HomeMy WebLinkAboutAgenda Report - May 1, 2002 E-07AGENDA TITLE: Adopt Resolution Supporting AB 2351 Regarding Changes to the Mandatory
Minimum Penalty Provisions of Section 13385 of the Water Code
MEETING DATE: May 1, 2002
PREPARED BY: Public Works Director
RECOMMENDED ACTION: That the City Council review Assembly Bill 2351 concerning changes to
the mandatory minimum penalty portion of the Water Code and adopt a
resolution supporting the bill.
BACKGROUND INFORMATION: Assembly Member Canciamilla recently introduced Assembly Bill
2351 which would modify the mandatory minimum penalty portion of
the Water Code. The bill could affect the White Slough Water
Pollution Control Facility. A copy of the bill is attached with changes
shown in italics and strikeouts.
If enacted as proposed, the bill would provide much-needed reform of the mandatory minimum penalty
law. Section 13385 of the Water Code, formerly known as SB709, has placed unfair penalties on public
agencies for violations caused by technical or unavoidable exceedances outside our control. Current
law requires the Regional Water Quality Control Board to assess penalties even if they agree the
violation was unavoidable and had no water quality impact. AB 2351 would restore some discretion to
the state regulators while retaining the mandatory nature of current law.
FUNDING: Not applicable.
Richard C. Prima, J .
Public Works Director
RCP/DK/mg
attachment
cc: Randy Hays, City Attorney
Fran E. Forkas, Water/Wastewater Superintendent
Del Kerlin, Assistant Wastewater Treatment Superintendent
APPROVED:
H. Dixon Flynn -- City Manager
AB2351 CoundlCom 04/23/02
California Association of Sanitation Agencies League of California Cities
925 L Street, Suite 1400 1400 K Street, 4"' Floor
Sacramento, CA 95814 Sacramento, CA 95814
INFORMATION SHEET
AB 2351 (CANCIAMILLA)
What would AB 2351 do?
AB 2351 would revise the Mandatory Minimum Penalty (MMP) provisions of the Water
Code to ensure that municipalities and other NPDES-permit holders are not unfairly
penalized for violations that could not have been prevented and have minimal or no
effect on water quality. AB 2351 is co-sponsored by the League of California Cities and
the California Association of Sanitation Agencies.
Specifically, the bill would:
(1) Exempt from mandatory minimum penalties violations that occur due to
start-up of new or refurbished treatment.
(2) Define "single operational occurrence" to exceed a single day
(3) Expand the opportunity to use Supplemental Environmental Projects (SEPs)
beyond the first $3,000 penalty.
(4) Allow a regional board to waive or reduce MMPs if the board makes specific
findings.
(5) Add clarity/ specificity with regard to the due process and procedure for
imposing the penalties.
(6) Make other technical and clarifying changes.
Why is the bill needed?
In the past, occasional violations of NPDES permits carried penalties only if there was a
public health or water quality impact, or if the violation represented a systemic problem
at the wastewater treatment plant. Senate Bill 709, or the Clean Water Enforcement and
Pollution Prevention Act of 1999, became law on January 1, 2000. The law requires that
the regional water quality control boards assess penalties for specified violations—the
regional boards do not have any discretion. There are effluent limitations in many
permits that cannot be met 100% of the time, and certain violations that do not pose a
public health or environmental threat. Regional board officials have acknowledged that
many of the financial penalties for permit violations are being imposed only to comply
with the mandatory minimum penalty law, and that these discharges have little or no
water quality impact
Many local public agencies have been hit with sizeable mandatory penalties. AB 2351
would maintain mandatory penalties for most violations, but allow exceptions where
the imposition of penalties would be unfair or overly burdensome.
Will AB 2351 diminish water quality?
No. The sources of water quality impairments in California are diverse and include
nonpoint sources such as agricultural, forestry, and urban dry weather and storm water
runoff, residential onsite sewage disposal systems, and boats and marinas, and point
sources such as industrial discharges and municipal publicly owned treatment works
(POTWs). The vast majority of water pollution today comes not from municipal
wastewater treatment plants and industry but from untreated urban and agricultural
runoff. Mandatory penalties, however, are assessed only against municipal wastewater
treatment plants and industry, without regard to the environmental impact of the
violations.
