BILL ANALYSIS
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THIRD READING
Bill No: SB 1284
Author: Ducheny (D)
Amended: 6/2/10
Vote: 21
SENATE ENV. QUALITY COMMITTEE : 7-0, 4/19/10
AYES: Simitian, Runner, Corbett, Hancock, Lowenthal,
Pavley, Strickland
SENATE APPROPRIATIONS COMMITTEE : 10-0, 5/27/10
AYES: Kehoe, Alquist, Corbett, Denham, Leno, Price,
Walters, Wolk, Wyland, Yee
NO VOTE RECORDED: Cox
SUBJECT : Water quality: mandatory minimum civil
penalties
SOURCE : Association of California Water Agencies
Regional Council for Rural Counties
DIGEST : This bill provides that certain violations
involving the failure to file a discharge monitoring report
with the State Water Resources Control Board or a Regional
Water Quality Control Board are not subject to existing
mandatory minimum penalties if certain requirements are
met. This bill provides that a failure to file a discharge
monitoring report is not a serious waste discharge
violation if the discharger submits a specified statement
to the regional board. The bill, until January 1, 2016,
requires, with respect to certain violations involving the
CONTINUED
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failure to file a discharge monitoring report, the
mandatory minimum penalty of $3,000 to be assessed only for
each required report that is not timely filed, and not for
each 30-day period following the deadline for submitting
the report. This bill also extends the time limit under
which dischargers must come into compliance with a permit
requirement from five years to ten years.
ANALYSIS :
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 (MMP) 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
MMP, 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 five 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 density.
5. Provides an exception to the imposition of MMPs for a
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violation of an effluent limitation if the waste
discharge complies with a certain time schedule order
and other requirements are met. For the purposes of the
exception, a time schedule cannot exceed five years,
except under certain conditions.
Mandatory minimum penalties . MMPs were established in 1999
in response to concerns over the SWRCB and RWQCB failing to
take enforcement actions against Water Code violations.
According to the SWRCB, the California Water Code Section
13385(h) requires an MMP of $3,000 for each "serious"
violation.
The Water Boards are also required by California Water Code
13385(i) to assess MMPs of $3,000 for multiple chronic
violations. This penalty applies when the discharger does
any of the following four or more times in any period of
six-consecutive months: (1) Violates effluent limitations,
(2) Fails to file a report of waste discharge or file and
incomplete report, or (3) Violates a toxicity effluent
limitation where the waste discharge requirement does not
contain pollutant-specific effluent limitations for toxic
pollutants.
This bill
1. Revises current law to allow a regional board, after a
public hearing, to extend the time schedule for bringing
a waste discharge into compliance for an additional five
years, to a possible total time schedule of ten years if
the discharger can demonstrate that additional time is
necessary in order to reach compliance with effluent
limitations.
2. Provides that the failure to file a discharge monitoring
report for a reporting period in which no discharges
occur does not constitute a "serious violation" that
gives rise to mandatory minimum penalties if the
discharger submits a written statement to the
appropriate regional board under penalty of perjury
stating that in fact no discharges occurred and stating
the reasons for the failure to file. This bill states
that regardless of whether mandatory minimum penalties
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apply to the failure to file a discharge monitoring
report for a reporting period in which no discharges
occur, the failure to file such a report may be subject
to discretionary penalties.
3. Provides, on a one-time basis only, that where a
discharger has not previously received notification from
the state or regional board of an enforcement action
imposing mandatory minimum penalties and where the
current violation consists of failures to file discharge
monitoring reports for reporting periods where
dischargers did not violate numeric effluent
limitations, that discharger will be subject to a total
fines of $3,000 per required report. After this
one-time fine, a discharger who subsequently fails to
file such a report will be fiend in accordance to
current law. The bill states that regardless of whether
the failure to file such reports is subject to the
one-time relief provided, the failure to file the
required report(s) may be subject to discretionary
penalties.
4. Provides that the amendments made to that section
applies to dischargers who currently have outstanding
notices of violation as of the effective date of the
act.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
According to the Senate Appropriations Committee analysis,
because the bill exempts some violations from mandatory
minimum penalties, the bill is likely to reduce future
penalty revenues. The amount of any potential penalty
revenue loss is unknown.
SUPPORT : (Verified 6/2/10)
Association of California Water Agencies (co-source)
Regional Council of Rural Counties (co-source)
California Association of Sanitation Agencies
California Chamber of Commerce
California Special Districts Association
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California State Association of Counties
California Water Association
City of Camarillo
Crescenta Valley Water District
El Dorado Irrigation District
Inland Empire Utilities Agency
Lake Berryessa Resort Improvement District
League of Cities
Napa Berryessa Resort Improvement District
Napa County
Pico Water District
OPPOSITION : (Verified 6/2/10)
California Coast Keeper Alliance
Sierra Club
ARGUMENTS IN SUPPORT : According to the sponsor, MMPs are
a deterrent and a punishment for willful violators, and
should remain in place for that intended purpose. However,
the sponsors feel that the way the statute is currently
drafted; the definition of a "serious violation" warranting
the imposition of an MMP is far too broad and exposes
public agencies who simply failed to file a report
indicating no discharges to the vast penalties. The
sponsor asserts that this bill provides that certain
violations involving the failure to file a discharge
monitoring report for no discharges or discharges that do
not reach regulated level are not subject to those MMPs.
According to the Association of California Water Agencies
(ACWA), there are several public agency members with
permits requiring reporting which believe that they have
received excessive, disproportionate fines for a simple
failure to file the report. ACWA sites an example of one
small water agency fine that is in excess of $600,000.
ARGUMENTS IN OPPOSITION : Opponents state that exemptions
in this bill from the MMP provisions of the Water Code for
dischargers who fail to file required discharge monitoring
reports send a message to the dischargers that these
reports need not be filed - when in fact it is a condition
of their permits. These permits are critical to tracking
compliance with state and federal water quality laws.
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TSM:do 6/2/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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