BILL ANALYSIS Ó
AB 276
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Date of Hearing: March 24, 2015
ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS
Luis Alejo, Chair
AB 276
(Committee on Environmental Safety and Toxic Materials) - As
Amended March 17, 2015
SUBJECT: Department of Toxic Substances Control: response
actions: cleanup ability information
SUMMARY: Authorizes the California Department of Toxic
Substances Control (DTSC) to request financial information from
specifies entities. Specifically, this bill:
1)Requires any person that is managing or has managed hazardous
waste, including those that have applied for a permit, to
provide information to DTSC regarding the ability of those
persons to pay for or perform a cleanup;
2)Authorizes DTSC to issue an order directing compliance with a
request for information if a person intentionally or
negligently fails to provide requested information;
3)Authorizes DTSC to disclose the information under certain
circumstances to authorized representatives, contractors, or
government agencies, including the United States Environmental
Protection Agency (US EPA);
4)Requires any person providing the specified information to
DTSC to identify all of the information that is considered a
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trade secret and imposes penalties for failure to comply with
the measures protecting information;
5)Allows DTSC to request information related to the ability of a
person to pay for or perform a cleanup when there is a
reasonable basis to believe there has been or may be a release
or threatened release of a hazardous substance;
6)Authorizes DTSC to require a person who has or may have
information or documents relevant to the ability of a
responsible party or liable person to pay for or perform a
cleanup, consistent with Section 104 of the Comprehensive
Environmental Response, Compensation, and Liability Act
(CERCLA);
7)Authorizes DTSC to impose penalties if a person intentionally
or negligently fails to furnish the required information or
makes false statements or representations;
8)Finds and declares that the need to protect the
competitiveness of entities paying for or performing cleanups
outweighs the interest in public disclosure of financial
information; and
9)Provides that there will be no reimbursement by the state for
any costs incurred by a local agency.
EXISTING LAW:
1)Establishes DTSC to protect California against threats to
public health and degradation to the environment and to
restore properties degraded by past environmental
contamination, and requires DTSC to regulate management of
hazardous wastes, clean up existing contamination, and prevent
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pollution by working with businesses to reduce their hazardous
waste and use of toxic materials. (Health & Safety Code (H&S)
§ 25360.1, et seq.)
2)Authorizes DTSC to incur direct cleanup costs and oversight
costs (response costs) in remediating contaminated properties.
(H&S § 25360, et seq.)
3)Authorizes DTSC to recover those costs from responsible
parties. (H&S § 25360)
4)Permits DTSC or any local officer or agency authorized to
enforce the Hazardous Waste Control Law to require specified
parties to furnish and transmit certain information relating
to hazardous substances, hazardous wastes, and hazardous
materials. (H&S § 25185.6)
5)Pursuant to the Carpenter-Presley-Tanner Hazardous Substance
Account Act, authorizes DTSC to require any potentially
responsible party, or any person who has, or may have acquired
certain information relating to hazardous substances and
hazardous substance release sites in the course of a
commercial, ownership, or contractual relationship with a
potentially responsible party to furnish that information.
(H&S § 25358.1)
6)Authorizes the US EPA to request information relating to the
ability to pay for or to perform a cleanup. (42 U.S.C. §
9604)
FISCAL EFFECT: Unknown.
COMMENTS:
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Need for the bill : Under existing state law, DTSC may ask
certain parties for information related to hazardous waste, but
cannot request information about the party's finances that could
demonstrate the party's ability to pay for or perform cleanup.
This lack of authority is inconsistent with federal law, which
permits the US EPA to request financial information from
potential responsible parties.
Having the authority to compel parties to submit pertinent
financial information would allow DTSC to identify those
potentially responsible parties who genuinely lack the ability
to pay for cleanup and no longer require DTSC to first sue these
parties to obtain the relevant financial information. This
authority could expedite the cost recovery process by obviating
the need for costly litigation to obtain the necessary financial
information, thus increasing DTSC's ability to recover costs
effectively.
State Audit Report : On August 7, 2014, the Bureau of State
Audits (BSA) released a report on DTSC's cost recovery. The BSA
found that long-standing shortcomings with DTSC's recovery of
costs have resulted in millions of dollars in unbilled and
billed but uncollected cleanup costs dating back to 1987.
The BSA found that as of March 2014, DTSC's spreadsheet for
tracking projects with outstanding costs shows that it has 1,661
projects totaling almost $194 million in outstanding costs, of
which nearly $142 million was unbilled and almost $52 million
was billed but uncollected. These outstanding costs were
incurred between July 1987 and December 2013.
According to the State Auditor : "[DTSC] is also limited in its
ability to recover costs effectively because it lacks the
authority to require a potentially responsible party to provide
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information related to the financial ability to pay cleanup
costs. Unlike the U.S. Environmental Protection Agency, [DTSC]
does not have the authority to require that potentially
responsible parties provide financial information when searching
for responsible parties. Instead, [DTSC] can only request
potentially responsible parties to provide financial information
voluntarily. Having the authority to compel parties to submit
pertinent financial information would allow [DTSC] to identify
those potentially responsible parties who genuinely lack the
ability to pay for cleanup and no longer require [DTSC] to first
sue these parties to obtain financial information... The
ability to require this type of information could better inform
the [DTSC's] decision making about whether to file cost recovery
actions because it could better differentiate between parties
capable of paying for cleanup costs, thus increasing the
department's ability to recover costs effectively."
What information does the U.S. EPA ask for? : Under CERCLA, the
US EPA has authority to request financial information from
potentially responsible parties. The US EPA typically uses a
tiered approach to invoking this authority; first, the US EPA
will ask a party if it has the ability to pay or perform a
cleanup. If the party does have that ability, then the US EPA
typically does not ask for further information. If the party
indicates it cannot pay or perform a cleanup, then the US EPA
will request information supporting that claim, including, but
not limited to, bank statements, financial statements, proposed
budgets, market appraisals, etc.
As this bill proposes to model this authority for DTSC verbatim
after the US EPA's existing authority under CERCLA, any party
affected by this legislation is already or can be covered under
existing federal law.
REGISTERED SUPPORT / OPPOSITION:
AB 276
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Support
Natural Resources Defense Council
Opposition
None on file.
Analysis Prepared by:Paige Brokaw / E.S. & T.M. / (916) 319-3965