Why is additional discretion needed?
The State and regional water boards would retain their existing discretionary authority
to assess civil penalties against violators of up to $10,000 per day. AB 2351 would also
maintain the mandatory nature of the penalties for many violations. The bill would
categorically exempt from mandatory penalties only those violations that are
unavoidable or have little or no effect on water quality.
In addition, to ensure due process and avoid unjustly penalizing permit holders, the bill
would also allow the regional board members, appointed by the Governor, to waive or
reduce penalties where appropriate. The regional board would make specific findings
to support its decision.
Who supports AB 2351?
AB 2351 is co-sponsored by the League of California Cities and the California
Association of Sanitation Agencies (CASA). The League and CASA represent local
public agencies that have been assessed sizeable mandatory penalties for violations
resulting from treatment process start-ups and treatment plant upsets outside their
control. The League and CASA support fair, firm and consistent enforcement of water
quality laws, and seek to address harsh impacts on local agencies that are an
unintended result of the strict operation of the law.
RESOLUTION NO. 2002-83
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF LODI EXPRESSING ITS SUPPORT OF
ASSEMBLY BILL 2351 (CANCIAMILLA)
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WHEREAS, it is the responsibility of the California State Regional Water Quality
Control Board to insure Water Code provisions are met; and
WHEREAS, it is the responsibility of local governments, such as the City of Lodi,
to manage, treat, and dispose of sewage to insure those provisions are met; and
WHEREAS, effluent limitations in many permits cannot be met 100% of the time
and Regional Board officials acknowledge that many violations for which penalties are
imposed have little or no water quality impact; and
WHEREAS, Assembly Bill 2351 (Canciamilla) restores some discretion to the
State Regional Water Quality Control Board in imposing mandatory minimum penalties
for violations caused by unavoidable circumstances.
NOW, THEREFORE, BE IT RESOLVED, by the Lodi City Council, that it strongly
supports Assembly Bill 2351 (Canciamilla) as it modifies unfair or overly burdensome
mandatory penalties while maintaining firm and consistent enforcement of water quality
laws.
Dated: May 1, 2002
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I hereby certify that Resolution No. 2002-83 was passed and adopted by the City
Council of the City of Lodi in a regular meeting held May 1, 2002 by the following vote:
AYES: COUNCIL MEMBERS — Hitchcock, Howard, Land, Nakanishi, and
Mayor Pennino
NOES: COUNCIL MEMBERS — None
ABSENT: COUNCIL MEMBERS — None
ABSTAIN: COUNCIL MEMBERS — None
SUSAN J. BLACKSTON
City Clerk
2002-83
CALIFORNIA LEGISLATURE ---2001-02 REGULAR SESSION
ASSEMBLY BILL No. 2351
Introduced by Assembly Member Canciamilla
February 21, 2002
An act to amend Section 13385 of the Water Code, relating to water.
LEGISLATIVE COUNSFCS DIGEST
AB 2351, as introduced, Canciamilla. Water quality: civil liability.
(1) Existing law, the Porter -Cologne Water Quality Control Act,
subjects persons who violate various provisions of the act or the federal
Clean Water Act to certain civil penalties, including a mandatory
minimum penalty of $3000 for the first serious violation, as defined,
and each additional serious violation in any 6 -month period. The act,
under certain circumstances, authorizes the State Water Resources
Control Board or a California regional water quality control board, in
lieu of assessing the penalty applicable to the first serious violation, to
elect to require the discharger to spend an amount equal to the penalty
for a supplemental environmental project in accordance with the
enforcement policy of the state board and any applicable guidance
document or to develop a pollution prevention plan.
This bill, instead, would authorize the state board or a regional board,
in lieu of assessing that mandatory minimum penalty, to elect to require
the discharger to spend up to the amount of the penalty for a
supplemental environmental project or to develop a pollution
prevention plan.
(2) The act requires the state board and the regional boards, for the
purposes of carrying out these civil liability provisions, to construe a
single operational upset that leads to simultaneous violations of more
than one pollutant parameter as a single violation.
