a r t i c l e s

2001 Environmental Legislative Year in Review

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].

Preoccupied by an unrelenting energy crisis, the California legislature worked overtime in 2001 to keep the lights on while also attending to a busy environmental policy agenda. Although the forecast energy shortfall never materialized, the California legislature yielded noteworthy new laws regulating energy policy, air quality, drinking and storm water, coastal protection, hazardous waste, "brown fields", environmental impact assessments, and environmental justice as discussed below.

Energy and Air Quality

Energy siting, conservation, and market structure reform legislation topped the list of environmental legislative priorities dominating the legislative agenda in 2001. Staking his reelection bid on restoring the stability of the energy market in California, Governor Gray Davis called three extraordinary legislative sessions running concurrently with the regular legislative session. Legislative accomplishments in the energy arena included, among others, initiatives to curb the "demand side" of the equation by providing rebates for those who conserve; other new laws tinkered with the "supply side" by promoting renewable sources of energy and permit streamlining for the more conventional power plants.

Senate Bill (SB) 82 X2 (Murray) is a new law that requires the California Department of General Services to retrofit state buildings with solar energy equipment by 2007 and to require all new buildings constructed beginning 2003 to be powered by solar energy equipment. Assembly Bill (AB) 1207 (Longville) encourages wind energy by authorizing cities and counties to permit small wind energy systems to be located outside urbanized areas as long as specified height and noise limits are not exceed as provided in local ordinances.

Other energy legislation was enacted to abbreviate the permitting process for large, conventional power plants. For the next two years, SB 28 XI (Sher) streamlines the permitting process for large power plants (i.e., exceeding 50 megawatts of electricity) by limiting to 45 days and 100 days a local agency's initial and final reviews, respectively, of an application submitted to the California Energy Commission (CEC) for such a project. This law additionally limits appellate review of an agency siting decision to only the California Supreme Court while abbreviating the time in which the CEC must issue a final decision on a "repower" plant project within six months instead of 12.

SB 28 XI also requires air quality management districts (air districts) to adopt an expedited program for permitting standby power or distributed generation facilities and natural gas transmission facilities. SB 28 XI also requires the California Air Resources Board (ARB) and the air districts to implement a program for expedited retrofit of power plant pollution controls for all generating facilities already subject to retrofit requirements. Other provisions include requiring the ARB to implement an expedited statewide program to identify and bank emissions reduction credits for power plants and natural gas transmission facilities. Finally, this law authorizes payment to air districts of mitigation fees for new power plant emissions where ERCs are not available.

AB X1 31 (Wright) provides relief to heavy industrial electrical customers who have entered into interruptible or curtailable electrical service contracts in exchange for lower electric rates. AB X1 31 allows these industrial operators to fire up their back up power if it is necessary to prevent damage to equipment or to complete the processing of products that would be otherwise irreparably damaged or destroyed. This short-term law, which sunsets on, January 1, 2003, is only available to those facilities that enrolled in an interruptible electric services program before January 1, 2001.

As the deadline (December 31, 2001) for replacing methyl tertiary buty ether (MTBE) approaches, California faces a future with only one fuel alternative: ethanol. In order to speed the development of alternative fuels to replace MTBE, AB 1618 (Matthews) authorizes the California Department of Food and Agriculture to grant a variance from fuel specifications for "developmental engine fuels" as substitutes for low-emissions fuels. The standards would allow the Department to sell the developmental fuels for centrally fueled fleet vehicles.

The California Air Resources Board (ARB) recently designated diesel exhaust to be a toxic air contaminant. Perhaps in response to this, AB 1390 (Firebaugh) was enacted to reduce exposure to airborne toxics and particulate matter by requiring large air quality districts (i.e., those with populations exceeding one million people) to purchase more efficient school buses that generate reduced emissions. Additionally, this law requires that air districts develop a diesel mitigation plan to minimize public exposures to diesel exhaust.

SB 471 (Sher) represents a Proposition 65 (otherwise known as the Safe Drinking Water and Toxics Enforcement Act of 1986) reform package aimed at limiting frivolous Proposition 65 lawsuits. SB 471 bars Proposition 65 lawsuits unless the plaintiff demonstrates that the suit is of merit. This requires issuance of a "certificate of merit" by an expert, which demonstrates good cause for the action, based on credible evidence. Additionally, SB 471 prohibits the settling of a Proposition 65 lawsuit without participation of the State Attorney General or the County District Attorney; otherwise, the settlement is not binding. Finally, the new law establishes a number of factors that must be considered in fashioning civil penalties, such as weighing the economic or deterrent effect of a penalty on the violator.

