BILL NUMBER: SB 621 CHAPTERED 09/29/99 CHAPTER 582 FILED WITH SECRETARY OF STATE SEPTEMBER 29, 1999 APPROVED BY GOVERNOR SEPTEMBER 28, 1999 PASSED THE SENATE SEPTEMBER 10, 1999 PASSED THE ASSEMBLY SEPTEMBER 9, 1999 AMENDED IN ASSEMBLY SEPTEMBER 8, 1999 AMENDED IN ASSEMBLY SEPTEMBER 7, 1999 AMENDED IN ASSEMBLY AUGUST 30, 1999 AMENDED IN ASSEMBLY AUGUST 19, 1999 AMENDED IN ASSEMBLY AUGUST 16, 1999 AMENDED IN ASSEMBLY JULY 6, 1999 AMENDED IN SENATE MAY 19, 1999 AMENDED IN SENATE APRIL 6, 1999 INTRODUCED BY Senator Sher FEBRUARY 24, 1999 An act to amend Section 4612 of, to amend, repeal, and add Section 4554.5 to, and to add Sections 4601.1, 4601.2, 4601.3, 4601.4, and 4601.5 to, the Public Resources Code, relating to forest resources. LEGISLATIVE COUNSEL'S DIGEST SB 621, Sher. Forest resources: timber harvesting plans. (1) Existing law, the Z'berg-Nejedly Forest Practice Act of 1973, specifies that rules and regulations adopted or revised pursuant to the act shall become effective on the next January 1 that is not less than 30 days from the date of approval of those rules or regulations by the Office of Administrative Law, except as provided. This bill would, until January 1, 2001, instead provide that those rules and regulations shall become effective on either the next January 1 or July 1 that is not less than 30 days from the date of approval of those rules or regulations by the office. (2) The act prohibits a person from conducting timber operations on timberland unless a timber harvesting plan has been prepared by a registered professional forester and has been submitted to the Department of Forestry and Fire Protection and approved by the director or by the state board. This bill would impose additional civil penalties for violations of the act, as prescribed, and would require the consideration of all relevant circumstances pertaining to a violation when determining the amount of that penalty, and corrective action, if any, required to be taken by the violator. The bill would authorize any party who is aggrieved by a final order issued by the board pertaining to a violation to obtain a review of the order in the superior court in the county in which the violation occurred by filing a petition for a writ of mandate in the court within a specified time period. By imposing new duties on local governments with respect to the review of the imposition of a civil penalty by the superior court, the bill would impose a state-mandated local program. (3) The bill would provide that the violation of any rule or regulation adopted by the board pursuant to the act prescribing any procedural requirement that does not result in, or cause, any environmental damage, and is not a violation of specified provisions regulating forest practices, is an infraction punishable by the imposition of specified fines, as provided. The bill would require the board to designate those rules and regulations that prescribe procedural requirements of which a violation does not result in, or cause, environmental damage. (4) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that no reimbursement is required by this act for a specified reason. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 4554.5 of the Public Resources Code is amended to read: 4554.5. (a) Notwithstanding Section 11343.4 of the Government Code, except as specified in subdivision (b), rules and regulations adopted or revised pursuant to this chapter shall become effective on either the next January 1 or July 1 that is not less than 30 days from the date of approval of those rules or regulations by the Office of Administrative Law. Notwithstanding Section 4583, regulations that become effective on July 1 pursuant to this subdivision shall apply only to timber operations conducted pursuant to timber harvesting plans that are approved after the operative date of those regulations. (b) Notwithstanding subdivision (a), if the board adopts emergency regulations pursuant to Section 4555, and subsequently adopts those emergency regulations as nonemergency rules or regulations pursuant to this chapter, the rules or regulations shall become effective 30 days from the date of approval of the rules or regulations by the Office of Administrative Law. (c) This section shall remain in effect only until January 1, 2001, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2001, deletes or extends that date. SEC. 1.5. Section 4554.5 is added to the Public Resources Code, to read: 4554.5. (a) Notwithstanding Section 11343.4 of the Government Code, except as specified in subdivision (b), rules and regulations adopted or revised pursuant to this chapter shall become effective on the next January 1 that is not less than 30 days from the date of approval of those rules or regulations by the Office of Administrative Law. (b) Notwithstanding subdivision (a), if the board adopts emergency regulations pursuant to Section 4555, and subsequently adopts those emergency regulations as nonemergency rules or regulations