CHAPTER 5.8. Minor Violations [13399 - 13399.3]
( Chapter 5.8 added by Stats. 1996, Ch. 775, Sec. 4. )
(a) The Legislature hereby finds and declares that the purpose of this chapter is to establish an enforcement policy for violations of this division that the enforcement agency finds are minor when the danger they pose to, or the potential that they have for endangering, human health, safety, or welfare or the environment are taken into account.
(b) It is the intent of the Legislature in enacting this chapter to provide a more resource-efficient enforcement mechanism, faster compliance times, and the creation of a productive and cooperative working relationship between the state board, the regional boards, and the regulated community while maintaining protection of human health and safety and the environment.
(c) This chapter applies solely to the actions of the state board and the regional boards in administering this division and has no application to the administrative enforcement actions of other public agencies.
(d) The state board and each regional board shall implement this chapter by determining the types of violations of this division, or of the regulations, rules, standards, orders, permit conditions, or other requirements adopted pursuant to this division that the state board or the regional board finds are minor violations in accordance with subdivisions (e) and (f). The state board shall implement this chapter through adoption of regulations or state policy for water quality control pursuant to Article 3 (commencing with Section 13140) of Chapter 3.
(e) In determining the types of violations that are minor violations, the state board or regional board shall consider all of the following factors:
(1) The magnitude of the violation.
(2) The scope of the violation.
(3) The severity of the violation.
(4) The degree to which a violation puts human health, safety, or welfare or the environment into jeopardy.
(5) The degree to which a violation could contribute to the failure to accomplish an important goal or program objective as established by this division.
(6) The degree to which a violation may make it difficult to determine if the violator is in compliance with other requirements of this division.
(f) For purposes of this chapter, a minor violation of this division shall not include any of the following:
(1) Any knowing, willful, or intentional violation of this division.
(2) Any violation of this division that enables the violator to benefit economically from noncompliance, either by realizing reduced costs or by gaining a competitive advantage.
(3) Any violation that is a chronic violation or that is committed by a recalcitrant violator.
(g) In determining whether a violation is chronic or a violator is recalcitrant, for purposes of paragraph (3) of subdivision (f), the state board or regional board shall consider whether there is evidence indicating that the violator has engaged in a pattern of neglect or disregard with respect to the requirements of this division or the requirements adopted pursuant to this division.
(Added by Stats. 1996, Ch. 775, Sec. 4. Effective January 1, 1997.)
For purposes of this chapter, “notice to comply” means a written method of alleging a minor violation that is in compliance with all of the following requirements:
(a) The notice to comply is written in the course of conducting an inspection by an authorized representative of the state board or regional board. If testing is required by the state board or regional board to determine compliance, and the testing cannot be conducted during the course of the inspection, the representative of the state board or regional board shall have a reasonable period of time to conduct the required testing. If, after the test results are available, the representative of the state board or regional board determines that the issuance of a notice to comply is warranted, the representative shall immediately notify the facility owner or operator in writing.
(b) A copy of the notice to comply is presented to a person who is an owner, operator, employee, or representative of the facility being inspected at the time that the notice to comply is written. If offsite testing is required pursuant to subdivision (a), a copy of the notice to comply may be mailed to the owner or operator of the facility.
(c) The notice to comply clearly states the nature of the alleged minor violation, a means by which compliance with the requirement cited by the representative of the state board or regional board may be achieved, and a time limit in which to comply, which shall not exceed 30 days.
(d) The notice to comply shall contain the information specified in subdivision (h) of Section 13399.2 with regard to the possible reinspection of the facility.
(Added by Stats. 1996, Ch. 775, Sec. 4. Effective January 1, 1997.)
(a) An authorized representative of the state board or regional board, who, in the course of conducting an inspection, detects a minor violation shall issue a notice to comply before leaving the site at which the minor violation is alleged to have occurred if the authorized representative finds that a notice to comply is warranted.
(b) A person who receives a notice to comply pursuant to subdivision (a) shall have the period specified in the notice to comply from the date of receipt of the notice to comply in which to achieve compliance with the requirement cited on the notice to comply. Within five working days of achieving compliance, the person who received the notice to comply shall sign the notice to comply, and return it to the representative of the state board or regional board, stating that the person has complied with the notice to comply. A false statement that compliance has been achieved is a violation of this division pursuant to subdivision (a) of Section 13268, Section 13385, or subdivision (e) of Section 13387.
(c) A single notice to comply shall be issued for all minor violations cited during the same inspection and the notice to comply shall separately list each cited minor violation and the manner in which each minor violation may be brought into compliance.
(d) A notice to comply shall not be issued for any minor violation that is corrected immediately in the presence of the inspector. Immediate compliance in that manner may be noted in the inspection report, but the person shall not be subject to any further action by the representative of the state board or regional board.
(e) Except as otherwise provided in subdivision (g), a notice to comply shall be the only means by which the representative of the state board or regional board shall cite a minor violation. The representative of the state board or regional board shall not take any other enforcement action specified in this division against a person who has received a notice to comply if the person is in compliance with this section.
(f) If a person who receives a notice to comply pursuant to subdivision (a) disagrees with one or more of the alleged violations cited in the notice to comply, the person shall give written notice of appeal to the state board or regional board.
(g) Notwithstanding any other provision of this section, if a person fails to comply with a notice to comply within the prescribed period, or if the state board or regional board determines that the circumstances surrounding a particular minor violation are such that immediate enforcement is warranted to prevent harm to the public health or safety or to the environment, the state board or regional board may take any needed enforcement action authorized by this division.
(h) A notice to comply issued to a person pursuant to this section shall contain a statement that the inspected facility may be subject to reinspection at any time. Nothing in this section shall be construed as preventing the reinspection of a facility to ensure compliance or to ensure that minor violations cited in a notice to comply have been corrected.
(i) Nothing in this section shall be construed as preventing the state board or regional board, on a case-by-case basis, from requiring a person subject to a notice to comply to submit reasonable and necessary documentation to support a claim of compliance by the person.
(j) Nothing in this section restricts the power of a city attorney, district attorney, county counsel, or the Attorney General to bring, in the name of the people of California, any criminal proceeding otherwise authorized by law. Furthermore, nothing in this section prevents the state board or regional board, or a representative of the state board or regional board, from cooperating with, or participating in, such a proceeding.
(k) Notwithstanding any other provision of this section, if the state board or regional board determines that the circumstances surrounding a particular minor violation are such that the assessment of a civil penalty pursuant to this division is warranted or required by federal law, in addition to issuance of a notice to comply, the state board or regional board shall assess a civil penalty in accordance with this division, if the state board or regional board makes written findings that set forth the basis for the determination of the state board or regional board.
(Added by Stats. 1996, Ch. 775, Sec. 4. Effective January 1, 1997.)
On or before January 1, 2000, the state board shall report to the Legislature on actions taken by the state board and the regional boards to implement this chapter and the results of that implementation. Each regional board shall provide the state board with the information that the state board requests to determine the degree to which the purposes described in subdivision (a) of Section 13399 have been achieved.
(Amended by Stats. 2000, Ch. 727, Sec. 6. Effective January 1, 2001.)