BILL ANALYSIS �
AB 382
Page 1
Date of Hearing: April 25, 2011
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Wesley Chesbro, Chair
AB 382 (Nestande) - As Introduced: February 14, 2011
SUBJECT : Air inspectors: administrative and civil penalties
SUMMARY : Requires air districts to provide a specified written
explanation prior to imposing an administrative or civil penalty
for a violation of air pollution law and make these explanations
available to the public. Establishes a "code of conduct" for
inspectors acting on behalf of the Air Resources Board (ARB) or
any air district.
EXISTING LAW :
1)Designates the ARB as the air pollution control agency
responsible for the coordination of the activities of air
pollution control districts and air quality management
districts for the purposes of the federal Clean Air Act.
2)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.
3)Authorizes ARB and air districts to enforce air pollution
laws, including imposing administrative and civil penalties
for violations.
4)Requires ARB 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.
THIS BILL :
1)Requires a written communication from an air district 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 an air district to make this information, and all
final mutual settlement agreements between the district and
the alleged violator, available to the public.
3)Requires an inspector acting on behalf of ARB or a district to
follow a prescribed "code of conduct," including:
a) Act in a professional manner with honesty and integrity.
b) Perform all duties impartially and objectively without
undue influence.
c) Treat regulated businesses and individuals and the
public respectfully by being courteous at all times and in
all situations.
d) Exercise compassion, benevolence, and fairness during
the inspection or investigation and subsequent enforcement
proceedings.
e) Respond to regulated businesses and individuals and the
public in a manner that is complete, clear, and easy to
understand.
f) Assist regulated businesses and individuals and the
public in their dealings with the district or state board.
FISCAL EFFECT : Unknown
COMMENTS :
Under current law, the ARB and/or local air districts are
authorized to impose civil or administrative penalties for a
variety of violations of state air pollution laws and
regulations. The agencies and the courts are required to
consider several factors when determining the amount of an
administrative or civil penalty - including the harm to the
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public, the compliance history of the defendant, preventative
efforts made by the defendant, and other factors.
Last year, SB 1402 (Dutton), Chapter 413, Statutes of 2010, was
enacted to require ARB, among other things, to provide a
specified written explanation prior to imposing an
administrative or civil penalty. This bill would impose the
same requirement on air districts. In addition, this bill would
require inspectors for both ARB and air districts to conduct
themselves in a specified manner. According to the author:
This bill establishes parity between ARB and local
districts in terms of enforcement by extending SB 1402
notification requirements to those entities. This measure
also enacts a code of professionalism for ARB and local air
district inspectors. The inspectors of these respective
agencies are the face most businesses see when they are
inspected for violations. A code of professionalism can
help improve the inspection process and avoid conflicts
between inspectors and regulated entities?Affected
industries have lost confidence in and respect for these
entities as a result of the enforcement process, the
development of regulations, and the credibility of certain
reports and research. This bill is intended to help rebuild
that confidence.
In opposition, the air districts and environmental groups
contend that this bill would undermine enforcement of air
quality laws, create a one-way discovery process biased in favor
of violators, and create an overly vague and highly subjective
code of conduct focused on upholding the interests of industry
over public health.
According to ARB last year, SB 1402 generally was consistent
with its enforcement practices and therefore did not impose a
significant burden. However, this bill would apply to 35 air
districts and a much broader range of enforcement activities,
including very minor violations and issues that don't fit the
requirements of the bill, such as nuisance odor complaints. The
requirements of the bill could impose an impractical burden for
routine enforcement activities and give rise to legal challenges
to enforcement actions on the basis of inconsequential
discrepancies or subjective judgments about an inspector's
behavior.
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REGISTERED SUPPORT / OPPOSITION :
Support
None on file
Opposition
American Lung Association
Bay Area Air Quality Management District
Breathe California
California Air Pollution Control Officers Association
Coastal Environmental Rights Foundation
Environmental Defense Fund
Sierra Club California
Union of Concerned Scientists
Analysis Prepared by : Lawrence Lingbloom / NAT. RES. / (916)
319-2092