HomeMy WebLinkAboutCity Council Resolution 02-024RESOLUTION NO. 02-024
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SARATOGA
ENDORSING ASSEMBLY BILL 2351
WHEREAS, the Porter-Cologne Water Quality Control Act mandates the State Water
Resources Control Board or a California Regional Water Quality Control Board to
penalize the discharge of pollutants or other unacceptable violations of waster discharge
permits regardless of circumstance; and
WHEREAS, mandatory penalties have been assessed even when the violations have no
effect on water quality or could not have been prevented with reasonable care; and
WHEREAS, cities and special districts are being fined for these circumstances; and
WHEREAS, the implications of the Act in use appear to be unintended; and
WHEREAS, AB2351 cazefully removes specified violations from the mandatory
requirements without impacting in any way the authority of a regional board to .impose
discretionary penalties for violations of their wastewater plant permit; and
WHEREAS, the City of Saratoga supports the corrective action represented by AB 2351.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Sazatoga
hereby endorses Assembly Bi112351 and urges the legislature of the State of California to
adopt the measure in order to remedy the unintended consequence of assessed penalties
for circumstances beyond a city's control; and
BE IT FURTHER RESOLVED that the City Council hereby directs the City Manager to
cause a copy of this resolution to be provided to Assembly Member Canciamilla and such
other members of the Legislature, as the City Manager deems prudent to promote passage
of the bill.
PASSED AND ADOPTED by the Saratoga City Council, State of California, this 17th
day of Apri12002, by the following vote:
AYES: Councilmembers Stan Bogosian, John Mehaffey, Ann Waltonsmith
Vice Mayor Evan Baker, Mayor Nick Streit
NOES: None
ABSENT: None
ABSTAIN: None
TEST:
en Boyer, i Clerk
Nick Streit, Mayor
Attachments
Exhibit A: Assembly Bi112351
CALIFORNIA LEGISLATURE-2001-02 REGULAR SESSION
ASSEMBLY BILL No. 2351
Introduced by Assembly Member Canciamilla
February 21, 2002
An act to amend Section 13385 of the Water Code, relating to water.
LEGISLATIVE COUNSEL'S DIGEST
AB 2351, as introduced, Canciamilla. Water quality: civil liability.
(1) Existing law, the Porter-Cologne Water Quality Control Act,
subjects persons who violate various provisions of the act or the federal
Clean Water Act to certain civil penalties, including a mandatory
minimum penalty of $3000 for the first serious violation, as defined,
and each additional serious violation in any 6-month period. The act,
under certain circumstances, authorizes the State Water Resources
Control Board or a California regional water quality control board, in
lieu of assessing the penalty applicable to the first serious violation, to
elect to require the discharger to spend an amount equal to the penalty
for a supplemental environmental project in accordance with the
enforcement policy of the state board and any applicable guidance
document or to develop a pollution prevention plan.
This bill, instead, would authorize the state board or a regional board,
in lieu of assessing that mandatory minimum penalty, to elect to require
the discharger to spend up to the amount of the penalty for a
supplemental environmental project or to develop a pollution
prevention plan.
(2) The act requires the state board and the regional boards, for the
purposes of carrying out these civil liability provisions, to construe a
single operational upset that leads to simultaneous violations of more
than one pollutant parameter as a single violation.
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This bill would require those agencies to construe a single
operational occurrence that leads to violations of one or more pollutant
parameters, even if the occurrence lasts for more than one day, as a
single violation.
(3) The act provides that the requirements relating to the imposition
of mandatory minimum penalties do not apply to certain types of
violations.
This bill also would make mandatory minimum penalties
inapplicable to violations caused by the operation of a new or
reconstructed wastewater treatment plant unit or process during a
defined period of adjusting or testing if certain requirements are met,
or, under certain circumstances, to violations of effluent limitations for
chlorine.
(4) The bill would impose requirements with regard to the hearing
held for the purpose of imposing civil liability pursuant to these
provisions and would authorize the state board or a regional board to
waive the imposition of, or reduce the amount of, mandatory minimum
penalties if certain requirements are met.
Uote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
The people of the State of California do enact as follows:
1 SECTION 1. Section 13385 of the Water Code is amended to
2 read:
3 13385. (a) Any person who violates any of the following
4 shall be liable civilly in accordance with this section:
5 (1) Section 13375 or 13376.
6 (2) Any waste discharge requirements or dredged and fill
7 material permit.
