2009 California Government Code - Section 8670.57-8670.69.7 :: Article 9. Enforcement

8670.57.  (a) When the administrator determines that any person has
engaged in, is engaged in, or threatens to engage in, any acts or
practices which constitute a violation of any provision of this
chapter, Division 7.8 (commencing with Section 8750) of the Public
Resources Code, or any rule, regulation, permit, or order issued,
promulgated, or executed thereunder, and when requested by the
administrator, the district attorney of the county in which those
acts occur or occurred, or the Attorney General, may make application
to the superior court for an order enjoining the acts or practices,
or for an order directing compliance. Upon a showing by the
administrator that the person has engaged in, is engaged in, or
threatens to engage in any violation of the act, a permanent or
preliminary injunction, restraining order, or other order may be
granted.
   (b) For the purposes of this section, "threaten" means a condition
creating a substantial probability of harm, when the probability and
potential extent of harm make it reasonably necessary to take
immediate action to prevent, reduce, or mitigate damages to persons,
property, or natural resources.

8670.58.  Every civil action commenced pursuant to this chapter or
Division 7.8 (commencing with Section 8750) of the Public Resources
Code at the request of the administrator shall be brought by the city
attorney, the district attorney, or the Attorney General in the name
of the people of the State of California, and any actions relating
to the same event, transaction, or occurrence may be joined or
consolidated.

8670.59.  (a) Any civil action brought pursuant to this chapter, or
pursuant to Division 7.8 (commencing with Section 8750) of the Public
Resources Code, shall be brought in the county in which the spill,
discharge, or violation occurred, the county in which the principal
place of business of the defendant is located, or the county in which
the defendant is doing business in this state.
   (b) (1) Notwithstanding any other provision of law, all criminal
actions for the prosecution of misdemeanor violations of this chapter
or Division 7.8 (commencing with Section 8750) of the Public
Resources Code shall be commenced within one year from the date of
the discovery of the facts or circumstances which constitute the
violation.
   (2) Notwithstanding any other provision of law, all criminal
actions for the prosecution of felony violations of this chapter or
Division 7.8 (commencing with Section 8750) of the Public Resources
Code shall be commenced within three years from the date of the
discovery of the facts or circumstances which constitute the
violation.
   (c) Notwithstanding any other provision of law, except as provided
in subdivision (d), any action to recover civil damages or penalties
shall be commenced within three years from the date of discovery of
the facts or circumstances which constitute a violation of this
chapter or Division 7.8 (commencing with Section 8750) of the Public
Resources Code.
   (d) Any action to recover civil damages or penalties pursuant to
paragraph (3), (4), (5), (6), or (7) of subdivision (g) of Section
8670.56.5 because of effects on natural resources shall be commenced
within five years from the date of the discovery of the facts or
circumstances which are the basis for the cause of action.
   (e) Any action to compel the removal of oil or the restoration and
rehabilitation of wildlife and wildlife habitat shall be commenced
within five years from the date of discovery of the facts or
circumstances which constitute a violation of this chapter or
Division 7.8 (commencing with Section 8750) of the Public Resources
Code.
   (f) For purposes of subdivisions (b), (c), (d), and (e), "date of
discovery" means the actual date that facts sufficient to establish
that a violation of this chapter or Division 7.8 (commencing with
Section 8750) of the Public Resources Code has occurred are
discovered by a peace officer appointed pursuant to Section 851 of
the Fish and Game Code.
   (g) The administrator may adopt regulations prescribing procedures
for the implementation of this section.

8670.61.  The civil and criminal penalties provided in this chapter
and Division 7.8 (commencing with Section 8750) of the Public
Resources Code shall be separate and in addition to, and do not
supersede or limit, any and all other remedies, civil or criminal.

