BILL ANALYSIS �
AB 408
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Date of Hearing: April 26, 2011
ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS
Bob Wieckowski, Chair
AB 408 (Wieckowski) - As Amended: April 12, 2011
SUBJECT : Omnibus Hazardous Materials and Waste.
SUMMARY : Makes changes to hazardous material reporting,
emergency response, hazardous waste manifest requirements and
water code violations. Specifically, this bill :
1)Enables local government cost recovery for emergency response
to hazardous substances spills under a wider range of
circumstances.
a) Provides that those expenses of an emergency response
necessary to protect the public from a real and imminent
threat to health and safety by a public agency to confine,
prevent, or mitigate the release, escape, or burning of
hazardous substances, as defined, are a charge against any
person whose negligence causes the incident, if either of
the following occurs:
i) Evacuation from the building, structure, property,
or public right-of-way where the incident originates is
necessary to prevent loss of life or injury; or
ii) The incident results in the spread of hazardous
substances or fire posing a real and imminent threat to
public health and safety beyond the building, structure,
property, or public right-of-way where the incident
originates.
b) Expands the definition of "hazardous substance" for the
purposes of local government cost recovery.
2)Allows for the consolidating manifesting procedures for
haulers of hazardous waste to be used for the receipt, by a
transporter, of one shipment of used oil from a generator
whose identification number has been suspended, if certain
requirements are met. Sunsets this authority on January 1,
2014.
3)Allows the local Certified Unified Program Agency (CUPA) to
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exempt reporting for hazardous material quantities less than
the federal Emergency Planning and Community Right-to-Know Act
(EPCRA) threshold levels for low hazard materials.
4)Expands the compliance project "in lieu" provisions from the
mandatory minimum penalty violations provisions of the
Porter-Cologne Water Quality Control Act for publicly owned
treatment works (POTWs) serving a population of 20,000 or
fewer persons.
5)Provides that this is an urgency measure.
EXISTING LAW :
1)Provides that those expenses of an emergency response
necessary to protect the public from a real and imminent
threat to health and safety by a public agency to confine,
prevent, or mitigate the release, escape, or burning of
hazardous substances, as defined, are a charge against any
person whose negligence causes the incident, if either of the
following occurs:
a) Evacuation beyond the property where the incident
originates is necessary to prevent loss of life or injury;
or
b) The incident results in the spread of hazardous
substances or fire posing a real and imminent threat to
public health and safety beyond the property of origin.
2)Requires all generators, transporters and facility operators
that handle hazardous wastes to obtain an identification
number from the United States Environmental Protection Agency
(US EPA) or Department of Toxic Substances Control (DTSC)
depending on the amount and types of hazardous waste they
handle and pay an annual fee.
a) Requires generators, transporters and facility operators
to complete a manifest that tracks the shipment of
hazardous waste from generation to disposal.
b) Authorizes certain California hazardous wastes, as
defined, to be transported using a consolidated manifest.
3)Requires businesses to have response plans for releases of
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specified hazardous materials and provide an annual inventory
of hazardous materials handled to the CUPAs. Requires any
person who handles hazardous material to annually submit an
inventory of hazardous materials to the CUPA.
4)Under the Porter-Cologne Water Quality Control Act any person
who violates prescribed provisions of the Act is subject to
civil liability, and sets requirements for determining the
amount of any liability.
Authorizes the State Water Resources Control Board (SWRCB) or
a regional water quality control board (RWQCB), in lieu of
assessing all or a portion of the mandatory minimum penalties,
to require a POTW serving a small community of 10,000 or less
to spend an equivalent amount towards the completion of a
compliance project proposed by the POTW.
FISCAL EFFECT : Not Known
COMMENTS :
1)Need for this bill: According to the author, "AB 408 provides
a wide-ranging series of regulatory reforms addressing the
problems of business, local governments, and emergency
personnel in complying with California hazardous material and
hazardous waste laws. In many cases we find conflicting
standards between State and federal agencies or the laws have
failed to keep up with changing industrial practices. This
bill brings together primarily technical elements of our
statutes that need to be easier to understand, simpler for
business and local governments to comply with but done in a
way that increases the actual protection on the public health
and the environment."
2)Local emergency response . Local government emergency response
agencies face toxic chemical spills and accidents every day.
In 2010 there were over 3100 reported chemicals spills
reported in California. The cost of responding to many of
these incidents falls on local taxpayers. Toxic spills may
originate in a public right of way and results in highway
closure or results in the spread of a hazardous substance
beyond the public right of way.
