Senate Bill No. 691

Introduced by Senator Hancock

(Principal coauthors: Senators DeSaulnier, Hill, and Leno)

(Principal coauthor: Assembly Member Skinner)

(Coauthor: Senator Lara)

February 22, 2013

An act to amend Sections 41700, 42400.7, 42402, 42402.1, 42402.2, 42402.3, and 42403 of the Health and Safety Code, relating to air pollution.

LEGISLATIVE COUNSEL’S DIGEST

SB 691, as introduced, Hancock. Nonvehicular air pollution control: penalties.

Existing law, commencing January 1, 2014, prohibits a person from discharging from nonvehicular sources air contaminants or other materials that cause injury, detriment, nuisance, or annoyance to the public, or that endanger the comfort, repose, health, or safety of the public, or that cause injury or damage to business or property, as specified. Under existing law, a person who violates this provision is guilty of a misdemeanor, as specified, and is strictly liable for a civil penalty of not more than $10,000, unless that person alleges by affirmative defense and establishes that the act was not the result of intentional or negligent conduct, in which case that person is strictly liable for a civil penalty of not more than $1,000. A person who violates this provision and who acts negligently, knowingly, willfully and intentionally, or with reckless disregard, is liable for a civil penalty in a greater amount, as specified.

This bill would require, unless the original penalties prescribed are greater, that on the initial date of a violation of this provision, a person is liable for a civil penalty of not more than $10,000, unless the violation results from a discharge from a Title V source, in which case the civil penalty is not more than $100,000. This bill would require that the recovery of a civil penalty under these provisions precludes prosecution of a misdemeanor for the same offense.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 41700 of the Health and Safety Code, as
added by Section 2 of Chapter 411 of the Statutes of 2010, is
amended to read:

41700.  

(a) Except as otherwise provided in Section 41705, a
person shall not discharge from any source whatsoever quantities
of air contaminants or other material that cause injury, detriment,
nuisance, or annoyance to any considerable number of persons or
to the public, or that endanger the comfort, repose, health, or safety
of any of those persons or the public, or that cause, or have a
natural tendency to cause, injury or damage to business or property.

begin insert

(b) (1) A penalty described in subdivision (c) shall apply on
the initial date a violation of subdivision (a) occurs, unless a
penalty prescribed in Section 42402, 42402.1, 42402.2, or 42402.3
is greater, in which case the greater penalty shall apply.

end insert begin insert

(2) If a violation of subdivision (a) continues to occur after the
initial date of violation, the penalty described in Section 42402,
42402.1, 42402.2, or 42402.3 shall apply to those subsequent days.

end insert begin insert

(c) (1) Except as provided in paragraph (2), a person who
violates subdivision (a) is liable for a civil penalty of not more
than ten thousand dollars ($10,000).

end insert begin insert

(2) A person who violates subdivision (a), which results in a
discharge from a Title V source, is liable for a civil penalty of not
more than one hundred thousand dollars ($100,000).

end insert begin delete

(b)

end delete

begin insert (d) end insert  This section shall become operative on January 1, 2014.

SEC. 2.  

Section 42400.7 of the Health and Safety Code is
amended to read:

42400.7.  

(a) The recovery of civil penalties pursuant to Section
39674, begin insert 41700, end insert 42401, 42402, 42402.1, 42402.2, 42402.3, or
42402.4 precludes prosecution under Section 42400, 42400.1,
42400.2, 42400.3, 42400.3.5, or 42400.4 for the same offense.
When a district refers a violation to a prosecuting agency, the filing
of a criminal complaint is grounds requiring the dismissal of any
civil action brought pursuant to this article for the same offense.

(b) If the pending civil action described in subdivision (a)
includes a request for injunctive relief, that portion of the civil
action shall not be dismissed upon the filing of a criminal complaint
for the same offense.

SEC. 3.  

Section 42402 of the Health and Safety Code is
amended to read:

42402.  

(a) Except as provided in Sections begin insert 41700, end insert 42402.1,
42402.2, 42402.3, and 42402.4, begin delete any end delete begin insert a end insert person who violates this
part, begin delete any end delete begin insert an end insert order issued pursuant to Section 42316, or begin delete any end delete begin insert a end insert rule,
regulation, permit, or order of a district, including a district hearing
board, or of the state board issued pursuant to Part 1 (commencing
with Section 39000) to Part 4 (commencing with Section 41500),
inclusive, is strictly liable for a civil penalty of not more than one
thousand dollars ($1,000).

(b) (1)  begin delete Any end delete begin insert A end insert person who violates begin delete any provision of end delete this part,
begin delete any end delete begin insert an end insert order issued pursuant to Section 42316, or begin delete any end delete begin insert a end insert rule,
regulation, permit or order of a district, including a district hearing
board, or of the state board issued pursuant to Part 1 (commencing
with Section 39000) to Part 4 (commencing with Section 41500),
inclusive, is strictly liable for a civil penalty of not more than ten
thousand dollars ($10,000).

(2) (A) If a civil penalty in excess of one thousand dollars
($1,000) for each day in which a violation occurs is sought, there
is no liability under this subdivision if the person accused of the
violation alleges by affirmative defense and establishes that the
violation was caused by an act that was not the result of intentional
nor negligent conduct.

(B) Subparagraph (A) shall not apply to a violation of federally
enforceable requirements that occur at a Title V source in a district
in which a Title V permit program has been fully approved.

(C) Subparagraph (A) does not apply to a person who is
determined to have violated an annual facility emissions cap
established pursuant to a market based incentive program adopted
by a district pursuant to subdivision (b) of Section 39616.

