South Coast Air Quality Management District
South Coast Air Quality Management District
BOARD MEETING DATE: January 19, 2001 AGENDA NO. 22
Legislative Committee
SYNOPSIS:
The Legislative Committee considered agenda items including a legislative proposal for which the Board will consider approval: State Legislative Concept #7 – Orders for Abatement
RECOMMENDED ACTION:
Approve the legislative concept recommended below.
Beatrice J.S. LaPisto-Kirtley, Chair
Legislative Committee
Attendance
The Legislative Committee met on January 12, 2001. Present were Committee Chair Beatrice LaPisto-Kirtley, Vice Chair Jane Carney, and Committee members Michael Antonovich, Cynthia Verdugo-Peralta and Roy Wilson (by videoconference). Pursuant to the Procedures for Standing Committees of the Governing Board, adopted March 8, 1996, Norma Glover, AQMD Vice-Chair, was appointed as an ad hoc member of the Legislative Committee for the January 12, 2001, meeting only. (Attachment 1)
Washington Update
Peter Robertson and Ed Newberry, AQMD Washington Legislative Representatives, provided the Committee with an update on activities in Washington. (Attachment 2) Both the new Administration and Congress continue to get organized. Neither has introduced an environmental agenda as of yet. The confirmation hearing for Christine Todd Whitman, President-elect Bush’s designate to head EPA, will occur on January 16. This may be the first opportunity to begin to see the initial outline of the Bush Administration’s environmental agenda
Chairs of major committees are now known. In the House of Representatives, Congressman Billy Tauzin (R-Louisiana), will chair the Energy and Commerce Committee, which has jurisdiction over most of the major environmental statutes, including the Clean Air Act. In the Senate, Senator Bob Smith (R-New Hampshire), who chaired the Senate Environment and Public Works Committee last session, will continue to chair the Committee after January 20. Until then, Harry Reid (D-Nevada), ranking Democrat, will preside as the chair. Senator Smith will likely have MTBE legislation as a high priority again this year.
Meetings are being scheduled with staff to the Senate Environment and Public Works Committee to discuss the committee’s upcoming agenda and any future Clean Air Act hearings and changes. Similar meetings will take place with staff of the House Energy and Commerce Committee.
The AQMD federal legislative agenda for 2001 is currently being discussed with Board members and staff to outline a strategic plan to pursue increased funding and activities from federal sources. The idea this year is to increase the number of individual project requests thereby spreading the risk and opportunity for gaining additional funding. However, it is still appropriate to pursue funding similar to the Clean Air Technology Proposal from last session. Other funding opportunities may be through the departments of Transportation, Defense, Energy and other areas of EPA. Last year, there was good support for the AQMD proposal within Congress, but not at the staff level. It is important to diversify this year and develop proposals for a number of projects in different bills which will substantially increase the chances of being successful on any one.
Mr. Newberry suggested the possibility of developing a coalition of cities to align AQMD with several other communities to pursue an initiative for funding through EPA. Such a coalition could help increase political leverage and allow AQMD to form a partnership with other communities across the nation. This will also allow AQMD to pursue other specific AQMD projects at the same time.
Mr. Robertson added that another central theme to the proposed projects is to try to identify and include elements in the funding requests that will appeal to individual members of Congress from the South Coast area. AQMD could also team with universities on projects and allow the university to be the lead requester. A local organization can only ask for so much funding. The AQMD can increase the chances of funding by partnering with federal organizations, coalition of communities, and universities and splitting the lead on various projects.
Ms. Carney stated that the College of Engineering-Center for Environmental Research and Technology (CE-CERT), has received federal funding for projects, including end-use diesel emissions. Ms. Carney suggested contacting UC Riverside representatives regarding the possibility of working together.
Mr. Robertson stated that the Bush administration has made clear in public statements that they intend to review all of the regulatory actions from the Clinton administration, starting first and perhaps paying particular attention to those regulatory efforts that have culminated during the last several months. Among those are EPA's efforts to clean up diesel emissions. It does not necessarily mean that they will seek to roll these back. This area will be watched very closely.
Ms. Carney mentioned there are a few business groups in the Inland Empire who travel to Washington, DC, and would like to be helpful but are not sure who to talk to. Mr. Robertson responded that there is an environmental transition team and an advisory group that is consulting with the environmental transition team. He can assist in getting issues to the members of the environmental advisory group and transition team. Ms. Carney stated she would coordinate this effort through Oscar Abarca.
Sacramento Update
Mr. Lind briefed the Committee on various activities in Sacramento. Mr. Lind introduced Olga Sanchez and Jessie Ortega, of Leal, Oliva and Jauregui, subcontractors for Mr. Lind. Ms. Sanchez and Mr. Ortega will assist in helping the AQMD with legislative affairs. Ms. Sanchez was former staff person to Assemblyman Marco Firebaugh and Mr. Ortega was staff to Asssemblywoman Gloria Romero.
After the November elections, the Democrats picked up two additional seats in the Assembly and one additional seat in the Senate, which brings them closer to a two-thirds majority. There is one leadership change in the Assembly. Scott Baugh, the former Minority Leader, has been termed out and has been replaced by Bill Campbell from Orange County.
Electricity is currently the dominating issue in Sacramento. On January 3 the Governor directed the Legislature to form a special session to address the electricity crisis. Two bills have already been passed. The intent is to move quickly where the opportunity presents itself. Currently, there are no electricity bills which have air quality implications or consequences.
