BILL NUMBER: SB 390 CHAPTERED
BILL TEXT
CHAPTER 686
FILED WITH SECRETARY OF STATE OCTOBER 10, 1999
APPROVED BY GOVERNOR OCTOBER 6, 1999
PASSED THE SENATE SEPTEMBER 10, 1999
PASSED THE ASSEMBLY SEPTEMBER 8, 1999
AMENDED IN ASSEMBLY SEPTEMBER 3, 1999
AMENDED IN ASSEMBLY AUGUST 26, 1999
AMENDED IN ASSEMBLY AUGUST 16, 1999
AMENDED IN SENATE MAY 28, 1999
AMENDED IN SENATE MAY 13, 1999
AMENDED IN SENATE APRIL 13, 1999
INTRODUCED BY Senator Alpert
(Coauthors: Senators Bowen and Solis)
(Coauthors: Assembly Members Honda, Knox, Kuehl, Lempert,
Machado, Romero, Shelley, and Strom-Martin)
FEBRUARY 12, 1999
An act to amend Sections 13269 and 13350 of the Water Code,
relating to water.
LEGISLATIVE COUNSEL'S DIGEST
SB 390, Alpert. Water quality.
(1) Under the Porter-Cologne Water Quality Control Act, the State
Water Resources Control Board and the California regional water
quality control boards are among the principal agencies with
authority over water quality. Under the act, generally, persons
discharging waste are required to file with the appropriate regional
board a report of the discharge and the discharge is subject to waste
discharge requirements prescribed by that regional board. Under the
act, persons are generally prohibited from initiating a new
discharge of waste, or making any material changes in any discharge
of waste, prior to the filing of the waste discharge report, and
after the filing of that report unless waste discharge requirements
have been prescribed or, under certain circumstances, 120 days have
elapsed since the filing of that report. The act authorizes the
regional boards to waive these requirements as to a specific
discharge or type of discharge.
This bill would authorize the regional boards, on and after
January 1, 2000, to waive these requirements as to a specific
discharge or type of discharge if the waiver is not against the
public interest. The bill would allow waivers to be renewed but
would prohibit the regional boards from issuing waivers for specific
types of discharges that exceed 5 years in duration. The bill would
require the regional boards and the state board to require compliance
with the conditions pursuant to which waivers are granted. The bill
would require the regional boards, prior to renewing any waiver for a
specific type of discharge, to review the terms of the waiver policy
at a public hearing, and to determine at that hearing whether the
discharge for which the waiver policy was established should be
subject to general or individual waste discharge requirements. The
bill would provide that a waiver in effect on January 1, 2000, shall
remain valid until January 1, 2003, unless the regional board
terminates that waiver prior to that date. The bill would authorize
a regional board to renew, in 5-year increments, waivers that were
valid on January 1, 2000, and granted an extension until January 1,
2003, and not otherwise terminated.
(2) The act provides that a person may be liable civilly in
accordance with prescribed provisions if that person intentionally or
negligently violates prescribed orders, or, in violation of
prescribed requirements, intentionally or negligently discharges
waste, or causes waste to be deposited where it is discharged, into
the waters of the state and creates a condition of pollution or
nuisance, or causes or permits any oil or residuary product of
petroleum to be deposited in the waters of the state, except in
accordance with the act.
This bill, in addition, would provide that a person may be liable
civilly in accordance with those prescribed provisions if that
person, in violation of a waiver condition or certification,
intentionally or negligently discharges waste, or causes waste to be
deposited where it is discharged, into the waters of the state and
creates a condition of pollution or nuisance.
The bill would make legislative findings and declarations relating
to the adequacy of fees imposed by the state board.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature hereby finds and declares all of the
following:
(a) The State Water Resources Control Board, as directed in the
Supplemental Report of the 1999 Budget Act, is to provide the
Legislature with reports on a baseline needs analysis for the core
regulatory program of the board.
(b) The board is to take into consideration the overall cost of
the program, the time and effort required to review and approve
individual waste discharge reports, and other factors necessary to
properly determine the adequacy of fees assessed pursuant to Section
13260 of the Water Code.
(c) The board is to provide a preliminary report to the
Legislature by April 1, 2000, and a final report by January 1, 2001.
(d) It is the intent of the Legislature that the final report
includes a review of the fees currently collected and expended under
Section 13260 of the Water Code.
