BILL ANALYSIS Ó
AB 246
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Date of Hearing: April 26, 2011
ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS
Bob Wieckowski, Chair
AB 246 (Wieckowski) - As Amended: March 29, 2011
SUBJECT : Water Quality Enforcement: District Attorneys.
SUMMARY : Authorizes district attorneys to bring civil actions
for specified violations of the Porter-Cologne Water Quality
Act. Specifically, this bill :
1)Authorizes district attorneys and city attorneys of larger
cities (currently Los Angeles, San Diego, San Jose, and San
Francisco) to do the following:
a) Petition superior court to assess mandatory minimum
penalties; and
b) Pursue civil penalties under a variety of federal and
state waste discharge statutes.
c) Specifies that these authorities would be contingent
upon the approval of the State Water Resources Control
Board (SWRCB) or the Regional Water Quality Control Boards
(RWQCBs) and with the approval of the California Attorney
General.
2)Authorizes RWQCB to delegate to their executive director the
authority to request judicial enforcement for specified
wastewater violations.
3)Eliminates the hearing required to be held by the state or a
regional board prior to requesting action on civil penalties
in court.
EXISTING LAW: Under the Porter-Cologne Water Quality Act,
1)Authorizes the SWRCB and RWQCBs to set waste discharge
requirements.
2)Provides for the imposition of civil penalties for specified
violations. Authorizes the state Attorney General to petition
the superior court to impose certain liabilities.
3)Establishes a mandatory minimum penalty (MMP) of $3,000 for
each serious waste discharge violation, as defined. This may
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be in addition to other penalties and fees.
4)Requires that, prior to requesting the Attorney General to
take action on civil penalties in court, the SWRCB or the
RWQCBs must hold a public hearing.
5)Allows RWQCBs to delegate certain of their powers and duties
to their executive directors. Excluded from this delegated
authority is applying to the Attorney General for most
judicial enforcements.
FISCAL EFFECT : Not Known
COMMENTS :
Need for the bill: According to the author's office, there have
been a number of instances in which a regional board had asked
an appropriate District Attorney's office to pursue criminal
charges arising from a water pollution incident, but the facts
and circumstances ultimately were determined to make for a
better civil case. The author asserts that when a civil case
appears to be the appropriate action, the only option that a
regional board has is to apply to the Attorney General's office
for judicial enforcement because the Act currently allows only
the Attorney General to bring a civil action for violations of
the Act. The author contends that it is reasonable that
district attorneys and city attorneys should have the ability to
pursue civil enforcement of the Porter-Cologne Act, particularly
in light of the fact that different provisions of existing law
already allow local prosecutors to file civil actions to enforce
other environmental statutes involving hazardous waste, air
pollution, and other hazardous material spills.
ARGUMENTS IN SUPPORT : The California Coastkeeper Alliance (CCA)
contends that this bill will help make enforcement of the
Porter-Cologne Act consistent with other provisions of state
environmental protection law. According to CCA: "The lack of
authority for local prosecutors to file civil prosecutions for
violations of Porter-Cologne is an anomaly in California
environmental law. Local prosecutors may bring civil
prosecutions in other key areas of environmental protection,
such as hazardous materials, hazardous waste, water pollution
violations, marine oil spills, storage tank violations, and air
pollution violations. It is appropriate to provide the same
authority to local prosecutors for violations of
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Porter-Cologne."
ARGUMENTS IN OPPOSITION : Opponents of the bill, including the
Valley Agricultural Water Coalition, a coalition of water
companies and public water agencies, contend that, "It is not
necessary to alter current enforcement procedures" and that
"authorizing outside counsel to pursue civil actions abandons
the experience and expertise of the regional board . . . to
prioritize enforcement actions."
SWRCB Water Quality Improvement Initiative: The SWRCB adopted
the Water Quality Improvement Initiative in 2008. This
initiative included a series of recommendations to improve
enforcement of water quality laws in California. Included in
this report were several of the recommendations contained in AB
246. Specially, the SWRCB Water Quality Improvement Initiative
recommended the following proposals to help enhance
environmental enforcement:
1)Remove Unnecessary Barriers To Prompt, Effective Enforcement
Actions : Remove provisions in current law that require the
SWRCB and RWQCBs to provide written notice to illegal
dischargers prior to being able to issue penalties for illegal
discharges and require the SWRCB and RWQCBs to hold a public
hearing prior to referring a case to the Attorney General.
2)Enhance Civil Enforcement for Water Code Violations and
Increase Efficiency : Authorize District Attorneys and City
Attorneys for cities with a population of 750,000 or more, at
the request of the SWRCB and RWQCBs, to seek civil liability
for water quality violations.
Prior Legislation :
AB 1946 (Nava) of 2008 contained language substantially similar
to this bill. AB 1946 would have authorized a district attorney
or city attorney, upon request of the state board or a regional
board, to pursue civil enforcement of the Porter-Cologne Act.
AB 1946 was vetoed by Governor Schwarzenegger.
REGISTERED SUPPORT / OPPOSITION :
Support
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California Attorney General's Office
California Coastkeeper Alliance
California District Attorneys' Association
Sierra Club California
Opposition
American Council of Engineering Companies, CA
Association of California Water Agencies
California Association of Sanitation Agencies
California Central Valley Flood Control Association
California Chamber of Commerce
California Farm Bureau Federation
California Manufacturers and Technology Association
Construction Employers Association
California League of Food Processors
California Independent Oil Marketers Association
California Trucking Association
California Building Industry Association
California Grain & Feed Association
California Seed Association
California Pear Growers Association
California State Floral Association
Desert Water Agency
East Valley Water District
El Dorado Irrigation District
Industrial Environmental Association
Kings River Water Association
Kings River Conservation District
Valley Ag Water Coalition
Western Growers
Western Plant Health
Western States Petroleum Association
The Wine Institute
Agricultural Council of California
Family Winemakers of California
Analysis Prepared by : Bob Fredenburg / E.S. & T.M. / (916)
319-3965
AB 246
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