BILL ANALYSIS �
AB 1827
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Date of Hearing: April 8, 2014
ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS
Luis Alejo, Chair
AB 1827 (Patterson) - As Amended: March 28, 2014
SUBJECT : State bodies: administrative and civil penalties.
SUMMARY : Prohibits the California Environmental Protection
Agency (Cal/EPA) and the California Natural Resources Agency
departments, boards, and offices from imposing civil or
administrative penalties for violations of the law without
allowing a business to correct the violation. Specifically,
this bill :
1)Makes a series of legislative findings, specifically:
a) Finds that the primary purpose of enforcement programs
of Cal/EPA or the Natural Resources Agency is to seek to
bring about compliance with the law;
b) Finds that financial penalties shall only be imposed in
the absence of good faith compliance efforts or after
repeated violation of rules and regulations; and,
c) Finds that penalties should be assessed in a manner in
which the amount of the financial penalty accurately and
justly reflects the seriousness of the violation.
2)Supersedes all current enforcement programs within the Natural
Resources Agency and the Cal/EPA by requiring that prior to
the imposition of an administrative or civil penalty, agencies
shall allow a business with 50 or fewer employees an
opportunity to cure a minor violation that did not cause:
a) An actual harm to the public;
b) Physical injury to a person; or,
c) Endanger the public health and safety.
3)Limits applicability to the special authorization to "cure" a
violation to those violations of law that are not:
a) A knowing, willful, or intentional violation;
b) A violation that enabled the violator to benefit
economically from noncompliance; or,
c) A chronic violation by a recalcitrant violator.
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EXISTING LAW
1)Establishes the Natural Resources Agency, comprised of 25
departments, commissions, conservancies, and boards with
responsibilities pertaining to water, fish and game, forestry,
parks, energy, minerals, coastal and marine life. The Natural
Resources Agency includes the following departments:
a) The Department of Fish and Wildlife;
b)State Parks and Recreation;
c) Department of Conservation;
d) Department of Forestry and Fire Protection;
e) Department of Water Resources;
f) Department of Boating and Waterways;
g) The California Coastal Commission; and,
h)San Francisco Bay Conservation & Development Commission.
2)Establishes the Cal/EPA, a state agency with a boards and
agencies providing a range of environmental protections and is
comprised of the following departments:
a) Air Resources Board;
b) Department of Pesticide Regulation;
c) Department of Toxic Substances Control;
d) Office of Environmental Health Hazard Assessment;
e) State Water Resources Control Board and nine Regional
Boards; and,
f) Department of Resources, Recycling, and Recovery.
3)Provides Cal/EPA's local and regional enforcement agencies
including: the 35 Air Pollution Control and Air Quality
Management Districts that regulate stationary sources of air
pollution, 58 County Agricultural Commissioners that regulate
pesticide use, and 83 Certified Unified Programs Agencies that
implement hazardous waste and hazardous materials programs.
4)Requires the State Water Resources Control Board (SWRCB) and
regional water quality control boards (RWQCBs) to develop
regulations defining 'minor violations, which take into
account the magnitude, scope, and potential risk to public
health or the environment of a violation and requires the
issuance of a notice to comply for minor violations, which
prescribes a timeframe for compliance.
FISCAL EFFECT : Not known.
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COMMENTS :
Need for the bill : According to the author, "This bill is
attempting to solve the over-fining of small businesses by state
bodies. Currently, multiple state bodies are permitted to
immediately fine business owners for minor violations once an
inspector notices that a minor violation has been committed,
whether intentionally or unintentionally. While some state
bodies, such as the ARB and the Department of Toxic Substances
Control, have a notice-to-comply period in place for minor
violations, other departments and commissions under the
Environmental Protection Agency and Natural Resources Agency do
not offer this same opportunity to cure."
A history of the minor violation programs : The Minor Violation
Program allows for most minor violations to result in a notice
to comply rather than a notice of violation, providing the
violator with an opportunity to correct a violation without the
assessment of a fine or penalty. AB 1827 (Brulte), Chapter 775,
Statues of 1996, required that the ARB and California's 35 local
and regional Air Pollution Control Districts and Air Quality
Management District' adopt rules establishing a minor violation
program. These sections were repealed effective January 1,
2006. Many local air district rules also sunset on this date.
According to the ARB, ARB's Minor Violation Regulation did not
contain the sunset provisions and still remains in effect.
