BILL ANALYSIS
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Byron D. Sher, Chairman
1997-98 Regular Session
BILL NO: AB 1479
AUTHOR: Sweeney
AMENDED: May 15, 1997 and
As proposed to be amended by the author in committee
FISCAL: Yes HEARING DATE: July 7, 1997
URGENCY: No CONSULTANT: Sanjay Ranchod
SUBJECT : BAY PROTECTION AND TOXIC CLEANUP PROGRAM
SUMMARY :
Existing Law , the Bay Protection and Toxic Cleanup Program:
Requires the State Water Resources Control Board (the state
board) to formulate and adopt a water quality control plan
for enclosed bays and estuaries, known as the California
Enclosed Bays and Estuaries Plan.
Defines "sediment quality objective" to mean that level of
a constituent in sediment which is established with an
adequate margin of safety, for the reasonable protection
of the beneficial uses of water or the prevention of
nuisances.
Defines "toxic hot spots" to mean locations in enclosed
bays, estuaries, or any adjacent waters in the
contiguous zone or the ocean, the pollution or
contamination of which affects the interests of the
state, and where hazardous substances have accumulated
in the water or sediment to levels which may pose a
substantial hazard to aquatic life, wildlife, fisheries,
or human health, or may adversely affect the beneficial
uses of the bay, estuary, or ocean waters, or exceeds
adopted water quality or sediment quality objectives.
Requires the state board and the regional water quality
control boards (the regional boards) to develop and
maintain a comprehensive program to identify and
characterize toxic hot spots and plan for their cleanup,
remediation, or mitigation.
Authorizes each regional board that has regulatory authority
for one or more enclosed bays or estuaries to develop, for
each one, a consolidated data base which identifies and
describes all known and potential toxic hot spots by
January 30, 1994, and requires each regional board to
develop an ongoing monitoring and surveillance program.
Requires the state board to adopt sediment quality objectives.
Requires the state board to adopt general criteria for the
assessment and priority ranking of toxic hot spots by
January 30, 1994.
Requires each regional board to complete and submit to the
state board a toxic hot spots cleanup plan by January 1,
1998, and requires the state board to submit to the
Legislature a consolidated statewide toxic hot spots
cleanup plan by June 30, 1999. These cleanup plans must
include:
a priority ranking of all hot spots
a description of each hot spot
an estimate of the total costs to implement the plan
an assessment of the most likely source(s) of pollutants
an estimate of recoverable costs from responsible parties
a preliminary assessment of actions to remedy or restore a
toxic hot spot
a two-year expenditure schedule identifying state funds
needed to implement the plan
a summary of mitigation and prevention actions initiated by
the regional boards
in the case of the plan submitted by the state board,
findings and recommendations concerning the need for
establishment of a toxic hot spots cleanup program.
Requires each regional board to initiate a reevaluation of
waste discharge requirements for dischargers who have
caused a toxic hot spot within 120 days from the ranking of
that toxic hot spot.
Prohibits any person from dredging or otherwise disturbing a
toxic hot spot site that has been identified and ranked by
a regional board without first obtaining certification.
Requires the state board to establish annual fees applicable
to all point and nonpoint dischargers who discharge into
enclosed bays, estuaries, or any adjacent waters in the
contiguous zone or ocean.
Requires that the fees create incentives to reduce
discharges.
Prohibits the total fees collected from exceeding $4
million per year.
Requires that these fees be deposited in the Bay Protection
and Toxic Cleanup Fund, whose funds shall be annually
appropriated by the Legislature for expenditure by the
state board.
Repeals these fees on January 1, 1998.
This bill reforms, sunsets, and extends planning deadlines and
fee sunset provisions of the Bay Protection and Toxic Cleanup
Program. Specifically, the bill:
Substitutes the term "areas of sediment contamination" for the
term "toxic hot spots," and defines the term "sediment
quality triad" to mean a scientific framework for
collecting synoptic measures of sediment chemistry,
toxicity, and the benthic community, and the use of those
measures collectively through a weight-of-evidence approach
to assess relative sediment quality.
Requires each regional board that has regulatory authority for
one or more enclosed bays or estuaries to conduct
comprehensive fish and shellfish tissue studies in
consultation with the Department of Fish and Game.
Requires posting by county health departments within 90 days
of the establishment of public health warnings and
advisories.
Requires posting for existing warnings and advisories by
May 1, 1998.
Requires the Office of Environmental Health Hazard
Assessment to issue final fish consumption advisories
within 180 days of submission by regional boards.
Extends the deadline for the state board to adopt criteria for
the assessment and categorization of areas of sediment
contamination on a regional basis, using the sediment
quality triad approach, to March 1, 1998.
