BILL ANALYSIS
SB 1284
Page 1
Date of Hearing: June 15, 2010
ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS
Pedro Nava, Chair
SB 1284 (Ducheny) - As Amended: June 2, 2010
SENATE VOTE : 31-0
SUBJECT : Water code permit violations.
SUMMARY : Exempts certain violations of waste discharge
reporting requirements from existing mandatory minimum penalties
(MMPs). Extends the time limit under which dischargers must
come into compliance with a permit requirement from five years
to ten years. Specifically, this bill :
1. Revises current law to allow a Regional Water Quality Control
Board (RWQCB), 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 regional board under penalty of
perjury stating that in fact no discharges occurred and
stating the reasons for the failure to file.
3. Provides that where a discharger has not previously received
notification from the State Water Resources Control Board
(SWRCB) or a RWQCB of an enforcement action imposing MMP 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. Provides that after this one-time fine,
a discharger who subsequently fails to file the same report
will be fined in accordance with the current law. Sunsets
this provision on January 2016.
4. Provides that the limitations on MMPs created by this bill
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would apply to dischargers who currently have outstanding
notices of violation as of the effective date of the act.
EXISTING LAW :
1)Authorizes, under The Porter-Cologne Water Quality Act, SWRCB
and the RWQCBs to set waste discharge requirements.
2)Provides for the imposition of civil penalties, including an
MMP of $3,000 for each serious waste discharge violation. The
penalties may be issued administratively by the SWRCB or the
RWQCB or through the superior court. This may be in addition
to other penalties and fees.
FISCAL EFFECT : According to the Senate Appropriations
Committee analysis, because the bill exempts some violations
from MMPs, the bill is likely to reduce future penalty revenues.
The amount of any potential penalty revenue loss is unknown.
COMMENTS :
1)Need for the bill . 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 SB
1284 would provide that certain violations involving the
failure to file a discharge monitoring report for no
discharges or legal discharges should not be subject to those
MMPs.
2)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.
a) The SWRCB and the RWQCBs are also required by Water Code
section 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
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any period of six consecutive months:
b) Violates effluent limitations;
c) Fails to file a report of waste discharge or file and
incomplete report; or
d) Violates a toxicity effluent limitation where the WDR
does not contain pollutant-specific effluent limitations
for toxic pollutants.
3)MMPs for failure to report . The MMP statute was designed to
address the failure of the SWRCB and the RWQCBs to enforce
reporting requirements waste for discharge permits. In 2003,
the Legislature strengthened the MMP laws by specifically
adding waste discharge reporting failures to the MMP (AB 1541
- Montanez, Chapter 609, Statutes of 2003). The 2003
provisions were added to the stature when it was found that
only 1% of over 4000 reporting violations were subject to the
existing penalties.
4)The Pico Water District case . The proponents of this bill
have cited the penalties assessed against the Pico Water
District for failure to file 16 separate reports from 2005 to
2008 for discharges from wells into the San Gabriel River.
The Pico Water District has asserted that because of changes
in management at the district, as well as changes in their
consulting engineering firm, they were unaware of the need to
submit reports as required by their discharge permits.
The total fine assessed in 2008 by the Los Angeles RWQCB was
$627,000. The fine resulted from the $3,000 fine being
charged for each reporting period that the required reports
were not submitted over the 3 year period. In January of 2009
Pico Water District appealed the fine amount and has requested
that the entire fine be removed. That appeal is current
pending.
5)Related legislation. AB 25 (Gilmore) modifies MMP for small
communities by increasing the size of the size of low income
communities that are allowed to apply MMPs to the cost of
remediation of the causes of water code violations. This
legislation was held in the Senate Environmental Quality
Committee.
6)Double-referral to the Assembly Judiciary Committee . Should
this measure be approved by this Committee, the do pass motion
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must include the action to re-refer the bill to the Assembly
Committee on Judiciary.
REGISTERED SUPPORT / OPPOSITION :
Support
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
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
California Coast Keeper Alliance
Sierra Club
Analysis Prepared by : Bob Fredenburg / E.S. & T.M. / (916)
319-3965