BILL ANALYSIS Ó
SB 691
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Jerry Hill, Chair
2013-2014 Regular Session
BILL NO: SB 691
AUTHOR: Hancock
AMENDED: As Introduced
FISCAL: No HEARING DATE: April 3, 2013
URGENCY: No CONSULTANT: Rebecca Newhouse
SUBJECT : NON-VEHICULAR AIR POLLUTION PENALTIES
SUMMARY :
Existing federal law , under Title V of the Clean Air Act,
defines major stationary sources as those sources with a
potential to emit that exceeds a specified threshold of air
pollutants per year and creates an operating permits program for
those sources, and specified other sources, to be implemented by
state and local permitting authorities.
Existing state law :
1) Prohibits a person, except as specified, from discharging air
contaminants or other material that cause injury, detriment,
nuisance, or annoyance or endanger the comfort, repose,
health or safety to any considerable number of persons, or to
the public, or that cause, or have a tendency to cause,
injury or damage to a business or property (Health and Safety
Code §41700).
2) Provides that for a violation of the above, a person is
strictly liable for a penalty of not more than $1,000 or
$10,000, as specified. In the case that the violation
results in actual injury, as defined, a person is liable for
a civil penalty of not more than $15,000 (HSC §42402).
3) Provides that a person who violates the above provision and
who is found to have acted negligently is liable for a civil
penalty up to $25,000. Persons found to have acted knowingly
or willfully and intentionally are liable for penalties up to
$40,000 and $75,000, unless injury or bodily harm is shown,
in which case a greater penalty maximum applies (HSC §42402.1
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et seq.).
4) Specifies that the recovery of certain civil penalties, as
specified, precludes prosecution for the same offense (HSC
§42400.7).
5) Requires that, in determining the amount of penalty assessed,
that the extent of harm, nature and persistence of violation,
length of time, frequency of past violations, the record of
maintenance, the unproven nature of the control equipment,
actions taken by the defendant to mitigate the violation and
the financial burden to the defendant be taken into
consideration (HSC §42403).
This bill :
1) Provides that a person that discharges air contaminants or
other material that cause injury, detriment, nuisance, or
annoyance or endanger the comfort, repose, health or safety
to any considerable number of persons, or to the public, or
that cause, or have a tendency to cause injury or damage to a
business or property is subject to a civil penalty on the
initial date of the violation of not more than $100,000 for
Title V sources and for $10,000 for other sources, unless
penalties for acting negligently, knowingly, willfully and
intentionally or with reckless disregard, apply and are
greater, in which case the greater penalty applies.
2) Specifies that the recovery of penalties described above
preclude prosecution for the same offense.
3) Requires that, in determining the penalty amount prescribed
above, the extent of harm, nature and persistence of
violation, length of time, frequency of past violations, the
record of maintenance, the unproven nature of the control
equipment, actions taken by the defendant to mitigate the
violation and the financial burden to the defendant be taken
into consideration.
COMMENTS :
1) Purpose of Bill . According to the author, "Currently, in
state law, single-day violations of air quality regulations
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that affect entire communities lack adequate financial
consequences. In fact, these violations have the same
maximum penalties as violations that affect only a few
individuals. For many of these violations, even for those
affecting the largest sources of air pollutions, such as
refineries or chemical manufacturing facilities, the maximum
air penalties the violators may face are far too low. SB 691
narrowly targets one-day violations that affect great numbers
of individuals affected by air quality violation with higher
civil penalties. For the first day of a violation, the bill
establishes penalties up to $10,000 (most sources), and
$100,000 for Title V sources." The author also notes that,
"having adequate penalties for non-compliance is essential to
protecting public health and safety."
2) Background . The federal Clean Air Act (CAA) specifies which
entities qualify as major sources of air pollutants, and
requires those sources to be permitted and regulated under
the requirements in Title V of the CAA, implemented in
California by local air districts. Certain sources of air
emissions, including combustion facilities and incinerators,
are subject to specific Title V requirements regardless of
size. A Title V permit authorizes those sources to operate.
In July of 2011, sources not previously subject to Title V
requirements became subject to Title V if they had GHG
emissions at least 100,000 tons per year (tpy) of carbon
dioxide equivalent (CO2e). For air pollutants besides GHGs,
the threshold for determining which sources qualify as Title
V changes depending on whether the pollutants are hazardous
and whether the source is located in a non-attainment area.
