Environmental Policy Issue Brief for Governor Arnold Schwarzenegger
November 21, 2003
While this brief is not a complete list of the environmental issues and challenges facing California, we believe that it provides a glimpse of our priority issues, our policy positions, and our vision for future policy development. During the course of the upcoming legislative session, you and your staff should anticipate consistent communications from our coalition in the form of additional policy briefs or direct advocacy position statements on these and other environmental issues.
POLICY MAKING / REGULATORY DEVELOPMENT
Principles
· Focus first on programs that yield the greatest environmental benefit at the least cost. · Solve environmental problems in proportion to the magnitude of the risk. · Base risk evaluations and solutions on sound, credible, and reproducible science. · Eliminate overlap, duplication and conflict between federal, state, regional and local regulations, rules and processes. · Promote accountability of government to achieve environmental efficiency and economic productivity. · Assure that government is reformed so as to provide efficient environmental management and public services required for economic expansion. · Reconcile competing interests through collaborative processes.
Regulatory Reform
We appreciate the recent executive order requiring all state agencies and departments to assess the impact on California’s economy of promulgating any new or pending environmental regulations and policies. Many of your departments are currently in the process of adopting regulations that are of great concern to the employer community. These regulations should be temporarily halted and reviewed under the eye of your new management team.
Recently, certain environmental and public interest organizations have been promoting a political doctrine known as “the Precautionary Principle.” This principle generally contends that where threats of serious or irreversible damage to people or natural systems exist, lack of full scientific certainty relating to cause and effect shall not be viewed as sufficient reason to postpone measures to prevent the degradation of the environment or protect human health. Proponents of the “Precautionary Principle” contend that this concept is a “better safe than sorry” approach to developing public policy. However, we believe that this principle is only the beginning of a radical shift in how laws and regulations are created. Serious questions remain over how would such a principle be defined, implemented, and what impact such a policy might have on economic development, redevelopment projects, new construction projects, the marketing of new products and technologies or even public health and safety.
The business community believes that there is nothing inherently biased or extreme about precaution. For decades, the United States and California has taken a precautionary approach to environmental and health regulations – striking a rational balance that recognizes the fundamental importance of scientific evidence. Some examples of “precautionary-type” regulatory policy include: Proposition 65, the California Environmental Quality Act (CEQA), the federal Toxic Substances Control Act, the Federal Insecticide, Fungicide and Rodenticide Act and many Food and Drug Administration requirements.
Nevertheless, there are extreme interpretations of precaution that essentially reject industrial innovation and sound science, instead favoring unsubstantiated speculation as the basis for precautionary action. For example, product bans or restrictions on new housing developments could easily be imposed based on “allegations of potential harm to human health or the environment.” The business community is opposed to decision-making processes that do not have a basis in credible, reproducible science.
We recognize that it is important that policy makers take steps to guard against unintended environmental or health consequences. However, decision makers cannot ignore the significant tradeoffs that can surface. Creating public policy based on the precautionary principle gives greater weight to theoretical risks than to real benefits. Issues cannot be viewed solely from one side of the risk equation. Perhaps most importantly, the precautionary principle is merely a conceptual framework. It provides few actual guidelines for policy makers, and as a result, it often produces inconsistent interpretations and implementations.
When making risk management decisions, it is necessary to consider the range of precautionary measures, and actions should be proportional to the risks addressed. The use of an overly restrictive precautionary principle can adversely impact all sectors of society by depriving them of meaningful benefits to human health, environmental quality, and improvements in the quality of life.
Air Resources Board (ARB) Regulation of Consumer Products
Over the past 15 years, the ARB has promulgated five comprehensive sets of regulation that create a total of nearly 200 emission standards affecting 82 categories of consumer products. As a result of the ARB’s actions, emissions for the regulated categories have been reduced by 50 percent. In total, statewide emissions from consumer products will have been reduced by over 130 tons per day ROG (a 37 percent reduction) by 2005. To achieve these mandated reductions, the industry has spent hundreds of millions of dollars to reformulate products to meet the stringent, technology-forcing standards.
We would strongly object to any proposal that individual air districts should obtain regulatory authority over consumer products. Restricting sales in a single air district would prove to be a practical impossibility for both the industry and the local jurisdiction. Such regulations could also cause a very serious impediment to interstate commerce.
