BILL ANALYSIS
SB 1284
Page 1
Date of Hearing: June 29, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 1284 (Ducheny) - As Amended: June 23, 2010
PROPOSED CONSENT
SENATE VOTE : 31-0
SUBJECT : WATER CODE PERMIT VIOLATIONS: MANDATORY MINIMUM
PENALTY RULES
KEY ISSUE : SHOULD A DISCHARGER'S FAILURE TO FILE A DISCHARGE
REPORT NOT CONSTITUTE A 'SERIOUS VIOLATION' SUBJECTING THEM TO
MINIMUM MANDATORY PENALTIES, WHEN THE DISCHARGER DECLARES THAT
THERE WERE NO DISCHARGES AND STATES THE REASONS FOR THE FAILURE
TO FILE A DISCHARGE REPORT?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This non-controversial bill deals with various issues
surrounding penalties involving water code permit violations.
The bill provides that certain violations involving the failure
to file a discharge monitoring report for waste discharge into
state waterways are not subject to mandatory minimum penalties
if certain requirements are met. This bill, until January 1,
2014, also requires, with respect to certain violations
involving the 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.
Finally, the measure authorizes a Regional Water Quality Control
Board (RWQCB), following a public hearing, to extend the time
schedule under which waste dischargers must come into compliance
with a permit requirement for an additional period not exceeding
5 years in length, under specified conditions. While earlier
versions of the measure had opposition from environmental
organizations, the latest amendments to the bill have removed
such opposition, and the measure has had no "no" votes in the
Legislature.
SUMMARY : Seeks to exempt certain violations of waste discharge
SB 1284
Page 2
reporting requirements from existing mandatory minimum penalties
(MMPs). Specifically, this bill :
1)Revises current law to allow a RWQCB, 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, and that the
discharger is making diligent progress toward bringing the
waste discharge into compliance with the effluent limitation.
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 regional board under penalty of
perjury stating that in fact no discharges occurred and
stating the reasons for the failure to file. Provides that
upon the request of the State Water Resources Control Board
(SWRCB) or a RWQCB, the discharger may be required to support
the written statement with additional explanation or evidence.
3)Provides that a discharger will only be subject to a total
fine of $3,000 per required report when (1) a discharger has
not on any occasion previously received notification from the
state board or a regional board of a complaint to impose
liability arising from a failure to timely file a discharge
monitoring report, a notice of violation for failing to timely
file a discharge monitoring report, or a notice of the
obligation to file a discharge monitoring report in connection
with its corresponding waste discharge requirements, and (2)
where the current violation consists of failures to file
discharge monitoring reports for reporting periods where
dischargers did not violate numeric effluent limitations.
Provides that these provisions only apply to a discharger who
files any discharge monitoring report within 90 days after the
discharger receives written notice from the state board or a
regional board, and pays the penalties assessed within 60 days
of the receipt of written notice from the state board or a
regional board. Provides that after this one-time fine, a
discharger who subsequently fails to file the same report will
be fined in accordance with the current law. This provision
would sunset on January 1, 2014.
SB 1284
Page 3
4)Provides that the limitations on MMPs created by this bill
would apply to dischargers who currently have outstanding
notices of violation as of the effective date of the act.
EXISTING LAW :
1)Authorizes, under The Porter-Cologne Water Quality Act, SWRCB
and the 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.
COMMENTS : According to the co-sponsors, the Association of
California Water Agencies and the Regional Council of Rural
Counties, MMPs are a deterrent and a punishment for willful
violators, and should remain in place for that intended purpose.
However, the co-sponsors assert that the way the statute is
currently drafted; the definition of a "serious violation"
warranting the imposition of an MMP is too broad, and
unreasonably exposes public agencies to vast penalties simply
because they may have failed to file a report indicating they
were not making discharges. The co-sponsors suggest that this
measure will appropriately provide certain violations involving
the failure to file a discharge monitoring report for no
discharges or legal discharges should not be subject to those
MMPs.
The proponents of this bill have cited the penalties assessed
against the Pico Water District for failure to file 16 separate
reports from 2005 to 2008 for discharges from wells into the San
Gabriel River. The Pico Water District has asserted that
because of changes in management at the district, as well as
changes in their consulting engineering firm, they were unaware
of the need to submit such reports as required by their
discharge permits.
