Bill Text: CA AB914 | 2009-2010 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Mandatory minimum civil penalties: publicly owned

Spectrum: Partisan Bill (Republican 2-0)

Status: (Vetoed) 2010-01-14 - Consideration of Governor's veto stricken from file. [AB914 Detail]

Download: California-2009-AB914-Amended.html

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BILL NUMBER: AB 914	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  APRIL 23, 2009

INTRODUCED BY   Assembly Member Logue
    (   Principal coauthor:   Assembly Member
  Gilmore   ) 

                        FEBRUARY 26, 2009

   An act to amend Section 13385 of the Water Code, relating to water
quality.



	LEGISLATIVE COUNSEL'S DIGEST


   AB 914, as amended, Logue. Mandatory minimum civil penalties:
publicly owned treatment works.   facilities.

   (1) Under existing law, the State Water Resources Control Board
and the California regional water quality control boards prescribe
waste discharge requirements in accordance with the federal Clean
Water Act and the Porter-Cologne Water Quality Control Act (state
act). The state act, with certain exceptions, imposes a mandatory
minimum penalty of $3,000 for each serious waste discharge violation,
as defined, or for certain other described violations if those
violations occur 4 or more times in any period of 6 consecutive
months, as prescribed. The state act authorizes the state board or a
regional board to elect to require a publicly owned treatment works
(POTWS) serving a small community  , as defined  , in lieu
of assessing the mandatory minimum penalty against that POTWS, to
spend an equivalent amount towards the completion of a compliance
project proposed by that POTWS if certain requirements are met.
   This bill would authorize the state board or a regional board to
 assess a penalty against a POTWS serving a small community
that is less than the mandatory minimum penalty if the amount of the
penalty reflects a consideration of the size of the community being
served by the POTWS, the affordability of the penalty, and the impact
of the water quality violation.   elect to require a
publicly owned facility serving a small community, in lieu of
assessing the mandatory minimum penalty against that facility, to
spend an equivalent amount towards the completion of a compliance pro
  ject proposed by that facility if certain requirements
are met. The bill would define a "publicly owned facility serving a
small community" to mean a public   entity, including a
POTWS, or a public drinking water system whether privately or
publicly owned, serving a population of 20,000 persons or fewer or a
rural county, with a financial hardship, as specified. 
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 13385 of the Water Code is amended to read:
   13385.  (a) Any person who violates any of the following shall be
liable civilly in accordance with this section:
   (1) Section 13375 or 13376.
   (2) Any waste discharge requirements or dredged or fill material
permit issued pursuant to this chapter or any water quality
certification issued pursuant to Section 13160.
   (3) Any requirements established pursuant to Section 13383.
   (4) Any order or prohibition issued pursuant to Section 13243 or
Article 1 (commencing with Section 13300) of Chapter 5, if the
activity subject to the order or prohibition is subject to regulation
under this chapter.
   (5) Any requirements of Section 301, 302, 306, 307, 308, 318, 401,
or 405 of the Clean Water Act, as amended.
   (6) Any requirement imposed in a pretreatment program approved
pursuant to waste discharge requirements issued under Section 13377
or approved pursuant to a permit issued by the administrator.
   (b) (1) Civil liability may be imposed by the superior court in an
amount not to exceed the sum of both of the following:
   (A) Twenty-five thousand dollars ($25,000) for each day in which
the violation occurs.
   (B) Where there is a discharge, any portion of which is not
susceptible to cleanup or is not cleaned up, and the volume
discharged but not cleaned up exceeds 1,000 gallons, an additional
liability not to exceed twenty-five dollars ($25) multiplied by the
number of gallons by which the volume discharged but not cleaned up
exceeds 1,000 gallons.
   (2) The Attorney General, upon request of a regional board or the
state board, shall petition the superior court to impose the
liability.
   (c) Civil liability may be imposed administratively by the state
board or a regional board pursuant to Article 2.5 (commencing with
Section 13323) of Chapter 5 in an amount not to exceed the sum of
both of the following:
   (1) Ten thousand dollars ($10,000) for each day in which the
violation occurs.
   (2) Where there is a discharge, any portion of which is not
susceptible to cleanup or is not cleaned up, and the volume
