BILL ANALYSIS
SENATE JUDICIARY COMMITTEE A
Charles M. Calderon, Chairman B
1995-96 Regular Session
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AB 1174 (Cunneen)
As introduced
Hearing date: June 20, 1995
Code of Civil Procedure
GEH:cb
STATUTES OF LIMITATIONS
CIVIL PENALTIES FOR OBSTRUCTION, DIVERSION OR POLLUTION OF WATERS
HISTORY
Source: California District Attorneys Association
Related Pending Legislation: SB 649 (Costa)
KEY ISSUES
1. SHOULD THE STATUTE OF LIMITATIONS FOR BRINGING AN ACTION FOR
CIVIL PENALTIES FOR DIVERTING, OBSTRUCTING, OR POLLUTING WATERS
OF THE STATE BE EXTENDED FROM ONE YEAR TO FIVE YEARS?
A. IS THE PRESENT ONE-YEAR STATUTE OF LIMITATIONS
INSUFFICIENT?
B. IF THE ONE YEAR PERIOD IS TO BE EXTENDED, SHOULD IT BE
THREE YEARS OR FIVE YEARS?
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PURPOSE
The purpose of this bill is to extend the statute of limitations for
bringing an action for civil penalties against a person accused of
obstructing, diverting, or polluting waters of the state from one
year to five years.
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AB 1174 (Cunneen)
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Under existing law, Section 1603 of the Fish and Game Code, it is
unlawful for any person to substantially divert or obstruct the
natural flow or substantially change the bed, channel, or bank of
any river, stream or lake designated by the Department of Fish and
Game, or use any material from the streambeds, without first
notifying the department of such activity.
Under Section 5650 of the Fish and Game Code, it is unlawful to
deposit in, permit to pass into, or place where it can pass into the
waters of the state a list of harmful materials. These items
include petroleum, acid, coal, asphalt, or similar material, and any
liquid or solid refuse from any refinery, gashouse, tannery,
distillery, chemical works, mill or factory of any kind, and "any
substance or material deleterious to fish, plant, or bird life."
In 1991, the legislature passed AB 1386 (Cortese, c. 844), which
enacted special civil enforcement statutes for violations of these
two sections (Sections 1603.1 and 5650.1 of the Fish and Game Code,
respectively). These statutes provide for actions by the Attorney
General, district attorneys and city attorneys for civil penalties
of not more than $25,000 for each violation. They also authorize
these officers to seek an injunction in such an action. Under
Section 12000 of the Fish and Game Code, violations of these
sections can also be prosecuted as a misdemeanor.
AB 1386 did not specify what the statute of limitations should be
for bringing actions for civil penalties pursuant to Sections 1603.1
and 5650.1. As a result, the applicable statute is Section 340 of
the Code of Civil Procedure, which requires an action seeking a
penalty or forfeiture for violation of a statute to be brought
within one year, unless the statute imposing the penalty or
forfeiture prescribes a different statute of limitations. Under
Section 802 of the Penal Code, if these violations are prosecuted as
misdemeanors, the applicable statute of limitations is one year.
There are two special statute of limitations section in the Code of
Civil Procedure which provide for longer statutes of limitations for
actions seeking civil penalties for certain environmental law.
Section 338 provides for a three-year statute of limitations for
violations of the Porter-Cologne Water Quality Control Act (Section
13000 et. seq. of the Water Code), and for violations of the state's
air quality laws (Section 39000 et. seq. of the Health and Safety
Code).
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AB 1174 (Cunneen)
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Section 338.1 provides for a five year statute of limitations for
violations of the state's hazardous waste management laws (Section
25100 et. seq. of the Health and Safety Code), the laws regulating
underground storage tanks (Section 25280 et. seq. of the Health and
Safety Code), and the state Superfund statute (Section 25300 et.
seq. of the Health and Safety Code).
Both Section 338 and 338.1 provide that the statute of limitations
does not begin to run until five years after the discovery by the
agency bringing the action of the facts constituting the grounds for
commencing the action.
This bill amends Section 338.1 of the Code of Civil Procedure to
include in its five-year statute of limitations actions seeking
civil penalties under Section 1603.1 and 5650.1 of the Fish and Game
Code.
COMMENT
1. Extending the statute of limitations
a) Is one year insufficient?
i) Supporters' arguments
The supporters of the bill argue that one year
is simply too short a time to do everything which
should be done before filing a civil action. The Santa
Clara Valley Water District writes:
"A one year period does not provide sufficient
time to perform an adequate follow-up investigation or
to work with a property owner who is cooperative, but
who may have been unaware of the condition of the
property or the prohibition of the law. This could
result in the filing of a lawsuit before the violator
has had sufficient opportunity to demonstrate goodwill,
misunderstanding, or other factors relevant to the
determination of culpability or the severity thereof."
ii) Opponents' arguments
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AB 1174 (Cunneen)
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Opponents of the measure argue that one year is
sufficient, since prosecutors must decide within that
time whether to file the action as a misdemeanor. The
Western States Petroleum Association (WSPA) writes:
"The prosecutor must make a threshold decision
as to whether a violation merits criminal prosecution.