It is also essential that the ARB continue to meet the current two-pronged test for regulation of consumer products:
Contact: Laurie Nelson, Consumer Specialty Products Association, 916-446-1111
Boiler Retrofit
The San Joaquin Valley is requiring existing boilers to be retrofitted with expensive new NOx controls. In most cases the cost exceeds the district’s cost-effective dollar per ton amount by a factor of 5 and in some cases as much as 10. The statutory requirement for a cost-effective determination for emission control expenses is rendered meaningless.
Further, these same boilers were retrofitted, at great expense, 7 years ago. This equipment is being discarded well before its useful life has expired resulting in a great waste of time and money.
A meaningful cost-effective determination needs to be pursued and wasting resources should be avoided.
Contact: Ed Yates, California League of Food Processors, 916-444-9260
Transport Refrigeration Units Regulation
The California Air Resources Board has proposed regulations to reduce particulate matter emissions produced by diesel-fueled refrigeration unit engines (TRU’s). These units are a permanent part of a trailer and operate completely independent of the tractor.
The TRU proposal is just one of many regulatory endeavors being pursued by CARB, some of which include PM emission controls on fuel delivery trucks, and vapor recovery requirements on above ground storage tanks. The urgency to pass these requirements in such a short amount of time seems to rest upon a court settlement agreement CARB entered into with the Natural Resources Defense Council (NRDC), The Communities for a Better Environment (CBE) and the Coalition for Clean Air (CCA) in 1999. By doing this, CARB entered into a legally binding document that establishes adoption deadlines and implementation schedules without gathering valuable and necessary input from the regulated community. The agreement raises serious questions about CARB’s commitment of resources and prioritization of regulatory initiatives without public comment or input.
The immediate impact of the proposed regulations is huge. The regulations will prohibit all owners/operators from operating 2001 and previous year models unless the TRU generator set engines can meet the stringent new engine standards. These new standards will require engines to meet the low-emission standards by December 31, 2008 and the ultra-low emission standards by December 31, 2015, a turnover rate much higher than currently used. Exemptions are only allowed for those able to meet one of the alternative technologies such as electric standby, cryogenic or hybrid cryogenic temperature control standards, alternative-fueled engines, etc., all of which are difficult and burdensome to achieve. All owners/operators of TRU engines would also be subject to detailed annual monitoring, record keeping, and reporting requirements, currently not required by the ARB. We urge for the immediate suspension of this regulatory action by CARB until such time when the appropriate agency appointments have been made.
Contact: Jennifer Tointon, California Grocers Association, 916-448-3545
California Greenhouse Gas Regulations
Just two months ago, both the Air Resources Board (ARB) and the California Energy Commission (CEC) acknowledged, “Requiring vehicle manufacturers to improve fuel economy…is the sole domain of the federal government,” in their report, “Reducing California’s Petroleum Dependence.” Despite acknowledging that vehicle CO2 regulations will violate federal law, the ARB continues to pour resources into writing regulations, testing vehicles, hiring consultants, and additional research. These efforts duplicate those of the National Highway Traffic Safety Administration (NHTSA), the federal agency charged by the U.S. Congress with setting fuel economy standards. Taxpayer resources should be focused on areas that provide direct benefits to Californians instead of on massive regulations that violate federal law and duplicate federal efforts.
Contact: Eloy Garcia, Alliance of Automobile Manufacturers, 916-447-7315
California Environmental Quality Act (CEQA)
Though established to provide guidance to local governments to assess and mitigate the impacts on the environment of new development, this state environmental law serves as an easily manipulated means of stifling economic growth and development. When strictly applied to any project, the broadly worded law supports never-ending interpretations and continuous legal challenges – many by neighborhood opponents to new infrastructure projects – making it the most powerful influence on how California grows. In addition, attempts to impose a new cumulative risk analysis under CEQA and requiring new mitigation measures to address “environmental justice” goals are premature and subjective and should not be pursued until sound science tools support such action. The only outcome from imposing this new requirement would be unnecessary project costs, delays and litigation.
