The 2021 Environmental Legislative Update: a Return to Normalcy

• Jurisdiction: California,United States
• Citation: Vol. 31 No. 1
• Publication year: 2022
• Author: Written by Gary A. Lucks
• topic: Environmental Law,Public Sector Law

THE 2021 ENVIRONMENTAL LEGISLATIVE UPDATE: A RETURN TO NORMALCY

Written by Gary A. Lucks¹

INTRODUCTION

As the 2021 legislative session began, the democratically controlled California legislature welcomed a more politically aligned federal administration and a more environmentally friendly U.S. Environmental Protection Agency. California's 2021 legislative session was characterized by a return to a level of normalcy, setting aside the unusual mid-term effort to recall Governor Newsom. Governor Newsom resoundingly beat back the challenge despite the sour mood of the electorate, which was driven by the pandemic and another dystopian fire season.

The internecine quarrels that plagued the California legislature during the last legislative session gave way to a more typical legislative outcome in 2021, with a total of 2,369 new laws introduced and 836 landing on the Governor's desk—twice as many as the prior legislative session. The governor approved 99% of the environmental bills including: major reform at the Department of Toxic Substances Control (DTSC); significant modifications to the hazardous waste generator requirements, revamping the program to collect mercury-containing thermostats; perfluoroalkyl or polyfluoroalkyl substances (PFAS) restrictions; and "truth in advertising" relating to green claims. The governor additionally signed a package of YIMBY (Yes in My Back Yard) laws making it easier to up-zone land uses to generate more housing in California. Finally, the legislature delivered new laws designed to advance offshore wind (OSW), electrify off-road engine equipment, elevate penalties for health and safety violations, streamline local permitting of electric vehicle charging infrastructure, and authorize water agencies to capture and treat stormwater. Except for budget-related urgency laws that passed by a supermajority (which took effect on the date of signing), the enacted laws became effective on January 1, 2022.

REVIEW OF LEGISLATION

HAZARDOUS WASTE

For years, an embattled DTSC has faced criticism from the non-governmental organization (NGO) community, claiming it was too closely tied to industry and failed to protect the public from exposure to hazardous materials and waste. Conversely, the regulated community has alleged that DTSC has been overly strict and byzantine, and responsible for permit backlogs for treatment, storage and disposal facilities (TSDFs).

In an attempt to reform the agency, the legislature created an independent review panel which, in 2018, completed a three-year

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evaluation of the barriers impacting agency performance and improving DTSC effectiveness, assessing TSDF permitting, hazardous waste enforcement, public outreach and transparency, and fiscal management and accountability. In 2021, many of these recommendations were codified in SB 158 (Committee on Budget and Fiscal Review) which was signed by the governor with a supermajority in both houses. This new law focuses on: (1) reviewing and monitoring DTSC's strategic plan and reorganization; (2) auditing remediation cost recovery; (3) adding personnel to improve permit backlogs and business operations; (4) improving enforcement; and (5) increased programmatic funding.

DTSC's statutory obligations have grown significantly since 1991 without any budgetary increase because most of the fees that support DTSC's programs had not been updated since 1998. SB 158 provides additional funding to close the historical structural budgetary deficits that have plagued the agency for years, and resulted in workload deficits that impacted programs and activities. In addition to making a one-time general fund allocation of $500 million to address brownfields, SB 158 makes significant adjustments to the Hazardous Waste Control Account fee structures for hazardous waste generators and handlers.

SB 158 also establishes a five-member Board of Environmental Safety within DTSC. The Board is empowered to, among other functions, review and approve annual priorities and adopt agency performance metrics; develop long-term goals for DTSC's programs; address appeals of DTSC hazardous waste facility permit decision; and convene public hearings on DTSC's permit and remediation decisions. The Board is also authorized to recommend action on jurisdictional matters such as, for example, environmental justice and fee structures. This new law additionally creates an Office of the Ombudsperson to address recommendations and complaints from the public and the regulated community, and to offer assistance to the public.

