BILL NUMBER: SB 1176 AMENDED
BILL TEXT
AMENDED IN SENATE MARCH 25, 2008
INTRODUCED BY Senator Perata
FEBRUARY 8, 2008
An act to amend Sections 13167, 13168, 13201, 13205, 13241, 13242,
13385, and 13388 of, and to add Section 13232 to, the Water Code,
relating to water.
LEGISLATIVE COUNSEL'S DIGEST
SB 1176, as amended, Perata. Water quality.
(1) Under existing law, the State Water Resources Control Board
and the California regional water quality control boards prescribe
waste discharge requirements in accordance with the federal national
pollutant discharge elimination system (NPDES) permit program
established by the federal Clean Water Act, and the Porter-Cologne
Water Quality Control Act (state act). Existing law designates the
state board as the state water pollution control agency for all
purposes stated in the Clean Water Act and any other federal act.
Federal regulations provide for program revision and withdrawal and
the voluntary transfer of program responsibilities when a state
program no longer complies with the requirements of the Clean Water
Act and the state fails to take corrective action.
This bill would make legislative findings and declarations related
to the regional boards and their responsibilities under the Clean
Water Act and the state act.
The bill would authorize the state board to order the commencement
of withdrawal proceedings with regard to a regional board's program
authority on the state board's own initiative or in response to a
petition from an interested person. If the state board concludes that
a regional board has substantially and continually failed to
administer water quality programs in conformity with the appropriate
laws and regulations, the state board would be required to list the
deficiencies in the program, and provide the regional board a
reasonable time to take corrective action. If the regional board
fails to take the appropriate corrective action within the prescribed
timeframe, the state board would be required to either withdraw the
regional board's program authority or set a schedule for review of
program authority after a probationary period. The bill would require
any withdrawal order to state whether the state board or another
regional board would become the implementing agency within the
jurisdiction of the former regional board.
(2) The state act establishes 9 regions, each governed by a
California regional water quality control board comprised of 9
members appointed by the Governor, with prescribed experience or
associations. The state act requires that each regional board member
represent and act on behalf of all the people and reside or have a
principal place of business within the region. Under the state act,
if an appointment cannot be made for the county government member
because of a restriction under existing law on income directly or
indirectly from any person subject to waste discharge requirements or
applicants for waste discharge requirements, the state act
authorizes the appointment of persons not specifically associated
with any category.
This bill would revise those provisions to establish regional
boards of 7 members, to be appointed by the Governor. Each member
would be required to be appointed on the basis of his or her
demonstrated interest and proven ability in the field of water
quality, including water pollution prevention, water pollution
control, and understanding of water pollution and related water
resource management problems in their region, and his or her ability
to attend substantially all meetings of the regional board, and to
actively discharge all duties and responsibilities of a member of the
regional board.
(3) The state act provides that each member of a regional board
receive $100 for each day that member is engaged in the performance
of official duties, except as specified, and that the total
compensation received by members of each regional board not exceed,
in any one fiscal year, the sum of $13,500.
This bill would provide that each regional board member may
receive $500 for each day that member is engaged in the performance
of official duties. The bill would provide that the total
compensation received by a regional board member in any fiscal year
may not exceed $30,000.
(4) The state act prohibits a person from being a member of the
state board or a regional board if that person receives, or has
received, during the previous 2 years a significant portion of his or
her income directly or indirectly from any person subject to waste
discharge requirements or applicants for waste discharge
requirements.
This bill would revise this provision with regard to regional
boards by specifying that no person shall be a regional board member
if that person receives, or has received, during the previous 2 years
a significant portion of his or her income directly or indirectly
from any person subject to waste discharge requirements, or
applicants for waste discharge requirements, and the requirements
govern discharges within the jurisdiction of that regional board.
(5) The state act requires the regional boards to submit annual
budgets to the state board, and to prepare an annual budget
concerning its activities and the activities of the regional boards.
This bill would require the regional boards to submit workplans
associated with those budgets and an assessment of progress in terms
of the prior year's workplans. The state board would be required to
prepare and distribute a model workplan for use by the regional
boards and to post the workplans and assessments on its Internet Web
site. The state board would be required to take into consideration
the workplans and assessments in connection with the preparation of
the annual budget.
(6) The state act requires the regional boards to establish water
quality objectives in water quality control plans that ensure the
reasonable protection of beneficial uses and the prevention of
nuisance. In doing so, the state board is required to consider
specified factors, including economic considerations.
This bill would specify that the economic considerations required
to be undertaken by the state board shall include an assessment of
the overall economic value of improved water quality.
(7) The state act requires the implementation program for
achieving water quality objectives to include a time schedule for the
actions to be taken to achieve the objectives.
