BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 1205|
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THIRD READING
Bill No: SB 1205
Author: Escutia (D), et al
Amended: 5/26/06
Vote: 21
SENATE JUDICIARY COMMITTEE : 3-1, 4/4/06
AYES: Dunn, Escutia, Kuehl
NOES: Ackerman
NO VOTE RECORDED: Vacancy
SENATE ENV. QUALITY COMMITTEE : 5-1, 4/24/06
AYES: Simitian, Chesbro, Escutia, Kuehl, Lowenthal
NOES: Runner
NO VOTE RECORDED: Cox
SENATE APPROPRIATIONS COMMITTEE : 8-5, 5/25/06
AYES: Murray, Alarcon, Alquist, Escutia, Florez, Ortiz,
Romero, Torlakson
NOES: Aanestad, Ashburn, Battin, Dutton, Poochigian
SUBJECT : Air pollution: Childrens Breathing Rights Act:
penalties
SOURCE : Author
DIGEST : This bill enacts the Childrens Breathing Rights
Act and increases the penalty caps for specified
violations.
ANALYSIS :
CONTINUED
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Existing law:
1. Provides that violation of an Air Resources Board (ARB)
or air district rule, regulation or permit is guilty of
a misdemeanor, and subject to a fine up to $1,000,
imprisonment up to six months, or both. Owners and
operators of a source of air pollutants which cause
actual injury are guilty of a misdemeanor and subject to
a fine of up to $15,000, imprisonment up to nine months.
2. Provides that negligent emission of an air contaminant
in violation of a ARB or air pollution district rule,
regulation, permit or order is guilty of a misdemeanor,
punishable by a fine up to $25,000, imprisonment up to
nine months, or both. Knowing emissions are
misdemeanors, punishable by a fine up to $40,000,
imprisonment up to one year, or both. Title V knowing
violations are also misdemeanors and are punishable by a
fine up to $10,000.
3. Defines Title V violations as a stationary source
required by federal law to have an operating permit
pursuant to the federal Clean Air Act.
4. Provides that violation of any rule, permit or order
issued by a district results in strict liability for a
civil penalty of not more than $10,000.
5. Provides that intentional or negligent violation of an
order of abatement results in civil liability up to
$25,000 per day per violation. Knowing violations of
orders trigger penalties up to $40,000 per day; knowing
falsification of documents results in a penalty up to
$35,000.
6. Provides that any person who owns or operates a source
in violation that emits contaminants which causes actual
injury to the health and safety of the public is liable
for a civil penalty of not more than $15,000.
7. Provides that a person who violates any rule,
regulation, or permit regarding airborne toxic control
measures (ATCMs) is strictly liable for up to $1,000 per
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day per violation. Penalties up to $10,000 are
authorized for violations of ATCMs enforced under the
federal Clean Air Act (CAA). The affirmative defense of
unintentional, non-negligent behavior is available when
more than $1,000 per day per violation is sought, unless
the violation concerns fully approved Title V sources,
or toxic air contaminant programs with approved
enforcement authority under the CAA.
8. Provides that proceeds from enforcement actions by air
pollution control officers go the treasurer of the
district where the violation occurred.
This bill creates the Children's Breathing Rights Act,
which does the following:
1. Increases the maximum fine for non-Title V violations to
$10,000. Title V violations are increased to a $50,000
maximum, with imprisonment up to one year. Penalties
for owners and operators causing actual injury are
raised to a maximum of $50,000.
2. Increases the maximum fine for Title V violations to
$50,000, with imprisonment up to one year.
3. Increases the civil penalty for a violation causing
actual injury to public health and safety to a maximum
of $50,000.
4. Increases the penalties up to $10,000 per day per
violation for all non-Title V violations. Title V
source violations would be subject to a civil penalty up
to $50,000 per day per violation.
5. Provides that any person who owns or operates an 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 $25,000 or
imprisonment in the county jail for not more than nine
months or both.
6. Provides that any person who owns or operates any source
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of air contaminants 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 $25,000.
7. Imposes a civil penalty up to $100,000 per day per
violation by "serious" violators, commencing on June 1,
2007.
8. Provides that the civil penalties 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. 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:
A. The extent of harm caused by the violation.
B. The nature and persistence of the violation.
C. The length of time over which the violation
occurs.
D. The frequency of past violations.
E. The record of maintenance.
F. The unproven or innovative nature of the control
equipment.
G. Any action taken by the defendant, including the
nature, extent, and time of response of the cleanup
and construction undertaken, to mitigate the
violation.
