Lieber Bill Proposes Criminal Penalties for Chemical Releases

By Loretta Macktal, Executive Assistant to the Vice President, Government Relations

Capitol Update, March 7, 2003 Share this on FacebookTweet thisEmail this to a friend

AB 623 by freshman Assemblymember Sally Lieber (D-Santa Clara) proposes criminal penalties for releases of chemicals "known to the state to cause cancer or reproductive toxicity". This author-sponsored measure transposes language from California's infamous Proposition 65 statute into the state's Penal Code, with some notable changes that substantially broaden business's exposure to the proposed criminal penalty structure.

The bill sets up a tiered penalty scheme triggered by discharges of Prop. 65 chemicals to land or water that are likely to pass into any source of drinking water or expose an individual that are not preceded by "a clear and reasonable warning". Unlike Prop. 65 law, this measure does not require knowledge of the discharge by the operator. This standard lowers the hurdle over which the state must jump before bringing criminal actions against businesses acting in good faith to comply with applicable environmental laws.

Under the bill, negligent violation penalties would range from $2,500 - $10,000 per-day and 6 months imprisonment for first offenses, $25,000 and one year in prison for repeat offenses. Known violation penalties would range from $5,000 - $25,000 and 2 years in prison for first offenses, $50,000 and three years in prison for repeat offenses. Corporations with prior convictions could be fined up to $1,000,000. In the latter case, AB 683 requires that the Secretary of State revoke the corporation's authority to act as a corporate entity in the state. Unlike Prop. 65 law, AB 623 provides no direction to courts to consider the conduct of the operator or the severity of the release in adjusting the penalty conditions.

Current law (H&SC 25249.5) already prohibits known discharges that are likely to pass into drinking water. Current law also requires a clear and reasonable warning before a business can knowingly expose any individual to chemicals "known to the state to cause cancer or reproductive toxicity." These provisions are enforced through a civil penalty scheme that includes a private right of action that is regularly exercised. Together, these features serve as a major deterrent to would-be violators.

AB 623 is a grossly overreaching measure that promotes an atmosphere of hostility between regulators and the regulated community. California's environmental objectives can be better achieved through cooperative working relationships that emphasize compliance with existing laws rather than excessive fines and criminal penalties.
Read more Environmental Impacts articles

Capitol updates archive 989898989