BILL ANALYSIS Ó
AB 1842
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Date of Hearing: March 29, 2016
ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE
Marc Levine, Chair
AB 1842
(Levine) - As Introduced February 9, 2016
SUBJECT: Water: pollution: fines
SUMMARY: Creates a civil penalty of up to $10 per gallon or
pound of polluting material discharged into waterways for those
found to have polluted. Reduces the penalty on every gallon or
pound for every gallon or pound recovered.
EXISTING LAW:
1)Provides for a base fine/ penalty of up to $2000 on criminal
or $25,000 on civil polluters of state waters.
2)Under criminal proceedings provides for up to a $10 fine/
penalty per gallon or pound of material that is not removed
from state waters. Provides for a similar penalty under
administrative proceedings.
FISCAL EFFECT: Unknown.
COMMENTS: Creates a civil penalty identical to penalties that
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exist for polluting waterways under criminal and administrative
actions.
1)Author's Statement: AB 1842 protects California's waterways
by underscoring the importance of appropriate sanctions that
reflect the severity of a violation.
California is home to some of the most beautiful coastline,
bays, estuaries, streams, and rivers in the nation. Gross
polluters of our waterways must be held accountable and strong
enforcement is needed.
2)Background: Since the early 70's environmental law has been
central to implementing a wide range of environmental programs
designed to protect air, water, natural resources, wildlife
and public health. In the case of pollution of our waterways,
including our drinking water, environmental laws help address
problems with discharge. However, simply having environmental
laws in place is not enough to ensure problems of discharge do
not arise. Having penalties for violations of the law help
ensure that polluters meet the requirements of the law.
Additionally the law must always be adapting to ensure that
compliance is more desirable than non-compliance.
Under existing law, to face the most severe penalties through
a criminal violation of polluting the waters of the state an
offender must be proven guilty beyond a reasonable doubt, the
highest standard in law. In additional to prison time and a
fine, a criminally, liable offender may have to pay a
surcharge of up to $10 per gallon or pound of polluting
material. The surcharge per gallon or pound is reduced for
every gallon or pound of material that is recovered and
properly disposed of.
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Under existing law, a fine and an up to $20 per gallon
surcharge for a criminal violation can be applied through
administrative actions on certain pollution.
In a civil proceeding the defendant must show by a
preponderance of the evidence, the lowest standard in law,
that they acted in good faith. The polluting material
surcharge that exists through both the criminal and
administrative action is not available to be applied in the
civil case.
This limits the flexibility of a prosecutor especially in the
case where they believe that a criminal action will not be
provable. This leaves a prosecutor with a choice between
suggesting an administrative action where the surcharge would
apply, or purse a civil action where the surcharge would not
apply. Ultimately this can serve to hinder environmental
enforcement.
3)Supporting Arguments: A prosecutor who believes that conduct
fell short of a provable crime must forego the surcharge when
filing a civil action. This is not only ironic in that the
most severe criminal and least sever administrative remedies
allow for the surcharge, but the middle remedy- civil action -
does not, but also hampers prosecutors' filing flexibility and
may be an impediment to environmental enforcement.
The penalty provisions create an incentive for polluter to
remedy the pollution, reducing the penalty for the illegally
discharged materials that are recovered and responsibly
disposed of.
This simple change will help enforce water quality laws and
ensure timely cleanup of accidents.
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4)Opposing Arguments: This bill could potentially increase
liability by subjecting public agencies to double liability.
The bill should be amended to allow for only one penalty to be
assessed. The bill should provide for a notification process
between the Attorney General, the department, and the
applicable regional or state water board so that a person who
discharges illegally is assessed only once.
REGISTERED SUPPORT / OPPOSITION:
Support
California District Attorneys Association (Sponsor)
California League of Conservation Voters
Sierra Club California
Natural Resources Defense Council
Opposition
Association of California Water Agencies (unless amended)
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Analysis Prepared by:Ryan Ojakian / W., P., & W. / (916)
319-2096