BILL ANALYSIS Ó
AB 1315
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Date of Hearing: April 29, 2015
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
Brian Maienschein, Chair
AB 1315
(Alejo) - As Amended April 21, 2015
SUBJECT: Public contracts: water pollution prevention plans:
delegation.
SUMMARY: Prohibits local agencies, including charter cities,
from requiring contractors to develop, or assume responsibility
for the completeness and accuracy of, plans to prevent or reduce
water pollution or runoff on public works projects.
Specifically, this bill:
1)Defines "plan" to mean a stormwater pollution prevention plan
(SWPPP), water pollution control program, or any other plan
required by a regional water quality control board to prevent
or reduce water pollution or runoff on a public works project,
pursuant to State Water Resources Control Board (Water Board)
Order No. 2009-0009-DWQ (Order).
2)Prohibits a public entity, charter city, or charter county
from delegating to a contractor the development of a plan on a
public works contract.
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3)Provides that the provision described in 2), above, does not
apply to a contract for architectural or engineering services
relating to the development of a plan on a public works
contract.
4)Provides that this bill does not restrict a public entity,
charter city, or charter county from contracting with a duly
licensed architect or engineer for the design of a plan.
5)Prohibits a public entity, charter city, or charter county
from requiring a contractor on a public works contract that
includes compliance with a plan to assume responsibility for
the completeness and accuracy of the plan developed by that
entity.
6)Specifies that the above provisions apply regardless of the
project delivery method required in a public works contract.
7)Provides that nothing in this bill shall be construed to
prohibit a local public entity, charter city, or charter
county from requiring a bidder or contractor on a public works
contract to review any applicable plan and report any errors
or omissions noted to the public entity or its plan developer.
The review by the contractor shall be limited to the
contractor's capacity as a contractor and not as a licensed
design professional or plan developer.
8)Defines "plan developer" to mean a qualified SWPPP developer
(QSD) or a qualified SWPPP practitioner (QSP) as those terms
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are defined in Appendix 5 of the Water Board's Order.
9)Finds and declares that it is of statewide concern to require
a public entity, charter city, or charter county to be
responsible for the development of, and completeness and
accuracy of,
a plan to prevent or reduce water pollution or runoff on a
public works project.
10)Provides that, if the Commission on State Mandates determines
that this bill contains costs mandated by the state,
reimbursement to local agencies and school districts for those
costs shall be made pursuant to current law governing state
mandated local costs.
EXISTING LAW:
1)Prohibits a local public entity, charter city, or charter
county from requiring a bidder on a public works contract to
assume responsibility for the completeness and accuracy of
architectural or engineering plans and specifications on
public works projects, except as specified.
2)Regulates the discharge of pollutants in stormwater associated
with construction activity to waters of the United States from
construction sites that disturb one or more acres of land
surface, or that are part of a common plan of development or
sale that disturbs more than one acre of land surface.
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3)Requires the Water Board and the nine California Regional
Water Quality Control Boards (Regional Boards) to prescribe
waste discharge requirements in accordance with the federal
National Pollutant Discharge Elimination System (NPDES) permit
program established by the federal Clean Water Act and
California's Porter-Cologne Water Quality Control Act.
4)Regulates NPDES permit requirements under a General
Construction Permit (Permit) via the Water Board's Order.
FISCAL EFFECT: This bill is keyed fiscal and contains a
state-mandated local program.
COMMENTS:
1)Bill Summary. This bill prohibits pubic agencies from
delegating to a contractor the development of an SWPPP, water
pollution control program, or any other plan required by a
Regional Board to prevent or reduce water pollution or runoff
on a public works project.
This bill also prohibits public agencies from requiring a
contractor on a public works contract that includes compliance
with any of these plans to assume responsibility for the
completeness and accuracy of the plan developed by that
entity. This bill is sponsored by the Associated General
Contractors, the Construction Employers Association, the
Southern California Contractors Association, the California
Legislative Conference of the Plumbing, Heating and Piping
Industry, and the National Electrical Contractors Association,
California Chapters.
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2)Background. In 1948, Congress passed the first version of the
Federal Water Pollution Control Act, or the Clean Water Act.
