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AB-732 Department of Toxic Substances Control: Toxic Substances Control Account. (2021-2022)

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Date Published: 02/16/2021 09:00 PM
AB732:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 732


Introduced by Assembly Members Quirk and Cristina Garcia

February 16, 2021


An act to amend Sections 25173.6, 25205.6, 25301, and 25356 of the Health and Safety Code, relating to hazardous materials.


LEGISLATIVE COUNSEL'S DIGEST


AB 732, as introduced, Quirk. Department of Toxic Substances Control: Toxic Substances Control Account.
(1) Existing law establishes the Carpenter-Presley-Tanner Hazardous Substance Account Act and expresses the intent of the Legislature to establish a program to provide response authority for releases of hazardous substances, including spills and hazardous waste disposal sites that pose a threat to public health or the environment, among other objectives. The act imposes liability for hazardous substance removal or remedial actions and requires the Department of Toxic Substances Control to adopt, by regulation, criteria for the selection and priority ranking of hazardous substance release sites for removal or remedial action under the act. The act requires the department to publish and revise, at least annually, its listing of the hazardous substances release sites selected for, and subject to, a response action.
This bill would express the intent of the Legislature to also identify and remediate releases of hazardous substances throughout the state to protect human health and the environment and enable productive reuse of contaminated sites. The bill would require the department to publish on its internet website, the list of hazardous substances release sites selected for, and subject to, a response action. The bill would also make nonsubstantive changes to these provisions.
(2) Existing law establishes the Toxic Substances Control Account in the General Fund and requires that specified moneys be deposited in that account, including the charge imposed on organizations that use, generate, store, or conduct activities in this state related to hazardous materials, and penalties imposed pursuant to the hazardous waste control laws or the Carpenter-Presley-Tanner Hazardous Substance Account Act. Existing law provides that the Legislature may appropriate moneys from the Toxic Substances Control Account to the department for specified purposes, including, among other things, site remediation and response costs.
Existing law, known as the Green Chemistry program, requires the department to adopt regulations to establish a process to identify and prioritize chemicals or chemical ingredients in consumer products that may be considered as being chemicals of concern. The department’s Safer Consumer Products Program implements the Green Chemistry program pursuant to regulations adopted by the department known as the Safer Consumer Products regulations.
This bill would provide that the Legislature may appropriate moneys from the Toxic Substances Control Account for the Green Chemistry program and for the administration of the Safer Consumer Products Program. The bill would also make nonsubstantive and conforming changes to these provisions.
(3) Existing law requires the department to provide the State Board of Equalization with a schedule of codes identifying the types of organizations that use, generate, store, or conduct activities in the state related to hazardous materials. Existing law requires each organization type identified in the schedule to pay an annual tax, known as the “environmental fee,” at a specified amount based on the number of employees at the organization, which is deposited in the Toxic Substances Control Account. Existing law requires the State Board of Equalization to annually adjust those amounts to reflect the increase or decrease in the cost of living, as provided.
This bill would require the department to provide the California Department of Tax and Fee Administration with the schedule of codes identifying the types of organizations that use, generate, store, or conduct activities in the state related to hazardous materials. The bill would increase the amount of the annual tax required to be paid by the categories of organizations identified in the schedule for the 2021 calendar year and each subsequent calendar year, and would remove the requirement that the annual tax be annually adjusted to reflect the increase or decrease in the cost of living.
(4) This bill would include a change in state statute that would result in a taxpayer paying a higher tax within the meaning of Section 3 of Article XIII A of the California Constitution, and thus would require for passage the approval of 2/3 of the membership of each house of the Legislature.
Vote: 2/3   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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


SECTION 1.

