BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 1071| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- 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 AB 1071 Page 2 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) AB 1071 Page 3 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 AB 1071 Page 4 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," AB 1071 Page 5 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 AB 1071 Page 6 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 AB 1071 Page 7 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 AB 1071 Page 8 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 AB 1071 Page 9 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 AB 1071 Page 10 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 **** END ****