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SB-774 Hazardous substances: California Toxic Substances Board.(2017-2018)

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Date Published: 07/13/2017 09:00 PM
SB774:v96#DOCUMENT

Amended  IN  Assembly  July 13, 2017
Amended  IN  Assembly  July 03, 2017
Amended  IN  Senate  March 23, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Senate Bill No. 774


Introduced by Senator Leyva

February 17, 2017


An act to amend Section 11553.5 of the Government Code, and to add Article 1.5 (commencing with Section 25108) to Chapter 6.5 of, to add Article 1.5 (commencing with Section 25303) to Chapter 6.8 of, and to add Chapter 6 (commencing with Section 24700) to, Division 20 of the Health and Safety Code, relating to hazardous waste.


LEGISLATIVE COUNSEL'S DIGEST


SB 774, as amended, Leyva. Hazardous substances: California Toxic Substances Board.
The hazardous waste control laws provide that the Department of Toxic Substances Control regulates the handling and management of hazardous substances, materials, and waste. The Carpenter-Presley-Tanner Hazardous Substance Account Act establishes a program authorizing certain responses to releases of hazardous substances, including spills and hazardous waste disposal sites, that pose a threat to the public health or the environment, and imposes liability for hazardous substance removal or remedial actions. The hazardous waste control laws and the Carpenter-Presley-Tanner Hazardous Substance Account Act require the department to adopt regulations to implement their provisions and establish various procedures and standards.
This bill would establish the California Toxic Substances Board in the department. Where the hazardous waste control laws and the Carpenter-Presley-Tanner Hazardous Substance Account Act authorize or require the department to adopt regulations, the bill would instead authorize or require, as applicable, the department to develop draft regulations and would require the board to review and adopt those regulations, subject to revision by the board. The bill, notwithstanding any other law, would require the board to appoint the Director of Toxic Substances Control, who would hold office at the pleasure of the board. The bill would provide for the membership of the board, the salary and terms of the board members, and other various powers and duties of the board. The bill would require the board to conduct monthly public hearings to consider matters before the board relating to hazardous waste facilities permits and sites. The bill would require the department to provide information and records, and testify, concerning the agenda items at the hearing. The bill would authorize the board, based on the documents submitted, information presented, and testimony taken at the hearing, to to, through a board action, direct the department to take certain actions with regard to a hazardous waste facilities permit or site, and would require the department to comply with those directions.

Existing law requires counties and certain regional governments to prepare, review, and adopt county hazardous waste management plans and regional hazardous waste management plans, respectively, and requires the department to prepare and adopt a state hazardous waste management plan.

This bill would require the board to draft, review, and update those hazardous waste management plans.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 11553.5 of the Government Code is amended to read:

11553.5.
 (a) Effective January 1, 1988, an annual salary of seventy-nine thousand one hundred twenty-two dollars ($79,122) shall be paid to the following:
(1) Member of the Agricultural Labor Relations Board.
(2) Member of the State Energy Resources Conservation and Development Commission.
(3) Member of the Public Utilities Commission.
(4) Member of the Public Employment Relations Board.
(5) Member of the Unemployment Insurance Appeals Board.
(6) Member of the Workers’ Compensation Appeals Board.
(7) Member of the State Water Resources Control Board.
(8) Member of the California Toxic Substances Board.
(b) The annual compensation provided by this section shall be increased in any fiscal year in which a general salary increase is provided for state employees. The amount of the increase provided by this section shall be comparable to, but shall not exceed, the percentage of the general cost-of-living salary increases provided for state employees during that fiscal year.
(c) Notwithstanding subdivision (b), any salary increase is subject to Section 11565.5.

SEC. 2.

 Chapter 6 (commencing with Section 24700) is added to Division 20 of the Health and Safety Code, to read:
CHAPTER  6. Hazardous Substances
Article  1. General Provisions

24700.
 For purposes of this chapter, “board” means the California Toxic Substances Board.

24701.
 Except where the context otherwise requires, the definitions provided in Article 2 (commencing with Section 25110) of Chapter 6.5 and Article 2 (commencing with Section 25310) of Chapter 6.8 govern the construction of this chapter.

