BILL ANALYSIS
AB 25
Page A
Date of Hearing: January 14, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 25 (Gilmore and Logue) - As Amended: January 13, 2010
SUBJECT : WATER CODE VIOLATIONS: MANDATORY MINIMUM CIVIL
PENALTIES
KEY ISSUES :
1)IN LIEU OF ASSESSING A MANDATORY MINIMUM PENALTY FOR CERTAIN
WASTE DISCHARGE VIOLATIONS, SHOULD THE STATE AND REGIONAL
WATER CONTROL BOARDS INSTEAD BE ABLE TO REQUIRE PUBLICLY OWNED
TREATMENT WORKS SERVING SMALL COMMUNITIES OF 20,000 PERSONS OR
LESS (POTWs) AND PUBLIC SCHOOL DISTRICTS TO APPLY AN
EQUIVALENT AMOUNT OF MONEY TOWARDS A COMPLIANCE PROJECT TO
REMEDIATE THE CAUSES OF THE VIOLATIONS?
2)THOUGH NORMALLY HESITANT TO APPROVE SO-CALLED "RIGHT TO CURE"
APPROACHES THAT CAN DEPRIVE INJURED CALIFORNIANS OF POTENTIAL
REMEDIES, DOES THE COMMITTEE BELIEVE THAT THIS BILL ADEQUATELY
ENSURES POTENTIALLY INJURED INDIVIDUALS RETAIN THEIR FULL
REMEDIES?
3)SHOULD THE "RIGHT TO CURE" APPROACH APPLY TO ALL PUBLIC SCHOOL
DISTRICTS (K-12) IN CALIFORNIA, DESPITE DATA THAT INDICATES
FEW SUCH SCHOOL DISTRICTS HAVE BEEN ASSESSED MANDATORY MINIMUM
PENALTIES FOR WATER VIOLATIONS, AND IF SO, IS THERE A RATIONAL
DISTINCTION FOR RESTRICTING THE APPROACH FROM APPLYING TO
PUBLIC UNIVERSITIES AND COMMUNITY COLLEGE DISTRICTS?
FISCAL EFFECT : As currently in print, this bill is considered
fiscal.
SYNOPSIS
This bill seeks to permit the State Water Resources Control
Board and the Regional Water Quality Control Boards, in lieu of
assessing a mandatory minimum penalty (MMP) for certain waste
discharge violations, to instead elect to require a public
school district or a publicly owned treatment works serving a
small community of 20,000 persons or less (an increase from
10,000 persons or less) to apply an amount of money equivalent
to the MMP towards a compliance project to remediate the causes
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of the violations. According to the authors, this bill will
permit the State Board and Regional Boards to afford more small
communities as well as public school districts the flexibility
to apply their mandatory minimum penalties towards compliance
projects the authors contend will prevent future violations-a
change to the MMP system that the authors note does not reduce
the amount of the penalty required under current law, but
redirects it to help fix the specific violation. The authors
also contend that by increasing the size of communities eligible
for alternative MMP requirements from 10,000 to 20,000 persons,
a figure derived from analogous sections of water control law,
this bill would create a more uniform definition of "small
communities." This bill also seeks to carve out a "penalty
reduction" for all public school districts (K-12) on the ground
that public school districts that operate facilities discharging
waste into waterways, like small communities with financial
hardship, need the flexibility to pay assessments for violations
they have committed. However, figures provided by the State
Board indicate that, besides two University of California
facilities, only one rural school district and one urban school
district have been assessed significant MMPs between 2000 and
2008, calling into question the need for special penalty
reduction provisions for K-12 school districts, and the need for
a carve-out in general. This bill was passed on consent by the
Assembly ESTM Committee and there is no known opposition to this
bill.
SUMMARY : Modifies the authority of the state and regional
water control authorities to impose mandatory minimum civil
penalties for waste discharge violations against publicly owned
treatment works and public school districts, as provided.
Specifically, this bill :
1)Revises the definition of publicly owned treatment works
(POTW) that serve small communities by increasing the size of
the served community from 10,000 persons to 20,000 persons.
In effect, this allows the state and regional water control
boards to allow POTWs serving communities of up to 20,000
persons to spend an equivalent amount of money on a compliance
project to remediate the causes of waste discharge violations,
instead of paying the mandatory minimum civil penalty to the
board.
2)Permits the state and regional water control boards to also
allow all public school districts (K-12, but not community
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colleges or public universities) to apply an amount equivalent
to the mandatory minimum civil penalty to the cost of
remediation of the causes of the waste discharge violations,
instead of paying the penalty to the board.
EXISTING LAW :
1)Authorizes the State Water Resources Control Board ("State
Board") and the Regional Water Quality Control Boards
("Regional Boards") to set waste discharge requirements
pursuant to the Porter-Cologne Water Quality Act. (Water Code
Section 13263.)
2)Provides for the imposition of civil penalties by the State
Board or a Regional Board for waste discharge violations,
including a mandatory minimum penalty (MMP) of $3,000 for each
"serious violation" or for multiple chronic violations, as
provided. (Water Code Section 13385(h)-(i).)
3)Includes several limited exceptions to the MMP provisions,
primarily for discharges that are in compliance with a cease
and desist order or a time schedule order under narrowly
specified conditions. (Water Code Section 13385(j).)
4)Defines a "publicly owned treatment works serving a small
community" (POTW) to mean 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 specified factors. (Water Code
Section 13385(k)(2).)
5)Authorizes the State Board or a Regional Board, in lieu of
assessing mandatory minimum penalties against a POTW, to
require the POTW to spend an equivalent amount towards the
completion of a compliance project proposed by the POTW, if
the 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.
c) The POTW has prepared a financing plan to complete the
compliance project.
