BILL NUMBER: SB 1402	INTRODUCED
	BILL TEXT


INTRODUCED BY   Senator Dutton
   (Coauthors: Senators Calderon, Cogdill, Correa, Cox, Denham,
Hollingsworth, and Huff)
   (Coauthor: Assembly Member Smyth)

                        FEBRUARY 19, 2010

   An act to amend Sections 43008.6, 43016, 43020, 43023, 43154, and
43212 of, to amend and renumber Section 43031 of, to add Sections
39619.7, 42413, and 43024.5 to, and to repeal Section 43031.5 of, the
Health and Safety Code, relating to air pollution.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 1402, as introduced, Dutton. State Air Resources Board:
administrative and civil penalties.
   Existing law subjects violators of air pollution laws to specified
civil and administrative penalties. Existing law imposes various
duties on the State Air Resources Board relative to the reduction of
air pollution.
   This bill would require a communication, whether written or oral,
from the state board alleging that an administrative or civil penalty
will be, or could be, imposed either by the state board or another
party, including the Attorney General, for a violation of air
pollution law, to contain specified information. The bill would
require this information and final mutual settlement agreements
reached between the state board and a person alleged to have violated
air pollution laws to be made available to the public.
   The bill would require the state board to prepare and submit to
the Legislature and the Governor a report summarizing the motor
vehicle pollution administrative penalties imposed by the state board
for calendar year 2011, and annually thereafter, and would require
the state board to adopt and submit to the Legislature a written
penalty policy for motor vehicle pollution laws that is based on
specified criteria.
   This bill would entitle a person alleged to have violated motor
vehicle pollution laws the right to an administrative hearing
pursuant to existing provisions of law, at the person's request, in
lieu of a civil action. It would increase the maximum amount of an
administrative penalty imposed pursuant to specified provisions of
law per penalty assessment proceeding for any violation arising from
the same conduct from $100,000 to $300,000, and would require
specified administrative and civil penalties, including proceeds of
mutual settlement agreements, be deposited in the General Fund.
   The bill would provide that a person would not be liable under
more than one civil, administrative, or criminal penalty provision of
motor vehicle pollution law for any violation arising from the same
conduct, and would prohibit the state board from assessing penalties
against multiple persons for the production or sale of the same
vehicle or units under motor vehicle pollution law provisions.
   This bill, in addition, would provide that any person who fails to
obtain a new certification for an engine family certified in the
previous model year and sold in the same configuration in the model
year for which the failure to obtain new certification was made would
be liable for a civil penalty not to exceed $10,000 per engine
family for which the person failed to obtain certification, rather
than per vehicle.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 39619.7 is added to the Health and Safety Code,
to read:
   39619.7.  (a) A communication, whether written or oral, from the
state board alleging that an administrative or civil penalty will be,
or could be, imposed either by the state board or another party,
including the Attorney General, for a violation of air pollution law,
shall contain a clear explanation of both of the following:
   (1) The manner in which the administrative or civil penalty amount
was determined, including the aggravating and mitigating factors the
state board considered in arriving at the amount, and, where
applicable, the per unit or per vehicle basis for the penalty.
   (2) Whether there were direct pollution emissions in excess of
legal requirements resulting from the violation, and if there were, a
quantification of the specific amount of pollution emitted in excess
of the requirements.
   (3) The provision of law or regulations under which the alleged
violator is being assessed the administrative or civil penalty,
including the reason that provision is most appropriate for that
violation.
   (b) The information described in subdivision (a) and all final
mutual settlement agreements reached between the state board and a
person alleged to have violated air pollution laws shall be made
available to the public.
  SEC. 2.  Section 42413 is added to the Health and Safety Code, to
read:
   42413.  All penalties collected by the state board pursuant to
Part 1 (commencing with Section 39000) to Part 4 (commencing with
Section 41500), inclusive, including proceeds from mutual settlement
agreements, shall be deposited in the General Fund.
  SEC. 3.  Section 43008.6 of the Health and Safety Code is amended
to read:
   43008.6.  (a) Notwithstanding Section 43012, for the purpose of
enforcing or administering Section 27156 of the Vehicle Code, the
executive officer of the state board or an authorized representative
of the executive officer, upon presentation of credentials or, if
necessary under the circumstances, after obtaining a warrant pursuant
to Title 13 (commencing with Section 1822.50) of Part 3 of the Code
of Civil Procedure, has the right of entry to any premises owned,
operated, used, leased, or rented by an owner or operator of any
vehicle operated for commercial purposes in order to inspect any such
motor vehicle, secure emission samples therefrom, or inspect and
copy any maintenance, use, or other records pertaining to that
vehicle.