This bill would require each regional board to ensure that its
water quality control plan include time schedules for all these
actions by September 1, 2009, and to review and, as needed, update
annually those time schedules.
(8) The state act requires the state board to report and update
information on its Internet Web site, at least annually on or before
January 1, regarding its enforcement activities. The state act
requires the state board to include in the information a compilation
of the number of waste discharge requirements in the previous
calendar year and an analysis of the effectiveness of current
enforcement policies.
This bill instead would require the state board to report and
update information on its Internet Web site, at least annually on or
before April 1, regarding all enforcement activities undertaken by
the state board and the regional boards pursuant to the Clean Water
Act or the state act in the previous calendar year. The bill would
require the state board to include in the information a compilation
of the number and type of violations of waste discharge requirements
and requirements of waivers of waste discharge requirements in the
previous calendar year and an analysis of the effectiveness of, and
omissions in, current enforcement efforts and policies.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature hereby finds and declares all of the
following:
(a) The 1949 Dickey Water Pollution Act established nine regional
water boards located in each of the major California watersheds. The
regional boards have primary responsibility for overseeing and
enforcing the state's pollution abatement programs. The act
established five gubernatorial appointees, representing water supply,
irrigated agriculture, industry, and municipal and county government
in that region, to serve on each regional water board. This number
has since grown to nine members and includes a public member seat,
two members with special competence in water quality, and a seat for
a member associated with a recreation, fish, or wildlife
nongovernmental organization.
(b) The complexity of water quality and water supply laws and
technologies in the intervening 58 years has grown exponentially,
while the expertise and low pay on the regional boards have remained
relatively constant. The significant complexity of problems and laws
brings an increased need for expertise on the regional board, yet the
substantive requirements for the regional board member position have
not similarly increased. The large number of appointments (81
regional board members) makes tracking the members' performance
difficult, heightening the need for the clear, strong expertise of
each board member.
(c) The federal Clean Water Act (33 U.S.C. Sec. 1252 et seq.)
envisions delegation of water pollution control responsibility to the
states. Federal regulations establish procedures for approving a
state program and the responsibilities of that program. Provisions
for withdrawal of that authority are found at Section 123.63 of Part
40 of the Code of Federal Regulations and provide that the United
States Environmental Protection Agency may withdraw federal approval
when a state program no longer complies with the requirements of the
Clean Water Act and the state fails to take corrective action. These
circumstances include the state's failure to issue permits, act on
violations of permits or other program requirements, seek adequate
enforcement penalties or collect administrative fines when imposed,
inspect and monitor activities subject to regulation, or develop an
adequate regulatory program for developing water quality-based
effluent limits in national pollutant discharge elimination system
permits.
(d) The Porter-Cologne Water Quality Control Act (Division 7
(commencing with Section 13000) of the Water Code) designates the
state board as the state water pollution control agency for all
purposes stated in the Clean Water Act and any other federal act.
Section 13260 of the act places responsibility on the regional boards
for ensuring that waste discharge reports are filed by any person
discharging, or proposing to discharge, waste in any region that
could affect the quality of "waters of the state," and that
appropriate regulatory action is taken after the filing of the
reports. The act defines "waters of the state" as "any surface water
or groundwater, including saline waters, within the boundaries of the
state."
(e) California is the only state in the nation with autonomous
regional water boards that implement the Clean Water Act program
requirements.
(f) Numerous state and federal mandates are not being met in
California. They include the following:
(1) Section 305(b) of the Clean Water Act requires each state to
prepare a water quality report at least every two years; California
has not submitted a report to the United States Environmental
Protection Agency since 2002. Moreover, despite the mandate that all
waters are to be assessed, the 2002 document reports only on the
health of one-third of the state's lakes and reservoirs, 22 percent
of the state's coastal shoreline miles, and a mere 15 percent of
river and stream miles.
(2) Although the Porter-Cologne Water Quality Control Act requires
the regional boards to regulate all discharges to surface water or
groundwater that "could affect the quality of the waters of the
state," every one of the regional boards has failed to regulate one
or more major sources of polluted runoff into surface water, and
there is virtually no such regulation of discharges to groundwater.
As a result, polluted runoff is implicated in more than 76 percent of
the waters identified as "impaired" in California.
(3) The state has established approved cleanup plans for only a
handful of the water bodies listed as "impaired" for one or more
pollutants, and only a small fraction of those waters have since been
deemed "clean." Many of these listings will not have cleanup plans
before 2019, with no deadlines set for actual cleanup of the waters
listed.
