BILL ANALYSIS
AB 1131
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Date of Hearing: April 28, 2009
ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS
Wesley Chesbro, Chair
AB 1131 (Feuer) - As Amended: April 20, 2009
SUBJECT : Hazardous materials: green chemistry and accidental
releases.
SUMMARY : Expands the Department of Toxic Substances Control's
(DTSC) pollution prevention program by requiring DTSC to
establish a program for life cycle toxics reduction. Transfers
the state's business and area plan program and the accidental
release prevention program from California Emergency Management
Agency (CAL EMA) to DTSC. Specifically, this bill :
Definitions :
1)Defines "chemical of concern" as a substance identified by
DTSC pursuant to regulations adopted in accordance with the
Green Chemistry law (Health and Safety Code Section 25252) as
a chemical of concern.
2)Defines "life cycle toxics reduction" as an action that causes
a net reduction in the use, generation, release, or disposal
of a chemical of concern during a product life cycle
including, but not limited to, any of the following actions:
a) Input substitution by replacing a chemical of concern
used in a production unit with a nontoxic or less toxic
substance.
b) Produce reformulation by substituting an existing end
product with a new end product that is nontoxic or less
toxic upon use, release, or disposal.
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c) Production unit redesign or modification by developing
and using production units of a different design than those
currently used.
d) Production unit modernization by upgrading or replacing
existing production unit equipment and methods with other
equipment and methods based on the same production unit.
e) Improved operation and maintenance of production unit
equipment and methods by modifying or adding to existing
equipment or methods, including, but not limited to,
techniques such as improved housekeeping practices, system
adjustments, product and process inspections, or production
unit control equipment or methods.
f) Recycling, reuse, or extended use of a chemical of
concern by using equipment or methods that becomes an
integral part of the production unit, including, but not
limited to, filtration and other closed loop methods.
3)Defines "product life cycle" as including, but not limited as,
all of the following stages of development and retirement of a
product: acquisition of raw materials; bulk material
processing; engineering materials production; manufacture;
assembly; distribution; use; retirement; disposal of residuals
produced in each stage.
Pollution prevention program expansion :
1)Requires DTSC to establish a program for life cycle toxics
reduction.
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2)Requires DTSC to coordinate the activities of all state
agencies with responsibilities and duties relating to
pollution prevention and green chemistry and to promote
coordinated efforts to encourage life cycle toxics reduction.
3)Requires DTSC to adopt regulations to establish procedures for
exempting generators from the pollution prevention
requirements where the department determines that no life
cycle toxics reduction opportunities exist for the generator.
4)Requires the California Source Reduction Advisory Committee to
evaluate the performance and progress of DTSC's life cycle
toxics reduction program.
5)Requires DTSC to establish a technical assistance and outreach
program to promote implementation of life cycle toxics,
instead of model source, reduction measures in priority
industry categories.
6)Requires DTSC, in its biennial hazardous waste reduction work
plan, to select at least six priority categories of
industries, instead of two categories of generators, as
defined.
7)Requires that at least one selected category of industries is
a category that consists primarily of businesses affected by
one or more actions taken by DTSC pursuant to the Green
Chemistry law.
Business and area plan program and Cal ARP program: Transfers
authority to administer the business and area plan program and
the California Accidental Release Prevention Program (Cal ARP)
from the California Emergency Management Agency (CAL EMA) to
DTSC as follows:
1)Requires all business plans and area plans to meet the
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standards adopted by DTSC, rather than by CAL EMA.
2)Requires DTSC, rather than CAL EMA, and the appropriate
administering agency in each city or county to implement the
Cal ARP program.
3)Includes the Office of Health Hazard Assessment (OEHHA) in the
list of agencies that must be consulted with when the unified
program is developed and implemented.
4)Requires the Secretary for Environmental Protection
(secretary) to oversee and coordinate the development of
regulations and policies by related agencies to ensure a
consolidated, coordinated, and consistent unified program.
5)Requires the secretary to oversee and coordinate the
development and implementation of regulations and policies for
pollution prevention and green chemistry, in so far as they
affect the implementation of the unified program.
6)Requires the secretary to oversee unified program standards
and requirements adopted by each state agency to ensure that
program requirements of coordination, consolidation, and
consistency are effectively achieved.
7)Requires the secretary to ensure that the realignment of
program requirements of the unified program from CAL EMA to
DTSC includes oversight of ongoing program development and
effective coordination between the CAL EMA's emergency
response activities, OEHHA's risk management role, and DTSC's
green chemistry program.