F
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AB 2351 —2—
This
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This bill would require those agencies to construe a single
operational occurrence that leads to violations of one or more pollutant
parameters, even if the occurrence lasts for more than one day, as a
single violation.
(3) The act provides that the requirements relating to the imposition
of mandatory minimum penalties do not apply to certain types of
violations.
This bill also would make mandatory minimum penalties
inapplicable to violations caused by the operation of a new or
reconstructed wastewater treatment plant unit or process during a
defined period of adjusting or testing if certain requirements are met,
or, under certain circumstances, to violations of effluent limitations for
chlorine.
(4) The bill would impose requirements with regard to the hearing
held for the purpose of imposing civil liability pursuant to these
provisions and would authorize the state board or a regional board to
waive the imposition of, or reduce the amount of, mandatory minimum
penalties if certain requirements are met.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State -mandated local program: no.
The people of the State of California do enact as follows:
1 SECTION 1. Section 13385 of the Water Code is amended to
2 read:
3 13385. (a) Any person who violates any of the following
4 shall be liable civilly in accordance with this section:
5 (1) Section 13375 or 13376.
6 (2) Any waste discharge requirements or dredged and fill
7 material permit.
8 (3) Any requirements established pursuant to Section 13383.
9 (4) Any order or prohibition issued pursuant to Section 13243
10 or Article 1 (commencing with Section 13300) of Chapter 5, if the
11 activity subject to the order or prohibition is subject to regulation
12 under this chapter.
13 (5) Any requirements of Section 301, 302, 306, 307, 308, 318,
14 or 405 of the Clean Water Act, as amended.
15 (6) Any requirement imposed in a pretreatment program
16 approved pursuant to waste discharge requirements issued under
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Section 13377 or approved pursuant to a permit issued by the
administrator.
(b) Civil liability may be imposed by the superior court in an
amount not to exceed the sum of both of the following:
(1) Twenty-five thousand dollars ($25,000) for each day in
which the violation occurs.
(2) Where there is a discharge, any portion of which is not
susceptible to cleanup or is not cleaned up, and the volume
discharged but not cleaned up exceeds 1,000 gallons, an additional
liability not to exceed twenty-five dollars ($25) multiplied by the
number of gallons by which the volume discharged but not cleaned
up exceeds 1,000 gallons.
The Attorney General, upon request of a regional board or the
state board, shall petition the superior court to impose the liability.
(c) Civil liability may be imposed administratively by the state
board or a regional board pursuant to Article 2.5 (commencing
with Section 13323) of Chapter 5 in an amount not to exceed the
sum of both of the following:
(1) Ten thousand dollars ($10,000) for each day in which the
violation occurs.
(2) Where there is a discharge, any portion of which is not
susceptible to cleanup or is not cleaned up, and the volume
discharged but not cleaned up exceeds 1,000 gallons, an additional
liability not to exceed ten dollars ($10) multiplied by the number
of gallons by which the volume discharged but not cleaned up
exceeds 1,000 gallons.
(d) For purposes of subdivisions (b) and (c), the term
"discharge" includes any discharge to navigable waters of the
United States, any introduction of pollutants into a publicly owned
treatment works, or any use or disposal of sewage sludge.
(e) In determining the amount of any liability imposed under
this section, the regional board, the state board, or the superior
court, as the case may be, shall take into account the nature,
circumstances, extent, and gravity of the violation or violations,
whether the discharge is susceptible to cleanup or abatement, the
degree of toxicity of the discharge, and, with respect to the
violator, the ability to pay, the effect on its ability to continue its
business, any voluntary cleanup efforts undertaken, any prior
history of violations, the degree of culpability, economic benefit
or savings, if any, resulting from the violation, and other matters
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that justice may require. At a minimum, liability shall be assessed
at a level that recovers the economic benefits, if any, derived from
the acts that constitute the violation.
(f) For purposes of this section, a single operational upset
occurrence that leads to beaus violations of mere tit one
or more pollutant--parametef parameters, even if the occurrence
lasts.for more than one day, shall be treated as a single violation.