(4) A February 2000 report by the Legislative Analyst's Office
identified numerous deficiencies in permit issuance, inspections,
inconsistencies in enforcement across the state, inadequate
enforcement followup, and other problems, most of which continue
today.
(5) An August 2006 state board enforcement report to the
Legislature concluded that the water board staff does not detect
violations for several months after they occur and showed
significantly variable numbers of enforcement actions and violation
rates across regional water boards.
SEC. 2. Section 13167 of the Water Code is amended to read:
13167. (a) The state board shall implement, with the assistance
of the regional boards, a public information program on matters
involving water quality, and shall place and maintain on its Internet
Web site, in a format accessible to the general public, an
information file on water quality monitoring, assessment, research,
standards, regulation, enforcement, and other pertinent matters.
(b) The information file described in subdivision (a) shall
include, but need not be limited to, copies of permits, waste
discharge requirements, waivers, enforcement actions, and petitions
for review of these actions pursuant to this division. The file shall
include copies of water quality control plans and policies,
including any relevant management agency agreements pursuant to this
chapter and Chapter 4 (commencing with Section 13200), and monitoring
data and assessment information, or shall identify Internet links to
that information. The state board, in consultation with the regional
boards, shall ensure that the information is available in single
locations, rather than separately by region, and that the information
is presented in a manner easily understandable by the general
public.
(c) The state board shall continuously report and update
information on its Internet Web site, but at a minimum, annually on
or before January April 1, regarding
its enforcement activities all enforcement
activities undertaken by the state board or a regional board pursuant
to the Clean Water Act (33 U.S.C. Sec. 1251 et seq.) or this
division in the previous calendar year . The information shall
include , but need not be limited to, all of the
following:
(1) A compilation of the number and type of violations
of waste discharge requirements in the previous calendar year,
including stormwater enforcement violations.
(2) A compilation of the number and type of violations of
requirements of waivers of waste discharge requirements in the
previous calendar year.
(2)
(3) A record of the formal and informal compliance and
enforcement actions taken for each violation, including stormwater
enforcement actions.
(3)
(4) An analysis of the effectiveness of
current enforcement , and omissions in,
current enforcement efforts and policies, including mandatory
minimum penalties.
SEC. 3. Section 13168 of the Water Code is amended to read:
13168. The state board shall allocate to the regional boards from
funds appropriated to the state board that portion that may be
necessary for the administrative expenses of the regional boards. The
regional boards shall submit annual budgets to the state board,
along with workplans associated with those budgets and an assessment
of progress in terms of the prior year's workplans. The state board
shall prepare and distribute a model workplan for use by the regional
boards, and shall review and, as needed, update annually the model
workplan. All workplans and assessments of progress shall be posted
on the state board's Internet Web site. Subject to Chapter 3
(commencing with Section 13290) of Part 3 of Division 3 of Title 2 of
the Government Code and any other laws giving the Department of
Finance fiscal and budgetary control over state departments
generally, the state board shall prepare an annual budget concerning
its activities and the activities of the regional boards, taking into
consideration the workplans and assessments described in this
section.
SEC. 4. Section 13201 of the Water Code is amended to read:
13201. (a) There is a regional board for each of the regions
described in Section 13200. Each board shall consist of seven members
appointed by the Governor, each of whom shall represent, and act on
behalf of, all the people, and shall reside or have a principal place
of business within the region.
(b) Each member shall be appointed on the basis of his or her
demonstrated interest and proven ability in the field of water
quality, including water pollution prevention, water pollution
control, and understanding of the water pollution and related water
resource management problems in the applicable region.
(c) Each member shall be appointed on the basis of his or her
ability to attend substantially all meetings of the regional board,
and to actively discharge all duties and responsibilities of a member
of the regional board.
(d) All persons appointed to a regional board are subject to
Senate confirmation, but are not required to appear before any
committee of the Senate for purposes of that confirmation, unless
specifically requested to appear by the Senate Committee on Rules.
(e) Insofar as practicable, appointments shall be made in a manner
that results in representation on the board from all parts of the
region.
(f) The reduction in the number of members on each regional board
required by amendments made to this section during the second year of
the 2007-08 Regular Session of the Legislature shall be achieved
according to the ordinary expiration of terms of incumbents and other
vacancies. After a regional board consists of only seven members, an
individual subsequently appointed to fill a vacancy shall possess
the qualifications specified in this section.
SEC. 5. Section 13205 of the Water Code is amended to read:
13205. Each member of a regional board shall receive five hundred
dollars ($500) for each day during which that member is engaged in
the performance of official duties, including preparation for
regional board meetings, except that no member shall be entitled to
receive the five hundred dollars ($500) compensation if the member
otherwise receives compensation from other sources for performing
those duties. The total compensation received by members of each
regional board shall not exceed, in any one fiscal year, the sum of
thirty thousand dollars ($30,000). A member may decline compensation.