The total fine assessed in 2008 by the Los Angeles RWQCB was
$627,000. The fine resulted from the $3,000 fine being charged
for each reporting period that the required reports were not
submitted over the 3 year period. In January of 2009 Pico Water
District appealed the fine amount and has requested that the
entire fine be removed. That appeal is currently pending.
SB 1284
Page 4
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 SWRCB and the RWQCBs are also required by 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:
a) Violates effluent limitations;
b) Fails to file a report of waste discharge or file an
incomplete report; or
c) Violates a toxicity effluent limitation where the WDR
does not contain pollutant-specific effluent limitations
for toxic pollutants.
The MMP statute was designed to address the failure of the SWRCB
and the RWQCBs enforcement of reporting requirements waste for
discharge permits. In 2003, the Legislature strengthened the
MMP laws by specifically adding waste discharge reporting
failures to the MMP (AB 1541 - Montanez, Chapter 609, Statutes
of 2003). The 2003 provisions were added to the statute when it
was found that only 1% of over 4,000 reporting violations were
subject to the existing penalties.
Reasonable progress requirement to meet effluent limitations . A
regional board is permitted to set effluent levels for
dischargers, and to establish a time schedule for bringing the
waste discharge into compliance with the effluent limitation
that is as short as possible and shall not exceed five years.
However, this bill revises current law to allow a RWQCB, 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, and that the discharger is
making diligent progress toward bringing the waste discharge
into compliance with the effluent limitation. The reasonable
progress amendment ensures that dischargers will be forced to
actively attempt to comply with the effluent limitations in
order to receive additional time in the event that five years
SB 1284
Page 5
proves insufficient to bring their operations into compliance.
When MMPs will not apply to a failure to file a report . The
failure to file a discharge monitoring report for a reporting
period in which no discharges occur will not constitute a
"serious violation" that gives rise to mandatory minimum
penalties under certain conditions. If the discharger submits a
written statement to the regional board under penalty of perjury
stating that in fact no discharges occurred and stating the
reasons for the failure to file, they will not be subjected to
MMPs. This bill does allow the state board or a regional board
to require the discharger to support the written statement with
additional explanation or evidence.
When MMPs will be limited to a one-time charge . The latest
amendments to this bill will eliminate ongoing penalties for
dischargers who fail to file a discharge report under certain
conditions. A discharger will only be subject to a total fine
of $3,000 per required report when:
(1) A discharger has not on any occasion previously
received notification from the state board or a regional
board of a complaint to impose liability arising from a
failure to timely file a discharge monitoring report, a
notice of violation for failing to timely file a discharge
monitoring report, or a notice of the obligation to file a
discharge monitoring report in connection with its
corresponding waste discharge requirements; and
(2) Where the current violation consists of failures to
file discharge monitoring reports for reporting periods
where dischargers did not violate numeric effluent
limitations.
The latest amendments to this bill stipulate that these
provisions only apply to a discharger who files any discharge
monitoring report within 90 days after the discharger receives
written notice from the state board or a regional board, and
pays the penalties assessed within 60 days of the receipt of
written notice from the state board or a regional board. The
bill provides that after this one-time fine, a discharger who
subsequently fails to file the same report will be fined in
accordance with the current law. The amendment to this
provision will accelerate the sunset date to January 2014 in an
effort to encourage dischargers to pay assessed penalties and
SB 1284
Page 6
eliminate the accrued backlog of dischargers who have failed to
file discharge reports.
Limited application of these amendments . The latest amendments
to this bill make clear that the amendments to Water Code
Section 13385.1 will only apply to violations for which an
administrative civil liability complaint, or a judicial
complaint has not been filed before July 1, 2010. Dischargers
against whom one of the aforementioned complaints has been filed
will not receive the benefits of the legislation.
PRIOR RELATED LEGISLATION : AB 1541 (Montanez) Chapter 609,
Statutes of 2003, strengthened MMP laws by specifically adding
waste discharge reporting failures to the MMP.
REGISTERED SUPPORT / OPPOSITION :
Support
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
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
None on file
Analysis Prepared by : Barry Jardini and Drew Liebert / JUD. /
(916) 319-2334