Brownfield Redevelopment and Urban In-Fill
California must enact legislation to establish clear responsibilities for cleaning up so-called “brownfields” while providing an incentive to redevelop such sites to benefit both the environment and the economy. While some state policies have attempted to address brownfield cleanups, they have simply nibbled around the edges instead of addressing one of the key obstacles – liability issues. One of the primary incentives for cleaning up such properties is to provide limited liability relief for innocent parties and prospective purchasers willing to redevelop the sites for productive uses, including both residential and commercial purposes. This policy would be consistent with recent bipartisan federal legislation enacted in 2001.
Though another well-intended public policy – to provide guidance to localities in the coastal zone – its implementing body, the California Coastal Commission, has become its own independent land-use decision-making body. The Commission regularly intervenes in project and land-use decisions at any time and with little or no notice and frequently prescribes mitigation where it has no authority to do so. The Commission intervenes in this way on projects proposed within the coastal zone and with those involving development miles inland from its principal territory. The Commission regularly acts independently of its parent state Resources Agency and has frequently been admonished for its roguish conduct. A clear line needs to be drawn to ensure the Commission does not pursue objectives beyond its jurisdiction in the coastal zone.
PESTICIDES
The review of risk assessments is a prime example of the redundancies that take place within California. DPR must develop and review risk assessments on pesticides, separate from US-EPA, even when they are using the same data. The Office of Environmental Health Hazard Assessment then reviews the same risk assessments. The same product used by competitors in other states is reviewed three times by three different agencies before it can be used in California. This duplication adds to the cost of the product and many times delays the introduction of new, safer materials to the market.
Another area of concern is in the issue of primacy. Multiple agencies have authority over pesticide-related issues in California. However, the technical and historical expertise lies within DPR. We agree that all agencies impacted by these issues should be involved in the consultation process. However, only one agency should be the lead agency, the one with the most appropriate level of expertise.
We have identified the following efficiencies that we believe can be easily adopted and provide significant resource savings for California:
Contact: Laurie Nelson, Consumer Specialty Products Association, 916-446-1111
Renee Pinel, California Plant Health Association, 916-446-3316
PUBLIC HEALTH
California recently became the first state in the nation to “ban” two chemical flame retardants - pentabrominated diphenyl ether (pentaBDE) and octabrominated diphenyl ether (octaBDE) - out of concern about possible human health and environmental impacts. These flame retardants are used in a variety of products, including computer plastics, polyurethane foams, and commercial textiles. A third chemical flame retardant, Decabromodiphenyl ether (decaBDE) has been suggested as a candidate for additional regulatory oversight, including a possible ban. We oppose any regulatory or legislative restrictions on decaBDE.
DecaBDE is a widely used material that is integral to securing the high safety standards in place in the U.S. and around the world – part of a safety net that helps protect human life from fire’s harm. Such data confirms that DecaBDE is a good choice when flame retarding polymers and textiles used in electronics and upholstered furniture.
DecaBDE’s have undergone significant scientific assessments not just here in the United States but globally and the conclusions have been similar:
In addition, any rules or regulations on the processing or use of products containing DecaBDE would hinder an emerging recycling infrastructure, especially for DecaBDE containing products like electronics and computers (e.g. “e-wastes”). DecaBDE-containing products are the most readily, and safely, recyclable of all e-waste plastics. The business community stands ready to work with the state to discuss the continued safe use of DecaBDEs to protect the lives and livelihoods of all Californians.
Radioactive Materials Issues for the Biotechnology Industry
Life science companies use low levels of radioisotopes as an integral part of many of their basic research and development technologies in the search for new medicines and diagnostic tools. A number of life saving therapies have been developed using trace amounts of radioactive ingredients and treatments like radiation treatment has have become one of the standards of care for diseases like cancer. However, with the use of these materials comes with a responsibility for proper disposal. There are three main concerns the biotechnology industry has regarding radioactive materials policy and regulation in California.
The most immediate concern to the biotechnology industry surrounds the issue of decommissioning. Decommissioning is the process a licensed facility must complete prior to the termination of a radioactive materials use license. The federal Nuclear Regulatory Commission has set the national standard for decommissioning of licensed radioactive materials facilities at a maximum of 25 mRem per year of exposure. In late 2001, the State of California implemented regulations to support and implement this federal standard (which was lowered from the previous standard of 100 mRem). The new rule was challenged in the courts by an anti-radioactive materials use organization and the court ruled to halt the implementation of the new numeric standard on a technicality and required the state to undergo a CEQA analysis on the new standard. Since that time, California has been without a standard for decommissioning and license termination standard. This has resulted in numerous companies having to wait more than six months to terminate their DHS licenses. This is an unacceptable situation that threatens basic innovation in our research laboratories.