Establishes five categories of areas of sediment
contamination.
Requires areas of sediment contamination identified as
significantly contaminated sediments or contaminated
sediments to be prioritized as either high, medium, or
low priority for cleanup.
Requires the Department of Fish and Game to complete and
submit to the state board and each regional board, and
release to the public, draft interpretive reports that
include data generated from stations sampled in each region
and a categorization of each site.
Extends the deadline for each regional board to complete and
submit to the state board, and release to the public, an
interim sediment contamination cleanup progress report to
March 31, 2000, and revises the required elements of the
report.
Extends the deadline for the state board to complete and
submit to the Legislature a consolidated report to October
1, 2001, and revises the required elements of the report,
including:
Findings regarding the success of the program in meeting
its goals.
Recommendations regarding additional steps that may be
needed to meet the program goals that consider
extending, revising, or eliminating the existing program
as well as measures to coordinate and integrate the
activities and information developed by the program into
activities performed by the state board and the regional
boards.
Requires the regional boards to submit to the state board a
final sediment contamination cleanup plan.
Extends the repeal date of annual fees to January 1, 2002.
Repeals the Bay Protection and Toxic Cleanup Program on
January 1, 2003.
Makes other minor changes.
Repeals obsolete sections and makes conforming changes.
COMMENTS :
Purpose of the Bill . Toxic hot spots are locations in coastal
bodies of water where hazardous substances such as heavy
metals, pesticides, toxic compounds from oil and chemical
spills, and industrial waste discharges have accumulated in
the water or sediment to levels that pose a danger to
aquatic life, wildlife, fisheries, or human health. In
response, the Bay Protection and Toxic Cleanup Program
(BPTCP) was created. However, the state is lagging in
carrying out the program's mandated responsibility of
identifying and developing cleanup plans for toxic hot
spots. The author's office states that AB 1479 is intended
to speed up and reform this program.
BPTCP Background . The BPTCP was enacted in 1989 to identify
and rank the most hazardous toxic hot spots, determine the
sources of the pollution and those responsible, and develop
and implement cleanup plans. The State Water Resources
Control Board (the state board) has overall responsibility
for the program, working with the regional boards and the
Department of Fish and Game.
Under the program, agencies and businesses that discharge
wastewater into one of the bays are charged fees to pay for
the scientific studies of toxic hot spots. Millions of
dollars in fees have been collected but the State has not
yet officially identified or ranked any of the dozens of
suspected toxic hot spots throughout the state. State
agencies missed the original 1994 deadline for completing
and adopting a cleanup plan. Legislation in 1993 extended
the deadline five years but the State is again behind. The
program's funding sunsets at the end of 1997.
Fee Collection Problems . The bill extends the sunset date of
the program's fees from January 1, 1998 to January 1, 2002.
Opponents contend current fees are unnecessary,
inequitable, and duplicative of other fees collected in the
San Francisco Bay Area. A recent report prepared by staff
of a regional board critiquing the BPTCP raises several
issues with the program's fee collection system. (Review of
the Bay Protection and Toxic Cleanup Program: A Report to
the State Water Resources Control Board, April 1995, San
Francisco Bay Regional Water Quality Control Board) The
following problems are noted in the report:
A major shortfall in revenues has hampered program
implementation. Actual revenues have been about $2.5
million annually, rather than the anticipated $4 million
annually. The report states that "much of this
shortfall has been due to regional boards' downgrading
the classifications of their dischargers." Should this
practice be curtailed?
The BPTCP has its own fee system. Because program staff do
the billing, "the state board is running two parallel
billing efforts to the same dischargers. Running this
separate fee collection element should be regarded as a
distraction and a diversion." Should the program have
its own fee system?
The fee collection system does not work well. "Most
regional boards report that there are significant
billing errors, caused by the fact that the database
used is not the current version." The report recommends
that responsibility for BPTCP fees be shifted to the
state board's Fee Unit.
The bill does not change the current fee collection system.
This Committee may wish to incorporate amendments to
address this problem.
Program Duplication . Opponents contend the BPTCP is
duplicative of other programs, such as a regional
monitoring program in the San Francisco Bay. The bill
requires that the consolidated report to be submitted to
the Legislature by the state board include recommendations
to coordinate and integrate the activities and information
developed by the program into activities performed by the
state board and regional boards.
The San Francisco Estuary Regional Monitoring Program for
Trace Substances (RMP), administered by the San Francisco
Estuary Institute, assesses fees for activities that
include the collection of water, sediment, and bivalve
tissue samples at locations throughout the Estuary. This
Committee may wish to incorporate amendments that, to the
extent that there is duplicative overlap with the RMP and
other programs, eliminate such duplication.