8)Requires that regulations adopted by the former Office of
Emergency Services (now CAL EMA) to remain in effect until
DTSC amends or revises those regulations.
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9)Authorizes DTSC to develop materials, such as guidelines and
informational pamphlets, to assist businesses and unified
program agencies (UPAs) to fulfill their obligations under
this article. Authorizes CAL EMA to develop materials, such
as guidelines and informational pamphlets, to assist
businesses and UPAs to fulfill their obligations concerning
spill and release reporting, area plans, and consolidated
contingency plans. Requires, to the extent necessary, DTSC
and the CAL EMA to coordinate the consolidation of these
materials.
10)Makes other conforming changes to realign the business and
area plan program and Cal ARP program requirements from CAL
EMA to DTSC.
EXISTING LAW :
Pollution prevention program : (HSC Section 25244.15 et seq.)
Requires DTSC to establish and administer a program for
hazardous waste source reduction, including the adoption of
regulations to do so.
Business and area plans: (HSC Section 25503 et seq).
1)Requires the Office of Emergency Services (now CAL EMA) to
adopt, after a public hearing and consultation with the office
of the State Fire Marshal and other appropriate public
entities, regulations for minimum standards for business plans
and area plans. (HSC Section 25503.)
2)Requires all businesses, as defined, to establish and
implement a business plan for emergency response to a release
or threatened release of a hazardous material.
3)Requires business plans to include: an inventory of chemicals
and hazardous materials; emergency response plans and
procedures in the event of a reportable release or threatened
release of a hazardous material; evacuation plans and
procedures, including immediate notice, for the business site;
training for all employees in safety procedures in the event
of a release or threatened release of a hazardous material.
4)Requires an administering agency (local agency) to establish
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an area plan for emergency response to a release or threatened
release of a hazardous material within its jurisdiction.
5)Requires all business plans and area plans to meet the
standards adopted by OES.
Cal ARP program : (HSC Section 25533 et seq.)
1)Establishes that the program for prevention of accidental
releases of regulated substances adopted by the US
Environmental Protection Agency (US EPA), with the additional
provisions specified by the state, is the accidental release
prevention program for the state (Cal ARP).
2)Requires OES and the appropriate administering agency in each
city or county to implement the program.
FISCAL EFFECT : Unknown.
COMMENTS :
This bill has essentially two major components: 1) Expands
DTSC's pollution prevention (P2) program by adding a life cycle
toxics reduction program and 2) Transfers the business and area
plan programs and the California Accidental Release Prevention
(Cal ARP) from Cal EMA, to DTSC.
Pollution prevention program expansion: Current pollution
prevention law requires hazardous waste generators to seriously
consider source reduction as the preferred method of managing
hazardous waste. This bill adds a life cycle toxics reduction
component to the program, thus shifting the focus of toxics
reduction from the end of a product's useful life to reduction
of toxics along the entire lifetime of the product (including
manufacture, use, disposal, etc.) According to the author's
office, "AB 1131 addresses the current paradigm shift in
California's chemical policies from a source reduction strategy
to a more lifecycle-focused approach. Since the adoption of SB
14 (Roberti; 1989) that incorporated this source reduction focus
into California chemicals policy, it has become clear that
simply reducing hazardous waste is not sufficiently protective
of public health and the environment. AB 1131 expands DTSC's
pollution prevention program from simple waste reduction to
lifecycle toxics reduction. Given the regulatory tools
available to DTSC under AB 1879 and SB 509 as part of the Green
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Chemistry program, it is essential that existing technical
assistance, such as the pollution prevention program, be
flexible enough to aid industries as they transition to safer
alternatives and products. AB 1131 also expands the number of
industries eligible for assistance from 2 to 6 and adds
industries affected by AB 1879 and SB 509 as a category for
inclusion in the program."
Green Chemistry recommendations : In December, 2008, DTSC
released its California Green Chemistry Initiative: Final
Report, which included six policy recommendations for
establishing a comprehensive green chemistry program in
California. Last year, the Governor signed AB 1879 and SB 509
into law, which enacted two of the six recommendations. One of
the additional recommendations was "Expand Pollution Prevention
and product stewardship programs to more business sectors to
refocus additional resources on prevention rather than clean up;
Broaden the program to incorporate a green chemistry and
engineering design approach? as opposed to the current focus on
end-of-pipe hazardous waste generation; [and] Add a new
dimension to California's Accidental Release Program (Cal/ARP)
which works to prevent accidental release of regulated
substances. By adding a pollution prevention planning
component, the Cal/ARP program can increase its effectiveness
for emergency response preparedness." This bill attempts to
implement these, and other, recommendations.
