BILL ANALYSIS
SB 1351
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator S. Joseph Simitian, Chairman
2009-2010 Regular Session
BILL NO: SB 1351
AUTHOR: Wright
AMENDED: August 2, 2010
FISCAL: Yes HEARING DATE: August 19,
2010
URGENCY: No CONSULTANT: Randy Pestor
SUBJECT : REGULATORY REQUIREMENTS
SUMMARY :
Existing law :
1) Under the Administrative Procedure Act (APA) (Government
Code 11340 et seq.) establishes rulemaking procedures and
standards for state agencies. State regulations must also
be adopted in compliance with regulations adopted by the
Office of Administrative Law (OAL). The APA, among other
things:
a) Requires every agency to prepare and submit a
specified notice of the proposed action and make certain
information available to the public (e.g., draft
regulation in "plain English;" statement of reasons for
proposing the adoption, amendment, or repeal of a
regulation; evidence to support a determination that the
action will not have a significant adverse economic
impact on business). (11346.2). The statement of
reasons must identify each technical, theoretical, and
empirical report upon which the agency relies in
proposing the regulation (11346.2(b)(2)), and the
California Air Resources Board (ARB) must make this
information public that is related to, but not limited
to, air emissions, public health impacts, and economic
impacts before the comment period for any regulation
proposed for adoption by ARB (Health and Safety Code
39601.5).
b) Requires OAL to either approve a submitted regulation
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and transmit it to the Secretary of State for filing, or
disapprove it, within 30 working days. If OAL fails to
act within 30 working days, the regulation is deemed
approved and OAL must transmit it to the Secretary of
State. (11349.3).
2) Requires ARB to develop and adopt regulations that achieve
the maximum feasible and cost-effective reduction in
greenhouse gas emissions from motor vehicles, and in
developing regulations requires ARB to comply with certain
requirements, such as considering technological
feasibility, economic impact, and automobile workers and
affiliated business in the state (43018.5).
3) Under the California Global Warming Solutions Act of 2006,
requires ARB to determine the 1990 statewide greenhouse gas
(GHG) emissions level and approve a statewide GHG emissions
limit that is the equivalent to that level, to be achieved
by 2020 (Health and Safety Code 38500 et seq.). ARB must
adopt rules and regulations to achieve greenhouse gas
emission reductions to achieve the maximum technologically
feasible and cost-effective reductions in GHGs, subject to
certain requirements (38562(h)). Definitions are provided
for certain terms (38505).
As approved by the Senate , under the California Global Warming
Solutions Act of 2006:
1) Requires ARB to make any implementation schedule that is
required to initiate compliance with a regulation to be
made available to the public at the time ARB adopts the
regulation.
2) Requires ARB to make a reporting form available to the
public on ARB's Internet website at least 45 days prior to
the date required for filing that form in accordance with
the implementation schedule, if a reporting form is
required to initiate compliance with a regulation adopted
in accordance with the CGWSA.
3) Provides that the above requirements: a) do not excuse
compliance with a regulation adopted before January 1,
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2011, that does not meet the requirement; or b) require ARB
to re-adopt or amend a regulation approved by ARB before
January 1, 2011.
Assembly amendments , under the California Global Warming
Solutions Act of 2006:
1) Require ARB to make any implementation schedule that is
required to comply with a regulation, rather than to
initiate compliance with a regulation, to be made available
to the public at the time ARB adopts the regulation.
2) Replace the reporting form requirement (#2 above) with a
requirement that ARB make a required reporting form,
compliance tool, or training available to the public and on
ARB's Internet website at least 60 days prior to the date
required in accordance with the implementation schedule, if
a regulation specifically requires a reporting form,
compliance tool, or training.
3) Authorize ARB to revise an implementation schedule,
reporting form, compliance tool, or training after it
adopts a regulation if ARB modifies the compliance deadline
to allow regulated entities 60 days to comply.
4) Define "compliance tool" to mean items specified in a
regulation for compliance, including, but not limited to,
computer models, databases, algorithms, formulas, forms,
software, labels, protocols, and metrics required for
compliance. Also defines "metric" to be units and
standards for measurement by which efficiency, performance,
progress, or quality of a plan, process, or product can be
assessed.
