BILL NUMBER: SB 1205 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 18, 2006
AMENDED IN SENATE MARCH 30, 2006
INTRODUCED BY Senator Escutia
JANUARY 25, 2006
An act to amend Sections 39674, 42400, 42400.1, 42400.2,
42400.3.5, 42400.7, 42401, 42402, 42402.1, 42402.2, and 42402.4 of,
to add Sections 39604.3 and 42409.5 to, and to repeal Section 42400.4
of the Health and Safety Code, relating to air pollution.
LEGISLATIVE COUNSEL'S DIGEST
SB 1205, as amended, 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. Existing law defines a
Title V source as a stationary source required by federal law to be
included in an operating permit program established pursuant to Title
V of the federal Clean Air Act.
This bill would create the Children's Breathing Rights Act, which
would increase the maximum penalties for specified violations of air
pollution laws from nonvehicular sources to $10,000, and to $50,000
in the case of Title V sources, 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, as defined. The bill would require that at least 10% of all
penalties and settlements collected by the state board and the air
districts from violators of specified laws regulating air pollution
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 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) Because air quality management districts and air pollution
control districts settle most violations in administrative hearings,
records of violations are not always kept at the local district level
and the districts thus have incomplete compliance histories.
Moreover, the state board is currently statutorily required to post,
on its Internet Web site, only summary information every two years.
Publicly accessible information regarding air pollution is therefore
inadequate.
(5) 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, as
can the right to environmental justice provided in Section 65040.12
of the Government Code, that is, the fair treatment of people of all
races, cultures, and income with respect to the enforcement of
environmental laws, regulations, and policies. If we improve the
enforcement of our air quality laws, we will avoid future economic
and social costs of air pollution.
(b) It is the intent of the Legislature to increase penalties for
serious and chronic violators of air pollution
laws and to use enhanced penalties to improve air pollution
enforcement activities, to create a statewide database that would
provide transparency regarding violations, including serious
and chronic violations, to help fund local children's
health initiatives, and to help fund asthma prevention activities in
schools and local communities.
SEC. 3. Section 39604.3 is added to the Health and Safety Code, to
read:
39604.3. (a) Notwithstanding Section 39604, the state board shall
post on its Internet Web site, at a minimum by January 1 of each
year, information on air quality violations in each district that
have occurred since the last annual report.
(b) The data shall include, but not be limited to, all of the
following:
(1) The district where the violation occurred.
(2) The name of the source, owner, or operator against whom or
which a penalty was assessed.
(3) The section of law or regulation found to have been violated.
(4) The number of days the violation occurred.
(5) The total dollar amount of the civil penalty assessed.
(6) The amount of any fine and the length of any imprisonment
imposed as a criminal penalty.
(7) Whether any air district hearing board granted the violating
facility a variance, the duration of any variance, and whether final
compliance has been achieved.
(8) The issuance of orders for abatement, hearing board findings,
settlement agreements, consent decrees, and consent agreements.
SEC. 4. Section 39674 of the Health and Safety Code is amended to
read:
39674. (a) Except as otherwise provided in subdivision (b) or,
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.
(b) Any person who violates any rule or requirement, 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 federal Clean Air
Act (42 U.S.C. Section 7412(1) 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 at a Title V source is
strictly liable for a civil penalty not to exceed fifty thousand
dollars ($50,000) for each day in which the violation occurs.
(c) Where a civil penalty in excess of one thousand dollars
($1,000) for each day of violation is sought, there is no liability
under subdivision (a) if the person accused of the violation alleges
by affirmative defense and establishes that the violation is caused
by an act that was not the result of intentional or negligent
conduct. In a district in which a Title V permit program has been
fully approved, this subdivision shall not apply to a violation of
federally enforceable requirements that occurs at a Title V source.
