BILL NUMBER: SB 1205 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 26, 2006
AMENDED IN SENATE APRIL 18, 2006
AMENDED IN SENATE MARCH 30, 2006
INTRODUCED BY Senator Escutia
( Coauthors: Assembly Members
Goldberg, Laird, Oropeza, and
Pavley )
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 42402.4, and 42403 of, to add Sections
39604.3 and 42409.5 , 42409.5, and 42415
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 enact 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 violator , as defined,
of specified 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 pursuant to violations
of specified air pollution 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 relating to children's
health .
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
(4) 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 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 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 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. the same
information on air quality violations that the districts provide to
the United States Environmental Protection Agency. To protect
confidentiality, the state board may require a password for certain
areas of this Internet Web site.
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
federal Clean Air Act (42 U.S.C. Section
Sec. 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 ))
( 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 otherwise provided in paragraph (2) of subdivision
(a), any person who owns or operates any source of air contaminants
in violation of Section 41700 that diminishes air quality and causes
a substantial risk of actual injury, whether the risk of injury is
immediate or in the future, is guilty of a misdemeanor and is subject
to 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.
(c)
(d) 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 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)
(e) 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)
(f) 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 federal 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 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) Except as provided in subdivision (b), any person who owns or
operates any source of air contaminants in violation of Section 41700
that diminishes air quality and causes a substantial risk of actual
injury, whether the risk of injury is immediate or in the future, is
liable for a civil penalty of not more than twenty-five thousand
dollars ($25,000).
(d)
(e) 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)
(f) 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 42403 of the Health
and Safety Code is amended to read:
42403. (a) The civil penalties prescribed in Sections 39674,
42401, 42402, 42402.1, 42402.2, and 42402.3 ,
and 42409.5 shall be assessed and recovered in a civil action
brought in the name of the people of the State of California by the
Attorney General, by any district attorney, or by the attorney for
any district in which the violation occurs in any court of competent
jurisdiction.
(b) In determining the amount assessed, the court, or in reaching
any settlement, the district, shall take into consideration all
relevant circumstances, including, but not limited to, the following:
(1) The extent of harm caused by the violation.
(2) The nature and persistence of the violation.
(3) The length of time over which the violation occurs.
(4) The frequency of past violations.
(5) The record of maintenance.
(6) The unproven or innovative nature of the control equipment.
(7) Any action taken by the defendant, including the nature,
extent, and time of response of the cleanup and construction
undertaken, to mitigate the violation.
(8) The financial burden to the defendant.
SEC. 16. SEC. 17. Section 42409.5 is
added to the Health and Safety Code, to read:
42409.5. (a) On and after June 1, 2007, any serious 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, subject to consideration of the criteria set forth
in subdivision (b) of Section 42403, in addition to any other
penalty prescribed by this article.
(b) For the purposes of this section, "serious 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 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.
SEC. 18. Section 42415 is added to the
Health and Safety Code , to read:
42415. At least 10 percent of all penalties and
settlements collected by the districts pursuant to violations of this
division, after the prosecuting parties have recovered their
reasonable attorney fees and other costs, 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 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 No. 437 of the 2005-06 Regular Session.
(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 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. SEC. 19.
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.
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