2002 Environmental Legislative Year in Review

by Gary A. Lucks J.D.*

Copyright 2002 © 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].

California, often recognized as a harbinger of environmental policy, paved the way for a number of new groundbreaking environmental programs for 2003. The California Legislature produced a number of novel new laws addressing terrorism and hazardous chemicals, curbing greenhouse gas emissions from autos, ambitious alternative energy initiatives, and additional upgrades to underground storage tanks.

These and other new laws, which became effective on January 1, 2003, are described below.

Hazardous Waste and Hazardous Materials

(SB 489 Romero, SB 1257 Murray, AB 2687 Maldonado, AB 2067 Nakano, SB 2065 Kuehl)

The tragedy of September 11 spawned a flurry of antiterrorism laws intended to control hazardous chemicals and keep them from terrorists. SB 489 (Romero) requires the California Department of Toxic Substances Control (DTSC) to establish a list of hazardous wastes that present potential risk to the public in the event they are confiscated by terrorists or criminals. If a hazardous waste transporter or owner or operator of a treatment, storage, or disposal (TSD) facility determines that a "reportable quantity" of a hazardous material or waste is missing, he or she must notify DTSC.

This legislation additionally requires that applicants seeking permits for TSD facilities must submit a disclosure statement and fingerprint images to DTSC. DTSC must then submit the fingerprint images to the California Department of Justice (DOJ) so that DOJ can cross check against its criminal offender record.

Other laws were approved to protect the public from the risks associated with transporting hazardous wastes and hazardous materials. SB 1257 (Murray) requires the California Highway Patrol (CHP) to increase its inspection frequency of hazardous material haulers while expanding its authority to regulate transportation of compressed or liquefied hydrogen gas or liquid fuels that generate hydrogen gas. SB 1257 also requires that vehicles that haul hazardous material must be equipped with a working two-way communications device. AB 2687 (Maldonado) was approved to protect drinking water sources from illegal dumping of hazardous materials. This legislation authorizes the CHP to restrict transportation of hazardous chemicals on roadways that are located within the watershed of a drinking water reservoir.

AB 2067 (Nakano) was enacted to enhance emergency preparedness to address the potential for a release of radioactive iodine from nuclear power plants. This legislation requires the Department of Health Services (DHS) and the Office of Emergency Services (OES) to establish a program to expeditiously distribute potassium iodine tablets following an accidental release of radioactive iodine. The program is intended to supply the tablets to those who reside, work, or attend school near the San Onofre Nuclear Generation Station near San Clemente and the Diablo Canyon Nuclear Power Plant located near San Luis Obispo. Other legislation regulates low-level radioactive waste (LLRW). SB 2065 (Kuehl) requires those who generate or treat LLRW to annually submit a report to DHS. The report must include information on the weight, type, and containers of LLRW generated and treated.

Lead

(SB 460 Ortiz)

SB 460 (Ortiz) authorizes local health departments to investigate lead exposures and bring proceedings against property owners found to have untenantable properties. Enforcement proceedings can be brought to abate violations involving properties with deteriorated lead-based paint, lead-contaminated dust, lead-contaminated soil, and lead levels exceeding levels established by DHS regulations. In these proceedings, a property owner can be compelled to repair, rehabilitate, vacate, or demolish an untenantable building. This legislation additionally, requires that individuals who perform lead assessments and abatement services in public schools be certified. SB 460 also establishes a crime for training without accreditation or for uncertified businesses that offer lead-related construction courses.

Greenhouse Gases, Air Quality, and Energy

(AB 1493 Pavley, SB 812, Sher AB 2637, Cardoza AB 2650, Lowenthal SB 1078 Sher SB 1038 Sher, AB 1561 Kelly, SB 58 Keeley)

Against a strong undertow of opposition from the automobile industry, AB 1493 (Pavley) was enacted to manage the risk of global warming. This groundbreaking law requires the Air Resources Board (ARB) to develop regulations that are designed to achieve "the maximum feasible and cost-effective reduction" of greenhouse gases emitted by passenger vehicles, light-duty trucks, and other noncommercial vehicles. Acceding to the demands of the auto industry, the forthcoming regulations must provide flexibility in the means by which compliance is to be achieved and they may apply only to model-year 2009 or later motor vehicles. Other greenhouse gas legislation builds on SB 1771 (known as the California Climate Action Registry which was passed in 2000), which established a program to record voluntary greenhouse gas reductions since 1990. SB 812 (Sher) authorizes those who conserve native forestlands to participate in the Climate Action Registry program because forests sequester carbon dioxide from the atmosphere.

