BILL ANALYSIS Ó
SB 1306
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Date of Hearing: June 19, 2012
ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS
Bob Wieckowski, Chair
SB 1306 (Blakeslee) - As Amended: May 22, 2012
SENATE VOTE : 27-4
SUBJECT : Water Quality: scientific peer review.
SUMMARY : Requires independent peer review of the scientific
basis for stormwater waste and agricultural waste discharges
standards. Specifically, this bill :
1)Requires an independent peer review the scientific basis for
the following actions by the State Water Resources Control
Board (SWRCB) and Regional Water Quality Control Boards
(RWQCBs):
a) The adoption of general permit application requirements
for stormwater discharges, and;
b) The adoption of conditional waivers of waste discharge
requirements from irrigated lands.
2)Provides that the lack of sufficient fees to cover the cost of
a peer review exempts the peer review requirement in the case
of a general permit application for stormwater discharges or a
conditional waiver of waste discharge requirements.
3)Deems the SWRCB or a RWQCB to have complied with the
provisions of the bill if a scientific peer review has been
done on the scientific basis or scientific portion of an
adopted rule.
EXISTING FEDERAL LAW:
1)Establishes, pursuant to the federal Clean Water Act (CWA),
the National Pollutant Discharge Elimination System (NPDES) to
regulate point source discharges of pollutants into U.S.
waters. An NPDES permit to set specific discharge limits for
point sources discharging pollutants into U.S. waters and to
establish monitoring and reporting requirements as well as
special conditions.
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2)Authorizes individual states to implement the NPDES program,
allowing states to impose more stringent requirements or
expand the scope of its NPDES program to meet State
priorities.
EXISTING STATE LAW :
1)Requires independent peer review of scientific issues related
to regulations proposed by departments, boards and offices of
the California Environmental Protection Agency (Cal-EPA).
2)Under the Porter-Cologne Water Quality Control Act, requires
anyone who discharges waste anywhere in the state, except to a
community sewer system, to:
a) Report the discharge to the RWQCB if the discharge could
affect the waters of the state; and,
b) Obtain waste discharge requirements (i.e., a water
quality permit) from the RWQCB to ensure that the
requirements of the basin water quality control plan are
met, that water quality objectives are achieved, and that
the beneficial uses of water are not impaired by the
discharge.
1)Authorizes RWQCBs to waive certain waste discharge
requirements for specific discharges or specific types of
discharges if the wavier:
a) Is in the public interest; and,
b) Is consistent with any applicable state or regional
water quality control plan.
1)Regulates discharges of pollutants in stormwater and urban
runoff by regulating, through the NPDES, industrial
discharges, discharges through the municipal storm drain
systems and from industrial activity.
FISCAL EFFECT : According to the Senate Appropriations
Committee enactment of this bill would result in on-going costs
of $30,000 to $60,000 from the Waste Discharge Permit Fund
(special fund) for additional peer review. Existing annual fees
are likely sufficient to cover these costs.
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COMMENTS :
1. Need for the bill. According to the author, while
issuance of an individual permit or variance to a specific
individual arguably does not require an external scientific
peer review, the adoption of general permit requirements
that apply across a broad sector arguably do, especially if
the proposed general requirements "address emerging or
controversial issues, have significant cross-media
implications, or establish a significant precedent."
The author argues, "The proposed Updated Agricultural Order
adopted by the Central Coast Regional Water Quality Control
Board on March 15, 2012, clearly qualified as both
controversial and establishing a significant precedent;
yet, the Order did not benefit from an external peer
review. Additionally, the various (commercial, industrial,
municipal) storm water permit discharge requirements have
raised concerns amongst a broad array of stakeholders
including school districts, universities, cities, counties,
port authorities, branches of the military, electric
utilities, natural gas utilities, grocery stores,
restaurants, retail stores, general contractors,
engineering firms, architecture firms, landscape services,
realtors, business property owners, aerospace, biotech,
manufacturers, forestry, trucking, and others."
2. Scientific peer review for Cal-EPA regulations . The
current scientific peer review requirement provided in
Health and Safety Code Section 57004 requires all Cal EPA
organizations to submit for external scientific review the
scientific basis and scientific portion of all proposed
policies, plans and regulations. The peer reviewer's
responsibility is to determine whether the scientific
findings, conclusions, and assumptions are based upon sound
scientific knowledge, methods, and practices.
According to the Cal-EPA<1> There are several
circumstances when work products do not require scientific
peer review requirements. These work products that have
been peer reviewed by a recognized expert or expert body.
Additional review is not required if a new application of
-------------------------
<1> Cal-EPA, "Unified California Environmental Protection Agency
Policy and Guiding Principles For External Scientific Peer
Review", March 13, 1998.
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an adequately peer reviewed work product does not depart
significantly from its scientific approach. These types of
work projects would include standards developed by the
United States Environmental Protection Agency (U.S. EPA),
which Cal/EPA adopts. These U.S.EPA standards are presumed
to have been sufficiently peer reviewed unless additional
peer review is required by law.
3. The adoption of conditional waivers of waste discharge
requirements from irrigated lands . Under the
Porter-Cologne Water Quality Control Act and the federal
Clean Water Act, SWRCB and regional water quality control
boards (RWQCB) are the lead agencies with the authority to
regulate water quality in California. RWQCBs develop
"basin plans" for their hydrologic areas, issue waste
discharge requirements, take enforcement action against
violators, and monitor water quality.
