BILL NUMBER: AB 25 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 2, 2009
INTRODUCED BY Assembly Member Gilmore
DECEMBER 1, 2008
An act to relating to water. An act to
amend Sections 13385 and 13385.1 of the Water Code, relating to water
quality.
LEGISLATIVE COUNSEL'S DIGEST
AB 25, as amended, Gilmore. Surface water storage.
Mandatory minimum civil penalties.
(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 Clean
Water Act and the Porter-Cologne Water Quality Control Act (state
act). The state act, with certain exceptions, imposes a mandatory
minimum penalty of $3,000 for each serious waste discharge violation
or for certain other described violations if those violations occur 4
or more times in any period of 6 consecutive months. A "serious
waste discharge violation" is defined to include a failure to file a
certain discharge monitoring report for each complete period of 30
days following the deadline for submitting the report if certain
conditions are met.
Civil liability may be imposed administratively by the state board
or a regional board or those boards may request the Attorney General
to petition the superior court to impose the liability.
This bill would prohibit the state board or a regional board from
imposing a mandatory minimum penalty for a violation for which an
action to impose liability is not requested or imposed by the state
board or a regional board within one year of the date the state board
or regional board receives notice of the violation. The bill would
authorize the state board or a regional board to impose a mandatory
minimum penalty for a serious violation involving the failure to file
a certain discharge monitoring report for each complete 30 day
period following the deadline for submitting the report only if the
state board or regional board has provided notification to the
violator of the ongoing violation. In the absence of notification,
the failure to file that monitoring report would constitute a single
violation.
(2) The state act authorizes the state board or a regional board,
in lieu of assessing all or a portion of the mandatory minimum
penalties against a publicly owned treatment works (POTW) that serves
a small community, to elect to require that POTW to spend an
equivalent amount towards the completion of a compliance project. The
state act defines a POTW that serves a small community to mean, in
pertinent part, a POTW serving a community of 10,000 persons or
fewer.
This bill would expand that definition to include a POTW serving a
community of 20,000 persons or fewer.
Existing law, the California Bay-Delta Authority Act, establishes
in the Resources Agency the California Bay-Delta Authority. The act
requires the authority and the implementing agencies to carry out
programs, projects, and activities necessary to implement the
Bay-Delta Program, defined to mean those projects, programs,
commitments, and other actions that address the goals and objectives
of the CALFED Bay-Delta Programmatic Record of Decision, dated August
28, 2000, or as it may be amended. Pursuant to the act, the
Department of Water Resources and the United States Bureau of
Reclamation are the implementing agencies for the water supply
reliability, storage, and conveyance elements of the program.
This bill would state the intent of the Legislature that the
department complete, by the earliest possible date, the necessary
environmental documentation for the surface water storage projects
identified in the Programmatic Record of Decision in order to
expedite the construction of vitally needed surface water storage.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 13385 of the Water
Code is amended to read:
13385. (a) Any A person who
violates any of the following shall be is
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 federal Clean Water Act (33 U.S.C.
Sec. 1341) , 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) (1) Civil liability may be imposed by
the superior court in an amount not to exceed the sum of both of the
following:
(1)
(A) Twenty-five thousand dollars ($25,000) for each day
in which the violation occurs.
(2) Where
(B) If 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
(2) 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 If 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 if 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.
(4) A violation for which an action to impose liability is not
requested pursuant to subdivision (b) by the state board or a
regional board, or not imposed pursuant to subdivision (c), within
one year of the date the state board or regional board receives
notice of the violation.
(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
20,000 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 federal 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 state board shall continuously report and update
information on its Internet Web site, but at a minimum, annually on
or before January 1, regarding its enforcement activities. The
information shall include all of the following:
(1) A compilation of the number of violations of waste discharge
requirements in the previous calendar year, including stormwater
enforcement violations.
(2) A record of the formal and informal compliance and enforcement
actions taken for each violation, including stormwater enforcement
actions.
(3) An analysis of the effectiveness of current enforcement
policies, including mandatory minimum penalties.
(p) 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. 2. Section 13385.1 of the Water
Code is amended to read:
13385.1. (a) (1) For the purposes of subdivision (h) of Section
13385, a "serious violation" also means a failure to file a discharge
monitoring report required pursuant to Section 13383 for each
complete period of 30 days following the deadline for submitting the
report, if the report is designed to ensure compliance with
limitations contained in waste discharge requirements that contain
effluent limitations.
(2) Paragraph (1) applies only to violations that occur on or
after January 1, 2004.
(3) Notwithstanding paragraph (1), the violation described in that
paragraph shall constitute a single violation unless the state board
or a regional board has provided written notice to the violator with
regard to the violation. Upon notification, each period of 30 days
following the notification shall constitute a separate serious
violation in accordance with paragraph (1).
(b) (1) Notwithstanding any other provision of law, moneys
collected pursuant to this section for a failure to timely file a
report, as described in subdivision (a), shall be deposited in the
State Water Pollution Cleanup and Abatement Account.
(2) Notwithstanding Section 13340 of the Government Code, the
funds described in paragraph (1) are continuously appropriated,
without regard to fiscal years, to the state board for expenditure by
the state board to assist regional boards, and other public agencies
with authority to clean up waste or abate the effects of the waste,
in responding to significant water pollution problems.
(c) For the purposes of this section, paragraph (2) of subdivision
(f) of Section 13385, and subdivisions (h), (i), and (j) of Section
13385 only, "effluent limitation" means a numeric restriction or a
numerically expressed narrative restriction, on the quantity,
discharge rate, concentration, or toxicity units of a pollutant or
pollutants that may be discharged from an authorized location. An
effluent limitation may be final or interim, and may be expressed as
a prohibition. An effluent limitation, for those purposes, does not
include a receiving water limitation, a compliance schedule, or a
best management practice.
SECTION 1. The Legislature finds and declares
all of the following:
(a) Safeguarding existing and creating new supplies of water for
California's homes, businesses, and farms is an essential
responsibility of government and critical to maintaining California's
strong economy and protecting the quality of life for Californians.
(b) While water conservation measures and using recycled water are
both useful tools to increase the efficiency with which we use our
existing water supplies, we must use all of the tools in our
portfolio to increase our ability to capture water during wet seasons
for use in dry seasons.
(c) Recent court decisions limiting the amount of water that may
be pumped from the Delta to destinations in the central valley and
southern California, have had a devastating impact on the
agricultural industry of the state and contribute to potential water
rationing in urban areas. To offset these impacts, the state has no
choice but to increase its investment in water storage facilities and
water delivery infrastructure.
(d) Surface storage facilities are valuable water management tools
that not only provide flood protection, but also allow the state to
capture water in wet years and store it for use in dry years, in
keeping with Department of Water Resources projections of continued
loss of natural snowpack.
(e) The surface storage projects identified in the CALFED
Bay-Delta Program Record of Decision have the added benefit of being
able to supply water for environmental purposes, which will help
offset the urban and agricultural water supply losses caused by the
environmental diversion mandates.
(f) It is the intent of the Legislature that the Department of
Water Resources complete the necessary environmental documentation
for the surface storage projects identified in the CALFED Bay-Delta
Programmatic Record of Decision, dated August 28, 2000, by the
earliest possible date, in order to expedite the construction of
vitally needed surface water storage for California.