Article  2. California Toxic Substances Board

24710.
 The Legislature hereby finds and declares that in order to provide effective, reliable, transparent, and accountable oversight of California’s hazardous waste management and the remediation of contaminated sites, and to prevent threats associated with hazardous substances, it is necessary to establish a governing and an oversight board over the Department of Toxic Substances Control.

24711.
 (a) The California Toxic Substances Board is hereby established in the department, consisting of five members appointed by the Governor and confirmed subject to confirmation by the Senate. One member shall be an attorney admitted to practice law in this state who is qualified in the field of environmental law pertaining to hazardous waste, hazardous substances, or site remediation. One member shall be an environmental scientist qualified in the fields of toxicology, chemistry, geology, industrial hygiene, or engineering specific to the statutory responsibilities of the board. One member shall be a scientist or medical professional qualified in the area of toxic substances. One member shall be qualified in the area of regulatory permitting. One member shall be a member of the public.
(b) Three members of the board shall constitute a quorum for the transaction of business of the board.

24712.
 (a) A member of the board shall not participate in any board action in which the board member has a disqualifying financial interest in the decision within the meaning of Section 87103 of the Government Code.
(b) A board member shall not participate in a proceeding before the board as a consultant or in any other capacity on behalf of a waste discharger.
(c) Upon the request of a person, or on the Attorney General’s own initiative, the Attorney General may file a complaint in the superior court alleging that a board member has knowingly violated this section and the facts upon which the allegation is based and asking that the member be removed from office. Further proceedings shall be in accordance as near as may be with rules governing civil actions. If after trial the court finds that the board member has knowingly violated this section, it shall pronounce judgment that the member be removed from office.

24713.
 The annual salary of the members of the board is provided for by Chapter 6 (commencing at Section 11550) of Part 1 of Division 3 of Title 2 of the Government Code. A member of the board shall receive the necessary traveling and other expenses incurred by that member in the performance of his or her official duties out of appropriations made for the support of the board. If necessary, the members of the board may travel within or without the state.

24714.
 (a) A member of the board shall be appointed for a term of four years, except as provided in subdivision (b). A vacancy shall be immediately filled by the Governor for the unexpired portion of the term in which it occurs.
(b) The terms of the members of the board shall be staggered. Two initial members shall serve a two-year term, and three initial members shall serve a four-year term. The Governor shall determine which initial members shall serve two-year terms and which shall serve four-year terms.

24715.
 A member of the board may be removed from office by the Legislature, by concurrent resolution adopted by a majority vote of all members elected to each house, for dereliction of duty, corruption, or incompetency.