8 (3) Any requirements established pursuant to Section 13383.
9 (4) Any order or prohibition issued pursuant to Section 13243
10 or Article 1 (commencing with Section 13300) of Chapter 5, if the
11 activity subject to the order or prohibition is subject to regulation
12 under this chapter.
13 (5) Any requirements of Section 301, 302, 306, 307, 308, 318,
14 or 405 of the Clean Water Act, as amended.
15 (6) Any requirement imposed in a pretreatment program
16 approved pursuant to waste discharge requirements issued under
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1 Section 13377 or approved pursuant to a permit issued by the
2 administrator.
3 (b) Civil liability maybe imposed by the superior court in an
4 amount not to exceed the sum of both of the following:
5 (1) Twenty-five thousand dollars ($25,000) for each day in
6 which the violation occurs.
7 (2) Where there is a discharge, any portion of which is not
8 susceptible to cleanup or is not cleaned up, and the volume
9 discharged but not cleaned up exceeds 1,000 gallons, an additional
10 liability not to exceedtwenty-five dollars ($25) multiplied by the
11 number of gallons by which the volume discharged but not cleaned
12 up exceeds 1,000 gallons.
13 The Attorney General, upon request of a regional board or the
14 state board, shall petition the superior court to impose the liability.
15 (c) Civil liability may be imposed administratively by the state
16 board or a regional board pursuant to Article 2.5 (commencing
17 with Section 13323) of Chapter 5 in an amount not to exceed the
18 sum of both of the following:
19 (1) Ten thousand dollars ($10,000) for each day in which the
20 violation occurs.
21 (2) Where there is a discharge, any portion of which is not
22 susceptible to cleanup or is not cleaned up, and the volume
23 discharged but not cleaned up exceeds 1,000 gallons, an additional
24 liability not to exceed ten dollars ($10) multiplied by the number
25 of gallons by which the volume discharged but not cleaned up
26 exceeds 1,000 gallons.
27 (d) For purposes of subdivisions (b) and (c), the term
28 "discharge" includes any discharge to navigable waters of the
29 United States, any introduction of pollutants into a publicly owned
30 treatment works, or any use or disposal of sewage sludge.
31 (e) In determining the amount of any liability imposed under
32 this section, the regional board, the state board, or the superior
33 court, as the case may be, shall take into account the nature,
34 circumstances, extent, and gravity of the violation or violations,
35 whether the discharge is susceptible to cleanup or abatement, the
36 degree of toxicity of the discharge, and, with respect to the
37 violator, the ability to pay, the effect on its ability to continue its
38 business, any voluntary cleanup efforts undertaken, any prior
39 history of violations, the degree of culpability, economic benefit
40 or savings, if any, resulting from the violation, and other matters
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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) For purposes of this section, a single operational set
occurrence that leads tosi~ltaneeas violations ofrnere-tI~ one
or more pollutant-parameter parameters, even if the occurrence
lasts for more than oue day, shall be treated as a single violation.
(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) and (k), and (m), a
mandatory minimum penalty of three thousand dollars ($3,000)
shall be assessed for the first serious violation and each additional
serious violation in any period of six consecutive months, except
that if no serious violation has occurred in the prior six months, the
state board or regional board, in lieu of assessing the penalty
may elect to require the
discharger to spend an amount erie up to the amount of the
penalty for a supplemental environmental project ~-aceerdanee
gt~i~ee-dse~er~, or to develop a pollution prevention plan. ~I€
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(2) For the purposes of this section, the following terms have
the following meanings:
(A) A "serious violation" means any waste discharge that
exceeds the effluent limitations contained in the applicable waste
discharge requirements fora 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
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specified in Appendix A to Section 123.45 of Title 40 of the Code
of Federal Regulations, by 40 percent or more.
(B) 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
Section 13385.
(C) A "period of six consecutive months" means the period
beginning on the day following the date on which a serious
violation or one of the violations described in subdivision (i)
occurs and ending 180 days after that date.
(i) Notwithstanding any other provision of this division, and
except as provided in subdivisions (j) ate, (k), and (m), 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:
(1) Rxeeeds Violates a waste discharge requirement effluent
limitation.
(2) Fails to file a report pursuant to Section 13260.
(3) Files an incomplete report pursuant to Section 13260.
(4) £-~eeeds Violates a toxicity discharge limitation contained
in the applicable waste discharge requirements where the waste
discharge requirements do not contain pollutant-specific effluent
limitations for toxic pollutants.