The second, long-term political issue that the research industry has had the burden of managing is the lack of acceptable waste disposal alternatives. More than 70% of licensed facilities use long-lived isotopes and California has refused to construct a waste disposal facility to service these wastes. Pursuant to the federal LLRW Policy Act, States were required to develop regional compacts to site disposal facilities for low-level radioactive waste. California was pursuing development of such a site in Ward Valley since 1988, and the Department of Health Services had licensed the land for this facility. Over a decade of scientific debate ensued resulting in full scientific support of the safety of the site from the Federal NRC and the National Academy of Sciences, but the politics won out and the waste facility was never built. In 2002, California policy makers chose to remove the Ward Valley option as the long-term solution with the enactment of AB 2214 which specifically prohibits the Ward Valley site from being constructed. The present situation in California, with hundreds of different sites used to store low-level radioactive wastes generated by the life science industry, universities and hospitals is not in the State’s, the publics, nor the life sciences industry’s best interest.
The last significant, and most troubling, concern the biotechnology industry has is the wrongful one-sided communication of risk to the public regarding radiation exposures that occurs when unscientific bills are introduced. Public perception plays an important role in policy decisions and those who represent and communicate to the public should ethically include balanced and accurate information when discussing risks so as not to incite unnecessary fear of radioactive materials.
Contact: Barbara L. Morrow, California Healthcare Institute, 916-498-3307 or April Bailey, BIOCOM/San Diego, 858-455-0300
SOLID WASTE MANAGEMENT
The proper disposal of preservatively treated wood products removed from service is currently an issue of discussion in the state. The materials are not classed as a federal hazardous waste, but under California criteria may be designated a state only hazardous waste.
Under variances issued by the California Environmental Protection Agency (Cal/EPA), Department of Toxic and Substance Control (DTSC) (and the statutory exemption for electric, gas and telephone services: Health and Safety Code Section 25143.1.5) the materials are currently allowed to go to a lined Class II or III municipal landfill with leachate collection, subject to approval by the Regional Water Quality Control Boards. These requirements exceed all federal rules and are among the strictest in the nation.
In 1996 DTSC studied the issue and recommended regulation that would have regulatorally required disposal in lined Class II or III landfills, but they were never implemented. The variances are outdated and need to be replaced, by a formal mechanism consistent with Health and Safety Code Section 25143.1.5. Some parties within DTSC, the Class 1 haulers and the environmental community contend that the materials should go to only Class I Hazardous Waste facilities. There are only three in operation in the state all in Southern California - Chemical Waste Management at Kettleman City, Clean Harbors at Buttonwillow, and Westmoreland. California would be the only state in the union to incur Class 1 costs and disposal requirements.
This change would increase the cost of disposal to the government such as Caltrans, Department of Parks and Recreation and local governments, businesses such as the ports, building industry, telecommunications industry, railroads, and the building trades to name a few. The costs would increase to the people of the state from about $61 per ton currently to over $290 per ton, with an aggregate cost to the economy estimated at $85 million per year and nearly $3 billion over the next several decades as material in use is removed. Such a change would unnecessarily force the use of more expensive, environmentally costly and nonrenewable substitutes and destroy the state’s small family businesses in the treating industry.
The producers and users of treated wood believe that disposal requirements should be based on an honest scientific review of the risks to determine the most cost efficient requirement for disposal that provide for protection of human health and the environment. To date no evidence has been produced which would lead to a conclusion that current practices do not meet this standard.
Recently, Cal/EPA, the California Integrated Waste Management Board (CIWMB) and some local governments have increased their policy focus on managing litter and other debris appearing in both land and marine environments, primarily in the southern California area. Primary drivers of this activity include a recent court ruling concerning trash total maximum daily load (TMDL) requirements for the Los Angeles River basin, a comprehensive review of plastic products currently being conducted by the CIWMB, and special interest advocacy by certain environmental organizations.