COMMENTS :
1) Purpose of Bill . According to the author, "To meet
deadlines, regulations have been adopted without the
guidelines, implementation schedules, procedures, and other
relevant compliance mechanisms that should accompany the
regulations in order for regulated entities to comply or
prepare for compliance with the new regulations. Several
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regulations have been adopted without providing clear
direction to the regulated entities. Without a clear
compliance path regulated entities are forced to guess and
make decisions without proper guidance which exposes these
entities to potentially costly noncompliance enforcement
actions and penalties."
2) SB 1351 referred to Committee under Senate Rule 29.10 . As
approved by the Committee April 22, 2010 (5-0), and the
Senate May 24, 2010 (24-0), SB 1351 focused on ARB making
any CGWSA implementation schedule available to the public
at the time ARB adopts a regulation, while also requiring
any reporting form to be available 45 days prior to the
date required to file the form in accordance with the
implementation schedule if the reporting form is required
to initiate compliance with a regulation.
Assembly amendments broadened the scope of this bill to also
apply to a metric, compliance tool, or training - while
requiring the metric, compliance tool, or training to be
made available at least 60 days before being required in
accordance with the implementation schedule; provide
definitions for "compliance tool" and "metric"; and
authorize ARB to revise an implementation schedule,
reporting form, compliance tool, or training if ARB also
modifies the compliance deadline to allow regulated
entities 60 days to comply.
3) Clarification needed . SB 1351 authorizes ARB to revise an
implementation schedule, reporting form, compliance tool,
or training "required to be published pursuant to
subdivision (a)" after it adopts a regulation, if ARB
modifies the compliance deadline to allow regulated
entities 60 days to comply. However, subdivision (a) does
not require publication of a reporting form, compliance
tool, or training.
Clarification is necessary to ensure that a modified
compliance deadline under 38566(b) for a revised
implementation schedule, reporting form, compliance tool,
or training only applies to the modified portion of the
requirement and not the deadline for the initial or prior
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requirement.
Also, the definition of compliance tool references "items
specified in a regulation for compliance, including, but
not limited to, computer models, databases, algorithms,
formulas, forms, software, labels, protocols, and metrics
required for compliance. This may provide some uncertainty
to ARB over what items are subject to this bill's
requirements.
Finally, this bill seems to allow ARB to revise an
implementation schedule, reporting form, compliance tool,
or training required to be published as part of a
regulation as long as ARB modifies the compliance deadline.
This seems to authorize ARB to modify the implementation
schedule outside the regulations process established under
the APA.
SOURCE : California Council for Environmental and
Economic Balance
SUPPORT : American Council of Engineering Companies of
California,
Associated Builders and Contractors of
California, California Building Industry
Association, California Business Properties
Association, California Cattlemen's
Association, California Cement Manufacturers
Environmental Coalition, California Chamber of
Commerce, California Chapter of the American
Fence Association, California Construction and
Industrial Material Association, California
Farm Bureau Federation, California Fence
Contractors' Association, California Forestry
Association, California Grocers Association,
California Hospital Association, California
Hotel & Lodging Association, California
Independent Oil Marketers Association,
California League of Food Processors,
California Manufacturers and Technology
Association, California Nevada Cement
Association, California Precast Concrete
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Association, California Restaurant Association,
California Retailers Association, California
Small Business Association, California State
Council of Laborers, California Taxpayers
Association, Chemical Industry Council of
California, Consumer Specialty Products
Association, Engineering Contractors'
Association, Engineering and Utility
Contractors Association, Flasher/Barricade
Association, Independent Waste Oil Collectors,
Industrial Environmental Association, Marin
Builders' Association, National Federation of
Independent Business, Pacific Merchant Shipping
Association, State of California Auto
Dismantlers Association, Western Growers,
Western States Petroleum Association
OPPOSITION : None on File
[SUPPORT AND OPPOSITION NOT VERIFIED BY COMMITTEE]