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(Water Code Section 13385(k)(1).)
6)Defines 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 or less, with an annual median
household income that is less than 80 percent of the statewide
median. (Water Code Section 13193.9.)
7)Defines a "small community" to mean a municipality with a
population of 20,000 persons or less, a rural county, or a
reasonably isolated and divisible segment of a larger
municipality where the segment of the population is 20,000
persons or less, with a financial hardship, as determined by
the State Board. (Public Resources Code Section 30925.)
8)Provides that the term "school district" means a school
district of every kind or class encompassing elementary
schools, secondary schools, high schools, but excluding a
community college district. (Education Code Sections 50-53,
80.)
COMMENTS : This bill seeks to permit the state and regional
water control boards, in lieu of assessing a mandatory minimum
penalty (MMP) for certain waste discharge violations, to instead
elect to require a public school district or a publicly owned
treatment works serving a small community of 20,000 persons or
less to apply an amount of money equivalent to the MMP towards a
compliance project to remediate the causes of the violations.
Flexibility in MMP assessment primarily benefits small and rural
communities with demonstrated financial hardship. According to
the author, this bill will permit the State Board and Regional
Boards to afford more small communities the flexibility to apply
their mandatory minimum penalties towards compliance projects
they contend will prevent future violations-a change to the MMP
system they note does not reduce the amount of the penalty
required under current law, the Porter-Cologne Water Quality
Act. The author states:
The mandatory minimum penalty provisions were
intended to draw prompt attention to wastewater
violations and ensure that facilities be promptly
brought back in compliance. Unfortunately, these
violations can be assessed at any time, and many
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such penalties are allowed to accrue over several
years before they are assessed on violators. Such
actions have catastrophic consequences for small
and rural communities that are often significantly
challenged to find the resources necessary to pay
the expensive penalties.
The alternative MMP provisions in this bill would apply to
publicly owned treatment works serving a community of 20,000
persons or less or a rural county, provided that the State Board
has determined the community has a financial hardship after
considering such factors as median income of the residents, rate
of unemployment, or low population density in the service area
of the POTW. (Water Code Section 13385(k)(2).) The bill thus
reflects the concern that small or rural communities
experiencing financial hardship may not be able to pay MMPs
accrued over time immediately upon assessment. The alternative
payment scheme proposed by this bill, without reducing the
overall amount of the mandatory penalties, creates some
flexibility for these smaller communities because penalties that
would otherwise be due upon assessment can instead be applied by
the POTW to finance a compliance project designed to correct the
violations within five years and still under the enforcement of
the State Board.
Increasing the size of eligible "small communities" from 10,000
to 20,000. Existing state grant programs for drinking water and
water quality provide special allocations to small and
disadvantaged communities. Analogous sections of water quality
control law currently establish the definition of "small"
communities at 20,000 persons or less. (See, e.g. Public
Resources Code Sections 30925(a) and Water Code 13193.9(c).)
Standards adopted for these grants have also established
population limits at 20,000 persons. By increasing the size of
communities eligible for alternative MMP requirements from
10,000 to 20,000 persons, this bill seeks to create a more
uniform definition of "small communities" within water control
law.
Recent author's amendments also seek to provide this new "carve
out" to public school districts (K-12) that operate discharge
facilities. Under existing law, the State Board and Regional
Boards may allow only "publicly owned treatment works serving a
small community" to apply their MMPs towards compliance
projects, effectively limiting participation to sewage treatment
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facilities. This bill also seeks to carve out a "penalty
reduction" for all public school districts (K-12) on the
apparent belief that public school districts operating
facilities discharging waste into waterways, like small
communities with financial hardship, should be able to use the
"right to cure" approach in lieu of directly paying assessments
to authorities for violations they have committed. The authors
have recently amended the bill therefore to provide the sure
"redirection of penalties" approach to all public school
districts (K-12) other than public universities or community
college districts.
However, according to figures provided by the State Board<1>,
the only school districts that have been assessed MMPs between
2000 and 2008 are:
(1) McCabe Union School District (Region 7) in El Centro
(Imperial County): $153,000
(2) Los Angeles Unified School District (Region 4): $24,000
(3) University of California, Davis (Region 5, Davis WWTP):
$78,000
(4) University of California, Davis (Region 1, Bodega
Marine Lab) $63,000
Only (1) and (2) are public school districts (K-12), as defined
by this bill, and only (1) can be said to be a school district
serving a small community. In light of these figures, the
Committee may wish to consider the need for special penalty
reduction provisions for K-12 school districts, and the need for
a carve-out in general.
Prior Related Legislation :
AB 2900 (La Malfa) of 2008: This bill would have required the
State 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.
AB 913 (Logue) of 2009: This bill would have prohibited the
State Board or a Regional Board from imposing a mandatory
minimum penalty for a violation for which an action to impose
---------------------------
<1> Email from John Kennedy, Jan. 12, 2010.
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liability is not requested or imposed by the State Board or a
Regional Board within 12 months of the State Board or Regional
Board receiving notice of the violation. This bill was
withdrawn by the author prior to its first hearing in the
Assembly Committee on Environmental Safety and Toxic Materials.
AB 914 (Logue) of 2009: This bill would have allowed the State
Board, when determining financial hardship, to also consider the
impact of the penalties on individual ratepayers if it finds
that the review of the specified factors does not adequately
represent the range of economic circumstances in a community.
AB 914 was vetoed by the Governor based on his belief that the
bill was unnecessary because the Board already had authority
under existing law to consider any factor it deemed appropriate
when making a determination of financial hardship.
REGISTERED SUPPORT / OPPOSITION :
Support
League of California Cities
California State Association of Counties
Nevada County Board of Supervisors
Opposition
None on file
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334