   (b) The state board may collect a civil penalty not to exceed one
thousand five hundred dollars ($1,500) for each violation of Section
27156 of the Vehicle Code. Any penalties shall be paid to the
Treasurer for deposit in the  Air Pollution Control 
 General  Fund.
   (c) The civil penalty specified in subdivision (b) may be
collected for one or more violations involving the tampering with or
disabling of a gasoline-powered vehicle's air injection, exhaust gas
recirculation, crankcase ventilation, fuel injection, carburetion,
ignition timing, or evaporative control system, fuel filler neck
restrictor, oxygen sensor or related electronic controls, or
catalytic converter, or for the use of leaded fuel in a vehicle
certified for the use of unleaded fuel only.
   (d) The civil penalty specified in subdivision (b) may not be
collected for a violation that is related to any tampering or
disabling of a gasoline-powered vehicle specified in subdivision (c)
by a rental customer of that vehicle, including, but not limited to,
a missing gasoline filler cap and a disconnected or missing heated
air intake tube or vacuum hose. However, if more than 20 percent of
an owner's or operator's gasoline-powered vehicles are found to be
nonconforming during each of three consecutive inspections conducted
30 or more days apart during any one-year period, the civil penalty
specified in subdivision (b) applies and shall be collected for each
time a vehicle is found in a nonconforming condition.
  SEC. 4.  Section 43016 of the Health and Safety Code is amended to
read:
   43016.  Any person who violates any provision of this part, or any
order, rule, or regulation of the state board adopted pursuant to
this part, and for which violation there is not provided in this part
any other specific civil penalty or fine, shall be subject to a
civil penalty not to exceed five hundred dollars ($500) per vehicle,
portable fuel container, spout, engine, or other unit subject to
regulation under this part, as these terms are defined in this
division or state board regulations.  Any penalty collected
pursuant to this section shall be payable to the State Treasurer for
deposit in the Air Pollution Control Fund. 
  SEC. 5.  Section 43020 of the Health and Safety Code is amended to
read:
   43020.  (a) Any person who knowingly violates any regulation
adopted pursuant to this part by the state board pertaining to motor
vehicle fuels is guilty of a misdemeanor and is subject to a fine of
not more than one thousand dollars ($1,000) or imprisonment in the
county jail for not more than six months, or both, for each
violation.
   (b) The recovery of civil penalties pursuant to  Section
43016   this part  precludes prosecution pursuant
to this section for the same offense. When the executive officer
refers a violation to a prosecuting attorney, the filing of a
criminal complaint is grounds requiring the dismissal of any civil
action brought pursuant to  Section 43016   this
part  for the same offense.
  SEC. 6.  Section 43023 of the Health and Safety Code is amended to
read:
   43023.  (a)  (1)    As an alternative to seeking
civil penalties under Chapter 1 (commencing with Section 43000) to
Chapter 4 (commencing with Section 43800), inclusive, and Chapter 6
(commencing with Section 44200), for violation of state board
regulations, the state board may impose an administrative penalty, as
specified in this section, for a violation of this part, or any
rule, regulation, permit, variance, or order of the state board
pertaining to vehicular air pollution control except as otherwise
provided in this division. No administrative penalty imposed pursuant
to this section shall exceed the amount that the state board is
authorized to seek as a civil penalty for the applicable violation,
and no administrative penalty imposed pursuant to this section shall
exceed ten thousand dollars ($10,000) for each day in which there is
a violation up to a maximum of  one   three
 hundred thousand dollars  ($100,000)  
($300,000)  per penalty assessment proceeding for any violation
arising from the same conduct. This  one   three
 hundred thousand dollar  ($100,000) 
($300,000)  maximum penalty limitation does not apply in any
judicial proceeding involving violations committed under this part.
    (2)     A person alleged to have violated
this part is entitled to an administrative hearing pursuant to this
section, at the person's request, in lieu of a civil action. 
   (b) Nothing in this section restricts the authority of the state
board to negotiate mutual settlements under any other penalty
provision of law that exceeds ten thousand dollars ($10,000) for each
day in which there is a violation up to a maximum of  one
  three  hundred thousand dollars 
($100,000)   ($300,000)  per penalty assessment
proceeding.
   (c) The administrative penalties authorized by this section shall
be imposed and recovered by the state board in administrative
hearings established pursuant to Article 3 (commencing with Section
60065.1) and Article 4 (commencing with Section 60075.1) of
Subchapter 1.25 of Chapter 1 of Division 3 of Title 17 of the
California Code of Regulations, except that the hearings shall be
conducted by an administrative law judge appointed by the Office of
Administrative Hearings.
   (d) Nothing in this section authorizes the state board to impose
penalties for categories of violations for which the state board may
not seek penalties in a civil action.
   (e) If the state board imposes any administrative penalties
pursuant to this section, the state board may not bring any action
pursuant to, or rely upon, Chapter 4 (commencing with Section 17000)
of Part 2 of Division 7 of the Business and Professions Code.