SEC. 2. Section 13269 of the Water Code is amended to read:
13269. (a) On and after January 1, 2000, the provisions of
subdivisions (a) and (b) of Section 13260, subdivision (a) of Section
13263, or subdivision (a) of Section 13264 may be waived by a
regional board as to a specific discharge or a specific type of
discharge if the waiver is not against the public interest. Waivers
for specific types of discharges may not exceed five years in
duration, but may be renewed by a regional board. The waiver shall
be conditional and may be terminated at any time by the board.
(b) A waiver in effect on January 1, 2000, shall remain valid
until January 1, 2003, unless the regional board terminates that
waiver prior to that date. All waivers that were valid on January 1,
2000, and granted an extension until January 1, 2003, and not
otherwise terminated, may be renewed by a regional board in five-year
increments.
(c) Upon notification of the appropriate regional board of the
discharge or proposed discharge, except as provided in subdivision
(d), the provisions of subdivisions (a) and (b) of Section 13260,
subdivision (a) of Section 13263, and subdivision (a) of Section
13264 shall not apply to discharge resulting from any of the
following emergency activities:
(1) Immediate emergency work necessary to protect life or property
or immediate emergency repairs to public service facilities
necessary to maintain service as a result of a disaster in a
disaster-stricken area in which a state of emergency has been
proclaimed by the Governor pursuant to Chapter 7 (commencing with
Section 8550) of Division 1 of Title 2 of the Government Code.
(2) Emergency projects undertaken, carried out, or approved by a
public agency to maintain, repair, or restore an existing highway, as
defined in Section 360 of the Vehicle Code, except for a highway
designated as an official state scenic highway pursuant to Section
262 of the Streets and Highways Code, within the existing
right-of-way of the highway, damaged as a result of fire, flood,
storm, earthquake, land subsidence, gradual earth movement, or
landslide within one year of the damage. This paragraph does not
exempt from this section any project undertaken, carried out, or
approved by a public agency to expand or widen a highway damaged by
fire, flood, storm, earthquake, land subsidence, gradual earth
movement, or landslide.
(d) Subdivision (c) is not a limitation of the authority of a
regional board under subdivision (a) to determine that any provision
of this division shall not be waived or to establish conditions of a
waiver. Subdivision (c) shall not apply to the extent that it is
inconsistent with any waiver or other order or prohibition issued
under this division.
(e) The regional boards and the state board shall require
compliance with the conditions pursuant to which waivers are granted
under this section.
(f) Prior to renewing any waiver for a specific type of discharge
established under this section, the regional boards shall review the
terms of the waiver policy at a public hearing. At the hearing, a
regional board shall determine whether the discharge for which the
waiver policy was established should be subject to general or
individual waste discharge requirements.
SEC. 3. Section 13350 of the Water Code is amended to read:
13350. (a) Any person who (1) intentionally or negligently
violates any cease and desist order or cleanup and abatement order
hereafter issued, reissued, or amended by a regional board or the
state board, or (2) in violation of any waste discharge requirement,
waiver condition, certification, or other order or prohibition
issued, reissued, or amended by a regional board or the state board,
intentionally or negligently discharges waste, or causes or permits
waste to be deposited where it is discharged, into the waters of the
state, and creates a condition of pollution or nuisance, or (3)
causes or permits any oil or any residuary product of petroleum to be
deposited in or on any of the waters of the state, except in
accordance with waste discharge requirements or other provisions of
this division, shall be liable civilly in accordance with
subdivision (d), (e), or (f).
(b) (1) Any person who, without regard to intent or negligence,
causes or permits any hazardous substance to be discharged in or on
any of the waters of the state where it creates a condition of
pollution or nuisance, except in accordance with waste discharge
requirements or other provisions of this division, shall be strictly
liable civilly in accordance with subdivision (d), (e), or (f).
(2) For purposes of this subdivision, the term "discharge"
includes only those discharges for which Section 13260 directs that a
report of waste discharge shall be filed with the regional board.
(3) For purposes of this subdivision, the term "discharge" does
not include any emission excluded from the applicability of Section
311 of the Clean Water Act (33 U.S.C. Sec. 1321) pursuant to
Environmental Protection Agency regulations interpreting Section 311
(a)(2) of the Clean Water Act (33 U.S.C. Sec. 1321(a)(2)).
(c) There shall be no liability under subdivision (b) if the
discharge is caused solely by any one or combination of the
following:
(1) An act of war.
