Environmental Legislative Year in Review: An Emphasis on Enforcement

By Gary Lucks, J.D.

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].

Over the past 30 years, the California legislature has earned a reputation for pioneering new directions in environmental policy that later found their way onto the national stage. Since the inception of the modern environmental programs in the 1970s California has served as a bellwether fashioning avant garde environmental policies, many of which were adopted by Congress and the United States Environmental Protection Agency (USEPA). The year 2000 legislative session yielded a number of new environmental laws which may once again presage the policies taken by the USEPA and other states in the coming years.

Some of the more significant developments include the following:

  • Significantly increased penalties for air quality and water quality violations,
  • Alternative energy permitting,
  • Alternative fuel technologies programs,
  • Air pollution abatement performance,
  • Stormwater discharges to beaches,
  • Water supply linkage to development,
  • Hazardous materials reporting reform, and
  • Environmental justice

These and other new requirements, which became effective on January 1, 2001, are described below:

Enforcement (SB 1865 Perata, SB 2165 Sher)

The 2000 legislative session resulted in a variety of new policy directions; however, the ever-cautious, middle-of-the-road Governor Davis emphasized enforcement of existing programs instead of expanding the stringency and scope of the existing regulatory framework. Ultimately, the focus was on ensuring that the environmental bureaucracy is implementing the environmental laws they are authorized to administer.

Key legislation by Senator Perata (SB 1865) harmonizes air quality penalties with water quality and hazardous waste penalty provisions for violations that cause injuries. This new law  significantly increased fines and penalties for air quality violations. This legislation was prompted by a belief that the previous penalty structure was so weak that some violators were motivated to break the air quality laws and endure the fine instead of purchasing new equipment or performing preventive maintenance. Now, with penalties for violations causing injury ranging from $15,000 per violationper day to upwards of $500,000 per violation per day, breaking air quality laws may no longer be regarded as a cost of doing business.

Legislation adopted last year (AB 1104 Migden) greatly expanded the regulatory authority of the regional water boards to enforce significant violations of water quality laws by imposing a mandatory minimum fine. AB 1104 was enacted in response to mounting evidence that the state and regional water boards were failing to implement and enforce the state and federal water quality laws. AB 1104 authorizes the regional water quality control boards to assess mandatory minimum penalties of $3,000 per serious violation. AB 1104 was designed to impose penalties that reflect the economic benefit otherwise derived from the violation. However, the law provides opportunities for the regional boards to waive the fine if the violator agrees to complete a pollution prevention plan or commits to a voluntary environmental project having costs equivalent to the penalty that would have been otherwise imposed.

SB 2165 (Sher) refined AB 1104 by relaxing the penalty scheme for water quality violators without a history of serious violations in the prior six months as long as: 1) all feasible steps were taken to minimize or limit the violations, or 2) the violator agrees to implement an environmentally beneficial clean-up program or pollution prevention plan.

Stationary Source Air Quality (AB 2872 Shelley, SB 1298 Bowen, AB 1877 Maldonado)

Perhaps in anticipation of the energy crisis in California, Assemblymember Shelley authored legislation to promote development of biomass-to-energy power projects. AB 2872 (Shelley) establishes a grant program to promote this alternative energy approach. SB 1298 (Bowen) also impacts the energy sector. Bowen's bill requires standardized permitting for solar roof panels, cogeneration plants, and other "distributed energy" projects (i.e., electrical generation near the place of use) which are in many cases exempt from local air quality permitting requirements. SB 1298 establishes uniform air emission standards (i.e., best available control technology or BACT) for these emission sources.

In response to allegations that vendors of air pollution control devices inflate the effectiveness of their abatement control, the California Council for Environmental and Economic Balance (CEEB) sponsored AB 1877 (Maldonado). This law was intended to protect the regulated air emission source owner or operator who is on the hook for noncompliance, not the vendor. This new law allows the holder of an air quality permit subject to BACT or lowest achievable emissions rate (LAER) to request that the air district require the manufacturer to substantiate its claims where the equipment has failed to meet warranted representations of performance.

In recent years, there has been an increased focus on health impacts to infants and children.

Assemblymember Shelley enacted AB 2872, which responds to concerns of increased childhood asthma and last year's legislation requiring review of health-based air quality standards (SB 25 Escutia). This legislation requires that the Office of Environmental Health, Hazard, Assessment evaluate and update the cancer risk assessment guidelines to reflect considerations for infants and children.