In addition, a bill pending before the state Legislature – AB 586 (Koretz) – calls for the imposition of a $0.02 tax on all disposable cups and bags to generate additional state revenue for litter clean-up and education. Though we recognize the detrimental environmental and economic impacts that ca be associated with marine debris and litter, we adamantly oppose the imposition of any new fees or taxes on businesses or specific products to address this issue.
Litter is neither caused by a specific package, product or material type. Instead, litter is caused primarily by abhorrent human behavior and can only be truly addressed through education and increased enforcement. Singling out the business community, specific products, or packaging-types as the sole “responsible party” is a shortsighted approach to developing public policy and we oppose such efforts.
Many anti-litter initiatives are currently underway – both by public and private entities – in the areas of public education, litter clean up, enforcement, and material recycling. In order to ensure that existing resources are being utilized efficiently, we believe that the state should conduct a thorough audit of these programs, inventory the various programs in place (e.g. state and local governments, non-profits, industry, schools, etc.) analyze the objectives, program elements, costs, and successes or failures before any discussion regarding additional fees/taxes to fund new programs occurs. This audit should also include a review of current “environmental curriculum” to determine if significant attention is being allocated to this issue and law enforcement should be consulted to review existing anti-litter laws and assess possible changes to foster increased enforcement and prosecution of offenders.
Product Stewardship is a concept now in vogue in the European Union and gaining traction with consumer groups in the United States. Under this concept, manufacturers of products are required to assume disposal costs of their products after they have been used by consumers and discarded. This expensive program places a large burden on producers to finance solid waste disposal that has been traditionally paid for by residential and industrial garbage rates.
California has flirted with several proposals to require manufacturers to take responsibility for products when they enter the landfill. California manufacturers and businesses oppose the concept of “product stewardship” and the resulting proposed regulations and laws based upon this concept because:
· This is a global economy and most products sold in California were not manufactured here. The state has little ability to collect disposal costs from foreign or out-of-state producers.
· Product Stewardship is a back-door attempt to give California regulators the power to specify product design. If manufacturers do not meet state ordered product designs the state will increase disposal costs.
· Product Stewardship takes responsibility for waste disposal away from consumer financed local government waste disposal efforts and places it entirely on the backs of product manufacturers.
· If California were to adopt and mandate general, or specific, product stewardship laws affecting products produced in California, the result would be a hardship for California employers as their cost of doing business in this State would escalate, and would further make our business climate inhospitable to job creation.
The water quality regulatory system has jumped off the track as originally laid by the federal and state water quality laws. This is not to say that all regulatory decisions are "bad regulation" or that the State should abandon fundamental core programs and values. However, without correction or redirection, the "bad regulations" will keep the train from moving forward towards cleaner water.
Leadership is needed to put the water quality regulatory program back on course. The core values of the Clean Water Act and Porter-Cologne need to be resurrected and used as a guiding force in this corrective action. Instead of defending the current system, regulatory agencies must be directed to operate with a simple mandate - regulatory action must show demonstrable environmental benefit.
Under the provisions of the federal Clean Water Act and Porter-Cologne, water quality standards development and implementation programs are fundamentally sound. However, interpretation and implementation of these laws is a cause for concern for public agencies, businesses and farmers throughout California. The two primary areas of concern are: (1) the water quality standards themselves (i.e., the beneficial uses that are designated for the various waters throughout the State and the water quality objectives adopted to protect the designated uses); and (2) the manner in which the standards are being implemented in federal NPDES permits, waste discharge requirements, waivers, statewide general permits, and Total Maximum Daily Loads (TMDLs).
The problems with the water quality standards program fall into three general categories - inappropriate regulation, inconsistent regulation and inefficient use of resources. Before California's municipalities and businesses can continue to tap limited public resources, or the public's willingness to fund environmental improvements, we must be able to show that the cost is commensurate with the benefit to be gained.
Contact: Cliff Moriyama, California Business Properties Association, 916-443-4676.
Stormwater Mitigation
Despite the extraordinary measures taken by businesses and construction sites to harness or halt the flow of storm water through the use of best management practices, regulatory agencies, particularly regional water quality control boards continue to demand more. New permit requirements call for almost impossible mitigation measures. Moreover, the Legislature and environmental activists are increasingly pushing for greater penalties, even for simple paperwork or minor infractions. The state should issue a comprehensive storm water mitigation policy that recognizes best management practices and regional solution approaches as cost-effective measures for regional water quality control boards to support.