H. The financial burden to the defendant.
9. Defines a "serious" violator to include persons who:
A. Purposely or knowingly disconnects or disables a
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monitoring device or method required by operating
permit.
B. Purposely or knowingly makes any false material
statement, representation, or certification with
respect to requirements that are a basis for a
permit.
C. Commits certain high priority violations (HPV), as
that term is used in the federal CAA and as
articulated in specified policies of the United
States Environmental Protection Agency.
10.Requires 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 Right 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 Health Kids Insurance
Program, established by SB 437 (Escutia) of the 2005-06
Regular Session.
11.Requires ARB to post specified information on its web
site by January 1, of each year, the same information on
air quality violations that the districts provide to the
United State Environmental Protection Agency.
12.Provides explanations for this act as part of
legislative findings.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
According to the Senate Appropriations Committee:
Fiscal Impact (in thousands)
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Major Provisions 2006-07 2007-08
2008-09 Fund
Penalty revenue shift $350 $700
$700Special*
Administrative costs $150
$400Special
* Children's Breathing Rights Fund
SUPPORT : (Verified 5/26/06)
American Lung Association of California
Breathe California, Los Angeles County
California District Attorneys Association
California Environmental Health & Justice Team of the
Women's Policy Institute
California Environmental Rights Alliance
California Medical Association
California Safe Schools
California Thoracic Society
Children Now
Children's Defense Fund
Children's Health Environmental Coalition
City of Los Angeles (if amended)
Clean Power Campaign
Community Action to Fight Asthma
Environment California
Environmental Working Group
Girl Scouts Councils of California
Latino Issues Forum
Literacy for Environmental Justice
Long Beach Alliance for Children with Asthma
Mexican American Opportunity Foundation
Natural Resources Defense Council
Office of the Attorney General
PHFE Management Solutions
Physicians for Social Responsibility, Los Angeles
PICO California
Planning and Conservation League
Pueblo Y Salud, Inc.
Sierra Club-California
St. Mark AME Church
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The Children's Partnership
The Foundation for Early Childhood Education
OPPOSITION : (Verified 5/26/06)
Agricultural Council of California
Alliance of Western Milk Producers
American Chemistry Council
American Forest and Paper Association
California Air Pollution Control Officer's Association
(unless amended)
California Association of Sanitation Agencies
California Bean Shippers Association
California Chamber of Commerce
California Citrus Mutual
California Cotton Growers Association
California Council for Environmental and Economic Balance
California Farm Bureau Federation
California Grain and Feed Association
California Grape and Tree Fruit League
California Independent Oil Marketers Association
California Independent Petroleum Association
California League of Food Processors
California Manufacturers and Technology Association
California Restaurant Association
California Seed Association
California Warehouse Association
Civil Justice Association of California
Consumer Specialty Products Association
Groceries Manufacturers Association
Industrial Environmental Association
Nisei Farmers League
Sacramento Metropolitan Air Quality Management District
(unless amended)
Southern California Alliance of Publicly Owned Treatment
Works
Western Growers
Western Plant Health Association
Western States Petroleum Association
Wine Institute
ARGUMENTS IN SUPPORT : According to the author's office,
this bill addresses the problem of current fines being a
"minor inconvenience" for polluters:
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Without increasing penalties for serious or chronic air
polluters, some of California's major air-polluting
industries that put profit over pollution prevention may
find it more cost-effective to violate environmental laws
and place competitors that comply with environmental laws
at an economic disadvantage.
The included findings and declarations state that air
pollution disproportionately impacts the health of young
children. More than 2.8 million California children are
enrolled in schools "near reported air emissions of
carcinogens, reproductive toxins, nitrogen oxides, sulfur
dioxide or particulate matter." Supporters add that
"[o]ver the course of the last ten years?asthma in youth
has increased by 60 percent and is the number one cause of
student absenteeism due to a chronic illness."
The author's office states that this bill addresses this
problem by increasing caps for serious violations, creating
the Children's Breathing Rights Fund, and by using a
percentage of fines and penalties received to fund
children's health initiatives and enhance enforcement
activities.
ARGUMENTS IN OPPOSITION : As noted in the Senate
Judiciary Committee analysis, the position of opponents and
proponents is largely as follows: Opponents argue that
current penalties are sufficient, especially considering
the implications of non-renewal of an operating permit.
Opponents also maintain that large businesses hold tens to
hundreds of permits that could be violated for a single
emission. Opponents contend that the financial cost of
multiple violations already carries sufficient deterrence
value for those companies.
RJG:mel 5/26/06 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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