 Section 25173.6 of the Health and Safety Code is amended to read:

25173.6.
 (a) There is in the General Fund the Toxic Substances Control Account, which shall be administered by the director. In addition to any other money that may be appropriated by the Legislature to the Toxic Substances Control Account, all of the following shall be deposited in the account:
(1) The fees collected pursuant to Section 25205.6.
(2) The fees collected pursuant to Section 25187.2, to the extent that those fees are for oversight of a removal or remedial action taken under Chapter 6.8 (commencing with Section 25300) or Chapter 6.86 (commencing with Section 25396).
(3) Fines or penalties collected pursuant to this chapter, Chapter 6.8 (commencing with Section 25300) or Chapter 6.86 (commencing with Section 25396), except as directed otherwise by Section 25192.
(4) Interest earned upon money deposited in the Toxic Substances Control Account.
(5) All money recovered pursuant to Section 25360, except any amount recovered on or before June 30, 2006, that was paid from the Hazardous Substance Cleanup Fund.
(6) All money recovered pursuant to Section 25380.
(7) All penalties recovered pursuant to Section 25214.3, except as provided by Section 25192.
(8) All penalties recovered pursuant to Section 25214.22.1, except as provided by Section 25192.
(9) All penalties recovered pursuant to Section 25215.82, except as provided by Section 25192.
(10) Reimbursements for funds expended from the Toxic Substances Control Account for services provided by the department, including, but not limited to, reimbursements required pursuant to Sections 25201.9 and 25343.
(11) Money received from the federal government pursuant to the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. Sec. 9601 et seq.).
(12) Money received from responsible parties for remedial action or removal at a specific site, except as otherwise provided by law.
(b) The funds deposited in the Toxic Substances Control Account may be appropriated to the department for the following purposes:
(1) The administration and implementation of the following:
(A) Chapter 6.8 (commencing with Section 25300), except that funds shall not be expended from the Toxic Substances Control Account for purposes of Section 25354.5.
(B) Chapter 6.86 (commencing with Section 25396).
(C) Article 10 (commencing with Section 7710) of Chapter 1 of Division 4 of the Public Utilities Code, to the extent the department has been delegated responsibilities by the Secretary for Environmental Protection for implementing that article.
(D) Activities of the department related to pollution prevention and technology development, authorized pursuant to this chapter.
(E) Article 14 (commencing with Section 25251).
(2) The administration of the following units, and successor organizations of those units, within the department, and the implementation of programs administered by those units or successor organizations:
(A) The Human and Ecological Risk Office.
(B) The Environmental Chemistry Laboratory.
(C) The Office of Pollution Prevention and Technology Development.
(D) The Safer Consumer Products Program.
(3) For allocation to the Office of Environmental Health Hazard Assessment, pursuant to an interagency agreement, to assist the department as needed in administering the programs described in subparagraphs (A) and (B) of paragraph (1).
(4) For allocation to the California Department of Tax and Fee Administration to pay refunds of fees collected pursuant to Section 43054 of the Revenue and Taxation Code.
(5) For the state share mandated pursuant to paragraph (3) of subsection (c) of Section 104 104(c)(3) of the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. Sec. 9604(c)(3)).
(6) For the purchase by the state, or by a local agency with the prior approval of the director, of hazardous substance response equipment and other preparations for response to a release of hazardous substances. However, all equipment shall be purchased in a cost-effective manner after consideration of the adequacy of existing equipment owned by the state or the local agency, agency and the availability of equipment owned by private contractors.
(7) For payment of all costs of removal and remedial action incurred by the state, or by a local agency with the approval of the director, in response to a release or threatened release of a hazardous substance, to the extent the costs are not reimbursed by the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. Sec. 9601 et seq.).
