BILL ANALYSIS �
AB 408
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator S. Joseph Simitian, Chairman
2011-2012 Regular Session
BILL NO: AB 408
AUTHOR: Wieckowski
AMENDED: April 12, 2011
FISCAL: Yes HEARING DATE: July 6, 2011
URGENCY: Yes CONSULTANT:
Rachel Machi Wagoner
SUBJECT : HAZARDOUS SUBSTANCES AND MATERIALS
SUMMARY :
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.
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.
3) Requires generators, transporters and facility operators to
complete a manifest that tracks the shipment of hazardous
waste from generation to disposal.
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4) Authorizes certain California hazardous wastes, as defined,
to be transported using a consolidated manifest.
5) Requires businesses to have response plans for releases of
specified hazardous materials and provide an annual inventory
of hazardous materials handled to the Certified Unified
Program Agencies (CUPAs). Requires any person who handles
hazardous material to annually submit an inventory of
hazardous materials to the CUPA.
6) 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.
7) 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 publically owned treatment works
(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.
This bill 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.
2) 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 from the building, structure, property, or
public right-of-way where the incident originates is
necessary to prevent loss of life or injury; or
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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 building, structure,
property, or public right-of-way where the incident
originates.
3) Expands the definition of "hazardous substance" for purposes
of local government cost recovery.
4) 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.
5) Allows a CUPA to 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.
6) 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.
7) Contains an urgency clause.
COMMENTS :
1) Purpose of 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."
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2) Local emergency response . Local government emergency
response agencies face toxic chemical spills and accidents
every day. In 2010 there were over 3100 reported chemical
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 the spread of a hazardous substance beyond
a public right-of-way.
Under existing law, cost recovery for emergency response is
available only if the incident either results in (a) an
evacuation "beyond the property where the incident
originates" or (b) the spread of hazardous substances "beyond
the property of origin." (Health and Safety 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 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 Health and Safety Code requires
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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 is required under federal law.
A central purpose of current 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. firefighters) 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: Expansion of in
lieu compliance projects affects penalty deterrent . When
mandatory minimum penalties were added in 1999, the SWRCB,
RWQCBs, and POTWs were authorized to require a discharger to
complete and implement pollution prevention, comply with that
plan, and make the plans available for public review. The
SWRCB, RWQCBs, and POTWs were authorized to assess civil
liability and penalties, and to include a pollution
prevention plan in any waste discharge requirements or other
permit issued by the entity.
Because discharges are introduced into POTWs for treatment, and
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POTWs undertake the compliance project for treatment purposes
(as well as have the responsibilities described above), the
compliance project in lieu of penalties is limited to POTWs -
not other types of dischargers. Moreover, the mandatory
minimum penalty provisions, as well as related provisions
enacted in the mandatory minimum penalty measures, do not
contain references to drinking water systems.
In policy deliberations before the Senate Environmental
Quality Committee, the general direction of the Committee has
been to ensure that at a minimum, the economic benefit of a
violation of law should be recovered. This perspective is
supported, in part, by various reports documenting the lack
of deterrence against violations of environmental law due to
insufficient sanctions. The in lieu compliance project
alternative is intended to apply to a specific circumstance -
POTWs serving a small community meeting certain conditions.
Expanding that provision by increasing the population cap
largely defeats the original purpose for establishing
mandatory minimum penalties.
If there are concerns about compliance programs, the author
may wish to consider other alternatives, such as extending
payments and alternative sources to finance improvements.
6) Expansion of population cap inconsistent with other Water
Code "small community" definitions . The Water Code contains
5 definitions for "small community" with population caps for
certain programs. None of these references exceed 10,000
persons.
Water Code�
Population Cap
�13999.2(j) Clean Water Bond Law of 1984
5,000 or less
�14052(k) Clean Water/Reclamation Bond Law of 1988
3,500 or less
�78610(d) Clean Water/Water Recycling Program
5,000 or less
�79084(b) Costa-Machado Water Act of 2000
10,000 or less
�79120(d) Costa-Machado Water Act of 2000
10,000 or less
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Because other Water Code "small community" definitions do not
contain a population cap exceeding 10,000 persons, expanding
the population cap for the in lieu compliance project process
is inappropriate and should be stricken.
7) D�j� vu . Over the past several years the Senate
Environmental Quality Committee has considered bills with
similar or identical provisions (AB 914 (Logue) of 2009, AB
25 (Gilmore) of 2009-10 and SB 1284 (Ducheny) of 2010) and
voted each time to strike this language to increase the
population threshold for the above stated policy reasons.
8) Prior Legislation :
AB 25 (ESTM Committee) of 2010 allows a hazardous waste
transporter, under certain circumstances, to receive one
shipment of used oil from a generator whose identification
number has been suspended. This bill was vetoed by Governor
Schwarzenegger stating that, "the Department of Toxic
Substances Control (DTSC) already allows a conditional
reactivation of a suspended identification number for 30 days
for generators and transporters. Given this existing
process, this bill would simply create additional bureaucracy
and reporting requirements for a subset of transporters and
generators and do nothing to reduce the number of suspended
identification numbers or streamline the reactivation
process."
AB 914 (Logue) of 2010 specified that SWRCB may take into
consideration the additional criterion of impacts of
mandatory minimum penalties on individual ratepayers when
making a determination of "financial hardship" of a small
community served by a POTW. This bill was vetoed by Governor
Schwarzenegger stating that "The bill is unnecessary since
the Board already has the authority under current law to take
any factor it deems appropriate into consideration when
making a determination of financial hardship of a small
community served by a POTW."
AB 2388 (Miller) of 2010 requires the DTSC, by July 1, 2011,
to provide a method for the immediate reactivation, by means
of a wireless communication device, of a suspended
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identification number of a hazardous waste generator. AB
2388 was held in the Assembly Appropriations Committee.
SB 1284 (Ducheny) Chapter 645, Statutes of 2010, exempted
certain Water Code violations of waste discharge reporting
requirements from existing mandatory minimum penalties.
9) Clarifying Amendments Needed . Section 2 of the bill needs to
be amended to clarify the roles of the transporter and the
generator in complying with this section.
A code cleanup amendment is needed in the CUPA authorizing
statute, Divisions 20 and 21 of the Health and Safety Code,
to change "Uniform Fire Code" to "California Fire Code."
SOURCE : California Association of Environmental Health
Administrators
SUPPORT : Independent Waste Oil Collectors and Transporters
OPPOSITION : None on file