BILL NUMBER: SB 1205 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Escutia
JANUARY 25, 2006
An act to amend Sections 39674, 42400, and 42402 of, and to add
Section 42407.5 to, the Health and Safety Code, relating to air
pollution.
LEGISLATIVE COUNSEL'S DIGEST
SB 1205, as introduced, Escutia Air pollution: Children's
Breathing Rights Act: penalties.
(1) Existing law vests local and regional authorities, defined as
the governing body of any city, county, or air pollution control
district or air quality management district with the primary
responsibility for control of air pollution from all sources other
than vehicular sources. Existing law establishes maximum criminal and
civil penalties for any person, as defined, for violations of air
pollution laws from nonvehicular sources.
This bill would create the Children's Breathing Rights Act which
would increase the civil penalties for specified violations of air
pollution laws from nonvehicular sources from $1,000 to $10,000. The
bill would eliminate certain affirmative defenses and civil liability
provisions relating to violations of air quality laws, as provided.
The bill would, on and after June 1, 2007, assess an additional civil
penalty of not more than $100,000 per day for each violation
committed by a serious and chronic violator of nonvehicular air
pollution laws. The bill would require the State Air Resources Board,
by March 1, 2007, to define, by regulation, the term "serious and
chronic violator." The bill would require that all moneys collected
from serious and chronic violators pursuant to those provisions be
deposited into the Children's Breathing Rights Fund, which would be
created by the bill, to be used, upon appropriation, for specified
purposes.
Because this bill would add new crimes by, among other things,
eliminating certain affirmative defenses to certain crimes, this bill
would create a state-mandated local program.
(2) 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.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. This act shall be known, and may be cited, as the
Children's Breathing Rights Act.
SEC. 2. (a) The Legislature finds and declares all of the
following:
(1) Breathing clean and healthy air is a right of all
Californians, especially our children, whose health suffers
disproportionately when our air is polluted.
(2) Reduced lung growth and function, new asthma cases,
respiratory complications for asthmatics, and increased school
absences from respiratory illnesses are just some of the consequences
our children face if we fail to protect that right.
(3) The most recent available state and federal data reveal that
more than 245 million pounds of industrial air pollution were emitted
near California schools in 1995. Statewide, more than 2.8 million
children were enrolled in schools located near reported air emissions
of carcinogens, reproductive toxins, heavy metals, nitrogen oxides,
sulfur dioxide, or particulate matter.
(4) If we improve the enforcement of our air quality laws and
ensure that penalties are not so low as to be a minor inconvenience
to a serious and chronic air polluter, our children's right to clean
and healthy air can be better protected.
(b) It is the intent of the Legislature to increase penalties for
serious and chronic violators of air pollution laws and to use those
enhanced penalties to improve air pollution enforcement activities,
to help fund local children's health initiatives, and to help fund
asthma prevention activities in schools and local communities.
SEC. 3. Section 39674 of the Health and Safety Code is amended to
read:
39674. (a) Except
as otherwise provided in subdivision (b), any Any
person who violates any rule or regulation, emission
limitation, or permit condition ,
order , fee requirement, filing requirement,
duty to allow or carry out inspection or monitoring activities, or
duty to allow entry for which delegation or approval of
implementation and enforcement authority has been obtained pursuant
to subdivision ( l ) of Section 112 of the Clean Air Act
(42 U.S.C. Section 7412( l )) or the regulations adopted
pursuant thereto, adopted pursuant to Section 39659 or Article
4 (commencing with Section 39665) or which is implemented and
enforced as authorized by subdivision (b) of Section 39658 is
strictly liable for a civil penalty not to exceed one
ten thousand dollars ($1,000)
($10,000) for each day in which the violation occurs.
(b) (1) Any person who violates any rule or regulation, emission
limitation, permit condition, order fee requirement, filing
requirement, duty to allow or carry out inspection or monitoring
activities, or duty to allow entry for which delegation or approval
of implementation and enforcement authority has been obtained
pursuant to subdivision ( l) of Section 112 of the Clean Air Act (42
U.S.C. Section 7412(l)) or the regulations adopted pursuant thereto,
adopted pursuant to Section 39659 or Article 4 (commencing with
Section 39665) or which is implemented and enforced as authorized by
subdivision (b) of Section 39658 is strictly liable for a civil
penalty not to exceed ten thousand dollars ($10,000) for each day in
which the violation occurs.
(2) Where a civil penalty in excess of one thousand dollars
($1,000) for each day of violation is sought, there is no liability
under paragraph (1) if the person accused of the violation alleges by
affirmative defense and establishes that the violation is caused by
an act which was not the result of intentional or negligent conduct.
In a district in which a Title V permit program has been fully
approved, this paragraph shall not apply to a violation of federally
enforceable requirements that occur at a Title V source.
(3) Paragraph (2) shall not apply to a violation of a toxic air
contaminant rule, regulation, permit, order, fee requirement, filing
requirement, duty to allow or carry out inspection or monitoring
activities, or duty to allow entry for which delegation or approval
of implementation and enforcement authority has been obtained
pursuant to subdivision (l) of Section 112 of the Clean Air Act (42
U.S.C. Sec. 7412(l)), or the regulations adopted pursuant thereto.
SEC. 4. Section 42400 of the Health and Safety Code is amended to
read:
42400. (a) Except as otherwise provided in Section 42400.1,
42400.2, 42400.3, 42400.3.5, or 42400.4, any person who violates this
part, or any rule, regulation, permit, or order of the state board
or of a district, including a district hearing board, adopted
pursuant to Part 1 (commencing with Section 39000) to Part 4
(commencing with Section 41500), inclusive, is guilty of a
misdemeanor and is subject to a fine of not more than one
ten thousand dollars ($1,000)
($10,000) or imprisonment in the county jail for not more
than six months, or both.