(8) For payment of all costs of actions taken pursuant to subdivision (b) of Section 25358.3, to the extent that these costs are not paid by the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. Sec. 9601 et seq.).
(9) For all costs incurred by the department in cooperation with the Agency for Toxic Substances and Disease Registry established pursuant to subsection (i) of Section 104 104(i) of the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. Sec. 9604(i)) (42 U.S.C. Sec. 9604(i)), and all costs of health effects studies undertaken regarding specific sites or specific substances at specific sites. Funds appropriated for this purpose shall not exceed five hundred thousand dollars ($500,000) in a single fiscal year. However, these actions shall not duplicate reasonably available federal actions and studies.
(10) For repayment of the principal of, and interest on, bonds sold pursuant to Article 7.5 (commencing with Section 25385) of Chapter 6.8.
(11) Direct site remediation costs.
(12) For the department’s expenses for staff to perform oversight of investigations, characterizations, removals, remediations, or long-term operation and maintenance.
(13) For the administration and collection of the fees imposed pursuant to Section 25205.6.
(14) For allocation to the office of the Attorney General, pursuant to an interagency agreement or similar mechanism, for the support of the Toxic Substance Enforcement Program in the office of the Attorney General, in carrying out the purposes of Chapter 6.8 (commencing with Section 25300) and Chapter 6.86 (commencing with Section 25396).
(15) For funding the California Environmental Contaminant Biomonitoring Program established pursuant to Chapter 8 (commencing with Section 105440) of Part 5 of Division 103.
(16) As provided in Sections 25214.3 and 25215.7 25215.82 and, with regard to penalties recovered pursuant to Section 25214.22.1, to implement and enforce Article 10.4 (commencing with Section 25214.11).
(c) The funds deposited in the Toxic Substances Control Account may be appropriated by the Legislature to the Office of Environmental Health Hazard Assessment and the State Department of Public Health for the purposes of carrying to carry out their duties pursuant to the California Environmental Contaminant Biomonitoring Program (Chapter 8 (commencing with Section 105440) of Part 5 of Division 103).
(d) The director shall expend federal funds in the Toxic Substances Control Account consistent with the requirements specified in Section 114 of the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. Sec. 9614), upon appropriation by the Legislature, for the purposes for which they were provided to the state.
(e) Money in the Toxic Substances Control Account shall not be expended to conduct removal or remedial actions if a significant portion of the hazardous substances to be removed or remedied originated from a source outside the state.
(f) The Director of Finance, upon request of the director, may make a loan from the General Fund to the Toxic Substances Control Account to meet cash needs. The loan shall be subject to the repayment provisions of Section 16351 of the Government Code and the interest provisions of Section 16314 of the Government Code.
(g) The Toxic Substances Control Account established pursuant to subdivision (a) is the successor fund of all of the following:
(1) The Hazardous Substance Account established pursuant to Section 25330, as that section read on June 30, 2006.
(2) The Hazardous Substance Clearing Account established pursuant to Section 25334, as that section read on June 30, 2006.
(3) The Hazardous Substance Cleanup Fund established pursuant to Section 25385.3, as that section read on June 30, 2006.
(4) The Superfund Bond Trust Fund established pursuant to Section 25385.8, as that section read on June 30, 2006.
(h) On and after July 1, 2006, all assets, liabilities, and surplus of the accounts and funds listed in subdivision (g), shall be transferred to, and become a part of, the Toxic Substances Control Account, as provided by Section 16346 of the Government Code. All existing appropriations from these accounts, to the extent encumbered, shall continue to be available for the same purposes and periods from the Toxic Substances Control Account.
(i) Notwithstanding Section 10231.5 of the Government Code, the department, on or before February 1 of each year, shall report to the Governor and the Legislature on the prior fiscal year’s expenditure of funds within the Toxic Substances Control Account for the purposes specified in subdivision (b).

