BILL ANALYSIS Ó
AB 246
Page 1
ASSEMBLY THIRD READING
AB 246 (Wieckowski)
As Amended March 29, 2011
Majority vote
JUDICIARY 6-4 ENVIRONMENTAL SAFETY 5-3
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|Ayes:|Feuer, Atkins, Dickinson, |Ayes:|Wieckowski, Chesbro, |
| |Huffman, Monning, | |Davis, Feuer, Bonnie |
| |Wieckowski | |Lowenthal |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Wagner, Silva, Huber, |Nays:|Miller, Morrell, Valadao |
| |Jones | | |
| | | | |
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APPROPRIATIONS 12-4
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|Ayes:|Fuentes, Blumenfield, | | |
| |Bradford, Charles | | |
| |Calderon, Campos, Davis, | | |
| |Gatto, Hall, Hill, Lara, | | |
| |Mitchell, Solorio | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Harkey, Nielsen, Norby, | | |
| |Wagner | | |
| | | | |
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SUMMARY : Extends civil prosecution authority for violations of the
Porter-Cologne Water Quality Control Act (Act) to district
attorneys and certain city attorneys. Specifically, this bill :
1)Permits a regional water quality control board (RWQCB),
commencing January 1, 2012, to delegate to its executive officer
the authority to apply for judicial enforcement of the Act to the
Attorney General (AG), a district attorney, a city attorney of a
city with a population that exceeds 750,000, or a city attorney
for a city and county.
2)Deletes the requirement that a RWQCB or the State Water Resources
Control Board (SWRCB) must hold a public hearing before the
either board may request the AG to petition the superior court to
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impose, assess, and recover certain civil penalties.
3)Authorizes a district attorney, a city attorney of a city with a
population that exceeds 750,000, or a city attorney for a city
and county (in addition to the AG), upon request of a RWQCB or
the SWRCB, to bring a civil action in the name of the people of
the State of California to enforce specified provisions of the
Act, but only after the AG has approved either board's request to
rely on offices other than the AG. Allows civil actions relating
to the same waste discharge to be joined or consolidated.
4)Authorizes a district attorney, a city attorney of a city with a
population that exceeds 750,000, or a city attorney for a city
and county, upon request of the SWRCB or a RWQCB, to petition the
appropriate court for the issuance of a preliminary or permanent
injunction, or both, to restrain a person from committing or
continuing violations of the Act, as specified. Provides that
the petition may be brought only after the AG has approved either
board's request.
5)Provides that the AG's approval of either board's request to rely
on offices other than the AG shall be presumed to have been
granted unless the AG issues a written denial within 30 days
after having been notified, in writing, of the request.
6)Allows, with respect to a petition for injunctive relief, the
court to issue an order directing that person to appear before
the court to show cause why the injunction should not be issued,
and to grant prohibitory or mandatory relief as may be warranted.
FISCAL EFFECT : According to the Assembly Appropriations Committee:
1)Nonreimbursable costs to local prosecutors electing to file civil
actions and injunctions upon request of the RWQCBs, offset to
some extent by penalty revenues.
2)Minor absorbable costs for the AG to review requests from local
prosecutors for the authority provided in this bill.
COMMENTS : According to the author, this bill gives RWQCBs much
needed flexibility in how they prosecute violations of the water
code by allowing them to refer civil cases to either the district
attorney or the city attorney of large cities. This bill seeks to
authorizes a district attorney, a city attorney of a city with a
population that exceeds 750,000, or a city attorney for a city and
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county, upon request of a RWQCB or the SWRCB, to bring a civil
action to enforce specified provisions of the Act, but only after
the AG has approved either board's request to rely on offices other
than the AG. This bill also would allow a RWQCB to delegate to its
executive officer the authority to apply for judicial enforcement
of the Act to the AG, a district attorney, or the city attorneys of
large cities, as specified.