The annual compensation provided by this section shall be increased
in any fiscal year in which a general salary increase is provided for
state employees. The amount of the increase provided by this section
shall be comparable to, but shall not exceed, the percentage of the
general salary increases provided for state employees during that
fiscal year. In addition to the compensation, each member shall be
reimbursed for necessary traveling and other expenses incurred in the
performance of official duties.
SEC. 6. Section 13232 is added to the Water Code, to read:
13232. (a) (1) The state board may order the commencement of
regional board program withdrawal proceedings on its own initiative
or in response to a petition from an interested person alleging the
substantial and continuing failure of a regional board to comply with
the requirements of this division or the federal Clean Water Act (33
U.S.C. Sec. 1252 et seq.). These circumstances include, but are not
limited to, the following:
(A) Substantial and continuing failure to exercise adequate
control over activities required to be regulated under applicable
state or federal law, including failure to issue permits, waste
discharge requirements, or waivers of waste discharge requirements.
(B) Repeated issuance of permits, waste discharge requirements, or
waivers of waste discharge requirements that do not conform to the
requirements of applicable state or federal law.
(C) Substantial and continuing failure to conduct adequate
oversight over discharges subject to memoranda of agreement or
understanding with other agencies.
(D) Substantial and continuing failure to comply with the public
participation requirements of applicable state or federal law.
(E) Substantial and continuing failure to meet the discharger
identification, inspection, penalty enforcement, and other
requirements of the regional board's enforcement program.
(F) Substantial and continuing failure to develop an adequate
regulatory program for developing water quality-based effluent limits
in national pollution discharge elimination system (NPDES) permits.
(2) The state board shall respond in writing to any petition to
commence regional board program withdrawal proceedings, and may
conduct an informal investigation of the allegations in the petition
to determine whether cause exists to commence proceedings under this
section. The state board's order commencing proceedings under this
section shall fix a time and place for the commencement of the
hearing and shall specify the allegations against the regional board
that are to be considered at the hearing. Within 30 days the regional
board shall admit or deny these allegations in a written answer. The
party seeking withdrawal of the regional board's program shall have
the burden of producing the evidence in a hearing under this
paragraph.
(b) If the state board concludes that the regional board has
substantially and continually failed to administer mandated state and
federal water quality programs in conformity with the appropriate
laws and regulations, the state board shall list the deficiencies in
the program or programs and provide the regional board a reasonable
time, not to exceed 90 days, to take such appropriate corrective
action as the state board determines necessary.
(c) Corrective actions shall include specific requirements for
issuing permits, conducting more frequent inspections and
evaluations, and taking additional enforcement actions, in addition
to other actions necessary for improving regional board performance.
(d) Within the timeframe prescribed by the state board, the
regional board shall take the appropriate corrective action that is
required by the state board, and shall file with the state board and
all parties a statement certified by the regional board that
appropriate corrective action has been taken and that funding has
been established to support continuation of each corrective action,
as needed. The state board may require a further showing in addition
to the certified statement.
(e) If the regional board fails to take the appropriate corrective
action and file a certified statement within the timeframe
prescribed by the state board, the state board shall issue a
supplementary order that either withdraws the regional board's
program authority, or sets a schedule for review of program authority
after a probationary period during which additional corrective
actions shall be required.
(f) During the probationary period, the state board or another
regional board shall assume partial or total responsibility for the
specified regional board's duties.
(g) If at the conclusion of the probationary period, the regional
board has taken and certified appropriate corrective action, the
state board shall issue a supplementary order stating that the
regional board's authority to implement state and federal law is not
withdrawn.
(h) (1) If, at the end of the probationary period, or the end of
the state board's withdrawal proceedings if there is no probationary
period, the state board determines that the regional board has
substantially and continually failed to meet the applicable
requirements of state or federal law, the state board shall withdraw
authority from the regional board, notwithstanding any other
provision of this division. The withdrawal order shall state whether
the state board, or another regional board, or both, shall become the
implementing agency within the jurisdiction of the former regional
board.
(2) Withdrawal of authority shall continue until the regional
board makes, in a public hearing, certified demonstrations necessary
to ensure immediate and continued compliance with applicable state
and federal law.
(i) Withdrawal of authority under this section does not relieve
any person from complying with the requirements of state or federal
law; nor does it affect the validity of actions by the state prior to
withdrawal.
