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.  




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                                   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  




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          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




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          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




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          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

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