With the help of testimony from Erin Brokovitch, twin bills regulating toxic mold became law. AB 284 (Jackson) opens a new chapter in the nascent development of laws governing mold. Prior to AB 284, there were no laws governing mold exposure, identification, and remediation. This new law directs the California Research Bureau in conjunction with the California Department of Health Services to complete a study on fungal contamination affecting indoor environments by January 1, 2003. The results of the study may serve as a basis for DHS to develop standards and guidelines for fungal contamination.

SB 732 (Ortiz) adopts the Toxic Mold Protection Act of 2001 which requires sellers of commercial, industrial, or residential property who know mold affects the premises or exceeds permissible exposure levels (PELs), to disclose the same to prospective buyers. Additionally, residential landlords who have reasonable cause to believe mold affects the premises or exceeds the PEL must disclose that information to their tenants. Ancillary provisions of this new law establish exemptions for remediation activities that take place pursuant to DHS guidelines. This bill authorizes the development of PELs for mold, which are subject to amendment every five years.

Water Quality

SB 351 (Ortiz) was introduced in response to the uproar surrounding the Pacific Gas and Electric lawsuit brought by Erin Brockovitch, which was widely publicized in a movie of the same name. This new law requires the development of a drinking water standard (i.e., maximum contaminant level [MCL]) for hexavalent chromium. Currently, the California Safe Drinking Water Act (SDWA) only establishes an MCL for total chromium, not the more potent hexavalent form. SB 463 (Perata) was introduced in response to the Bush administration's reticence in adopting the Clinton Administration's five-fold lower arsenic standard for drinking water. With SB 463, the California Legislature entertained its own standard by requiring the California Department of Health Services (DHS) to adopt a revised MCL for arsenic by June 30, 2004.

AB 378 (Calderon) was introduced to protect sources of drinking water from being degraded as a result of remediation activities. This law establishes cleanup standards and oversight for the discharge of remediated water into a public source of drinking water (i.e., surface or groundwater). Under AB 378, the Regional Water Quality Control Board (RWQCB) must consult with the affected public water systems and other relevant agencies before establishing cleanup standards that could potentially affect these sources of drinking water. Another bill focused on groundwater quality - AB 599 (Liu) - for the first time creates a statewide groundwater monitoring system. This program requires the State Water Resources Control Board (SWRCB) to establish a comprehensive groundwater-monitoring program to evaluate and maintain the water quality of California's 390 groundwater basins.

In light of a number of recent high profile beach closures due to high bacteriological exceedances, the California legislature directed attention at the source of the problem. AB 285 (Wayne) looks upstream in an effort to ascertain the scale and magnitude of the problem and in order to solicit federal government funds to address sewer repairs. AB 285 (Wayne) requires the SWRCB to develop uniform overflow event reports for use by sanitary sewer system operators in reporting sewer overflows exceeding reportable quantities. Finally, AB 639 (Nakano) requires the SWRCB and the California DHS to develop fast-turn-around diagnostic tests that yield pathogenic results in coastal waters in a timeframe that bests the current turn-around of 24 to 48 hours from the time in which the sample was collected. This legislation will assist public officials in making more timely decisions on beach closings.

SB 72 (Kuehl) is designed to address the lack of uniformity in collecting storm water samples. It establishes minimum, standard monitoring requirements for municipalities and industrial storm water permit holders. These standards include uniform methods to collect and analyze samples, minimum detection limits, and annual reporting requirements.

AB 1664 (Pavley) revises the penalties associated with discharges of hazardous substances, oil, waste discharge requirements, or cease and desist violations or cleanup and abatement orders. It additionally establishes a penalty structure for violations committed by wastewater treatment plant operators, which range from submitting false information and fraud to willful or negligent violation of an National Pollutant Discharge Elimination System (NPDES) permit.

In an effort to avert the consequences of another resource crisis, AB 331 (Goldberg) requires Department of Water Resources (DWR) to find ways to use more recycled water and to identify impediments to increased use of recycled and reclaimed water, such as the evaluation of impediments inherent in plumbing codes.

Hazardous Waste

This year the California legislature pioneered what could be a trend-setting law: SB 633 (Sher) that bans the manufacture, sale, or supply of mercury fever thermometers and other mercury-containing products.

