BILL ANALYSIS Ó
AB 276
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB
276 (Committee on Environmental Safety and Toxic Materials)
As Amended August 31, 2015
Majority vote
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|ASSEMBLY: | 78-0 |(June 3, 2015) |SENATE: |38-0 |(September 1, |
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Original Committee Reference: E.S. & T.M.
SUMMARY: Authorizes the California Department of Toxic
Substances Control (DTSC) to request financial information from
specified 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 require a person who has or may have
information relevant to the ability of a person to pay for or
perform a cleanup to provide that information.
3)Requires DTSC to have a reasonable basis to believe that there
has been or may be a release or threatened release of a
hazardous substance before asking a person for information
about the ability to pay for or perform a cleanup.
AB 276
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4)Authorizes DTSC to issue an order directing compliance with a
request for information if a person intentionally or
negligently fails to provide requested information.
5)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).
6)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.
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)Provides that there will be no reimbursement by the state for
any costs incurred by a local agency.
The Senate amendments:
1)Restore language requiring DTSC to have a reasonable basis to
believe that there has been or may be a release or threatened
release of a hazardous substance before asking a potentially
responsible party for information about the ability to pay for
or perform a cleanup.
2)Make a technical amendment to clarify DTSC's intent for
requiring information about the ability to pay for or perform
a cleanup.
AB 276
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3)Restore a reference to the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA).
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
pollution by working with businesses to reduce their hazardous
waste and use of toxic materials. (Health and Safety Code
(H&S) Section 25360.1, et seq.)
2)Authorizes DTSC to incur direct cleanup costs and oversight
costs (response costs) in remediating contaminated properties.
(H&S Section 25360, et seq.)
3)Authorizes DTSC to recover those costs from responsible
parties. (H&S Section 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 Section 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 Section 25358.1)
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6)Authorizes the US EPA to request information relating to the
ability to pay for or to perform a cleanup. (42 United States
Code Section 9604)
FISCAL EFFECT: According to the Senate Appropriations
Committee, 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.
COMMENTS:
Need for this bill: Under existing state law, DTSC may ask
certain parties for information related to hazardous waste, but
cannot request information about a 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 pursuant to CERCLA.
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.
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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
actions because it could better differentiate between parties
capable of paying for cleanup costs, thus increasing the
department's ability to recover costs effectively."
Analysis Prepared by:
Paige Brokaw / E.S. & T.M. / (916) 319-3965 FN:
0001828