BILL ANALYSIS Ó AB 408 Page 1 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 AB 408 Page 2 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 AB 408 Page 3 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 AB 408 Page 4 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. AB 408 Page 5 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 AB 408 Page 6 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 AB 408 Page 7