Mobile Source Air Quality (AB 2061 Lowenthal, SB 1300 Sher, SB 1771 Sher)

To promote the use of electric cars, AB 2061 (Lowenthal) allocates $18 million to provide grants to purchase and lease zero-emission vehicles. Additionally, these funds can be issued to owners or lessees of zero-emission, light-duty cars or trucks to offset the incremental operating costs for these new technologies. Additionally, the California Air Resource Board (ARB), in a move that could have far-reaching national impacts, expanded its regulatory mandate requiring the introduction of alternative fueled vehicles. Current law requires that zero emission vehicles must make up to two percent of a car manufacturer's new car fleet by 2003. Prior to the ARB ruling, the zero-emission vehicle requirement  only included battery-powered vehicles. The new ruling expands the scope of alternative technologies to include gasoline-battery motors, fuel cells, and "super ultra low emissions" gasoline engines.

Senator  Sher spearheaded two mobile source air quality laws addressing global climate change and evaporative emissions at fueling stations. SB 1300 (Sher) requires ARB to adopt refueling performance standards preventing excessive volatile organic compound emissions that are retained in the fuel station dispensing nozzle or return hose. SB 1771 (Sher) also establishes the California Climate Action Registry to record and register voluntary greenhouse gas reductions that have been achieved since 1990. Additionally, this new law requires the adoption of standards to verify emissions reductions and requires the establishment of greenhouse gas emissions reductions goals along with efficiency improvement plans.

Water Quality (AB 885 Jackson, SB 1341 Burton, AB 2746 Nakano)

In response to several high-profile beach closures resulting from leaking or poorly functioning septic systems, AB 885 (Jackson) was enacted to establish minimum statewide standards for septic systems. Up to 30 per cent of the bacteriological loadings discharged to coastal waters are thought to come from improperly managed septic systems. AB 885 requires that the California Department of Health Services , the Coastal Commission, and municipalities adopt state-wide regulations addressing the siting, design, construction, operation, and closure of septic systems. This law also establishes provisions to offer low-interest loans to  property owners for system upgrades that may be required by forthcoming regulations.

In a state with an ever-increasing population and a historical pattern of drought, SB 1341 (Burton) requires the Department of Water Resources to study the amount of water necessary to meet future state needs and to formulate policy recommendations and programs to meet these demands. It also requires the state to evaluate alternative water pricing mechanisms to promote efficient water consumption patterns.

In legislation that may portend changes in other states or nationally, Assemblymember Nakano's AB 2746 was enacted to evaluate the collective multi-media environmental impacts from ocean-going passenger ships. AB 2746 requires the establishment of an environmental task force to evaluate environmental practices and waste streams (e.g., sewage discharges) of large oceangoing passenger ships operating in state marine waters. The recommendations  of this task force will be incorporated into regulatory recommendations for controlling the environmental discharges and releases of these ocean-going vessels.

Hazardous Materials Management (AB 2488 Baldwin)

In an effort to streamline the administrative reporting obligations involving hazardous chemicals without compromising the spirit of community-right-to-know programs, Governor Gray Davis signed AB 2488 (Baldwin). Prior to AB 2488, fire departments expressed concerns about the administrative burden of managing hundreds of bulky hazardous materials business plans (HMBPs) large portions of which were not used by these officials. In response, AB 2488 allows businesses to only submit hazardous materials inventory data lists of emergency contacts; and a site plan identifying the locations of chemical storage locations. Other aspects of the HMBP (i.e., site-specific emergency response & training plans) need not be submitted to the fire department; however, this information must be kept on-site and available for inspection.

Hazardous Substances Cleanup (SB 667 Sher, AB 779 Torlakson)

In a boost to economically distressed neighborhoods, two bills designed to provide grants and loans to cleanup "brown fields" and economically distressed and underutilized properties were enacted. SB 667 (Sher) and AB 779 (Torlakson) provide up to 2.5 million dollar low-interest loans for hazardous waste cleanup efforts.

Environmental Justice (SB 89 Escutia)

Building on legislation from 1999, the Governor signed legislation to evaluate environmental justice policies for adoption by California Environmental Protection Agency (Cal/EPA) agencies, departments, and boards. SB 89 (Escutia) requires the Secretary of the Cal/EPA to implement its environmental justice policy by 2006.

Conclusion

Despite a Democratic governor and a solidly pro-environment, Democratic legislature, the 2000 legislative session was focussed more on promoting enforcement of the existing environmental laws than on greatly expanding the scope of the existing environmental programs. The 2000 legislative session, however, did result in a number of refinements to existing programs ranging from expanding protections for infants and children and the California coastline to cleaning up brownfields and ensuring an adequate water supply for new development.