Dramatic Penalty Increase Passes Assembly Committee

 

The August 16th CalChamber Alert newsletter reported that the Assembly Natural Resources Committee has passed a California Chamber of Commerce-opposed "job killer" bill that dramatically increases penalties for a single-day violation triggered by a release of an air toxic contaminant. SB 691 (Hancock; D-Berkeley) dramatically increases existing strict-liability penalties for nuisance-based, nonvehicular air-quality violations without adequately defining what types and levels of pollution would trigger those penalties. Businesses, public agencies, universities, power producers and hospitals are among entities subject to the increased penalties.

In her testimony to the committee, CalChamber Policy Advocate Mira Guertin said that SB 691 is just too broad.

"There’s nothing in the bill that limits this to events that affect large numbers of people and more importantly to large amounts of a chemical being released," said Guertin. "That has been the subject of negotiations for the last five months, all through the Senate and all through the summer, and the language is still not in the bill."

SB 691 proposes a tenfold increase in penalties for Title V facilities for a one-day violation from a maximum of $10,000 under current law to a maximum of $100,000.

Although the proponents claim SB 691 is intended to apply only to "major events," it does not define "major events" or criteria for this enhanced penalty.

As a result, this increase could affect any Title V facility in California. There are more than 700 Title V facilities in the Bay Area Air Quality Management District, South Coast Air Quality Management District and San Joaquin Air Pollution Control District alone.

Casts Broad Net 

Nuisance penalties are relatively low because "nuisance" is a strict liability offense. This means that someone accused of creating a nuisance can be held liable even if they had no knowledge of the event and no intent to create a nuisance.

An air district simply has to allege that several people have complained about an air emission and the alleged violator would be subject to enormous liability.

While the bill sponsor contends the bill is meant to address major air emission incidents within an air district or jurisdiction that disrupts the lives of thousands of people, the bill has no standards of review or criteria to determine if any such standard has been met.

Rather, the bill would cast a broad net. Examples of those affected under this new penalty ceiling include: universities, public agencies, food processors, manufacturers, power producers and hospitals.

Increasing the maximum penalty from $10,000 to $100,000 is a significant step that would impose a penalty based simply on allegations of annoyance, whether or not the actual emissions are harmful or in violation of an existing permit standard or requirement.

Under existing law, California’s air pollution penalty statutes gradually increase with penalties that are based on the intent of the violator and severity of the violations. The current penalty structure already allows the air district to assess significant penalties.

In fact, an air district has the authority to levy a penalty of up to $1 million if a nuisance violation is willful and intentional and causes great bodily harm.

SB 691 significantly increases the penalty in an area where air districts already have extraordinary prosecutorial and penalty recovery authority. The air district can determine when a nuisance occurs and then has complete discretion to determine the amount of penalty. SB 691 creates an incentive for the air district to levy the highest penalties possible.

The alleged violator has virtually no defenses to a strict liability offense. The district has to prove only that a few people complained or were annoyed. The district does not have to prove how many people were exposed to air emissions, the severity of the exposure, whether any permit conditions were violated or whether there were any consequences of the exposure—for example, a visit to a doctor or hospital. The air district does not have any burden of proof that the nuisance was so extraordinary that it would justify a $100,000 penalty.