8670.61.5.  (a) For purposes of this chapter, "wildlife
rehabilitation" means those actions that are necessary to fully
mitigate for the damage caused to wildlife, fisheries, wildlife
habitat, and fisheries habitat, including beaches, from a spill or
inland spill.
   (b) Responsible parties shall fully mitigate adverse impacts to
wildlife, fisheries, wildlife habitat, and fisheries habitat. Full
mitigation shall be provided by successfully carrying out
environmental projects or funding restoration activities required by
the administrator in carrying out projects complying with the
requirements of this section. Responsible parties are also liable for
the costs incurred by the administrator or other government agencies
in carrying out this section.
   (c) If any significant wildlife rehabilitation is necessary, the
administrator may require the responsible party to prepare and submit
to the administrator, and to implement, a wildlife rehabilitation
plan. The plan shall describe the actions that will be implemented to
fully meet the requirements of subdivision (b), describe contingency
measures that will be carried out in the event that any of the plan
actions are not fully successful, provide a reasonable implementation
schedule, describe the monitoring and compliance program, and
provide a financing plan. The administrator shall review and
determine whether to approve the plan within 60 days of submittal.
Before approving a plan, the administrator shall first find that the
implementation of the plan will fully mitigate the adverse impacts to
wildlife, fisheries, wildlife habitat, and fisheries habitat. If the
habitat contains beaches that are or were used for recreational
purposes, the Department of Parks and Recreation shall review the
plan and provide comments to the administrator.
   (d) The plan shall place first priority on avoiding and minimizing
any adverse impacts. For impacts that do occur, the plan shall
provide for full onsite restoration of the damaged resource to the
extent feasible. To the extent that full onsite restoration is not
feasible, the plan shall provide for offsite in-kind mitigation to
the extent feasible. To the extent that adverse impacts still have
not been fully mitigated, the plan shall provide for the enhancement
of other similar resources to the extent necessary to meet the
requirements of subdivision (b). In evaluating whether a wildlife
rehabilitation plan is adequate, the administrator may use the
habitat evaluation procedures established by the United States Fish
and Wildlife Service or any other reasonable methods as determined by
the Director of Fish and Game.
   (e) The administrator shall prepare regulations to implement this
section. The regulations shall include deadlines for the submittal of
plans. In establishing the deadlines, the administrator shall
consider circumstances such as the size of the spill and the time
needed to assess damage and mitigation.

8670.62.  (a) Any person who discharges oil into marine waters, upon
order of the administrator, shall do all of the following:
   (1) Clean up the oil.
   (2) Abate the effects of the discharge.
   (3) In the case of a threatened discharge, take other necessary
remedial action.
   (b) Upon failure of any person to comply with a cleanup or
abatement order, the Attorney General or a district attorney, at the
request of the administrator, shall petition the superior court for
that county for the issuance of an injunction requiring the person to
comply with the order. In any such suit, the court shall have
jurisdiction to grant a prohibitory or mandatory injunction, either
preliminary or permanent, as the facts may warrant.
   (c) Consistent with the state contingency plan, the administrator
may expend available money to perform any response; containment;
cleanup; wildlife rehabilitation, which includes assessment of
resource injuries and damages, or remedial work required pursuant to
subdivision (a) which, in the administrator's judgment, is required
by the circumstances or the urgency of prompt action required to
prevent pollution, nuisance, or injury to the environment of the
state. The action may be taken in default of, or in addition to,
remedial work by the responsible party or other persons, and
regardless of whether injunctive relief is sought. The administrator
may perform the work in cooperation with any other governmental
agency, and may use rented tools or equipment, either with operators
furnished or unoperated. Notwithstanding any other provisions of law,
the administrator may enter into oral contracts for the work, and
the contracts, whether written or oral, may include provisions for
equipment rental and the furnishing of labor and materials necessary
to accomplish the work. The contracts shall be exempt from Part 2
(commencing with Section 10100) of Division 2 of the Public Contract
Code and Article 6 (commencing with Section 999) of Chapter 6 of
Division 4 of the Military and Veterans Code.
   (d) If the discharge is cleaned up, or attempted to be cleaned up,
the effects thereof abated, or, in the case of threatened pollution
or nuisance, other necessary remedial action is taken by any
governmental agency, the person or persons who discharged the waste,
discharged the oil, or threatened to cause or permit the discharge of
the oil within the meaning of subdivision (a), shall be liable to
that governmental agency for the reasonable costs actually incurred
in cleaning up that waste, abating the effects thereof, or taking
other remedial action. The amount of the costs shall be recoverable
in a civil action by, and paid to, the applicable governmental agency
and the administrator, to the extent the administrator contributed
to the cleanup costs from the Oil Spill Response Trust Fund or other
available funds.
   (e) If, despite reasonable effort by the administrator to identify
the party responsible for the discharge of oil or the condition of
pollution or nuisance, the person is not identified at the time
cleanup, abatement, or remedial work must be performed, the
administrator shall not be required to issue an order under this
section. The absence of a responsible party shall not in any way
limit the powers of the administrator under this section.
   (f) "Threaten," for purposes of this section, means a condition
creating a substantial probability of harm, when the probability and
potential extent of harm makes it reasonably necessary to take
immediate action to prevent, reduce, or mitigate damages to persons,
property, or natural resources.

