BILL ANALYSIS Ó
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Wieckowski, Chair
2015 - 2016 Regular
Bill No: AB 1071
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|Author: |Atkins and E. Garcia |
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|Version: |5/7/2015 |Hearing |7/15/2015 |
| | |Date: | |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Laurie Harris |
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SUBJECT: Supplemental environmental projects.
ANALYSIS:
Existing law:
1) Defines "environmental justice" as "the fair treatment of
people of all races, cultures, and incomes with respect to the
development, adoption, implementation, and enforcement of all
environmental laws, regulations, and policies." (Government
Code §65040.12)
2) Requires the Secretary for Environmental Protection to convene
a Working Group on Environmental Justice to assist the Agency
in developing an agencywide strategy for identifying gaps in
existing programs, policy or activities that may impede
achievement of environmental justice, as specified. Public
Resources Code (PRC) §71113)
3) Requires each board, department, and office within the
California Environmental Protection Agency (CalEPA), in
coordination with the Secretary and the Director of the Office
of Planning and Research (OPR), to review programs, policies,
and activities and identify and address any gaps that may
impede the achievement of environmental justice. (PRC
§71114.1)
4) Requires the CalEPA to identify "disadvantaged communities"
based on geographic, socioeconomic, public health, and
environmental hazard criteria. (Health and Safety Code §39711)
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5) Under compliance with the provisions of the Federal Water
Pollution Control Act as Amended in 1972 (Water Code §13385):
a) Defines a "supplemental environmental project" (SEP) as
"an environmentally beneficial project that a person agrees
to undertake, with the approval of the regional water board,
that would not be undertaken in the absence of an
enforcement action."
b) Allows the state or regional water board to direct a
portion of the penalty amount of a penalty to be expended on
an SEP in accordance with the enforcement policy of the
state board.
6) Allows a Regional Water Quality Control Board (regional board)
to allow a violator, pursuant to the Storm Water Enforcement
Act of 1998, to reduce penalties by up to 50% by undertaking a
supplemental environmental project (SEP) in accordance with the
enforcement policy of the State Water Resources Control Board
(SWRCB) and any applicable guidance document. (WAT §13399.35)
This bill:
1) Defines:
a) An "environmental justice community" (EJ community) as a
disadvantaged community, identified pursuant to Section
39711 of the Health and Safety Code.
b) A "supplemental environmental project" (SEP) as an
environmentally beneficial project that someone subject to
an enforcement action voluntarily agrees to in a settlement
to offset some of a civil penalty.
2) Requires each board, department, and office within the
California Environmental Protection Agency (CalEPA) to
establish a policy on SEPs that benefits EJ communities.
3) Requires that the SEP policy include, at minimum:
a) A public solicitation process for potential SEPs from EJ
communities.
b) An allowance that the SEP may be up to 50% of the
enforcement action.
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c) An annual list of SEPs that may be selected from to
settle a portion of the enforcement action.
4) Requires the Secretary of CalEPA to compile a list of SEPs and
post it on the agency's Internet Web site.
Background
1) Supplemental Environmental Policies (SEPs) Overview. As of
2007, twenty-eight states and the District of Columbia had
formal policies in the form of legislation, executive agency
regulation or guidelines on SEPs. In a report from the same
year, the Public Law Research Institute noted that SEPs
represent a "real and practicable opportunity to provide
significant benefits to all the stakeholders" including direct
benefits to the environment.
They also note, however, that one must be aware of the
potential pitfalls of using SEPs over direct penalties. These
might include insufficient transparency and open process
leading to inequities for both violators and affected
communities and a perceived softening of enforcement penalties.
In order to make the best use of SEPs, it follows that clear
guidelines and regular monitoring, evaluating, and reporting on
SEPs programs are essential.
In 2015, the United States Environmental Protection Agency
released an update to the 1998 U.S. EPA Supplemental
Environmental Projects Policy. The federal agency notes in the
update that they are in strong support of SEPs to "secure
significant environmental and public health benefits beyond
those achieved by compliance, and to help address the needs of
communities impacted by violations of environmental laws."
2) SEP Guidance in California. In 2003, CalEPA released
recommended guidance on SEPs for its boards, departments, and
offices (BDOs) in settlements of environmental enforcement
cases. Qualifications to list a project as an SEP include
ensuring that the project meets the specified definition and
implementation criteria, has an appropriate cost in relation to
fines paid, fits within a specified category, and that all
legal guidelines, including nexus, are satisfied.
Specifically, SEPs must improve, protect, or reduce risks to
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public health or the environment at large and allow the
enforcing agency to help shape the scope of the project prior
to approval, while remaining a voluntary action that a
defendant/respondent is not legally required to perform.
Furthermore, all projects should have an adequate "nexus,"
defined as "the relationship between the violation and the
proposed project [which] exists if the project remediates or
reduces the probably overall environmental or public health
impacts or risks to which the violation at issue contributes,
or if the project is designed to reduce the likelihood that
similar violations will occur in the future."
