BILL ANALYSIS Ó
AB 335
Page 1
Date of Hearing: April 13, 2015
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Das Williams, Chair
AB 335
(Patterson) - As Amended April 6, 2015
SUBJECT: Air quality: minor violations
SUMMARY: Requires the Air Resources Board (ARB) and each local
air district to establish a "minor violation" program, where ARB
and the air districts must issue a "notice to comply" for minor
violations, as defined, and violators have a right to cure the
violation in lieu of facing a penalty or other further
enforcement. This bill reestablishes a law that had been in
effect from 1997-2006.
EXISTING LAW:
1)Designates ARB as the air pollution control agency responsible
for the coordination of the activities of air pollution
control districts and air quality management districts for the
purposes of the federal Clean Air Act.
2)Requires air districts to adopt and enforce rules and
regulations to achieve and maintain the state and federal
ambient air quality standards in all areas affected by
non-vehicular emission sources under their jurisdiction.
3)Authorizes ARB and air districts to enforce air pollution
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laws, including imposing administrative and civil penalties
for violations.
4)Generally prohibits a person 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.
a) 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.
b) 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.
c) 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:
1)Requires ARB and each air district to adopt a regulation or
rule that classifies minor violations, as determined by
considering:
a) The magnitude, scope and severity of the violation.
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b) The degree to which a violation jeopardizes human
health, safety or welfare or the environment.
c) The degree to which a violation could contribute to
the failure to accomplish an important established air
pollution goal or program objective.
d) The degree to which a violation may make it
difficult to determine if the violator is in compliance
with other air pollution requirements.
2)Excludes from the definition of a minor violation any of the
following:
a) Any knowing, willful, or intentional violation.
b) Any violation that enables the violator to benefit
economically from noncompliance, either by realizing
reduced costs or by gaining a competitive advantage.
c) Any violation that is a chronic violation or that is
committed by a recalcitrant violator, as determined by
ARB or a district according to specified evidence.
3)Requires the issuance of a notice to comply, as defined, for
minor violations, including a clear statement of the alleged
violation, a means by which compliance may be achieved, and a
time limit to comply, not exceeding 30 days. Generally
prohibits any other enforcement action for minor violations,
unless ARB or the district determines that enforcement is
necessary to prevent harm to the public health or safety or to
the environment, or that assessment of a civil penalty is
warranted or required under federal law.
4)Provides that the provisions above do not apply to a district
that, as of January 1, 2015, has in effect a program with
provisions similar to those required by this bill.
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5)Requires ARB to report to the Legislature by January 1, 2020
regarding actions taken by ARB and the districts to implement
the minor violation program and the results of that
implementation.
FISCAL EFFECT: Unknown
COMMENTS:
1)Background. Under current law, the ARB and local air
districts are authorized to impose civil or administrative
penalties for a variety of violations of state air pollution
laws and regulations. The agencies and the courts are
required to consider eight factors when determining the amount
of an administrative or civil penalty:
a) extent of harm caused by the violation;
b) nature and persistence of the violation;
c) length of time over which the violation occurs;
d) frequency of past violations;
e) record of maintenance;
f) unproven or innovative nature of the control
equipment;
g) any action taken by the defendant, including nature,
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extent, and time of response to cleanup and construction
undertaken to mitigate the violation; and
h) financial burden to the defendant.
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 violations. 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.
2)History of minor violation law. In 1996, AB 1827 (Brulte)
created minor violation enforcement programs for air and water
quality standards, including the same requirements as this
bill for ARB and air districts. The intent of the program was
to establish enforcement mechanisms that recognize the
difference between violations with little or no potential to
cause public health or environmental harm and those that are
clearly the result of a bad actor, behaving in a willful and
egregious manner. AB 1827 included reporting requirements to
evaluate the effectiveness of the program and a provision
sunsetting the program on January 1, 2001.
In 2000, SB 1865 (Perata), which increased civil and criminal
penalties for air quality violations, also included a
provision extending the sunset on the minor violation program
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for air quality violations until January 1, 2006.
In 2005, SB 109 (Ortiz) contained a provision that would have
extended the minor violation program for air quality standards
until January 1, 2012. However, the bill failed passage on
the Assembly Floor for unrelated provisions that would have
increased the criminal and civil penalties for significant
violations of air quality standards. Following the failure of
SB 109, the minor violation program statute was repealed by
its own terms on January 1, 2006.
In 2006, AB 2394 (Aghazarian) proposed to reenact the minor
violation program without reporting requirements or a sunset.
AB 2394 passed this committee, but was held in the Assembly
Appropriations Committee.
This bill again proposes to reenact the same minor violation
program which was in effect from 1997-2006. The bill includes
a report to the Legislature, but does not include a sunset.
According to California Air Pollution Control Officers
Association (CAPCOA), 25 of the 35 local air districts
currently have a notice to comply rule or program. CAPCOA was
not able to confirm whether these existing programs would
comply with the requirement proposed by this bill.
3)Purpose of the regulatory system. Regulatory systems
encourage or deter behaviors through the threat of penalty for
non-compliance. In regulatory systems, there are varying
degrees of culpability, ranging from strict liability, or no
fault, to negligent and intentional violations. Strict
liability is vital to the maintenance of a regulatory system
because it encourages individuals to know and comply with the
law or risk penalty regardless of intent.
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In some regulatory agencies, the risk of enforcement has been
described as similar to winning the lottery. Since the
chances of being monitored are often slim, the only incentive
for complying with the law is the threat of a substantial
penalty. To achieve deterrence, the penalty must be
sufficient to deprive any economic benefit resulting from a
violation, to reflect the seriousness of the violation taking
into account the violator's financial condition, to and deter
others from the temptation of noncompliance.
By mandating a warning, this bill could undermine the
deterrent effect by signaling to regulated entities that they
don't need to comply until they are caught.
REGISTERED SUPPORT / OPPOSITION:
Support
California Chamber of Commerce
California Manufacturers and Technology Association
California Professional Association of Specialty Contractors
California Trucking Association
Construction Industry Air Quality Coalition
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Consumer Specialty Products Association
Fresno Chamber of Commerce
Industrial Environmental Association
National Marine Manufacturers Association
Opposition
American Lung Association of California
Bay Area Air Quality Management District
Breathe California
California Air Pollution Control Officers Association
California League of Conservation Voters
Central Valley Air Quality Coalition
Coalition for Clean Air
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Coastal Environmental Rights Foundation
Natural Resource Defense Council
Sierra Club California
South Coast Air Quality Management District
Analysis Prepared by:Lawrence Lingbloom / NAT. RES. / (916)
319-2092