Expanding the Mandatory Minimum Penalty Law - AB 1541

By Loretta Macktal, Executive Assistant to the Vice President, Government Relations

Capitol Update, March 21, 2003 Share this on FacebookTweet thisEmail this to a friend

AB 1541 (Cindy Montanez, D-San Fernando) attempts to expand a highly controversial 1999 law that imposes mandatory minimum penalties for certain water quality violations. The bill would make a failure to submit certain types of information required of dischargers by regional water boards "serious" violations, triggering a minimum $3,000 penalty for each violation. In so doing, AB 1541 inappropriately extends a penalty scheme designed for violations of wastewater discharge permit conditions to violations of requirements that either 1) are not included in discharge permits (and thus have less, if any impact on water quality), or 2) may involve circumstances that are beyond the control of the operator, are subject to interpretation, or are authorized by the regional boards. It is also redundant of existing statutory penalty authority which is sufficient to enforce these types of non-permit related violations and includes more due process safeguards.

This bill would increase penalties for failure to submit reports that involve large-scale investigations of water quality issues that are not directly related to the impact of individual discharges. Moreover, these reports are not, and clearly should not be, required as a condition of waste discharge permits. For instance, these reports are most often required in conjunction with ground water quality issues, and thus are unrelated to the waste discharge permitting process.

The mandatory minimum penalty law, SB 709 (Escutia, 1999), was clearly intended for, and limited to, serious violations - actual exceedances of discharge limits - of permit conditions. CMTA strongly opposes expansion of this law to cover violations of requirements that may have little if any impact on water quality and which fall outside of the current statutory framework for mandatory minimum penalties.

AB 1541 also extends mandatory minimum penalties to violations of certain monitoring, inspection, recordkeeping and reporting requirements. While these requirements may be expressed as permit conditions, it is not clear what constitutes a "failure to submit". For example, the timeframe allowed by the regional board may not adequately accommodate the scope or complexity of a reporting requirement, resulting in a delayed submittal. It is not clear if a delay, even one that may be excused by the regional board, would be viewed as a failure to submit under this bill. Similarly, a regional board may deem a discharger's submittal to be incomplete after the deadline has lapsed, despite the best efforts of the discharger to satisfy the regional board's requirements. Dischargers acting in good faith to comply with recordkeeping and reporting requirements should not be subject to mandatory minimum penalties.

Finally, and perhaps most importantly, AB 1541 is redundant in light of the civil penalty authority that already exists in the Water Code to remedy these violations. For example, section 13268 authorizes the regional boards to levy administrative penalties of up to $1,000 for failure or refusal to submit water quality reports or for falsifying the information contained therein. This section also authorizes the superior court to levy fines for such violations of up to $5,000. Perhaps the relevant issue is not the need for additional penalty authority, but whether the regional boards are failing to exercise their existing authority.
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