BILL NUMBER: SB 1205 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JUNE 20, 2006
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, Koretz, 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, 42402.4, and
42403 of, to add Sections 39604.3, 42409.5, and 42415
42402.6 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 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.
The bill would require that at least 10% of all penalties
and settlements collected by the districts pursuant to violations of
specified air pollution laws 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. The bill would require the state board to
post on its Internet Web site information on air quality violations,
as specified. The bill would require the districts to report to the
state board enforcement data relating to air quality violations, as
specified. The bill would authorize districts to direct a portion of
settlement funds to a program of financial assistance
established in each district, known as the Children's
Breathing Rights Fund. The bill would specify uses for this money.
Because this bill would add new crimes
impose new duties on local air di stricts, 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.
(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, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
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) 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 asthma care management and asthma
prevention activities, and other programs or activities addressing
health problems related to air pollution in schools and local
communities.
SEC. 3. Section 39604.3 is added to the Health and Safety Code, to
read:
39604.3. (a) (1)
Notwithstanding Section 39604, the state board shall post on its
Internet Web site, at a minimum by January 1 of each year, 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.
(2) The state board shall also provide links to all district
Internet Web sites for information on other types of violations.
(b) To enhance data compatibility with other state environmental
agencies, each district shall submit to the state board the
information described in subdivision (a), but in a format containing
all of the following:
(1) The name and address of the facility and the owner or operator
of the facility.
(2) The date the violation began and the number of days the
violation occurred.
(3) The method of the discovery of the violation.
(4) The date the notice of violation was issued.
(5) The date for initiating legal action and the civil and
criminal penalties imposed or settlements agreed upon.
(6) The state or federal law, regulation, or district rule
violation by section or code number and a brief description.
(7) The date the facility returned to compliance and paid the
penalty.
(c) To ensure that the state is aware of the amount of settlement
moneys being contributed to the districts' Children's Breathing
Rights Funds, and the amount of money subsequently awarded to
particular organizations and entities pursuant to Section 42402.6,
the districts shall report all of the following data to the state
board, at the same time that they report the data required by
subdivision (b):
(1) The name and address of the entity making the settlement.
(2) The name and address of the community or county clinic,
school, organization, asthma coalition, or other entity receiving the
settlement moneys.
(3) The amount of money and date of distribution.
(4) How the money is to be spent.
SEC. 4. Section 39674 of the Health and Safety Code is amended to
read:
39674. (a) Except as otherwise provided in subdivision (b), 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. 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) of Section 112 of the federal Clean Air
Act 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) five thousand dollars ($5,000)
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.
(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.
(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.
(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 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 or 42400.3.5 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)
five thousand dollars ($5,000) 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) Any person who owns or operates any source of air contaminants
in violation of Section 41700 is liable for a civil penalty of not
more than fifteen thousand dollars ($15,000). Where a violation of
Section 41700 affects a school, hospital, or licensed care facility
for children or the elderly, each person, entity, or property
affected by the discharge in violation of Section 41700 is a separate
offense. This subdivision shall not limit the imposition of any
penalty pursuant to any other provision of law.
(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).
(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 42402.6 is added to the
Health and Safety Code , to read:
42402.6. (a) If a district enters into a settlement agreement,
part of that agreement may include directing a portion of the
settlement funds to a program of financial assistance established in
each district, known as the Children's Breathing Rights Fund.
(b) Moneys in the districts' Children's Breathing Rights Funds
shall be allocated and awarded annually to community and county
clinics, schools, organizations, asthma coalitions, and other
entities engaged in or promoting asthma care management, asthma
prevention activities, and lung health, and other programs and
activities addressing health problems related to air pollution in the
district. Asthma care management and prevention activities may
include, but are not be limited to, the provision of education and
medication to children with asthma and their families, training of
asthma care providers, and training of community health workers for
in-home visits.
(c) Each district shall create and utilize an advisory committee,
comprised of at least five persons with knowledge of asthma care
management or prevention and other health problems related to air
pollution to determine how moneys in the fund are to be allocated and
awarded. Persons who serve on the committee shall receive no
compensation for their service.
(d) No materials or activities produced or funded with settlement
moneys contributed to a district's Children's Breathing Rights Fund
shall display the logo or name of the entity making the settlement.
SEC. 16. SEC. 17. 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, 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. 17. SEC. 18. 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) ($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.
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.
SEC. 19. If the Commission on State Mandates determines that
this act contains costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division 4 of
Title 2 of the Government Code.