(2) An unanticipated grave natural disaster or other natural
phenomenon of an exceptional, inevitable, and irresistible character,
the effects of which could not have been prevented or avoided by the
exercise of due care or foresight.
(3) Negligence on the part of the state, the United States, or any
department or agency thereof; provided, that this paragraph shall
not be interpreted to provide the state, the United States, or any
department or agency thereof a defense to liability for any discharge
caused by its own negligence.
(4) An intentional act of a third party, the effects of which
could not have been prevented or avoided by the exercise of due care
or foresight.
(5) Any other circumstance or event which causes the discharge
despite the exercise of every reasonable precaution to prevent or
mitigate the discharge.
(d) When there is a discharge, and a cleanup and abatement order
is issued pursuant to Section 13304, liability shall be imposed as
follows:
(1) Civil liability may be administratively imposed by a regional
board pursuant to Article 2.5 (commencing with Section 13323) for a
violation of this section in an amount which shall not exceed five
thousand dollars ($5,000), but shall not be less than five hundred
dollars ($500), for each day in which the discharge occurs and for
each day the cleanup and abatement order is violated.
(2) Civil liability may be imposed by the superior court in
accordance with this article and Article 6 (commencing with Section
13360) for a violation of this section in an amount which shall not
exceed fifteen thousand dollars ($15,000) for each day in which the
discharge occurs and for each day the cleanup and abatement order is
violated.
(e) When there is a discharge, and a cleanup and abatement order
is not issued pursuant to Section 13304, liability shall be imposed
as follows:
(1) Civil liability may be administratively imposed by a regional
board in accordance with Article 2.5 (commencing with Section 13323)
for a violation of this section in an amount which shall not exceed
ten dollars ($10) for each gallon of waste discharged.
(2) Civil liability may be imposed by the superior court in
accordance with this article and Article 6 (commencing with Section
13360) for a violation of this section in an amount which shall not
exceed twenty dollars ($20) for each gallon of waste discharged.
(f) When there is no discharge, but an order issued by the
regional board is violated, liability shall be imposed as follows:
(1) Civil liability may be administratively imposed by a regional
board in accordance with Article 2.5 (commencing with Section 13323)
for a violation of this section in an amount which shall not exceed
one thousand dollars ($1,000), but shall not be less than one hundred
dollars ($100), for each day in which the violation occurs.
(2) Civil liability may be imposed by the superior court in
accordance with this article and Article 6 (commencing with Section
13360) for a violation of this section in an amount which shall not
exceed ten thousand dollars ($10,000) for each day in which the
violation occurs.
(g) A regional board shall not administratively impose civil
liability in accordance with subdivision (d), (e), or (f) in an
amount less than the minimum amount specified, unless the regional
board makes express findings setting forth the reasons for its action
based on the specific factors required to be considered pursuant to
Section 13327.
(h) The Attorney General, upon request of a regional board or the
state board, shall petition the superior court to impose, assess, and
recover such sums. Except in the case of a violation of a cease and
desist order, a regional board or the state board shall make such
request only after a hearing, with due notice of the hearing given to
all affected persons. In determining such amount, the court shall
take into consideration all relevant circumstances, including, but
not limited to, the extent of harm caused by the violation, the
nature and persistence of the violation, the length of time over
which the violation occurs, and corrective action, if any, taken by
the discharger.
(i) The provisions of Article 3 (commencing with Section 13330)
and Article 6 (commencing with Section 13360) of this chapter shall
apply to proceedings to impose, assess, and recover an amount
pursuant to this article.
(j) Any person who incurs any liability established under this
section shall be entitled to contribution for such liability from any
third party, in an action in the superior court and upon proof that
the discharge was caused in whole or in part by an act or omission of
the third party, to the extent that the discharge is caused by the
act or omission of the third party, in accordance with the principles
of comparative fault.
(k) Remedies under this section are in addition to, and do not
supersede or limit, any and all other remedies, civil or criminal;
provided that no liability shall be recoverable under subdivision (b)
for any discharge for which liability is recovered under Section
13385.
(l) The state board shall submit an annual report to the
Legislature which shall be available to the public, list all
instances in which civil liability has been administratively imposed
by a regional board in accordance with subdivision (d), (e), or (f)
during the preceding year, and set forth the express findings made by
the regional board pursuant to subdivision (g), and indicate the
maximum amount of liability which could have been imposed and the
amount actually imposed in each instance.