discharged but not cleaned up exceeds 1,000 gallons, an additional
liability not to exceed ten dollars ($10) multiplied by the number of
gallons by which the volume discharged but not cleaned up exceeds
1,000 gallons.
   (d) For purposes of subdivisions (b) and (c), "discharge" includes
any discharge to navigable waters of the United States, any
introduction of pollutants into a publicly owned treatment works, or
any use or disposal of sewage sludge.
   (e) In determining the amount of any liability imposed under this
section, the regional board, the state board, or the superior court,
as the case may be, shall take into account the nature,
circumstances, extent, and gravity of the violation or violations,
whether the discharge is susceptible to cleanup or abatement, the
degree of toxicity of the discharge, and, with respect to the
violator, the ability to pay, the effect on its ability to continue
its business, any voluntary cleanup efforts undertaken, any prior
history of violations, the degree of culpability, economic benefit or
savings, if any, resulting from the violation, and other matters
that justice may require. At a minimum, liability shall be assessed
at a level that recovers the economic benefits, if any, derived from
the acts that constitute the violation.
   (f) (1) Except as provided in paragraph (2), for the purposes of
this section, a single operational upset that leads to simultaneous
violations of more than one pollutant parameter shall be treated as a
single violation.
   (2) (A) For the purposes of subdivisions (h) and (i), a single
operational upset in a wastewater treatment unit that treats
wastewater using a biological treatment process shall be treated as a
single violation, even if the operational upset results in
violations of more than one effluent limitation and the violations
continue for a period of more than one day, if all of the following
apply:
   (i) The discharger demonstrates all of the following:
   (I) The upset was not caused by wastewater treatment operator
error and was not due to discharger negligence.
   (II) But for the operational upset of the biological treatment
process, the violations would not have occurred nor would they have
continued for more than one day.
   (III) The discharger carried out all reasonable and immediately
feasible actions to reduce noncompliance with the applicable effluent
limitations.
   (ii) The discharger is implementing an approved pretreatment
program, if so required by federal or state law.
   (B) Subparagraph (A) only applies to violations that occur during
a period for which the regional board has determined that violations
are unavoidable, but in no case may that period exceed 30 days.
   (g) Remedies under this section are in addition to, and do not
supersede or limit, any other remedies, civil or criminal, except
that no liability shall be recoverable under Section 13261, 13265,
13268, or 13350 for violations for which liability is recovered under
this section.
   (h) (1) Notwithstanding any other provision of this division, and
except as provided in subdivisions (j), (k), and (), a mandatory
minimum penalty of three thousand dollars ($3,000) shall be assessed
for each serious violation.
   (2) For the purposes of this section, a "serious violation" means
any waste discharge that violates the effluent limitations contained
in the applicable waste discharge requirements for a Group II
pollutant, as specified in Appendix A to Section 123.45 of Title 40
of the Code of Federal Regulations, by 20 percent or more or for a
Group I pollutant, as specified in Appendix A to Section 123.45 of
Title 40 of the Code of Federal Regulations, by 40 percent or more.
   (i) (1) Notwithstanding any other provision of this division, and
except as provided in subdivisions (j), (k), and (), a mandatory
minimum penalty of three thousand dollars ($3,000) shall be assessed
for each violation whenever the person does any of the following four
or more times in any period of six consecutive months, except that
the requirement to assess the mandatory minimum penalty shall not be
applicable to the first three violations:
   (A) Violates a waste discharge requirement effluent limitation.
   (B) Fails to file a report pursuant to Section 13260.
   (C) Files an incomplete report pursuant to Section 13260.
   (D) Violates a toxicity effluent limitation contained in the
applicable waste discharge requirements where the waste discharge
requirements do not contain pollutant-specific effluent limitations
for toxic pollutants.
   (2) For the purposes of this section, a "period of six consecutive
months" means the period commencing on the date that one of the
violations described in this subdivision occurs and ending 180 days
after that date.
   (j) Subdivisions (h) and (i) do not apply to any of the following:

