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AB-1001 Environment: air pollution and mitigation measures for air and water quality impacts.(2021-2022)

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Date Published: 04/20/2021 09:00 PM
AB1001:v97#DOCUMENT

Amended  IN  Assembly  April 20, 2021
Amended  IN  Assembly  March 15, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 1001


Introduced by Assembly Member Cristina Garcia

February 18, 2021


An act to amend Sections 40920.6 and 40920.8 of the Health and Safety Code, and to add Section 71119 21081.8 to the Public Resources Code, relating to the environment.


LEGISLATIVE COUNSEL'S DIGEST


AB 1001, as amended, Cristina Garcia. Environmental permitting and air pollution. Environment: air pollution and mitigation measures for air and water quality impacts.

Existing law regulates facilities with operations that would or may cause the release of pollution to the environment. Existing law requires operators of those facilities to obtain a permit or other authorization from various public agencies for the operation of those facilities.

This bill would require the California Environmental Protection Agency, on or before May 1, 2022, to publish, maintain, and update a list of overburdened communities, as defined. The bill would, on or after July 1, 2022, require a permitting agency to take certain actions for an application for a new environmental permit, as defined, or the renewal of an environmental permit for a facility located in an overburdened community. The bill would require a permit applicant to prepare an environmental justice impact statement, to conduct a public hearing in the overburdened community, and to transmit the environmental justice impact statement to the permitting agency. The bill would require the permitting agency to deny the application or to apply conditions concerning the construction and operation of the facility to protect public health if it finds that the approval of the application would, together with other environmental or public health stressors affecting the overburdened community, cause or contribute to adverse cumulative environmental or public health stressors in the overburdened community that are higher than those borne by other communities. The bill would require permitting agencies to electronically publish certain information on their internet websites. Because the bill would impose additional duties on local agencies that are permitting agencies, this bill would impose a state-mandated local program.

Existing law requires each air pollution control district and each air quality management district (air district) that has a nonattainment area for one or more air pollutants to adopt an expedited schedule for the implementation of best available retrofit control technology (BARCT) by the earliest feasible date, but not later than December 31, 2023. Existing law provides that the adopted expedited schedule applies only to each industrial source that, as of January 1, 2017, was subject to a market-based compliance mechanism for the emissions of greenhouse gases adopted by the State Air Resources Board, as provided.
This bill would additionally require those air districts to adopt an expedited schedule for the implementation of best available control technology (BACT). The bill would delete the provision applying the expedited schedule only to industrial sources that are subject to the market-based compliance mechanism. The bill would require the air districts to identify all emission units at an industrial source and to take certain actions regarding those emission units, as specified. The bill would require, by January 1, 2025, the air districts to adopt rules for the installation and operation of either BACT or BARCT at emission units by the earliest feasible date, but not later than December 31, 2026. The bill would provide that industrial sources that, as of January 1, 2027, were subject to the market-based compliance mechanism and that fail to implement BARCT by December 31, 2023, are not eligible to participate in the market-based compliance mechanism. Because this bill would impose additional duties on air districts, this bill would impose a state-mandated local program.
Existing law requires the state board to establish and maintain a statewide clearinghouse that identifies BACT and BARCT.
This bill would authorize the state board to create determinations for technologies that have been achieved in practice for sources or source categories.
The California Environmental Quality Act (CEQA) requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of an environmental impact report on a project that it proposes to carry out or approve that may have a significant effect on the environment or to adopt a negative declaration if it finds that the project will not have that effect. CEQA also requires a lead agency to prepare a mitigated negative declaration for a project that may have a significant effect on the environment if revisions in the project would avoid or mitigate that effect and there is no substantial evidence that the project, as revised, would have a significant effect on the environment.
This bill would require mitigation measures identified in an environmental impact report or mitigated negative declaration to mitigate the adverse effects of a project on air or water quality of a disadvantaged community to mitigate those effects directly in the affected disadvantaged community.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

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


SECTION 1.

