BILL ANALYSIS
SENATE RULES COMMITTEE SB 649
Office of Senate Floor Analyses
1020 N Street, Suite 524
(916) 445-6614 Fax: (916) 327-4478
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UNFINISHED BUSINESS
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Bill No: SB 649
Author: Costa (D)
Amended: 6/13/96
Vote: 21
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SENATE JUDICIARY COMMITTEE: 5-3, 5/2/95
AYES: Campbell, Lockyer, Wright, Leslie, Calderon
NOES: O'Connell, Petris, Solis
NOT VOTING: Mello
SENATE FLOOR: 25-10, 5/25/95
AYES: Alquist, Ayala, Beverly, Calderon, Campbell, Costa,
Dills, Greene, Haynes, Hughes, Hurtt, Johannessen,
Johnson, Kelley, Kopp, Leonard, Leslie, Lewis, Maddy,
Monteith, Mountjoy, Petris, Rogers, Russell, Wright
NOES: Boatwright, Johnston, Killea, Marks, Mello,
O'Connell, Peace, Solis, Thompson, Watson
NOT VOTING: Craven, Hayden, Lockyer, Polanco, Rosenthal
ASSEMBLY FLOOR: 36-34, 8/29/96 - See last page for vote
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SUBJECT: Water pollution
SOURCE: California Chamber of Commerce
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DIGEST: The purpose of this bill is to provide greater
protections to persons alleged to have unlawfully placed
certain harmful materials in or near waters of the state.
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Assembly Amendments (1) revise the section exempting
discharge or release of harmful materials, and (2) recast
section on "significant harm."
Senate Floor Amendments of 5/23/95 make a technical change
relating to storm drains that discharge into state waters.
ANALYSIS: Existing law, Section 5650 of the Fish and
Game Code, provides that it is unlawful to deposit in,
permit to pass into, or place where it can pass it 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 life, or bird life."
There is no mental state required for this offense. A
deposit of these materials into, or where they can pass
into, waters of the state is unlawful, even if it is
unintentional and even if it is not done negligently.
Section 5650.1 provides that every person who violates
Section 5650 is subject to a civil penalty of not more than
25,000 for each violation. An action seeking civil
penalties for violating Section 5650 may be brought by the
Department of Fish and Game, the Attorney General, or any
district attorney or city attorney.
As with other violations of the Fish and Game Code, fifty
percent of civil penalties assessed for violation of
Section 5650 are distributed to the county in which the
action is prosecuted, to be placed in a county fish and
wildlife propagation fund. The other 50 percent is
distributed to the Department of Fish and game for deposit
in the Fish and game Preservation Fund.
Section 5650.1 authorizes actions for temporary restraining
orders, and preliminary or permanent injunctions, and
specifies that in such actions it is not necessary to
allege or prove either:
1.That irreparable damage will occur if the relief is not
granted; or
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2.That the remedy at law is inadequate.
These two allegations are necessary under the general state
statute governing the grounds for issuing an injunction,
Section 526 of the Code of Civil Procedure.
Under Section 12002 of the Fish and Game Code, violation of
a number of provisions of the Code, including violations of
Section 5650 involving the harmful materials specifically
listed above, is a misdemeanor, punishable by a fine of not
more than $2,000 and/or imprisonment in county jail for not
more than one year.
This bill makes the following changes to the
above-described provisions:
1.Discharges or releases which would otherwise violate
Section 5650 would not violate it if the discharge or
release is expressly authorized pursuant to the terms of
a permit, license, or waiver issued by the State Water
Resources Control Board or a regional water quality
control board, or that is expressly authorized pursuant
to a federal permit or license for which the State Water
Resources Control Board or a regional water quality
control board has issued a water quality certification
pursuant to Section 13160 of the Water Code. This
section does not confer additional authority on the State
Water Resources Control Board, a regional water quality
control board, or any other entity.
It shall be an affirmative defense to a violation of this
section if the defendant proves, by a preponderance of
the evidence, all of the following:
a.The defendant complied with all applicable state and
federal laws and regulations requiring that the
discharge or release be reported to a government
agency.
b.The substance or material did not enter the waters of
the state or a storm drain that discharges into the
waters of the state.
