By Katherine J. Hart
On September 30, 2010, the Governor signed Senate Bill 1284 (Ducheny) into law (Chapter 645). Ever since their adoption, Mandatory Minimum Penalties or MMPs have created serious economic hardship for local wastewater agencies. While concerns remain about MMPs, the California Legislature and Governor granted some much needed relief to these local agencies.
As many know, 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 or for certain other described violations if those violations occur four or more times in any period of six consecutive months, as prescribed. For purposes of the mandatory minimum penalty, a serious waste discharge violation includes a failure to file a specified discharge monitoring report for each complete period of 30 days following the deadline for submitting the report.
SB 1284 makes several revisions to the MMPs statute. For one, the law exempts dischargers from MMPs for failing to file a discharge monitoring report if the dischargers file a written statement that certifies that no discharges to surface water occurred and that specifies the reasons they failed to file a report. The law also limits MMPs to a single $3,000 penalty for each failure to timely file a discharge monitoring report in situations where: 1) the discharger had not previously received a complaint to impose penalties for failing to file a report from the State Water Board or a Regional Water Quality Control Board; 2) the discharges to surface waters did not violate effluent limits; and (3) certain other conditions are met.
The above mentioned provisions of the law apply to violations for which an administrative civil liability complaint or a judicial complaint has not been filed before July 1, 2010, regardless of when the actual violations occurred, and the provisions sunset on January 1, 2014. Finally, this law allows a regional water board, after holding a public hearing, to extend the time schedule imposed in a cease and desist order or a time schedule order for an additional five years, to come into compliance with effluent limitations where the agency can show it is diligently attempting to resolve the problem.
ACWA sponsored the legislation to address high penalties imposed on water agencies for failing to report that they had no wastewater discharge violations. The bill was co-sponsored by the Regional Council of Rural Counties and the California Chamber of Commerce and was supported by the League of California Cities, the California Association of Sanitation Agencies and the California State Association of Counties.
This legislation is an example of good compromise: local wastewater agencies will now receive some fiscal relief under the MMPs statute, while ensuring water quality is still protected.
Katherine J. Hart is a senior associate at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.