Traditional criteria and air toxics programs were also affected by legislation enacted during this past biennial session. AB 2637 (Cardoza) addresses ozone "transport" by requiring the establishment of an enhanced smog check program in the urbanized areas of the San Francisco Bay area. AB 2650 (Lowenthal) is directed at reducing diesel emissions from idling trucks near marine terminals. This law requires that diesel trucks not idle for more than 30 minutes while waiting to load or unload at a marine terminal.

In an effort to wean itself from reliance on fossil fuels and increase the proportion of renewable energy used in California, SB 1078 (Sher) establishes a program requiring energy suppliers to purchase a specified minimum percentage of electricity from renewable energy resources. SB 1038 (Sher) is a companion bill that requires the State Energy Resources Conservation and Development Commission (otherwise known as the "CEC") to develop a plan 1) describing the costs of developing and connecting renewable energy into the transmission and distribution system and 2) providing recommendations on how to achieve at least 20% annual contribution from renewable sources of energy. Each electrical corporation is required to develop plans that describe how each corporation will increase its procurement of renewable energy resources by 1% per year. Ultimately, 20% of its retail sales must be procured from eligible renewable energy resources by 2017.

Other legislation was enacted to reduce demand for energy. AB 1561 (Kelley) requires that the CEC establish energy efficiency standards for residential clothes washers that are at least as efficient as commercial washers. SB 58 (Keeley) establishes procedures designed to ensure that customer requests for net energy metering be processed in a timely manner.

Recycling and Procurement

(SB 1374 Kuehl, AB 2770 Matthews, AB 498 Chan)

With much of the heavy lifting behind them on solid waste management and recycling, the Legislature had the luxury of refining existing programs. This year they were successful in passing legislation designed to increase the amount of construction and demolition wastes diverted from municipal landfills. SB 1374 (Kuehl) requires the Integrated Waste Management Board (IWMB) to adopt a model ordinance designed to govern the diversion of construction and demolition wastes from landfills, and measure progress achieved.

Under the current law, the Integrated Waste Management Act, municipalities are required to demonstrate how they will reduce nonhazardous waste from landfills using source reduction and recycling first and land filling and "transformation" second. Only a specified amount of transformation may be used to achieve the waste reduction objectives. AB 2770 (Matthews) revises the definition of "transformation" to exclude gasification (a non-combustion thermal technology) thus paving the way for increased use of gasification.

Finally, AB 498 (Chan) requires that the state General Services Agencies flex its $3 billion/year purchasing muscle to assist California agencies in efforts to purchase environmentally preferable products.

Hazardous Substances Cleanup and Brownfields

(AB 2436 Frommer)

Having passed a number of Brownfields cleanup bills in the past couple of years, the California Legislature directed this year's efforts to refinements to existing cleanup programs. AB 2436 (Frommer) establishes a comprehensive program to promote the listing on the Internet of environmental restrictive covenants issued by state and local agencies. Specifically, AB 2436 allows local government to provide to CalEPA for posting on its website information regarding environmental restrictive covenants filed for residually contaminated properties. Additionally, AB 2436 requires regional water quality control boards (RWQCBs), the State Water Resources Control Board (SWRCB), the IWMB, and CalEPA to maintain a list of all agreements and instruments that restrict land uses imposed by those agencies. Each agency is also required to display these restrictions on its own respective website.

Water Quality and Water Supply

(AB 2717 Hertzberg, AB 2683 Canciamilia, SB 1653 Costa, SB 469 Alpert, AB 2534 Pavley, SB 649 Committee on Environmental Quality, SB 1822 Sher).

As the energy supply crisis wanes, the legislature is girding for the next statewide challenge to ensure that there will be sufficient water supplies to serve California's burgeoning population. Estimates forecast an additional 15 million Californians within the next two decades. AB 2717 (Hertzberg) was passed to address this demand by requiring the Department of Water Resources (DWR) to convene a water desalination task force. The task force is authorized to evaluate the feasibility as well as the potential impediments to generating fresh water by desalinating seawater and brackish water.

The CALFED Bay Delta process has culminated in a watershed agreement between the federal and state governments, along with agricultural and environmental interests to improve the Bay-Delta's ecosystem. Although the stakeholders have reached agreement on how to address water supply reliability, water quality, and the integrity of the levees and channels in the Bay-Delta, they were unable to agree on a governance structure for CALFED. AB 2683 (Canciamilia) and SB 1653 (Costa) were enacted to fashion such a structure.

