BILL ANALYSIS
SB 1205
Page 1
Date of Hearing: June 27, 2006
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
SB 1205 (Escutia) - As Amended: June 20, 2006
SENATE VOTE : 21-13
SUBJECT : CHILDREN'S BREATHING RIGHTS ACT
KEY ISSUE : SHOULD VARIOUS FINES FOR AIR POLLUTION BE INCREASED
IN ORDER TO DETER SUCH POLLUTION AND FUND ENTITIES PROMOTING,
AMONG OTHER THINGS, ASTHMA CARE MANAGEMENT?
SYNOPSIS
This bill increases fines for air pollution and creates the
Children's Breathing Rights Fund which allocates funds to
specified organizations promoting asthma care management, asthma
prevention activities, and lung health. According to the author
"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." Supporters, including the Children's Defense
Fund, Sierra Club-California, the Latino Issues Forum and the
Office of the California Attorney General, state that 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 state that this fact reinforces the need for such
increased penalties in order to help reduce such air pollution.
Opponents, including the Agricultural Council of California, the
Western States Petroleum Association and the California Chamber
of Commerce, argue that current penalties, including the
financial cost of multiple violations, are sufficient
deterrents.
SUMMARY : Enacts the Children's Breathing Rights Act, which
increases the penalty caps for air pollution and creates the
Children's Breathing Rights Fund to promote, among other things,
asthma prevention. Specifically, this bill :
1)Increases the fine to $10,000 for a person who, among other
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things, violates any rule, regulation, or permit regarding
airborne toxic control measures (ATCMs) and increases the fine
amount that triggers the availability of the affirmative
defense of unintentional, non-negligent behavior to $5,000.
2)Provides that any person who, among other things, violates any
rule, regulation, or permit at a Title V source is strictly
liable for a penalty of up to $50,000.
3)Increases the fine to $10,000 for violations of an Air
Resources Board (ARB) or air district rule, regulation or
permit.
4)Increases the fine to $50,000, and includes imprisonment, for
violations of an ARB or air district rule, regulation or
permit at a Title V source.
5)Establishes that owners and operators of a source of air
pollutants which causes a substantial risk of actual injury
are guilty of a misdemeanor and subject to a fine of up to
$25,000 and imprisonment up to nine months.
6)Increases fines, up to $50,000, for owners and operators of a
source of air pollutants which causes actual injury.
7)Increases the fine to $10,000 for a violation of any rule,
permit or order issued by an air district and increases the
fine amount that triggers the availability of the affirmative
defense of unintentional, non-negligent behavior to $5,000.
8)Increases the fine to $50,000 for a violation of any rule,
permit, or order issued by a district at a Title V source.
9)Imposes a civil penalty up to $100,000 per day, per violation
by "serious" violators, commencing on June 1, 2007.
10)Defines a "serious" violator to include persons who, among
other things, knowingly disconnects a monitoring device or who
commits certain high priority violations (HPV), as that term
is used in the federal Clean Air Act (CAA) and as articulated
in specified policies of the United States Environmental
Protection Agency (US EPA). Provides that the affirmative
defense of unintentional, non-negligent behavior is available
when more than $5,000 per day per violation is sought, unless
the violation concerns fully approved Title V sources, or
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toxic air contaminant programs with approved enforcement
authority under the CAA.
11)Requires civil penalties, for these air pollution violations,
to be assessed and recovered in a civil action brought by the
Attorney General, by any district attorney or by the attorney
for any air district in which the violation occurs. Requires
the court, in determining the amount assessed, or the air
district when a settlement is reached, to take into
consideration all relevant circumstances, as proscribed.
12)Allows an air district, if it enters into a settlement
agreement, to direct a portion of the settlement funds to the
Children's Breathing Rights Fund (Fund). Requires the monies
in the Fund to be allocated and awarded annually to specified
organizations promoting asthma care.
13)Requires the ARB to annually post specified information on
its web site, including the same information on air quality
violations that the air districts provide to the US EPA.
