BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1071|
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THIRD READING
Bill No: AB 1071
Author: Atkins (D) and Eduardo Garcia (D)
AmendedAmended:8/31/15 in Senate
Vote: 21
SENATE ENVIRONMENTAL QUALITY COMMITTEE: 7-0, 7/15/15
AYES: Wieckowski, Gaines, Bates, Hill, Jackson, Leno, Pavley
SENATE APPROPRIATIONS COMMITTEE: 6-1, 8/27/15
AYES: Lara, Bates, Beall, Hill, Leyva, Mendoza
NOES: Nielsen
ASSEMBLY FLOOR: 79-0, 6/1/15 - See last page for vote
SUBJECT: Supplemental environmental projects
SOURCE: Author
DIGEST: This bill requires each board, department, and office
(BDOs) within the California Environmental Protection Agency
(CalEPA) that has an enforcement authority to establish a policy
on the use of supplemental environmental projects (SEPs) that
benefit disadvantaged communities which may be voluntarily
undertaken in a settlement action in order to offset a civil
penalty.
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
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Code §65040.12)
2)Requires the Secretary of CalEPA 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 BDO within the 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)
5)Provides that 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" 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.
1)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
SEP in accordance with the enforcement policy of the State
Water Resources Control Board (SWRCB) and any applicable
guidance document. (WAT §13399.35)
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This bill:
1)States the intent of the Legislature that all BDOs within
CalEPA that have an enforcement authority develop a policy on
SEPs with a focus on benefiting environmental justice
communities.
2)Defines:
a) "Agency" as the CalEPA.
b) "Disadvantaged community" as a community identified
pursuant to Section 39711 of the Health and Safety Code.
c) A "supplemental environmental project" as an
environmentally beneficial project that someone subject to
an enforcement action voluntarily agrees to in a settlement
to offset some of a portion of a civil penalty.
1)Requires each BDO within the CalEPA that has an enforcement
authority to establish a policy on SEPs that benefits
disadvantaged communities.
2)Requires that the SEP policy include, at minimum:
a) A public solicitation process for potential SEPs from
disadvantaged communities.
b) An allowance that the SEP may be up to 50% of the
enforcement action.
c) An annual list of SEPs that may be selected from to
settle a portion of the enforcement action.
d) A consideration of the relationship between the location
of the violation and location of the proposed SEP.
1)Requires the Secretary of CalEPA to compile a list of SEPs and
post it on the Agency's Internet Web site.
Background
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1) Supplemental Environmental Policies overview. As of 2007, 28
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
(U.S. EPA) 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 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
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,"
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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
Purpose of bill. According to the author, "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
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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."
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: No
According to the Senate Appropriations Committee:
Unknown lost revenues, likely in the millions of dollars, to
various special funds as a result of penalty reductions as a
result of SEPs.
Minor and absorbable costs to various special funds for the
BDOs to oversee SEPs.
SUPPORT: (Verified8/28/15)
Asian Pacific Environmental Network
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California Environmental Justice Alliance
California Environmental Justice Coalition
Center for Community Action and Environmental Justice
Center on Race, Poverty & the Environment
Central California Environmental Justice Network
City Heights Community Development Corporation
Clergy and Laity United for Economic Justice
Comite Civico Del Valle, Inc.
Communities for a Better Environment
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Environmental Health Coalition
Environmental Justice Coalition for Water
Food Empowerment Project
Green Action for Health and Environmental Justice
Inland Congregations United for Change
Los Angeles Waterkeeper
Maximizing Access to Advance our Communities
People Organizing to Demand Environmental and Economic Rights
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San Diego - Imperial Counties Labor Council
San Joaquin Valley Latino Environmental Advancement & Policy
Project
Sierra Club California
Warehouse Worker Resource Center
OPPOSITION: (Verified8/28/15)
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
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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."
ASSEMBLY FLOOR: 79-0, 6/1/15
AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom,
Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang,
Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle,
Daly, Dodd, Eggman, Frazier, Gallagher, Cristina Garcia,
Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray,
Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones,
Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low,
Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin,
Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Perea,
Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago,
Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber,
Wilk, Williams, Wood, Atkins
NO VOTE RECORDED: Beth Gaines
Prepared by:Laurie Harris / E.Q. / (916) 651-4108
8/31/15 17:13:57
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