Bill targets business on air quality issues

April 4, 2013

By Katy Grimes

Lawmakers are notorious for responding to tragedies and accidents with often unnecessary legislation. It’s a Kodak moment none seem to be able to resist, especially over environmental issues.

It happened again Wednesday in the Senate Environmental Quality Committee. Several bills were passed by the committee, including SB 691 by state Sen. Loni Hancock, D-Berkeley, a bill targeting large businesses for air quality accidents.

Despite facing legitimate legal and technical challenges, the committee ignored protocol, and allowed the bills to move on with the proviso that work would continue to be done on the bills.

Penalizing business over accidents

Taking aim at Chevron over the August 2012 refinery fire, SB 691 is put forth as the solution to a big problem. It would dramatically increase fines and penalties for businesses which have pollution accidents and air quality violations. Hancock said the bill would “incentivize” air quality compliance. And she added, “incentives are better than mandates.”

Hancock’s bill would quadruple the civil penalties large polluters must pay for air quality regulation violations. But what Hancock did not explain is that local air quality districts will be able to fine businesses for violations to air quality regulations, then pocket the money. The “incentives” appear to be on the side of the government.

“I am introducing this bill because current penalties are far too low for polluters who cause thousands of people to suffer,” Hancock said in a news release.

Under current law, penalties are assessed per day. Hancock said her concern was that, for a one-day violation like the Richmond fire, Chevron may only face a minimal fine.

“Single-day violations of air quality regulations that affect entire communities lack adequate financial consequences,” she explained. “Current penalties are simply inadequate to ensure compliance with the law from large polluters.”

Sponsored by the Bay Area Quality Management District and Breathe California, SB 691 would only “increase the penalty ceiling, and not necessarily the penalty,” Hancock said.

“One-day violations disrupt entire communities,” Tom Addison with the BAQMD said. He concurred that only the penalty ceiling would be increased, not the penalties.

Nuisance or dangerous?

Ed Manning, representing the Western States Petroleum Association, challenged Hancock’s charge of malicious negligence by large companies when an industrial accident occurs.

Specifically, Manning took issue with this wording of Hancock’s bill:

“Prohibits a person, except as specified, from discharging air contaminants or other material that cause injury, detriment, nuisance, or annoyance or endanger the comfort, repose, health or safety to any considerable number of persons, or to the public.”

“Nuisance is not non-compliance,” Manning said. He explained what constitutes a “nuisance” is different in every air quality management district in the state. A “triggered event” can be as small as one household complaining, he said. And air quality districts do not have to prove there was a violation for an official “nuisance” to have occurred.

“The reason nuisance penalties are so low is because the burden of proof is so low,” Manning said. Nuisance claims triggered by a complaint also are a problem for small businesses. “Penalties up to $10,000 are difficult for very small businesses.”

Sen. Ted Gaines, R-Rocklin, asked Hancock, “What about a real accident?” He explained that financially penalizing a business for an actual accident, which is not deliberate or intentional, is not right.

Hancock largely ignored Gaines’ question and Manning’s concerns, and instead just repeated, “It’s a huge public safety problem.” She claimed there appeared to be consensus on the bill. “I look forward to working with the opposition as the bill moves forward,” she said. “I think the bill is really needed, very, very much.”