Public Workshop - Proposed Amendments to Administrative Enforcement Regulations
In May 2019, the California State Auditor released Audit Report No. 2018-120 that includes recommendations to improve BCDC's enforcement program overall and specific changes to regulations that govern BCDC's enforcement program. In general, the Audit stated that BCDC should create a robust enforcement program and create a more consistent and transparent enforcement process, with guidance where appropriate from the Commission.
Since the Audit's release, BCDC's Enforcement Committee has held 15 public meetings to analyze and discuss various changes to the Commission's overall enforcement program and specific changes to Chapter 13 of BCDC's enforcement regulations.
At its July 29 workshop, BCDC's Enforcement Committee and staff hope to obtain feedback from the public regarding the topics described on the agenda below. This workshop will provide the public with a further opportunity to present information regarding improvements that BCDC can make to its overall enforcement program and the regulations in Chapter 13. A link to sign up for participation in the workshop is provided above, along with a Zoom link for the workshop. Written comments may also be submitted in advance of the workshop.
Following this workshop, the information received from the public will be reviewed and evaluated by staff considering all input from a legal perspective to determine whether and how to amend Chapter 13 regulations. Based on the input received and on BCDC staff's ongoing legal review of the Chapter 13 regulations, the Enforcement Committee will hold a second workshop at which staff will present and seek comments on draft texts amending the Chapter 13 regulations.
I. Welcome, introductions, and housekeeping
II. Introductory presentation
III. Regulatory topics
a. Topic #1 – Developing a definition of "significant harm"
The Audit included a recommendation to "[c]reate and implement regulations that define substantial harm." This definition is important because section 11386(a)(2) states that the standardized fine process applies to violations that have not resulted in significant harm, i.e., that the Commission cannot use its standardized fine process when assessing penalties for actions that cause substantial harm.
On October 2019, at a noticed public meeting, the Enforcement Committee discussed the following definition of "significant harm":
Whether a violation has resulted in "significant harm to the Bay's resources or to existing or future public access" shall be determined based on both the context and intensity of the violation.
(1) "Context" refers to the location of the violation and the characteristics of the area where it occurs. Areas with important environmental or ecological significance (e.g. habitat or refugia for sensitive species) are generally considered to be more significant than previously degraded habitat or areas with limited habitat value, and highly visible and/or frequently used areas are generally considered to be more significant than isolated areas with low visibility or infrequent usage.
(2) "Intensity" refers to the severity of the impact and the degree to which it affects the environment or public access. Violations presenting significant ecosystem hazards (e.g. toxic or biohazardous fill) or involving large portions of a particular site may generally be considered to be more severe. In addition, violations that substantially interfere with the ability to use designated public access or encompass large portions of a designated public access area will be considered to be more significant.
(3) Where multiple violations are alleged at a site, if a single alleged violation results in harm that is individually limited, but cumulatively significant when added to other violations at the site, this section 11386 will not apply.
Questions for discussion:
Does a definition of "significant harm" based on the context and intensity of the violation at issue properly distinguish minor violations that can be resolved through standardized fines from violations that should be resolved through an administrative enforcement hearing before the Enforcement Committee?
Are the criteria listed for "context" appropriate?
Should violations involving areas with important environmental or ecological significance (e.g., habitat or refugia for sensitive species) be distinguished from those in areas that are highly visible and/or frequently used? Are the criteria for "intensity" appropriate and is it appropriate to evaluate public access violations based on whether the conduct at issue substantially interferes with the ability to use designated public access or encompasses large portions of a designated public access?
Should violations with individually limited but cumulatively considerable impacts be ineligible for resolution using standardized fines?
What other changes to the regulation would you recommend in this category?
b. Topic #2 – Proposed Civil Penalty Policy
The Audit included a recommendation to "[c]reate a penalty calculation worksheet. The commission should require the worksheet's use for all enforcement actions that will result in fines or penalties, and it should create formal policies, procedures, and criteria to provide staff with guidance on applying the worksheet."
At noticed public meetings held on July 11, August 8, August 14, and September 25,2019, the Enforcement Committee discussed elements that might be appropriate to include in a penalty policy. At a noticed public meeting held on July 11, 2020, the Enforcement Committee engaged in a follow-up discussion of all of the elements that could be included in a penalty policy and how these would be implemented.
The draft penalty policy that BCDC staff have developed for discussion is included here.
