BILL ANALYSIS Ó
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Wieckowski, Chair
2015 - 2016 Regular
Bill No: AB 1842
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|Author: |Levine |
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|Version: |4/27/2016 |Hearing |6/29/2016 |
| | |Date: | |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Rachel Machi Wagoner |
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SUBJECT: Water: pollution: fines.
ANALYSIS:
Existing law:
1)Provides for a base fine/ penalty of up to $2,000 on criminal
or $25,000 on civil polluters of state waters.
2)Under criminal proceedings provides for up to a $10 additional
fine/ penalty per gallon or pound of material that is not
removed from state waters. Provides for a similar penalty
under administrative proceedings.
This bill:
1)Imposes an additional civil penalty of up to $10 per gallon or
pound of polluting material illegally discharged into state
waterways.
2)Requires the penalty to be reduced for every gallon or pound
of the illegally discharged material recovered and properly
disposed of by the responsible party.
3)Prohibits a person from being subject to both this penalty and
the civil penalties imposed under the Lempert-Keene-Seastrand
Oil Spill Prevention and Response Act.
Comments
AB 1842 (Levine) Page 2
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1)Purpose of Bill. According to the author, AB 1842 protects
California's waterways by underscoring the importance of
appropriate sanctions that reflect the severity of a
violation. California is home to some of the most beautiful
coastline, bays, estuaries, streams, and rivers in the nation.
Gross polluters of our waterways must be held accountable and
strong enforcement is needed.
2)The Department of Fish and Wildlife has asked for a technical
amendment. The Department would like the word "polluting"
stricken in reference to "polluting material discharged".
Because the Fish and Game Code Section 5650 prohibits specific
substances from being discharged, the word "polluting" may
imply that the civil penalty does not apply to the discharge
but rather whether the discharge is considered pollution.
SOURCE: California District Attorneys Association
SUPPORT:
California League of Conservation Voters
Natural Resources Defense Council
Sierra Club
OPPOSITION:
Association of California Water Agencies
California Association of Sanitation Districts (CASA)
El Dorado Irrigation District
ARGUMENTS IN
SUPPORT:
According to the California District Attorneys Association,
which is the sponsor of the legislation, the inability to
utilize the surcharge as an enforcement tool for civil actions
hampers a prosecutors flexibility and in many cases is an
impediment to environmental protection.
AB 1842 (Levine) Page 3
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Environmental prosecution units throughout California help
ensure that those who pollute state waters are held accountable
for their conduct.
When a polluter fouls state waters, the violator may face an
administrative, civil, or criminal proceeding.
The polluter is also required to take clean up action and is
held responsible for removing and properly disposing of the
pollutant.
To help ensure that the polluter did as much clean up as
possible, the law also provides for a surcharge of $1 to $10 per
gallon or pound of material that is not removed from state
waters. Unfortunately, as previously mentioned, this surcharge
is available only for criminal and administrative proceedings.
Not authorized for civil proceedings.
The disparity in existing law creates a loophole. A prosecutor
who cannot bring an administrative action, and believes that the
conduct fell short of a criminal action, must then forego the
surcharge when filing a civil action.
ARGUMENTS IN
OPPOSITION:
AB 1842 would expose public wastewater agencies to double
penalties for the same event. The bill would expand existing
penalty authority under the Fish and Game Code by authorizing
all 58 California District Attorneys (DAs) to pursue per gallon
penalties for pollutant discharges to state waters in a civil
proceeding. DAs are already allowed to pursue these penalties
criminally, and may also pursue a penalty of $25,000 for such
violations civilly. While expanding the DAs ability to pursue
per gallon penalties civilly may be warranted to fill a gap, the
bill would result in the possibility of double penalties from
multiple sources being imposed on our members.
CSA states that "dischargers, including local wastewater
agencies, which have already paid penalties to the State Water
Resources Control Board and/or Regional Water Quality Control
Boards (Water Boards) on a per gallon basis, could face another
set of per gallon penalties from local DAs for the same
discharge. This is both duplicative and unnecessarily punitive."
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The opposition requests an amendment that would preclude a
district attorney from pursuing a civil penalty under the
provisions of this bill if SWRCB or a regional board has
recovered a civil penalty under the water code for the same
event and vice versa.
The concern with the CASA proposed amendment is that this
amendment would inappropriately try to limit civil liability for
discharges that violate both the Fish and Game Code and the
Water Code. California law makes specific agencies responsible
for implementing specific statutes and regulations in order to
protect different aspects of the public interest, as identified
by the Legislature. The Department of Fish and Wildlife is
charged with implementing provisions of the Fish and Game Code,
including regulating activities to protect fish and wildlife and
taking enforcement actions against parties that violate the Fish
and Game Code and associated regulations and can thereby
adversely affect fish and wildlife. Similarly, the State Water
Resources Control Board and Regional Water Quality Control
Boards are charged with implementing provisions of the Water
Code, including regulating discharges to protect water quality
and taking enforcement against parties who violate the Water
Code and associated regulations and can thereby adversely affect
water quality.
A party that conducts an activity that adversely affects both
fish and wildlife and water quality should appropriately be
subject to enforcement actions for both harms to the public
interest. For example, on the Costco Busan Oil spill which
resulted in a release of 64,000 gallons of oil into San
Francisco Bay, both the State Water Board and the Department of
Fish and Wildlife took enforcement actions under their
respective authorities to protect water quality and to protect
fish and wildlife. Similarly, in the area of underground
storage tank regulation, a single action by an operator that
leads to an unauthorized release of petroleum from an
underground storage tank could lead to enforcement actions by
the Department of Toxic Substances Control or a Certified
Unified Program Agency for violation of hazardous waste laws and
as well by a Regional Water Board for adverse impacts to ground
water. Most statutory penalty schemes under California law are
non-exclusive. Therefore, the requested amendment would have
deleterious effects on enforcement action taken by either
AB 1842 (Levine) Page 5
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entity.
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