SB 469 (Alpert) was enacted to move the TMDL (total maximum daily load) program forward. This bill requires the SWRCB to prepare guidelines to assist the SWRCB and regional boards listing and delisting impaired waters in their efforts to comply with Section 303 (d) of the Federal Clean Water Act. The guidelines must be completed by July 1, 2003. AB 2534 (Pavley) enacted the Watershed, Clean Beaches, and Water Quality Act. This act makes grants available to public agencies and nonprofit organizations to support projects to improve water quality at public beaches by improving water quality monitoring and sewer capability and by reducing runoff pollution and controlling nonpoint source water pollution.

SB 649 (Committee on Environmental Quality) regulates petroleum and other contaminants generated from recreational watercrafts by requiring the Department of Boating and Waterways to develop regulations governing vessel pump out and oil recycling facilities. Additionally, the Department is required to develop standards for restrooms, and receptacles for the purpose of separating, reusing, or recycling solid waste materials.

For the past few years, the legislature has directed DHS to develop drinking water standards on a chemical-by-chemical basis. This year, SB 1822 (Sher) directed DHS develop a drinking water standard for perchlorate - a chemical commonly used in the aerospace industry. DHS must perform a risk assessment from which to establish a public health goal for perchlorate. A primary drinking water standard must be established by January 1, 2004.

Tanks

(AB 2481 Frommer, SB 483 Sher)

Despite the use of state-of-the-art equipment, underground storage tanks (USTs) have been found to leak fuel containing methyl tertiary butyl ether (MTBE). AB 2481 (Frommer) was enacted to respond to the theory that MTBE is released as a gas and then condenses into a liquid contaminant affecting soils and groundwater. AB 2481 requires that new tanks installed after July 1, 2003, meet the definition of "product tight" and have a continuous monitoring system capable of detecting liquid or vapor leaks from the primary vessel to the secondary tank. This law also requires that owners of USTs that are located within 1,000 feet of a drinking water well complete an enhanced leak detection test no later than January 1, 2005.

SB 483 (Sher) requires a reclamation plan for surface mining operations for gold, silver, copper, or other metallic minerals located within one mile of any Native American sacred site. These plans require financial assurances and a commitment to backfill and grade all excavation to "achieve the approximate original contours of the mined lands prior to mining."

Environmental Justice

(SB 1542, Escutia, AB 2312, Chu, SB 199, Torlakson)

Environmental justice initiatives continue to emerge from the legislature on a piecemeal basis. SB 1542 (Escutia) requires that countywide solid waste siting elements describe local government actions taken to solicit participation by minority and low-income populations. Local governments must complete the siting elements by January 1, 2003. Notwithstanding the lean budget and ensuing deficit, the Governor managed to find resources to support environmental justice grants and loans. AB 2312 (Chu) authorizes CalEPA to award grants to federally recognized tribes and to nonprofit entities.

SB 199 (Torlakson) increases to $5 million the amount of grants and loans available to neighborhoods suffering from high poverty or unemployment rates. Cities and counties may use these funds to implement growth polices and programs that reduce the hazards of pollution or environmental degradation or to promote infill development to revitalize these communities.

Enforcement

(AB 2351, Canciamila, AB 947, Jackson, AB 248, Keeley)

AB 2351 (Canciamila) amends recent law that requires a mandatory minimum penalty for a "serious violation" of a Waste Discharge Requirements (WDR) permit (see AB 1104, passed in 1999). AB 2351 carves out an exemption from the mandatory minimum penalty assessment for violations that occur during "start up" of a new or reconstructed wastewater treatment facility. This law also modifies the formula used to determine supplemental environmental projects that can be used in lieu of penalties.

AB 947 (Jackson) increases penalties for noncompliance with pesticide requirements to $5,000 from $1,000 per violation.

AB 2486 (Keeley) codifies the Environmental Circuit Prosecutor Project. The Circuit Prosecutor Project was established to discourage environmental law violations, with a fair, uniform, and effective statewide prevention, enforcement, and prosecution program.

Conclusion

Environmental policy for 2002 took shape during an election year preoccupied with a soaring budget deficit that reached record levels. Despite these distractions, the Governor and the Legislature managed to produce a number of noteworthy laws including a first-in-the-country program to curtail greenhouse gas emissions along with new laws designed to keep hazardous chemicals out of the hands of terrorists. Other key legislation includes a requirement to expand the alternative energy portfolio to 20% by 2017. Finally, despite the 1998 deadline to upgrade underground storage tanks using state-of-the-art technology, the Legislature crafted another program to prevent MTBE releases from underground fuel tanks.