BILL ANALYSIS Ó AB 1071 Page 1 Date of Hearing: April 27, 2015 ASSEMBLY COMMITTEE ON NATURAL RESOURCES Das Williams, Chair AB 1071 (Atkins) - As Introduced February 26, 2015 SUBJECT: Supplemental environmental projects SUMMARY: Requires each board, department, and office within the California Environmental Protection Agency (CalEPA) to establish a policy on supplemental environmental projects (SEPs) that benefits environmental justice communities. EXISTING LAW: 1)Defines "environmental justice" to mean the fair treatment of people of all races, cultures, and incomes with respect to the development, adoption, implementation, and enforcement of environmental laws, regulations, and policies. 2)Defines "environmental justice community" as a community identified by CalEPA based on geographic, socioeconomic, public health, and environmental hazard criteria, including: a) Areas disproportionately affected by environmental pollution and other hazards that can lead to negative public health effects, exposure, or environmental AB 1071 Page 2 degradation; and, b) Areas with concentrations of people that are of low income, high unemployment, low levels of homeownership, high rent burden, sensitive populations, or low levels of educational attainment. 3)Requires CalEPA to: a) Conduct its programs, policies, and activities and enforce all health and environmental statutes within its jurisdiction in a manner that ensures the fair treatment of people of all races, cultures, and income levels, including minority and low-income populations. b) Convene a Working Group on Environmental Justice (Working Group) comprised of the Secretary of CalEPA, the Chairs of the Air Resources Board (ARB), the California Integrated Waste Management Board (now CalRecycle), the State Water Resources Control Board (SWRCB), the Director of the Department of Toxic Substances Control (DTSC), the Director of the Department of Pesticide Regulation (DPR), the Director of the Office of Environmental Health Hazard Assessment (OEHHA), and the Director of the Office of Planning and Research (OPR). Requires the Working Group to examine existing data and studies on environmental justice and recommending policies for implementation by CalEPA; recommend criteria to the Secretary of CalEPA for identifying and addressing any gaps in existing programs, policies, or activities that may impede the achievement of environmental justice; and, hold public meetings to receive and respond to public comments prior to the finalization of the recommendations. c) Requires each board, department, and office within CalEPA to review its programs, policies, and activities and identify and address any gaps in its existing programs, AB 1071 Page 3 policies, or activities that may impede the achievement of environmental justice. 4)Names OPR as the coordinating agency in state government for environmental justice programs. THIS BILL: 1)Defines SEP as an environmentally beneficial project that a person subject to an enforcement action voluntarily agrees to undertake in settlement of the action and to offset some of a civil penalty. 2)Requires ARB, CalRecycle, DTSC, DPR, and OEHHA to establish policies on SEPs that benefit environmental justice communities. The policies shall include all of the following: a) A public process to solicit potential supplemental environmental projects from environmental justice communities. b) Allow a SEP to comprise up to 50% of an enforcement action brought by a CalEPA board, department, or office. c) An annual list of SEPs that may be selected to settle an enforcement action. 3)Requires CalEPA to consolidate the list of SEPs and post the list on its website. AB 1071 Page 4 FISCAL EFFECT: Unknown COMMENTS: 1)Author's statement. Many communities across California are located in areas disproportionately subjected to multiple sources of pollution. As a result, these communities are more vulnerable to and impacted by the harmful effects of pollution than others. These environmentally impacted communities, also known as environmental justice communities, need resources to appropriately address environmental health impacts and to implement community led solutions. Unfortunately, there is no strong mechanism to ensure communities disproportionally impacted receive any improvements after environmental damage has occurred. Furthermore, when an environmental violation occurs, there is no mechanism to ensure that the communities who are directly impacted by the violation are able to receive any benefits. One way that environmental justice communities might see direct environmental or public health benefits in their neighborhoods is through the creation of an Environmental Justice Supplemental Environmental Projects policy? AB 1071 will ensure that all CalEPA boards, departments, and offices establish a SEP policy specifically for environmental justice communities. 