   (1) A violation caused by one or any combination of the following:

   (A) An act of war.
   (B) An unanticipated, grave natural disaster or other natural
phenomenon of an exceptional, inevitable, and irresistible character,
the effects of which could not have been prevented or avoided by the
exercise of due care or foresight.
   (C) An intentional act of a third party, the effects of which
could not have been prevented or avoided by the exercise of due care
or foresight.
   (D) (i) The operation of a new or reconstructed wastewater
treatment unit during a defined period of adjusting or testing, not
to exceed 90 days for a wastewater treatment unit that relies on a
biological treatment process and not to exceed 30 days for any other
wastewater treatment unit, if all of the following requirements are
met:
   (I) The discharger has submitted to the regional board, at least
30 days in advance of the operation, an operations plan that
describes the actions the discharger will take during the period of
adjusting and testing, including steps to prevent violations and
identifies the shortest reasonable time required for the period of
adjusting and testing, not to exceed 90 days for a wastewater
treatment unit that relies on a biological treatment process and not
to exceed 30 days for any other wastewater treatment unit.
   (II) The regional board has not objected in writing to the
operations plan.
   (III) The discharger demonstrates that the violations resulted
from the operation of the new or reconstructed wastewater treatment
unit and that the violations could not have reasonably been avoided.
   (IV) The discharger demonstrates compliance with the operations
plan.
   (V) In the case of a reconstructed wastewater treatment unit, the
unit relies on a biological treatment process that is required to be
out of operation for at least 14 days in order to perform the
reconstruction, or the unit is required to be out of operation for at
least 14 days and, at the time of the reconstruction, the cost of
reconstructing the unit exceeds 50 percent of the cost of replacing
the wastewater treatment unit.
   (ii) For the purposes of this section, "wastewater treatment unit"
means a component of a wastewater treatment plant that performs a
designated treatment function.
   (2) (A) Except as provided in subparagraph (B), a violation of an
effluent limitation where the waste discharge is in compliance with
either a cease and desist order issued pursuant to Section 13301 or a
time schedule order issued pursuant to Section 13300, if all of the
following requirements are met:
   (i) The cease and desist order or time schedule order is issued
after January 1, 1995, but not later than July 1, 2000, specifies the
actions that the discharger is required to take in order to correct
the violations that would otherwise be subject to subdivisions (h)
and (i), and the date by which compliance is required to be achieved
and, if the final date by which compliance is required to be achieved
is later than one year from the effective date of the cease and
desist order or time schedule order, specifies the interim
requirements by which progress towards compliance will be measured
and the date by which the discharger will be in compliance with each
interim requirement.
   (ii) The discharger has prepared and is implementing in a timely
and proper manner, or is required by the regional board to prepare
and implement, a pollution prevention plan that meets the
requirements of Section 13263.3.
   (iii) The discharger demonstrates that it has carried out all
reasonable and immediately feasible actions to reduce noncompliance
with the waste discharge requirements applicable to the waste
discharge and the executive officer of the regional board concurs
with the demonstration.
   (B) Subdivisions (h) and (i) shall become applicable to a waste
discharge on the date the waste discharge requirements applicable to
the waste discharge are revised and reissued pursuant to Section
13380, unless the regional board does all of the following on or
before that date:
   (i) Modifies the requirements of the cease and desist order or
time schedule order as may be necessary to make it fully consistent
with the reissued waste discharge requirements.
   (ii) Establishes in the modified cease and desist order or time
schedule order a date by which full compliance with the reissued
waste discharge requirements shall be achieved. For the purposes of
this subdivision, the regional board may not establish this date
later than five years from the date the waste discharge requirements
were required to be reviewed pursuant to Section 13380. If the
reissued waste discharge requirements do not add new effluent
limitations or do not include effluent limitations that are more
stringent than those in the original waste discharge requirements,
the date shall be the same as the final date for compliance in the
original cease and desist order or time schedule order or five years
from the date that the waste discharge requirements were required to
be reviewed pursuant to Section 13380, whichever is earlier.
   (iii) Determines that the pollution prevention plan required by
clause (ii) of subparagraph (A) is in compliance with the
requirements of Section 13263.3 and that the discharger is
implementing the pollution prevention plan in a timely and proper
manner.
