ITEM: 12

SUBJECT: AMENDMENT OF WATER QUALITY ENFORCEMENT POLICY

DISCUSSION: Effective January 1, 1997, a new Chapter 5.8 (commencing with section 13399) was added to Division 7 of the Water Code. The purpose of this new law is to provide an expedited approach for dealing with minor violations of the Porter-Cologne Water Quality Control Act. Commonly referred to as the "fix-it ticket" legislation, the new law will require the use of field-issued notices to comply as the sole enforcement option in given situations.

The notice to comply approach is limited to minor violations. The term "minor violation" is not defined in the new law. Rather, the State Water Board is required to adopt regulations or state policy to determine the types of violations that are minor violations. In determining what are minor violations, the following factors are to be considered:

• The magnitude, scope, and severity of the violation.
  
• The impact of the violation on programs.
  
• The degree to which the violation hinders other enforcement actions.
  

The legislation also provides that a minor violation is not:

• Any knowing, willful, or intentional violation.
  
• A violation which gives an economic benefit or competitive advantage.
  
• A chronic violation or a violation committed by a recalcitrant violator.
  
• A violation that would take longer than 30 days to correct.

An amendment to the State Water Board's Enforcement Policy is proposed to define what is a minor violation for purposes of the new law. A hearing on the proposed changes was held on August 6, 1997. In response to comments received, revisions have been made to the draft Enforcement Policy Amendment. In addition, changes to the Guidance Document to Implement the Enforcement Policy are proposed to explain the new legislation.

POLICY ISSUE: How broadly should the term minor violation be defined?

FISCAL IMPACT: The breadth of the amendment could have a small impact on the amount of administrative civil liability that can be assessed..

RWQCB IMPACT: All Regions.

STAFF RECOMMENDATION: Adopt the proposed changes to the Enforcement Policy and Guidance Document.

DRAFT

WHEREAS:

1. The State Water Resources Control Board (State Water Board) adopted a Water Quality Enforcement Policy (Policy) as a State Policy for Water Quality Control on April 18, 1996.

2. An associated Guidance to Implement the Water Quality Enforcement Policy (Guidance) was also adopted on that date. The Policy and associated Guidance were approved by the Office of Administrative Law on August 28, 1996.

3. The Policy is to be periodically reviewed and revised as appropriate.

4. Chapter 5.8 (commencing with section 13399) of Division 7 of the Water Code, which became effective January 1, 1997, provides for an expedited approach for dealing with minor violations of the Porter-Cologne Water Quality Control Act.

5. This new law requires the State Water Board to define what types of violations are minor in nature and therefore subject to this new law.

6. Amendments to the Enforcement Policy are an appropriate means of complying with Water Code Section 13399.

7. A hearing to determine what are minor violations was held on August 6, 1997.

8. It is appropriate to revise the Enforcement Policy and Guidance to define what are minor violations and to describe the new law.

THEREFORE BE IT RESOLVED:

1. The attached revisions to Policy and Guidance are hereby adopted.

2. These revisions shall be incorporated into Enforcement Policy and Guidance.

3. Staff is directed to forward the revisions to the Office of Administrative law for approval in accordance with Government Code Section 11353.

The undersigned, Administrative Assistant to the Board, does hereby certify that the foregoing is a full and correct copy of an order duly and regularly adopted at a meeting of the State Water Resources Control Board held on September 18, 1997.

Maureen Marché

Administrative Assistant to the Board

DRAFT

1. Table of Contents: III.--new C. Notices to Comply

2. Page 8: Actions taken to address past violations include issuance of notices to comply (minor violations), rescission . . . [New phrase: "issuance of notices to comply (minor violations").]

3. Page 9 (new)

C. Notices to Comply

Notices to Comply are issued pursuant to chapter 5.8 (commencing with section 13399) of Division 7 of the Water Code. This Chapter provides an expedited approach for dealing with minor violations. Commonly referred to as the "fix-it-ticket" legislation, this law requires the use of field-issued notices to comply as the sole enforcement option in given situations involving minor violations.

Notices to Comply are ordinarily written during the course of an inspection by an authorized representative of the State or Regional Water Board to require a discharger to address minor violations that can be corrected within 30 days. Major features of this law include the following:

• An inspector has the discretion not to issue a notice to comply for a minor violation.
  
• A notice to comply is not required if there is immediate correction.
  
• A single notice to comply is used to cite all minor violations detected during the same inspection.
  
• With exceptions, a notice to comply is the sole means by which an inspector may cite a minor violation.
  
• If testing is required to determine if there has been a violation, a notice to comply may be issued at a latter date.
  
• Other enforcement actions may be taken upon a failure to comply or if necessary to prevent harm to public health or the environment.
  
• Criminal proceedings are not limited by the new law.
  
• Civil penalties may still be assessed for minor violations if warranted or required by federal law.

The violations listed below are considered to be minor in nature provided the violations do not include the following:

• Any knowing, willful, or intentional violation of Division 7 (commencing with Section 13000) of the Water Code.

• Any violation of Division 7 of the Water Code that enables the violator to benefit economically from noncompliance, either by realizing reduced costs or by gaining a competitive advantage.

• Any violation that is a chronic violation or that is committed by a recalcitrant violator.

• Any violation that cannot be corrected within 30 days.

Minor Violations:

A. Inadvertent omissions or deficiencies in recordkeeping that do not prevent an overall compliance determination.

B. Records not physically available at the time of the inspection provided the records do exist and can be produced in a timely manner.

C. Failure to have permits available during an inspection.

D. Inadvertent violations of insignificant administrative provisions that do not involve a discharge of waste or a threat thereof.

E. Violations that result in an insignificant discharge of waste or a threat thereof; provided, however, there is no significant threat to human health, safety, welfare or the environment and provided further that such violations do not violate any other order or prohibition issued by the State or Regional Boards. Significant threat means the threat of or an actual change in water quality that could result in a violation of water quality objectives or a condition of pollution or nuisance.

D. (old was "C") Cease and Desist Orders