BILL ANALYSIS ------------------------------------------------------------ |SENATE RULES COMMITTEE | SB 1402| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ THIRD READING Bill No: SB 1402 Author: Dutton (R), et al Amended: 5/18/10 Vote: 27 - Urgency SENATE ENV. QUALITY COMMITTEE : 7-0, 4/19/10 AYES: Simitian, Runner, Corbett, Hancock, Lowenthal, Pavley, Strickland SENATE APPROPRIATIONS COMMITTEE : 10-0, 5/17/10 AYES: Kehoe, Cox, Alquist, Corbett, Denham, Leno, Walters, Wolk, Wyland, Yee NO VOTE RECORDED: Price SUBJECT : Air pollution penalties SOURCE : Californians for Enforcement Reform and Transparency DIGEST : This bill requires written or oral communications from the Air Resources Board (ARB) that allege a violation of air pollution laws to contain specific information regarding the alleged violation. This bill also requires ARB to prepare and submit to the Legislature and the Governor a report summarizing the motor vehicle pollution administrative penalties imposed by ARB for calendar year 2011 and annually thereafter, and to publish a penalty policy for motor vehicle pollution laws based on specified criteria. CONTINUED SB 1402 Page 2 ANALYSIS : Existing law: 1. Generally establishes processes for assessing fines and penalties and specifies the deposit of fines and penalties for violations of vehicular air pollution control laws into the Air Pollution Control Fund or the General Fund (GF). 2. Establishes a process to assess administrative penalties in lieu of civil penalties for violation of specified vehicular air pollution control laws up to $100,000 and establishes a threshold of $100,000 for penalty assessments that qualify a person for mutual settlement agreements and requires the settlements to be deposited into the GF. 3. Requires ARB and the courts to consider specified conditions when considering the amount assessed for administrative or civil penalties for violations of vehicular air pollution control laws such as (a) the extent of harm to public health, safety, and welfare caused by the violation, (b) the nature and persistence of the violation, including the magnitude of the excess emissions, (c) the compliance history of the defendant, including the frequency of past violations, (d) the preventive efforts taken by the defendant, including the record of maintenance and any program to ensure compliance, (e) the innovative nature and the magnitude of the effort required to comply, and the accuracy, reproducibility, and repeatability of the available test methods, (f) the efforts to attain, or provide for, compliance, and (g) 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. 4. Requires any person who violates any vehicular air pollution control law as specified to be liable for a civil penalty not to exceed $5,000 per vehicle and those penalties be deposited in the Air Pollution Control Fund (APCF). SB 1402 Page 3 5. States that any action brought pursuant to #4 above to recover such civil penalties must take special precedence over all other civil matters on the calendar of the court except those matters to which equal precedence on the calendar is granted by law. 6. Requires the revenues from penalties recovered by ARB to be deposited in the APCF and must only be expended by ARB for environmental cleanup, abatement, or pollution prevention technology. 7. Prohibits the sale of any new motor vehicle in California that does not meet the emission standards adopted by ARB, 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 must be subject to a civil penalty of $5,000 for each such action, with the penalty to be deposited into the GF. This bill: 1. Requires written or oral communications from ARB that allege an imposition of a penalty to contain specific information including (a) the manner in which ARB used to determine the amount of a penalty, (b) where applicable, the per unit or per vehicle basis for the penalty, (c) reasoning for the use of the particular provision for assessing the violation, and (d) 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. 2. Requires ARB to make available to the public all final mutual settlement agreements arising from violations of vehicular air pollution control laws. 3. Requires ARB to prepare and submit to the Legislature and the Governor a report summarizing the motor vehicle pollution administrative penalties imposed by ARB for calendar year 2011, and annually thereafter, and also SB 1402 Page 4 requires ARB to publish a penalty policy for motor vehicle pollution laws that shall take into consideration all relevant circumstances, including, but not limited to, all of the following: A. The extent of harm to public health, safety, and welfare caused by the violation. B. The nature and persistence of the violation, including the magnitude of the excess emissions. C. The compliance history of the defendant, including the frequency of past violations. D. The preventive efforts taken by the defendant, including the record of maintenance and any program to ensure compliance. E. The innovative nature and the magnitude of the effort required to comply, and the accuracy, reproducibility, and repeatability of the available test methods. F. The efforts of the defendant to attain, or provide for, compliance. G. 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. H. The financial burden to the defendant. Comments According to the author, "Numerous affected stakeholders have repeated expressed concern over the lack of information on how ARB determines and assesses penalties as well as the lack of consistency from one violation to the rest. This confusion undermines ARB's credibility and effectiveness in achieving its core mission - protection of air quality. This confusion also makes it increasingly difficult for ARB to effectively resolve settlements or for SB 1402 Page 5 regulated entities to comply with ARB regulations and to do business in California." FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes Local: No According to the Senate Appropriations Committee: Fiscal Impact (in thousands) Major Provisions 2010-11 2011-12 2012-13 Fund Providing information Absorbable within existing resources Special* on alleged violations Development of Up to $150 Special* penalty policy * Air Pollution Control Fund SUPPORT : (Verified 5/19/10) Californians for Enforcement Reform and Transparency (source) American Home Furnishing Alliance California Chapter of the American Fence Contractors Association California Dump Truck Owner Association California Manufacturers and Technology Association California Motorcycle Dealers Association California Moving and Storage Association California Retailers Association Construction Industry Air Quality Association Engineering Contractors Association Flasher/Barricade Association Independent Waste Oil Collectors and Transporters Marine Builders Association Moving and Storage Association National Marine Manufacturers Association Outdoor Power Equipment Institute Sand Car Manufacturers Association Southern California Contractors Association SB 1402 Page 6 TSM:mw 5/19/10 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END ****