BILL ANALYSIS �
AB 135
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator S. Joseph Simitian, Chairman
2011-2012 Regular Session
BILL NO: AB 135
AUTHOR: Hagman
AMENDED: April 25, 2011
FISCAL: Yes HEARING DATE: June 20, 2011
URGENCY: No CONSULTANT: Randy Pestor
SUBJECT : AIR RESOURCES BOARD MEMBERSHIP
SUMMARY :
Existing law :
1) Provides the California Air Resources Board (ARB) with
primary responsibility for control of mobile source air
pollution, including adoption of rules for reducing vehicle
emissions and the specification of vehicular fuel
composition. (Health and Safety Code �39000 et seq. and
�39500 et seq.). ARB must coordinate efforts to attain and
maintain ambient air quality standards, and is composed of
11members appointed by the Governor, with Senate consent.
(��39003 and 39510). Six members must be appointed on the
basis of their demonstrated interest and proven ability in
the air pollution field and their understanding of general
public needs in connection with air pollution problems with
the following qualifications (and five members must be from
certain air pollution control districts or air quality
management districts that reflect these qualitative
requirements to the extent practicable):
a) One member with training and experience in automotive
engineering or closely related fields.
b) One member having training and experience in
chemistry, meteorology, or related scientific fields,
including agriculture or law.
c) One member that is a physician and surgeon or an
authority on air pollution health effects.
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d) Two members that are public members.
e) One member having experience under a), b), or c)
above, or having experience in the field of air
pollution control.
2) Requires each state agency to consolidate its existing
staff functions relating to contract opportunities for
small business into a single point of contact for small
businesses and designate a small business advocate as a
liaison to small business suppliers (Government Code
�14846), and creates the Office of Small Business Advocate
within the Office of Planning and Research (OPR) with
various responsibilities. (�65054 et seq.).
3) Under the Administrative Procedure Act (APA) (Government
Code �11340 et seq.), establishes rulemaking procedures and
standards for state agencies. State regulations must also
be adopted in compliance with regulations adopted by the
Office of Administrative Law (OAL). The APA, among other
things:
a) Requires every agency to prepare and submit a
specified notice of the proposed action and make certain
information available to the public (e.g., draft
regulation in "plain English"; statement of reasons for
proposing the adoption, amendment, or repeal of a
regulation; evidence to support a determination that the
action will not have a significant adverse economic
impact on business). (�11346.2). The statement of
reasons must identify each technical, theoretical, and
empirical report upon which the agency relies in
proposing the regulation. (�11346.2(b)(2)).
b) Requires state agencies in proposing to adopt, amend,
or repeal any regulation to assess the potential for
adverse economic impact on California business
enterprises and individuals. In assessing the potential
for adverse economic impact, state agencies must meet
certain requirements (e.g., be based on adequate
information concerning the need for, and consequences
of, proposed action; consider industries affected
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including the ability to compete with businesses in
other states). State agencies must also assess whether,
and to what extent, regulations will affect certain
matters (e.g., creation or elimination of jobs in the
state, creation of new businesses or elimination of
existing businesses in the state, expansion of
businesses currently doing business in the state).
(Government Code �11346.3). OAL must return any
regulation to the adopting agency under certain
conditions, including failure to comply with this
requirement to assess potential adverse economic
impacts. (�11349.1).
c) Requires the notice of proposed adoption, amendment,
or repeal of a regulation to include certain matters
(e.g., include specified information if there may be a
significant, statewide adverse economic impact;
description of all cost impacts to be incurred by a
private person or business; statement of the results of
the economic impact assessment). (�11346.5).
This bill :
1) Commencing on and after January 1, 2012, requires at least
one of the 11 ARB members to be a current small business
owner.
2) Defines a "small business" owner with a cross-reference to
that term defined under the Small Business Procurement and
Contract Act (Government Code �14837) (e.g., independently
owned and operated with principal office in California, 100
or fewer employees, annual gross receipts of $10 million or
less).
3) Makes clarifying and technical amendments.
4) Sunsets January 1, 2017.
COMMENTS :
1) Purpose of Bill . According to the author, "Small
businesses are heavily impacted by regulations implemented
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by �ARB]. They don't possess the time or money that large
corporations focus on studying, understanding, and
complying with �ARB] codes." The author believes that "AB
135 would fix the problem by representing the voice of
small businesses. The member can serve as the liaison to
the small business community, ensuring the businesses'
concerns are heard by �ARB] while also encouraging
compliance of �ARB's] regulation for small business
owners."
