BILL ANALYSIS Ó
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
AB 276 (Committee on Environmental Safety and Toxic Materials) -
Department of Toxic Substances Control: response actions:
cleanup ability information.
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|Version: June 11, 2015 |Policy Vote: E.Q. 7 - 0 |
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|Urgency: No |Mandate: Yes (see staff note) |
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|Hearing Date: June 29, 2015 |Consultant: Marie Liu |
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This bill meets the criteria for referral to the Suspense File.
Bill
Summary: AB 276 would allow the Department of Toxic Substances
Control (DTSC), or an authorized agency, to require a person to
furnish information regarding a person's ability to pay for, or
to perform, a response action.
Fiscal
Impact: Unknown costs, potentially in the range of $200,000
annually, to the Toxic Substances Control Account (General
Fund), for workload to request, collect, and process financial
information from responsible parties.
Background: The state's existing hazardous waste control law directs DTSC
to protect Californians against threats to public health and
degradation to the environment by cleaning up and restoring
hazardous waste contamination. DTSC, or an agency authorized to
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enforce the state's hazardous waste law, may to incur cleanup
costs in remediating contaminated properties. These costs can be
covered from responsible parties.
In order enforce the state's hazardous waste law, DTSC or an
authorized agency may require the following persons to provide
information related to hazardous substances, hazardous wastes,
or hazardous materials:
Any person who owns or operates any hazardous waste facility;
Any person who generates, stores, treats, transports, disposes
of, or otherwise handles hazardous waste;
Any person who has generated, stored, treated, transported,
disposed of, or otherwise handled hazardous waste;
Any person who arranges, or has arranged, to store, treat,
transport, dispose of, or otherwise handle hazardous waste;
and
Any person who applies, or has applied, for any permit,
registration, or certification under the state's hazardous
waste law.
In August 2014, the State Auditor released a report on DTSC's
cost recovery that found long-standing shortcomings with DTSC's
cost recovery that have resulted in millions of dollars in
unbilled and bills but uncollected cleanup costs dating back to
1987. 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 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
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actions because it could better differentiate between parties
capable of paying for cleanup costs, thus increasing the
department's ability to recover costs effectively."
Proposed Law:
This bill would extend DTSC's ability to compel information
from specified persons to include information regarding that
person's ability to pay for, or to perform, a response action.
DTSC would also be authorized to require persons who have
information about another person's activities related to
hazardous substances or their ability to pay to furnish that
information.
This bill would also establish restrictions regarding the
disclosure of the information received by DTSC, including trade
secrets. This bill would establish a fine of up to $5,000 for a
person who knowingly and willfully disseminates protected
information. This bill would explicitly allow for the sharing of
information with the United States Environmental Protection
Agency.
Related
Legislation: The Committee on Environmental Safety and Toxic
Materials has introduced four bills to address shortcomings
found in the State Auditor's report. The other bills are:
AB 273 which would modify the penalties due on past-due
monetary obligations;
AB 274 which would allow DTSC not to expend resource to pursue
an uncollectible amount, as defined; and
AB 275 which would allow DTSC to collect for operations and
maintenance costs and would remove the requirement that the
state to pay for any unallocated costs.
Staff
Comments: This bill would give DTSC new authority that it is
likely to exercise. As such, this bill could create additional
workload and costs. DTSC estimates that it would need an
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additional two PYs at a cost of approximately $200,000.
However, it is also very conceivable that this bill will result
in workload savings as the bill would make it easier to gather
information about a responsible party's ability to pay. Under
existing law, DTSC must first sue a party in order to get
financial information. Such legal action would no longer be
necessary. The committee did not receive information about
DTSC's workload assumptions to support its estimate of $200,000
annually. Without these assumptions, staff believes it is not
clear whether the additional authority provided in this bill
will likely lead to a workload increase or decrease for DTSC.
That said, staff notes that any increases in costs would likely
be more than offset by increased cost recovery.
Staff notes that DTSC is currently undergoing several large
procedural changes in regards to cleanup actions and cost
recovery. These changes add further uncertainty to the actual
fiscal impact of the new authorizations proposed by this bill.
Staff notes that this bill contains language that suggests that
the ability to recovery cost would determine DTSC's response
actions. However, existing law requires that response be based
on the need to protect public health and the environment. Staff
recommends that this language be amended to avoid the appearance
of conflict with the existing law's intent.
This bill constitutes a state mandate as it creates a new crime.
However, under the California Constitution, costs associated
with this mandate are not reimbursable.
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