8670.63.  (a) No provision of this chapter, or of Division 7.8
(commencing with Section 8750) of the Public Resources Code, or any
ruling of the administrator, shall be construed to limit, abridge, or
supersede the power of the Attorney General, at the request of the
administrator, or upon his or her own motion, to bring an action in
the name of the people of the State of California to enjoin any
violation of this act, seek necessary remedial action by any person
who violates any of the provisions of this act, or seek civil and
criminal penalties against any person who violates any of the
provisions of this act.
   (b) The Attorney General, at the request of the administrator,
shall undertake actions to enforce this chapter and to recover from
an owner, operator, or responsible party for a release of oil into
state waters all expenditures made from a particular fund. The
resolution of any recovery actions pursuant to this subdivision shall
be approved by the administrator.

8670.64.  (a) A person who commits any of the following acts, shall,
upon conviction, be punished by imprisonment in a county jail for
not more than one year or by imprisonment in the state prison:
   (1) Except as provided in Section 8670.27, knowingly fails to
follow the direction or orders of the administrator in connection
with an oil spill.
   (2) Knowingly fails to notify the Coast Guard that a vessel is
disabled within one hour of the disability and the vessel, while
disabled, causes a discharge of oil which enters marine waters. For
the purposes of this paragraph, "vessel" means a vessel, as defined
in Section 21 of the Harbors and Navigation Code, of 300 gross
registered tons or more.
   (3) Knowingly engages in or causes the discharge or spill of oil
into marine waters, or a person who reasonably should have known that
he or she was engaging in or causing the discharge or spill of oil
into marine waters, unless the discharge is authorized by the United
States, the state, or another agency with appropriate jurisdiction.
   (4) Knowingly fails to begin cleanup, abatement, or removal of
spilled oil as required in Section 8670.25.
   (b) The court shall also impose upon a person convicted of
violating subdivision (a), a fine of not less than five thousand
dollars ($5,000) or more than five hundred thousand dollars
($500,000) for each violation. For purposes of this subdivision, each
day or partial day that a violation occurs is a separate violation.
   (c) (1) A person who knowingly does any of the acts specified in
paragraph (2) shall, upon conviction, be punished by a fine of not
less than two thousand five hundred dollars ($2,500) or more than two
hundred fifty thousand dollars ($250,000), or by imprisonment in a
county jail for not more than one year, or by both the fine and
imprisonment. Each day or partial day that a violation occurs is a
separate violation. If the conviction is for a second or subsequent
violation of this subdivision, the person shall be punished by
imprisonment in the state prison or in a county jail for not more
than one year, or by a fine of not less than five thousand dollars
($5,000) or more than five hundred thousand dollars ($500,000), or by
both the fine and imprisonment:
   (2) The acts subject to this subdivision are all of the following:
   (A) Failing to notify the Office of Emergency Services in
violation of Section 8670.25.5.
   (B) Knowingly making a false or misleading marine oil spill report
to the Office of Emergency Services.
   (C) Continuing operations for which an oil spill contingency plan
is required without an oil spill contingency plan approved pursuant
to Article 5 (commencing with Section 8670.28).
   (D) Except as provided in Section 8670.27, knowingly failing to
follow the material provisions of an applicable oil spill contingency
plan.