Under the Act, the SWRCB has the ultimate authority over state
water quality policy. There are also nine RWQCBs with oversight
responsibility at local and regional levels. Each RWQCB consists
of nine members, appointed by the Governor for a term of four years
and subject to Senate confirmation. Under existing law, the RWQCB
must be comprised of individual members associated with different
areas of agriculture, water use, and local government, or have
special competence in areas related to water quality problems, as
specified. The RWQCB also appoints an executive officer, an
individual who must meet technical qualifications as defined by the
SWRCB and serves at the pleasure of the RWQCB.
Under existing provisions of the Act, the RWQCB may delegate any of
its powers and duties vested in it to its executive officer, with
certain exceptions, one of which is the delegation of application
to the AG for judicial enforcement. In addition, while the Act
allows district attorneys to prosecute selected violations as
criminal cases, only the AG is allowed to bring a civil action or
petition the appropriate court to impose, assess, and recover civil
penalties for violations of the Act.
According to the author, there have been a number of instances in
which a RWQCB 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 RWQCB
has is to apply to the AG's office for judicial enforcement because
the Act currently allows only the AG 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 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.
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This bill would allow each RWQCB to delegate to its executive
officer the authority to apply for judicial enforcement to the AG,
a district attorney, a city attorney of a city with a population
exceeding 750,000 or to a city attorney in any city and county.
According to the author, giving the RWQCB the option to delegate
this authority to refer cases for enforcement to its executive
officer will help streamline the enforcement process by no longer
requiring the full board to deliberate every referral.
Under this bill, the RWQCB may (but is not required to) delegate
such authority to its executive officer, and the RWQCB retains its
authority to apply for judicial enforcement directly in cases where
it may wish to do so. Even if the RWQCB chooses to delegate its
authority under this bill, that delegation places the decision to
refer a case for judicial enforcement within the discretion of the
executive officer, over whose actions the RWQCB ultimately retains
oversight, and who under existing law serves at the pleasure of the
RWQCB and may already be delegated many of the powers and duties of
the RWQCB.
This bill authorizes district attorneys and city attorneys, upon
request by the RWQCB, to pursue various forms of civil enforcement
currently limited only to the AG, but only after the AG has
approved such a request. Under the common procedure specified by
this bill, the AG must be notified by writing of the RWQCB 's
request to rely on offices other than the AG for civil enforcement,
and then has 30 days to issue a written denial or approval of the
request shall be deemed granted. This applies to several areas of
civil enforcement under the Act, including the recovery of civil
penalties and injunctive relief, but does not increase or otherwise
change any standard of liability under the Act itself.
Importantly, if the AG issues a written denial of the request to
have another office pursue civil enforcement, which does not
necessarily mean potential violations will go unenforced. In those
cases, existing law still requires the AG, upon request of either
board, to pursue civil enforcement of the matter, as specified in
each section of this bill providing for different remedies to
enforce the Act. The bill simply ensures that the AG is provided
with the first opportunity to act pursuant to any request for civil
enforcement before district attorneys or city attorneys may
proceed. While the bill increases the options for enforcement
referral open to the RWQCB and the SWRCB by authorizing district
attorney and city attorney offices to proceed if requested, it
leaves the decision to refer a case for judicial enforcement in the
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hands of the SWRCB, or the RWQCB or their executive officers.
Because the enforcement process still must be initiated by referral
from either board, under this bill the total number of civil
actions remains a function of the number of cases referred by that
respective board. Thus, this bill could increase the number of
civil actions if the SWRCB or RWQCB begin to refer cases for
enforcement that they previously did not refer regularly-most
likely, cases in which there appears to be insufficient evidence to
support a criminal prosecution but enough to pursue civil
liability.
In addition to district attorneys, this bill authorizes a city
attorney of a city with a population that exceeds 750,000, or a
city attorney for a city and county, with new civil enforcement
capabilities, upon request of a RWQCB or the SWRCB, as specified.
According to 2010 U.S. Census data, there are only four cities in
California that have a population exceeding 750,000: Los Angeles,
San Diego, San Jose, and San Francisco. Thus, the bill would apply
only to the city attorneys in those four cities.
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334 FN:
0000641