   (f) In determining the amount of any administrative penalty
imposed pursuant to this section, the state board shall take into
consideration all relevant circumstances, including, but not limited
to, those factors specified in subdivision (b) of Section 43031.
 
   (g) 
    (f)  After an order imposing an administrative penalty
becomes final pursuant to the hearing procedures identified in
subdivision (c), and no petition for a writ of mandate has been filed
within the time allotted for seeking judicial review of the order,
the state board may apply to the Superior Court for the County of
Sacramento for a judgment in the amount of the administrative
penalty. The application, which shall include a certified copy of the
final order of the administrative hearing officer, shall constitute
a sufficient showing to warrant the issuance of the judgment.

   (h) 
    (g)  This section does not apply to any violation for
which a penalty may be assessed pursuant to Chapter 1.5 (commencing
with Section 43025)  ,   except that a person alleged to
have violated Chapter 1.5 (commencing with Section 43025) is
entitled to   an administrative hearing, in lieu of a civil
action  . 
   (i) 
    (h)  This section is not intended, and shall not be
construed, to grant the state board authority to assess an
administrative penalty for any category of violation that was not
subject to enforcement by the state board as of January 1, 2002.

   (j) 
    (i)  Any administrative penalty assessed pursuant to
this section shall be paid to the  State  Treasurer
for deposit in the General Fund. 
   (k) 
    (j)  A party adversely affected by the final decision in
the administrative hearing may seek independent judicial review by
filing a petition for a writ of mandate in accordance with Section
1094.5 of the Code of Civil Procedure. 
   (l) 
    (k)  This section applies only to violations that occur
on or after January 1, 2002. 
   (m) On or before January 1, 2005, the The
    (l)     The  state board shall prepare
and submit to the Legislature and the Governor a report summarizing
the administrative penalties imposed by the state board pursuant to
this section for calendar  years 2002, 2003, 2004, and 2005
  year 2011, and annually thereafter  .
  SEC. 7.  Section 43024.5 is added to the Health and Safety Code, to
read:
   43024.5.  (a) A person shall not be liable under more than one
civil, administrative, or criminal penalty provision of Chapter 1
(commencing with Section 43000) to Chapter 4 (commencing with Section
43800), inclusive, and Chapter 6 (commencing with Section 44200) for
any violation arising from the same conduct.
   (b) The state board shall not assess penalties against multiple
persons for the production or sale of the same vehicle or units under
the provisions of law described in subdivision (a). The state board
shall impose penalties only on the person the state board determines
to be most responsible for the violation.
  SEC. 8.  Section 43031 of the Health and Safety Code is amended and
renumbered to read:
    43031.   43024.   (a) The civil or
administrative civil penalties prescribed  in this chapter
  under Chapter 1 (commencing with Section 43000) to
Chapter 4 (commencing with Section 43800), inclusive, and Chapter 6
(commencing with Section 44200)  shall be assessed and recovered
either in a civil action brought in the name of the people of the
State of California by the Attorney General or by the state board, or
in administrative hearings established pursuant to regulations
adopted by the state board.
   (b) In determining the amount assessed, the court, the Attorney
General, or the state board, in reaching any settlement, shall
 take   act pursuant to the official written
policy described in subdivision (c) that takes  into
consideration all relevant circumstances, including, but not limited
to, all of the following:
   (1) The extent of harm to public health, safety, and welfare
