May 14, 2020 Enforcement Committee Meeting Summary

Four members of the Enforcement Committee Chair Scharff, Commissioner Gilmore, Commissioner Techel and Commissioner Vasquez attended the third online only virtual May 14, 2020, BCDC Enforcement Committee meeting.  The public was able to participate through written comments submitted by email prior to the meeting, and by phone or accessing the meeting via a web link posted on the Commission’s website.
At the meeting, the Committee received three briefings. The first briefing focused on cases that have been opened since the presentation to the Commission on May 7, 2020, following the Enforcement Committee meeting on April 22, 2020.  The Enforcement Program Manager noted that 4 new cases were opened three of which were subsequently closed because they were duplicate reports of existing cases.  The Committee was also informed that management are continuing to review information entered onto the case tracking database to verify that closed case notes document the basis for closure and ensure other information is up-to-date and accurate.  The Committee was also informed that progress is being made on the resolution of the oldest cases with some success in contacting current property owners and determining current site conditions within the limitations of Shelter-In-Place orders. Finally, the Commissioner heard about the ongoing progress being made in integrating the simplified case resolution status codes, and effort that is anticipated to be completed by the end of this quarter.

The second briefing summarized the one-year audit response.  Karen Donovan informed the Committee that six recommendations were reported as Fully Implemented.  She explained that while there were nine recommendations that were reported as Not Fully Implemented, the responses noted that progress was being made in implementing each of these.  Among them were recommendations that are difficult to complete in a year, as recognized in the Audit.  This includes actions that would require additional budgeting or entail Commission approval and initiation of the rulemaking process.  Ms. Donovan also described the response to the recommendation for database updates and compliance improvements, informing the Committee that staff was working on these, but has noted in the responses that full progress will be impacted by funding shortfalls.  Executive Director Goldzband discussed the two audit recommendations that were reported as Will Not Implement.  He noted that the Citizen’s Advisory Committee would not be reconstituted consistent with the Commission’s decision January 2019, due to the recognition that BCDC has several processes, including working groups, to allow for public involvement.  He noted that the responses explain that broader more meaningful public participation is being provided through these other processes and that this is more comprehensive than what was originally envisioned when the Citizen’s Advisory Committee provisions were developed.
The third briefing addressed the simplified Criteria for Violation Delineation. Ms. Donovan reminded the Commissioners that under McAteer Petris Act provisions any violation of the Act or any term or condition of a permit issued is a violation subject to civil penalties. She reiterated the enforcement program goals of deterrence, fairness, consistency, and transparency and explained that the criteria staff was developing were in response to an audit recommendation and were targeted at achieving these goals.  She then discussed the proposed criteria explaining how and when staff would consider aggregating violations for purposes of assessing a single penalty.  These are proposed to be separating into two categories: (1) violations involving a failure to comply with a permit term or condition; and (2) violations involving unpermitted activities.  Among the factors to be considered would be whether the resulting harm was distinguishable and whether the violations were separated in time without an intervening enforcement action.  It would also be established that violations would continue to be treated separately where necessary to deprive a violator of the economic benefit of multiple violations.  This is necessary to ensure that regulated entities are deterred from engaging in multiple unauthorized activities.  The Committee approved of the proposed criteria.  The next steps will be for staff to finalize written criteria and examine how this issue would be appropriate for inclusion in a comprehensive rulemaking.
For details on each briefing, contact Priscilla Njuguna (415-352-3640, priscilla.njuguna@bcdc.ca.gov).

The next Enforcement Committee meeting is scheduled to be held from 9:30 AM to 12:00 PM on June 11, 2020.  It is anticipated to also be an online only virtual meeting with no physical location for attendees and participants to congregate.