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c.The defendant took reasonable and appropriate measures
to effectively mitigate the discharge or release in a
timely manner.
d.The affirmative defense set forth above does not apply
and may not be raised in an action for civil penalties
or injunctive relief pursuant to Section 5650.1.
2.The provision governing how a court determines the amount
of a civil penalty would be amended in a number of ways:
a.The present provision requires the court to consider
the nature, circumstance, extent, and gravity of the
violation.
This bill would require the court to take into account
all relevant circumstances, including but not limited
to the nature, circumstances, extent and gravity of
the violation.
b.The present provision permits the court to consider a
number of other factors, including the degree of
toxicity and volume of the discharge, the defendants
ability to pay, and several others.
This bill would require, rather than simply permit, the
court to consider the present list of factors.
c.This bill adds one more factor to consider: the extent
of harm caused by the violation.
3.The bill provides that in any civil action brought
pursuant to the provisions of this bill in which a
temporary restraining order, preliminary injunction, or
permanent injunction is sought, it is not necessary to
allege or prove at any stage of the proceeding that
irreparable damage will occur if the temporary
restraining order, preliminary injunction, or permanent
injunction is not issued, or that the remedy at law is
inadequate.
After the party seeking the injunction has met its burden
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of proof, the court shall determine whether to issue a
temporary restraining order, preliminary injunction, or
permanent injunction without requiring the defendant to
prove that it will suffer grave or irreparable harm. The
court shall make the determination whether to issue a
temporary restraining order, preliminary injunction, or
permanent injunction by taking into consideration, among
other things, the nature, circumstance, extent, and
gravity of the violation, the quantity and
characteristics of the substance or material involved,
the extent of environmental harm caused by the violation,
measures taken by the defendant to remedy the violation,
the relative likelihood that the material or substance
involved may pass into waters of the state, and the harm
likely to be caused to the defendant.
The court, to the maximum extent possible, shall tailor
any temporary restraining order, preliminary injunction,
or permanent injunction narrowly to address the violation
in a manner that will otherwise allow the defendant to
continue business operations in a lawful manner.
The prohibition which is now codified in Section 5650 is
perhaps California's oldest environmental statute; dating
back to at least 1889. It was one of a category of "public
welfare offenses" popularized in the late 19th century.
Such offenses were strict liability misdemeanors designed
to address problems caused by industrialization.
Background:
California has relied on Fish and Game Code (FGC) Section
5650 to protect the waters of the state since 1876. In
1895, the law was amended to proscribe the discharge of
factory waste. In 1915, discharges of oil and petroleum
products were added to the list of prohibited pollution.
This law, originally a part of the Penal Code was last
amended in 1927, and has been actively enforced by district
attorneys (DA) for over 120 years.
California's first comprehensive civil pollution
enforcement law was the Dickey Water Pollution Act of 1949.
In that year the Legislature preserved both the criminal
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penalties of FGC Section 5650 and created a new civil
permit system administered by the Regional Water Quality
Control Boards. The division of labor between the Regional
Boards and the Department of Fish and Game (DFG) was
codified at FGC Section 5651. The DFG is directed to refer
continuing and chronic pollution to the Regional Boards for
correction and abatement. The DAs are authorized to
enforce both the criminal sanctions of the FGC and the
Water Code Section 13225(d) and have done so since 1949.
The Porter Cologne Water Quality Control Act of 1969, made
no substantive changes in the division of enforcement
authority between the regional boards, the DFG, and the DAs
of California.
FISCAL EFFECT: Appropriation: No Fiscal Com.: No
Local: No
SUPPORT: (Verified 8/31/96)
California Chamber of Commerce (source)
Western States Petroleum Association
Louisiana-Pacific Corporation
Asphalt Pavement Association
California Independent Petroleum Association
California Railroad Industry
Association of California Water Agencies
California Association of Sanitation Agencies
Agricultural Council of California
Alta Irrigation District
American Electronics Association
Attorney General Dan Lungren
Beneto, Inc.
