BILL ANALYSIS Ó
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Wieckowski, Chair
2015 - 2016 Regular
Bill No: AB 276
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|Author: |Committee on Environmental Safety and Toxic |
| |Materials |
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|Version: |6/11/2015 |Hearing |6/17/2015 |
| | |Date: | |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Rachel Machi Wagoner |
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SUBJECT: Department of Toxic Substances Control: response
actions: cleanup ability information
ANALYSIS:
Existing federal law:
Under the Comprehensive Environmental Response, Compensation and
Liability Act (CERCLA) establishes prohibitions and requirements
concerning closed and abandoned hazardous waste sites; provides
for liability of persons responsible for releases of hazardous
waste at these sites; and authorizes the United States
Environmental Protection Agency (US EPA) to request information
relating to the ability to pay for or to perform a cleanup.
Existing state law:
1) Establishes the Department of Toxic Substances Control (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 pollution by working with
businesses to reduce their hazardous waste and use of toxic
materials.
2) Authorizes DTSC to incur direct cleanup costs and oversight
costs (response costs) in remediating contaminated
properties.
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3) Authorizes DTSC to recover those costs from responsible
parties.
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.
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.
6) Authorizes the US EPA to request information relating to the
ability to pay for or to perform a cleanup.
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
trade secret and imposes penalties for failure to comply with
the measures protecting information;
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5) Authorizes DTSC to require a person who has or may have
information relevant to the ability of a person to pay for or
perform a cleanup to furnish and transmit that information to
DTSC;
6) Authorizes DTSC to impose penalties if a person intentionally
or negligently fails to furnish the required information or
makes false statements or representations; and
7) Provides that there will be no reimbursement by the state for
any costs incurred by a local agency.
Background
1) 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 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
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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."
2) What information does US EPA request? Under CERCLA, US EPA
has authority to request financial information from
potentially responsible parties. US EPA typically uses a
tiered approach to invoking this authority; first, 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 US EPA
typically does not ask for further information. If the party
indicates it cannot pay or perform a cleanup, then 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.
Comments
1) Purpose of 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
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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.
Related/Prior Legislation In addition to this bill, the
Committee on Environmental Safety and Toxic Materials has
introduced the following bills to address the shortcomings found
in the BSA report:
1) AB 273 (ESTM) modifies provisions relating to DTSC's
authority to require corrective actions under hazardous
waste control laws.
2) AB 274 (ESTM) allows DTSC to not expend resources to
pursue an uncollectible account, as defined.
3) AB 275 (ESTM) revises DTSC's statute of limitation for
cost recovery.
SOURCE: Committee on Environmental Safety and Toxic
Materials
SUPPORT:
California League of Conservation Voters
Environment California
Environmental Working Group
Natural Resources Defense Council
OPPOSITION:
None received
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