BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 246|
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THIRD READING
Bill No: AB 246
Author: Wieckowski (D)
Amended: 3/29/11 in Assembly
Vote: 21
SENATE ENVIRONMENTAL QUALITY COMMITTEE : 4-2, 6/20/11
AYES: Simitian, Hancock, Kehoe, Lowenthal
NOES: Strickland, Blakeslee
NO VOTE RECORDED: Pavley
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 47-29, 5/19/11 - See last page for vote
SUBJECT : Water quality: enforcement
SOURCE : Author
DIGEST : This bill authorizes district attorneys to bring
civil actions for specified violations of the
Porter-Cologne Water Quality Act.
ANALYSIS :
Existing law, Under the Porter-Cologne Water Quality Act
(Act):
1. Authorizes the State Water Resources Control Board
(SWRCB) and Regional Water Quality Control Boards
(RWQCBs) to set waste discharge requirements.
CONTINUED
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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 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.
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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
According to the author's office, this bill seeks 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's office 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's office 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
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penalties and other remedies for violations of
Porter-Cologne and to bring civil actions for violations of
chapter 5.5 of Porter-Cologne.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 7/8/11)
Attorney General Kamala Harris
California District Attorneys Association
California Coastkeeper Alliance
Sierra Club California
OPPOSITION : (Verified 7/8/11)
Agricultural Council of California
American Council of Engineering Companies, CA
Association of California Water Agencies
California Association of Sanitation Agencies
California Building Industry Association
California Central Valley Flood Control Association
California Chamber of Commerce
California Farm Bureau Federation
California Grain & Feed Association
California Independent Oil Marketers Association
California League of Food Processors
California Manufacturers and Technology Association
California Pear Growers Association
California Seed Association
California State Floral Association
California Trucking Association
Construction Employers Association
Desert Water Agency
East Valley Water District
El Dorado Irrigation District
Family Winemakers of California
Industrial Environmental Association
Kings River Conservation District
Kings River Water Association
The Wine Institute
Valley Agriculture Water Coalition
Western Growers
Western Plant Health
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Western States Petroleum Association
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
Porter-Cologne."
ARGUMENTS IN OPPOSITION : Opponents of this 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 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 will 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."
ASSEMBLY FLOOR :
AYES: Allen, Ammiano, Atkins, Beall, Block, Blumenfield,
Bonilla, Bradford, Brownley, Butler, Charles Calderon,
Campos, Carter, Cedillo, Chesbro, Davis, Dickinson, Eng,
Feuer, Fong, Fuentes, Furutani, Gatto, Gordon, Hall,
Hayashi, Roger Hernández, Hill, Hueso, Huffman, Lara,
Bonnie Lowenthal, Mendoza, Mitchell, Monning, Pan, Perea,
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V. Manuel Pérez, Portantino, Skinner, Solorio, Swanson,
Torres, Wieckowski, Williams, Yamada, John A. Pérez
NOES: Achadjian, Bill Berryhill, Buchanan, Conway, Cook,
Donnelly, Fletcher, Beth Gaines, Garrick, Grove, Hagman,
Halderman, Harkey, Huber, Jeffries, Jones, Knight, Logue,
Mansoor, Miller, Morrell, Nestande, Nielsen, Norby,
Olsen, Silva, Smyth, Valadao, Wagner
NO VOTE RECORDED: Alejo, Galgiani, Gorell, Ma
DLW:do 7/12/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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