BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 1284
                                                                  Page 1

          SENATE THIRD READING
          SB 1284 (Ducheny)
          As Amended  August 20, 2010
          Majority vote

           SENATE VOTE  :31-0  
           
           ENVIRONMENTAL SAFETY         9-0JUDICIARY           10-0        
           
           ----------------------------------------------------------------- 
          |Ayes:|Nava, Miller, Blakeslee,  |Ayes:|Feuer, Tran, Brownley,    |
          |     |Chesbro, Davis, Feuer,    |     |Evans, Hagman, Huffman,   |
          |     |Monning, Ruskin, Smyth    |     |Jones, Knight, Monning,   |
          |     |                          |     |Saldana                   |
           ----------------------------------------------------------------- 

           APPROPRIATIONS      17-0                                        
           
           -------------------------------- 
          |Ayes:|Fuentes, Conway,          |
          |     |Bradford,                 |
          |     |Huffman, Coto, Davis, De  |
          |     |Leon, Gatto, Hall,        |
          |     |Harkey, Miller, Nielsen,  |
          |     |Norby, Skinner, Solorio,  |
          |     |Torlakson, Torrico        |
          |-----+--------------------------|
          |     |                          |
           -------------------------------- 
           SUMMARY  :  Exempts certain Water Code violations of waste  
          discharge reporting requirements from existing mandatory minimum  
          penalties (MMPs).  Extends the time limit under which  
          dischargers must come into compliance with a permit requirement  
          from five years to 10 years.  Specifically,  this bill  : 

          1)Revises current law to allow a Regional Water Quality Control  
            Board (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 10  
            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  








                                                                  SB 1284
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            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.

          3)Provides that where a discharger has not previously received  
            notification from the State Water Resources Control Board  
            (SWRCB) or a RWQCB of an enforcement action imposing MMPs 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.  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.  Sunsets this  
            provision on January 2014.

          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  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.

           FISCAL EFFECT  :  According to the Senate Appropriations  
          Committee, because the bill exempts some violations from MMPs,  
          the bill is likely to reduce future penalty revenues.  The  
          amount of any potential penalty revenue loss is unknown.

           COMMENTS  :  

          1)Need for the bill.  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 SB  
            1284 would provide that certain violations involving the  
            failure to file a discharge monitoring report for no  








                                                                  SB 1284
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            discharges or legal discharges should not be subject to those  
            MMPs.

          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. 

          3)MMPs for failure to report.  The MMP statute was designed to  
            address the failure of the SWRCB and the RWQCBs to enforce  
            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 stature when it was found that  
            only 1% of over 4000 reporting violations were subject to the  
            existing penalties.

          4)The Pico Water District case.  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 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 current  
            pending.


           Analysis Prepared by  :    Bob Fredenburg / E.S. & T.M. / (916)  
          319-3965 

                                                                FN: 0006341