SEC. 7. Section 13241 of the Water Code is amended to read:
13241. (a) Each regional board shall establish water quality
objectives in water quality control plans that in its judgment will
ensure the reasonable protection of beneficial uses and the
prevention of nuisance; however, it is recognized that it may be
possible for the quality of water to be changed to some degree
without unreasonably affecting beneficial uses.
(b) Factors to be considered by a regional board in establishing
water quality objectives shall include, but not necessarily be
limited to, all of the following:
(1) Past, present, and probable future beneficial uses of water.
(2) Environmental characteristics of the hydrographic unit under
consideration, including the quality of water available thereto.
(3) Water quality conditions that could reasonably be achieved
through the coordinated control of all factors which affect water
quality in the area.
(4) Economic considerations, which shall include an assessment of
the overall economic value of improved water quality.
(5) The need for developing housing within the region.
(6) The need to develop and use recycled water.
SEC. 8. Section 13242 of the Water Code is amended to read:
13242. The program of implementation for achieving water quality
objectives shall include, but not be limited to:
(a) A description of the nature of actions which are necessary to
achieve the objectives, including recommendations for appropriate
action by any entity, public or private.
(b) A time schedule for the actions to be taken. Each regional
board shall ensure that its water quality control plan includes time
schedules for all these actions by September 1, 2009, and shall
review and, as needed, update annually these time schedules.
(c) A description of surveillance to be undertaken to determine
compliance with objectives.
SEC. 9. Section 13385 of the Water Code is amended to read:
13385. (a) Any person who violates any of the following shall be
liable civilly in accordance with this section:
(1) Section 13375 or 13376.
(2) Any waste discharge requirements or dredged or fill material
permit issued pursuant to this chapter or any water quality
certification issued pursuant to Section 13160.
(3) Any requirements established pursuant to Section 13383.
(4) Any order or prohibition issued pursuant to Section 13243 or
Article 1 (commencing with Section 13300) of Chapter 5, if the
activity subject to the order or prohibition is subject to regulation
under this chapter.
(5) Any requirements of Section 301, 302, 306, 307, 308, 318, 401,
or 405 of the Clean Water Act, as amended.
(6) Any requirement imposed in a pretreatment program approved
pursuant to waste discharge requirements issued under Section 13377
or approved pursuant to a permit issued by the administrator.
(b) Civil liability may be imposed by the superior court in an
amount not to exceed the sum of both of the following:
(1) Twenty-five thousand dollars ($25,000) for each day in which
the violation occurs.
(2) Where there is a discharge, any portion of which is not
susceptible to cleanup or is not cleaned up, and the volume
discharged but not cleaned up exceeds 1,000 gallons, an additional
liability not to exceed twenty-five dollars ($25) multiplied by the
number of gallons by which the volume discharged but not cleaned up
exceeds 1,000 gallons.
The Attorney General, upon request of a regional board or the
state board, shall petition the superior court to impose the
liability.
(c) Civil liability may be imposed administratively by the state
board or a regional board pursuant to Article 2.5 (commencing with
Section 13323) of Chapter 5 in an amount not to exceed the sum of
both of the following:
(1) Ten thousand dollars ($10,000) for each day in which the
violation occurs.
(2) Where there is a discharge, any portion of which is not
susceptible to cleanup or is not cleaned up, and the volume
discharged but not cleaned up exceeds 1,000 gallons, an additional
liability not to exceed ten dollars ($10) multiplied by the number of
gallons by which the volume discharged but not cleaned up exceeds
1,000 gallons.
(d) For purposes of subdivisions (b) and (c), "discharge" includes
any discharge to navigable waters of the United States, any
introduction of pollutants into a publicly owned treatment works, or
any use or disposal of sewage sludge.
(e) In determining the amount of any liability imposed under this
section, the regional board, the state board, or the superior court,
as the case may be, shall take into account the nature,
circumstances, extent, and gravity of the violation or violations,
whether the discharge is susceptible to cleanup or abatement, the
degree of toxicity of the discharge, and, with respect to the
violator, the ability to pay, the effect on its ability to continue
its business, any voluntary cleanup efforts undertaken, any prior
history of violations, the degree of culpability, economic benefit or
savings, if any, resulting from the violation, and other matters
that justice may require. At a minimum, liability shall be assessed
at a level that recovers the economic benefits, if any, derived from
the acts that constitute the violation.
(f) (1) Except as provided in paragraph (2), for the purposes of
this section, a single operational upset that leads to simultaneous
violations of more than one pollutant parameter shall be treated as a
single violation.
(2) (A) For the purposes of subdivisions (h) and (i), a single
operational upset in a wastewater treatment unit that treats
wastewater using a biological treatment process shall be treated as a
single violation, even if the operational upset results in
violations of more than one effluent limitation and the violations
continue for a period of more than one day, if all of the following
apply:
(i) The discharger demonstrates all of the following:
(I) The upset was not caused by wastewater treatment operator
error and was not due to discharger negligence.