Beginning in March 2025, DTSC must also address programmatic reforms by triennially updating a state hazardous waste management plan. This plan must include waste reduction goals to reduce the risk of exposure to communities threatened by releases of hazardous waste. The plan must additionally provide updates to DTSC's Pollution Prevention Program and recommend revised criteria for determining which wastes are to be regulated as hazardous waste. The hazardous waste management plan must strengthen financial assurance requirements to manage corrective actions for TSDFS. The plan must also establish accelerated timelines for DTSC to complete TSDF permit renewals, while also providing for accountability for missed deadlines.

Permit applications for TSDF permits expiring before January 1, 2025 must be submitted to DTSC at least 180 days before the permit lapses. Within 90 days of receiving a permit application for a TSDF, the agency must publish on its website the estimated timeline for reviewing the application. DTSC must also issue its permit decision no later than one year of the permit's end date. In the event DTSC fails to issue a timely hazardous waste facilities permit decision, it must publish a public report explaining the basis for the delay along with a proposed schedule for making that permit decision.

SB 158 additionally provides for permit extensions for existing hazardous waste facilities where the owner or operator submits a renewal application before the expiration of the permit and the application is deemed complete. In that event, the lapsed hazardous waste facility permit would be extended until DTSC approves the renewal application or where the permit renewal application is denied, provided all applicable rights of appeal have been exhausted.

The U.S. Environmental Protection Agency's Hazardous Waste Generator Improvement Rule reorganized and modified regulations governing hazardous waste management. Among many other changes, AB 698 (Committee on Environmental Safety and Toxic Materials) replaces the "conditionally exempt small quantity generator" hazardous waste category with the "very small quantity generator" category while recasting the amount of hazardous waste and which wastes are to be included in calculating the monthly threshold limits determining generator status. AB 698 provides the statutory authority to harmonize the California Hazardous Waste Control Law with significant amendments to the federal Resource Conservation and Recovery Act regulating the generation of hazardous waste.

AB 698 additionally establishes explicit labeling information that must include the chemical state of a hazardous waste. This new law additionally establishes rules allowing a small quantity generator (SQG) of hazardous waste to avoid more stringent requirements governing large quantity generators where, in a given month, the generator exceeds the SQG monthly threshold limit. Under AB 698, SQGs are entitled to exceed the minimum monthly thresholds twice in a calendar year provided the generator manages this "Episodic Hazardous Waste" and complies with specified labeling and record keeping requirements pertaining to the

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episodic event(s). These statutory changes set in motion a forthcoming rulemaking effort by DTSC to implement these changes in Title 22 of the California Code of Regulations.

CLEAN UP

AB 1024 (Santiago) was prompted by delays and cost overruns associated with the lead and arsenic cleanup in the community impacted by Exide—the former lead battery recycling facility in Vernon, California—where lead and arsenic releases were brought to light by a recent audit. To address transparency, accountability, and funding challenges, AB 1024 requires DTSC to establish performance milestones for the Exide cleanup, including posting cleanup-related information on its internet website.

Local health officers are authorized to oversee cleanup of contaminated sites pursuant to a voluntary agreement for any sites where neither DTSC nor a regional water quality control board (RWQCB) serve as a lead agency. According to Assembly Member Quirk, there have been many instances where cleanup operations managed by local health agencies have resulted in inconsistent oversight, under-qualified personnel, and site cleanup closures that failed to meet DTSC and RWQCB cleanup standards. AB 304 is intended to address these deficiencies by helping ensure that local health officers overseeing cleanup operations have the necessary expertise to manage a remedial action. Local health officers must notify DTSC and the relevant RWQCB of their intent to oversee a voluntary local cleanup, which leaves the state agencies with 30 days to determine whether to nonetheless retain oversight over the project.

HAZARDOUS MATERIALS

AB 480 (Carillo) responds to notorious chemical releases in the state, including a hexavalent chromium releases...