14)Requires local air districts to submit enforcement data in a
specified format to the ARB.
EXISTING LAW :
1)Prohibits a person from discharging from any source such
quantities of air contaminants which cause injury or annoyance
to any considerable number of persons or property. (Health
and Safety Code section 41700.)
2)Provides that violation of an ARB or air district rule,
regulation or permit is guilty of a misdemeanor, subject to a
fine up to $1,000 and imprisonment up to six months. Provides
that owners and operators of a source of air pollutants which
causes actual injury are guilty of a misdemeanor, subject to a
fine of up to $15,000 and imprisonment up to nine months.
(Health & Safety Code section 42400.)
3)Defines a Title V source of air pollution as a large
stationary source, among other things, emitting at least 100
tons of pollutants into the air, required by federal law to be
included in an operating permit program established pursuant
to Title V of the CAA. (42 U.S.C. 7401 et seq.)
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4)Provides that negligent emission of an air contaminant in
violation of an ARB or air pollution district rule,
regulation, permit or order is a misdemeanor, punishable by a
fine up to $25,000 and imprisonment up to nine months.
Provides that knowing emissions are misdemeanors, punishable
by a fine up to $40,000 and imprisonment up to one year.
Provides that Title V knowing violations are also
misdemeanors, punishable by a fine up to $10,000. (Health &
Safety Code sections 42400.1-42400.4.)
5)Provides that a violation of any rule, permit or order issued
by an air district results in strict liability for a civil
penalty of not more than $1,000 and provides that the
affirmative defense of unintentional, non-negligent behavior
is available when more than $1,000 per day per violation is
sought. (Health & Safety Code section 42402.)
6)Provides that intentional or negligent violation of an order
of abatement results in civil liability up to $25,000 per day
per violation. Provides that knowing violations of orders
trigger penalties up to $40,000 per day; knowing falsification
of documents results in a penalty up to $35,000. (Health &
Safety Code sections 42401, 42402.4.)
7)Provides that any person who owns or operates a source in
violation of any rule, permit or order issued by an air
district 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. (Health & Safety Code
section 42402 (c).)
8)Provides that a person who violates any rule, regulation or
permit regarding ATCMs is strictly liable for up to $1,000 per
day per violation. Penalties up to $10,000 are authorized for
violations of ATCMs enforced under the federal CAA. Provides
that 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. (Health &
Safety Code section 39674.)
9)Provides that proceeds from enforcement actions by air
pollution control officers go to the treasurer of the air
district where the violation occurred. (Health & Safety Code
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sections 42403, 42405.)
FISCAL EFFECT : As currently in print this bill is keyed
fiscal.
COMMENTS : This bill increases fines for air pollution and
creates the Children's Breathing Rights Fund (Fund) which
allocates funds, resulting from settlement agreements, to
specified organizations engaged in, among other things, asthma
prevention activities. According to the author, this bill
addresses the problem of current fines being a "minor
inconvenience" for polluters: "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." According to
the 100% Campaign, a collaborative of Children Now, Children's
Defense Fund and The Children's Partnership, 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, California Safe Schools add that "over 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 states that this bill addresses
these problems by increasing caps for serious violations and
creating the Fund.
The Clean Air Act . The Clean Air Act (CAA), enacted in 1970,
was created to provide a nationwide solution to the growing
problem of air pollution. California's implementation of CAA,
following US EPA's established standards, assigned creation of
standards to ARB. ARB is designated as the state agency with
the primary responsibility for the control of vehicular air
pollution, while local air pollution control districts are
designated with the primary responsibility for the control of
air pollution from stationary sources. California is divided
into 35 air quality districts.
Title V Violations . Title V violations relate to operating
permits required under CAA for specified stationary sources,
such as sources emitting more than 100 tons per year of a
criteria pollutant, affected sources under acid rain
requirements, and solid waste incinerators. For most Title V
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violations, the current penalty is $10,000 per day per
violation. As an additional penalty, affirmative defenses are
not allowed in Title V cases. Thus, even an unintentional,
non-negligent violation at a Title V source would result in
strict liability for that individual. Under strict liability,
these individuals would be liable upon a showing that they in
fact violated pollution regulations. This bill would provide
additional deterrence by uniformly increasing civil penalties
for Title V violations to $50,000 per day per violation.
