BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 408
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          Date of Hearing:   April 26, 2011

           ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS
                                Bob Wieckowski, Chair
                  AB 408 (Wieckowski) - As Amended:  April 12, 2011
           
          SUBJECT  :   Omnibus Hazardous Materials and Waste.

          SUMMARY  :   Makes changes to hazardous material reporting, 
          emergency response, hazardous waste manifest requirements and 
          water code violations.   Specifically,  this bill  :

          1)Enables local government cost recovery for emergency response 
            to hazardous substances spills under a wider range of 
            circumstances.

             a)   Provides that those expenses of an emergency response 
               necessary to protect the public from a real and imminent 
               threat to health and safety by a public agency to confine, 
               prevent, or mitigate the release, escape, or burning of 
               hazardous substances, as defined, are a charge against any 
               person whose negligence causes the incident, if either of 
               the following occurs:

               i)     Evacuation from the building, structure, property, 
                 or public right-of-way where the incident originates is 
                 necessary to prevent loss of life or injury; or

               ii)    The incident results in the spread of hazardous 
                 substances or fire posing a real and imminent threat to 
                 public health and safety beyond the building, structure, 
                 property, or public right-of-way where the incident 
                 originates.

             b)   Expands the definition of "hazardous substance" for the 
               purposes of local government cost recovery.

          2)Allows for the consolidating manifesting procedures for 
            haulers of hazardous waste to be used for the receipt, by a 
            transporter, of one shipment of used oil from a generator 
            whose identification number has been suspended, if certain 
            requirements are met.  Sunsets this authority on January 1, 
            2014.

          3)Allows the local Certified Unified Program Agency (CUPA) to 








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            exempt reporting for hazardous material quantities less than 
            the federal Emergency Planning and Community Right-to-Know Act 
            (EPCRA) threshold levels for low hazard materials.

          4)Expands the compliance project "in lieu" provisions from the 
            mandatory minimum penalty violations provisions of the 
            Porter-Cologne Water Quality Control Act for publicly owned 
            treatment works (POTWs) serving a population of 20,000 or 
            fewer persons.

          5)Provides that this is an urgency measure.

           EXISTING LAW  :

          1)Provides that those expenses of an emergency response 
            necessary to protect the public from a real and imminent 
            threat to health and safety by a public agency to confine, 
            prevent, or mitigate the release, escape, or burning of 
            hazardous substances, as defined, are a charge against any 
            person whose negligence causes the incident, if either of the 
            following occurs: 

             a)   Evacuation beyond the property where the incident 
               originates is necessary to prevent loss of life or injury; 
               or

             b)   The incident results in the spread of hazardous 
               substances or fire posing a real and imminent threat to 
               public health and safety beyond the property of origin.  

          2)Requires all generators, transporters and facility operators 
            that handle hazardous wastes to obtain an identification 
            number from the United States Environmental Protection Agency 
            (US EPA) or Department of Toxic Substances Control (DTSC) 
            depending on the amount and types of hazardous waste they 
            handle and pay an annual fee. 

             a)   Requires generators, transporters and facility operators 
               to complete a manifest that tracks the shipment of 
               hazardous waste from generation to disposal.  

             b)   Authorizes certain California hazardous wastes, as 
               defined, to be transported using a consolidated manifest.

          3)Requires businesses to have response plans for releases of 








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            specified hazardous materials and provide an annual inventory 
            of hazardous materials handled to the CUPAs.  Requires any 
            person who handles hazardous material to annually submit an 
            inventory of hazardous materials to the CUPA.

          4)Under the Porter-Cologne Water Quality Control Act any person 
            who violates prescribed provisions of the Act is subject to 
            civil liability, and sets requirements for determining the 
            amount of any liability.

            Authorizes the State Water Resources Control Board (SWRCB) or 
            a regional water quality control board (RWQCB), in lieu of 
            assessing all or a portion of the mandatory minimum penalties, 
            to require a POTW serving a small community of 10,000 or less 
            to spend an equivalent amount towards the completion of a 
            compliance project proposed by the POTW.

           FISCAL EFFECT  :   Not Known

           COMMENTS  :

           1)Need for this bill:   According to the author, "AB 408 provides 
            a wide-ranging series of regulatory reforms addressing the 
            problems of business, local governments, and emergency 
            personnel in complying with California hazardous material and 
            hazardous waste laws.  In many cases we find conflicting 
            standards between State and federal agencies or the laws have 
            failed to keep up with changing industrial practices.  This 
            bill brings together primarily technical elements of our 
            statutes that need to be easier to understand, simpler for 
            business and local governments to comply with but done in a 
            way that increases the actual protection on the public health 
            and the environment."

           2)Local emergency response  .  Local government emergency response 
            agencies face toxic chemical spills and accidents every day.  
            In 2010 there were over 3100 reported chemicals spills 
            reported in California.  The cost of responding to many of 
            these incidents falls on local taxpayers.  Toxic spills may 
            originate in a public right of way and results in highway 
            closure or results in the spread of a hazardous substance 
            beyond the public right of way.

