BILL NUMBER: SB 1402 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 27, 2010
AMENDED IN SENATE MARCH 23, 2010
INTRODUCED BY Senator Dutton
(Coauthors: Senators Calderon, Cogdill, Correa, Cox, Denham,
Hollingsworth, Huff, and Wright)
(Coauthor: Assembly Member Smyth)
FEBRUARY 19, 2010
An act to amend Sections 43008.6, 43016, 43020, 43023,
43154, 43211, 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 Section 43023 of, and to add Sections
39619.7 and 43024 to , the Health and Safety Code, relating to
air pollution, and declaring the urgency thereof, to take effect
immediately.
LEGISLATIVE COUNSEL'S DIGEST
SB 1402, as amended, Dutton. State Air Resources Board:
administrative and civil penalties.
(1) 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 publish a 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 to 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, to 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. The bill would subject specified violations for
transactions involving uncertified vehicles to a cumulative civil
penalty not to exceed $5,000 per vehicle, regardless of the number of
violations or violators with respect to that vehicle.
(2) This bill would declare that it is to take effect immediately
as an urgency statute.
Vote: 2/3. 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
all 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 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.
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 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 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 three hundred thousand dollars ($300,000) per penalty
assessment proceeding for any violation arising from the same
conduct. This three hundred thousand dollar ($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 three hundred
thousand dollars ($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 from the General Jurisdiction Division.
(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) 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.
(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.
(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.
(i) Any administrative penalty assessed pursuant to this section
shall be paid to the Treasurer for deposit in the General Fund.
(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.
(k) This section applies only to violations that occur on or after
January 1, 2002.
(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 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:
43024. (a) The civil or administrative civil penalties prescribed
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 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.
SEC. 10. Section 43154 of the Health and Safety
Code is amended to read:
43154. (a) (1) Except as otherwise provided in paragraph (2),
violations of this article and Section 43211 are subject to a
cumulative civil penalty not to exceed five thousand dollars ($5,000)
per vehicle, regardless of the number of violations or violators
with respect to that vehicle.
(2) 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 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 43211 of the Health and Safety
Code is amended to read:
43211. A new motor vehicle shall not be sold in California that
does not meet the emission standards adopted by the state board, and
any manufacturer who sells, attempts to sell, or causes to be offered
for sale a new motor vehicle that fails to meet the applicable
emission standards shall be subject to a cumulative civil penalty of
five thousand dollars ($5,000) per vehicle, regardless of the number
of violations or violators with respect to that vehicle.
Any penalty recovered pursuant to this section shall be deposited
into the General Fund.
SEC. 12. 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 those penalties
to the state board shall be a condition to the further sale by that
manufacturer or distributor of motor vehicles in this state.
SEC. 2. Section 43023 of the Health and
Safety Code is amended to read:
43023. (a) 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 hundred thousand dollars ($100,000) per penalty
assessment proceeding for any violation arising from the same
conduct. This one hundred thousand dollar ($100,000) maximum penalty
limitation does not apply in any judicial proceeding involving
violations committed under this part.
(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 hundred
thousand dollars ($100,000) 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) 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) This section does not apply to any violation for which a
penalty may be assessed pursuant to Chapter 1.5 (commencing with
Section 43025).
(i) 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) Any administrative penalty assessed pursuant to this section
shall be paid to the State Treasurer for deposit
in the General Fund.
(k) 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) This section applies only to violations that occur on or after
January 1, 2002.
(m) On or before January 1, 2005, the 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. 3. Section 43024 is added to the
Health and Safety Code , to read:
43024. (a) No later than March 1, 2011, the state board shall
publish a penalty policy for civil or administrative penalties
prescribed under Chapter 1 (commencing with Section 43000) to Chapter
4 (commencing with Section 43800), inclusive, and Chapter 6
(commencing with Section 44200).
(b) The policy shall take 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 of the defendant 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) The financial burden to the defendant.
SEC. 13. SEC. 4. This act is an
urgency statute necessary for the immediate preservation of the
public peace, health, or safety within the meaning of Article IV of
the Constitution and shall go into immediate effect. The facts
constituting the necessity are:
In order that air pollution penalties are imposed in furtherance
of state goals as quickly as possible, it is necessary that this act
take effect immediately.