SEC. 5. Section 42400 of the Health and Safety Code is amended to
read:
42400. (a) (1) Except as otherwise provided in paragraph (2), or
Section 42400.1, 42400.2, 42400.3, or 42400.3.5, 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 ten thousand
dollars ($10,000) or imprisonment in the county jail for not more
than six months, or both.
(2) Notwithstanding paragraph (1) and except where a greater
penalty is authorized by law, 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), Part 2 (commencing with
Section 39500), Part 3 (commencing with Section 40000), or Part 4
(commencing with Section 41500) at a Title V source is guilty of a
misdemeanor and is subject to a fine of not more than fifty thousand
dollars ($50,000) or imprisonment in the county jail for not more
than one year, 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) Except as provided in paragraph (2) of subdivision (a), 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 and 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 fifty
thousand dollars ($50,000) 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. 6. Section 42400.1 of the Health and Safety Code is amended
to read:
42400.1. (a) Except as otherwise provided in paragraph (2) of
subdivision (a) of Section 42400, any person who negligently emits an
air contaminant in violation of this part or any rule, regulation,
permit, or order of the state board or of a district pertaining to
emission regulations or limitations is guilty of a misdemeanor and is
punishable by a fine of not more than twenty-five thousand dollars
($25,000), or imprisonment in the county jail for not more than nine
months, or both.
(b) Any person who negligently emits an air contaminant in
violation of Section 41700 that causes great bodily injury, as
defined by Section 12022.7 of the Penal Code, to, or death of, any
person, is guilty of a misdemeanor and is punishable by a fine of not
more than one hundred thousand dollars ($100,000), or imprisonment
in the county jail for not more than one year, or both.
(c) Each day during any portion of which a violation occurs is a
separate offense.
SEC. 7. Section 42400.2 of the Health and Safety Code is amended
to read:
42400.2. (a) Except as otherwise provided in paragraph (2) of
subdivision (a) of Section 42400, any person who emits an air
contaminant in violation of any provision of this part, or any order,
rule, regulation, or permit of the state board or of a district
pertaining to emission regulations or limitations, and who knew of
the emission and failed to take corrective action within a reasonable
period of time under the circumstances, is guilty of a misdemeanor
and is subject to a fine of not more than forty thousand dollars
($40,000), or imprisonment in the county jail for not more than one
year, or both.
(b) For purposes of this section, "corrective action" means the
termination of the emission violation or the grant of a variance from
the applicable order, rule, regulation, or permit pursuant to
Article 2 (commencing with Section 42350). If a district regulation
regarding process upsets or equipment breakdowns would allow
continued operation of equipment which is emitting air contaminants
in excess of allowable limits, compliance with that regulation is
deemed to be corrective action.
(c) Any person who owns or operates any source of air contaminants
in violation of Section 41700 that causes great bodily injury, as
defined by Section 12022.7 of the Penal Code, to, or death of, any
person, and who knew of the emission and failed to take corrective
action within a reasonable period of time under the circumstances, is
guilty of a misdemeanor and is subject to a fine of not more than
two hundred fifty thousand dollars ($250,000), or imprisonment in the
county jail for not more than one year, or both.
(d) Each day during any portion of which a violation occurs
constitutes a separate offense.
SEC. 8. Section 42400.3.5 of the Health and Safety Code is amended
to read:
42400.3.5. (a) Except as otherwise provided in paragraph (2) of
subdivision (a) of Section 42400, any person who knowingly violates
any rule, regulation, permit, order, fee requirement, or filing
requirement of the state board or of a district, including a district
hearing board, that is adopted for the control of toxic air
contaminants pursuant to Part 1 (commencing with Section 39000) to
Part 4 (commencing with Section 41500), inclusive, and for which
delegation or approval of implementation and enforcement authority
has been obtained pursuant to subdivision (l) of Section 112 of the
federal Clean Air Act (42 U.S.C. Sec. 7412(l)), or the regulations
adopted pursuant thereto, is guilty of a misdemeanor and is subject
to a fine of not more than ten thousand dollars ($10,000) or
imprisonment in the county jail for not more than six months, or
both.