Serious Violations . This bill creates and defines the category
of "serious." To qualify as a serious violator, a person must
either purposely or knowingly render inaccurate a monitoring
device required by an operating permit, purposely or knowingly
make a false material statement, representation or certification
in any form, notice, statement or report required by permit or
commit an enumerated high priority violation. These violators
would be subject to civil penalties of not more than $100,000
per day per violation in addition to any other applicable
penalties. According to the author, the purpose of this
category is to enforce air pollution control laws against
companies who put "profits over air pollution prevention."
Children's Breathing Rights Fund . This bill creates the
Children's Breathing Rights Fund, which allocates a portion of a
settlement agreement, between an air district and a violator, to
specified organizations and entities engaged in or promoting
asthma care management, asthma prevention activities or lung
health in the air district, as determined by an advisory
committee. This bill requires the advisory committee to be
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 monies in the fund are to be
allocated and awarded. Anyone who serves on the advisory
committee does not receive compensation for their service.
ARB Website . Under current law, the state ARB is required to
post information on air quality conditions, trends, standards
and actions. This bill would require the state ARB to post the
same information on air quality violations that the air
districts provide to the US EPA. Among the information
required: the pollution source name, regulation violated,
violation description and violation date. Aside from this code
violation information, this bill also requires each air district
to report information regarding any settlement money contributed
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to the Fund. In order to streamline this information, making it
more readily posted on the ARB website, this bill requires each
air district to send the information in a uniform manner. To
ensure confidentiality, where appropriate, this bill allows
certain data to be accessible only via the use of a password.
The author states that this required information will help to
gauge the effectiveness of this penalty scheme and the Fund.
Finally, the author argues that this streamlining mechanism is
necessary because current air district reporting is in disarray
and makes it difficult to promote data compatibility with other
state environmental agencies.
ARGUMENTS IN OPPOSITION . Opponents, including the California
Chamber of Commerce, the Agricultural Council of California and
the Western States Petroleum Association, state:
SB 1205 is based on the false premise that certain
businesses choose to violate existing air rules while
accepting fines as the cost of doing business. The bill is
another unjustified attempt to raise maximum penalties for
violations of permit requirements and air district rules.
The main purpose of the bill appears to be generation of
revenue? Statewide, air quality has consistently improved
over the past 20 plus years, which indicates that the
current emissions control program is working well.
Potential Conflict With SB 109 . This bill appears to
potentially be in conflict with SB 109 (Ortiz). SB 109, among
other things, provides that recovery for a civil penalty does
not preclude criminal prosecution, with respect to a Title V
violation. This bill entirely deletes this section and,
instead, provides that any person who, among other things,
violates any rule, regulation, or permit at a Title V source is
strictly liable for a penalty of up to $50,000. The Committee
may wish to discuss with the author how they propose to
reconcile with this apparent conflict.
REGISTERED SUPPORT / OPPOSITION :
Support
American Lung Association of California
Breathe California, Los Angeles County
Bus Riders Union
California District Attorneys Association
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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
Children's Partnership
Clean Power Campaign
Community Action to Fight Asthma
Environment California
Environmental Working Group
Foundation for Early Childhood Education
Girl Scouts Councils of California
Labor/Community Strategy Center
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 California 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
100% Campaign
Opposition
Agricultural Council of California
Alliance of Western Milk Producers
American Chemistry Council
American Forest and Paper Association
California Air Pollution Control Officer's Association
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
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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
Southern California Alliance of Publicly Owned Treatment Works
Western Growers
Western Plant Health Association
Western States Petroleum Association
Wine Institute
Analysis Prepared by : Manuel Valencia / JUD. / (916) 319-2334