 automatically adjusting maximum and minimum fines and penalties upwards according to inflation. The business community argues that California is already amongst the most costly states in which to conduct business in a complex regulatory environment - this measure would simply compound matters, drive up costs and force businesses to leave the state. PRIOR/RELATED LEGISLATION SB 1433 (Leno) 2009-10 Session. Would require the State Air Resources Board, on March 1, 2011, and annually thereafter, to adjust the maximum civil and criminal penalties for inflation, based on the California Consumer Price Index released in January of that year by the Department of Industrial Relations and to publish the inflation-adjusted maximum penalties on its Internet Web site. (Pending in Assembly policy committee) SB 1865 (Perata) Chapter 805, Statutes of 2000. Increased several existing civil and criminal penalties for air quality violations to make them similar to penalties for water quality and hazardous waste law violations and reorganized air quality provisions so that like violations appear in the same sections. SUPPORT : As of June 25, 2010: National Resources Defense Council (sponsor) Breathe California California Association of Environmental Health Administrators SUPPORT: (continued) California Conference Board of the Amalgamated Transit Union California Labor Federation California League of Conservation Voters California Nurses Association California Rural Legal Assistance Foundation California Teamsters Public Affairs Council Center on Race, Poverty & the Environment Central Valley Air Quality Coalition Clean Water Action Communities for a Better Environment Community Water Center AB 846 (Torrico) continued Page 4 Engineers and Scientists of California Green California Heal the Bay International Longshore & Warehouse Union National Lawyers Guild Labor & Employment Committee Planning and Conservation League Professional & Technical Engineers, Local 21 San Francisco Baykeeper Service Employees International Union - California State Council Sierra Club California State Building and Construction Trades Council of California UNITE-HERE United Food and Commercial Workers Union, Western States Council OPPOSE : As of June 25, 2010: American Council of Engineering Companies of California Apartment Association of Greater Los Angeles Associated General Contractors of California California Association of Joint Powers Authorities California Apartment Association California Association of Sanitation Agencies California Business Properties Association California Building Industry Association California Chamber of Commerce California Chapter of the American Fence Contractors' Association California Construction and Industrial Materials Association California Council for Environmental and Economic Balance California Dry Bean Shippers Association California Farm Bureau Federation California Fence Contractors' Association California Film Extruders and Converters Association California Grain and Feed Association California Grocers Association California Hotel and Lodging Association California Independent Grocers Association OPPOSE: (continued) California Independent Oil Marketers Association California League of Food Processors California Manufacturers and Technology Association AB 846 (Torrico) continued Page 5 California Pear Growers Association California Professional Association of Specialty Contractors California Restaurant Association California Retailers Association California Seed Association Engineering Contractors' Association Flasher/Barricade Association Independent Waste Oil Collectors and Transporters Marin Builders' Association Pacific Egg and Poultry Association Santa Barbara Rental Property Association Santa Barbara Technology and Industry Association Western Electrical Contractors Association Western Growers Western States Petroleum Association FISCAL COMMITTEE : Senate Appropriations Committee **********