(g) Remedies under this section are in addition to, and do not
supersede or limit, any other remedies, civil or criminal, except
that no liability shall be recoverable under Section 13261, 13265,
13268, or 13350 for violations for which liability is recovered
under this section.
(h) (1) Notwithstanding any other provision of this division,
and except as provided in subdivisions 0) attd (k), and (m), a
mandatory minimum penalty of three thousand dollars ($3,000)
shall be assessed for the first serious violation and each additional
serious violation in any period of six consecutive months, except
that if no serious violation has occurred in the prior six months, the
state board or regional board, in lieu of assessing the penalty
ttppliettHe to the first seriotis , may elect to require the
discharger to spend an amount equal to up to the amount of the
penalty for a supplemental environmental project in aeeerdmee
with the enfi3reement poliey of the state be& -d and any applieable
or to develop a pollution prevention plan. 4f
shall be assessed for ettelt additional ser-inus vielatia
si3t atenth peried that began with the
lieu of the supplemental
p—Jee, Pollution.
(2) For the purposes of this section, the following terms have
the following meanings:
(A) A "serious violation" means any waste discharge that
exceeds the effluent limitations contained in the applicable waste
discharge requirements for a Group II pollutant, as specified in
Appendix A to Section 123.45 of Title 40 of the Code of Federal
Regulations, by 20 percent or more or for a Group I pollutant, as
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specified in Appendix A to Section 123.45 of Title 40 of the Code
of Federal Regulations, by 40 percent or more.
(B) A "supplemental environmental project" means an
environmentally beneficial project that a person agrees to
undertake, with the approval of the regional board, that would not
be undertaken in the absence of an enforcement action under
Section 13385.
(C) A "period of six consecutive months" means the period
beginning on the day following the date on which a serious
violation or one of the violations described in subdivision (i)
occurs and ending 180 days after that date.
(i) Notwithstanding any other provision of this division, and
except as provided in subdivisions 0) ate, (k), and (m), a
mandatory minimum penalty of three thousand dollars ($3,000)
shall be assessed for each violation whenever the person does any
of the following four or more times in any period of six
consecutive months, except that the requirement to assess the
mandatory minimum penalty shall not be applicable to the first
three violations:
(1) Ft3teeeds Violates a waste discharge requirement effluent
limitation.
(2) Fails to file a report pursuant to Section 13260.
(3) Files an incomplete report pursuant to Section 13260.
(4) Emeeeds V olates a toxicity discharge limitation contained
in the applicable waste discharge requirements where the waste
discharge requirements do not contain pollutant -specific effluent
limitations for toxic pollutants.
0) Subdivisions (h) and (i) do not apply to any of the following:
(1) A violation caused by one or any combination of the
following:
(A) An act of war.
(B) An unanticipated, grave natural disaster or other natural
phenomenon of an exceptional, inevitable, and irresistible
character, the effects of which could not have been prevented or
avoided by the exercise of due care or foresight.
(C) An intentional act of a third party, the effects of which
could not have been prevented or avoided by the exercise of due
care or foresight.
(D) A bypass of a treatment facility located in the County of
Los Angeles during the 2001 calendar year if the applicable waste
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discharge requirements incorporate a provision for the bypass, and
that bypass meets the conditions set forth in Section 122.41 (m)(4)
of Title 40 of the Code of Federal Regulations and any more
stringent conditions incorporated into the waste discharge
requirements and the bypass has been approved by the regional
board as meeting those conditions.
(E) The operation of a new or reconstructed wastewater
treatment plant unit or process during a defined period of
adjusting or testing, if all of the following requirements are met:
(i) The regional board has been notified in advance of the
operation, including the estimated time, not to exceed 180 days,
required for the adjustment or testing.
(ii) The regional board determines that the operation during
that def ned period was the cause of the violation.
(iii) The regional board determines that reasonable, good faith
efforts were made to avoid the violation.
