BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 691|
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THIRD READING
Bill No: SB 691
Author: Hancock (D), et al.
Amended: 5/24/13
Vote: 21
SENATE ENVIRONMENTAL QUALITY COMMITTEE : 6-2, 4/3/13
AYES: Hill, Corbett, Hancock, Jackson, Leno, Pavley
NOES: Gaines, Fuller
NO VOTE RECORDED: Calderon
SENATE JUDICIARY COMMITTEE : 5-1, 5/7/13
AYES: Evans, Corbett, Jackson, Leno, Monning
NOES: Anderson
NO VOTE RECORDED: Walters
SUBJECT : Nonvehicular air pollution control: penalties
SOURCE : Bay Area Air Quality Management District
Breathe California
DIGEST : This bill authorizes a civil penalty of up to
$100,000 against a person who emits a discharge from a Title V
source that includes the release of a toxic air contaminant.
That penalty would not apply to air contaminant releases that
are only nuisance odors.
Senate Floor Amendments of 5/24/13 , limit proposed civil penalty
to Title V sources that release toxic air contaminants; exempt
nuisance odors.
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ANALYSIS : Existing federal law, under Title V of the Clean
Air Act (CAA), 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.
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.
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.
4.Specifies that the recovery of certain civil penalties, as
specified, precludes prosecution for the same offense.
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.
This bill authorizes a civil penalty of up to $100,000 against a
person who emits a discharge from a Title V source that includes
the release of a toxic air contaminant. That penalty will not
apply to air contaminant releases that are only nuisance odors.
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The proposed penalty will only apply on the first day that the
air contaminants cause harm to a considerable number of persons,
the public, business, or property, as specified.
Background
The federal CAA, enacted in 1970, attempted to create a
nationwide solution to the growing problem of air pollution.
Under the CAA, the Environmental Protection Agency (EPA)
develops national ambient air quality standards (NAAQS) for
certain pollutants. The CAA leaves the decision of how to
implement the NAAQS up to the states through their State
Implementation Plan. Additionally, the CAA mandated the
creation of New Source Performance Standards for new or modified
stationary sources. California's implementation of the CAA,
following the EPA's established standards, assigned creation of
standards to the California Air Resources Board. Legislation
divided California into 35 air quality districts. Each district
is run by a local air pollution control officer with discretion
over enforcement of air pollution regulations within that
district.
California's non-vehicular air pollution statutes provide for
civil penalties for violations of air pollution standards.
Based on the type of violation, maximum penalties range from
between $1,000 to $1,000,000 per violation per day. No minimum
penalty is required, leaving the amount prosecuted at the
discretion of the air pollution control officer. Offenses are
generally strict liability, but affirmative defenses are allowed
when officers seek more than $1,000 per day for certain
non-Title V violations. Title V violations relate to operating
permits required under the federal CAA for specified stationary
sources, such as sources emitting more than 100 tons per year of
a criteria pollutant, affected sources under acid rain
requirements, and solid waste incinerators.
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
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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.
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.
Children at greater health risk from air pollution . In addition
to varying degrees of toxicity from hazardous air pollutants
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, 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 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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local:
No
SUPPORT : (Verified 5/28/13)
Bay Area Air Quality Management District (co-source)
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Breathe California (co-source)
Alameda County Board of Supervisors
American Lung Association in California
Asian Pacific Environmental Network
California Air Pollution Control Officers Association
City of Hercules Council Member, Sherry McCoy
City of Oakland Mayor, Jean Quan
City of Richmond Mayor, Gayle McLaughlin
County of Contra Costa Supervisor, John Gioia
Environmental Defense Fund
Greenaction for Health and Environmental Justice
Natural Resources Defense Council
Regional Asthma Management and Prevention
Sierra Club California
OPPOSITION : (Verified 5/28/13)
Almond Hullers and Processors Association
California Cement Manufacturers Environmental Coalition
California Chamber of Commerce
California Citrus Mutual
California Construction Trucking Association
California Cotton Ginners Association
California Cotton Growers Association
California Council for Environmental and Economic Balance
California Dairies, Inc.
California Independent Oil Marketers Association
California League of Food Processors
California Manufacturers & Technology Association
California Metals Coalition
California Restaurant Association
California Service Station & Automotive Repair Association
California Taxpayers Association
Chemical Industry Council of California
Citizen's Advisory Group of Industries
Communities for Better Environment
Independent Energy Producers Association
Milk Producers Council
National Aerosol Association
National Federation of Independent Business
Nisei Farmers League
Scrap Recycling Industries, West Coast Chapter
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Western Agricultural Processors Association
Western Plant Health Association
Western States Petroleum Association
Wine Institute
ARGUMENTS IN SUPPORT : According to the author, "Currently, in
state law, single-day violations of air quality regulations 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."
ARGUMENTS IN OPPOSITION : 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.
RM:ej 5/28/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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