pursuant to this chapter, the rules or regulations shall become effective 30 days from the date of approval of the rules or regulations by the Office of Administrative Law. (c) This section shall become operative on January 1, 2001. SEC. 2. Section 4601.1 is added to the Public Resources Code, to read: 4601.1. (a) (1) In addition to any other penalty, any person who intentionally, knowingly, or negligently violates this chapter or a rule or regulation adopted by the board pursuant to this chapter is subject to a civil penalty imposed by a court in an amount not to exceed ten thousand dollars ($10,000) for each violation. For purposes of this section, damage that occurs over multiple days that results from a single action shall not be considered a continuing violation. For purposes of this section, each specific act that results in a violation of this chapter or a rule or regulation adopted pursuant to this chapter, including an act that is repeated on separate days, shall be considered a separate violation. (2) The Attorney General or District Attorney, upon request of the director, shall, as part of a misdemeanor action brought pursuant to Section 4601, petition the superior court to impose, assess, and recover a civil penalty pursuant to this subdivision. In determining the appropriate amount, the court shall consider all relevant circumstances, including, but not limited to, persistence, circumstances, extent and gravity of the violation, the length of the time over which the violation occurred, whether any substantial damage caused by the violation is susceptible to corrective action, whether the violation was willful or caused by negligence, and, with respect to the violator, the ability of the violator to pay any fines or penalties, the effect on the ability to continue in business, the corrective action, if any, taken by the violator, whether the violator has any prior history of violations, the degree of culpability, economic savings, if any, resulting from the violation, and such other matters as justice may require. (b) A civil penalty may also be administratively imposed by the department in accordance with Section 4601.2 on any person who intentionally, knowingly, or negligently violates this chapter or a rule or regulation adopted by the board pursuant to this chapter in an amount not to exceed ten thousand dollars ($10,000) for each violation of a separate provision. For purposes of this section, damage that occurs over multiple days that results from a single action shall not be considered a continuing violation. For purposes of this section, each specific act that results in a violation of this chapter or a rule or regulation adopted pursuant to this chapter, including an act that is repeated on separate days, shall be considered a separate violation. (c) No person is subject to both a civil penalty imposed by the superior court under subdivision (a) and a civil penalty administratively imposed under subdivision (b) for the same act or failure to act. (d) Any money recovered by the department pursuant to this section shall be deposited in the General Fund. SEC. 3. Section 4601.2 is added to the Public Resources Code, to read: 4601.2. (a) The director may issue a complaint and proposed order to any person on whom an administrative penalty may be imposed pursuant to subdivision (b) of Section 4601.1. The complaint and order shall allege the act or failure to act that constitutes a violation, include a citation to the provisions authorizing the civil penalty to be imposed, and include the proposed civil penalty. (b) In determining the amount of any administrative civil penalty, the department shall consider all relevant circumstances, including, but not limited to, the extent of harm caused by the violation, the nature, persistence, circumstances, extent and gravity of the violation, the length of time over which the violation occurred, whether any substantial damage caused by the violation is susceptible to corrective action, whether the violation was willful or caused by negligence, and, with respect to the violator, the ability of the violator to pay any fines or penalties, the effect on ability to continue in business, the corrective action, if any, taken by the violator, whether the violator has any prior history of violations, the degree of culpability, economic savings, if any, resulting from the violation, and such other matters as justice may require. (c) The complaint shall be served by personal notice or certified mail, and shall inform the party so served that, upon the request of the party made within 10 days of such service, a hearing shall be conducted before the board or an administrative law judge within 180 days from the date that the party is served. The chairperson of the board may delegate the conduct of the hearing to a committee of the board, which shall be composed of at least three members of the board, or elect to utilize an administrative law judge assigned in accordance with Section 