BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 1433|
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VETO
Bill No: SB 1433
Author: Leno (D)
Amended: 5/5/10
Vote: 21
SENATE ENV. QUALITY COMMITTEE : 4-2, 4/19/10
AYES: Simitian, Corbett, Lowenthal, Pavley
NOES: Runner, Strickland
NO VOTE RECORDED: Hancock
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
SENATE FLOOR : 21-7, 5/28/10
AYES: Alquist, Calderon, Cedillo, Corbett, DeSaulnier,
Ducheny, Florez, Kehoe, Leno, Liu, Lowenthal, Negrete
McLeod, Padilla, Pavley, Price, Romero, Simitian,
Steinberg, Wolk, Wright, Yee
NOES: Correa, Dutton, Hollingsworth, Huff, Runner,
Strickland, Wyland
NO VOTE RECORDED: Aanestad, Ashburn, Cogdill, Cox, Denham,
Hancock, Harman, Oropeza, Walters, Wiggins, Vacancy,
Vacancy
ASSEMBLY FLOOR : 45-31, 8/31/10 - See last page for vote
SUBJECT : Air pollution penalties: inflation adjustments
SOURCE : Bay Area Air Quality Management District
Breathe California
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DIGEST : This bill requires the Air Resources Board, on
March 1, 2011, and annually thereafter, to adjust the
maximum civil and criminal penalties for inflation for
nonvehicular pollution violations and to publish the
inflation-adjusted maximum penalties on the Internet Web
site.
ANALYSIS : Existing law establishes the Air Resources
Board, (ARB), which is responsible for control of emissions
from motor vehicles and is designated the air pollution
control agency for all purposes set forth in federal law.
Existing law vests air pollution control districts and air
quality management districts 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 that violates specified nonvehicular air pollution
laws.
This bill requires the ARB to adjust the upper limits for
specified fines and penalties for inflation using the
California Price Index for nonvehicular air pollution laws
overseen by ARB and local air districts on an annual basis
beginning in 2011.
Comments
Most fines and penalties are established during the
legislative process and may not be reexamined for years,
and in some cases, decades. This creates a situation that
fines and penalties do not keep pace with inflation and
they no longer are the deterrent that they were when the
law was passed. This bill focuses on just a small portion
of violations and related fines and penalties in the air
pollution arena. It is specific to stationary source
violations that are primarily overseen by local air
pollution control districts. The amounts in the effected
sections range from $1000 strict liability fines
established in the early 1980's to $1 million fines for
corporations that are responsible for great bodily injury
or death related to a willful or intentional release of an
air contaminant established in 1992. For illustration, the
$1000 fine established in 1983 would be valued at $2176.11
in 2010 dollars.
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The fines and penalties affected by this bill do not have
minimum penalties associated with them and the inflator is
for the 'ceiling' of the fine or penalty. The courts and
the air districts are required to take into consideration
mitigating factors when assessing fines and penalties which
provides for flexibility and often results in fines and
penalties below the ceiling. Nor is this bill retroactive
and does not require the ARB to update the current fine and
penalty levels to 2010 dollars and then apply the inflator.
Thus, the $1000 fine used as an example above would only
be adjusted prospectively and not be re-established at the
2010 level of $2176.11 then have the inflator applied.
For sake of comparison, if the provisions of this bill
would have taken effect in 2009, the $1000 dollar fine
would have been adjusted to $1010.27 for 2010.
The proposal of inflators for fines and penalties is not
new. Currently the US Environmental Protection Agency
(EPA) adjusts the statutory civil monetary penalties for
inflation that may be assessed for violations of
EPA-administered statutes and their implementing
regulations. US EPA is required to review the civil
monetary penalties under the statutes it administers at
least once every four years and to adjust such penalties as
necessary for inflation according to a specified formula.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 5/4/10)
Bay Area Air Quality Management District (co-source)
Breathe California (co-source)
American Lung Association
California Air Pollution Control Officers Association
California Environmental Rights Alliance
Community Action to Fight Asthma
East Yard Committee for Environmental Justice
Planning and Conservation League
Sierra Club California
South Coast Air Quality Management District
Union of Concerned Scientists
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OPPOSITION : (Verified 5/4/10)
California Chamber of Commerce
ARGUMENTS IN SUPPORT : According to the author's office,
inflation steadily reduces the deterrent effect of fixed
air penalty ceilings. The most commonly-used penalty
category (strict liability violations) has been a constant
$1000 since the early 1980's. Inflation has significantly
reduced the deterrent effect of this ceiling over time.
ARGUMENTS IN OPPOSITION : The opponents contend that
there is no evidence to support the notion that inflation
is leading to less compliance of California's air pollution
laws. The opponents believe that rather than reducing
instances of intentional noncompliance, this bill would
have the unintended consequences of punishing the state's
good actor businesses who may fail to meet the state's
stringent air pollution standards despite good faith
efforts to comply.
Secondly, the opponents contend that if maximum fines and
penalties need to be raised for particular air pollution
laws, it is appropriate that the authority for such a
change remain vested in the Legislature. Legislative
review and approval ensures that big pictures reassessment
of a law can occur in public forum, including an evaluation
of the law's effectiveness and whether the penalties fit
the violation. The opponents contend that by allowing for
automatic increases in civil penalties to occur in
perpetuity without a more thorough review of the law, the
ability to ensure that the law remains adequate, fair and
effective is reduced.
GOVERNOR'S VETO MESSAGE :
"I am returning Senate Bill 1433 without my
signature.
This bill requires the California Air Resources Board
(CARB) to annually adjust maximum civil and criminal
penalties for violations of air pollution control
laws to reflect changes in the California Consumer
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Price Index.
This bill is unnecessary. It is not clear that
current penalties for violating air pollution control
laws are failing to achieve the deterrent effect for
which they were originally designed.
California has the most aggressive air pollution
control laws in the nation. That distinction comes
with a responsibility to balance our environmental
goals with our economic goals.
Current law gives CARB and the local air districts
broad authority to assess and negotiate fine amounts
with those who violate our air pollution control
laws. Anecdotal evidence suggests that when issuing
citations, the local air districts do not generally
issue them at the maximum penalty amount. And when
they do, they normally negotiate those fines lower
based on a variety of factors, including the
egregiousness of the violation and the violator's
ability to pay the fines. Until more evidence is
shown to the contrary, current law seems to strike
the correct balance.
For these reasons, I am unable to sign this bill."
ASSEMBLY FLOOR :
AYES: Ammiano, Arambula, Bass, Beall, Block, Blumenfield,
Bradford, Brownley, Buchanan, Charles Calderon, Carter,
Chesbro, Coto, Davis, De La Torre, De Leon, Eng, Evans,
Feuer, Fong, Fuentes, Furutani, Gatto, Hayashi,
Hernandez, Hill, Huffman, Jones, Lieu, Bonnie Lowenthal,
Ma, Mendoza, Monning, Nava, V. Manuel Perez, Portantino,
Ruskin, Salas, Saldana, Skinner, Swanson, Torlakson,
Torres, Torrico, John A. Perez
NOES: Adams, Anderson, Bill Berryhill, Tom Berryhill,
Caballero, Conway, Cook, DeVore, Fletcher, Fuller,
Gaines, Galgiani, Garrick, Gilmore, Hagman, Hall, Harkey,
Huber, Jeffries, Knight, Logue, Miller, Nestande, Niello,
Nielsen, Norby, Silva, Smyth, Tran, Villines, Yamada
NO VOTE RECORDED: Solorio, Audra Strickland, Vacancy,
Vacancy
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TSM:do 10/5/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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