(b) If a violation under subdivision (a) with regard to the
failure to operate a vapor recovery system on a gasoline cargo tank
is directly caused by the actions of an employee under the
supervision of, or of any independent contractor working for, any
person subject to this part, the employee or independent contractor,
as the case may be, causing the violation is guilty of a misdemeanor
and is punishable as provided in subdivision (a). That liability
shall not extend to the person employing the employee or retaining
the independent contractor, unless that person is separately guilty
of an action that violates this part.
(c) Any person who owns or operates any source of air contaminants
in violation of Section 41700 that causes actual injury, as
defined in subdivision (d), to the health or safety of a
considerable number of persons or the public is guilty of a
misdemeanor and is subject to a fine of not more than fifteen
thousand dollars ($15,000) or imprisonment in the county jail for not
more than nine months, or both.
(d) As used in this section, "actual injury" means any
physical injury that, in the opinion of a licensed physician and
surgeon, requires medical treatment involving more than a physical
examination.
(e) Each day during any
portion of which a violation of subdivision (a) or (c) occurs is a
separate offense.
SEC. 5. Section 42402 of the Health and Safety Code is amended to
read:
42402. (a) Except as provided in Sections 42402.1, 42402.2,
42402.3, and 42402.4, any person who violates this part, any order
issued pursuant to Section 42316, or any rule, regulation, permit, or
order of a district, including a district hearing board, or of the
state board issued pursuant to Part 1 (commencing with Section 39000)
to Part 4 (commencing with Section 41500), inclusive, is strictly
liable for a civil penalty of not more than one
ten thousand dollars ($1,000)
($10,000) .
(b) (1) Any person
who violates any provision of this part, any order issued pursuant to
Section 42316, or any rule, regulation, permit or order of a
district, including a district hearing board, or of the state board
issued pursuant to Part 1 (commencing with Section 39000) to Part 4
(commencing with Section 41500), inclusive, is strictly liable for a
civil penalty of not more than ten thousand dollars ($10,000).
(2) (A) If a civil penalty in excess of one thousand dollars
($1,000) for each day in which a violation occurs is sought, there is
no liability under this subdivision if the person accused of the
violation alleges by affirmative defense and establishes that the
violation was caused by an act that was not the result of intentional
nor negligent conduct.
(B) Subparagraph (A) shall not apply to a violation of federally
enforceable requirements that occur at a Title V source in a district
in which a Title V permit program has been fully approved.
(C) Subparagraph (A) does not apply to a person who is determined
to have violated an annual facility emissions cap established
pursuant to a market based incentive program adopted by a district
pursuant to subdivision (b) of Section 39616.
(c) Any person who owns or
operates any source of air contaminants in violation of Section 41700
that causes actual injury, as defined in subdivision (d) of
Section 42400, to the health and safety of a considerable number of
persons or the public, is liable for a civil penalty of not
more than fifteen thousand dollars ($15,000).
(d)
(c) Each day during any portion of which a
violation occurs is a separate offense.
SEC. 6. Section 42409.5 is added to the Health and Safety Code, to
read:
42409.5. (a) On and after June 1, 2007, any serious and chronic
violator shall be liable for a civil penalty of not more than one
hundred thousand dollars ($100,000) per day for each violation
described by this article, in addition to any other penalty
prescribed by this article.
(b) On or before March 1, 2007, the state board shall adopt, by
regulation, a definition of the term "serious and chronic violator"
for the purposes of this section. In determining the definition of a
serious and chronic violator, the state board shall consider all of
the following:
(1) The magnitude of the violation.
(2) The scope of the violation.
(3) The severity of the violation.
(4) The degree to which a violation jeopardizes the environment or
human health, safety, or welfare.
(5) The degree to which a violation contributes to the failure to
accomplish goals or program objectives set by the state board.
(6) The degree to which a violation makes it difficult to
determine if the violator is in compliance with other air quality
laws, rules, or regulations.
(c) All moneys collected from any serious and chronic pursuant to
this section violator shall be deposited into the Children's
Breathing Rights Fund, which is hereby created in the State Treasury.
Moneys in the fund shall be available, upon appropriation by the
Legislature, for the following purposes:
(1) Twenty-five percent shall be allocated to the district where
the penalty was assessed for enhanced enforcement activities in the
district within close proximity to where those violations occurred,
including monitoring, the development of pollution control
technology, and providing assistance to serious and chronic air
polluters.
(2) Fifty percent shall be allocated to local children's health
initiatives in the district where the penalty was assessed to ensure
basic health coverage, including asthma services in schools and
communities. If there is no local children's health initiative in the
district where the penalty was assessed, the allocation shall be
made to the California Healthy Kids Insurance Program, established by
Senate Bill 437 of the 2005-2006 Regular Session of the Legislature.
(3) Twenty-five percent shall be allocated to the state board for
enforcement of this article, including monitoring, the development of
pollution control technology, providing assistance to serious and
chronic air polluters, and auditing enforcement activities by
districts.
(c) On or before January 1, 2008, and annually thereafter, the
state board shall submit a report to the Legislature summarizing the
enforcement of this article, including auditing by the state board of
enforcement activities by district.
SEC. 7.
No reimbursement is required by this act pursuant to Section 6 of
Article XIII B of the California Constitution because the only costs
that may be incurred by a local agency or school district will be
incurred because this act creates a new crime or infraction,
eliminates a crime or infraction, or changes the penalty for a crime
or infraction, within the meaning of Section 17556 of the Government
Code, or changes the definition of a crime within the meaning of
Section 6 of Article XIII B of the California Constitution.