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Administrative Penalty Program SB 527 - Regulatory Item

Administrative Penalty Program SB 527 - Regulatory Item. California Air Resources Board Enforcement Division Public Hearing December 12, 2002 Sacramento, California. Current Penalty Process. Historically, enforcement actions resolved through negotiated mutual settlements

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Administrative Penalty Program SB 527 - Regulatory Item

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  1. Administrative Penalty ProgramSB 527 - Regulatory Item California Air Resources Board Enforcement Division Public Hearing December 12, 2002 Sacramento, California

  2. CurrentPenalty Process • Historically, enforcement actions resolved through negotiated mutual settlements • When an acceptable settlement cannot be reached, the matter may be pursued through the courts

  3. Progression of Administrative Penalties • 1990/SB 1874 - Heavy duty diesel vehicle inspection program (HSC 44011.6) • 1995/SB 163 - Fuels-Related Regulations (HSC 43028 & 43031) • 2001/SB 527 - Expands ARB’s authority to impose administrative civil penalties (HSC sections 42410 and 43023)

  4. SB 527 Limits Penalty Assessment Amounts • $10,000 per violation per day • Maximum assessment not to exceed $100,000 • Cannot exceed the judicial civil penalty that could be assessed under the HSCfor that violation

  5. Three Tier Enforcement Process • Most serious, complex cases are referred to judicial courts for enforcement if mutual settlement is unsuccessful • Routine cases, administrative penalties could be pursued • Complaints may be issued for more serious and complex of these remaining violations and citations issued for least serious, clear cut violations

  6. Staff’s Proposal Broadens Existing Procedures • Allows issuance of administrative penalties and administrative citations and complaints for all violations covered by SB 527 • Existing penalty provisions for fuel-related complaints remain unchanged ($25,000 - $250,000) • Different maximum penalties for violations covered under SB 527 are set forth separately ($10,000 - $100,000)

  7. Other Directives of SB 527 • In response to other directives of SB 527, the staff has proposed modifications to: • Clarify that an administrative penalty is an alternative and not an addition to a judicial penalty • Make clear that ARB’s authority only extends to categories of violations for which it maintains authority to impose judicial penalties • ALJ appointed by the State Office of Administrative Hearings, not ARB, shall conduct Hearings authorized by sections 42410 and 43023 of the HSC

  8. Amendments - To Comply with Provisions of the Legislation Amend both hearing procedure regulations to add civil penalty limits in accordance with SB 527 Amend the existing criteria used for assessing penalties for fuels violations to also apply to assessments for violations covered under HSC §43023, and Add a new provision establishing penalty assessment criteria for violations covered under HSC §42410.

  9. New Criteria for Assessing Administrative Penalties for Stationary Sources • The extent of harm caused by the violation; • The nature and persistence of the violation; • The length of time over which the violation occurs; • The frequency of past violations; • The record of maintenance; • The unproven or innovative nature of the control equipment;

  10. New Criteria (con’.t) • Any action taken by the respondent, including the nature, extent, and time of response of the cleanup and construction undertaken, to mitigate the violation; • The financial burden to the respondent; and • The penalties or range of penalties set forth in the underlying rules or regulations that have been violated.

  11. Other Minor Modifications For purposes of clarity and conformity with other state administrative hearing procedures

  12. Administrative Hearing Process • Citation issued (e.g. typical $1,000.00 penalty) • If disputed, citee may request a hearing • Office of Administrative Hearing’s Administrative Law Judge would hear case • Burden of proof on ARB Staff • Each side given opportunity to present evidence and tell their story • Judge considers the issues raised and issues a decision

  13. Environmental and Fiscal Impacts • No adverse impact on the environment • No environmental justice issues • Will not aversely affect businesses or have economic or fiscal impact on state or local governments

  14. Benefits • More efficient and expeditious process than judicial court • Provide ARB with greater flexibility and allow staff to better utilize enforcement resources • Affords fair hearings and due process

  15. Alternatives Considered • The Legislature set forth specific directives to implement an alternative administrative enforcement process • Use the existing procedures • Staff determined that no alternative would be more effective

  16. Public Comments • None received during the 45-day comment period preceding this meeting • No Issues Identified • No Opposition Raised

  17. Report to the Legislature Report to the Legislature and the Governor is due January 1, 2005 on administrative penalties assessed by ARB under SB 527

  18. Recommendation Staff recommends that the Board adopt the proposed modifications to the existing administrative hearing procedures

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