BILL ANALYSIS
AB 2469
Page 1
Date of Hearing: April 12, 2010
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Wesley Chesbro, Chair
AB 2469 (Bill Berryhill) - As Introduced: February 19, 2010
SUBJECT : State Air Resources Board (ARB): dispute resolutions.
SUMMARY : Establishes a dispute resolution process for any
person who is, or will be, in violation of any rule, regulation
or order adopted by ARB.
EXISTING LAW :
1)Establishes ARB within the California Environmental Protection
Agency. ARB's primary duties are controlling motor vehicle
emissions, coordinating activities of air districts for the
purposes of the federal Clean Air Act, and implementing the
California Global Warming Solutions Act (AB 32).
2)Requires ARB to administer an Ombudsman's Office that serves
as a general resource to small businesses, large businesses,
trade associations, and individual community members regarding
air quality regulations.
3)Provides for the establishment of county air pollution control
districts, and requires that a county district be established
in every county, unless the entire county is included within
the Antelope Valley Air Quality Management District, the Bay
Area Air Quality Management District, the Mojave Desert Air
Quality Management District, the South Coast Air Quality
Management District (SCAQMD), the San Joaquin Valley Air
Quality Management District, if that district is created, a
regional district, or a unified district.
4)Subject to the powers of the ARB, requires air districts to
adopt and enforce rules and regulations to achieve and
maintain the state and federal ambient air quality standards
in all areas affected by non-vehicular emission sources under
their jurisdiction.
5)Authorizes air districts to establish a permit system that
requires, except as specified, that before any person builds,
erects, alters, replaces, operates, or uses any article,
machine, equipment, or other contrivance that may cause the
AB 2469
Page 2
issuance of air contaminants, the person obtain a permit from
the air pollution control officer of the district.
6)Requires each air district to appoint a five-member hearing
board, including a lawyer, an engineer, and a medical
professional, for the purpose of hearing applications for
variances from district rules. Districts are authorized to
collect fees from applicants to cover the costs of the hearing
board process.
THIS BILL :
1)Establishes a dispute resolution process where any person who
is, or will be, in violation of any rule, regulation or order
adopted by ARB, may apply for a dispute resolution order,
which may be granted by a single hearing officer, to provide
any relief deemed appropriate by the hearing officer.
2)Establishes detailed hearing procedures and conditions for
granting an order based on the SCAQMD's existing variance
process.
3)Authorizes the hearing officer to change rules adopted by ARB,
order rehearing of her/his decision if a petition is filed
within 10 days, and authorizes judicial appeal of a hearing
officer's order by filing a petition for a writ of mandate
within 30 days after the decision.
4)Requires the hearing officer to be an administrative law judge
from the Office of Administrative Hearings. Prohibits an
officer or employee of ARB from serving as a hearing officer.
5)Authorizes ARB, after conducting a hearing, to modify or
revoke a hearing officer's order under specified
circumstances.
FISCAL EFFECT : Unknown, but probably significant costs to ARB
and the Office of Administrative Hearings to conduct dispute
resolution hearings.
COMMENTS :
1)Purpose of the bill. According to the author:
Currently, the ARB executive officer and staff make
AB 2469
Page 3
significant enforcement decisions that are not subject to
review. In addition, in cases where the ARB would like to
extend a compliance deadline, there is no process to
formally and publicly adopt that extension. The only
appeal process available to a regulated party is to sue the
state. This requires significant resources and time that
are not reasonably available to the majority of regulated
parties. In addition, lawsuits frequently do not solve
problems?An administrative dispute resolution process will
provide a fair, efficient, and predictable process
available to all regulated parties and will reduce the
money and time spent defending lawsuits and in informal
negotiations. It will also increase the transparency of
the appeal process as all interested stakeholders can weigh
in during the hearing. The proposed dispute resolution
process is modeled after existing air pollution hearing
processes developed for disputes that could occur under
local air pollution district rules.
2)Existing resources for dispute resolution at ARB. Before a
regulation is adopted, ARB must follow the usual rulemaking
process, which offers all parties an equal opportunity to
comment on proposed regulations, participate in hearings and
workshops, and lobby the board itself. The ARB process is
then followed by review by the Office of Administrative Law
before a regulation is implemented. Parties aggrieved by
adopted regulations may seek administrative relief from the
executive officer, the board, or via judicial review. In
addition, ARB is federally mandated to house an Ombudsman
Office to assist small and large businesses, trade
associations, and individual community members regarding any
aspect of the ARB regulatory process. The Ombudsman's mission
includes education on California's air quality management
system, guidance on air quality rules and regulations,
assisting small businesses in compliance with those
regulations, and providing help toward solutions when there is
an air quality compliance problem. The Ombudsman reports
directly to the ARB Chair.
3)Bill addresses different circumstances and proposes different
standards than air districts' variance process. The scope of
this bill is much broader than any existing air district
variance process because it permits any person who must comply
with any ARB regulation, including stationary and mobile
sources, consumer products makers, even air districts and
AB 2469
Page 4
other public agencies, to appeal for relief. The number of
entities eligible for relief is therefore many times greater
than any air district. Unlimited appeals could swamp the
dispute resolution process and delay compliance with air
quality and climate change goals.
In addition, the bill proposes that petitions for relief be
decided by a single ALJ, rather than the five-member hearing
boards in the air district process, and requires no particular
qualifications for the ALJ. Finally, unlike the air district
process which requires applicant fees to cover the cost of
review, the bill provides no specific fee authority to fund
the hearing process.
4)Double referral. Should this bill be approved by this
committee, it will be re-referred to the Judiciary Committee
for policy review of its hearing procedures and relationship
to the judicial review process.
REGISTERED SUPPORT / OPPOSITION :
Support
California Chamber of Commerce
California Council for Environmental and Economic Balance
(sponsor)
Western States Petroleum Association
Opposition
American Lung Association
Bay Area Air Quality Management District
Breathe California
Environment California
Environmental Defense Fund
Sierra Club California
Union of Concerned Scientists
Analysis Prepared by : Lawrence Lingbloom / NAT. RES. / (916)
319-2092