SEC. 2.

 Section 25205.6 of the Health and Safety Code is amended to read:

25205.6.
 (a) For purposes of this section, “organization” means a corporation, limited liability company, limited partnership, limited liability partnership, general partnership, and sole proprietorship.
(b) On or before November 1 of each year, the department shall provide the board California Department of Tax and Fee Administration with a schedule of codes, that consists of the types of organizations that use, generate, store, or conduct activities in this state related to hazardous materials, as defined in Section 25501, including, but not limited to, hazardous waste. The schedule shall consist of identification codes from one of the following classification systems, as deemed suitable by the department:
(1) The Standard Industrial Classification (SIC) system established by the United States Department of Commerce.
(2) The North American Industry Classification System (NAICS) adopted by the United States Census Bureau.
(c) Each organization of a type identified in the schedule adopted pursuant to subdivision (a) shall pay an annual fee, which shall be set in the following amounts:
(1) Two hundred dollars ($200) Five hundred twenty-five dollars ($525) for those organizations with 50 or more employees, but fewer than 75 employees.
(2) Three hundred fifty dollars ($350) Nine hundred twenty-two dollars ($922) for those organizations with 75 or more employees, but fewer than 100 employees.
(3) Seven hundred dollars ($700) One thousand eight hundred thirty-one dollars ($1,831) for those organizations with 100 or more employees, but fewer than 250 employees.
(4) One thousand five hundred dollars ($1,500) Three thousand nine hundred twenty-eight dollars ($3,928) for those organizations with 250 or more employees, but fewer than 500 employees.
(5) Two thousand eight hundred dollars ($2,800) Seven thousand three hundred thirty-six dollars ($7,336) for those organizations with 500 or more employees, but fewer than 1,000 employees.
(6) Nine thousand five hundred dollars ($9,500) Twenty-four thousand eight hundred eighty-six dollars ($24,886) for those organizations with 1,000 or more employees.
(d) The fee imposed pursuant to this section shall be paid by each organization that is identified in the schedule adopted pursuant to subdivision (a) in accordance with Part 22 (commencing with Section 43001) of Division 2 of the Revenue and Taxation Code and shall be deposited in the Toxic Substances Control Account. The revenues shall be available, upon appropriation by the Legislature, for the purposes specified in subdivision (b) of Section 25173.6.
(e) For purposes of this section, the number of employees employed by an organization is the number of persons employed in this state for more than 500 hours during the calendar year preceding the calendar year in which the fee is due.
(f) The fee rates specified in subdivision (c) are the rates for the 1998 2021 calendar year. Beginning with the 1999 calendar year, and for each calendar year thereafter, the State Board of Equalization shall adjust the rates annually to reflect increases or decreases in the cost of living during the prior fiscal year, as measured by the Consumer Price Index issued by the Department of Industrial Relations or by a successor agency. year and each calendar year thereafter.
(g) (1) Pursuant to paragraph (3) of subsection (c) of Section 104 104(c)(3) of the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. Sec. 9604(c)(3)), the state is obligated to pay specified costs of removal and remedial actions carried out pursuant to the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. Sec. 9601 et seq.).
(2) The fee rates specified in subdivision (c) are intended to provide sufficient revenues to fund the purposes of subdivision (b) of Section 25173.6, including appropriations in any given fiscal year to fund the state’s obligation pursuant to paragraph (3) of subsection (c) of Section 104 104(c)(3) of the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. Sec. 9604(c)(3)).
(h) This section does not apply to a nonprofit corporation primarily engaged in the provision of residential social and personal care for children, the aged, and special categories of persons with some limits on their ability for self-care, as described in SIC Code 8361 of the Standard Industrial Classification (SIC) Manual published by the United States Office of Management and Budget, 1987 edition.

(i)The changes made to this section by the act of the 2005–06 Regular Session of the Legislature amending this section shall not increase fee revenues in the 2006–07 fiscal year.

SEC. 3.

 Section 25301 of the Health and Safety Code is amended to read:

25301.
 It is the intent of the Legislature to do all of the following:
(a)  Establish a program to provide for response authority for releases of hazardous substances, including spills and hazardous waste disposal sites that pose a threat to the public health or the environment.
(b)  Compensate persons, under certain circumstances, for out-of-pocket medical expenses and lost wages or business income resulting from injuries proximately caused by exposure to releases of hazardous substances.
(c)  Make available adequate funds in order to permit the State of California state to assure payment of its 10-percent share of the costs mandated pursuant to Section 104(c)(3) of the federal act (42 U.S.C. Sec. 9604(c)(3)).
(d) Identify and remediate releases of hazardous substances throughout the state to protect human health and the environment and enable productive reuse of contaminated sites.

SEC. 4.

 Section 25356 of the Health and Safety Code is amended to read:

