BILL NUMBER: SB 1402	AMENDED
	BILL TEXT

	AMENDED IN SENATE  MAY 18, 2010
	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 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 publish a penalty policy for motor vehicle
pollution laws that is based on specified criteria.
   (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 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) 
   (2)  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. 
   (3) Whether the administrative or civil penalty is being assessed
under a provision of law that prohibits the emission of pollution at
a specified level, and if so, a quantification of the specific amount
of pollution emitted in excess of that level. 
   (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 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 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) 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. 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. 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.