BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 1402|
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UNFINISHED BUSINESS
Bill No: SB 1402
Author: Dutton (R), et al
Amended: 8/16/10
Vote: 27 - Urgency
SENATE ENV. QUALITY COMMITTEE : 7-0, 4/19/10
AYES: Simitian, Runner, Corbett, Hancock, Lowenthal,
Pavley, Strickland
SENATE APPROPRIATIONS COMMITTEE : 10-0, 5/17/10
AYES: Kehoe, Cox, Alquist, Corbett, Denham, Leno, Walters,
Wolk, Wyland, Yee
NO VOTE RECORDED: Price
SENATE FLOOR : 33-0, 5/24/10
AYES: Aanestad, Alquist, Ashburn, Calderon, Cedillo,
Corbett, Correa, Cox, Denham, DeSaulnier, Ducheny,
Dutton, Florez, Hancock, Harman, Hollingsworth, Huff,
Kehoe, Leno, Liu, Lowenthal, Negrete McLeod, Padilla,
Pavley, Romero, Runner, Simitian, Strickland, Walters,
Wolk, Wright, Wyland, Yee
NO VOTE RECORDED: Cogdill, Oropeza, Price, Steinberg,
Wiggins, Vacancy, Vacancy
ASSEMBLY FLOOR : 75-0, 8/18/10 - See last page for vote
SUBJECT : Air pollution penalties
SOURCE : Californians for Enforcement Reform and
Transparency
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DIGEST : This bill requires the Air Resources Board to
provide a specified written explanation prior to imposing
an administrative or civil penalty for a violation of air
pollution law, make these explanations available to the
public, annually report specified administrative penalties
imposed, and publish a penalty policy pertaining to
vehicular air pollution control.
Assembly Amendments (1) require the Air Resources Board
notification to be in writing, (2) require a quantification
of the specific amount of pollution emitted, (3) add
co-authors, and (4) make clarifying changes.
ANALYSIS :
Existing law:
1. Generally establishes processes for assessing fines and
penalties and specifies the deposit of fines and
penalties for violations of vehicular air pollution
control laws into the Air Pollution Control Fund or the
General Fund (GF).
2. Establishes a process to assess administrative penalties
in lieu of civil penalties for violation of specified
vehicular air pollution control laws up to $100,000 and
establishes a threshold of $100,000 for penalty
assessments that qualify a person for mutual settlement
agreements and requires the settlements to be deposited
into the GF.
3. Requires the Air Resources Board (ARB) and the courts to
consider specified conditions when considering the
amount assessed for administrative or civil penalties
for violations of vehicular air pollution control laws
such as (a) the extent of harm to public health, safety,
and welfare caused by the violation, (b) the nature and
persistence of the violation, including the magnitude of
the excess emissions, (c) the compliance history of the
defendant, including the frequency of past violations,
(d) the preventive efforts taken by the defendant,
including the record of maintenance and any program to
ensure compliance, (e) the innovative nature and the
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magnitude of the effort required to comply, and the
accuracy, reproducibility, and repeatability of the
available test methods, (f) the efforts to attain, or
provide for, compliance, and (g) the cooperation of the
defendant during the course of the investigation and any
action taken by the defendant, including the nature,
extent, and time of response of any action taken to
mitigate the violation.
4. Requires any person who violates any vehicular air
pollution control law as specified to be liable for a
civil penalty not to exceed $5,000 per vehicle and those
penalties be deposited in the Air Pollution Control Fund
(APCF).
5. States that any action brought pursuant to #4 above to
recover such civil penalties must take special
precedence over all other civil matters on the calendar
of the court except those matters to which equal
precedence on the calendar is granted by law.
6. Requires the revenues from penalties recovered by ARB to
be deposited in the APCF and must only be expended by
ARB for environmental cleanup, abatement, or pollution
prevention technology.
7. Prohibits the sale of any new motor vehicle in
California that does not meet the emission standards
adopted by ARB, and any manufacturer who sells, attempts
to sell, or causes to be offered for sale a new motor
vehicle that fails to meet the applicable emission
standards must be subject to a civil penalty of $5,000
for each such action, with the penalty to be deposited
into the GF.
This bill:
1. Requires a written communication from ARB alleging an
administrative or civil penalty for violation of air
pollution law to contain a clear explanation of the
following:
A. The manner in which the penalty amount was
determined.
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B. The law or regulation under which the penalty is
being assessed.
C. Whether the penalty is being assessed under a law
that prohibits a specified level of pollution, and if
so, a quantification of the specific amount of
pollution emitted.