The NPDES was amended into the Act in 1972, with a focus on
point sources of pollution such as sewage treatment and
wastewater from industrial and manufacturing facilities.
After 1972, studies began showing that non-point sources,
including stormwater runoff, were a major contributor to
surface water pollution. This led to further amendments to
the Act that created a framework for regulating stormwater.
In 1990, the U.S. Environmental Protection Agency published
final regulations establishing permit requirements for
stormwater discharges associated with industrial activities,
including construction activities. California's first Permit
was adopted in 1992. The latest Permit, which is regulated by
the Water Board's Order, became effective July 1, 2010.
Owners of construction projects that disturb one or more acres
of land must comply with the Permit, which regulates the
discharge of stormwater and non-stormwater (i.e., improper
dumping, spills, leakage from storage tanks) from certain
construction activities and is enforced by California's nine
Regional Boards. The Permit requires, among other things, the
development of a site-specific SWPPP that demonstrates
compliance with the Permit.
A SWPPPs is a comprehensive, detailed, site-specific, written
document that identifies potential sources of stormwater
pollution on a construction site; describes stormwater control
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measures and Best Management Practices (BMPs) that will be
used to reduce or eliminate pollutants in stormwater
discharges from the project site; and, identifies the
procedures the operator of the project site will implement to
comply with the terms and conditions of the Permit.
SWPPPs are ever-changing documents. In order for a
construction site to remain in compliance with the Clean Water
Act's NPDES permitting program, an SWPPP must be developed and
maintained throughout the construction project's entirety. As
the project progresses and goes through changes, the SWPPP
must be revised to reflect those changes. The SWPPP is
comprised of site maps, BMP details, inspection reports, spill
reports, corrective action logs and associated waivers.
A project's SWPPP may be furnished by the project owner or
prepared by a contractor's SWPPP developer.
3)Who Develops the SWPPP? The Permit requires SWPPPs to be
prepared and certified by a QSD. Many other SWPPP tasks (i.e.
inspections) must be conducted directly by, or under the
supervision of, a QSD or QSP. There are extensive
qualification and training requirements for both the QSD and
QSP.
To become a QSD or a QSP, a person must complete a training
course offered by a qualified California Construction General
Permit Trainer of Record, pass an exam, and register and be
certified by the California Stormwater Quality Association.
In addition, each qualification requires an underlying
pre-registration or pre-certification.
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To become a QSD, a person must be one of the following:
Registered Civil Engineer; Registered Professional Geologist;
Registered Landscape Architect; Registered Professional
Hydrologist; Certified Professional in Erosion and Sediment
Control (CPESC); Certified Professional in Storm Water Quality
(CPSWQ); or, Professional in Erosion and Sediment Control
registered through the National Institute for Certification in
Engineering Technologies.
To be a QSP, one must be a QSD or be one of the following:
Certified Erosion, Sediment, and Storm Water Inspector
(CESSWI) or a Certified Inspector of Sediment and Erosion
Control (CISEC).
4)Responsibility and Consequences. The Permit defines the
"discharger" as "[t]he Legally Responsible Person or entity
subject to the General Permit." The Permit defines the
Legally Responsible Person as falling into specified eligible
categories, including "[a] person, company, agency or other
entity that possesses a real property interest. . . .in the
land upon which the construction or land disturbance
activities will occur for the regulated site." The Permit
states a contractor is not qualified to be the Legally
Responsible Person, unless they fall into limited categories
(those employed and duly authorized on U.S. Army Corp of
Engineers Projects or those engaged in pollution and
remediation projects).
The Permit is typically held in the name of the property
owner. Consequently, the party required to ensure compliance
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with the Permit is the property owner, not the contractor.
The Permit also requires the discharger (i.e., owner) to file
Permit registration documents, annual reports and other
compliance information. The discharger must certify that the
information provided regarding the project site is accurate
and complete. The discharger must allow entry to the project
site for inspections and provide records required to be kept
under the Permit.