California Cattlemen's Association
California Council for Environmental & Economic Balance
California Farm Bureau
California Brain and Feed Association
California Groundwater Association
California League of Food Processors
California Independent Oil Marketers Association
California Manufacturers Association
California Special District Association
Chemical Industry Council of California
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Chemical Specialty Manufacturer's Association
Harris Farms
Independent Oil Producers' Agency
Industrial Environmental Association of San Diego
Kings River Water Association
Modesto Chamber of Commerce
Monsanto, Inc.
New United Motor Manufacturing, Inc.
Nisei Farmers League
Nutra Sweet
San Joaquin Valley Dairymen
Western Growers Association
Western United Dairymen
OPPOSITION: (Verified 8/31/96)
California District Attorneys Association
California Protective Fish and Game Wardens Association
League of Women Voters of California
Department of Fish and Game
United Anglers of California
Caltrout
California League of Conservation Voters
Consumers Union
Sierra Club
Planning and Conservation League
California Association of Professional Scientists
City of Los Angeles
Federation of Fly Fishers
Earth Island Institute
ARGUMENTS IN SUPPORT: Proponents argue that Section 5650
is now a relic which duplicates the more sophisticated
environmental regulatory schemes which have been
established in the intervening years. This bill results
from the fact that the Legislature breathed new life into
this relic by passing AB 1378 (Cortese) in 1991. That bill
added Section 5650.1, allowing hefty civil penalties and
injunctions to be assessed against violators of the
provision. Proponents claim that the provision in AB 1378
allowing counties and Fish and Game to share 50/50 any
civil penalties assessed against 5650 violators has led to
a rash of irresponsible uses of the statute.
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Specifically, the proponents cite five cases in San Diego,
Los Angeles, Ventura, Monterey, and Contra Costa Counties.
In two cases, the statute was used or threatened to be used
against discharges which were authorized by a permit issued
pursuant to the federal Clean Water Act. In another case,
four small oil spills at an oil field which had been
reported and cleaned up pursuant to law, formed the basis
of a threatened injunction which would have placed
day-to-day control of the oil field under the control of
the court. Faced with that threat, the company settled for
$98,000 in civil penalties.
According to the Western States Petroleum Association, "As
the state budget problems continue, a broader application
of the Fish and Game Code can be expected. In the meantime
business and industry is saddled with having to fend off
these allegations of violations with significant legal
costs."
ARGUMENTS IN OPPOSITION: The California District
Attorneys Association (CDAA) strongly disagrees with the
contention that Section 5650 has been abused, "CDAA
strongly believes that the net effect of this bill would be
to undermine the enforcement of the laws protecting
California's waters. The laws as they currently exist are
appropriately crafted and are enforced by district
attorneys judicially."
CDAA argues that it is too difficult to prove that a
particular spill caused significant harm to fish, bird, or
plant life. Assessment of the consequences of ecological
damage is notoriously difficult and expensive. CDAA
believe that this requirement would "dramatically curtail
the scope and effect of section 5650."
ASSEMBLY FLOOR:
AYES: Ackerman, Aguiar, Alby, Baldwin, Battin, Baugh,
Boland, Bordonaro, Bowler, Brewer, Brulte, Conroy,
Frusetta, Goldsmith, Granlund, Harvey, Hawkins, Hoge,
House, Kaloogian, Knight, Knowles, Margett, Miller,
Morrissey, Morrow, Olberg, Poochigian, Rainey, Richter,
Rogan, Setencich, Takasugi, Thompson, Weggeland, Pringle
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NOES: Alpert, Baca, Bates, Bowen, Brown, Burton,
Bustamante, Campbell, Cannella, Cunneen, Davis, Ducheny,
Escutia, Figueroa, Friedman, Gallegos, Hannigan, Hauser,
Isenberg, Katz, Knox, Machado, Martinez, Mazzoni,
McPherson, Migden, K. Murray, W. Murray, Napolitano,
Speier, Sweeney, Tucker, Vasconcellos, Villaraigosa
NOT VOTING: Archie-Hudson, Caldera, Cortese, Firestone,
Kuehl, Kuykendall, Lee, Woods
RJG:lm 8/31/96 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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