BILL ANALYSIS �
AB 1721
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Date of Hearing: April 16, 2012
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Wesley Chesbro, Chair
AB 1721 (Donnelly) - As Amended: April 9, 2012
SUBJECT : Air pollution: violations
SUMMARY : Requires the California Air Resources Board (ARB) and
the air districts to issue a warning for the first violation of
any toxic air contaminant (TAC) law, except for violations that
cause actual injury.
EXISTING LAW :
1) Grants ARB and the air districts the authority to
establish rules and regulations regarding air quality
standards.
2) Authorizes ARB and the air districts to issue civil,
administrative, and criminal penalties for violations of
TAC rules.
3) Establishes maximum penalties for violations of TAC
rules, regulations, emission limitations, or permit
conditions, specifically $1,000 for non-intentional
violations and $10,000 for more egregious violations.
THIS BILL :
1)Requires ARB and the air districts to issue a warning for the
first violation of any TAC rule, regulation, emission
limitation, or permit condition.
2)Provides an exception to the issuance of a warning for first
violations that cause actual injury.
3)Defines actual injury as any physical injury that in the
opinion of a licensed physician and surgeon requires medical
treatment involving more than a physical exam.
4)Requires that a second violation will not be issued sooner
than 60 days following the first violation and not exceed
$1,000 for each day the violation occurs.
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5)Requires the state to reimburse local agencies if determined
to be a state-mandated local problem.
FISCAL EFFECT : Unknown
COMMENTS :
1) Purpose of this bill : This bill would require ARB and
local air districts to issue a warning for first violations
of TAC laws. According to the author, "a warning seems
more appropriate in the response to a simple mistake or
misunderstanding of the code."
2) Purpose of the regulatory system : Regulatory systems
encourage or deter behaviors through the threat of penalty
for non-compliance. In regulatory systems, there are
varying degrees of culpability, ranging from strict
liability, or no fault, to negligent and intentional
violations. Strict liability is vital to the maintenance
of a regulatory system because it encourages individuals to
know and comply with the law or risk penalty regardless of
intent.
In some regulatory agencies, the risk of enforcement has been
described as similar to winning the lottery. Since the
chances of being monitored are often slim, the only incentive
for complying with the law is the threat of a substantial
penalty. To achieve deterrence, the penalty must be
sufficient to deprive any economic benefit resulting from a
violation, to reflect the seriousness of the violation taking
into account the violator's financial condition, to and deter
others from the temptation of noncompliance.
Requiring violators to receive a "warning" would dramatically
undermine ARB's regulatory system. ARB's regulatory system
protects the important public policy interest in air quality
since 90% of Californians live in regions with unhealthy
ambient air quality, additional illegal emissions would be
intolerable.
For example, diesel particulate matter is the most pervasive
TAC; it contributes to about 2,000 premature deaths per year.
ARB regulates vehicles such as transport refrigeration units,
solid waste collection vehicles, and public transit bus
fleets, which emit diesel particulates. ARB found an entire
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waste disposal company that had failed to install mandatory
emission reduction devices on their diesel trucks. Other
egregious violations included a vendor that sold over 50
uncertified off-highway recreational vehicles, which can
pollute up to 100 times more than a passenger car.
3) Problems with the Actual Injury Standard : The exception
for first time violations that cause actual injury is
problematic and impracticable due to the evolving science
and technology related to TAC. Under ARB's authority, a
Scientific Review Panel is constantly reviewing new
substances proposed for identification as TAC.
Additionally, for many TAC, such as formaldehyde or
benzene, there are still no known safe exposure levels.
Air toxics have also been linked to cancer, lung disease
and other illnesses that typically do not develop until
years down the line. Given the nature of TAC, the actual
injury exception is unworkable and contrary to the stated
legislative purpose of safeguarding the environment, and
protecting for the health, safety, and welfare of
California's citizens.
4) Recent Reforms : In 2010, SB 1402 (Chapter 413, Dutton)
required ARB to adopt a written penalty policy for
violations of state air pollution control laws. SB 1402
directed ARB to take into account all relevant
circumstances in formulating their penalty policy including
eight factors such as the nature and extent of the harm,
the financial burden to the defendant, and the compliance
history and current efforts taken by the violator to
achieve compliance. ARB has held workshops and solicited
public comments to further assist in the development of
their written penalty policy.
ARB's written penalty policy was published in 2011; it
emphasizes fairness, recognizing that penalty amounts should
be set to ensure compliance and deter violations, yet still
take into account the specific circumstances of each violation
and the economic position of each violator. The stated
mission of ARB's enforcement program is to protect health,
welfare and ecological resources while still recognizing and
considering the effects on the economy of the state.
5) Minor Violations and Notice to Comply : The California
Code of Regulations (Title 17, section 60093) requires air
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pollution control officers to cite minor violations by
issuing a "notice to comply." Chronic, knowing, or
intentional violations are not considered minor violations.
6) Business Assistance and Outreach : The California Air
Pollution Control Officer's Association (CAPCOA) maintains
its own website and help-line, publishes a monthly
newsletter, and provides information to the public through
its public outreach committee. The CAPCOA website also
maintains links with the contact information or websites of
the 35 local air districts in California. Many air
districts have business assistance programs providing
technical, financial and administrative assistance to help
the business community comply with regulations. For
example, Amador Air District offers free on site review of
a business' compliance status. ARB holds compliance
assistance workshops for small businesses, industry and
interested parties. In 2009, more than 9,000 individuals
attended these workshops.
REGISTERED SUPPORT / OPPOSITION :
Support
American Council of Engineering Companies of California
California Manufacturers & Technology Association
Oppose
American Lung Association
Bay Area Air Quality Management District
California Air Pollution Control Officer's Association
Analysis Prepared by : Marianna Dietrich / NAT. RES. / (916)
319-2092