   (3) A violation of an effluent limitation where the waste
discharge is in compliance with either a cease and desist order
issued pursuant to Section 13301 or a time schedule order issued
pursuant to Section 13300 or 13308, if all of the following
requirements are met:
   (A) The cease and desist order or time schedule order is issued on
or after July 1, 2000, and specifies the actions that the discharger
is required to take in order to correct the violations that would
otherwise be subject to subdivisions (h) and (i).
   (B) The regional board finds that, for one of the following
reasons, the discharger is not able to consistently comply with one
or more of the effluent limitations established in the waste
discharge requirements applicable to the waste discharge:
   (i) The effluent limitation is a new, more stringent, or modified
regulatory requirement that has become applicable to the waste
discharge after the effective date of the waste discharge
requirements and after July 1, 2000, new or modified control measures
are necessary in order to comply with the effluent limitation, and
the new or modified control measures cannot be designed, installed,
and put into operation within 30 calendar days.
   (ii) New methods for detecting or measuring a pollutant in the
waste discharge demonstrate that new or modified control measures are
necessary in order to comply with the effluent limitation and the
new or modified control measures cannot be designed, installed, and
put into operation within 30 calendar days.
   (iii) Unanticipated changes in the quality of the municipal or
industrial water supply available to the discharger are the cause of
unavoidable changes in the composition of the waste discharge, the
changes in the composition of the waste discharge are the cause of
the inability to comply with the effluent limitation, no alternative
water supply is reasonably available to the discharger, and new or
modified measures to control the composition of the waste discharge
cannot be designed, installed, and put into operation within 30
calendar days.
   (iv) The discharger is a publicly owned treatment works located in
Orange County that is unable to meet effluent limitations for
biological oxygen demand, suspended solids, or both, because the
publicly owned treatment works meets all of the following criteria:
   (I) Was previously operating under modified secondary treatment
requirements pursuant to Section 301(h) of the Clean Water Act (33
U.S.C. Sec. 1311(h)).
   (II) Did vote on July 17, 2002, not to apply for a renewal of the
modified secondary treatment requirements.
   (III) Is in the process of upgrading its treatment facilities to
meet the secondary treatment standards required by Section 301(b)(1)
(B) of the Clean Water Act (33 U.S.C. Sec. 1311(b)(1)(B)).
   (C) The regional board establishes a time schedule for bringing
the waste discharge into compliance with the effluent limitation that
is as short as possible, taking into account the technological,
operational, and economic factors that affect the design,
development, and implementation of the control measures that are
necessary to comply with the effluent limitation. For the purposes of
this subdivision, the time schedule may not exceed five years in
length, except that the time schedule may not exceed 10 years in
length for the upgrade described in subclause (III) of clause (iv) of
subparagraph (B). If the time schedule exceeds one year from the
effective date of the order, the schedule shall include interim
requirements and the dates for their achievement. The interim
requirements shall include both of the following:
   (i) Effluent limitations for the pollutant or pollutants of
concern.
   (ii) Actions and milestones leading to compliance with the
effluent limitation.
   (D) The discharger has prepared and is implementing in a timely
and proper manner, or is required by the regional board to prepare
and implement, a pollution prevention plan pursuant to Section
13263.3.
   (k) (1) In lieu of assessing all or a portion of the mandatory
minimum penalties pursuant to subdivisions (h) and (i) against a
publicly owned  treatment works   facility 
serving a small community, the state board or the regional board may
elect to require the publicly owned  treatment works
  facility  to spend an equivalent amount towards
the completion of a compliance project proposed by the publicly owned
 treatment works   facility , if the state
board or the regional board finds all of the following:
   (A) The compliance project is designed to correct the violations
within five years.
   (B) The compliance project is in accordance with the enforcement
policy of the state board, excluding any provision in the policy that
is inconsistent with this section.
   (C) The publicly owned  treatment works  
facility  has prepared a financing plan to complete the
compliance project. 
   (2) Notwithstanding subdivision (h) or (i), the state board or a
regional board may assess a penalty that is less than the mandatory
minimum penalty set forth in those subdivisions against a publicly
owned treatment works serving a small community, if the amount of the
penalty reflects a consideration of the size of the community being
served by the publicly owned treatment works, the affordability of
the penalty, and the impact of the water quality violation. 