2. Requires ARB to make this information, and all final
mutual settlement agreements between ARB and the alleged
violator, available to the public.
3. Requires ARB to prepare and submit to the Legislature
and the Governor an annual report summarizing
administrative penalties pertaining to vehicular air
pollution control.
4. Requires ARB to publish a civil and administrative
penalty policy pertaining to vehicular air pollution
control by March 1, 2011, and requires the policy to
consider specified circumstances similar to those that
ARB and the courts are currently required to consider
when determining penalty amounts.
Comments
Under current law, ARB and/or local air pollution control
districts are authorized to impose civil or administrative
penalties for a variety of violations of state air
pollution laws and regulations. Administrative penalties
of up to $100,000 may be assessed for certain violations.
ARB and the courts are required to consider several factors
when determining the amount of an administrative or civil
penalty - including the harm to the public, the compliance
history of the defendant, preventative efforts made by the
defendant, and other factors. Fine and penalty revenues
are generally deposited in the APCF (where they are
available, upon appropriation of the
Legislature, for environmental cleanup, abatement, or
pollution prevention) or the General Fund.
ARB has articulated three main goals of its enforcement
program: (1) to foster compliance, (2) to deter
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violations, and (3) to create a level playing field for the
community ARB regulates. ARB currently handles
approximately 2,000 violations a year. ARB has a long
history of obtaining compliance along with substantial
penalties. In over 99 percent of its cases, ARB engages
violators in a settlement process to reach resolutions.
However, where an appropriate settlement cannot be reached,
ARB refers the matter to a prosecutor, usually the Attorney
General, for civil litigation or criminal prosecution.
Injunctions to halt violations are an important tool in
these actions. ARB maintains that its enforcement process
is highly transparent. All ARB settlements are public
documents. Case resolutions are publicized through news
releases. ARB publishes a comprehensive annual report that
documents the results of its enforcement efforts.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
According to the Assembly Appropriations Committee, costs
of an unknown amount, potentially in excess of $150,000 per
year, for up to one position at ARB to include specified
information in written communication and to make it
available to the public, update and publish penalty policy,
and report to the Legislature and Governor.
SUPPORT : (Verified 5/19/10) (Unable to reverify)
Californians for Enforcement Reform and Transparency
(source)
American Home Furnishing Alliance
California Chapter of the American Fence Contractors
Association
California Dump Truck Owner Association
California Manufacturers and Technology Association
California Motorcycle Dealers Association
California Moving and Storage Association
California Retailers Association
Construction Industry Air Quality Association
Engineering Contractors Association
Flasher/Barricade Association
Independent Waste Oil Collectors and Transporters
Marine Builders Association
Moving and Storage Association
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National Marine Manufacturers Association
Outdoor Power Equipment Institute
Sand Car Manufacturers Association
Southern California Contractors Association
ARGUMENTS IN SUPPORT : According to the author, "Numerous
affected stakeholders have repeated expressed concern over
the lack of information on how ARB determines and assesses
penalties as well as the lack of consistency from one
violation to the rest. This confusion undermines ARB's
credibility and effectiveness in achieving its core mission
- protection of air quality. This confusion also makes it
increasingly difficult for ARB to effectively resolve
settlements or for regulated entities to comply with ARB
regulations and to do business in California."
ASSEMBLY FLOOR :
AYES: Adams, Ammiano, Anderson, Arambula, Bass, Beall,
Bill Berryhill, Tom Berryhill, Block, Blumenfield,
Bradford, Brownley, Buchanan, Caballero, Carter, Chesbro,
Conway, Cook, Coto, Davis, De La Torre, De Leon, DeVore,
Eng, Feuer, Fletcher, Fong, Fuentes, Fuller, Furutani,
Gaines, Galgiani, Garrick, Gatto, Gilmore, Hagman, Hall,
Harkey, Hayashi, Hernandez, Hill, Huber, Huffman,
Jeffries, Jones, Knight, Lieu, Bonnie Lowenthal, Ma,
Mendoza, Miller, Monning, Nava, Nestande, Niello,
Nielsen, Norby, V. Manuel Perez, Portantino, Ruskin,
Salas, Saldana, Silva, Skinner, Smyth, Solorio, Audra
Strickland, Swanson, Torlakson, Torres, Torrico, Tran,
Villines, Yamada, John A. Perez
NO VOTE RECORDED: Blakeslee, Charles Calderon, Evans,
Logue, Vacancy
TSM:mw 8/18/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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