BILL ANALYSIS Ó
AB 246
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator S. Joseph Simitian, Chairman
2011-2012 Regular Session
BILL NO: AB 246
AUTHOR: Wieckowski
AMENDED: March 29, 2011
FISCAL: Yes HEARING DATE: June 20, 2011
URGENCY: No CONSULTANT:
Rachel Machi Wagoner
SUBJECT : WATER QUALITY: ENFORCEMENT
SUMMARY :
Existing law , Under the Porter-Cologne Water Quality Act
(Porter-Cologne),
1) Authorizes the State Water Resources Control Board (SWRCB)
and Regional Water Quality Control Boards (RWQCBs) to set
waste discharge requirements.
2) Provides for the imposition of civil penalties for
specified violations. The state Attorney General (AG) may
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 be in addition to other penalties and fees.
4) Requires that, prior to requesting the AG 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 AG for most judicial
enforcements.
This bill :
1) Permits a RWQCB, commencing January 1, 2012, to delegate to
its executive officer the authority to apply for judicial
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enforcement of the Act to the 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 SWRCB must hold
a public hearing before either board may request the AG to
petition the superior court to 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. 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 a 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.
COMMENTS :
1) Purpose of Bill . According to the author, this bill seeks
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to correct an anomaly in the law that is unique to
Porter-Cologne civil cases. Currently, only the AG may
bring a civil action or petition the superior court or
other appropriate court to impose, assess and recover civil
penalties for violation of Porter-Cologne, including
violations of Chapter 5.5, which incorporates the Federal
Clean Water Act. The author states that district attorneys
may prosecute selected violations of the Porter-Cologne as
criminal cases, but under current law are not permitted to
file civil prosecutions for violations of Porter-Cologne.
The author argues that this bill addresses this problem by
allowing executive officers to delegate civil prosecutions
to environmental prosecutors in district attorney offices,
a city attorney of a city with a population exceeding
750,000, or a city attorney in any city and county to
petition the superior court or other appropriate court to
impose , assess, and recover civil penalties and other
remedies for violations of Porter-Cologne and to bring
civil actions for violations of chapter 5.5 of
Porter-Cologne.
2) Arguments in Support : The California Coastkeeper Alliance
(CCA) contends that AB 246 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
Porter-Cologne."
3) Arguments in Opposition : Opponents of AB 246, 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
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regional board and regional board staff to balance
competing uses of the waters of the state or to prioritize
enforcement actions."
Additionally, opponents argue that this bill would lead to
inconsistencies in enforcement as 58 county district
attorneys and several city attorneys begin filing civil
actions previously brought by one division in the AG's
office. Opponents note that "special expertise is needed
to prosecute cases in this highly technical area and the
AG's office has accumulated the necessary expertise. It is
simply not possible for that expertise to be replicated in
58 counties throughout the state."
4) 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:
a) 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.
b) 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.
5) 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 stating: "This bill
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misses the mark because increasing the frequency and
severity of civil penalties via the court system is not the
trust measure of our success in addressing water quality in
California. The courts are an effective tool, but they are
not the only tool that should be used to ensure clean
water."
SOURCE : Assembly Member Wieckowski
SUPPORT : California Coastkeeper Alliance
California District Attorneys Association
Sierra Club
OPPOSITION : Agricultural Council of California
American Council of Engineers, California
Association of California Water Agencies
California Building Industry Association
California Central Valley Flood Control
Association
California Chamber of Commerce
California Farm Bureau Federation
California Grain and Feed Association
California League of Food Processors
California Independent Oil Marketers
Association
California Manufacturers and Technology
Association
California Pear Growers Association
California Seed Association
California State Floral Association
California Steel Association
California Trucking Association
City of Roseville
Construction Employers' Association
Desert Water Agency
East Valley Water District
El Dorado Irrigation District
Family Winemakers of California
Industrial Environmental Association
Irvine Ranch Water District
Kings River Conservation District
Kings River Water Association
Ross Valley Sanitary District
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Valley Ag Water Coalition
Western Growers
Western Plant Health
Western States Petroleum Association
Wine Institute