Lack of Tangible Results . Opponents and supporters of the
bill express concern over the lack of tangible work
products, due primarily to management and program problems.
The report states that a major reason for early program
problems was an unrealistic reliance on cutting edge
technology. Since technical feasibility was a major issue
when starting up the program, tangible results were slow to
materialize even though fees were being collected. The
program's most serious technical shortcoming concerns
scientific peer review. Because the program is a
pioneering effort to better understand and manage toxicity,
it is recommended that scientific peer review be made a
more central element of the program.
The program has been plagued with management problems as well.
There have been numerous complaints about centralizing
tendencies at the state board, internal management
shortcomings, and excessive state board overhead and
administrative costs, resulting in the loss of valuable
staff. It appears that state board BPTCP staff should be
reduced in size, and that responsibility for the program be
more broadly shared with the regional boards and the
Department of Fish and Game. The bill shifts authority
from the state board to regional boards and the Department
of Fish and Game. This Committee may wish to incorporate
amendments to further restructure the program.
This Committee may also wish to incorporate amendments to
establish legislative oversight procedures, such as annual
reporting requirements, to ensure tangible results and
satisfactory progress toward meeting the program's goals.
Fees collected under the BPTCP are deposited in the Bay
Protection and Toxic Cleanup Fund, whose funds are annually
appropriated by the Legislature. Should appropriation of
funds by the Legislature be made contingent upon submittal
of an annual report by the state board?
Shift in Scientific Approach . The bill substitutes a
weight-of-evidence approach for a "sediment quality
objective" standard for purposes of assessment and
categorization of areas of sediment contamination. This
change is intended to bring the approach mandated by law up
to date with current science and abandon what proved to be
a problematic approach. The sponsor contends the "sediment
quality objective" standard was extremely
resource-intensive, overly rigid, and not closely related
to actual toxicity.
Terminology Change . The bill substitutes the term "areas of
sediment contamination" for the term "toxic hot spots."
This change in terminology was suggested by the waste
discharge community to more accurately reflect the
characterization of the pollution problem.
Program Sunset . The bill sunsets the program on January 1,
2003 but extends the sunset date on fees. Supporters
contend that more time period is needed to allow the
program to achieve its goals. The Sierra Club writes, "It
is very important for the regional boards to finish the
monitoring and source characterization needed to complete
the toxic hot spots cleanup plans... without this program,
the State will not be able to fully evaluate the toxic hot
spots problems and complete recommendations on which
programs are most needed to address serious existing
contamination in bays and estuaries."
Supporters also state that valuable monitoring data has been
gathered under the program. According to the report, the
program "is providing us with an unprecedented
understanding of toxicity in California's coastal waters
and enclosed bays and estuaries, especially with regard to
sediments." Information collected by the program may
already have had a direct impact on human health, such as
the "San Francisco Bay Fish Contaminant Study" of 1995.
End It or Mend It ? Opponents of the bill argue that a
comprehensive watershed management approach is preferable,
and that the BPTCP should be ended. The California Chamber
of Commerce writes, "We believe that most of the mandates
in the original legislation have proven to be unworkable.
Our members and other permitees have paid over $15 million
for this program for very meager returns... The California
Chamber of Commerce recommends that this program be
terminated."
Related Legislation . AB 982 (Aroner, 1997) would delete the
January 1, 1998 repeal date on annual fees collected under
BPTCP, thus continuing them indefinitely. AB 982 has been
referred to the Assembly Environmental Safety and Toxic
Materials Committee.
Re-referral to Natural Resources and Wildlife Committee .
Should this measure be approved by this committee, the do
pass motion should include the action to re-refer the bill
to the Senate Natural Resources and Wildlife Committee.
SOURCE : Save San Francisco Bay Association
SUPPORT : CALPIRG, Center for Marine Conservation, East
Bay Municipal Utility District, Heal the Bay,
Natural Resources Defense Council, Planning and
Conservation League,
Sierra Club, Planning and Conservation League,
City and County of San Francisco
OPPOSITION : California Chamber of Commerce, Western States
Petroleum Association, Northern California
Marine Association, Santa Clara Valley
Manufacturing Group, California Environmental
Business Coalition, Bay Area Stormwater
Management Agencies Association, Bay Planning
Coalition, East Bay Dischargers Authority, San
Francisco Drydock, Inc., Tidewater Sand &
Gravel, Inc., California Manufacturers
Association, California Marine Parks & Harbors
Association, Inc.