In 2000, subsequent legislation, SB 1865 (Perata), Chapter 805,
Statutes of 2000, extended the sunset on the minor violation
program for air quality violations until January 1, 2006. That
year a water quality omnibus bill sponsored by the SWRCB, AB
2886 (Kuehl), Chapter 727, Statutes of 2006, repealed the
sunset provision for the minor violation program in the Water
Code.
In 2006, AB 2394 (Aghazarian) would have extended the minor
violation program for air quality standards; however, the bill
failed passage in the Assembly Appropriations Committee.
How should we enforce environmental laws ? Regulatory
punishment for pollution violations is a mainstay of nearly
every industrialized nation's environmental policy. US/EPA
research has found that environmental monitoring and enforcement
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activities generate substantial specific deterrence.
Effective enforcement is needed to ensure that the goals of
California environmental statutes are realized. Enforcement
refers to the set of actions that the government can take to
promote compliance with environmental law. Tens of millions of
citizens live in areas out of compliance with the health-based
standards of the Federal Clean Air Act, and close to half of the
water bodies in the country fail to meet water quality standards
set by the Federal Clean Water Act. In communities burdened by
multiple sources of pollution, noncompliance has particularly
serious health consequences for affected residents.
As in virtually every other area of government regulation,
environmental enforcement traditionally has been based on the
theory of deterrence. This theory assumes that persons and
businesses act rationally to maximize profits, and will comply
with the law where the costs of noncompliance outweigh the
benefits of noncompliance.
Inspections, the threat of inspections, timely and appropriate
enforcement responses or other enforcement actions tend to
increase the rate of industry compliance. Conversely, the
absence of deterrence-based enforcement, that is, the absence of
a threat of meaningful sanctions, often translates into
noncompliance.
The effectiveness of the conciliatory strategies proposed by AB
1827 have yet to be proven. Conciliatory enforcements could lead
to higher rates of noncompliance by firms and increased public
exposure to harmful pollutants.
Argument in support:
According to the author, "Some constituents in Assemblyman
Patterson's district have notified our office about the burdens
placed on them by state bodies that fine their businesses
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without giving them a chance to correct the violation or appeal
the violation without having to pay a penalty. Penalty
assessments from the agencies affected by this bill can range
from $25 to a couple of hundred dollars, and the larger amounts
can represent a financial hardship for a small business,
especially one that is already struggling. Penalties for such
minor violations that cause no harm and are unintentional are
unfair to levy on a business that has made an honest mistake."
Argument in opposition :
According to the Consumer Attorneys of California, "AB 1827
creates bad precedent. Although some agencies have 'minor
violations' programs, a statutory change is unwarranted. Should
an agency decide to have a minor violation program, it can
explore that option; statewide statutory changes are not needed.
Further, there are other options. If the problem exists with
unclear regulations, then efforts should be focused on making
them clearer. Finally, laws should generally be enforced
uniformly, regardless of the size of the violator or the nature
of the harm created."
Policy Issues :
1)Should enforcement be preventative rather than reactive ? The
findings that environmental enforcement is not appropriate in
those cases where a violator is making a good faith effort to
comply may discount the equally important goal of preventing
violations of the law through the disincentive provided by
fines and penalties. If the only obligation is to stop
violating the law, then there may be significantly less
incentive to comply with the broad range of environmental
laws.
2)Scope of the proposal is not well defined . There are dozens
of agencies and many dozens of separate programs with
enforcement responsibilities from fish and game laws to
hazardous waste disposal. In some cases, such as the
Porter-Cologne Act, there are specified minimum penalties that
are currently required. In other cases, such as the Fish and
Game Code, enforcement action may include loss of license or
limits on commercial fishing. Many of these penalties are
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designed for the unique environmental protections that are
being pursued. Many local air quality districts have minor
violation policies, but they are also tied to an accelerated
notice of violation issued at the time of an inspection. If
the state wishes to pursue increased conciliatory-type
enforcement, it may be appropriate to examine individual
programs rather than blanket provisions affecting dozens of
agencies.
3)Failure to provide guidance or definition of what constitutes
a "minor violation ." AB 1827 excludes a range of activities,
such as willful or intentional violations, and also provides
that minor violations not include actual harm to the public or
a person. The bill fails to consider the effect of violation
on environmental resources, such as beneficial uses of water
or wildlife protection.
REGISTERED SUPPORT / OPPOSITION :
Support:
California Association of Realtors
Opposition:
California Association of Environmental Health Administrators
Consumer Attorneys of California
Sierra Club California
Analysis Prepared by : Bob Fredenburg / E.S. & T.M. / (916)
319-3965