2)Environmental justice. According to the Office of Environmental Health Hazard Assessment (OEHHA), approximately 8 million Californians (21%) live in zip codes that are considered "highly impacted" by environmental, public health, and socioeconomic stressors. Nearly half of all Californians live within six miles of a AB 1071 Page 5 facility that is a significant greenhouse gas emitter (46%), and they are disproportionately people of color (62 %). Throughout California, people of color face a 50% higher risk of cancer from ambient concentrations of air pollutants listed under the Clean Air Act. These impacts are felt by all Californians. ARB estimates that air pollution exposure accounts for 19,000 premature deaths, 280,000 cases of asthma, and 1.9 million lost work days every year. In 2000, legislation [SB 89 (Escutia), Chapter 728] required CalEPA to convene the Environmental Justice Working Group and develop an agency-wide environmental justice strategy. In 2001, follow up legislation [SB 828 (Alarcon), Chapter 765] established a timeline for these requirements and required CalEPA to update its report to the Legislature every three years. In October of 2004, CalEPA released its Environmental Justice Action Plan, but did not complete the required updates for a decade. SB 535 (DeLeon), Chapter 850, Statutes of 2012 requires the Cap and Trade Proceeds Investment Plan to direct a minimum of 25% of the available moneys in the fund to projects that provide benefits to identified disadvantaged communities; and, a minimum of 10% of the available moneys in the fund to projects located within identified disadvantaged communities. SB 535 also required CalEPA to identify disadvantaged communities (i.e., environmental justice communities). In order to accurately identify environmental justice communities, OEHHA, on behalf of CalEPA, created the California Communities Environmental Health Screening Tool (CalEnviroScreen). CalEnviroScreen is a screening methodology that can be used to help identify California communities that are disproportionately burdened by multiple sources of pollution. AB 1071 Page 6 In February of 2014, CalEPA issued an Environmental Justice Program Update, which included four main areas for future actions: 1) increase efforts to eliminate discrimination on the basis of race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color, genetic information, or disability in any program or activity conducted or funded by the state; 2) develop guidance to promote a sound legal framework for CalEPA to advance environmental justice goals and objectives; 3) lead an agency-wide working group dedicated to increase compliance with environmental laws in communities with relatively higher environmental burdens; and, 4) add additional indicators to CalEnviroScreen. 3)Supplemental environmental projects. SEPs are environmentally beneficial projects that a violator agrees to undertake as part of a settlement for an enforcement action, but which the violator is not otherwise legally required to perform. In 2003, CalEPA released guidelines for the use of SEPs for its boards, departments, and offices. The guidelines specify that an SEP must improve, protect, or reduce risks to public health and the environment at large. The enforcing agency must have the opportunity to help shape the scope of the project before it is implemented and the project must not be commenced until the enforcing agency has identified a violation. Finally, the SEP must not be required by a federal, state, or local law or regulation. CalEPA's SEP guidelines suggest limiting the SEP to 25% of the total enforcement action. Within CalEPA, ARB, DTSC, and SWRCB have adopted SEP policies. ARB and DTSC's policies are consistent with CalEPA's guidelines and allow SEPs up to 25% of the amount of the enforcement action. SWRCB, consistent with authority granted by SB 1733 (Aanestad), Chapter 404, Statutes of 2006, allow SEPs up to 50% of the amount of the penalty. CalEPA's 2012 Environmental Compliance and Enforcement Report provides information on the use of SEPs in California. For AB 1071 Page 7 hazardous waste law violations, three cases totaling over $33.9 million, of which $5.5 million was used for SEPs. ARB assessed just under $16.1 million in penalties, and $525,000 was used for SEPs. In the report, SWRCB provided aggregated data for "backlogged violations," which showed total penalties of over $25 million and $2.5 million for SEPs. This bill would require CalRecycle, OEHHA, and DPR to adopt SEP policies directed toward environmental justice communities and specify that SEPs can account for up to 50% of an enforcement action. REGISTERED SUPPORT / OPPOSITION: Support Asian Pacific Environmental Network California Environmental Justice Alliance California Pan-Ethnic Health Network (CPEHN) Center for Community Action and Environmental Justice Center on Race, Poverty and the Environment Central California Environmental Justice Network City Heights Community Development Corporation AB 1071 Page 8 Clean Water Action Clergy and Laity United for Economic Justice Comite Civico Del Valle Communities for a Better Environment Community Water Center Environmental Health Coalition Environmental Justice Coalition for Water Food Empowerment Project Greenaction for Health and Environmental Justice Inland Congregations United for Change Leadership Counsel for Justice and Accountability Los Angeles Waterkeeper MAAC AB 1071 Page 9 People Organizing to Demand Environmental and Economic Rights San Diego-Imperial Counties Labor Council San Joaquin Valley Latino Environmental Advancement and Policy Project Sierra Club California Warehouse Worker Resource Center Opposition None on file Analysis Prepared by:Elizabeth MacMillan / NAT. RES. / (916) AB 1071 Page 10 319-2092