BILL ANALYSIS Ó AB 2446 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 2446 (Gordon) As Amended August 1, 2016 Majority vote -------------------------------------------------------------------- |ASSEMBLY: |50-23 |(May 23, 2016) |SENATE: |23-13 |(August 18, | | | | | | |2016) | | | | | | | | | | | | | | | -------------------------------------------------------------------- Original Committee Reference: JUD. SUMMARY: Seeks to expand the authority of the State Water Resources Control Board (State Water Board), and to a lesser extent regional water boards, to issue or not issue a stay pending board proceedings, prohibit certain judicial challenges to water board decisions until after the administrative process has run its course, and clarify two specified evidentiary requirements. Specifically, this bill: 1)Expands a provision of existing law that authorizes the State Water Board, in response to a petition to review an order of a regional water board, to stay the effect of a decision or order of a state or regional water board, to additionally allow the State Water Board to stay an order or decision issued under authority delegated to an officer or employee of the State Water Board, as specified. Authorizes an aggrieved AB 2446 Page 2 party, within 30 days of any order of the State Board issuing or denying a stay, to file with the superior court a petition for writ of mandate. 2)Requires the State Water Board to issue or deny the above-described stay within 90 days, or within 45 days if the request for a stay relates to either of the following: a) A water quality certification issued, as specified, for a discharge for a proposed activity associated with a hydroelectric facility and the proposed activity requires a license issued by the Federal Energy Regulatory Commission. b) A cleanup and abatement order issued under, as specified. 3)Provides that no legal or equitable process shall issue in any proceeding in any court against the State Water Board, a regional board, or any officer of a state or regional board, to review, prevent, or enjoin any adjudicative proceeding under the Porter-Cologne Act. Except for a petition for writ of mandate, as authorized in Water Code Section 13321, no legal or equitable process shall issue in any proceeding in any court against the state board or regional board to review, prevent, or enjoin a decision or order by a state or regional water board before a decision or order has been issued and the procedures for administrative review of that decision or order have been exhausted. 4)Specifies that in any civil action brought pursuant to the Porter-Cologne Act in which a regional water board or the State Water Board seeks an injunction or restraining order, it shall not be necessary to allege or prove that irreparable harm will occur should the temporary restraining order, preliminary injunction, or permanent injunction not be issued. AB 2446 Page 3 5)Provides that for any order or decision of the State Water Board under the Safe Water Drinking Act, if no aggrieved party petitions for a writ of mandate within the 30-day period authorized by the Act, the decision or order of the State Water Board is not subject to review by any court. Specifies that in every case that comes before the court under this provision, the court shall exercise its independent judgment on the evidence. The Senate amendments clarify the time frame within which the state board must issue or deny a requested stay. EXISTING LAW: 1)Provides, under the Porter-Cologne Water Quality Control Act, that within 30 days of any action or failure to act by a regional water board, an aggrieved person may petition the State Water Board to review that action or failure to act. Authorizes the State Water Board, in the case of such review and upon notice and hearing, if hearing is requested, to stay in whole or in part the effect of the decision and order of a regional board of the State Water Board. 2)Authorizes an aggrieved party, not later than 30 days from service of a copy of a decision or order issued by the State Water Board, to file in superior court a petition for a writ of mandate for review of the decision or order. Specifies that an aggrieved party must file a petition for reconsideration with the State Water Board to exhaust that party's administrative remedies only if the initial decision or order is issued under authority delegated to an officer or employee of the State Water Board and the State Water Board by regulation has authorized a petition for reconsideration. Specifies that the party aggrieved by the decision of the State Water Board may obtain a review of the decision or order of a regional water board by filing in superior court a petition for writ of mandate not later than 30 days from the AB 2446 Page 4 date on which the State Water Board denies review. 3)Provides that if no aggrieved party petitions for a writ of mandate within the time provided by 2) above, a decision or order of the state board shall not be subject to review by any court. 