BILL NUMBER: SB 691 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY AUGUST 5, 2013
AMENDED IN SENATE MAY 24, 2013
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 , and to add Section
42402.6 to, the Health and Safety Code, relating to
nonvehicular air pollution.
LEGISLATIVE COUNSEL'S DIGEST
SB 691, as amended, 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
or 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, make a person who violates this
provision by emitting a discharge liable for
a civil penalty of not more than $100,000, as specified, if the
violation results from a discharge from a stationary
source required by federal law to be included in an operating permit
program established pursuant to Title V of the federal Clean Air
Act, when that discharge includes the release of toxic air
contaminants, to be liable for a civil penalty of not more than
$100,000 and the discharge contains or includes
one or more toxic air contaminants, as specified .
This The 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.
(b) (1) A person who violates subdivision (a) by emitting a
discharge from a Title V source that includes the release of a toxic
air contaminant, as described in Chapter 3.5 (commencing with Section
39650) of Part 2 is liable for a civil penalty of not more than one
hundred thousand dollars ($100,000). This penalty does not apply to
air contaminant releases that are only nuisance odors.
(2) A penalty described in paragraph (1) 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.
(3) If a violation of subdivision (a) that is described in
paragraph (1) continues to occur subsequent to the initial date of
violation, the penalty described in Section 42402, 42402.1, 42402.2,
or 42402.3 shall apply to those subsequent days.
(c) This section shall become operative on January 1, 2014.
SEC. 2. SECTION 1. 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, 41700, 42401, 42402, 42402.1, 42402.2,
42402.3, or 42402.4 , or 42402.6
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. SEC. 2. Section 42402 of the
Health and Safety Code is amended to read:
42402. (a) Except as provided in Sections 41700,
42402.1, 42402.2, 42402.3, and 42402.4,
and 42402.6 a person who violates this part, an order
issued pursuant to Section 42316, or a 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) A person who violates this part, an order issued pursuant
to Section 42316, or a 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) A person who owns or operates a 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. SEC. 3. Section 42402.1 of
the Health and Safety Code is amended to read:
42402.1. (a) Except as provided in Section 41700
42402.6 , a person who negligently emits an air
contaminant in violation of this part or a 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) A 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 a person or that causes the
death of a person, is liable for a civil penalty of not more than one
hundred thousand dollars ($100,000).
(c) Each day during a portion of which a violation occurs is a
separate offense.
SEC. 5. SEC. 4. Section 42402.2 of
the Health and Safety Code is amended to read:
42402.2. (a) Except as provided in Section 41700
42402.6 , a person who emits an air contaminant
in violation of a provision of this part, or an 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) A person who owns or operates a 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 a person or that
causes the death of a 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 a portion of which a violation occurs is a
separate offense.
SEC. 6. SEC. 5. Section 42402.3 of
the Health and Safety Code is amended to read:
42402.3. (a) Except as provided in Section 41700
42402.6 , a person who willfully and
intentionally emits an air contaminant in violation of this part or a
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) A 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, a person, emits an air
contaminant in violation of Section 41700 that results in an
unreasonable risk of great bodily injury to, or death of, a 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) A 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, a 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 a person
or that causes the death of a 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 a portion of which a violation occurs is a
separate offense.
SEC. 6. Section 42402.6 is added to the
Health and Safety Code , to read:
42402.6. (a) If a person violates Section 41700, the violation
results from a discharge from a Title V source, and the discharge
contains or includes one or more toxic air contaminants, as
identified in Section 39657, the person is liable for a civil penalty
of not more than one hundred thousand dollars ($100,000). This
subdivision does not apply to air contaminant releases that are only
nuisance odors.
(b) Except as provided in subdivision (b) of Section 42402.2 or
subdivision (b) or (c) of Section 42402.3, a civil penalty described
in subdivision (a) shall apply on the initial date of a violation.
(c) If a violation of subdivision (a) continues to occur
subsequent to the initial date of the violation, the civil penalty
described in Section 42402, 42402.1, 42402.2, or 42402.3 shall apply
to those subsequent days.
SEC. 7. Section 42403 of the Health and Safety Code is amended to
read:
42403. (a) The civil penalties prescribed in Sections 39674,
41700, 42401, 42402, 42402.1, 42402.2,
and 42402.3 , and 42402.6 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 a district attorney,
or by the attorney for the district in which the violation occurs in
a court of competent jurisdiction.
(b) In determining the amount assessed, the court, or in reaching
a 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) An 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.