caused by the violation.
   (2) The nature and persistence of the violation, including the
magnitude of the excess emissions.
   (3) The compliance history of the defendant, including the
frequency of past violations.
   (4) The preventive efforts taken by the defendant, including the
record of maintenance and any program to ensure compliance.
   (5) The innovative nature and the magnitude of the effort required
to comply, and the accuracy, reproducibility, and repeatability of
the available test methods.
   (6) The efforts to attain, or provide for, compliance.
   (7) The cooperation of the defendant during the course of the
investigation and any action taken by the defendant, including the
nature, extent, and time of response of any action taken to mitigate
the violation.
   (8) For a person who owns a single retail service station, the
size of the business  , for violations under Chapter 1.5
(commencing with Section 43025)  . 
   (c) No later than March 1, 2011, the state board shall adopt and
submit to the Legislature a written penalty policy that is based on
the criteria in subdivision (b) and that is modeled on the United
States Environmental Protection Agency's 2009 Clean Air Act Mobile
Source Civil Penalty Policy for Vehicle and Engine Certification
Requirements.  
   (d) All administrative and civil penalties collected under Chapter
1 (commencing with Section 43000) to Chapter 4 (commencing with
Section 43800), inclusive, and Chapter 6 (commencing with Section
44200), including proceeds from mutual settlement agreements, shall
be deposited in the General Fund. 
  SEC. 9.  Section 43031.5 of the Health and Safety Code is repealed.

   43031.5.  The revenues from penalties recovered by the state board
pursuant to this chapter shall be deposited in the Air Pollution
Control Fund and shall only be expended by the state board for
environmental cleanup, abatement, or pollution prevention technology.

  SEC. 10.  Section 43154 of the Health and Safety Code is amended to
read:
   43154.  (a) Any person who violates any provision of this article
shall be liable for a civil penalty not to exceed five thousand
dollars ($5,000) per vehicle  , except that any person who fails
to obtain a new certification for an engine family certified in the
previous model year and sold in the same configuration in the model
year for which the failure to obtain new certification was made shall
be liable for a civil penalty not to exceed ten thousand dollars
($10,000) per engine family for which the person failed to obtain
certification   , rather than per vehicle  .
   (b) Any action to recover a penalty under this section shall be
brought in the name of the people of the State of California in the
superior court of the county where the violation occurred, or in the
county where the defendant's residence or principal place of business
is located, by the Attorney General on behalf of the state board, in
which event all penalties adjudged by the court shall be deposited
in the  Air Pollution Control   General 
Fund, or by the district attorney or county attorney of such county,
or by the city attorney of a city in that county, in which event all
penalties adjudged by the court shall be deposited with the treasurer
of the county or city, as the case may be.
  SEC. 11.  Section 43212 of the Health and Safety Code is amended to
read:
   43212.  Any manufacturer or distributor who does not comply with
the emission standards or the test procedures adopted by the state
board shall be subject to a civil penalty of fifty dollars ($50) for
each vehicle which does not comply with the standards or procedures
and which is first sold in this state. The payment of  such
  those  penalties to the state board shall be a
condition to the further sale by  such   that
 manufacturer or distributor of motor vehicles in this state.

   Any penalty recovered pursuant to this section shall be deposited
into the Air Pollution Control Fund.