Air quality penalty bill moves out of committee

By CMTA Staff

Capitol Update, April 7, 2006 Share this on FacebookTweet thisEmail this to a friend

Senator Martha Escutia (D-Los Angeles) has introduced SB 1205, the Children’s Breathing Rights Act, which significantly raises the penalties for specified air violations (potentially including misdemeanors) from non-vehicular sources from a maximum of $1,000 to $15,000 per day, or imprisonment in the county jail for up to nine months, or both.  This bill would also assess an additional civil penalty of not more than $100,000 per day per violation committed by a serious and chronic violator.  It was amended on March 30th, restoring affirmative defenses and requirements for actual injuries.  In spite of these changes, this is still a very bad bill.

Statewide, air quality has consistently improved over the past 20 plus years, which indicates that the current emissions control programs are working well.  Stationary source compliance rates have generally been shown to be very good.  In fact, due to successful implementation of emission control standards, stationary sources are now only a small portion of the overall statewide emissions inventory.  SB 1205 would not only have a major impact on large industrial facilities, but also small businesses such as restaurants, dry cleaners, and auto repair shops.

Companies that have emission sources under Title V (a federal operating permit program) are liable for up to $50,000 in civil or criminal penalties for almost any violation, including strict liability.  For Title V sources, this approach eliminates the longstanding graduated approach used in California air pollution control law, where the maximum penalty increases as the source’s degree of culpability for the alleged offense increases.  CMTA believes that there is no justification for treating certain sources differently just because they fall under Title V.

SB 1205 would establish a new category of violator, a "serious and chronic violator."  The serious and chronic violator, to be defined by the State Air Resources Board, would be subject to civil penalties up to $100,000/day. However, the statute is presently written so loosely that it doesn’t require that the violation be chronic to be subject to the penalty and written so broadly that emissions over any limit would be considered serious.  Paperwork errors could even be considered serious.  

Current law already provides a graduated civil and criminal penalty structure with penalties of up to $250,000/day ($1million/day for a corporation) for willful and intentional emissions violations that cause great bodily injury or death.  Existing law (HSC subsection 42330 et seq) also provides a mechanism for denying the renewal of operating permits for chronic violators.  Additional civil penalties are not needed.

The bill is based on two inaccurate premises: one, that companies budget to absorb current air violation penalties so that they can continue to pollute at will; and two, that the issuance and settlement of a notice of violation means that an air quality violation has actually occurred.  Due to the time and expense involved in rescinding an unjustified "Notice of Violation", some facilities will often agree to a settlement even if it disagrees that a violation occurred.  A listing of all violation notices and settlements could make facility compliance look worse than it really is.

The penalties collected from the new fines under SB 1205 would be distributed 50 percent to local children’s health initiatives, 25 percent to the air district and 25 percent to the local, city, or county agencies to ostensibly ensure that the most egregious violators are prosecuted.  This amounts to a bounty hunter provision.

SB 1205 was heard in the Senate Judiciary Committee on April 4, passing 3-1.  It will probably be double referred to another policy committee, but it has yet to be scheduled.  This bill was voted the worst environmental bill this year by CMTA’s Environmental Quality Committee. 
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