(II) But for the operational upset of the biological treatment
process, the violations would not have occurred nor would they have
continued for more than one day.
(III) The discharger carried out all reasonable and immediately
feasible actions to reduce noncompliance with the applicable effluent
limitations.
(ii) The discharger is implementing an approved pretreatment
program, if so required by federal or state law.
(B) Subparagraph (A) only applies to violations that occur during
a period for which the regional board has determined that violations
are unavoidable, but in no case may that period exceed 30 days.
(g) Remedies under this section are in addition to, and do not
supersede or limit, any other remedies, civil or criminal, except
that no liability shall be recoverable under Section 13261, 13265,
13268, or 13350 for violations for which liability is recovered under
this section.
(h) (1) Notwithstanding any other provision of this division, and
except as provided in subdivisions (j), (k), and (), a mandatory
minimum penalty of three thousand dollars ($3,000) shall be assessed
for each serious violation.
(2) For the purposes of this section, a "serious violation" means
any waste discharge that violates the effluent limitations contained
in the applicable waste discharge requirements for a Group II
pollutant, as specified in Appendix A to Section 123.45 of Title 40
of the Code of Federal Regulations, by 20 percent or more or for a
Group I pollutant, as specified in Appendix A to Section 123.45 of
Title 40 of the Code of Federal Regulations, by 40 percent or more.
(i) (1) Notwithstanding any other provision of this division, and
except as provided in subdivisions (j), (k), and (), a mandatory
minimum penalty of three thousand dollars ($3,000) shall be assessed
for each violation whenever the person does any of the following four
or more times in any period of six consecutive months, except that
the requirement to assess the mandatory minimum penalty shall not be
applicable to the first three violations:
(A) Violates a waste discharge requirement effluent limitation.
(B) Fails to file a report pursuant to Section 13260.
(C) Files an incomplete report pursuant to Section 13260.
(D) Violates a toxicity effluent limitation contained in the
applicable waste discharge requirements where the waste discharge
requirements do not contain pollutant-specific effluent limitations
for toxic pollutants.
(2) For the purposes of this section, a "period of six consecutive
months" means the period commencing on the date that one of the
violations described in this subdivision occurs and ending 180 days
after that date.
(j) Subdivisions (h) and (i) do not apply to any of the following:
(1) A violation caused by one or any combination of the following:
(A) An act of war.
(B) An unanticipated, grave natural disaster or other natural
phenomenon of an exceptional, inevitable, and irresistible character,
the effects of which could not have been prevented or avoided by the
exercise of due care or foresight.
(C) An intentional act of a third party, the effects of which
could not have been prevented or avoided by the exercise of due care
or foresight.
(D) (i) The operation of a new or reconstructed wastewater
treatment unit during a defined period of adjusting or testing, not
to exceed 90 days for a wastewater treatment unit that relies on a
biological treatment process and not to exceed 30
days for any other wastewater treatment
unit, if all of the following requirements are met:
(I) The discharger has submitted to the regional board, at least
30 days in advance of the operation, an operations plan that
describes the actions the discharger will take during the period of
adjusting and testing, including steps to prevent violations and
identifies the shortest reasonable time required for the period of
adjusting and testing, not to exceed 90 days for a wastewater
treatment unit that relies on a biological treatment process and not
to exceed 30 days for any other wastewater treatment unit.
(II) The regional board has not objected in writing to the
operations plan.
(III) The discharger demonstrates that the violations resulted
from the operation of the new or reconstructed wastewater treatment
unit and that the violations could not have reasonably been avoided.
(IV) The discharger demonstrates compliance with the operations
plan.
(V) In the case of a reconstructed wastewater treatment unit, the
unit relies on a biological treatment process that is required to be
out of operation for at least 14 days in order to perform the
reconstruction, or the unit is required to be out of operation for at
least 14 days and, at the time of the reconstruction, the cost of
reconstructing the unit exceeds 50 percent of the cost of replacing
the wastewater treatment unit.
(ii) For the purposes of this section, "wastewater treatment unit"
means a component of a wastewater treatment plant that performs a
designated treatment function.
(2) (A) Except as provided in subparagraph (B), a violation of an
effluent limitation where the waste discharge is in compliance with
either a cease and desist order issued pursuant to Section 13301 or a
time schedule order issued pursuant to Section 13300, if all of the
following requirements are met:
(i) The cease and desist order or time schedule order is issued
after January 1, 1995, but not later than July 1, 2000, specifies the
actions that the discharger is required to take in order to correct
the violations that would otherwise be subject to subdivisions (h)
and (i), and the date by which compliance is required to be achieved
and, if the final date by which compliance is required to be achieved
is later than one year from the effective date of the cease and
desist order or time schedule order, specifies the interim
requirements by which progress towards compliance will be measured
and the date by which the discharger will be in compliance with each
interim requirement.