(2) (A) Except as provided in subparagraph (B), a violation of
an effluent limitation where the waste discharge is in compliance
with either a cease and desist order issued pursuant to Section
13301 or a time schedule order issued pursuant to Section 13300,
if all of the following requirements are met:
(i) The cease and desist order or time schedule order is issued
after January 1, 1995, but not later than July 1, 2000, specifies the
actions that the discharger is required to take in order to correct the
violations that would otherwise be subject to subdivisions (h) and
(i), and the date by which compliance is required to be achieved
and, if the final date by which compliance is required to be
achieved is later than one year from the effective date of the cease
and desist order or time schedule order, specifies the interim
requirements by which progress toward compliance will be
measured and the date by which the discharger will be in
compliance with each interim requirement.
(ii) The discharger has prepared and is implementing in a
timely and proper manner, or is required by the regional board to
prepare and implement, a pollution prevention plan that meets the
requirements of Section 13263.3.
(iii) The discharger demonstrates that it has carried out all
reasonable and immediately feasible actions to reduce
noncompliance with the waste discharge requirements applicable
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to the waste discharge and the executive officer of the regional
board concurs with the demonstration.
(B) Subdivisions (h) and (i) shall become applicable to a waste
discharge on the date the waste discharge requirements applicable
to the waste discharge are revised and reissued pursuant to Section
13380, unless the regional board does all of the following on or
before that date:
(i) Modifies the requirements of the cease and desist order or
time schedule order as may be necessary to make it fully consistent
with the reissued waste discharge requirements.
(ii) Establishes in the modified cease and desist order or time
schedule order a date by which full compliance with the reissued
waste discharge requirements shall be achieved. For the purposes
of this subdivision, the regional board may not establish this date
later than five years from the date the waste discharge
requirements were required to be reviewed pursuant to Section
13380. If the reissued waste discharge requirements do not add
new effluent limitations or do not include effluent limitations that
are more stringent than those in the original waste discharge
requirements, the date shall be the same as the final date for
compliance in the original cease and desist order or time schedule
order or five years from the date that the waste discharge
requirements were required to be reviewed pursuant to Section
13380, whichever is earlier.
(iii) Determines that the pollution prevention plan required by
clause (ii) of subparagraph (A) is in compliance with the
requirements of Section 13263.3 and that the discharger is
implementing the pollution prevention plan in a timely and proper
manner.
(3) A violation of an effluent limitation where the waste
discharge is in compliance with either a cease and desist order
issued pursuant to Section 13301 or a time schedule order issued
pursuant to Section 13300, if all of the following requirements are
met:
(A) The cease and desist order or time schedule order is issued
on or after July 1, 2000, and specifies the actions that the
discharger is required to take in order to correct the violations that
would otherwise be subject to subdivisions (h) and (i).
(B) The regional board finds that, for one of the following
reasons, the discharger is not able to consistently comply with one
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or
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or more of the effluent limitations established in the waste
discharge requirements applicable to the waste discharge:
(i) The effluent limitation is a new, more stringent, or modified
regulatory requirement that has become applicable to the waste
discharge after the effective date of the waste discharge
requirements and after July 1, 2000, new or modified control
measures are necessary in order to comply with the effluent
limitation, and the new or modified control measures cannot be
designed, installed, and put into operation within 30 calendar days.
(ii) New methods for detecting or measuring a pollutant in the
waste discharge demonstrate that new or modified control
measures are necessary in order to comply with the effluent
limitation and the new or modified control measures cannot be
designed, installed, and put into operation within 30 calendar days.
(iii) Unanticipated changes in the quality of the municipal or
industrial water supply available to the discharger are the cause of
unavoidable changes in the composition of the waste discharge,
the changes in the composition of the waste discharge are the cause
of the inability to comply with the effluent limitation, no
alternative water supply is reasonably available to the discharger,
and new or modified measures to control the composition of the
waste discharge cannot be designed, installed, and put into
operation within 30 calendar days.
(C) The regional board establishes a time schedule for bringing
the waste discharge into compliance with the effluent limitation
that is as short as possible, taking into account the technological,
operational, and economic factors that affect the design,
development, and implementation of the control measures that are
necessary to comply with the effluent limitation. For the purposes
of this subdivision, the time schedule may not exceed five years in
length. If the time schedule exceeds one year from the effective
date of the order, the schedule shall include interim requirements
and the dates for their achievement. The interim requirements shall
include both of the following:
(i) Effluent limitations for the pollutant or pollutants of
concern.
