BILL ANALYSIS
AB 914
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator S. Joseph Simitian, Chairman
2009-2010 Regular Session
BILL NO: AB 914
AUTHOR: Logue
AMENDED: April 23, 2009
FISCAL: Yes HEARING DATE: July 6, 2009
URGENCY: No CONSULTANT: Randy Pestor
SUBJECT : MANDATORY MINIMUM PENALTIES
SUMMARY :
Existing law , under the Porter-Cologne Water Quality Control
Act:
1) Provides that any person who violates prescribed provisions
of the Clean Water Act or the Porter-Cologne Water Quality
Control Act is subject to civil liability, and sets
requirements for determining the amount of any liability.
2) Requires a mandatory minimum penalty of $3,000 to be
assessed for each serious violation, under certain
circumstances.
3) Authorizes the State Water Resources Control Board (SWRCB)
or a regional water quality control board (RWQCB), in lieu
of assessing all or a portion of the mandatory minimum
penalties, to require a publicly owned treatment works
(POTW) serving a small community to spend an equivalent
amount towards the completion of a compliance project
proposed by the POTW if the POTW or SWRCB makes certain
findings (e.g., compliance project is designed to correct
the violations within 5 years, compliance project is
consistent with SWRCB enforcement policy, POTW has prepared
a financing plan to complete the compliance project).
4) Provides that for purposes of #3, a "POTW serving a small
community" serves a population of 10,000 or fewer or a
rural county, with a financial hardship as determined by
the SWRCB after considering such factors as median income
of the residents, rate of unemployment, or low population
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density.
This bill expands the compliance project in lieu provisions by
changing POTW to "publicly owned facility," which includes a
POTW, or a publicly-owned or privately-owned water system,
serving a population of 20,000 or fewer persons or a rural
county.
COMMENTS :
1) Purpose of Bill . According to the author, AB 914 adds
facilities eligible "to apply penalties toward completion
of a compliance project when that facility serves a small
community" and "[a]djusts the definition of small community
from 10,000 to 20,000 persons."
The author also notes that "small rural community waste water
treatment sanitation districts like Cascade Shores, Lake
Wildwood and Lake of the Pines are significantly impaired
in their ability to fund rehabilitation to achieve
compliance when confronted by escalation of fines and
penalties that result from many years expiring between
recorded violations and enforcement action."
2) Sponsor's communities fall within current definition . The
communities cited by the author have populations less than
10,000 persons. Moreover, the RWQCB, Central Valley
Region, recently allowed $450,000 in mandatory minimum
penalties for violations that occurred at the Cascade
Shores plant from January 1, 2000, through April 30, 2008,
to be applied towards its compliance project. The RWQCB
determined that Cascade Shores met the definition in
current law and at that time was constructing a new $4
million wastewater treatment plant to correct the
violations.
3) Expansion of population cap inconsistent with other Water
Code "small community" definitions . The Water Code
contains 5 definitions for "small community" with
population caps for certain programs. None of these
references exceed 10,000 persons.
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Water Code Population Cap
13999.2(j) Clean Water Bond Law of 1984 5,000 or less
14052(k) Clean Water/Reclamatin Bond Law of 1988
3,500 or less
78610(d) Clean Water/Water Recyling Program 5,000
or less
79084(b) Costa-Machado Water Act of 200010,000 or
less
79120(d) Costa-Machado Water Act of 200010,000 or
less
Because other Water Code "small community" definitions do not
contain a population cap exceeding 10,000 persons,
expanding the population cap for the in lieu compliance
project process is inappropriate and should be stricken.
4) Intent of current law to address POTWs - not private and
public water systems . When mandatory minimum penalties
were added in 1999, the SWRCB, RWQCBs, and POTWs were
authorized to require a discharger to complete and
implement pollution prevention, comply with that plan, and
make the plans available for public review. The SWRCB,
RWQCBs, and POTWs were authorized to assess civil liability
and penalties, and to include a pollution prevention plan
in any waste discharge requirements or other permit issued
by the entity.
Because discharges are introduced into POTWs for treatment,
and POTWs undertake the compliance project for treatment
purposes (as well as have the responsibilities described
above), the compliance project in lieu of penalties is
limited to POTWs - not other types of dischargers.
Moreover, the mandatory minimum penalty provisions, as well
as related provisions enacted in the mandatory minimum
penalty measures, do not contain references to drinking
water systems
5) Expansion of in lieu compliance projects affects penalty
deterrent . In policy deliberations before the Senate
Environmental Quality Committee, the general direction of
the Committee has been to ensure that at a minimum, the
economic benefit of a violation of law should be recovered.
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This perspective is supported, in part, by various reports
documenting the lack of deterrence against violations of
environmental law due to insufficient sanctions. The in
lieu compliance project alternative is intended to apply to
a specific circumstance - POTWs serving a small community
meeting certain conditions. Expanding that provision by
increasing the population cap and enabling other
dischargers to participate largely defeats the original
purpose for establishing mandatory minimum penalties.
If there are concerns about compliance programs, the author
may wish to consider other alternatives, such as extending
payments and alternative sources to finance improvements.
6) Time for committee review of in lieu compliance project
process ? Since there are cases where serious violations
occur over several years, it may be appropriate for the
committee to review the in lieu compliance project process
while also considering whether that process weakens the
effect of mandatory minimum penalties while encouraging
ongoing violations. Also, such a review should occur
before the committee considers expanding the program, as
provided under this bill.
SOURCE : Nevada County
SUPPORT : None on file
OPPOSITION : None on file