 The Legislature finds and declares all of the following:
(a) All California residents, regardless of income, race, ethnicity, color, or national origin, have a right to live, work, and recreate in a clean and healthy environment.
(b) Historically, California’s low-income communities and communities of color have been subject to a disproportionately high number of environmental and public health stressors, including pollution from numerous industrial, commercial, and governmental facilities located in those communities.
(c) As a result, residents in the state’s overburdened communities have suffered from increased adverse health effects including, but not limited to, asthma, cancer, elevated blood lead levels, cardiovascular disease, and developmental disorders.
(d) Children are especially vulnerable to the adverse health effects caused by exposure to pollution, and those health effects may severely limit a child’s potential for future success.
(e) The adverse effects caused by pollution impede the growth, stability, and long-term well-being of individuals and families living in overburdened communities.
(f) The legacy of siting sources of pollution in overburdened communities continues to pose a threat to the health, well-being, and economic success of the state’s most vulnerable residents.
(g) It is past time for the state to correct this historical injustice.
(h) No community should bear a disproportionate share of the adverse environmental and public health consequences that accompany the state’s economic growth.
(i) The state’s overburdened communities must have a meaningful opportunity to participate in any decision to allow in those communities certain types of facilities which, by the nature of their activity, have the potential to increase environmental and public health stressors.
(j) It is in the public interest for the state, where appropriate, to limit the future placement and expansion of those facilities in overburdened communities.

SEC. 2.

 Section 40920.6 of the Health and Safety Code is amended to read:

40920.6.
 (a) Before adopting rules or regulations to meet the requirement for best available retrofit control technology pursuant to Sections 40918, 40919, 40920, and 40920.5, or for a feasible measure pursuant to Section 40914, districts shall, in addition to other requirements of this division, do all of the following:
(1) Identify one or more potential control options which achieves the emission reduction objectives for the regulation.
(2) Review the information developed to assess the cost-effectiveness of the potential control option. For purposes of this paragraph, “cost-effectiveness” means the cost, in dollars, of the potential control option divided by emission reduction potential, in tons, of the potential control option.
(3) Calculate the incremental cost-effectiveness for the potential control options identified in paragraph (1). To determine the incremental cost-effectiveness under this paragraph, the district shall calculate the difference in the dollar costs divided by the difference in the emission reduction potentials between each progressively more stringent potential control option as compared to the next less expensive control option.
(4) Consider, and review in a public meeting, all of the following:
(A) The effectiveness of the proposed control option in meeting the requirements of this chapter and the requirements adopted by the state board pursuant to subdivision (b) of Section 39610.
(B) The cost-effectiveness of each potential control option as assessed pursuant to paragraph (2).
(C) The incremental cost-effectiveness between the potential control options as calculated pursuant to paragraph (3).
(5) Make findings at the public hearing at which the regulation is adopted stating the reasons for the district’s adoption of the proposed control option or options.
(b) A district may establish its own best available retrofit control technology requirement based upon consideration of the factors specified in subdivision (a) and Section 40406 if the requirement complies with subdivision (d) of Section 40001 and is consistent with this chapter, other state law, and federal law, including, but not limited to, the applicable state implementation plan.
(c) (1) Each district that is a nonattainment area for one or more air pollutants shall adopt an expedited schedule for the implementation of best available control technology (BACT) or best available retrofit control technology (BARCT), by the earliest feasible date and in compliance with paragraph (3) of subdivision (g). date, but in any event not later than December 31, 2023.
(2) The schedule shall give highest priority to those permitted units that have not modified emissions-related permit conditions for the greatest period of time. The schedule shall not apply to an emissions unit that has implemented BACT or BARCT due to a permit revision or a new permit issuance since 2007.
(3) For all reviews of what constitutes BACT or BARCT for an emissions unit under this subdivision, the district shall base its consideration of cost-effectiveness of the control option for the emissions unit and air quality benefits for the surrounding community, and shall make determinations consistent with information in the clearinghouse established pursuant to Section 40920.8 and any technical assessments issued by the state board.
(4) An industrial source that, as of January 1, 2017, was subject to a market-based compliance mechanism adopted by the state board pursuant to subdivision (c) of Section 38562 and that fails to implement BARCT by December 31, 2023, shall not be eligible to participate in the market-based compliance mechanism.
(d) Before adopting the schedule pursuant to paragraph (1) of subdivision (c), a district shall hold a public meeting and take into account:
(1) The local public health and clean air benefits to the surrounding community.
(2) The cost-effectiveness of each control option.
(3) The air quality and attainment benefits of each control option.
(e) A district shall allow the retirement of marketable emission reduction credits under a program which complies with all of the requirements of Section 39616, or emission reduction credits which meet all of the requirements of state and federal law, including, but not limited to, the requirements that those emission reduction credits be permanent, enforceable, quantifiable, and surplus, in lieu of any requirement for best available retrofit control technology, if the credit also complies with all district rules and regulations affecting those credits.
(f) After a district has established the cost-effectiveness, in a dollar amount, for any rule or regulation adopted pursuant to this section or Section 40406, 40703, 40914, 40918, 40919, 40920, 40920.6, or 40922, the district, consistent with subdivision (d) of Section 40001, shall allow alternative means of producing equivalent emission reductions at an equal or lesser dollar amount per ton reduced, including the use of emission reduction credits, for any stationary source that has a demonstrated compliance cost exceeding that established dollar amount.