(ii) Actions and milestones leading to compliance with the
effluent limitation.
(D) The discharger has prepared and is implementing in a
timely and proper manner, or is required by the regional board to
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prepare and implement, a pollution prevention plan pursuant to
Section 13263.3.
(4) A violation of an effluent limitation of zero for chlorine
residual occurring during continuous monitoring, if the waste
discharge requirements do not include frequency and magnitude
thresholds qualifying the zero limitation, except that a violation of'
any of the following thresholds is subject to subdivisions (h) and
(i):
(A) More than 3.3 milligrams per liter_for any period of time.
(B) More than zero for more than 23.3 percent of any one day.
(C) More than zero for more than 5.2 percent of'any one-week
period.
(D) More than zero_ for more than 2.4 percent of any one-month
period.
(k) In lieu of assessing all or a portion of the mandatory
minimum penalties pursuant to subdivisions (h) and (i) against a
POTW serving a small community, as defined by subdivision (b)
of Section 79084, the state board or the regional board may elect
to require the POTW to spend an equivalent amount toward the
completion of a compliance project proposed by the POTW, if the
state or regional board finds all of the following:
(1) The compliance project is designed to correct the violations
within five years.
(2) The compliance project is in accordance with the
enforcement policy of the state board.
(3) The POTW has demonstrated that it has sufficient funding
to complete the compliance project.
(1) The hearing in response to the complaint for the
administrative imposition of civil liability pursuant to this section
shall provide for a reasonable opportunity for the person accused
to meaningfully present issues relevant to the allegations in the
complaint. If the person served with the complaint anticipates that
the time.for presentation of evidence may reasonably exceed 30
minutes, the person may request the matter be referred to a panel
of the regional board in accordance with Section 13223, or by
stipulation to a hearing officer, to alleviate the potential
congestion of the agenda. The hearing shall be governed by
Chapter 1.5 of Division 3 of Title 23 of the California Code of
Regulations.
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(m) (1) The state board or a regional board may waive the
imposition of, or reduce the amount of, the penalty for any
violation described in subdivision (h) or (i), with or without the use
of a supplemental environmental project or pollution prevention
plan, if the state board or a regional board determines, by a
majority vote of all of its members, that justice requires the waiver
or reduction based upon one or more of the factors specified in
subdivision (e). In making this determination, the state board or
a regional board shall identify the factor or . factors and the
supporting facts underlying its determination.
(2) Notwithstanding subdivision (e), for the purposes of
reducing the amount of a penalty pursuant to this subdivision, the
state board or a regional board need not assess liability at a level
that recovers the economic benefits, if any, derived from the acts
that constitute the violation.
(n) The Attorney General, upon request of a regional board or
the state board, shall petition the appropriate court to collect any
liability or penalty imposed pursuant to this section. Any person
who fails to pay on a timely basis any liability or penalty imposed
under this section shall be required to pay, in addition to that
liability or penalty, interest, attorneys' fees, costs for collection
proceedings, and a quarterly nonpayment penalty for each quarter
during which the failure to pay persists. The nonpayment penalty
shall be in an amount equal to 20 percent of the aggregate amount
of the person's penalty and nonpayment penalties that are unpaid
as of the beginning of the quarter.
ffft)—
(o) Funds collected pursuant to this section shall be deposited
in the State Water Pollution Cleanup and Abatement Account.
(it) fes
(p) (1) The state board shall report annually to the Legislature
regarding its enforcement activities. The reports shall include all
of the following:
(A) A compilation of the number of violations of waste
discharge requirements in the previous year.
(B) A record of the formal and informal compliance and
enforcement actions taken for each violation.
(C) An analysis of the effectiveness of current enforcement
policies, including mandatory minimum penalties.
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1 (D) Recommendations, if any, necessary for improvements to
2 the enforcement program in the following year.
3 (2) The report shall be submitted to the Chairperson of the
4 Assembly Committee on Environmental Safety and Toxic
5 Materials and the Chairperson of the Senate Committee on
6 Environmental Quality on or before March 1, 2001, and annually
7 thereafter.
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