(b) Except as otherwise provided in paragraph (2) of subdivision
(a) of Section 42400, any person who knowingly makes any false
material statement, representation, or certification in any form or
in any notice or report required by a rule or regulation adopted or
permit issued for the control of toxic air contaminants pursuant to
Part 1 (commencing with Section 39000) to Part 4 (commencing with
Section 41500), inclusive, and 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, or who
knowingly renders inaccurate any monitoring device required by that
toxic air contaminant rule, regulation, or permit is subject to a
fine of not more than thirty-five thousand dollars ($35,000) or
imprisonment in the county jail for not more than nine months, or
both.
(c) Except as otherwise provided in paragraph (2) of subdivision
(a) of Section 42400, any person who, knowingly and with intent to
deceive, falsifies any document required to be kept pursuant to any
provision of this part, or any rule, regulation, permit, notice to
comply, or order of the state board or of a district, is punishable
as provided in subdivision (b).
SEC. 9. Section 42400.4 of the Health and Safety Code is repealed.
SEC. 10. Section 42400.7 of the Health and Safety Code is amended
to read:
42400.7. (a) The recovery of civil penalties pursuant to Section
39674, 42401, 42402, 42402.1, 42402.2, or 42402.3 precludes
prosecution under Section 42400, 42400.1, 42400.2, 42400.3,
42400.3.5, or 42400.4 for the same offense. When a district refers a
violation to a prosecuting agency, the filing of a criminal complaint
is grounds requiring the dismissal of any civil action brought
pursuant to this article for the same offense.
(b) If the pending civil action described in subdivision (a)
includes a request for injunctive relief, that portion of the civil
action shall not be dismissed upon the filing of a criminal complaint
for the same offense.
SEC. 11. Section 42401 of the Health and Safety Code is amended to
read:
42401. Except as otherwise provided in paragraph (2) of
subdivision (a) of Section 42400 subdivision (b) of
Section 42402 , any person who intentionally or negligently
violates any order of abatement issued by a district pursuant to
Section 42450, by a hearing board pursuant to Section 42451, or by
the state board pursuant to Section 41505, is liable for a civil
penalty of not more than twenty-five thousand dollars ($25,000) for
each day in which the violation occurs.
SEC. 12. 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 ten thousand dollars
($10,000).
(b) Notwithstanding subdivision (a) and except where a greater
penalty is authorized by law, 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), Part 2 (commencing with Section 39500), Part 3
(commencing with Section 40000), or Part 4 (commencing with Section
41500) at a Title V source is strictly liable for a civil penalty in
an amount not more than fifty thousand dollars ($50,000).
(c) (1) Except as specified in paragraphs (2) and (3), 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
subdivision (a) 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.
(2) This subdivision does 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.
(3) This subdivision 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.
(d) 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 fifty thousand dollars ($50,000).
(e) Each day during any portion of which a violation occurs is a
separate offense.
SEC. 13. Section 42402.1 of the Health and Safety Code is amended
to read:
42402.1. (a) Except as otherwise provided in subdivision (b) of
Section 42402, any person who negligently emits an air contaminant in
violation of this part or any rule, regulation, permit, or order of
the state board or of a district, including a district hearing board,
pertaining to emission regulations or limitations is liable for a
civil penalty of not more than twenty-five thousand dollars
($25,000).
(b) Any person who negligently emits an air contaminant in
violation of Section 41700 that causes great bodily injury, as
defined by Section 12022.7 of the Penal Code, to any person or that
causes the death of any person, is liable for a civil penalty of not
more than one hundred thousand dollars ($100,000).
(c) Each day during any portion of which a violation occurs is a
separate offense.