Since the release of these guidelines, various CalEPA BDOs have
adopted their own SEP policies. In 2009, for example, the
SWRCB developed a Policy on Supplemental Environmental
Projects. In accordance with CalEPA's guidance document, SEPs
may be performed by either the discharger or third-parties paid
by the discharger. Each regional water board is allowed to
maintain a list of pre-approved SEPs for consideration and must
post an annual list of completed and in-progress SEPs from the
previous year. The Air Resources Board (ARB) also has a SEPs
policy posted on its Internet Web site as reviewed April 2015,
and the Department of Toxic Substances Control (DTSC) recently
released a draft policy.
3) SEPs and Disadvantaged Communities. In 2014, the Central
Valley Regional Water Board engaged in a partnership with the
Rose Foundation, a grantmaking public charity based in Oakland,
to administer SEPs to Disadvantaged Communities projects.
According to the regional board's resolution (R5-2014-0040),
"Many disadvantaged communities in the Central Valley would
benefit from SEPs, yet it is difficult for dischargers that do
not have day-to-day relationships with these communities to
create SEPs that are responsive to their needs. The Rose
Foundation, by virtue of its grantmaking experience, is
uniquely situated to implement a program that would allow SEP
monies to penetrate deeply into disadvantaged communities while
supporting the water-quality related SEP criteria contained in
the Water Quality Enforcement Policy and the SEP Policy."
Comments
1) Purpose of Bill. According to the author, "Many communities
across California are located in areas disproportionately
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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) Nexus Considerations. An important consideration in responding
to environmental violations is mitigating the impacts to the
affected communities. While an emphasis on the particular
burden to disadvantaged communities from environmental
degradation and pollution is also important, there should be a
focus on first considering the impacts to those communities
that are directly impacted from any environmental violation.
Therefore, an amendment is needed to specify that the SEPs
policies should include a consideration of a nexus between the
violation resulting in an enforcement action and the impacted
community.
3) Environmental Justice Communities vs. Disadvantaged
Communities. In statute, there are a few references to EJ
communities, but while there is a definition for environmental
justice, no definitions are provided for "EJ communities."
Section 40612 of the Health and Safety Code (HSC) concerning
the San Joaquin Valley Clean Air Attainment Program leaves this
task up to a local committee, noting, "The district board shall
convene an environmental justice advisory committee, selected
from a list given to the board by environmental justice groups
from the San Joaquin Valley, to recommend the neighborhoods in
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the district that constitute environmental justice
communities." According to the air districts EJ Strategy of
June 2012, they define an EJ community as per the federal
Executive Order 12898 as, "minority and low-income populations
with disproportionately high and adverse human health or
environmental impacts." This definition seems to reflect many
of the factors included in the CalEnviroScreen tool to identify
disadvantaged communities.
This bill currently defines an environmental justice community
as a disadvantaged community identified pursuant to Section
39711 of the HSC. As there are no other qualifiers in the
definition, it serves to rename a disadvantaged community as an
environmental justice community, for the purposes of the
section, which could lead to inconsistency and confusion in
statute more broadly.
The author may wish to add additional details in the definition
of an EJ community to distinguish it from a disadvantaged
community. However, as currently written, in order to maintain
consistency and clarity, an amendment is needed to use the term
disadvantaged community in place of EJ community throughout the
section.
SOURCE: Author
SUPPORT:
Alameda County Board of Supervisors
Asian Health Services
Asian Pacific Environmental Network
California Environmental Justice Alliance
California Equity Leaders Network
California League of Conservation Voters (CLCV)
California Pan-Ethnic Health Network (CPEHN)
Catholic Charities, Diocese of Stockton
Center for Community Action and Environmental Justice
Center on Race, Poverty and the Environment
Central California Environmental Justice Network (CCEJN)
Central Coast Alliance United for a Sustainable Economy
Clean Water Action
Coalition for Clean Air
Communities for a Better Environment
Community Water Center
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Environmental Health Coalition
Environmental Justice Coalition for Water
Environmental Working Group
Leadership Counsel for Justice and Accountability
MAAC
Pacoima Beautiful
People Organizing to Demand Environmental and Economic Rights
(PODER)
Physicians for social Responsibility - Los Angeles
Planning and Conservation League
San Diego-Imperial Counties Labor Council (SDICLC)
Sierra Club California
West Marin Environmental Action Committee
OPPOSITION:
None received
ARGUMENTS IN
SUPPORT: According to supporters, "AB 1071 will provide a
mechanism to bring environmentally beneficial projects directly
into low-income communities disproportionately burdened by
pollution. Currently, there is no way to ensure that when a
violation occurs, the communities most impacted are able to
receive direct benefits or repair the harm done from pollution.
"The California Environmental Protection Agency (Cal EPA) has a
policy that allows agencies to authorize environmentally
beneficial projects as part of enforcement actions or settlements.
These projects are called 'Supplemental Environmental Projects'
(SEPS). The projects are a successful means of ensuring
environmentally beneficial projects are implemented when a
violation occurs.
"Unfortunately, the existing policy is not set up to provide
benefits directly to disadvantaged communities, and there is very
little public information about how to engage the program.
Additionally, the Boards, Departments, and Offices within Cal EPA
underutilize this policy, thus limiting its effectiveness."
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