Background

The Legislature adjourned August 31, 1998 without reauthorizing Chapter 6.8 of the Health and Safety Code (also know as the State Superfund Program). As a result, the Department of Toxic Substances Control (DTSC) will lose certain authorities provided by that Chapter. However, funding for the activities currently performed by DTSC’s Site Mitigation Program is governed by Chapter 6.5 of Division 20 of the Health and Safety Code (the Hazardous Waste Control Law) which will not be impacted by the sunset of Chapter 6.8 provisions. In addition, the funds to administer the Program through June 30, 1999 were appropriated by the Fiscal Year (FY) 1998-1999 Governor’s Budget. Furthermore, DTSC has remaining authorities under non-repealed provisions in Chapter 6.8, Chapter 6.5, and other provisions of the Health and Safety Code that have been the basis historically for both regulatory activities and cleanup activities.

Chapter 6.5, enacted in 1972, formed the basis of all activities of the Toxic Substances Control Program (the predecessor to DTSC) including site remediation for a period of ten years. During this period 115 sites were cleaned up using this authority. Chapter 6.8 was enacted in 1981 in response to the enactment of the federal Comprehensive Environmental Response, Compensation, and Liability Act ((CERCLA) also know as the federal Superfund program). It to provided additional funding and a cost apportionment scheme for hazardous substance cleanups in California. Chapter 6.8 included many desirable program components which were not included in DTSC’s traditional corrective action enforcement program under Chapter 6.5 and other authorities available to DTSC. Changes suggested by DTSC and other Program Stakeholders under consideration by the Legislature in August 1998 would have improved the Chapter 6.8 program.

Effects of the sunset:

All articles of Chapter 6.8 are sunseted effective January 1, 1999 except for articles 1,2,3,4,6, and 7.5. These articles will stay in effect until all Hazardous Substance Cleanup Bonds have been fully repaid. DTSC estimates the bonds will not be fully repaid until late in 2005. The continued existence of the remaining Chapter 6.8 articles keeps in effect all the definitions and cost recovery authorities embodied in the Chapter until that date. The articles that sunset are those governing private site management, technology demonstration projects, compensation for loses, abandoned site surveys, and most importantly, the enforcement and mandate provisions of Article 5. Included in Article 5 are statues that establish the drug lab cleanup program, the priority listing procedures, and the Chapter 6.8 enforcement authorities. Other tools for cleaning up sites and cost recovery remain available to DTSC under Health and Safety Code sections 58009 and 58010, Chapter 6.5 and federal law. Most of these other authorities existed prior to the enactment of Chapter 6.8.

Continuing authorities:

Chapter 6.5 gives DTSC authority to require responsible parties to take corrective action when there has been a release of a hazardous waste or a hazardous constituent from a hazardous waste facility (H&SC section 25187). The definitions of "hazardous waste," "hazardous constituent," and "hazardous waste facility" cover the vast majority of the sites currently being handled under Chapter 6.8. It is important to note that a hazardous waste facility is not limited to a hazardous waste business operating under a permit or other authorization from DTSC. It includes, among other things, any site where hazardous waste has been disposed (H&SC section 25117).

DTSC also has a clear power under H&SC sections 58009 and 58010 to commence and maintain all proper and necessary actions to protect and preserve the environment and abate public nuisances. DTSC is specifically empowered to settle cases under Government Code section 11415.6.

DTSC can also file civil actions seeking corrective action pursuant to the citizen suit provisions of the federal Solid Waste Disposal Act pursuant to 42 U.S.C section 6972.

Availability of funding:

The continuing authorities available to DTSC after January 1, 1999 authorize appropriation and expenditure of Toxic Substances Control Account (TSCA) funds for: payment of costs incurred by the State for removal and remedial action in response to a release or threatened release of a hazardous substance; and payment of costs for staff to perform oversight of response actions.

Chapter 6.5 and DTSC’s other grants of power in the Health and Safety Code continue to authorize DTSC to expend funds appropriated for these purposes. Cost recovery and declaratory relief actions under CERCLA are still available remedies. Further, Chapter 6.5 authorizes expenditures of funds for corrective actions in the event a responsible party fails to comply with an order, or in the event DTSC determines a poses an imminent and substantial endangerment.

Additional State law cost recovery authority is provided for response actions taken under Chapter 6.5.

While there may be some technical problems accessing funding for continuation of the Clandestine Drug Lab Cleanup Program, and the state orphan site clean up effort between January 1, 1999 and June 30, 1999 due to certain restrictions in the Budget Act, these problems can be overcome by the passage of a deficiency appropriation and in the construction of the DTSC portion of the FY 99-00 Governor’s Budget.