(c)  begin delete Any end delete begin insert A end insert person who owns or operates begin delete any end delete begin insert a end insert source of air
contaminants in violation of Section 41700 that causes actual
injury, as defined in subdivision (d) of Section 42400, to the health
and safety of a considerable number of persons or the public, is
liable for a civil penalty of not more than fifteen thousand dollars
($15,000).

(d) Each day during any portion of which a violation occurs is
a separate offense.

SEC. 4.  

Section 42402.1 of the Health and Safety Code is
amended to read:

42402.1.  

(a)  begin delete Any end delete begin insert Except as provided in Section 41700, a end insert
person who negligently emits an air contaminant in violation of
this part or begin delete any end delete begin insert a end insert rule, regulation, permit, or order of the state board
or of a district, including a district hearing board, pertaining to
emission regulations or limitations is liable for a civil penalty of
not more than twenty-five thousand dollars ($25,000).

(b)  begin delete Any end delete begin insert A end insert person who negligently emits an air contaminant in
violation of Section 41700 that causes great bodily injury, as
defined by Section 12022.7 of the Penal Code, to begin delete any end delete begin insert a end insert person or
that causes the death of begin delete any end delete begin insert a end insert person, is liable for a civil penalty
of not more than one hundred thousand dollars ($100,000).

(c) Each day during begin delete any end delete begin insert a end insert portion of which a violation occurs
is a separate offense.

SEC. 5.  

Section 42402.2 of the Health and Safety Code is
amended to read:

42402.2.  

(a)  begin delete Any end delete begin insert Except as provided in Section 41700, a end insert
person who emits an air contaminant in violation of begin delete any end delete begin insert a end insert provision
of this part, or begin delete any end delete begin insert an end insert order, rule, regulation, or permit of the state
board or of a district, including a district hearing board, pertaining
to emission regulations or limitations, and who knew of the
emission and failed to take corrective action, as defined in
subdivision (b) of Section 42400.2, within a reasonable period of
time under the circumstances, is liable for a civil penalty of not
more than forty thousand dollars ($40,000).

(b)  begin delete Any end delete begin insert A end insert person who owns or operates begin delete any end delete begin insert a end insert source of air
contaminants in violation of Section 41700 that causes great bodily
injury, as defined by Section 12022.7 of the Penal Code, to begin delete any end delete begin insert a end insert
person or that causes the death of begin delete any end delete begin insert a end insert person, and who knew of
the emission and failed to take corrective action, as defined in
subdivision (b) of Section 42400.2, within a reasonable period of
time under the circumstances, is liable for a civil penalty not to
exceed two hundred fifty thousand dollars ($250,000).

(c) Each day during begin delete any end delete begin insert a end insert portion of which a violation occurs
is a separate offense.

SEC. 6.  

Section 42402.3 of the Health and Safety Code is
amended to read:

42402.3.  

(a)  begin delete Any end delete begin insert Except as provided in Section 41700, a end insert
person who willfully and intentionally emits an air contaminant
in violation of this part or begin delete any end delete begin insert a end insert rule, regulation, permit, or order
of the state board, or of a district, including a district hearing board,
pertaining to emission regulations or limitations, is liable for a
civil penalty of not more than seventy-five thousand dollars
($75,000).

(b)  begin delete Any end delete begin insert A end insert person who willfully and intentionally, or with
reckless disregard for the risk of great bodily injury, as defined by
Section 12022.7 of the Penal Code, to, or death of, begin delete any end delete begin insert a end insert person,
emits an air contaminant in violation of Section 41700 that results
in an unreasonable risk of great bodily injury to, or death of, begin delete any end delete
begin insert a end insert person, is liable for a civil penalty of not more than one hundred
twenty-five thousand dollars ($125,000). If the violator is a
corporation, the maximum penalty may be up to five hundred
thousand dollars ($500,000).

(c)  begin delete Any end delete begin insert A end insert person who willfully and intentionally, or with
reckless disregard for the risk of great bodily injury, as defined by
Section 12022.7 of the Penal Code, to, or death of, begin delete any end delete begin insert a end insert person,
emits an air contaminant in violation of Section 41700 that causes
great bodily injury, as defined by Section 12022.7 of the Penal
Code, to begin delete any end delete begin insert a end insert person or that causes the death of begin delete any end delete begin insert a end insert person, is
liable for a civil penalty of not more than two hundred fifty
thousand dollars ($250,000). If the violator is a corporation, the
maximum penalty may be up to one million dollars ($1,000,000).

(d) Each day during begin delete any end delete begin insert a end insert portion of which a violation occurs
is a separate offense.

SEC. 7.  

Section 42403 of the Health and Safety Code is
amended to read:

42403.  

(a) The civil penalties prescribed in Sections 39674,
begin insert 41700, end insert 42401, 42402, 42402.1, 42402.2, and 42402.3 shall be
assessed and recovered in a civil action brought in the name of the
people of the State of California by the Attorney General, by begin delete any end delete
begin insert a end insert district attorney, or by the attorney for begin delete any end delete begin insert the end insert district in which
the violation occurs in begin delete any end delete begin insert a end insert court of competent jurisdiction.

(b) In determining the amount assessed, the court, or in reaching
begin delete any end delete begin insert a end insert settlement, the district, shall take into consideration all
relevant circumstances, including, but not limited to, the following:

(1) The extent of harm caused by the violation.

(2) The nature and persistence of the violation.

(3) The length of time over which the violation occurs.

(4) The frequency of past violations.

(5) The record of maintenance.

(6) The unproven or innovative nature of the control equipment.

(7)  begin delete Any end delete begin insert An end insert action taken by the defendant, including the nature,
extent, and time of response of the cleanup and construction
undertaken, to mitigate the violation.

(8) The financial burden to the defendant.