SB 470 (Sher) codifies the Universal waste requirements which now include aerosol can puncturing (see SB 1158 [Knight]) and also increases the amount of used oil that "do-it-yourselfers" can haul to a collection center without a hazardous waste manifest from 20 to 55 gallons.

SB271 (O'Connell) replaces the current "milk run" manifesting program that allows a modified manifesting procedure for non-RCRA (Resource Conservation and Recovery Act) hazardous wastes or for RCRA wastes that do not require a manifest. SB 271 expands the scope of the program in what is now called a "consolidated manifest" system that allows use of the consolidated manifests for waste streams that include: paint-related waste, spent photographic solutions, asbestos, dry cleaning solution, brake fluid, solids contaminated with used oil, chemical and laboratory packs from schools, hydroxide sludge contaminated with metals generated from wastewater treatment, and inks.

AB 1329 (Lowenthal) re-enacts an expired law that allows off-site hazardous waste facilities that accept wastes for transfer, storage, or treatment (not disposal) to test wastes using their own uncertified laboratories. This testing is allowed as long as the laboratory meets specified quality assurance requirements and only limits its testing to determining if the hazardous waste is subject to the facility's waste acceptance criteria or to confirm that the waste matches its manifest.

AB 414 (Dutra) restores a provision of the hazardous waste code allowing a variance to reuse lead-contaminated soils on highway improvement projects. Prior to the enactment of this law, lead-contaminated soil exceeding 350 parts per million (ppm) could not be used as fill along a highway easement, even if laboratory test results revealed the waste to not be hazardous waste. This re-established variance is limited to the California Department of Transportation and other public transportation entities.

Hazardous Substances

When California was flush with a $10 billion surplus in 2000, the California legislature enacted SB 667 (Sher) and AB 779 (Torlakson) that infused cash into the State's "brownfields" program in an effort to clean up underutilized properties. These programs collectively referred to as the CLEAN loan program, provided up to $2.5 million for low-interest loans for hazardous substances cleanup. As a follow up, AB 254 (Frommer) was introduced to clarify that local governments can participate in the CLEAN loan program and that the RWQCBs and, in some cases local agencies can serve as the lead agency. SB 468 (Sher) additionally tweaks the CLEAN program by establishing a state-approved environmental insurance program, known as FAIR (Financial Assurance and Insurance for Redevelopment Program), to provide cleanup loan guarantees for smaller redevelopment programs. The CLEAN program requires environmental insurance in order to participate in the program. Finally, SB 32 (Escutia) authorizes local agencies to compel landowners to complete a preliminary endangerment investigation and to compel cleanup for small sites (i.e., sites less than five acres).

Environmental Impact Reporting

SB 610 (Costa) was enacted to improve the linkage between land use development and the availability of water supply. Previous law (SB 901, Costa in 1995) requires that developers of large land developments demonstrate that their proposed projects will be served by a reliable dry year water supply. SB 610 serves as "clean up" legislation that requires cities and counties that prepare environmental impact reports (EIRs) to request a determination by a public water system (PWS) of whether sufficient water supply exists to meet the project demand. This requirement applies to large residential (over 500 units), large commercial (over 1,000 persons or 500 square feet), large manufacturing (over 1,000 staff, or over 40 acres or 650,000 square feet of manufacturing space) development projects. SB 610 expands the program to cover more abbreviated environmental analyses (known as "negative declarations") to request the water assessments within 90 days and to include the assessment in the EIR or negative declaration. The local government agency is authorized to compel the PWS to provide the assessment under the authority of a writ of mandamus if necessary.

Environmental Justice

AB 1553 (Keeley) requires the California Office of Planning and Research to establish guidelines for environmental justice that are to be made available to cities and counties for inclusion in their General Plans. The guidelines must provide for planning for equitable distribution of new public facilities and for providing locations of industrial facilities to avoid an over-concentration near residences and schools. Additionally, the guidelines must promote opportunities for transit-oriented developments.

Conclusion

Despite the emphasis on energy policy in 2001, the California legislature fashioned new policy in regulating toxic mold, mercury, drinking water standards and protecting water supplies used for drinking water. In an effort to prevent the next California crisis, the legislature also enacted programs to protect and ensure adequate water supply. The Legislature also found time to refine several programs including the new Brownfields loan program, storm water releases and monitoring and Proposition 65.