BILL ANALYSIS                                                                                                                                                                                                    



                                                                       



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          |SENATE RULES COMMITTEE            |                  SB 1284|
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                                 THIRD READING


          Bill No:  SB 1284
          Author:   Ducheny (D)
          Amended:  6/2/10
          Vote:     21

           
           SENATE ENV. QUALITY COMMITTEE  :  7-0, 4/19/10
          AYES:  Simitian, Runner, Corbett, Hancock, Lowenthal,  
            Pavley, Strickland

           SENATE APPROPRIATIONS COMMITTEE  :  10-0, 5/27/10
          AYES:  Kehoe, Alquist, Corbett, Denham, Leno, Price,  
            Walters, Wolk, Wyland, Yee
          NO VOTE RECORDED:  Cox


           SUBJECT  :    Water quality:  mandatory minimum civil  
          penalties

           SOURCE :     Association of California Water Agencies
                      Regional Council for Rural Counties


           DIGEST  :    This bill provides that certain violations  
          involving the failure to file a discharge monitoring report  
          with the State Water Resources Control Board or a Regional  
          Water Quality Control Board are not subject to existing  
          mandatory minimum penalties if certain requirements are  
          met.  This bill provides that a failure to file a discharge  
          monitoring report is not a serious waste discharge  
          violation if the discharger submits a specified statement  
          to the regional board.  The bill, until January 1, 2016,  
          requires, with respect to certain violations involving the  
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          failure to file a discharge monitoring report, the  
          mandatory minimum penalty of $3,000 to be assessed only for  
          each required report that is not timely filed, and not for  
          each 30-day period following the deadline for submitting  
          the report.  This bill also extends the time limit under  
          which dischargers must come into compliance with a permit  
          requirement from five years to ten years.

           ANALYSIS  :    

          Existing law, under the Porter-Cologne Water Quality  
          Control Act:

          1. Provides that any person who violates prescribed  
             provisions of the Clean Water Act or the Porter-Cologne  
             Water Quality Control Act is subject to civil liability,  
             and sets requirements for determining the amount of any  
             liability.

          2. Requires a mandatory minimum penalty (MMP) of $3,000 to  
             be assessed for each serious violation, under certain  
             circumstances.

          3. Authorizes the State Water Resources Control Board  
             (SWRCB) or a regional water quality control board  
             (RWQCB), in lieu of assessing all or a portion of the  
             MMP, to require a publicly-owned treatment works (POTW)  
             serving a small community to spend an equivalent amount  
             towards the completion of a compliance project proposed  
             by the POTW if the POTW or SWRCB makes certain findings  
             (e.g., compliance project is designed to correct the  
             violations within five years, compliance project is  
             consistent with SWRCB enforcement policy, POTW has  
             prepared a financing plan to complete the compliance  
             project).

          4. Provides that for purposes of #3, a "POTW serving a  
             small community" serves a population of 10,000 or fewer  
             or a rural county, with a financial hardship as  
             determined by the SWRCB after considering such factors  
             as median income of the residents, rate of unemployment,  
             or low population density.

          5. Provides an exception to the imposition of MMPs for a  







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             violation of an effluent limitation if the waste  
             discharge complies with a certain time schedule order  
             and other requirements are met.  For the purposes of the  
             exception, a time schedule cannot exceed five years,  
             except under certain conditions.


           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  
          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:  (1) Violates effluent limitations,  
          (2) Fails to file a report of waste discharge or file and  
          incomplete report, or (3) Violates a toxicity effluent  
          limitation where the waste discharge requirement does not  
          contain pollutant-specific effluent limitations for toxic  
          pollutants.

          This bill

          1. Revises current law to allow a regional board, after a  
             public hearing, to extend the time schedule for bringing  
             a waste discharge into compliance for an additional five  
             years, to a possible total time schedule of ten years if  
             the discharger can demonstrate that additional time is  
             necessary in order to reach compliance with effluent  
             limitations.

          2. Provides that the failure to file a discharge monitoring  
             report for a reporting period in which no discharges  
             occur does not constitute a "serious violation" that  
             gives rise to mandatory minimum penalties if the  
             discharger submits a written statement to the  
             appropriate regional board under penalty of perjury  
             stating that in fact no discharges occurred and stating  
             the reasons for the failure to file.  This bill states  
             that regardless of whether mandatory minimum penalties  







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             apply to the failure to file a discharge monitoring  
             report for a reporting period in which no discharges  
             occur, the failure to file such a report may be subject  
             to discretionary penalties.

          3. Provides, on a one-time basis only, that where a  
             discharger has not previously received notification from  
             the state or regional board of an enforcement action  
             imposing mandatory minimum penalties and where the  
             current violation consists of failures to file discharge  
             monitoring reports for reporting periods where  
             dischargers did not violate numeric effluent  
             limitations, that discharger will be subject to a total  
             fines of $3,000 per required report.  After this  
             one-time fine, a discharger who subsequently fails to  
             file such a report will be fiend in accordance to  
             current law.  The bill states that regardless of whether  
             the failure to file such reports is subject to the  
             one-time relief provided, the failure to file the  
             required report(s) may be subject to discretionary  
             penalties.

          4. Provides that the amendments made to that section  
             applies to dischargers who currently have outstanding  
             notices of violation as of the effective date of the  
             act.  
           

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes    
          Local:  No

          According to the Senate Appropriations Committee analysis,  
          because the bill exempts some violations from mandatory  
          minimum penalties, the bill is likely to reduce future  
          penalty revenues.  The amount of any potential penalty  
          revenue loss is unknown.

           SUPPORT  :   (Verified  6/2/10)

          Association of California Water Agencies (co-source)  
           Regional Council of Rural Counties (co-source)
          California Association of Sanitation Agencies
          California Chamber of Commerce
          California Special Districts Association







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          California State Association of Counties
          California Water Association
          City of Camarillo
          Crescenta Valley Water District
          El Dorado Irrigation District
          Inland Empire Utilities Agency
          Lake Berryessa Resort Improvement District
          League of Cities
          Napa Berryessa Resort Improvement District
          Napa County
          Pico Water District

           OPPOSITION  :    (Verified  6/2/10)

          California Coast Keeper Alliance
          Sierra Club

           ARGUMENTS IN SUPPORT  :    According to the sponsor, MMPs are  
          a deterrent and a punishment for willful violators, and  
          should remain in place for that intended purpose.  However,  
          the sponsors feel that the way the statute is currently  
          drafted; the definition of a "serious violation" warranting  
          the imposition of an MMP is far too broad and exposes  
          public agencies who simply failed to file a report  
          indicating no discharges to the vast penalties.  The  
          sponsor asserts that this bill provides that certain  
          violations involving the failure to file a discharge  
          monitoring report for no discharges or discharges that do  
          not reach regulated level are not subject to those MMPs.

          According to the Association of California Water Agencies  
          (ACWA), there are several public agency members with  
          permits requiring reporting which believe that they have  
          received excessive, disproportionate fines for a simple  
          failure to file the report.  ACWA sites an example of one  
          small water agency fine that is in excess of $600,000.

           ARGUMENTS IN OPPOSITION  :    Opponents state that exemptions  
          in this bill from the MMP provisions of the Water Code for  
          dischargers who fail to file required discharge monitoring  
          reports send a message to the dischargers that these  
          reports need not be filed - when in fact it is a condition  
          of their permits.  These permits are critical to tracking  
          compliance with state and federal water quality laws.







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          TSM:do  6/2/10   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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