BILL ANALYSIS
SB 1402
Page 1
SENATE THIRD READING
SB 1402 (Dutton)
As Amended August 16, 2010
2/3 vote. Urgency
SENATE VOTE :33-0
NATURAL RESOURCES 7-0 JUDICIARY 10-0
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|Ayes:|Chesbro, Gilmore, |Ayes:|Feuer, Tran, Brownley, |
| |Brownley, | |Evans, Hagman, Huffman, |
| |De Leon, Hill, Huffman, | |Jones, Knight, Monning, |
| |Logue | |Saldana |
| | | | |
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APPROPRIATIONS 17-0
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|Ayes:|Fuentes, Conway, | | |
| |Bradford, | | |
| |Huffman, Coto, Davis, De | | |
| |Leon, Gatto, Hall, | | |
| |Harkey, Miller, Nielsen, | | |
| |Norby, Skinner, Solorio, | | |
| |Torlakson, Torrico | | |
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SUMMARY : Requires the Air Resources Board (ARB) to provide a
specified written explanation prior to imposing an
administrative or civil penalty for a violation of air pollution
law, make these explanations available to the public, annually
report specified administrative penalties imposed, and publish a
penalty policy pertaining to vehicular air pollution control.
Specifically, this bill:
1) Requires a written communication from ARB alleging an
administrative or civil penalty for violation of air
pollution law to contain a clear explanation of the
following:
a) The manner in which the penalty amount was determined;
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b) The law or regulation under which the penalty is being
assessed; and,
c) Whether the penalty is being assessed under a law that
prohibits a specified level of pollution, and if so, a
quantification of the specific amount of pollution emitted
2) Requires ARB to make this information, and all final mutual
settlement agreements between ARB and the alleged violator,
available to the public.
3) Requires ARB to prepare and submit to the Legislature and the
Governor an annual report summarizing administrative
penalties pertaining to vehicular air pollution control.
4) Requires ARB to publish a civil and administrative penalty
policy pertaining to vehicular air pollution control by March
1, 2011, and requires the policy to consider specified
circumstances similar to those that ARB and the courts are
currently required to consider when determining penalty
amounts.
5) Contains an urgency clause.
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 (APCF) 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
proceeds 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
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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 APCF.
5)Prohibits the sale of any new motor vehicle that does not meet
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
General Fund.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, costs of an unknown amount, potentially in excess of
$150,000 per year, for up to one position at ARB to include
specified information in written communication and to make it
available to the public, update and publish penalty policy, and
report to the Legislature and Governor. (APCF)
COMMENTS : Under current law, the ARB and/or local air pollution
control districts are authorized to impose civil or
administrative penalties for a variety of violations of state
air pollution laws and regulations. Administrative penalties of
up to $100,000 may be assessed for certain violations. ARB and
the courts are required to consider several factors when
determining the amount of an administrative or civil penalty -
including the harm to the public, the compliance history of the
defendant, preventative efforts made by the defendant, and other
factors. Fine and penalty revenues are generally deposited in
the APCF (where they are available, upon appropriation of the
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Legislature, for environmental cleanup, abatement, or pollution
prevention) or the GF.
ARB has articulated three main goals of its enforcement program:
1) to foster compliance; 2) to deter violations; and, 3) to
create a level playing field for the community ARB regulates.
ARB currently handles approximately 2,000 violations a year.
ARB has a long history of obtaining compliance along with
substantial penalties. In over 99 percent of its cases, ARB
engages violators in a settlement process to reach resolutions.
However, where an appropriate settlement cannot be reached, ARB
refers the matter to a prosecutor, usually the Attorney General,
for civil litigation or criminal prosecution. Injunctions to
halt violations are an important tool in these actions. ARB
maintains that its enforcement process is highly transparent.
All ARB settlements are public documents. Case resolutions are
publicized through news releases. ARB publishes a comprehensive
annual report that documents the results of its enforcement
efforts.
According to the author:
Affected stakeholders have 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 next. Although ARB notes that they
provide this information, many regulated parties state
that they do not receive this information. This bill
would ensure that this information is provided.
Additionally, this bill would codify some of the
important strides that ARB has taken to improve the
transparency of its penalty policies, provide a role
for legislative oversight, and ensure that penalties
are assessed consistently by establishing a written
penalty policy.
Analysis Prepared by : Elizabeth MacMillan / NAT. RES. / (916)
319-2092
FN: 0005944