24716.
 (a) The board shall conduct monthly public hearings to consider matters before the board, at times and places determined by the board. The first meeting of the board shall be held on or before August 1, 2018. The Governor shall designate the time and place for the first meeting of the board.
(b) (1) No less than 30 days before a hearing, the board shall post the agenda for the hearing on the board’s Internet Web site and submit the agenda to the director. Any changes made to the agenda shall be posted on the board’s Internet Web site and submitted to the director no less than 14 days before the hearing.
(2) When setting the monthly agenda for a hearing, the board shall prioritize hazardous waste facilities permits and sites to be reviewed based on criteria that include, but are not limited to, the following, as applicable:
(A) The status of the applicable hazardous waste facilities permit.
(B) The nature of the site and any remedial action on the site.
(C) The proximity of the site or hazardous waste facility to vulnerable populations and sensitive receptors, including, but not limited to, schools, child care facilities, residences, hospitals, elder care facilities, and other sensitive locations.
(D) The potential for a release of a hazardous substance.
(E) The amount of time the action has been pending.
(c) The board may hear matters that are under the authority of the board pursuant to this chapter upon its own volition, and as follows:
(1) (A) The board may hear matters relating to a hazardous waste facilities permit or site upon receipt of a petition requesting a hearing that is submitted by a permittee, a person, as defined in Section 11405.70 of the Government Code, representing the community where the hazardous waste facility is located, or the department, if any of the following apply:
(i) The hazardous waste facilities permit has been in continued or interim status for more than 24 months.
(ii) A renewal application for a hazardous waste facilities permit was submitted on or after January 1, 2018, the facility has previously been found to have or is found by the board to have had three or more serious violations, and the department has not taken enforcement action regarding the permit or site pursuant to Chapter 6.5 (commencing with Section 25100) or Chapter 6.8 (commencing with Section 25300).
(iii) The site does not have a hazardous waste facilities permit and there is a risk of exposing vulnerable populations and sensitive receptors, including, but not limited to, schools, child care facilities, residences, hospitals, or elder care facilities, to a release of a hazardous substance.
(B) Based on the documents submitted, information presented, and testimony taken at a hearing, the board may direct the department director, through a board action, to resolve outstanding issues relating to a hazardous waste facilities permit, set including, but not limited to, setting a timeline for a resolution or permit decision, and require decision and requiring that conditions be placed on a hazardous waste facilities permit to address hazards to public health or the environment. The department director shall comply with directions received from the board through a board action pursuant to this paragraph.
(2) (A) The board may hear matters relating to a site upon receipt of a petition requesting a hearing that is submitted by a potentially responsible party, a person, as defined in Section 11405.70 of the Government Code, representing the community where the site is located, or the department.
(B) Based on the documents submitted, information presented, and testimony taken at the hearing, the board may direct the department director, through a board action, to resolve outstanding issues relating to site cleanup, require investigation of a site, identify potentially responsible parties, set a timeline for a resolution or investigation, seek corrective action, or any combination of these. The department director shall comply with directions received from the board through a board action pursuant to this paragraph.
(d) The department shall provide information and records, and shall testify, concerning the agenda items at a board hearing. The department shall provide the following, as applicable: any information requested by the board. Any confidential information requested by the board shall be provided by the director to the board in executive session. The department shall be prepared to respond to comments submitted to the board at least 14 days before a board hearing, if requested to do so by the board.

(1)Presentations on draft regulations, including, but not limited to, the status of a regulation, draft language of a regulation, if available, and any workshops, comments, or other correspondence received relating to the development of a regulation.

(2)Complete records of the hazardous waste facilities permits and sites to be reviewed at the hearing, answers to questions and responses to comments submitted to the board or the department no less than 14 days before the hearing relating to those permits and sites, and testimony concerning the records.

(3)Other information, records, and testimony, at the discretion of the board.

24717.
 The board may adjourn to, or meet solely in, executive session to discuss legal matters, personnel matters, or matters relating to pending enforcement actions. The board may meet with the Attorney General, or her or his designee, the director, and department legal counsel in executive session.

24718.
 In January of each year, the board shall hold an annual public meeting at which the department shall provide status reports on the department’s priorities and work plans for hazardous waste management programs, site remediation programs, and regulation development from the previous year, and shall present on its current and pending work plans and priorities. The board shall set an annual agenda for the department’s priorities and work plans for the current year.

24719.
 (a) The board may review the law on hazardous waste management and site remediation and make recommendations to the Legislature for changes to the law that will enhance management of hazardous waste in California.
(b) The board may create subcommittees of three board members to review and decide matters before the board pertaining to petitions for hearings received by the board. A meeting of a subcommittee of the board shall be held in compliance with, and subject to, the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code). Two members of the subcommittee shall constitute a quorum for the transaction of business of the subcommittee.

(c)The board shall adopt regulations pursuant to Article 1.5 (commencing with Section 25108) of Chapter 6.5 and Article 1.5 (commencing with Section 25303) of Chapter 6.8.

(d)Notwithstanding Article 3.5 (commencing with Section 25135) of Chapter 6.5, the board shall draft, review, and update the hazardous waste management plans described in Article 3.5 (commencing with Section 25135) of Chapter 6.5.