Under existing law, cost recovery for emergency response is
available only if the incident either results in (1) an
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evacuation "beyond the property where the incident originates"
or (2) the spread of hazardous substances "beyond the property
of origin." (H&S Code �13009.6(a)) In both cases, the
operative word is "beyond." However, if the incident
originates on a public right-of-way (e.g. a tanker truck
spills hazardous materials on a public highway), existing law
arguably does not allow cost recovery because evacuation of
the affected section of the highway does not constitute
evacuation "beyond the property where the incident
originates", and a spill on the highway may not necessarily
spread "beyond" the highway. Similarly, if the incident
originates in a building or structure on a large property,
requiring emergency response, but the evacuation or spread of
hazardous materials remains within the confines of the large
property, it would appear that local cost recovery for the
emergency response is precluded because neither the evacuation
nor spread occurred strictly "beyond the property of origin."
3)Consolidated manifest for hazardous waste collection . This
bill addresses the issues raised by the inability of a used
oil transporter to pick up a load of used oil from generators
who did not return their annual ID number verification and
related forms and fees. Often these are small generators who
infrequently generate used oil and have not acknowledged the
need to keep their ID number up to date. This bill allows for
a one-time pick up with both the generator and the transporter
reporting the pick up to DTSC.
4)Business Plans -- Emergency Response and Annual Inventories :
Chapter 6.95, � 25503, of the California Health & Safety Code
requires any business that handles/stores a hazardous material
or a mixture containing a hazardous material, to establish and
implement a Business Plan for Emergency Response to a release
or threatened release of a hazardous material, if handled in
the following "reportable" quantities:
a) Equal to or greater than 500 pounds, 55 gallons, or 200
cubic feet of gas (gas calculated at standard temperature
and pressure); or
b) Equal to or greater than the applicable federal
threshold planning quantity (TPQ) for an extremely
hazardous substance; or
c) Radioactive materials that are handled in quantities for
which an emergency plan required under federal law.
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A central purpose of the existing law requiring businesses to
devise a plan for managing hazardous materials and reporting
on this annually is to ensure that emergency response
personnel, e.g., fire fighters, will have advance knowledge of
hazards they may be confronting, such as in response to a
fire.
Businesses currently must disclose very low hazard materials
such as soaps, food constituents, cement, inert gases and many
other similar materials when present at or exceeding
quantities of 55 gallons, 500 lbs. or 200 cubic feet.
5)SWRCB Water Quality Improvement Initiative: Mandatory minimum
penalties for water code violations:
The SWRCB adopted the Water Quality Improvement Initiative in
2008. This initiative included series of recommendations to
improve enforcement of water quality laws in California.
Included in this report were the recommendations contained in
AB 408. The SWRCB report recommended the following proposal
to help enhance environmental enforcement:
Modify Mandatory Minimum Penalties (MMPs) for Small
Disadvantaged Communities' expanding the number of small
disadvantaged communities that are eligible to complete a
compliance project instead of paying all or a portion of
the MMP by increasing the population criteria from a
maximum of 10,000 people to a maximum of 20,000 people.
Related legislation:
AB 291(Wieckowski) - Business Plan Reporting Thresholds - Allows
local CUPAs to reduce the reporting of hazardous materials to
the federal EPCRA threshold. Pending in the Assembly
Environmental Safety and Toxic Materials Committee.
AB 640 (Logue) - Water Code Mandatory Minimum Penalties.
Increases the size of public agencies that complete a compliance
project instead of paying all or a portion of the MMP. Pending
in the Assembly Environmental Safety and Toxic Materials
Committee.
AB 681 (Wieckowski) - Local Emergency Response Cost Recovery -
Increases ability of local agencies to recover response costs
from hazardous material releases. Pending in the Senate
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Environmental Quality Committee.
Prior Legislation:
AB 25 (ESTM Committee), 2010. This bill allowed for the
consolidating manifesting procedures concerning haulers of
hazardous waste to be used for the receipt, by a transporter, of
one shipment of used oil from a generator whose identification
number has been suspended, if certain requirements are met.
Vetoed.
AB 914 (Logue), 2010. This bill required the financing plan
proposed by a publicly owned treatment works to include the
completion of a compliance project within five years. Vetoed.
AB 2388 (Miller), 2010. This bill requires the Department of
Toxic Substances Control (DTSC), by July 1, 2011, to provide a
method for the immediate reactivation, by means of a wireless
communication device, of a suspended identification number of a
hazardous waste generator. Held in the Assembly Appropriations
Committee.
SB 1284 (Ducheny), Chapter 645, Statutes of 2010. This bill
exempted certain Water Code violations of waste discharge
reporting requirements from existing mandatory minimum
penalties.
REGISTERED SUPPORT / OPPOSITION :
Support
California Association of Environmental Health Administrators
Independent Waste Oil Collectors and Transporters Association
Opposition
None on file.
Analysis Prepared by : Bob Fredenburg / E.S. & T.M. / (916)
319-3965
AB 408
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