BILL ANALYSIS                                                                                                                                                                                                    



                                                                       



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          |SENATE RULES COMMITTEE            |                  SB 1402|
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                                 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





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           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).







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          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  







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             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  







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          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







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          TSM:mw  5/19/10   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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