1999 Environmental Legislative Year in Review: A Prolific Year in the California Legislature

by Gary Lucks, J.D.*

Copyright 1999 © All Rights Reserved

These newsletters were originally published to accompany updates to environmental law publications, and are reproduced here with permission from STP Specialty Technical Publishers [www.stpub.com or contact via e-mail at custinfo@stpub.com or by phone at (604) 983-3434].

The California legislature pioneered a number of environmental policies and programs during the 1970s and 1980s that have profoundly shaped the course of business in California and, indeed, throughout the nation as many of these environmental policies influenced national policies. A nationwide recession and an industry backlash toward command and control programs slowed the environmental agenda. A new Democratic Governor and a Democratic legislature enabled many environmental proposals that were shelved during the 1990's to emerge during the 1999 Legislative Session. Many became law on January 1, 2000. These new policy directions may once again affect the policies of the US EPA and even other states in the future.

Some of the more significant developments include:

  • a reinvigorated underground storage tank (UST) program,
  • a wastewater pollution prevention program (water quality),
  • air quality,
  • the reauthorized California Superfund program (cleanup),
  • hazardous waste management,
  • a heightened focus upon multi-media environmental enforcement, and
  • permitting.

Within these topics a series of laws require environmental compliance training.

UST Upgrades Revisited (SB 989 Sher)

When the federally imposed deadline (December 22, 1998) to upgrade or remove older USTs passed, owners and operators of underground fuel tanks may have anticipated relief from further regulatory control and intervention. A year later some UST owners/operators in California must comply with several upgrade requirements for tanks located near public drinking water wells. This legislation, SB 989, also establishes a research program to evaluate the efficacy of the 1998 UST upgrade program and to determine whether and to what extent the state-of-the-art technology and operating standards prevent releases to the environment. Under SB 989, USTs of either a specified age or a certain distance from a public drinking water source must be retrofitted with an "under-dispenser" and/or an enhanced leak detection and monitoring system by specified dates.

Inspections and Training

SB 989 also specifically targets inspections of USTs by requiring the local Certified Unified Program Agencies (CUPA) to inspect USTs at least annually. This legislation additionally requires the California State Water Resources Control Board (SWRCB) to establish training standards for tank owners, operators, service technicians, installers, and inspectors of USTs.

Water Quality (AB 1104 Migden, SB 1107 Sher)

AB 1104 greatly expanded pollution prevention authority. In addition to California's pollution prevention program for large quantity generators of hazardous wastes (the SB14 program enacted in 1989), the state and regional water quality control boards can require wastewater dischargers and publicly owned treatment works (POTWs) to prepare pollution prevention (P2) plans. Specifically, industrial wastewater dischargers can be required to prepare P2 plans if they are guilty of "chronic violations" or if their dischargers contribute to "toxic hotspots". Other significant water quality legislation harmonizes California law with newly adopted federal standards requiring continuing education for certified technicians operating public water systems under the California Safe Drinking Water Act (SB 1107).

Air Quality (SB 25 Escutia)

With an increasing incidence of childhood asthma, the new California legislation emphasizes prevention of harmful air pollution that could affect infants and children. SB 25 requires the California Air Resources Board (ARB) to review health-based ambient air quality standards and the more than 200 California toxic air contaminants to evaluate whether infants and children and the public are adequately protected. The least health protective ambient air quality standard must be revised by December 31, 2002. Further, the ARB must establish a list of Toxic Air Contaminants that pose a risk to infants and children by July 1, 2001 and revise air toxics controls if it deems necessary. Finally, the ARB must identify where the state ambient air quality monitoring network fails to adequately monitor the exposures of infants and children to air emissions.