11370.3 of the Government Code. If the chairperson delegates the matter to a committee of the board, a majority of the committee members shall not have a financial interest in the forest products or range industry. The committee may exercise any power the board may exercise. (d) The party charged with a violation may waive a right to a hearing, in which case the board shall not conduct a hearing, and the order of the director shall become final. (e) After a hearing, the board or an administrative law judge may adopt, with or without revision, the proposed order of the director. (f) An order setting an administrative civil penalty shall become effective and final upon its adoption pursuant to subdivision (e), and any payment shall be made within the time period provided by subdivision (b) of Section 4601.3. Copies of the order shall be served by personal service or by registered mail upon the party served with the complaint and upon other persons who appeared at the hearing and requested a copy. SEC. 4. Section 4601.3 is added to the Public Resources Code, to read: 4601.3. (a) Any party who is aggrieved by a final order issued by the board or an administrative law judge under Section 4601.2 may obtain review of the order in the superior court in the county in which the violation occurred by filing a petition for a writ of mandate with the court within 30 days from the date of service of the order on the party. If the aggrieved party does not petition for a writ of mandate within that 30-day period, the order of the board or an administrative law judge is not thereafter subject to review by any court. (b) After the time for judicial review has expired, or where the party has not requested a review of the order, the administrative penalty shall be due and payable to the department within 20 days. The department may apply to the clerk of the appropriate court in the county in which the civil penalty was imposed for a judgment to collect the penalty. The application, which shall include a certified copy of the action by the board or the administrative law judge, constitutes a sufficient showing to warrant issuance of the judgment to collect the penalty. The court clerk shall enter the judgment in conformity with the application. Any judgment so entered by the court clerk shall have the same force and effect as, and is subject to the laws relating to, a judgment in a civil action, and may be enforced in the same manner as any other judgment of the court in which it is entered. SEC. 5. Section 4601.4 is added to the Public Resources Code, to read: 4601.4. (a) The violation of any rule or regulation adopted by the board pursuant to this chapter prescribing any procedural requirement that does not result in, or cause, any environmental damage, and is not a violation of Section 4571 or 4581, is an infraction punishable pursuant to Section 4601.5. (b) The board shall designate those rules and regulations by section number that prescribe procedural requirements, the violation of which does not result in, or cause, environmental damage. SEC. 6. Section 4601.5 is added to the Public Resources Code, to read: 4601.5. (a) Any person who violates a rule or regulation of the board, the violation of which is an infraction as described in Section 4601.4, shall, upon conviction of the infraction, pay a fine in accordance with the following schedule: (1) A fine of one hundred dollars ($100) shall be imposed for the first conviction of an infraction. (2) A fine of two hundred fifty dollars ($250) shall be imposed for a second or subsequent conviction for the same violation within a three-year period. (b) The board may provide, by regulation, that certain violations of a rule or regulation that would constitute an infraction, if prosecuted, are correctable and not subject to prosecution, if the violation is corrected within 10 working days from the date of the violation. SEC. 7. Section 4612 of the Public Resources Code is amended to read: 4612. Notwithstanding Section 7550.5 of the Government Code, the director shall report to the board and the Legislature by January 1 of each year on the enforcement of, and the amount of penalties and fines imposed and collected pursuant to, this article, including, but not limited to, those penalties and fines imposed and collected pursuant to Sections 4601, 4601.1, and 4601.5. The report shall specifically identify the location and ownership of all properties where persons were cited for violations requiring corrective action by the department pursuant to Section 4607, the nature and cost of the corrective actions, and whether all related expenses incurred by the state have been reimbursed by the responsible party. SEC. 8. No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because a local agency or school district has the authority to levy service charges, fees, or assessments sufficient to pay for the program or level of service mandated by this act, within the meaning of Section 17556 of the Government Code.