8670.65.  Except as otherwise provided in Section 8670.64, any
person who knowingly violates any provision of this chapter, or
Division 7.8 (commencing with Section 8750) of the Public Resources
Code, or any permit, rule, regulation, standard, cease and desist
order, or requirement issued or adopted pursuant to this act is, upon
conviction, guilty of a misdemeanor, punishable by a fine of not
more than fifty thousand dollars ($50,000) or by imprisonment in the
county jail for not more than one year, or by both the fine and
imprisonment.

8670.66.  (a) Any person who intentionally or negligently does any
of the following acts shall be subject to a civil penalty for a spill
of not less than fifty thousand dollars ($50,000) or more than one
million dollars ($1,000,000), or for an inland spill not to exceed
fifty thousand dollars ($50,000), for each violation, and each day or
partial day that a violation occurs is a separate violation:
   (1) Except as provided in Section 8670.27, fails to follow the
direction or orders of the administrator in connection with a spill
or inland spill.
   (2) Fails to notify the Coast Guard that a vessel is disabled
within one hour of the disability and the vessel, while disabled,
causes a spill that enters marine waters. For the purposes of this
paragraph, "vessel" means a vessel, as defined in Section 21 of the
Harbors and Navigation Code, of 300 gross registered tons or more.
   (3) Is responsible for a spill or inland spill, unless the
discharge is authorized by the United States, the state, or other
agency with appropriate jurisdiction.
   (4) Fails to begin cleanup, abatement, or removal of oil as
required in Section 8670.25.
   (b) Except as provided in subdivision (a), any person who
intentionally or negligently violates any provision of this chapter,
or Division 7.8 (commencing with Section 8750) of the Public
Resources Code, or any permit, rule, regulation, standard, or
requirement issued or adopted pursuant to those provisions, shall be
liable for a civil penalty not to exceed two hundred fifty thousand
dollars ($250,000) for each violation of a separate provision, or,
for continuing violations, for each day that violation continues.
   (c) No person shall be liable for a civil penalty imposed under
this section and for a civil penalty imposed pursuant to Section
8670.67 for the same act or failure to act.

8670.67.  (a) Any person who intentionally or negligently does any
of the following acts shall be subject to an administrative civil
penalty for a spill not to exceed two hundred thousand dollars
($200,000), or for an inland spill not to exceed fifty thousand
dollars ($50,000), for each violation as imposed by the administrator
pursuant to Section 8670.68, and each day or partial day that a
violation occurs is a separate violation:
   (1) Except as provided in Section 8670.27, fails to follow the
applicable contingency plans or the direction or orders of the
administrator in connection with a spill or inland spill.
   (2) Fails to notify the Coast Guard that a vessel is disabled
within one hour of the disability and the vessel, while disabled,
causes a discharge that enters marine waters or inland waters. For
the purposes of this paragraph, "vessel" means a vessel, as defined
in Section 21 of the Harbors and Navigation Code, of 300 gross
registered tons or more.
   (3) Is responsible for a spill or inland spill, unless the
discharge is authorized by the United States, the state, or other
agency with appropriate jurisdiction.
   (4) Fails to begin cleanup, abatement, or removal of spilled oil
as required by Section 8670.25.
   (b) Except as provided in subdivision (a), any person who
intentionally or negligently violates any provision of this chapter,
or Division 7.8 (commencing with Section 8750) of the Public
Resources Code, or any permit, rule, regulation, standard, cease and
desist order, or requirement issued or adopted pursuant to those
provisions, shall be liable for an administrative civil penalty as
imposed by the administrator pursuant to Section 8670.68, not to
exceed one hundred thousand dollars ($100,000) for each violation of
a separate provision, or, for continuing violations, for each day
that violation continues.
   (c) No person shall be liable for a civil penalty imposed under
this section and for a civil penalty imposed pursuant to Section
8670.66 for the same act or failure to act.