(ii) The discharger has prepared and is implementing in a timely
and proper manner, or is required by the regional board to prepare
and implement, a pollution prevention plan that meets the
requirements of Section 13263.3.
(iii) The discharger demonstrates that it has carried out all
reasonable and immediately feasible actions to reduce noncompliance
with the waste discharge requirements applicable to the waste
discharge and the executive officer of the regional board concurs
with the demonstration.
(B) Subdivisions (h) and (i) shall become applicable to a waste
discharge on the date the waste discharge requirements applicable to
the waste discharge are revised and reissued pursuant to Section
13380, unless the regional board does all of the following on or
before that date:
(i) Modifies the requirements of the cease and desist order or
time schedule order as may be necessary to make it fully consistent
with the reissued waste discharge requirements.
(ii) Establishes in the modified cease and desist order or time
schedule order a date by which full compliance with the reissued
waste discharge requirements shall be achieved. For the purposes of
this subdivision, the regional board may not establish this date
later than five years from the date the waste discharge requirements
were required to be reviewed pursuant to Section 13380. If the
reissued waste discharge requirements do not add new effluent
limitations or do not include effluent limitations that are more
stringent than those in the original waste discharge requirements,
the date shall be the same as the final date for compliance in the
original cease and desist order or time schedule order or five years
from the date that the waste discharge requirements were required to
be reviewed pursuant to Section 13380, whichever is earlier.
(iii) Determines that the pollution prevention plan required by
clause (ii) of subparagraph (A) is in compliance with the
requirements of Section 13263.3 and that the discharger is
implementing the pollution prevention plan in a timely and proper
manner.
(3) A violation of an effluent limitation where the waste
discharge is in compliance with either a cease and desist order
issued pursuant to Section 13301 or a time schedule order issued
pursuant to Section 13300 or 13308, if all of the following
requirements are met:
(A) The cease and desist order or time schedule order is issued on
or after July 1, 2000, and specifies the actions that the discharger
is required to take in order to correct the violations that would
otherwise be subject to subdivisions (h) and (i).
(B) The regional board finds that, for one of the following
reasons, the discharger is not able to consistently comply with one
or more of the effluent limitations established in the waste
discharge requirements applicable to the waste discharge:
(i) The effluent limitation is a new, more stringent, or modified
regulatory requirement that has become applicable to the waste
discharge after the effective date of the waste discharge
requirements and after July 1, 2000, new or modified control measures
are necessary in order to comply with the effluent limitation, and
the new or modified control measures cannot be designed, installed,
and put into operation within 30 calendar days.
(ii) New methods for detecting or measuring a pollutant in the
waste discharge demonstrate that new or modified control measures are
necessary in order to comply with the effluent limitation and the
new or modified control measures cannot be designed, installed, and
put into operation within 30 calendar days.
(iii) Unanticipated changes in the quality of the municipal or
industrial water supply available to the discharger are the cause of
unavoidable changes in the composition of the waste discharge, the
changes in the composition of the waste discharge are the cause of
the inability to comply with the effluent limitation, no alternative
water supply is reasonably available to the discharger, and new or
modified measures to control the composition of the waste discharge
cannot be designed, installed, and put into operation within 30
calendar days.
(iv) The discharger is a publicly owned treatment works located in
Orange County that is unable to meet effluent limitations for
biological oxygen demand, suspended solids, or both, because the
publicly owned treatment works meets all of the following criteria:
(I) Was previously operating under modified secondary treatment
requirements pursuant to Section 301(h) of the Clean Water Act (33
U.S.C. Sec. 1311(h)).
(II) Did vote on July 17, 2002, not to apply for a renewal of the
modified secondary treatment requirements.
(III) Is in the process of upgrading its treatment facilities to
meet the secondary treatment standards required by Section 301(b)(1)
(B) of the Clean Water Act (33 U.S.C. Sec. 1311(b)(1)(B)).
(C) The regional board establishes a time schedule for bringing
the waste discharge into compliance with the effluent limitation that
is as short as possible, taking into account the technological,
operational, and economic factors that affect the design,
development, and implementation of the control measures that are
necessary to comply with the effluent limitation. For the purposes of
this subdivision, the time schedule may not exceed five years in
length, except that the time schedule may not exceed 10 years in
length for the upgrade described in subclause (III) of clause (iv) of
subparagraph (B). If the time schedule exceeds one year from the
effective date of the order, the schedule shall include interim
requirements and the dates for their achievement. The interim
requirements shall include both of the following:
(i) Effluent limitations for the pollutant or pollutants of
concern.