24720.
 The board, or representatives authorized by the board to do so, may hold, attend, or otherwise participate in conferences or hearings, official or unofficial, within or without this state, with interested persons, agencies, or officers, of this or any other state, or with the Congress of the United States, congressional committees, or officers of the federal government, concerning any matter within the scope of the power and duties of the board.

24721.
 As to any matter involving the United States, or its departments or agencies, that is within the scope of the power and duties of the board, the board may represent the interest of the state or any county, city, state agency or public district upon their request, and to that end may correspond, confer, and cooperate with the United States, or its departments or agencies, and where necessary the board members or authorized representatives may travel either within or without the state.

24722.
 The board shall maintain its headquarters in Sacramento.

24723.
 The Governor shall designate the chairperson of the board from the membership of the board. The person so designated shall hold the office of chairperson at the pleasure of the Governor. The board shall elect a vice chairperson.

24724.
 The board may direct the director to conduct investigations in the state necessary to carry out the powers vested in the board, and for these purposes has the powers conferred upon heads of departments of the state by Article 2 (commencing with Section 11180) of Chapter 2 of Part 1 of Division 3 of Title 2 of the Government Code.

24725.
 The board shall adopt rules for the conduct of its affairs in conformity, as nearly as practicable, with the provisions of Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.

24726.
 The board may direct the director to use and direct administrative staff, regulatory staff, legal counsel, and other personnel employed by the department in areas under which the board has authority if necessary or convenient for the exercise of its duties and powers authorized by law, in order to carry out actions taken by the board, consistent with all applicable state human resources laws.

24727.
 Notwithstanding any other law, the board shall appoint the director, who shall hold office at the pleasure of the board.

24728.
 The Attorney General shall represent the board in litigation concerning affairs of the board, unless the Attorney General represents another state agency that is a party to the action. In that case, the Attorney General may represent the board with the written consent of the board and the other state agency, the board may contract for the services of private counsel to represent the board subject to Section 11040 of the Government Code, or the legal counsel of the board may represent the board. Sections 11041, 11042, and 11043 of the Government Code shall not apply to the board.

24729.
 The board may expend moneys appropriated for the administration of this article.

24730.
 The board shall post on the board’s Internet Web site biennial progress reports relating to the activities of the board.

SEC. 3.Article 1.5 (commencing with Section 25108) is added to Chapter 6.5 of Division 20 of the Health and Safety Code, to read:
1.5.Regulatory Authority
25108.

(a)Except as provided in subdivision (c), a provision of this chapter that authorizes or requires the department to adopt regulations shall be construed to instead authorize or require, as applicable, the department to develop draft regulations and the California Toxic Substances Board to review and adopt those regulations in accordance with the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code). The California Toxic Substances Board may revise a draft regulation developed by the department pursuant to this section before adopting that regulation.

(b)(1)A regulation adopted by the department pursuant to this chapter before January 1, 2018, shall remain in effect after that date, unless that regulation or another law provides otherwise.

(2)Notwithstanding paragraph (1), the California Toxic Substances Board may amend or repeal any regulation that was adopted by the department pursuant to this chapter before January 1, 2018.

(c)This section shall not apply to Article 14 (commencing with Section 25251).

SEC. 4.Article 1.5 (commencing with Section 25303) is added to Chapter 6.8 of Division 20 of the Health and Safety Code, to read:
1.5.Regulatory Authority
25303.

(a)A provision of this chapter that authorizes or requires the department to adopt regulations shall be construed to instead authorize or require, as applicable, the department to develop draft regulations and the California Toxic Substances Board to review and adopt those regulations in accordance with the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code). The California Toxic Substances Board may revise a draft regulation developed by the department pursuant to this section before adopting that regulation.

(b)(1)A regulation adopted by the department pursuant to this chapter before January 1, 2018, shall remain in effect after that date, unless that regulation or another law provides otherwise.

(2)Notwithstanding paragraph (1), the California Toxic Substances Board may amend or repeal any regulation that was adopted by the department pursuant to this chapter before January 1, 2018.