8670.67.5.  (a) Any person who without regard to intent or
negligence causes or permits a spill or inland spill shall be
strictly liable civilly in accordance with subdivision (b) or (c).
   (b) A penalty may be administratively imposed by the administrator
in accordance with Section 8670.68 in an amount not to exceed ten
dollars ($10) per gallon of oil released for an inland spill, and in
an amount not to exceed twenty dollars ($20) per gallon for a spill.
The amount of the penalty shall be reduced for every gallon of
released oil that is recovered and properly disposed of in accordance
with applicable law.
   (c) Whenever the release of oil resulted from gross negligence or
reckless conduct, the administrator shall, in accordance with Section
8670.68, impose a penalty in the amount of thirty dollars ($30) per
gallon of oil released for an inland spill, and in an amount not to
exceed sixty dollars ($60) for a spill. The amount of the penalty
shall be reduced for every gallon of released oil that is recovered
and properly disposed of in accordance with applicable law.
   (d) The administrator shall adopt regulations governing the method
for determining the amount of oil that is cleaned up.

8670.68.  (a) The administrator may issue a complaint to any person
on whom civil liability may be imposed pursuant to Section 8670.67 or
8670.67.5. The complaint shall allege the facts or failures to act
that constitute a basis for liability and the amount of the proposed
civil liability. The complaint shall be served by personal service or
certified mail and shall inform the party so served of the right to
a hearing. Any person served with a complaint pursuant to this
subdivision may, within 10 days after service of the complaint,
request a hearing by filing with the administrator a notice of
defense. A notice of defense is deemed to be filed within the 10-day
period if it is postmarked within the 10-day period. If a hearing is
requested by the respondent, it shall be conducted within 90 days
after receipt of the notice of defense by the administrator. If no
notice of defense is filed within 10 days after service of the
complaint, the administrator shall issue an order setting liability
in the amount proposed in the complaint unless the administrator and
the party have entered into a settlement agreement, in which case the
administrator shall issue an order setting liability in the amount
specified in the settlement agreement. If the party has not filed a
notice of defense or if the administrator and the party have entered
into a settlement agreement, the order shall not be subject to review
by any court or agency.
   (b) Any hearing required under this section shall be conducted by
an independent hearing officer according to the procedures specified
in Sections 11507 to 11517, inclusive, except as otherwise specified
in this section. In making a determination, the hearing officer shall
take into consideration the nature, circumstances, extent and
gravity of the violation, the violator's past and present efforts to
prevent, abate, or clean up conditions posing a threat to the public
health and safety of the environment, and the violator's ability to
pay the proposed civil penalty. After conducting any hearing required
under this section, the hearing officer shall, within 30 days after
the case is submitted, issue a decision, including an order setting
the amount of civil penalty to be imposed.
   (c) Orders setting civil liability issued pursuant to this section
shall become effective and final upon issuance, and payment shall be
made within 30 days of issuance. Copies of the orders shall be
served by personal service or by certified mail upon the party served
with the complaint and upon other persons who appeared at the
hearing and requested a copy.
   (d) Within 30 days after service of a copy of a decision issued by
the hearing officer, any person so served may file with a court of
appeal a petition for writ of mandate for review of the decision. Any
person who fails to file the petition within the 30-day period may
not challenge the reasonableness or validity of a decision or order
of the hearing officer in any judicial proceedings brought to enforce
the decision or order or for other remedies. Except as otherwise
provided in this section, Section 1094.5 of the Code of Civil
Procedure shall govern any proceedings conducted pursuant to this
subdivision. In all proceedings pursuant to this subdivision, the
court shall uphold the decision of the hearing officer if the
decision is based upon substantial evidence in the whole record. The
filing of a petition for writ of mandate shall not stay any
corrective action required pursuant to this act or the accrual of any
penalties assessed pursuant to this act. This subdivision does not
prohibit the court from granting any appropriate relief within its
jurisdiction.
   (e) Any order for administrative penalties entered pursuant to his
section shall be subject to interest at the legal rate from the
filing of the complaint as specified in subdivision (a). The
prevailing party shall be entitled to reasonable attorney's fees and
costs.