MTBE (SB 1001 Burton, SB 529 Bowen, SB 989 Sher, Senate Joint Resolution 15 Sher)

A number of bills designed to phase out the use of methyl-tertiary butyl ether (MTBE) in gasoline were also signed into law in 1999. Governor Gray Davis led the assault on MTBE by signing an executive order earlier in the year to require the ARB and the California Energy Commission (CEC) to develop a timetable to remove MTBE from gasoline no later than December 31, 2002. SB 1001 requires that these government agencies complete quarterly progress reports summarizing the amount of MTBE produced by refineries in the previous quarter. SB 529 clarifies existing law that requires any reformulated fuel alternatives to receive a multimedia environmental impact evaluation before being approved. Finally, SB 989 allows the California Environmental Protection Agency to remove MTBE from air quality regions throughout the state after making specified findings. SB 989 further requires environmental permitting agencies to expedite action on environmental permit applications in support of reformulated fuel.

On the federal front, Senate Joint Resolution 15 requests that the EPA grant California an administrative waiver under the Clean Air Act to allow California to establish reformulated gasoline that does not rely upon use of oxygenates (such as MTBE). This joint resolution also officially requests the same of Congress by encouraging them to enact legislation allowing California the freedom to adopt reformulated gasoline standards that do not require use of oxygenates.

Electric Cars (AB 71 Cunneen)

To promote the use of electric cars, AB 71 offers drivers of electric vehicles use of the coveted car pool or HOV (high occupancy vehicle) lanes on freeways and bridges even when they are single occupant vehicles.

Cleanup (SB 47 Sher)

Reauthorization of the lapsed State Superfund law is the most significant development for 1999 concerning hazardous substances. The former governor, Wilson, allowed the California Superfund to sunset without reauthorization at the end of 1998. This resulted in uncertainty over the state program governing cleanup of hazardous substances. SB 47 reauthorized lapsed provisions of the Superfund law and included the following:

  • An unfunded program was established to reimburse potentially responsible parties for the cost of remediating "orphan shares".
  • State-listed Superfund sites must follow the cleanup standards outlined in the National Contingency Plan (NCP) and the California water quality laws (this was clarified by SB 47).
  • Health risk assessments must evaluate the additive and synergistic risks by chemicals to susceptible populations.

Hazardous Waste Management (SB 606 O'Connell)

To encourage small businesses to recycle hazardous wastes, SB 606 relaxes "milkrun" transporter requirements: transporters of specified categories of non-RCRA hazardous wastes are now authorized to carry recyclable and specified non-recyclable hazardous wastes.

Additionally, "used oil" generators must certify that used oil contains no more than insignificant concentrations of polychlorinated biphenyls (thus shifting the burden of proof to the used oil generator).

Finally, effective January 1, 2002, manufacturers of hazardous materials are authorized to electronically file material safety data sheets (MSDS) with the California Department of Industrial Relations.

Training (AB 1332 Lowenthal)

AB 1332 promotes compliance training, which mandates the California Department of Toxic Substances Control (DTSC) to develop and implement a comprehensive training program for hazardous waste generators, transporters, facility operators, and staff conducting hazardous waste inspections for the DTSC and CUPAs.

Environmental Enforcement (AB 1102 Jackson, AB 1104 Migden)

With the election of pro-environment and former Democratic Senator Bill Lockyer as the Attorney General and recent efforts to increase the number of environmental prosecutors, California businesses can expect increased enforcement pressure. New legislation augments enforcement scrutiny by establishing a deputy secretary for law enforcement in Cal/EPA (AB 1102). This law further creates within Cal/EPA a cross-media compliance and enforcement program. These new provisions may perhaps be eclipsed by AB 1104, which establishes a $3,000 minimum penalty for serious water quality violations. AB 1104 further authorizes the regional boards to assess higher penalties to reflect the economic benefit derived from the violation.

Permitting (AB 1102 Jackson)

In response to the cumbersome California permitting program, AB 1102 (Jackson) formalizes the state environmental permit assistance centers, which were originally established on a pilot basis. Additionally, this legislation establishes eight pilot-scale environmental management system projects for willing industrial participants.

Conclusion

The 1999 legislative session was one of the most prolific legislative years for environmental law in a decade. California may once again lead the way in shaping environmental policy for California and beyond.