25356.
 (a) (1) The department shall adopt, by regulation, criteria for the selection of hazardous substance release sites for a response action under this chapter. The criteria shall take into account pertinent factors relating to public health, safety safety, and the environment, which factors shall include, but are not necessarily limited to, potential hazards to public health, safety safety, or the environment, the risk of fire or explosion, and toxic hazards, and shall also include the criteria established pursuant to Section 105(8) of the federal act (42 U.S.C. Sec. 9605(8)).
(2) The criteria adopted pursuant to paragraph (1) may include a minimum hazard threshold, below which sites shall not be listed pursuant to this section, section if the sites are subject to the authority of the department to order a response action, or similar action, pursuant to Chapter 6.5 (commencing with Section 25100).
(b) (1) The department shall publish publish, on its internet website, and revise, at least annually, a listing list of the hazardous substance release sites selected for, and subject to, a response action under this chapter. The department shall list the sites based upon the criteria adopted pursuant to subdivision (a) and the extent to which deferral of a response action at a site will result, or is likely to result, in a rapid increase in response costs at the site or in a significant increase in risk to human health or safety or the environment.
(2) The list of sites established pursuant to this subdivision shall be published by the department and made available to the public or any interested person upon request and without cost. The department shall list sites alphabetically within each priority tier, as specified in subdivision (c), and shall update the list of sites at least annually to reflect new information regarding previously listed sites or the addition of new sites requiring response actions.
(c) The department shall assign each site listed pursuant to subdivision (b) to one of the following priority tiers for the purpose of informing the public of the relative hazard of listed sites:
(1) “Priority tier one” shall include any site that the department determines, using the criteria described in subdivision (b), meets any of the following conditions:
(A) The site may pose a known or probable threat to public health or safety through direct human contact.
(B) The site may pose a substantial probability of explosion or a fire or a significant risk due to hazardous air emissions.
(C) The site has a high potential to contaminate or to continue to contaminate groundwater resources that are present or possible future sources of drinking water.
(D) There is a risk that the costs of a response action will increase rapidly or risks to human health or safety or the environment will increase significantly if response action is deferred.
(2) “Priority tier two” shall include any site that poses a substantial substantial, but less immediate threat to public health or safety or the environment and any site that will require a response action, but presents only a limited and defined threat to human health or safety or the environment. Priority tier two may contain sites previously listed in priority tier one if the department determines that direct threats to human health or safety have been removed and if physical deterioration of the site has been stabilized so that threats to the environment are not significantly increasing.
(d) Hazardous substance release sites listed by the department pursuant to subdivision (b) are subject to this chapter and all actions carried out in response to hazardous substance releases or threatened releases at listed sites shall comply with the procedures, standards, and other requirements set forth in this chapter or established pursuant to the requirements of this chapter.
(e) (1) The adoption of the minimum hazard threshold pursuant to paragraph (2) of subdivision (a), the department’s development and publication of the list of sites pursuant to subdivision (b), and the assignment of sites to a tier pursuant to subdivision (c), including the classification of a site as within a minimum threshold pursuant to subdivision (c), are not subject to exempt from the rulemaking provisions of Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.
(2) The adoption of the criteria used by the department pursuant to subdivision (b) to determine the extent to which deferral of a response action at a site will result, or is likely to result, in a rapid increase in response costs at a site or in a significant increase in risk to human health or safety or the environment is subject to the rulemaking provisions of Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.
(f) (1) Except as provided in paragraph (2), the department shall expend all funds appropriated to the department for any response action pursuant to this chapter, and shall take all response action pursuant to this chapter, in conformance with the assignment of sites to priority tiers pursuant to subdivision (c).
(2) The department may expend funds appropriated for a response action and take a response action, without conforming to the listing of sites by tier pursuant to subdivision (c), or at a site that has not been listed pursuant to subdivision (b), if any of the following apply:
(A) The department is monitoring a response action conducted by a responsible party at a site listed pursuant to subdivision (b) or at a site that is not listed listed, but is being voluntarily remediated by a responsible party or another person.
(B) The expenditure of funds is necessary to pay for the state state’s share of a response action pursuant to Section 104(c)(3) of the federal act (42 U.S.C. Sec. 9604(c)(3)).
(C) The department is assessing, evaluating, and characterizing the nature and extent of a hazardous substance release at a site for which the department has not been able to identify a responsible party, the responsible party is defunct or insolvent, or the responsible party is not in compliance with an order issued, or an enforceable agreement entered into, pursuant to subdivision (a) of Section 25355.5.
(D) The department is carrying out activities pursuant to paragraph (2) or (3) of subdivision (b) of, or subdivision (c) or (d) of, Section 25355.5.
(3) The department may, at any one time, expend funds and take a response action at more than one site on the list established pursuant to subdivision (b). In addition, the department may, at any one time, oversee the performance of any activities conducted by a responsible party on more than one site on the list established pursuant to subdivision (b).
(g) This section does not require the department to characterize every site listed pursuant to subdivision (b) before the department begins response actions at those sites.
(h) The department, or, if appropriate, the California regional water quality board, is the state agency with sole responsibility for ensuring that required action in response to a hazardous substance release or threatened release at a listed site is carried out in compliance with the procedures, standards, and other requirements set forth in this chapter, and shall, as appropriate, coordinate the involvement of interested or affected agencies in the response action.