SEC. 14. Section 42402.2 of the Health and Safety Code is amended
to read:
42402.2. (a) (1) Except as otherwise provided in subdivision (b)
of Section 42402, any person who emits an air contaminant in
violation of any provision of this part, or any order, rule,
regulation, or permit of the state board or of a district, including
a district hearing board, pertaining to emission regulations or
limitations, and who knew of the emission and failed to take
corrective action, as defined in subdivision (b) of Section 42400.2,
within a reasonable period of time under the circumstances, is liable
for a civil penalty of not more than forty thousand dollars
($40,000).
(b) Any person who owns or operates any source of air contaminants
in violation of Section 41700 that causes great bodily injury, as
defined by Section 12022.7 of the Penal Code, to any person or that
causes the death of any person, and who knew of the emission and
failed to take corrective action, as defined in subdivision (b) of
Section 42400.2, within a reasonable period of time under the
circumstances, is liable for a civil penalty not to exceed two
hundred fifty thousand dollars ($250,000).
(c) Each day during any portion of which a violation occurs is a
separate offense.
SEC. 15. Section 42402.4 of the Health and Safety Code is amended
to read:
42402.4. Except as otherwise provided in subdivision (b) of
Section 42402, any person who knowingly and with intent to deceive,
falsifies any document required to be kept pursuant to any provision
of this part, or any rule, regulation, permit, or order of the state
board or of a district, including a district hearing board, is liable
for a civil penalty of not more than thirty-five thousand dollars
($35,000).
SEC. 16. 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) For the purposes of this section, "serious and
chronic violator" includes, but is not necessarily limited
to, any person who does any of the following:
(1) Purposely or knowingly disconnects or disables any monitoring
device or method required by an operating permit.
(2) Purposely or knowingly makes any false material statement,
representation, or certification in any form, notice, statement, or
report required in connection with a permit.
(3) Commits any one or more of the following high priority
violations, as that term is used in relation to the federal Clean Air
Act (42 U.S.C. Sec. 7401, et seq.):
(A) Fails to obtain a prevention of significant deterioration
permit.
(B) Violates an air toxic requirement that either results in
excessive emissions or violates operating parameter restrictions.
(C) Violates an emissions limit.
(D) Violates any substantive term of an administrative or judicial
order.
(E) Commits substantial violations of a source's Title V
obligations.
(F) Fails to submit a Title V permit application within 60 days of
the deadline.
(G) Commits testing, monitoring, reporting, or record keeping
violations that substantially interfere with enforcement or a
determination of a facility's compliance requirements.
(H) Violates an allowable emission limit detected during a source
test.
(I) Commits substantial violations of the requirements of
subdivision (r) of Section 112 of the federal Clean Air Act (42
U.S.C. Sec. 7412(r)).
(3) Commits one or more high priority violations pursuant to the
federal Clean Air Act (42 U.S.C. Sec. 7401 et seq.). For purposes of
this paragraph, "high priority violation" means an act that is a high
priority violation under the high priority violation policy of the
United States Environmental Protection Agency, as set forth in "THE
TIMELY AND APPROPRIATE (T&A) ENFORCEMENT RESPONSE TO HIGH PRIORITY
VIOLATIONS (HPVs)" issued in December of 1998, and the EPA Office of
Enforcement and Compliance Assurance "WORKBOOK: The Timely and
Appropriate (T&A) Enforcement Response to High Priority Violations
(HPVs)," issued June 23, 1999.
(c) At least 10 percent of all penalties and settlements collected
by the state board and the air districts from violators of any
provision of this division 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 all of the following purposes:
(1) Twenty-five percent shall be allocated to the state board
or district where the penalty was assessed for enhanced
enforcement activities in the district within close proximity to
where those violations occurred, including monitoring and reporting
the development of pollution control technology, providing assistance
to serious and chronic air polluters, and
developing and maintaining on the state board's Internet Web site a
searchable database containing, at a minimum, the information
specified in Section 39604.3.
(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 appropriate
local, city, or county agencies to ensure that the most egregious
violators of this division are prosecuted for their violations.
(d) 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. 17.
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.