Source Reduction Advisory Committee recommendations : The Source
Reduction Advisory Committee (committee) was established under
SB 1916 of 1998 and has been working with DTSC since then to
provide advice on its pollution prevention (P2) program. One of
the committee's charges is to provide advice on legislative
improvements to advance pollution prevention. In October, 2008,
the committee recommended replacing references to source
reduction or reduction in the generation of hazardous waste with
a more holistic term; replacing references to hazardous waste
"generators" with a broader, more appropriate term; focusing
more on materials and use of chemicals, as well as multimedia
impacts; and expand the pool of possible business sectors in
which to do a project. This bill attempts to implement these,
and other, recommendations.
Limited to chemicals of concern : As drafted, the life cycle
toxics reduction program would be limited to "chemicals of
concern." Will this limitation hamper DTSC's ability to create
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a comprehensive life cycle toxics reduction program?
Hazardous materials business plan program : Owners or operators
of a facility are required to complete and submit a hazardous
material business plan (business plan) if the facility handles a
hazardous material or mixture containing a hazardous material
over a certain amount. Business plans must contain detailed
information on the: 1) hazardous materials at a facility; 2)
emergency response plans and procedures in the event of a
reportable release or threatened release of a hazardous
material; and, 3) training for employees in safety procedures in
the event of a release or threatened release of a hazardous
material. The intent of the business plan is to provide basic
information necessary for use by first responders in order to
prevent or mitigate damage to the public health and safety and
to the environment from a release or threatened release of a
hazardous material and to satisfy federal and state Community
Right-To-Know laws.
Cal ARP Program: The Cal ARP program was established to prevent
accidental releases of substances determined to potentially pose
the greatest risk of immediate harm to the public and the
environment. The planning activities required by Cal ARP are
intended to minimize the possibility of an accidental release by
encouraging engineering and administrative controls. The
program is further intended to mitigate the effects of an
accidental release, should one occur, by requiring an emergency
response program. Certified unified program agencies (CUPAs),
participating agencies, or designated agencies (collectively
called Unified Program Agencies) are authorized to implement and
enforce the Cal ARP program in California.
Cal ARP vs. business plans : The hazardous chemical reporting
requirements under H&SC, Chapter 6.95, Article 1 (business
plan), are separate and distinct from those under Article 2 of
the same chapter (Cal ARP). Business plan reporting applies to
all hazardous substances and includes the types and amounts of
hazardous chemicals, location and storage information, and
facility contact information. The Cal ARP risk management
program applies to a distinct set of regulated substances. The
Cal ARP program requirements go beyond emergency planning and
reporting; they require a holistic approach to accident
prevention and mitigation. Elements required under the risk
management program regulations vary for individual stationary
sources, but generally include a hazard assessment, a prevention
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program, an emergency response program, and a management system.
Streamlining Cal EMA/ OES : As part of the Governor's efforts to
streamline the state's emergency response capabilities, in 2006
he signed AB 38, which combined the Office of Emergency Services
(OES) and the Governor's Office of Homeland Security (OHS) into
a new cabinet-level California Emergency Management Agency (Cal
EMA). The merged agency has the responsibility of overseeing
and coordinating emergency preparedness, response, recovery and
homeland security activities in the state, effective January 1,
2009.
Further streamlining of the Cal ARP Program.:
In January 2009, the administration indicated its intent to move
Cal ARP from Cal EMA to DTSC, for purposes of improving
consistency and efficiency. Cal ARP currently resides within
Cal EMA, and encompasses planning activities related to the
prevention of accidental releases of hazardous substances and
cleanup activities should a spill occur. DTSC generally
regulates hazardous waste management, oversees contaminated
hazardous substance site cleanups, and implements pollution
prevention programs.
On the administration's recommendation to transfer hazardous
material emergency activities to DTSC, the Legislative Analysts
Office commented that, "The proposal appears consistent with
past legislative action to consolidate the implementation of
various hazardous materials management programs previously
administered by multiple state and local entities. This action
has reduced fragmentation in program implementation and improved
program effectiveness. We find that the proposal has merit and
recommend that it be adopted."
REGISTERED SUPPORT / OPPOSITION :
Support
Breast Cancer Fund
California Association of Environmental Health Administrators
(CAEHA)
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Opposition
Western States Petroleum Association (WSPA).
Analysis Prepared by : Shannon McKinney / E.S. & T.M. / (916)
319-3965