Under federal law, states are required to develop specific “pollution budgets” for waters that are deemed “impaired” or unable to meet water quality standards. If the state fails to do so, then the federal government is required to step in. In the past six years, more attention has been devoted to the development of these “pollution budgets” (also referred to as “TMDLs”), and currently, it is believed that there are well-over 1500 “impaired” waters throughout California.
In part due to a Consent Decree entered into between US EPA and various environmental groups in Southern California, the state is currently required to expedite the development of dozens of TMDLs for surface waters in Ventura, Los Angeles, and Orange Counties. The amount of money provided by the federal government to complete these TMDLs is paltry; and, as is widely known, the state is facing record deficits. Where the money is to come from to develop scientifically-sound and objective TMDLs remains an unanswered question, particularly in light of the pending Consent Decree deadlines.
Recently, various watershed groups - consisting primarily of businesses and municipal agencies with state-issued permits to treat and dispose of treated wastewater - have shown interest in helping to augment the lack of federal and state funds needed to develop these TMDLs. However, the combination of the restrictive deadlines to complete the TMDLs, as well as historical acrimony between Los Angeles dischargers and the Los Angeles Regional Water Quality Control Board, is contributing to a difficult situation from the standpoint of developing scientifically-sound TMDLs.
We urge you to do two things to substantially improve the TMDL situation in Southern California: (1) seek cooperation of the environmental group litigants to revise the Consent Decree deadlines where it can be demonstrated that a substantial financial and technical effort is being, or will reasonably be, dedicated to the development of objective, scientifically-sound TMDLs; and (2) request the Los Angeles Regional Water Quality Control Board work cooperatively with watershed groups that have, or are willing to, commit substantial financial and technical resources to perform a wholly state responsibility - - development of TMDLs throughout the Los Angeles and Ventura Counties region.
Contact: Craig Johns, California Resource Strategies, 916-498-3326
Excessive Monitoring and Reporting
The Central Valley Regional Water Quality Control Board is imposing excessive monitoring and reporting requirements on new and existing discharges to land. In many situations these discharges have occurred over many years, 20-30, with no significant problems either to the land or the groundwater. Each time the permit is renewed the Board imposes requirements for more monitoring wells and increased frequency of reporting. This increases costs with no benefit to the environment.
Land discharges of water with a good history of environmental protection should not be required to waste money. In most of these situations, the water is used to irrigate crops and such recycling or beneficial uses should be encouraged.
Contact: Ed Yates, California League of Food Processors, 916-444-9260
Perchlorate Public Health Goal (PHG) and Maximum Contaminant Level (MCL)
California state agencies may soon be adopting a public health goal (phg) and maximum contaminant level (MCL) for perchlorate. These standards must protect public health. However, there appears to be a rush to adopt an extremely conservative drinking water standard for perchlorate based on highly questionable science. This rushed effort is unnecessary to protect public health and could be very costly to the California economy.
Regulators are moving to adopt an overly stringent drinking water standard for perchlorate on an expedited basis. This will result in a standard being set before the National Academy of Sciences (NAS), the nation's premier scientific institution, has the opportunity to complete its evaluation of perchlorate.
California regulators have adopted a drinking water action level of 4 parts per billion (ppb) for perchlorate and may be considering setting the final standard at about that level. This action level is not based on science. In fact, sound science indicates much higher levels are fully protective of human health. In such circumstances, unsupportable and unduly conservative standards will wreak economic havoc in California with no corresponding benefit to human health. Perchlorate is present at low levels, generally in the 4-10 ppb range in hundreds of surface and groundwater sources throughout California, including the Central Valley, the Morgan Hill area, the Inland Empire, Sacramento County and the Colorado River.
Establishing an overly conservative permanent drinking water standard for perchlorate will remove key water supplies important to California municipalities, consumers and industry and precipitate severe adverse economic impacts on California’s agricultural industry, water suppliers and consumers, the building industry and others. In addition to financial losses there will be corresponding job losses in many of these sectors.
Policymakers should require the consideration of the findings of the National Academy of Sciences in an effort to ensure that the best available science is used when setting a final drinking water standard in our state. For more information on perchlorate visit www.councilonwaterquality.org