Amended in Assembly September 4, 2013

Amended in Assembly August 5, 2013

Amended in Senate May 24, 2013

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 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, or is 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 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 make a person who violates this provision 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 begin delete and end delete begin insert Act, the discharge results in a severe disruption to the community, end insert the discharge contains or includes one or more toxic air contaminants, as specified begin insert , and 100 or more people are exposed to the discharge end insert . begin insert The bill would prohibit this provision from applying if the violation is caused by unforeseen and unforeseeable criminal acts, acts of war, acts of terrorism, or civil unrest. The bill would require moneys collected pursuant to this provision to be expended in support of air quality programs. end insert 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 42400.7 of the Health and Safety Code
is amended to read:

42400.7.  

(a) The recovery of civil penalties pursuant to Section
39674, 42401, 42402, 42402.1, 42402.2, 42402.3, 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. 2.  

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

42402.  

(a) Except as provided in Sections 42402.1, 42402.2,
42402.3, 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. 3.  

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

42402.1.  

(a) Except as provided in Section 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. 4.  

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

42402.2.  

(a) Except as provided in Section 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. 5.  

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

42402.3.  

(a) Except as provided in Section 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:

begin delete

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.

end delete

begin insert

begin insert 42402.6. end insert   

end insert begin insert

(a) (1) A person is liable for a civil penalty of not
more than one hundred thousand dollars ($100,000) if the person
violates Section 41700 and all of the following occur:

end insert begin insert

(A) The discharge is from a Title V source.

end insert begin insert

(B) The discharge results in a severe disruption to the
community, including, but not limited to, residential displacement,
shelter in place, evacuation, or destruction of property.

end insert begin insert

(C) The discharge contains or includes one or more toxic air
contaminants, as identified in Section 39657.

end insert begin insert

(D) One hundred or more people are exposed to the discharge.

end insert begin insert

(2) This subdivision does not apply to air contaminant releases
that are only nuisance odors.

end insert

(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.

begin insert

(d) The civil penalty described in paragraph (1) of subdivision
(a) shall not apply if the violation is caused by unforeseen and
unforeseeable criminal acts, acts of war, acts of terrorism, or civil
unrest.

end insert begin insert

(e) Moneys collected pursuant to this section shall be expended
in support of air quality programs, including, but not limited to,
programs to research or mitigate the effects of air pollution.

end insert

SEC. 7.  

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

42403.  

(a) The civil penalties prescribed in Sections 39674,
42401, 42402, 42402.1, 42402.2, 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.