BILL ANALYSIS Ó
SB 691
Page 1
Date of Hearing: August 12, 2013
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Wesley Chesbro, Chair
SB 691 (Hancock) - As Amended: August 5, 2013
SENATE VOTE : 22-15
SUBJECT : Nonvehicular air pollution control: penalties
SUMMARY : This bill authorizes a civil penalty of up to $100,000
(currently $10,000) against a person who emits a discharge from
a Title V source that includes the release of a toxic air
contaminant (TAC). That penalty would not apply to air
contaminant releases that are only nuisance odors.
EXISTING LAW :
1)Under Title V of the federal 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.
2)Under state air resources law:
a) 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.
b) 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.
c) 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
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penalties up to $40,000 and $75,000, unless injury or
bodily harm is shown, in which case a greater penalty
maximum applies.
d) Specifies that the recovery of certain civil penalties,
as specified, precludes prosecution for the same offense.
e) 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.
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.
FISCAL EFFECT : Non-fiscal
COMMENTS : 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 with higher civil penalty
ceilings when the incident occurs at a Title V facility and
toxic air contaminates are released." The author also states
that, "having adequate penalties for non-compliance is essential
to protecting public health and safety."
Background : California's non-vehicular air pollution statutes
provide for civil penalties for violations of air pollution
standards. No minimum penalty is required, leaving the amount
prosecuted at the discretion of the air pollution control
officer. Offenses are generally strict liability, but
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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.
The 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
greenhouse gas (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 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.
Air emission penalties : Civil penalties for stationary source
air emission violations are assessed based on the number of days
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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.
Chevron refinery fire : On August 6, 2012, a fire at the
Richmond Chevron refinery resulted in over 15,000 Richmond
residents seeking medical treatment and prompted
shelter-in-place advisories in the cities of 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.
On August 5, 2013, Chevron pleaded no contest to six charges
filed by the Attorney General and the Contra Costa County
District Attorney and agreed to pay $1.28 million in fines and
more than $720,000 in restitution payments to three local
agencies. According to the Contra Costa County District
Attorney's Office, the charges included Labor Code violations
including failing to correct deficiencies in equipment and
continuing to use equipment that was outside acceptable limits;
failing to prevent non-emergency personnel from entering the
emergency area; failing to implement an effective Injury and
Illness Prevention Program to protect employees from exposure to
potential harm; and, two violations related to the air
emissions. The first violation was for negligently emitting air
contaminants under Health and Safety Code 42400.1, which covers
all violations of non-vehicular air pollution control (Part 4).
The other was for a violation of a Bay Area AQMD rule, which
prohibits the emission of "visible emissions" (i.e., smoke) for
more than three minutes.
Health effects : In addition to varying degrees of toxicity from
TACs that could be released, 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, and may have a
disproportionately negative health impact on children.
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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 and
infants breathe through their mouths more often than adults,
bypassing the filtering effect of the nose. Children are more
susceptible to the health effects of air pollution because their
immune systems and developing organs are still immature. In the
long-term, exposures to TACs during infancy or childhood can
affect the development of the respiratory, nervous, endocrine,
and immune systems and can increase the risk of cancer later in
life.
Interagency Working Group on Refinery Safety : In response to
the Chevron refinery fire, Governor Brown established the
Interagency Working Group on Refinery Safety (Working Group) "to
examine ways to improve public and worker safety through
enhanced oversight of refineries, and to strengthen emergency
preparedness in anticipation of any future incident." The
Working Group is comprised of participants from 13 agencies and
departments and the Governor's office." Last month, the draft
report, Improving Public and Worker Safety at Oil Refineries,
was released by the Working Group. The draft report lists a
number of "pervasive issues" relating to a number of factors,
including insufficient penalties to achieve meaningful
deterrence.
For example, in response to [the California Division of
Occupational Safety and Health's (CalOSHA)] findings of 25
willful and serious violations at Chevron, the maximum
penalty CalOSHA was statutorily authorized to assess was
$963,200. Air districts for their part are limited to
penalties no greater than $10,000 for releases of toxic air
contaminants that constitute an air toxics nuisance. These
penalty amounts are unlikely to provide a meaningful
deterrent to noncompliance, considering the average revenue
at California refineries exceeds $185 million per day.
The draft report recommends, "[increasing] the maximum penalty
amounts for violations of health, safety, and environmental
requirements so they provide a stronger incentive for
compliance."
REGISTERED SUPPORT / OPPOSITION :
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Support
Bay Area Air Quality Management District (sponsor)
Breathe California (sponsor)
Alameda County
American Lung Association
Asian Pacific Environmental Network
California Air Pollution Control Officers Association
City of Oakland
Clean Water Action
East Yard Communities for Environmental Justice
Environmental Defense Fund
Gayle McLaughlin, Mayor, City of Richmond
Greenaction for Health and Environmental Justice
John Gioia, Contra Costa County Supervisor
Long Beach Alliance for Children with Asthma
Natural Resources Defense Council
Regional Asthma Management and Prevention
Sherry McCoy, City Council Member, City of Hercules
Sierra Club, Angeles Chapter
Sierra Club California
350 Silicon Valley
Opposition
Almond Hullers and Processors Association
Cal Tax
California Chamber of Commerce
California Citrus Mutual
California Cotton Ginners Association
California Cotton Growers Association
California Council for Environmental and Economic Balance
California Dairies, Inc.
California Farm Bureau Federation
California Independent Oil Marketers Association
California League of Food Processors
California Manufacturers and Technology Association
California Metals Coalition
California Municipal Utilities Association
California Restaurant Association
California Service Station and Automotive Repair Association
California Taxpayers Association
Chemical Industry Council of California
Citizen's Advisory Group of Industries
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Independent Energy Producers Association
Institute of Scrap Recycling Industries, West Coast Chapter
Milk Producers Council
National Aerosol Association
National Federation of Independent Business
Nisei Farmers League
Riverside Public Utilities
South West California Legislative Council
Southern California Public Power Authority
The California Railroad Industry
Western Agricultural Processors Association
Western Plant Health Association
Western States Petroleum Association
Analysis Prepared by : Elizabeth MacMillan / NAT. RES. / (916)
319-2092