In 1999, the Legislature passed SB 390 (Alpert, Chapter
686, Statutes of 1999), requiring the RWQCBs to review
their existing waivers and to renew them or replace them
with waste discharge requirements (WDR). To comply with SB
390, RWQCBs adopted revised waivers. The most
controversial waivers were those for discharges from
irrigated agriculture. Discharges from agricultural lands
include irrigation return flow, flows from tile drains, and
storm water runoff and can affect water quality by
transporting pollutants, including pesticides, sediment,
nutrients, salts, pathogens, and heavy metals, from
cultivated fields into surface waters. According to SWRCB,
many surface water bodies are impaired because of
pollutants from agricultural sources.
4. Regulation of stormwater discharge . Water runoff from
cities, highways, industrial facilities and construction
sites can carry pollutants that harm water quality and
impair the beneficial uses of California waters. The SWRCB
and the US EPA regulate the runoff and treatment of storm
water in industrial, municipal and residential areas of
California.
Most stormwater discharges are considered point sources and
require coverage by an NPDES permit. The CWA, as amended,
relies primarily on a different approach for regulating
storm water discharges than for traditional point sources.
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5. State Implementation of the Federal Clean Water Act
(CWA) . The scientific peer review proposed by SB 1306 is
directed exclusively at SWRCB and RWQCB actions to
implement the provisions of the CWA. In those cases where
the federal law established the standards or in those cases
where the U.S. EPA has adopted a regulation, standard,
guidance, or permit terms, and then the new state managed
scientific peer review would not affect the outcome of
those federal standards, thereby raising a question about
the usefulness of the state scientific peer review.
6. SWRCB and RWQCB implementation of a basin plan .
Discharge waivers or permits are adopted in accordance with
the broader basin plan or a basin plan amendment. The
general permit that is designed to address water quality
problems is based on the scientific data used in the basin
plan amendment and is subject to scientific peer review
under excising law. The provisions of SB 1306 would
continue the basin plan scientific peer review and thereby
make additional peer review under either the stormwater
permits or agricultural waiver duplicative and ultimately
exempt from the new requirements of AB 1306.
7. Support arguments : A coalition of building,
manufacturing, chemical and food processors and other
supporters of this bill assert that "SB 1306 which seeks to
clarify that the Sate Waste Board conducts an external peer
review for proposed storm water discharge permit
requirements and that the regional boards conduct an
external peer review for proposed Agricultural Orders. We
believe that peer review is an important and effective
mechanism for evaluating the accuracy and validity of
technical data, observations, and interpretation, and
scientific aspects of regulatory decisions and
initiatives."
According to the Western Growers, "the clear need for SB
1306 was evident in the recent adoption of the Agricultural
Order by the Central Coast RWQCB. This order was extremely
controversial as well as establishing a significant
precedent, yet it will not benefit from an external peer
review as required by Section 57004 of the Health and
Safety Code."
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8. Opposition arguments : Opponents of the bill, including
the California Coastkeeper Alliance, assert that the "Water
board programs have historically been exempt from this
process because of the extensive review already built into
the programs. The development of discharge requirements is
the final step in a long process that includes the
development of water quality objectives, assignment of load
allocations, environmental review, and, in the case of
agricultural requirements, economic analysis. The public
process and scientific review involved in developing
general permits for stormwater discharges and irrigated
agriculture waivers is extensive. For example, the Central
Coast Regional Board's Conditional Waiver of Waste
Discharge Requirements for Discharges from Irrigated Lands
(Order No. R3-2012-0011) provided over four years of
stakeholder expertise to develop the science behind the
Waiver. The process included a 69-page scientific report
(with enough references to independent scientific reports
to fill an additional 31-pages), over 60 meetings with
experts and stakeholders, an agricultural advisory panel,
and a 62-page report on cost considerations. California's
Water Boards provide similar scientific review for each and
every general permit and agricultural waiver."
"It is not clear what purpose is served by requiring
additional scientific review of just these particular water
board functions, other than to delay program
implementation. Delay in program implementation of general
permits and agricultural waivers are already extensive.
The Statewide Industrial Storm Water Permit has not been
updated since 1997. The Cal Trans Statewide Storm Water
Permit was adopted in 1997 (last updated in 1999) currently
ten years overdue. The State Water Board often cites lack
of resources as the cause for these extensive delays."
Related current legislation:
AB 2117 (Gorell), requires development of a stormwater
regulatory plan by the SWRDB including the examination of cost
effective alternative regulations. Status: held in the
Assembly Appropriations Committee.
SB 964 (Wright), adds SWRCB or RWQCB general permits or waivers
issued under state law, or federally authorized permits pursuant
to Section 402(p) of the federal Clean Water Act, to the
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requirements of the California Administrative Practice Act.
Status: held in the Senate Environmental Quality Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
California Building Industry Association
California Chamber of Commerce
California League of Food Processors
California Manufacturers & Technology Association
California Metals Coalition
California Precast Concrete Association
California State Association of Counties
Chemical Industry Council of California
City of Salinas
League of California Cities
Lumber Association of California & Nevada
National Federation of Independent Business
Regional Council of Rural Counties
Salinas Mayor Dennis Donohue
Western Growers
Western Wood Preservers' Institute
Wine Institute
Opposition
California Coastkeeper Alliance
Clean Water Action
Environment California
Sierra Club California
Seventh Generation Advisors
Analysis Prepared by : Bob Fredenburg / E.S. & T.M. / (916)
319-3965