(g)To further implement the schedule adopted pursuant to subdivision (c), each district subject to subdivision (c) shall take the following actions:

(1)Identify all emissions units at an industrial source subject to paragraph (1) of subdivision (c) that emit a pollutant for which the region is in nonattainment to determine whether those emissions units are individually permitted at BACT or BARCT stringency levels that are applicable as of the time of the review and do the following:

(A)Continue the implementation of the schedule adopted pursuant to subdivision (c) if the district determines that the emissions unit is subject to a rule that the district included on the schedule for updating pursuant to subdivision (c).

(B)Add the rule to the schedule for updating to ensure that the applicable BACT or BARCT rule applies to the emission unit if the district determines that the emissions unit is subject to a rule implementing BACT or BARCT that is not on the district’s adopted schedule pursuant to subdivision (c) and the rule has not been updated or revised since 2007.

(C)Add the emissions unit to the schedule adopted pursuant to subdivision (c) and adopt a rule to control the nonattainment pollutant by implementing BACT or BARCT if the district determines that the emission unit is not subject to a rule implementing BACT or BARCT.

(2)For all reviews of what constitutes BACT or BARCT for an emissions unit under this subdivision and subdivision (c), the district shall base its consideration of cost effectiveness of the control option for the emissions unit and air quality benefits for the surrounding community, and shall make determinations consistent with information in the clearinghouse established pursuant to Section 40920.8 and any technical assessments issued by the state board.

(3)The district shall adopt each rule implementing BARCT pursuant to subdivision (c) and this subdivision by January 1, 2025, for installation and operation of BACT or BARCT at each emissions unit by the earliest feasible date, but not later than December 31, 2026.

SEC. 3.

 Section 40920.8 of the Health and Safety Code is amended to read:

40920.8.
 (a) (1) The state board shall establish and maintain a statewide clearinghouse that identifies the best available control technology and best available retrofit control technology for criteria air pollutants, and related technologies for the control of toxic air contaminants.
(2) (A) The state board may create determinations for technologies that have been achieved in practice, and may provide technical assessments of control options, including the availability of alternative technologies, for sources or source categories.
(B) The Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code) does not apply to the development of technical assessments pursuant to subparagraph (A).
(b) When updating best available control technology determinations, best available retrofit control technology rules, and related determinations for the control of toxic air contaminants in permits, schedules, and rules, a district shall use the information in the statewide clearinghouse established and maintained by the state board and any technical assessments that are developed pursuant to paragraph (2) of subdivision (a).

SEC. 4.Section 71119 is added to the Public Resources Code, to read:
71119.

(a)For purposes of this section, the following definitions apply:

(1)“Environmental or public health stressors” means sources of environmental pollution, including, but not limited to, concentrated areas of air pollution, mobile sources of air pollution, contaminated sites, transfer stations or other solid waste facilities, recycling facilities, scrap yards, and point sources of water pollution, including, but not limited to, water pollution from facilities or combined sewer overflows, or conditions that may cause potential public health impacts, including, but not limited to, asthma, cancer, elevated blood lead levels, cardiovascular disease, and developmental problems in an overburdened community.

(2)(A)“Environmental permit” means an authorization or approval, or the renewal of an authorization or approval, that is any of the following:

(i)A hazardous waste facility permit issued pursuant to Chapter 6.5 (commencing with Section 25001) of Division 20 of the Health and Safety Code.

(ii)An air permit issued pursuant to Chapter 4 (commencing with Section 42300) of Part 4 of Division 26 of the Health and Safety Code.

