BILL ANALYSIS Ó
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Wieckowski, Chair
2015 - 2016 Regular
Bill No: AB 2781
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|Author: |Eduardo Garcia |
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|Version: |4/7/2016 |Hearing |6/29/2016 |
| | |Date: | |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Rachel Machi Wagoner |
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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."
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.
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.
4) Requires the CalEPA to identify "disadvantaged communities"
based on geographic, socioeconomic, public health, and
environmental hazard criteria.
5) Under compliance with the provisions of the Federal Water
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Pollution Control Act as Amended in 1972:
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 an SEP in accordance with the enforcement policy
of the State Water Resources Control Board (SWRCB) and any
applicable guidance document.
7)Beginning January 1, 2016, requires each board, department,
and office within CalEPA to establish a policy on SEPs that
benefits environmental justice communities. Authorizes up to
50% of an enforcement action to be allocated for SEPs.
Requires CalEPA to compile a list of SEPs developed by its
boards, departments, and offices and post the list on its
Internet website.
This bill: directs 10% of all penalties collected by California
Environmental Protection Agency (CalEPA) boards, departments,
and offices to fund SEPs in disadvantaged communities.
Specifically, this bill:
1)Requires that 10% of all enforcement action monetary penalties
collected by a CalEPA board, department, or office to be
deposited into the Supplemental Environmental Projects in
Disadvantaged Communities Fund (Fund).
2)Specifies that the Fund be available, upon appropriation, to
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implement environmental projects in disadvantaged communities.
Prioritizes funding for projects on the list compiled by
CalEPA.
Background
1) Environmental Justice. According to 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
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. The California Air Resources
Board (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 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.
2) SEPs. 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,
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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, the Department of Toxic Substances
Control (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 2013
Environmental Compliance and Enforcement Report provides
information on the use of SEPs in California. The
certified unified program agencies directed just over $2.1
million to SEPs, approximately 25% of the penalties
collected. According to ARB, of the $9.97 million
penalties assessed for significant enforcement cases (over
$10,000), $773,600 was directed to SEPs. The California
Department of Pesticide Regulation directed only $8,000 of
the $3.3 million in penalties collected to one SEP. The
other boards, departments, and offices did not report any
SEP funding in 2013.
Comments
1) Purpose of Bill. According to the author, "many communities
in California continue to be disproportionately burdened [by]
multiple sources of pollution. These communities are most
vulnerable to pollution and climate change than others.
These disadvantaged communities? require much more than
resources to tackle climate and environmental health impacts
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and to implement community led projects. Currently many
communities facing enforcement actions would rather pay the
fine than inclement a SEP. This is mainly attributed to the
time and effort necessary to implement a SEP. The
inexperience of the violator also contributes to the lack of
SEP implementation. As a result, there continues to be a
disconnect that prevents disadvantaged communities from
benefitting from pollution mitigation projects funded by
enforcement actions. Without requiring a mandatory
Disadvantaged Community Fund, disadvantaged communities will
continue to be overlooked and not benefit from much needed
environmental mitigation. By securing resources that benefit
disadvantaged communities, the state can help decrease many
of the environmental stressors affecting these communities."
2) According to the Assembly Appropriations Committee, this bill
redirects revenue from monetary penalties to the newly
created Fund, likely in the $3 to $5 million dollar range
(special fund). Additionally, CalEPA would require an
additional $175,000 for administrative costs.
There would likely be additional administrative costs to each
of the boards, departments and offices to account for and
submit the 10% of their penalties.
While it appears that there is benefit in requiring and
investing in SEPS, would it not be more prudent to require
each of the boards, departments and offices to expend 10% of
their penalties implementing SEPs directly, rather than
creating additional cost to collect, account and administer a
singular fund at the agency level?
Additionally, SEP investments are often made as part of the
penalty settlement agreement and the SEP is ideally for the
community in which the environmental damage by the violation
was done. This bill would fundamentally change that by
having the penalties put into a separate fund to determine
which SEPs to invest in. It is most appropriate for the SEP
dollars to be spent in the communities where the damage is
done and ideally to improve the environment in such a way as
to mitigate and reverse the damage done by the violation.
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The regulatory agencies that are enforcing the law, and
thereby collecting the penalties, are more appropriate to
determining how best to do that.
An amendment is needed to require each board, department or
office within CalEPA to expend 10 percent of its penalties on
SEPS rather than create a new fund at CalEPA.
Related/Prior Legislation
AB 1071 (Atkins, Chapter 585, Statutes of 2015) requires each
board, department, and office within CalEPA to establish a
policy on SEPs that benefits environmental justice communities.
SB 89 (Escutia, Chapter 728, Statutes of 2000) requires CalEPA
to convene the Environmental Justice Working Group and develop
an agency-wide environmental justice strategy.
SB 828 (Alarcon, Chapter 765, Statutes of 2001) 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 (de León, Chapter 830, 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).
SOURCE: Comité Civico de Valle
SUPPORT:
California Indian environmental Alliance
Global Community Monitor
Idle No More SF Bay
La Union Hace La Fuerza
West Berkeley Alliance for Clean Air and Safe Jobs
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OPPOSITION:
None received
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