Does this draft penalty policy provide an appropriate level of guidance to ensure that penalties will be calculated in a consistent and transparent manner?
Is the matrix used to calculate the base penalty amount clear and understandable?
Does the method of calculating the initial base penalty amount need further clarification?
Are the penalty ranges consistent and acceptable as written? Should the penalty ranges be higher or lower for certain categories (e.g., violations with major harm that involve a minor deviation from the relevant requirement)?
Are the percentage amounts used for adjustments appropriate?
What other changes would you recommend to the draft civil penalty policy?
c. Topic #3 – Revisions to Section 11386 – Standardized Fines
The Audit includes a recommendation to "[c]reate and implement regulations to allow [the Commission] to use limited monetary fines to resolve selected minor violations that do not involve substantial harm to the Bay." BCDC believes that its existing standardized fine regulation, Section 11386, allows the agency to resolve a range of minor violations that do not involve significant harm to the Bay's resources or public access. To respond to this recommendation BCDC is considering whether there are improvements that can be made to Section 11386 to enhance the enforcement goals of: Deterrence, Fairness, Consistency, and Transparency.
Should the regulations specify how, when and for how long the accrual of fines will be tolled while staff are reviewing a filed permit application or legal instrument?
Should the standardized fine amounts set forth in section 11386(e) be raised?
If so, what increases are appropriate to deter individuals and entities from engaging in minor violations that are eligible for resolution using standardized fines?
What other changes to the regulations would you recommend in this category?
d. Topic #4 – Supplement Environmental Projects (SEPs) Policy
At noticed public meetings held on November 14, 2019 and June 24, 2020, the Enforcement Committee discussed a potential policy to allow voluntarily undertaken environmentally beneficial projects to offset a portion of proposed civil penalties to further case resolution.
SEPs are used by other environmental protection agencies in California and many of these agencies have policies and criteria to govern their use.
Should BCDC adopt a policy or guidance to address the use of SEPs as set forth in the draft civil penalty policy? Is it appropriate to limit the amount of penalty that can be offset through a SEP?
If so, to what extent?
What types of projects would be appropriate for a SEP?
e. Topic #5 -- Administrative Hearing Process
As set forth in Chapter 13, Commission enforcement proceedings begin with staff issuing a violation report and/or a complaint to impose civil penalties. The recipient of the report and/or complaint is given an opportunity to submit a statement of defense, and the matter may [may?] then proceed to a hearing before the Enforcement Committee. At the conclusion of the hearing, the Enforcement Committee is asked to adopt a recommended decision that would be scheduled for Commission consideration. When the Commission holds a meeting to act on a recommended enforcement decision, the Commission allows staff, respondent representatives, and members of the public to present their respective arguments on the recommended decision. This process is represented in the following flow chart.
Occasionally, BCDC is engaged in enforcement matters that are resolved through a negotiated resolution before they move to a Commission meeting. In addition, after an Enforcement Committee hearing, a respondent may choose not to contest the Enforcement Committee's recommended decision. BCDC is considering whether, in these circumstances, the Commission process may be expedited.
When the respondent is not challenging the Enforcement Committee recommendation, should BCDC establish an expedited process (e.g., a consent calendar) the Commission can use to approve an Enforcement Committee recommended order without Commission discussion or deliberation?
What other changes to the regulations would you recommend in this category?
Speaker Sign-Up and Time Limits..Please note that during the current State of Emergency in California, we are conducting meetings and workshops solely via virtual platforms. There is no physical location. If you would like to comment in writing prior to the workshop, you may email comments in advance to public comment. You may also participate by telephone and via web using the information set forth above.
Access to Meetings. Meetings are accessible to persons with disabilities. If you require special assistance or have technical questions, please contact staff prior to the meeting via email. We will attempt to make the meeting accessible via Zoom accessibility capabilities. During the current State of Emergency in California, before the meeting public comment in writing is encouraged via email. During the meeting participation will occur by phone.
Bagley-Keene Open Meeting Act. As a state agency, the Commission is governed by the Bagley-Keene Open Meeting Act which requires the Commission to: (1) publish an agenda at least ten days in advance of any meeting; (2) describe specifically in that agenda the items to be transacted or discussed; and (3) refuse to add an item subsequent to the published agenda. In addition to these general requirements, the Bagley-Keene Act includes other specific provisions about how meetings are to be announced and conducted.