8670.68.1.  After the time for review has expired for a violation
under this chapter or Division 36 (commencing with Section 71200) of
the Public Resources Code, the administrator may apply to the clerk
of the appropriate court for a judgment to collect the administrative
civil liability imposed in accordance with Section 8670.68. The
application, which shall include a certified copy of the
administrator's order setting liability, a hearing officer's decision
if any, or a settlement agreement if any, shall constitute a
sufficient showing to warrant issuance of the judgment. The court
clerk shall enter the judgment immediately in conformity with the
application. The judgment so entered has the same force and effect
as, and is subject to all the provisions of law relating to, a
judgment in a civil action, and may be enforced in the same manner as
any other judgment of the court in which it is entered.

8670.68.4.  Any operator of a small craft refueling dock who fails
to register in compliance with subdivision (c) of Section 8670.36.1
shall be subject to a civil penalty in the amount of one hundred
dollars ($100). The administrator may levy the penalty
administratively.

8670.68.5.  Twenty-five percent of any penalty collected under this
article shall be paid to the agency or office prosecuting the action.

8670.69.  Actions on behalf of the state or any other public entity
to enforce Section 8670.61.5 through injunctive relief, declaratory
relief, and all costs of the action, may be brought by any person in
the public interest if both of the following occur:
   (a) The action is commenced more than 60 days after the person has
given notice of the violation which is the subject of the action to
the Attorney General and the district attorney and city attorney in
whose jurisdiction the violation is alleged to occur and to the
alleged violator.
   (b) No action has been commenced against the violation, or if
commenced, is not being diligently prosecuted by the Attorney
General, or any district attorney, city attorney or other prosecutor.
   (c) This section applies to any actions brought with respect to
any violations which have occurred, continue to occur or threaten to
occur.

8670.69.4.  (a) When the administrator determines that any person
has undertaken, or is threatening to undertake, any activity or
procedure that (1) requires a permit, certificate, approval, or
authorization under this chapter, without securing a permit, or (2)
is inconsistent with any of the permits, certificates, rules,
regulations, guidelines, or authorizations, previously issued or
adopted by the administrator, or (3) threatens to cause or
substantially increases the risk of unauthorized discharge of oil
into the marine waters of the state, the administrator may issue an
order requiring that person to cease and desist.
   (b) Any cease and desist order issued by the administrator may be
subject to such terms and conditions as the administrator may
determine are necessary to ensure compliance with this division.
   (c) Any cease and desist order issued by the administrator shall
become null and void 90 days after issuance.
   (d) A cease and desist order issued by the administrator shall be
effective upon the issuance thereof, and copies shall be served
immediately by certified mail upon the person or governmental agency
being charged with the actual or threatened violation.
   (e) Any cease and desist order issued by the administrator shall
be consistent with subdivision (a) of Section 8670.27.

8670.69.6.  Within 30 days after service of a copy of a cease and
desist order issued by the administrator under Section 8670.69.4, any
aggrieved party may file with the superior court a petition for writ
of mandate for review thereof pursuant to Section 1094.5 of the Code
of Civil Procedure. Failure to file such an action shall not
preclude a party from challenging the reasonableness and validity of
an order of the administrator in any judicial proceeding brought to
enforce the order or for other civil remedies.

8670.69.7.  All penalties collected under this article for inland
spills shall be deposited into the Fish and Wildlife Pollution
Account in the Fish and Game Preservation Fund and be available for
expenditure in accordance with Section 12017 of the Fish and Game
Code.