2) Background . Current law provides primary responsibility
for control of air pollution, other than from vehicular
sources, to local air districts. These districts include
county APCDs, unified APCDs (two or more contiguous
counties that are part of county districts are merged), and
regional APCDs (two or more counties become part of a
regional district), and sets requirements for governing
board membership that generally includes members who are
mayors or city council members, or both, and members who
are county supervisors. The number of members and
composition must be determined jointly by the county (or
counties) and cities within a district, with certain
exceptions.
Control of vehicular sources is generally the responsibility
of the ARB. The ARB is the state agency charged with
coordinating efforts to attain and maintain ambient air
quality standards, to conduct research in air pollution
issues, "and to systematically attack the serious problem
caused by motor vehicles, which is the major source of air
pollution in many areas of the state." The ARB also has
responsibilities for implementing the California Global
Warming Solutions Act of 2006. The ARB consists of 11
members, and 6 of those members must have certain
qualifications ( e.g. , automotive engineering; chemistry,
meteorology, or related field; surgeon or an authority on
health effects). The other 5 members must be board members
from the following entities: South Coast AQMD, Bay Area
AQMD, San Joaquin Valley Unified AQMD, San Diego County
APCD, and a board member from any other district. These
board members must reflect the "qualitative requirements"
of the other 6 members to the extent practicable.
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AB 135 requires that, commencing on and after January 1, 2012,
at least one of the 11 ARB members be a current small
business owner.
3) Support and opposition concerns . According to the National
Federation of Independent Business (NFIB) in supporting AB
135, "California small businesses compose approximately 98
percent of all businesses in the state. They employ over
50 percent of private sector employees and are responsible
for three quarters of all new jobs created. The impact of
small business on California's economic success is nothing
short of critical. AB 135 recognizes this concern and
strengthens the voice of small business by designating that
one of eleven board members be a small business owner."
According to Sierra Club California in opposing AB 135, "To
set aside a seat specifically for small business owners
would unnecessarily restrict the Governor's ability to pick
the best person for the job. Earmarking a seat for a
particular interest would also invite other interests to
seek their own designated slots. For example, if small
business owners deserve their own specified seat, then how
about the employees who work for those businesses? What
about the community groups whose members are affected by
ARB decisions? Rather than starting down this slippery
slope, the Legislature should avoid reserving seats for
particular interests."
4) Trying again . AB 135 is similar to AB 2328 (Niello),
approved by the Senate Environmental Quality Committee June
14, 2010 (5-1); failed in the Senate Appropriations
Committee August 2, 2010 (4-5) and granted reconsideration;
and failed again in the Senate Appropriations Committee
August 9, 2010 (3-5).
A general concern is that requiring one of these members to
also be a small business owner sets a precedent for others
who may want to be represented on the ARB such as labor
organizations, environmental justice interests, or larger
businesses.
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5) Related legislation . AB 146 (Dickinson) adds one
additional member to the ARB with training and experience
in climate change and reduction of greenhouse gas
emissions, and another additional member from a district
within the Sacramento federal nonattainment area for ozone
in any of the bill's specified districts. AB 146 will also
be heard by the Environmental Quality Committee June 20,
2011.
Because AB 135 and AB 146 amend the same code section, double
jointing amendments will be needed to address this
chaptering out problem.
6) Clarification needed . If the committee believes an ARB
member should have small business experience, then this
bill should provide that this new qualification may also
apply to one who has been a small business owner in the
event that a member may not currently be a small business
owner - and in some cases such a member may want to avoid
any conflicts while serving on the ARB. This provision was
an amendment to AB 2328 approved by the Committee. The
subdivisions and paragraphs of �39510 also need
clarification.
SOURCE : Assemblymember Hagman
SUPPORT : Automotive Service Councils of California, Brea
Chamber of Commerce, California Bus
Association, California Dump Truck Owners
Association, California Independent Oil
Marketers Association, California Moving and
Storage Association, California Small Business
Association, Chino Valley Chamber of Commerce,
Dale Bright's Auto Service, Downey Chamber of
Commerce, Fullerton Chamber of Commerce,
Greater Corona Valley Chamber of Commerce,
Greater Fresno Area Chamber of Commerce
Government Affairs Council, Industry
Manufacturers Council, Long Beach Area Chamber
of Commerce, Los Angeles Area Chamber of
Commerce, National Federation of Independent
Business, North Orange County Legislative
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Alliance, Redondo Beach Chamber of Commerce &
Visitors Association, Regional Chamber of
Commerce San Gabriel Valley, San Francisco
Chamber of Commerce, South Bay Association of
Chambers of Commerce, Southwest California
Legislative Council, Specialty Equipment Market
Association, Windsor Chamber of Commerce
OPPOSITION : Sierra Club California