BILL NUMBER: AB 1721 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 9, 2012
INTRODUCED BY Assembly Member Donnelly
FEBRUARY 16, 2012
An act to add Section 39602.8 to amend
Sections 39674 and 42400 of, and to add Section 42410.5 to, the
Health and Safety Code, relating to air pollution.
LEGISLATIVE COUNSEL'S DIGEST
AB 1721, as amended, Donnelly. Air pollution: violations.
(1) Existing law establishes the State Air Resources Board as the
state agency with primary jurisdiction over the regulation of air
pollution. Existing law grants to air pollution control and air
quality management districts the primary authority for the control of
air pollution from all sources other than vehicular sources.
Existing law subjects violators of air pollution laws to specified
civil , administrative, and criminal penalties.
This bill would require the state board and all air
pollution control and air quality management districts to issue a
warning for the first violation of any state air pollution control
law bill, commencing January 1, 2013, would require
the state board, an air pollution control district, or an air quality
management district, as specified, except for violations causing
actual injury, as defined, to issue a warning for the first violation
of any rule, regulation, permit, or order of the state board or of a
district, as specified, whether for a civil, administrative, or
criminal penalty. The bill, for administrative penalties, would
require the state board, except for violations causing actual injury,
as defined, to issue a warning for the first violation of any
regulation of the state. The bill would prohibit the state board or a
district, as specified, from issuing a second violation sooner than
60 days following the issuance of the first violation . By
adding to the duties of air pollution control and air quality
management districts, this bill would impose a state-mandated local
program.
(2) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 39602.8 is added to the
Health and Safety Code, to read:
39602.8. Notwithstanding any other law, the state board and all
districts shall only issue a warning for the first violation of any
state air pollution control law.
SECTION 1. Section 39674 of the Health
and Safety Code is amended to read:
39674. (a) (1) Except as otherwise provided
in paragraph (2) and in subdivision (b), any person who
violates any rule or regulation, emission limitation, or permit
condition adopted pursuant to Section 39659 or Article 4 (commencing
with Section 39665) or which that is
implemented and enforced as authorized by subdivision (b) of Section
39658 is shall be strictly liable for a
civil penalty not to exceed one thousand dollars ($1,000) for each
day in which the violation occurs.
(2) (A) Commencing January 1, 2013, any person who violates
paragraph (1), except for violations that cause actual injury, shall
be issued a warning for the first violation and, for the second
violation, shall be strictly liable for a civil penalty not to exceed
one thousand dollars ($1,000) for each day in which the violation
occurs.
(B) Commencing January 1, 2013, a second violation shall not be
issued pursuant to this subdivision sooner than 60 days following the
issuance of the first violation.
(C) For purposes of this paragraph, "actual injury" means any
physical injury that, in the opinion of a licensed physician and
surgeon, requires medical treatment involving more than a physical
examination.
(b) (1) Any person who violates any rule or regulation, emission
limitation, permit condition, order fee requirement, filing
requirement, duty to allow or carry out inspection or monitoring
activities, or duty to allow entry for which delegation or approval
of implementation and enforcement authority has been obtained
pursuant to subdivision ( l )
(l) of Section 112 of the Clean Air Act (42
U.S.C. Section 7412( l ))
7412(l)) or the regulations adopted pursuant
thereto, adopted pursuant to Section 39659 or Article 4 (commencing
with Section 39665) or which that is
implemented and enforced as authorized by subdivision (b) of Section
39658 is shall be strictly liable for a
civil penalty not to exceed ten thousand dollars ($10,000) for each
day in which the violation occurs.
(2) Where a civil penalty in excess of one thousand dollars
($1,000) for each day of violation is sought, there is no liability
under paragraph (1) if the person accused of the violation alleges by
affirmative defense and establishes that the violation is caused by
an act which that was not the result of
intentional or negligent conduct. In a district in which a Title V
permit program has been fully approved, this paragraph shall not
apply to a violation of federally enforceable requirements that occur
at a Title V source.
(3) Paragraph (2) shall not apply to a violation of a toxic air
contaminant rule, regulation, permit, order, fee requirement, filing
requirement, duty to allow or carry out inspection or monitoring
activities, or duty to allow entry for which delegation or approval
of implementation and enforcement authority has been obtained
pursuant to subdivision ( l )
(l) of Section 112 of the Clean Air Act (42
U.S.C. Sec. 7412( l ))
7412(l)) , or the regulations adopted pursuant
thereto.
SEC. 2. Section 42400 of the Health and
Safety Code is amended to read:
42400. (a) Except as otherwise provided in Section 42400.1,
42400.2, 42400.3, 42400.3.5, or 42400.4, and except as provided
in subdivision (f), any person who violates this part, or any
rule, regulation, permit, or order of the state board or of a
district, including a district hearing board, adopted pursuant to
Part 1 (commencing with Section 39000) to Part 4 (commencing with
Section 41500), inclusive, is shall be
guilty of a misdemeanor and is shall be
subject to a fine of not more than one thousand dollars ($1,000) or
imprisonment in the county jail for not more than six months, or
both.