There are serious potential costs for failure to comply with
the Permit. Any person who violates a condition of the Permit
is subject to a civil penalty, which could be as high as
$37,500 per calendar day of a violation, plus sanctions
provided by the Clean Water Act.
5)Author's Statement. According to the author, "Although the
Permit allocates SWPPP design responsibility to project owners
- including the corresponding risk of penalties for design
defects - many owners attempt to transfer design
responsibility/risk to their contractors. This is done
through broad contractual indemnity provisions and design-risk
shifting requirements... As a result, contractors: (1) are
forced to hire a design firm to design the SWPPP/act as QSD;
and (2) often attempt to transfer the risk of penalties down
to their subcontractors through similarly broad subcontract
indemnity provisions?This shift in responsibility: (1)
undermines the intent of the Permit; (2) results in an
inefficient allocation of responsibility and risk; and (3) is
contrary to several existing laws.
"(This is) not what the drafters of the Permit envisioned -
they nullify the policy decision
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of the State Water Resources Control Board to designate the
project owner as the 'Legally Responsible Party.' Owners
should retain design responsibility and the risk of design
flaws. To conform to the Permit, project owners should retain
a QSD as part of their design team before a project is bid.
The SWPPP should be published pre-bid so bidders submit prices
on a level playing field - all contractors proposing to
perform a job can propose a price for the same quality of
SWPPP and be held to a uniform standard of being required to
build what the owner's plan shows."
The sponsors of this bill indicate that they are unaware of
any litigation being brought as a result of this practice, and
that they are seeking a legislative solution, instead.
6)Contracting Agencies' Perspective. According to staff at the
State Water Board, the practice of delegating development of
an SWPPP to the contractor is neither new nor unusual. This
is frequently the practice they see in construction projects
that must obtain a Permit and develop an SWPPP. They note
that the discharger, or the responsible party for the Permit,
is named on the Permit and is always the owner/agency, not the
contractor. Thus, responsibility for compliance with the
Permit remains with the owner/agency, regardless of which
party develops the SWPPP.
Water Board staff also asserts that most municipalities don't
have the expertise to develop SWPPPs and don't have the
resources to retain QSDs on staff. QSDs are typically
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employed by environmental consulting firms that perform the
work of developing SWPPPs under contract, either with a
contractor (which is more common), or with the owner/agency.
(Some large contracting firms keep QSDs on staff, but many
smaller firms also don't have the resources to do so.)
Local contracting agencies indicate that they often require
contractors to design and submit SWPPPs because a contractor's
plan or approach for construction dictates the sequence of
excavation, backfill, and temporary stockpiling of material on
a typical project. They contend that a contractor-designed
SWPPP can incorporate an optimal construction sequence
selected by the contractor and incorporate it into their
SWPPP, thereby maximizing efficiency and reducing costs.
An owner-designed SWPPP would necessarily have to assume a
sequence of excavation, etc. (and effects upon drainage) that
might occur under one construction sequence/scenario. This
might not be the optimum sequence that the contractor would
elect to use (and would have incorporated into its own SWPPP
plan). For this reason, it makes more sense to require the
party actually responsible for the construction sequence of
operations to be the one implementing its sequence into the
design of an SWPPP. An owner-designed SWPPP would
unnecessarily lock in all bidders to one single type of
construction sequence/plan envisioned by the owner prior to
the bid opening, one which may not necessarily be the lowest
cost option.
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7)State Mandate. This bill is keyed a state mandate, which
means the state could be required to reimburse local agencies
and school districts for implementing the bill's provisions,
if the Commission on State Mandates determines that the bill
contains costs mandated by the state.
8)Arguments in Support. The Associated General Contractors,
Construction Employers Association, Southern California
Contractors Association, California Legislative Conference of
the Plumbing, Heating and Piping Industry, and National
Electrical Contractors Association, California Chapters,
co-sponsors of this measure, write, "AB 1315 clarifies that
public owners are responsible for the preparation of Storm
water Pollution Prevention Plans (SWPPP) required on public
works projects and prohibits public owners from delegating
responsibility to contractors or forcing contractors to assume
responsibility for SWPPP design.
