BILL ANALYSIS
AB 25
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Date of Hearing: January 12, 2010
ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS
Wesley Chesbro, Chair
AB 25 (Gilmore) - As Amended: April 2, 2009
Reflecting Author's Proposed Amendments
SUBJECT : Water code violations: mandatory minimum penalties.
SUMMARY : Modifies existing mandatory minimum penalties (MMP)
for violations of water quality laws. Specifically, this bill :
1)Modifies the definition of publicly owned treatment works
(POTW) that serve small communities by increasing the size of
the served low income community from 10,000 persons to 20,000
persons. These POTWs are allowed to apply MMPs to the cost of
remediation of the causes of water code violations.
2)Expands the definition of local public facilities that are
allowed to apply MMPs to the cost of remediation of the causes
of water code violations to include public schools.
EXISTING LAW :
1)Authorizes, under The Porter-Cologne Water Quality Act, the
State Water Resources Control Board (SWRCB) and the Regional
Water Quality Control Boards (RWQCBs) to set waste discharge
requirements.
2)Provides for the imposition of civil penalties, including an
MMP of $3,000 for each serious waste discharge violation. The
penalties may be issued administratively by the SWRCB or the
RWQCB or through the superior court. This may be in addition
to other penalties and fees.
3)Provides that publicly owned treatment works that serve a low
income small community (less than 10,000 covered persons) or
rural community may apply the amount of penalty to completion
of a compliance project to remedy the waste discharge
violation.
4)Defines, in Water Code section 13193.9, a "small disadvantaged
community" as a municipality with a population of 20,000
persons or less, or a reasonably isolated and divisible
segment of a larger municipality encompassing 20,000 persons
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or less, with an annual median household income that is less
than 80 percent of the statewide median.
FISCAL EFFECT : Unknown.
COMMENTS :
1)According to the author, "AB 25 reforms the mandatory minimum
penalty system in a reasonable manner without reducing the
amount of the penalty. Additionally, AB 25 affords more small
communities and public schools the flexibility to apply their
mandatory minimum penalties towards compliance projects to
prevent future violations."
2)Mandatory minimum penalties (MMPs) were established in 1999 in
response to concerns over the SWRCB and RWQCB failing to take
enforcement actions against Water Code violations. According
to the SWRCB the California Water Code section 13385(h)
requires an MMP of $3,000 for each "serious" violation.
The Water Boards are also required by California Water Code
section 13385(i) to assess MMPs of $3,000 for multiple chronic
violations. This penalty applies when the discharger does any
of the following four or more times in any period of six
consecutive months:
i) Violates effluent limitations;
ii) Fails to file a report of waste discharge or file
and incomplete report; or
iii) Violates a toxicity effluent limitation where the
WDR does not contain pollutant-specific effluent
limitations for toxic pollutants.
3)Compliance projects for POTWs serving small communities in
lieu of penalties . Instead of assessing all or part of a MMP
against a publicly owned treatment works (POTW) serving a
small community, the State or Regional Water Board, pursuant
to California Water Code section 13385(k) may require the POTW
to spend an equivalent amount toward a compliance project
proposed by the POTW.<1>
4)Increasing the size of eligible communities from 10,000 to
---------------------------
<1> Report of the Statewide Initiative On Mandatory Minimum
Penalty Enforcement , State Water Resources Control Board, May
2009
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20,000. The existing state grant programs for drinking water
and water quality provides special allocation to small and
disadvantaged communities. The Public Resources Code Section
30925 as well as the Water Code 13193.9(c), establishes the
definition of small disadvantaged communities at or below
20,000 persons. Standards adopted for these grants have
established population limits at 20,000 persons. This bill
would create a more uniform definition of small communities.
5)Applying MMPs to school sites violations. The MMP
alternative payment authorization is currently limited to
sewage treatment families. In many cases the violations and
penalties are charged against other facilities that may have
discharge permits or may be discharging into waterways.
According to the SWRCB public school including LA unified
school district and School sites in El Centro have been
subject to over one hundred thousand dollars in MMPs.
Prior Related Legislation :
1)SB 390 (Alpert), Chapter 686, 1999: Liability: waste
discharge. Revised the authority of regional water quality
control boards to waive waste discharge requirements of the
Porter-Cologne Water Quality Control Act as to a specific
discharge if the waiver is not against the public interest and
is not for a period to exceed five years. Required regional
boards and the State Water Resources Control Board to enforce
the conditions under which a waiver was granted; required the
regional boards, prior to renewing any waiver, to review the
terms of the waiver at a public hearing; and revised liability
provisions where a person violates prescribed orders or
discharges waste in violation of a waste discharge requirement
or other order or prohibition to include waivers or
conditions.
2)AB 2900 (La Malfa), 2008: Water quality: civil penalties.
This bill would have required the State Water Resources
Control Board or a regional water quality control board to
expeditiously take appropriate action to assess any mandatory
minimum penalty for each serious waste discharge violation of
the federal Clean Water Act and the Porter-Cologne Water
Quality Control Act. The bill died in the Assembly Committee
on Environmental Safety and Toxic Materials.
3)AB 914 (Logue) 2009: Allowed the SWRCB and RWQCB MMPs to
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apply penalty amounts of remediation projects based on a
finding of financial hardship in the community served by the
POTW. When AB 914 was approved by the Assembly it contained
provisions similar to AB 25 to increase the size of the
community eligible to apply the amount of MMPs towards
compliance projects to prevent future violations.
AB 914 was approved by the Legislature but vetoed by Governor
Schwarzenegger based on his belief that the final version of
the bill reflected existing law. His veto message included
the following:
"The bill is unnecessary since the Board already has the
authority under current law to take any factor it deems
appropriate into consideration when making a determination
of financial hardship of a small community served by a
POTW.
Furthermore, the bill's language for determining "financial
hardship" is unclear, provides little to no guidance for
the Board, and would only further confuse an already
complex financial hardship determination process. The
unintended consequence of AB 914 will be costly lawsuits
and competing interpretations of the bill's vague and
confusing language."
REGISTERED SUPPORT / OPPOSITION :
Support
League of California Cities
California State Association of Counties
Opposition
None on file
Analysis Prepared by : Bob Fredenburg / E.S. & T.M. / (916)
319-3965