BILL ANALYSIS
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UNFINISHED BUSINESS
Bill No: SB 1284
Author: Ducheny (D)
Amended: 8/20/10
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
SENATE FLOOR : 31-0, 06/03/10
AYES: Alquist, Ashburn, Calderon, Cedillo, Corbett, Correa,
Denham, Ducheny, Dutton, Florez, Hancock, Huff, Kehoe,
Leno, Liu, Lowenthal, Negrete McLeod, Oropeza, Padilla,
Pavley, Price, Romero, Runner, Simitian, Steinberg,
Strickland, Walters, Wolk, Wright, Wyland, Yee
NO VOTE RECORDED: Aanestad, Cogdill, Cox, DeSaulnier,
Harman, Hollingsworth, Wiggins, Vacancy, Vacancy
ASSEMBLY FLOOR : Not available
SUBJECT : Water quality: mandatory minimum civil
penalties
SOURCE : Association of California Water Agencies
Regional Council for Rural Counties
CONTINUED
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DIGEST : This bill exempts certain Water Code violations
of waste discharge reporting requirements from existing
mandatory minimum penalties. This bill also extends the
time limit under which dischargers must come into
compliance with a permit requirement from five years to 10
years.
Assembly Amendments change the sunset date from January 1,
2016 to January 2014 and make minor technical changes.
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,
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or low population density.
5. Provides an exception to the imposition of MMPs for a
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
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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
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 fined 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 violations for which an administrative civil
liability complaint or a judicial complaint has not been
filed before July 1, 2010 without regard to the date on
which the violations occurred..
5. Sunsets January 1, 2014.
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 8/25/10)
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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
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.
TSM:do 8/25/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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