   (3) 
    (2)  For the purposes of this subdivision, "a publicly
owned  treatment works   facility  serving
a small community" means a  publicly owned treatment works
serving a population of 10,000 persons or   public
entity, including a publicly owned treatment works, or a public
drinking water system whether   privately or publicly owned,
serving a population of 20,000 persons or  fewer or a rural
county, with a financial hardship as determined by the state board
after considering such factors as median income of the residents,
rate of unemployment, or low population density in the service area
of the publicly owned  treatment works  
facility  .
   (l) (1) In lieu of assessing penalties pursuant to subdivision (h)
or (i), the state board or the regional board, with the concurrence
of the discharger, may direct a portion of the penalty amount to be
expended on a supplemental environmental project in accordance with
the enforcement policy of the state board. If the penalty amount
exceeds fifteen thousand dollars ($15,000), the portion of the
penalty amount that may be directed to be expended on a supplemental
environmental project may not exceed fifteen thousand dollars
($15,000) plus 50 percent of the penalty amount that exceeds fifteen
thousand dollars ($15,000).
   (2) For the purposes of this section, a "supplemental
environmental project" means an environmentally beneficial project
that a person agrees to undertake, with the approval of the regional
board, that would not be undertaken in the absence of an enforcement
action under this section.
   (3) This subdivision applies to the imposition of penalties
pursuant to subdivision (h) or (i) on or after January 1, 2003,
without regard to the date on which the violation occurs.
   (m) The Attorney General, upon request of a regional board or the
state board, shall petition the appropriate court to collect any
liability or penalty imposed pursuant to this section. Any person who
fails to pay on a timely basis any liability or penalty imposed
under this section shall be required to pay, in addition to that
liability or penalty, interest, attorney's fees, costs for collection
proceedings, and a quarterly nonpayment penalty for each quarter
during which the failure to pay persists. The nonpayment penalty
shall be in an amount equal to 20 percent of the aggregate amount of
the person's penalty and nonpayment penalties that are unpaid as of
the beginning of the quarter.
   (n) (1) Subject to paragraph (2), funds collected pursuant to this
section shall be deposited in the State Water Pollution Cleanup and
Abatement Account.
   (2) (A) Notwithstanding any other provision of law, moneys
collected for a violation of a water quality certification in
accordance with paragraph (2) of subdivision (a) or for a violation
of Section 401 of the Clean Water Act (33 U.S.C. Sec. 1341) in
accordance with paragraph (5) of subdivision (a) shall be deposited
in the Waste Discharge Permit Fund and separately accounted for in
that fund.
   (B) The funds described in subparagraph (A) shall be expended by
the state board, upon appropriation by the Legislature, to assist
regional boards, and other public agencies with authority to clean up
waste or abate the effects of the waste, in cleaning up or abating
the effects of the waste on waters of the state or for the purposes
authorized in Section 13443.
   (o) The state board shall continuously report and update
information on its Internet Web site, but at a minimum, annually on
or before January 1, regarding its enforcement activities. The
information shall include all of the following:
   (1) A compilation of the number of violations of waste discharge
requirements in the previous calendar year, including stormwater
enforcement violations.
   (2) A record of the formal and informal compliance and enforcement
actions taken for each violation, including stormwater enforcement
actions.
   (3) An analysis of the effectiveness of current enforcement
policies, including mandatory minimum penalties.
   (p) The amendments made to subdivisions (f), (h), (i) and (j)
during the second year of the 2001-02 Regular Session apply only to
violations that occur on or after January 1, 2003.