4)Provides that every civil action brought under the provisions of the Porter-Cologne Water Quality Control Act at the request of the regional board or the state board shall be brought by the Attorney General in the name of the people of the state of California and any of those actions relating to the same discharge may be joined or consolidated. 5)Provides that in any civil action brought under the provisions of the Porter-Cologne Water Quality Control Act, for an injunction or temporary restraining order, it shall not be necessary to allege or prove that irreparable harm will occur if the injunction or restraining order is issued. 6)Requires the State Water Board to administer provisions in the Health and Safety Code that regulate drinking water. Authorizes a deputy director to issue orders directing corrective actions if the conditions of any permit, regulation, or standard is violated. Authorizes a party aggrieved by any order, within 30 day after service of a copy of the order, to file in superior court a petition for a writ of mandate to review the order. Specifies, however, that failure to file an action shall not preclude a party from challenging the reasonableness or validity of a decision or order in any judicial proceeding brought to enforce the decision or order. 7)Provides that in any action challenging an order or decision, the evidence before the court shall consist of all relevant evidence that, in the judgment of the court, should be considered to effectuate and implement the provisions of the AB 2446 Page 5 Safe Drinking Water Act. In every case, the court shall exercise its independent judgment on the evidence. FISCAL EFFECT: According to the Senate Appropriations Committee, pursuant to Senate Rule 28.8, negligible state costs. COMMENTS: Under the Porter-Cologne Water Quality Control Act, the State Water Board has ultimate authority to regulate water quality in the state. Porter-Cologne also established nine regional water boards to oversee water quality on a day-to-day and regional basis. Among the key tools available to the state and regional water boards are the power to issue or deny water discharge permits, issue clean-up and cease and desist orders to polluters, and issue stays against harmful conduct and discharges while a matter is pending before the board. This bill deals primarily with the ability of persons subject to such orders to challenge those orders. Existing law sets out prescribed procedures and timelines that the state and regional water boards must conform to, including noticing hearings, making decisions, and issuing orders designed to protect water quality. Existing law also sets forth procedures and timelines that persons aggrieved by an order or decision must conform to when challenging those orders and decisions. According to the State Water Board, the sponsor of this bill, one of the more vexing problems water boards sometimes face is the efforts of dischargers and polluters to delay board proceedings, both state and regional, and to seek injunctions and court orders overturning or staying a board order even before the administrative process runs its course. That is, under existing law, a state or regional water board has the authority to issue or deny waste discharge permits and to take actions against those who violate the conditions of the permit or other laws or regulations. For example, if a regional water board issues an order to halt a permittee from discharging waste, the person aggrieved - the person subject to the order - may file a petition with the State Water Board for "reconsideration" of a board's decision. Only after the administrative process is complete, would the aggrieved party be AB 2446 Page 6 permitted to seek a court order. However, the sponsor, the State Water Board, contends that some dischargers have exploited "ambiguities" in existing law to seek injunctions that delay board proceedings or seek judicial review to overturn a board decision. This bill would clarify what is seemingly implied in existing law, and is generally true of most administrative actions: a party who is unhappy with a board decision must wait for the board to actually take action before attempting to challenge the board's decision by recourse to any available administrative proceeding, such as a petition for review, reconsideration, a hearing, and other administrative adjudication that is necessary before going to the courts for relief. The bill would specify that in every case that comes before the court under this provision, the court shall exercise its independent judgment on the evidence presented to it, but eliminates an existing requirement that the court consider all relevant evidence that, in the court's judgment, should be considered. Finally, to address a concern raised by some water agencies about the possible consequences of delay in responding to a request for a stay, the bill was recently amended to require the State Water Board to respond to a request for a stay within 90 days, or within 45 days if the stay relates to a hydroelectric facility requiring a license by the Federal Energy Regulatory Commission. Analysis Prepared by: Thomas Clark / JUD. / (916) 319-2334 FN: 0003827 AB 2446 Page 7