(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) A bypass of a treatment facility located in the County of
Los Angeles during the 2001 calendar year if the applicable waste
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discharge requirements incorporate a provision for the bypass, and
that bypass meets the conditions set forth in Section 122.41 (m)(4)
of Title 40 of the Code of Federal Regulations and any more
stringent conditions incorporated into the waste discharge
requirements and the bypass has been approved by the regional
board as meeting those conditions.
(E) The operation of a new or reconstructed wastewater
treatment plant unit ar process during a defined period of
adjusting or testing, if all of the following requirements are met:
(i) The regional board has been notified in advance of the
operation, including the estimated time, not to exceed 180 days,
required for the adjustment or testing.
(ii) The regional board determines that the operation during
that defined period was the cause of the violation.
(iii) The regional board determines that reasonable, good faith
efjorts were made to avoid the violation.
(2) (A) Except as provided in subparagraph (B), a violation of
an effluent limitation where the waste discharge is incompliance
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 fmal 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 toward 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
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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, 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
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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.
(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. 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
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prepare and implement, a pollution prevention plan pursuant to
Section 13263.3.
(4) A violation of an effluent limitation of zero for chlorine
residual occurring during continuous monitoring, if the waste
discharge requirements do not include frequency and magnitude
thresholds qual~ing the zero limitation, except that a violation of
any of the following thresholds is subject to subdivisions (h) and
(i):
(A) More than 3.3 milligrams per liter for any period of time.
(B) More than zero for more than 23.3 percent of any one day.
(C) More than zero for more than 5.2 percent of any one-week
period.
(D) More than zero for more than 2.4 percent of any one-month
period.
(k) In lieu of assessing all or a portion of the mandatory
minimum penalties pursuant to subdivisions (h) and (i) against a
POTW serving a small community, as defined by subdivision (b)
of Section 79084, the state board or the regional board may elect
to require the POTW to spend an equivalent amount toward the
completion of a compliance project proposed by the POTW, if the
state or regional board finds all of the following:
(1) The compliance project is designed to correct the violations
within five years.
(2) The compliance project is in accordance with the
enforcement policy of the state board.
(3) The POTW has demonstrated that it has sufficient funding
to complete the compliance project.
(Z) The hearing in response to the complaint for the
administrative imposition of civil liability pursuant to this section
shall provide for a reasonable opportxmity for the person accused
to meaningfully present issues relevant to the allegations in the
complaint. If the person served with the complaint anticipates that
the time for presentation of evidence may reasonably exceed 30
minutes, the person may request the matter be referred to a panel
of the regional board in accordance with Section 13223, or by
stipulation to a hearing officer, to alleviate the potential
congestion of the agenda. The hearing shall be governed by
Chapter 1.5 of Division 3 of Title 23 of the California Code of
Regulations.
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(m) (1) The state board or a regional board may waive the
imposition of, or reduce the amount of, the penalty for any
violation described in subdivision (h) or (i), with or without the use
of a supplemental environmental project or pollution prevention
plan, if the state board or a regional board determines, by a
majority vote of all of its members, that justice requires the waiver
or reduction based upon one or more of the factors specified in
subdivision (e). In making this determination, the state board or
a regional board shall identify the factor or factors and the
supporting facts underlying its determination.
(2) Notwithstanding subdivision (e), for the purposes of
reducing the amount of a penalty pursuant to this subdivision, the
state board or a regional board need not assess liability at a level
that recovers the economic benefits, if any, derived from the acts
that constitute the violation.
(n) 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, attorneys' 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.
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(o) Funds collected pursuant to this section shall be deposited
in the State Water Pollution Cleanup and Abatement Account.
f~--f~
(p) (1) The state board shall report annually to the Legislature
regarding its enforcement activities. The reports shall include all
of the following:
(A) A compilation of the number of violations of waste
discharge requirements in the previous year.
(B) A record of the formal and informal compliance and
enforcement actions taken for each violation.
(C) An analysis of the effectiveness of current enforcement
policies, including mandatory minimum penalties.
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(D) Recommendations, if any, necessary for improvements to
the enforcement program in the following year.
(2) The report shall be submitted to the Chairperson of the
Assembly Committee on Environmental Safety and Toxic
Materials and the Chairperson of the Senate Committee on
Environmental Quality on or before March 1, 2001, and annually
thereafter.
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