The default standard for qualifying as a major source of air
pollutants (e.g. NOx, SOx and volatile organic compounds
(VOCs)), is 100 tpy although, nonattainment areas have lower
threshold emission levels for the pollutants that are not in
attainment. Within severe non-attainment areas, sources that
emit over 10 tpy of NOx or volatile organic compounds (VOCs)
are Title V sources. Common Title V sources include large
factories, refineries and power plants. Major source
thresholds for hazardous air pollutants (HAPs) are 10 tpy for
a single HAP or 25 tpy for any combination of HAPs. Examples
of HAPs include benzene, found in gasoline; perchlorethlyene,
emitted from some dry cleaning facilities; and methylene
chloride, used as a solvent and paint stripper by a number of
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industries. Due to the lower emission thresholds for air
pollutants that are in nonattainment, the South Coast Air
Quality Management District and San Joaquin Valley Unified
Air Pollution Control District, which are nonattainment areas
for ozone and PM, a larger fraction of facilities are
required to be permitted as Title V than for air districts in
attainment with air pollutant standards.
3) Chevron refinery fire . On August 6, 2012, the Richmond
Chevron refinery fire resulted in over 15,000 Richmond
residents seeking medical attention and prompted
shelter-in-place advisories in Richmond, North Richmond and
San Pablo, as well as a health advisory in El Cerrito. The
fire was caused by the leaking of hydrocarbons from a
severely corroded 36-year-old pipe in the crude distillation
unit, according to a February report from the US Chemical
Safety and Hazard Investigation Board.
4) Air emission penalties . Civil penalties for stationary
source air emission violations are assessed based on the
number of days of violation and the intention of the
violator. In the absence of evidence to indicate negligence
or worse (i.e. knowledge and failure to correct or willful
and intentional behavior), civil penalties are assessed at
penalty ceilings for the strict liability classification,
where the violation is found to occur without proof of
carelessness or fault. The current penalty ceiling for
strict liability violations can range from $1,000 to $10,000.
5) Children at greater health risk from air pollution . In
addition to varying degrees of toxicity from HAPs that could
be accidentally released from sources, smoke exposure can
cause eye, throat and respiratory irritation, or aggravate
breathing problems like asthma. As evidenced by the Chevron
refinery fire, air emission violations from large sources can
negatively affect thousands of people in the region, but may
have a disproportionate negative health impact on children.
According to the Office of Environmental Health Hazard
Assessment (OEHHA), children may have greater exposure than
adults to airborne pollutants because infants and children
generally breathe more rapidly than an adult, which increases
their exposure to any pollutants in the air. Also, children
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and infants often breathe through their mouths, bypassing the
filtering effect of the nose which allows more pollutants to
be inhaled. Children are often more susceptible to the
health effects of air pollution because their immune systems
and developing organs are still immature. It may take less
pollutant exposure to trigger an asthma attack or other
breathing problem due to the sensitivity of a child's
developing respiratory system. In the long-term, exposures
to toxic air contaminants during infancy or childhood could
affect the development of the respiratory, nervous, endocrine
and immune systems, and could increase the risk of cancer
later in life.
6) Support and Opposition Concerns . Supporters state that the
bill would allow for more appropriate penalties for air
quality violations, encouraging improved compliance and
protection of public health. Supporters also note that
current law does not distinguish between violations that
affect a few people from those that impact entire
communities.
Opponents state that increasing penalties from $10,000 to
$100,000 is a draconian step that would impose a penalty
based simply on allegations of annoyance, whether or not the
actual emissions are harmful or in violation of an existing
permit standard or requirement. They also note that the
$100,000 penalty maximum potentially creates an incentive for
the air districts to levy the highest penalty possible, with
no burden of proof required by the air district to justify
maximum penalties. The opponents also state that the alleged
violator has virtually no defenses to a strict liability
offense.
7) Double Referral to Senate Judiciary Committee . If this
measure is approved by this committee, the do pass motion
must include the action to re-refer the bill to the Senate
Judiciary Committee.
SOURCE : Bay Area Air Quality Management District
Breathe California
SUPPORT : American Lung Association
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Apen Asian Pacific Environmental Network
California Air Pollution Control Officers
Association
Greenaction
Natural Resources Defense Council
Regional Asthma Management and Prevention
OPPOSITION : California Chamber of Commerce
California Citrus Mutual
California Dairies, Inc.
California Independent Oil Marketers Association
California League of Food Processors
California Manufacturers & Technology Association
California League of Food Processors
California Metals Coalition
California Restaurant Association
California Service Station & Automotive Repair
Association
California Taxpayers Association
Chemical Industry Council of California
Independent Energy Producers Association
Nisei Farmers League
Western Agricultural Processors Association
Western Plant Health Association
Western States Petroleum Association