(b) If a violation under subdivision (a) with regard to the
failure to operate a vapor recovery system on a gasoline cargo tank
is directly caused by the actions of an employee under the
supervision of, or of any independent contractor working for, any
person subject to this part, the employee or independent contractor,
as the case may be, causing the violation is
shall be guilty of a misdemeanor and is
shall be punishable as provided in subdivision (a). That
liability shall not extend to the person employing the employee or
retaining the independent contractor, unless that person is
separately guilty of an action that violates this part.
(c) Any person who owns or operates any source of air contaminants
in violation of Section 41700 that causes actual injury, as defined
in subdivision (d), to the health or safety of a considerable number
of persons or the public is shall be
guilty of a misdemeanor and is shall be
subject to a fine of not more than fifteen thousand dollars
($15,000) or imprisonment in the county jail for not more than nine
months, or both.
(d) As used in this section, "actual injury" means any physical
injury that, in the opinion of a licensed physician and surgeon,
requires medical treatment involving more than a physical
examination.
(e) Each day during any portion of which a violation of
subdivision (a) or (c) occurs is a separate offense.
(f) (1) Commencing January 1, 2013, any person who violates
subdivision (a) shall be issued a warning for the first violation
and, for the second violation, shall be guilty of a misdemeanor and
shall be subject to a fine of not more than one thousand dollars
($1,000) or imprisonment in the county jail for not more than six
months, or both.
(2) Commencing January 1, 2013, a second violation shall not be
issued pursuant to this section sooner than 60 days following the
issuance of the first violation.
SEC. 3. Section 42410.5 is added to the
Health and Safety Code , to read:
42410.5. (a) (1) Notwithstanding Section 42410, except for
violations that cause actual injury, as an alternative to seeking
civil penalties under Sections 39674, 42401, 42402, 42402.1, 42402.2,
and 42402.3 for a violation of regulations of the state board, the
state board shall issue a warning for the first violation and, for
the second violation, the state may impose an administrative penalty.
Any administrative penalty imposed under this section shall be
imposed as an alternative to, and not in addition to, a civil penalty
imposed pursuant to this article. No administrative penalty imposed
by the state board pursuant to this section shall exceed the amount
that the state board is authorized to seek as a civil penalty for the
applicable violation, and no administrative penalty imposed pursuant
to this section shall exceed ten thousand dollars ($10,000) for each
day in which there is a violation up to a maximum of one hundred
thousand dollars ($100,000) per penalty assessment proceeding.
(2) A second violation shall not be issued pursuant to this
section sooner than 60 days following the issuance of the first
violation.
(3) For purposes of this section, "actual injury" means any
physical injury that, in the opinion of a licensed physician and
surgeon, requires medical treatment involving more than a physical
examination.
(b) Nothing in this section restricts the authority of the state
board to negotiate mutual settlements under any other penalty
provision of law that exceeds ten thousand dollars ($10,000) for each
day in which there is a violation of one hundred thousand dollars
($100,000) per penalty assessment proceeding.
(c) The administrative penalties authorized by this section shall
be imposed and recovered by the state board in administrative
hearings established pursuant to Article 3 (commencing with Section
60065.1) and Article 4 (commencing with Section 60075.1) of
Subchapter 1.25 of Chapter 1 of Division 3 of Title 17 of the
California Code of Regulations, except that the hearings shall be
conducted by an administrative law judge appointed by the Office of
Administrative Hearings.
(d) Nothing in this section authorizes the state board to seek
penalties for categories of violations for which the state board may
not recover penalties in a civil action.
(e) If the state board imposes any administrative penalties
pursuant to this section, the state board shall not bring any action
pursuant to, or rely upon, Chapter 4 (commencing with Section 17000)
of Part 2 of Division 7 of the Business and Professions Code.
(f) In determining the amount of any administrative penalty
imposed pursuant to this section, the state board shall take into
consideration all relevant circumstances, including, but not limited
to, those factors specified in subdivision (b) of Section 42403.
(g) After an order imposing an administrative penalty becomes
final pursuant to the hearing procedures identified in subdivision
(c), and no petition for a writ of mandate has been filed within the
time allotted for seeking judicial review of the order, the state
board may apply to the Superior Court for the County of Sacramento
for a judgment in the amount of the administrative penalty. The
application, which shall include a certified copy of the final order
of the administrative hearing officer, shall constitute a sufficient
showing to warrant the issuance of the judgment.
(h) For any violation that is within the enforcement jurisdiction
of both the state board and the districts, the state board may impose
an administrative penalty pursuant to this section only if the
district in which the violation has occurred has not commenced an
enforcement action for that violation.
(i) Any administrative penalty assessed pursuant to this section
shall be paid to the Treasurer for deposit in the General Fund.
(j) A party adversely affected by the final decision in the
administrative hearing may seek independent judicial review by filing
a petition for a writ of mandate in accordance with Section 1094.5
of the Code of Civil Procedure.
SEC. 2. SEC. 4. If the Commission on
State Mandates determines that this act contains costs mandated by
the state, reimbursement to local agencies and school districts for
those costs shall be made pursuant to Part 7 (commencing with Section
17500) of Division 4 of Title 2 of the Government Code.