"Local agencies have begun requiring contractors to prepare
the state required storm water plan and submit it as part of
the bid. At this point the contractor or subcontractor cannot
price the storm water plan because it hasn't been designed yet
- so the result is the contractor or subcontractor is forced
to estimate the cost of implementing a storm water plan - and
include that cost into a bid - even before the plan has been
designed.
"AB 1315 will result in public works project owners
design(ing) SWPPPs with the best level of protection for
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California's beaches and waterways and allow the contractor to
accurately reflect the cost of the storm water plan in their
bid.
"Notably, this bill does not relieve contractors of their duty
to prevent storm water pollution. If a contractor is negligent
in constructing the SWPPP, the owner retains the right to hold
the contractor responsible for the resulting penalties.
Additionally, the Regional Water Quality Control Boards retain
their rights to fine any person directly for violations of the
Permit."
9)Arguments in Opposition. The Association of California
Healthcare Districts, the Association of California School
Administrators, the Association of California Water Agencies,
the California Association of School Business Officials, the
California Association of Sanitation Agencies, the California
Municipal Utilities Association, the California Special
Districts Association, the California State Association of
Counties, the Coalition for Adequate School Housing, the
League of California Cities, the Rural County Representatives
of California, the Three Valleys Municipal Water District, and
the Urban Counties Caucus, in opposition to this bill, state,
" SWPPPs must be written, amended and certified by qualified
personnel who are knowledgeable in the principles and practice
of erosion and sediment controls and possess the skills to
assess conditions at the construction site that could impact
stormwater quality. Public agencies rely on the expertise of
qualified SWPPP developers, known as QSDs, to conduct this
work, as agencies do not have the resources nor the regular
workload required to employ such personnel throughout the
year.
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"SWPPPs are currently created in accordance with the general
contractor's construction plans. As construction progresses,
SWPPPs must often be modified to accommodate the constantly
changing conditions of a construction site. The general
contractor is in the best position to create the construction
plan and contract for the corresponding SWPPP. A general
contractor-developed SWPPP can incorporate an optimal
construction sequence selected by the contractor, thereby
maximizing efficiency and reducing costs. A separate entity
developing a SWPPP would have to assume a sequence of work
that might occur under one construction scenario but not
another.
"AB 1315 would turn this standing process on its head by
prohibiting public agencies from contracting with the general
contractor to develop a SWPPP and statutorily restricting
their remaining options to an engineer or architect. Public
agencies, engineers and architects simply do not have the
direct control over the day-to-day construction, let alone the
expertise, to perform this function.
"Ultimately, the success or failure of a SWPPP lies with the
general contractor carrying it out. If the Legislature
statutorily shifts the development and liability of the SWPPP
to the public agency or to a design professional or architect,
it will create confusion and conflict within the public works
process. AB 1315 will only further disconnect the entity
responsible for the development of the SWPPP from the entity
that performs the work related to the SWPPP. This is akin to
asking the public agency or design professional to separately
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plan and contract for the security of the general contractor's
equipment on the job site, the number of portable restrooms
needed or any other function that is intimately connected to
the performance and sequence of a construction project."
REGISTERED SUPPORT / OPPOSITION:
Support
Associated General Contractors [CO-SPONSOR]
Construction Employers Association [CO-SPONSOR]
Southern California Contractors Association [CO-SPONSOR]
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California Legislative Conference of the Plumbing, Heating and
Piping Industry [CO-SPONSOR]
National Electrical Contractors Association, California Chapters
[CO-SPONSOR]
American Subcontractors Association California, Inc.
California Concrete Contractors Association
United Contractors
Opposition
Association of California Healthcare Districts
Association of California School Administrators
Association of California Water Agencies
California Association of Sanitation Agencies
California Association of School Business Officials
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California Municipal Utilities Association
California Special Districts Association
California State Association of Counties
Coalition for Adequate School Housing
League of California Cities
Los Angeles County Board of Supervisors
Rural County Representatives of California
Sonoma County Water Agency
Three Valleys Municipal Water District
Urban Counties Caucus
Analysis Prepared by:Angela Mapp / L. GOV. / (916) 319-3958
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