BILL ANALYSIS �
AB 640
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Date of Hearing: January 10, 2012
ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS
Bob Wieckowski, Chair
AB 640 (Logue) - As Amended: January 4, 2012
SUBJECT : Water discharges: mandatory minimum civil penalties
(MMPs)
SUMMARY : Increases the size of small community facilities that
are allowed to use MMPs for remediation of water code
violations.
Specifically, this bill expands the definition of small
community publicly owned treatment works (POTWs) that are
allowed to use MMPs for remediation of water code violations by
increasing the allowable population serving the small community
POTW from 10,000 to 20,000 persons.
EXISTING LAW :
1)Authorizes the State Water Resources Control Board (SWRCB) and
the California regional water quality control boards (RWQCBs)
to prescribe waste discharge requirements in accordance with
the federal Clean Water Act. (Water Code section 13385(a).)
2)Imposes a mandatory minimum penalty, with certain exceptions,
of $3,000 for each serious waste discharge violation, as
defined, or for certain other described violations if those
violations occur four or more times in any period of 6
consecutive months. (Water Code section 13385(h).)
3)Authorizes the SWRCB or a RWQCB to choose to require a POTW
serving a small community," in lieu of assessing the MMP
against that POTW, to spend an equivalent amount toward
completion of a compliance project proposed by that POTW if
certain requirements are met. (Water Code section 13385(k).)
4)Defines a "publicly owned treatment works serving a small
community" as a publicly owned treatment works that serves a
population of 10,000 or fewer. (Water Code section 13385(k)
(2).)
FISCAL EFFECT : According to the Assembly Appropriations
committee, when they reviewed prior similar legislation, they
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found that the bill would result in minor, absorbable costs to
SWRCB or the RWQCB.
COMMENTS :
1)Need for the bill . According to the author, "AB 640 would
provide much needed relief to POTWs that serve small
communities that are facing financial difficulty. It
encourages POTWs to work toward compliance as their primary
objective, and makes paying for fines secondary."
2)Mandatory minimum penalties (MMPs) . MMPs were established in
1999 in response to concerns over the SWRCB and RWQCBs 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 SWRCB and the RWQCBs are also required by
Water Code section 13385(i) to assess MMPs of $3,000 for
multiple chronic violations.
The MMP statute was designed to address the failure of the
SWRCB and the RWQCBs enforcement of reporting requirements for
waste 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 statute when it was found that only 1% of over
4,000 reporting violations were subject to the existing
penalties.
3)Current definitions of small communities . The Water Code
contains definitions for "small community" with population
caps for certain programs and the Public Resources Code
provides yet another definition of the small communities
eligible for specialized regulatory considerations.
-----------------------------------------------------------
| Water Code � | Program | Population |
| | | Cap |
|-----------------+--------------------------+--------------|
| | | |
|-----------------+--------------------------+--------------|
| �13999.2(j) |Clean Water Bond Law of | 5,000 |
| |1984 | |
|-----------------+--------------------------+--------------|
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| 14052(k) |Clean Water/Reclamation | 3,500 |
| |Bond Law of 1988 | |
|-----------------+--------------------------+--------------|
| �78610(d) |Clean Water/Water | 5,000 |
| |Recycling Program | |
|-----------------+--------------------------+--------------|
| �79084(b) |Costa-Machado Water Act | 10,000 |
| |of 2000 | |
|-----------------+--------------------------+--------------|
| �79120(d) |Costa-Machado Water Act | 10,000 |
| |of 2000 | |
|-----------------+--------------------------+--------------|
| �13193.9(c) |Waste Water Collection | 20,000 |
| |Treatment Disposal | |
| |Project | |
| | | |
| | | |
|-----------------+--------------------------+--------------|
|Public Resources | | |
| � | | |
|-----------------+--------------------------+--------------|
| �30925(a) |The California Clean |20,000 |
| |Water, Clean Air, Safe | |
| |Neighborhood Parks and | |
| |Coastal Protection Act of | |
| |2002 | |
| | | |
| | | |
| | | |
| | | |
-----------------------------------------------------------
4)SWRCB Water Quality Improvement Initiative: mandatory minimum
penalties for water code violations.
In 2008, the SWRCB adopted the Water Quality Improvement
Initiative which included a series of recommendations to
improve enforcement of water quality laws in California.
Included in this report were the recommendations contained in
AB 640. The SWRCB report recommended the following proposal
to help enhance environmental enforcement:
Modify Mandatory Minimum Penalties (MMPs) for Small
Disadvantaged Communities expanding the number of small
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disadvantaged communities that are eligible to complete a
compliance project instead of paying all or a portion of
the MMP by increasing the population criteria from a
maximum of 10,000 people to a maximum of 20,000 people.
5)Prior Legislation:
AB 24 (Gilmore) of 2009 contained provisions allowing for larger
communities to qualify for the allocation of penalty funds to
making corrective actions at small community POTWs. This bill
was held in the ESTM Committee.
AB 914 (Logue) of 2009, as heard in the ESTM Committee,
contained provisions allowing for larger communities to qualify
for the allocation of penalty funds to making corrective actions
at small community POTWs. This bill was subsequently amended to
require the financing plan proposed by a publicly owned
treatment works to include the completion of a compliance
project within five years. This bill was vetoed by Governor
Schwarzenegger.
SB 1284 (Ducheny) of 2010, exempted certain violations of waste
discharge reporting requirements from existing MMPs. The bill
provided 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. Chapter 645, Statutes of 2010.
AB 408 (Wieckowski) of 2011, omnibus hazardous material
regulatory reform legislation, that when considered by the ESTM
Committee, included provisions allowing for larger communities
to qualify for the allocation of penalty funds to making
corrective actions at small community POTWs. The provision
expanding the definition of small communities was removed from
this bill in the Senate. Chapter 603, Statues of 2011.
REGISTERED SUPPORT / OPPOSITION :
Support
Association of California Water Agencies
Regional Council of Rural Counties
Opposition
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None received.
Analysis Prepared by : Bob Fredenburg / E.S. & T.M. / (916)
319-3965