As part of that evaluation, a prosecutor would
ordinarily consider whether a civil prosecution is
appropriate. Since the prosecutor must make this
decision within a year, there is no need to lengthen
the statute of limitations."
In response to the argument that more than one
year is needed to work cooperatively and meet with the
accused violator, WSPA states:
"Unfortunately, many prosecutors do not give
the accused an opportunity to tell their side of the
story until after a filing decision has been made, not
because of timing, but because the prosecutor does not
want their filing decision influenced by the accused.
One year is more than adequate time to meet with the
accused."
WSPA also argues that Section 5650.1 of the
Fish and Game deserves to have a short statute of
limitations like one year because it is an inequitable
statute which needs to be reformed. WSPA is sponsoring
such reform in AB 649 (Costa), which was passed by this
committee. That bill would change the standard for an
injunction; require a mens rea of negligence and a
showing of significant harm for criminal prosecution;
and modify the criteria for determining the amount of a
civil penalty.
iii) Discussion -- consistency with prior enactments
The sponsors of this measure, the California
District Attorneys Association, assert that this bill
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is a "purely technical cure to clean-up any ambiguity
and confusion caused by the absence of an expressly
stated limitation provision" in AB 1368.
This argument appears to be disingenuous.
There is no ambiguity about the fact that, under
Section 340 of the Code of Civil Procedure, the absence
of an expressly stated limitation provision in AB 1368
makes the applicable statute of limitations one year.
This bill makes a substantive, not technical, change in
that unambiguous law, by quintupling the length of the
statute of limitations from one year to five years.
CDAA's better argument is that a one year
statute of limitations is inconsistent with the
limitation period for violations of other environmental
laws. The only other major pollution statute which has
a one year statute because of the application of CCP
Section 340 is Proposition 65 (Section 2549.5 et. seq.
of the Health and Safety Code), which, among other
things, prohibits the knowing discharge or release of
carcinogens or reproductive toxins into water or where
they may pass into water.
Although the prohibition in Proposition 65 is
quite similar to the sections affected by this statute,
it has a one-year limitation only by the default
application of CCP Section 340. When the Legislature
has specifically spoken on the issue of statutes of
limitations for pollution statutes, it has enacted
either three or five year limitation periods (see
comment "b" below). All of the pollution statutes with
3 and 5 years limitation provisions can be
alternatively prosecuted as misdemeanors.
b) Three years or five years?
CDAA has suggested that these Fish and Game
Code provisions be placed in the same statute providing
for a five year limitation period for violations of
hazardous waste and hazardous substance laws because
those are laws under which district attorneys often
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bring actions. District attorneys do not often bring
actions under the Porter-Cologne Water Quality Control
Act, the Lempert-Keene Oil Spill Prevention and
Response Act, or the air quality laws, which have three
year limitation periods.
Industry representatives have accused district
attorneys of prosecuting under the Fish and Game Code
provisions in order to collect their county's statutory
one-half share of the resultant civil penalties. The
same accusation has been made about district attorneys
being overzealous in prosecuting violations of
hazardous waste laws because of their statutory 25
percent share of any civil penalties collected.
The Fish and Game Code provisions affected by
this bill, which relate to unauthorized placement of
obstructions or pollutants into waters, appear to be
more similar to the provisions which have three year
statutes than to those with five year statutes. In
fact, two of the statutes with three year limitation
provisions are virtually identical in purpose to
Section 5650 of the Fish and Game Code: Section
13350(b) of the Water Code, which prohibits discharging
hazardous substances into waters of the state so as to
create a condition of pollution or nuisance; and
Section 8670.67.5 of the Government Code, which
prohibits permitting oil from being discharged into
marine waters.
By contrast, the five year statutes do not
expressly apply to waters of the state; they relate to
the management and release of hazardous waste and
hazardous substances. Traditionally, laws related to
hazardous wastes and substances have been more
stringent than other environmental laws.
WOULD A THREE-YEAR STATUTE OF LIMITATIONS BE
MORE CONSISTENT WITH PRIOR ENACTMENTS?
Support: California District Attorneys Association
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AB 1174 (Cunneen)
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Santa Clara Valley Water District
Sierra Club
Planning and Conservation League
Opposition: Western States Petroleum Association
Association of California Water Agencies
Prior Legislation: AB 1378 (1990) Chaptered
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