On September 14, 2017, Senate Bill 774 (“SB 774”) was ordered inactive on request of Assembly Member Calderon.  The bill, which proposed creation of the new California Toxic Substances Board (“CTS Board”), will not become law this session, and we will continue to monitor this legislation if it becomes active again during the next legislative session.

Previously the bill was amended in July 2017 to delete a section of the bill that would have allowed the new CTS Board to adopt or amend relevant regulations.  Under the revised version of SB 774, the CTS Board is not permitted to adopt regulations and is no longer authorized to draft, review, or update hazardous waste management plans.  Gov. Code § 24179 (proposed).  These amendments to the bill are seen as a weakening of the measure because they narrow the proposed CTS Board’s jurisdiction and authority.  Industry groups continue to oppose the bill, though, stating that the CTS Board will continue to have too much authority, even with the new amendments.  We will continue to monitor this legislation as it makes its way through the Legislature.  Here’s our original post:

SB 774 proposes to eliminate the Department of Toxic Substances Control (“DTSC”) and form a five-member board, the CTS Board.  On June 1, the Senate approved the bill, and it is now awaiting is first policy committee hearing in the Assembly.  According to the bill’s text, “This bill would create in the California Environmental Protection Agency the California Toxic Substances Board, which would succeed to and be vested with all of the powers, duties, purposes, responsibilities, and jurisdiction of the department and the Director of Toxic Substances Control.”

The CTS Board would consist of five members, appointed by the Governor and confirmed by the Senate, who must have certain specialties: one attorney member, one environmental scientist member, one scientist or medical professional member qualified in the area of toxic substances, one regulatory permitting member, and one public member.

SB 774 is controversial because it responds to years of controversy at DTSC, including poor management of hazardous waste cleanups.  For example, DTSC came under fire in 2015 for the delayed cleanup of the Exide battery recycling plant in Vernon after neighbors of the plant complained for years about being sickened by lead and arsenic.  According to the bill’s author, Sen. Connie Leyva (D-Chino), SB 774 seeks to remedy the critique that the DTSC is currently failing to protect public health and the environment, which has been most noticeable in disadvantaged communities.  Supporters of the bill assert that SB 774 will provide effective, transparent, and accountable oversight of California’s hazardous waste management and the remediation of contaminated sites.

Several industry groups are opposed to the bill, including the California Chamber of Commerce and the Chemical Industry Council of California.  Industry groups are expected to bolster their opposition to SB 774 in Assembly hearings through arguments that the CTS Board will delay the state’s hazardous waste permitting process.

In several respects, the SB 774 CTS Board proposal strikes us as very similar to the current State Mining and Geology Board (“SMGB”) in composition, and perhaps in origin, but not in the scope of its power.  Like the CTS Board, the SMGB is composed of nine members appointed by the Governor, and confirmed by the Senate, for four-year terms. The SMGB serves as a regulatory, policy, and appeals body representing the State’s interests in geology, geologic and seismologic hazards, conservation of mineral resources and reclamation of lands following surface mining activities.  Originally established in 1885 as the Board of Trustees for the Bureau of Mines, the SMGB’s original purpose was to financially oversee the activities of the State Mineralogist.  But SB 774 takes oversight a step farther – it completely places all of the jurisdiction and authority of the DTSC into a board of political appointees.  In addition, the SMBG has evolved over its 125-year history to become focused on geologic hazards and environmental protection, as opposed to mineral development.  In so evolving, it has become a political force in mine permitting matters in several instances where local permitting authorities have been conflicted out of granting permits and in appeals of enforcement orders.  If SB 774 becomes law, the CTS Board, once created, will likely evolve as well.  From our viewpoint, the proposed CTS Board will add another layer or political gamesmanship and spoils-system political pandering to a regulatory scheme that should be removed from such influences.  How and when hazardous waste permits are granted should not be the subject matter for political appointees.  It is quite likely that SB 774 will simply add to the problems it is hoping to address.