(iii)A medical waste treatment facility permit issued pursuant to Chapter 7 (commencing with Section 118130) of Part 14 of Division 104 of the Health and Safety Code.

(iv)A well permit issued pursuant to Division 3 (commencing with Section 3000).

(v)A solid waste facility permit issued pursuant to Part 4 (commencing with Section 43000) of Division 30.

(vi)A waste discharge requirement issued pursuant to the Porter-Cologne Water Quality Control Act (Division 7 (commencing with Section 13000) of the Water Code).

(B)“Environmental permit” does not include any of the following:

(i)An authorization or approval necessary to perform a remediation.

(ii)An authorization or approval required for a minor modification of a facility’s authorization or approval described in subparagraph (A) for activities or improvements that do not increase the release of a pollutant or contaminant.

(iii)An authorization or approval that is a renewal of a facility’s authorization or approval described in subparagraph (A) that does not increase the release of a pollutant or contaminant.

(3)(A)“Facility” means a facility this is required to obtain an environmental permit.

(B)“Facility” does not include a facility that accepts regulated medical waste for disposal, including a medical waste incinerator, that is attendant to a hospital or university and is intended to process self-generated regulated medical waste.

(4)“Low-income household” has the same meaning as set forth in Section 39713 of the Health and Safety Code.

(5)“Overburdened community” means a community identified as a disadvantaged community pursuant to Section 39711 of the Health and Safety Code.

(6)“Permitting agency” means any of the following:

(A)The Department of Toxic Substances Control.

(B)An air quality management or air pollution control district.

(C)The State Department of Public Health.

(D)The Geologic Energy Management Division in the Department of Conservation.

(E)The Department of Resources Recovery and Recycling.

(F)A regional water quality control board.

(b)On or before May 1, 2022, the California Environmental Protection Agency shall publish and maintain on its internet website a list of overburdened communities in the state. The California Environmental Protection Agency shall update annually the list of overburdened communities. The California Environmental Protection Agency shall notify a local municipal or county government if any part of the municipality or county has been designated as an overburdened community pursuant to this subdivision.

(c)On and after July 1, 2022, for an application for an environmental permit for a facility located in an overburdened community, a permitting agency shall publish a draft environmental permit for public notice, review, and comment for at least 60 calendar days before issuance. A permitting agency shall respond, in writing, to all significant comments raised during the public participation process, including written comments submitted during the public comment period and any comments raised during any public hearing on the environmental permit before finalization of the environmental permit. A permitting agency shall electronically publish the public comments for the draft permit and the permitting agency’s responses to significant public comments before the finalization of the permit. This requirement applies in addition to any public notices required by law.

(d)(1)On and after July 1, 2022, a permitting agency shall not consider complete for review an application for an environmental permit for a new facility or for an existing facility, if the facility is located, or proposed to be located, in whole or in part, in an overburdened community, unless the permit applicant does all of the following:

(A)Prepares an environmental justice impact statement that assesses the potential environmental and public health stressors associated with the proposed new or existing facility, as applicable, including any adverse environmental or public health stressors that cannot be avoided if the environmental permit is granted, and the environmental or public health stressors already borne by the overburdened community as a result of existing conditions located in or affecting the overburdened community.

(B)Transmits the environmental justice impact statement at least 60 days in advance of the public hearing required pursuant to subparagraph (C) to the permitting agency and to the governing body and the clerk of the municipality in which the overburdened community is located. Upon receipt, the permitting agency shall publish the environmental justice impact statement on its internet website.