            Under existing law, cost recovery for emergency response is 
            available only if the incident either results in (1) an 








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            evacuation "beyond the property where the incident originates" 
            or (2) the spread of hazardous substances "beyond the property 
            of origin."  (H&S Code §13009.6(a))  In both cases, the 
            operative word is "beyond."  However, if the incident 
            originates on a public right-of-way (e.g. a tanker truck 
            spills hazardous materials on a public highway), existing law 
            arguably does not allow cost recovery because evacuation of 
            the affected section of the highway does not constitute 
            evacuation "beyond the property where the incident 
            originates", and a spill on the highway may not necessarily 
            spread "beyond" the highway.  Similarly, if the incident 
            originates in a building or structure on a large property, 
            requiring emergency response, but the evacuation or spread of 
            hazardous materials remains within the confines of the large 
            property, it would appear that local cost recovery for the 
            emergency response is precluded because neither the evacuation 
            nor spread occurred strictly "beyond the property of origin."

           3)Consolidated manifest for hazardous waste collection  .  This 
            bill addresses the issues raised by the inability of a used 
            oil transporter to pick up a load of used oil from generators 
            who did not return their annual ID number verification and 
            related forms and fees.  Often these are small generators who 
            infrequently generate used oil and have not acknowledged the 
            need to keep their ID number up to date.  This bill allows for 
            a one-time pick up with both the generator and the transporter 
            reporting the pick up to DTSC.

           4)Business Plans -- Emergency Response and Annual Inventories  :  
            Chapter 6.95,  § 25503, of the California Health & Safety Code 
            requires any business that handles/stores a hazardous material 
            or a mixture containing a hazardous material, to establish and 
            implement a Business Plan for Emergency Response to a release 
            or threatened release of a hazardous material, if handled in 
            the following "reportable" quantities:

             a)   Equal to or greater than 500 pounds, 55 gallons, or 200 
               cubic feet of gas (gas calculated at standard temperature 
               and pressure); or
             b)   Equal to or greater than the applicable federal 
               threshold planning quantity (TPQ) for an extremely 
               hazardous substance; or
             c)   Radioactive materials that are handled in quantities for 
               which an emergency plan required under federal law.









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            A central purpose of the existing law requiring businesses to 
            devise a plan for managing hazardous materials and reporting 
            on this annually is to ensure that emergency response 
            personnel, e.g., fire fighters, will have advance knowledge of 
            hazards they may be confronting, such as in response to a 
            fire.

            Businesses currently must disclose very low hazard materials 
            such as soaps, food constituents, cement, inert gases and many 
            other similar materials when present at or exceeding 
            quantities of 55 gallons, 500 lbs. or 200 cubic feet.

           5)SWRCB Water Quality Improvement Initiative:  Mandatory minimum 
            penalties for water code violations:
           
            The SWRCB adopted the Water Quality Improvement Initiative in 
            2008.  This initiative included series of recommendations to 
            improve enforcement of water quality laws in California.  
            Included in this report were the recommendations contained in 
            AB 408.  The SWRCB report recommended the following proposal 
            to help enhance environmental enforcement:

               Modify Mandatory Minimum Penalties (MMPs) for Small 
               Disadvantaged Communities' expanding the number of small 
               disadvantaged communities that are eligible to complete a 
               compliance project instead of paying all or a portion of 
               the MMP by increasing the population criteria from a 
               maximum of 10,000 people to a maximum of 20,000 people.

           Related legislation:
           
          AB 291(Wieckowski) - Business Plan Reporting Thresholds - Allows 
          local CUPAs to reduce the reporting of hazardous materials to 
          the federal EPCRA threshold.  Pending in the Assembly 
          Environmental Safety and Toxic Materials Committee.

          AB 640 (Logue) - Water Code Mandatory Minimum Penalties.  
          Increases the size of public agencies that complete a compliance 
          project instead of paying all or a portion of the MMP.  Pending 
          in the Assembly Environmental Safety and Toxic Materials 
          Committee.

          AB 681 (Wieckowski) - Local Emergency Response Cost Recovery - 
          Increases ability of local agencies to recover response costs 
          from hazardous material releases.  Pending in the Senate 








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          Environmental Quality Committee.

           Prior Legislation:

           AB 25 (ESTM Committee), 2010.  This bill allowed for the 
          consolidating manifesting procedures concerning haulers of 
          hazardous waste to be used for the receipt, by a transporter, of 
          one shipment of used oil from a generator whose identification 
          number has been suspended, if certain requirements are met.  
          Vetoed.

          AB 914 (Logue),  2010.  This bill required the financing plan 
          proposed by a publicly owned treatment works to include the 
          completion of a compliance project within five years.  Vetoed.

          AB 2388 (Miller), 2010.  This bill requires the Department of 
          Toxic Substances Control (DTSC), by July 1, 2011, to provide a 
          method for the immediate reactivation, by means of a wireless 
          communication device, of a suspended identification number of a 
          hazardous waste generator. Held in the Assembly Appropriations 
          Committee.

          SB 1284 (Ducheny), Chapter 645, Statutes of 2010.  This bill 
          exempted certain Water Code violations of waste discharge 
          reporting requirements from existing mandatory minimum 
          penalties.

           REGISTERED SUPPORT / OPPOSITION  :

           Support
           
          California Association of Environmental Health Administrators
          Independent Waste Oil Collectors and Transporters Association

           Opposition
           
          None on file.
           

          Analysis Prepared by  :    Bob Fredenburg / E.S. & T.M. / (916) 
          319-3965 












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