(ii) Actions and milestones leading to compliance with the
effluent limitation.
(D) The discharger has prepared and is implementing in a timely
and proper manner, or is required by the regional board to prepare
and implement, a pollution prevention plan pursuant to Section
13263.3.
(k) (1) In lieu of assessing all or a portion of the mandatory
minimum penalties pursuant to subdivisions (h) and (i) against a
publicly owned treatment works serving a small community, the state
board or the regional board may elect to require the publicly owned
treatment works to spend an equivalent amount towards the completion
of a compliance project proposed by the publicly owned treatment
works, if the state board or the regional board finds all of the
following:
(A) The compliance project is designed to correct the violations
within five years.
(B) The compliance project is in accordance with the enforcement
policy of the state board, excluding any provision in the policy that
is inconsistent with this section.
(C) The publicly owned treatment works has prepared a financing
plan to complete the compliance project.
(2) For the purposes of this subdivision, "a publicly owned
treatment works serving a small community" means a publicly owned
treatment works serving a population of 10,000 persons or fewer or a
rural county, with a financial hardship as determined by the state
board after considering such factors as median income of the
residents, rate of unemployment, or low population density in the
service area of the publicly owned treatment works.
(l) (1) In lieu of assessing penalties pursuant to subdivision (h)
or (i), the state board or the regional board, with the concurrence
of the discharger, may direct a portion of the penalty amount to be
expended on a supplemental environmental project in accordance with
the enforcement policy of the state board. If the penalty amount
exceeds fifteen thousand dollars ($15,000), the portion of the
penalty amount that may be directed to be expended on a supplemental
environmental project may not exceed fifteen thousand dollars
($15,000) plus 50 percent of the penalty amount that exceeds fifteen
thousand dollars ($15,000).
(2) For the purposes of this section, a "supplemental
environmental project" means an environmentally beneficial project
that a person agrees to undertake, with the approval of the regional
board, that would not be undertaken in the absence of an enforcement
action under this section.
(3) This subdivision applies to the imposition of penalties
pursuant to subdivision (h) or (i) on or after January 1, 2003,
without regard to the date on which the violation occurs.
(m) The Attorney General, upon request of a regional board or the
state board, shall petition the appropriate court to collect any
liability or penalty imposed pursuant to this section. Any person who
fails to pay on a timely basis any liability or penalty imposed
under this section shall be required to pay, in addition to that
liability or penalty, interest, attorney's fees, costs for collection
proceedings, and a quarterly nonpayment penalty for each quarter
during which the failure to pay persists. The nonpayment penalty
shall be in an amount equal to 20 percent of the aggregate amount of
the person's penalty and nonpayment penalties that are unpaid as of
the beginning of the quarter.
(n) (1) Subject to paragraph (2), funds collected pursuant to this
section shall be deposited in the State Water Pollution Cleanup and
Abatement Account.
(2) (A) Notwithstanding any other provision of law, moneys
collected for a violation of a water quality certification in
accordance with paragraph (2) of subdivision (a) or for a violation
of Section 401 of the Clean Water Act (33 U.S.C. Sec. 1341) in
accordance with paragraph (5) of subdivision (a) shall be deposited
in the Waste Discharge Permit Fund and separately accounted for in
that fund.
(B) The funds described in subparagraph (A) shall be expended by
the state board, upon appropriation by the Legislature, to assist
regional boards, and other public agencies with authority to clean up
waste or abate the effects of the waste, in cleaning up or abating
the effects of the waste on waters of the state or for the purposes
authorized in Section 13443.
(o) The amendments made to subdivisions (f), (h), (i) and (j)
during the second year of the 2001-02 Regular Session apply only to
violations that occur on or after January 1, 2003.
SEC. 10. Section 13388 of the Water Code is amended to read:
13388. (a) Notwithstanding any other provision of this division
or Section 175, no person shall be a member of the state board if
that person receives or has received during the previous two years a
significant portion of his or her income directly or indirectly from
any person subject to waste discharge requirements or applicants for
waste discharge requirements pursuant to this chapter.
(b) Notwithstanding any other provision of this division, no
person shall be a member of a regional board if that person receives,
or has received, during the previous two years, a significant
portion of his or her income directly or indirectly from any person
subject to waste discharge requirements, or applicants for waste
discharge requirements, and the requirements govern discharges
pursuant to this chapter within the jurisdiction of that regional
board.