(C)(i)Organizes and conducts a public hearing in the overburdened community. The permit applicant shall publish a notice of the public hearing in at least two newspapers circulating within the overburdened community, including in local non-English language newspapers for populations comprising at least 15 percent of the overburdened community, if applicable, not less than 60 days before the public hearing. The permit applicant shall provide a copy of the notice to the permitting agency, and the permitting agency shall publish the notice on its internet website. The notice of the public hearing shall provide the date, time, and location of the public hearing, a description of the proposed new or expanded facility or existing facility, as applicable, a map indicating the location of the facility, a brief summary of the environmental justice impact statement, information on how an interested person may review a copy of the complete environmental justice impact statement, an address for the submission of written comments to the permit applicant, and any other information deemed appropriate by the permitting agency. At least 60 days before the public hearing, the permit applicant shall send a copy of the notice to the permitting agency and to the governing body and the clerk of the municipality in which the overburdened community is located. The permit applicant shall invite the municipality to participate in the public hearing. At the public hearing, the permit applicant shall provide clear, accurate, and complete information about the proposed new or existing facility, as applicable, and the potential environmental and public health stressors associated with the facility. The permit applicant shall accept written and oral comments from any interested party, and shall provide an opportunity for meaningful public participation at the public hearing. The permit applicant shall transcribe the public hearing and, no later than 10 days after the public hearing, submit the transcript along with any written comments received to the permitting agency. Following the public hearing, the permitting agency shall consider the testimony presented and any written comments received, and shall evaluate the issuance of, or conditions to, the environmental permit, as necessary, to avoid or reduce the adverse environmental or public health stressors affecting the overburdened community.

(ii)Clause (i) is satisfied if a public hearing required by other law regarding the permit application is conducted, and the notice of the public hearing is given, in a manner that meets the requirements of clause (i).

(2)If a permit applicant is applying for more than one environmental permit for a proposed new or existing facility, the permit applicant shall only be required to comply with this subdivision once, unless a permitting agency, in its discretion, determines that more than one public hearing is necessary due to the complexity of the permit applications necessary for the proposed new or existing facility. Nothing in this section shall be construed to limit the authority of the permitting agency to hold or require additional public hearings, as may be required by any other law.

(e)Notwithstanding any other law, the permitting agency shall not issue a decision on an application for an environmental permit for a new facility or for the expansion of an existing facility, or on an application for the renewal of a facility’s environmental permit, if the facility is located, or proposed to be located, in whole or in part in an overburdened community until at least 45 days after the public hearing held pursuant to subparagraph (C) of paragraph (1) of subdivision (d).

(f)Notwithstanding any other law, after review of the environmental justice impact statement prepared pursuant to paragraph (1) of subdivision (d) and any other relevant information, including testimony and written comments received at the public hearing, the permitting agency shall deny an environmental permit for a new facility or for the expansion of, or renewal of an environmental permit for, an existing facility, or shall apply conditions concerning the construction and operation of the facility to protect public health, upon a finding that approval of the environmental permit or renewal, as proposed, would, together with other environmental or public health stressors affecting the overburdened community, cause or contribute to adverse cumulative environmental or public health stressors in the overburdened community that are higher than those borne by other communities within the state, county, or other geographic unit of analysis as determined by the permitting agency pursuant to rule, regulation, or guidance adopted pursuant to this section.

(g)Nothing in this section shall be construed to limit the right of a permit applicant to continue facility operations during the process of permit renewal to the extent that right is provided by applicable law.

(h)In addition to any other fee authorized by law, rule, or regulation, the permitting agency shall assess each permit applicant a reasonable fee to cover the permitting agency’s costs associated with the implementation of this section, including costs to provide technical assistance to permit applicants and overburdened communities as needed to comply with this section.

(i)(1)A permitting agency shall adopt rules and regulations to implement the provisions of this section.

(2)The permitting agency may issue and publish, on its internet website, technical guidance for compliance with this section.

(j)On or before January 1, 2024, a permitting agency shall electronically publish, on its internet website, all authorizations or approvals described in subparagraph (A) of paragraph (2) of subdivision (a), immediately upon issuance, in a searchable database accessible to the public. The authorizations or approvals issued before January 1, 2022, shall be added to the database by December 31, 2024.

(k)A permitting agency shall promptly make information related to environmental permits and permitting decisions available to the California Environmental Protection Agency upon request.

(l)A permitting agency shall electronically publish all final enforcement settlement agreements on its internet website immediately upon finalization of the settlements agreements.

SEC. 4.

 Section 21081.8 is added to the Public Resources Code, to read:

21081.8.
 For projects that have adverse effects on the air or water quality of a disadvantaged community as identified pursuant to Section 39711 of the Health and Safety Code, mitigation measures identified in an environmental impact report or mitigated negative declaration to mitigate those adverse effects shall mitigate those effects directly in the affected disadvantaged communities.

SEC. 5.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because a local agency or school district has the authority to levy service charges, fees, or assessments sufficient to pay for the program or level of service mandated by this act, within the meaning of Section 17556 of the Government Code.