The Governor introduced his Budget Proposal for 2001-2002 on January 10. A chart comparing selected clean air budget items from the current budget proposal and the budget passed last year was distributed. (Attachment 3) The school bus replacement program and the Carl Moyer Program received no funding in the 2001 budget proposal. However, funding of $100 million was set aside for a new Diesel NOx Reduction Program proposed by the Governor. The purpose of the $100 million is to provide offsets to enable electric generation to occur during demand periods. There was also an additional $50 million budgeted for the Zero Emission Vehicle (ZEV) Program. This program will subsidize the purchase and operating costs of approximately 10,000 new ZEVs over a three-year period.
Barbara Baird, District Counsel, stated that staff has not had the opportunity to review the proposed Diesel NOx Reduction Program in the Governor’s budget proposal. Staff is currently unclear as to whether the funds stated to pay costs to replace conventional diesel engines with cleaner alternatives refers to engines used when those on interruptible power are cut off and then must use their backup. There are other possible mobile source programs within the electricity market that might be more consistent with the Moyer Program. For example, the Governor stated in his filing with the Federal Energy Regulation Commission that he hoped that mobile source offsets might be used to site new, extremely clean power generation. If this funding could be directed toward helping provide that kind of information, then we could use that to offset existing diesel mobile sources as well. This may be an opportunity to help shape the proposed budget in ways that would be consistent with the District's goals. Mr. Lind stated that the ARB is still working out details of the Governor’s proposed NOx Reduction program and that it is their desire to administer this program much like the Carl Moyer Program, with the local districts making a determination on how best to achieve the offsets. The ARB has acknowledged that this program is intended to go to mobile sources as an offset for the peakers, for a limited time.
The ARB is also receiving $8.5 million for new monitoring equipment and instrumentation. Air districts sought similar funding last year, but were politely denied. Mr. Lind suggested that the District may want to seek some complementary expenditure.
Additionally, Caltrans will get $20 million to convert some of their vehicles to cleaner burning. It is understood that Caltrans intends on banking these emission reductions for future transportation improvements as opposed to achieving Air Quality Management Plan objectives.
The new Legislature has already introduced 150 to 200 new bills. Very few are related to air quality. A few bills introduced on the electricity crisis may become important to the AQMD and they will be watched closely.
Mr. Lind discussed implementation strategies for the six legislative proposals for 2001 approved by the Governing Board in November. Proposal #1 to support legislation to fund implementation of the fleet rules will require looking for resources within the state budget. To date, no authors have been recruited for this proposal, although interest has been expressed. Mr. Lind stated that the strategy is to take a coordinated position to the Budget Committee.
Proposal #2 to sustain subvention funding is included in the Governor’s proposed budget. CAPCOA will work to ensure funding remains in tact or even grows. Work is being done to have Proposal #3, to update Hearing Board meeting requirements in every county, added into the Local Government Omnibus bill. Chair LaPisto-Kirtley emphasized the importance of accelerating clean diesel and discussed financial incentives for low sulfur diesel fuel (Proposal #4) with Legislators during a recent visit to Sacramento. Some positive responses were received. Work will continue to seek an author.
Ms. Carney asked if the diesel tax was a dedicated tax for transportation infrastructure and if so, how can money be taken from that source successfully. Mr. Lind responded that the proposal was written to say financial incentives and a reduction in the diesel tax is the most obvious, but there may be some other mechanisms. We are going to have to look at as many mechanisms as possible. Ms. Carney added that this could ultimately be a huge cut in that fund. Mr. Lind responded that it would not go unnoticed within the pool of transportation revenues but this would arguably be a reduction on diesel fuel tax. That is one revenue stream to the transportation picture and in the grand scheme of things it is going to be less than a half percent impact. The trucking community itself actually floated a similar idea last year. They wanted to couple it with some relaxation on some environmental restraints and it was that coupling that prevented the idea from surfacing last September.
Ms. Baird pointed out that there would be a reduction in particulate emissions and actually a benefit to the transportation community. Every time the transportation community must approve a regional transportation plan or a regional transportation improvement program, they need to make a finding of conformity with the most recent federally-approved Air Quality Management Plan. They need to meet their emission budgets for the various pollutants including particulate emissions. This actually allows them the possibility of arguing that it would be easier for their diesel emissions not to adversely impact their particulate matter budgets. It may not be a total loss to the transportation community since part of their job is to help meet air quality goals as well.
Proposal #5 seeks to repeal a reporting requirement regarding a triennial performance audit the AQMD performs. The AQMD also performs six other statutorily-required audits and it is believed that this one audit is redundant. Discussions have begun with legislative staff and committees that receive these documents to try and gain their support for the idea. If successful, the intent is to include this proposal in the Local Government Omnibus bill as well.
The last proposal, Proposal #6, was to support any legislation that accelerates implementation of the ARB’s Diesel Risk Reduction Plan. It is too early to tell what legislation is out there to address this. While the AQMD is not sponsoring any legislation in this area, we are looking to others to bring such legislation forward.
Vice Chair Glover asked Mr. Lind what affect he believed the new Administration in Washington may have on Sacramento, if any. Mr. Lind responded that he suspects there are going to be profound effects in federal funding to California. As the national priority shifts, there will probably be funding shifts, but to which programs is unknown. The large federal dollar shifts might occur within health, welfare and education and not so much in transportation. There is reauthorization of the Congestion, Mitigation and Air Quality Improvement (CMAQ) funding coming up and that is a program that has been underutilized for clean air purposes. Its optimal use for clean air purposes has not been enjoyed in the last several years, and it remains to be seen how the Bush administration will address that.
Lastly, there is draft legislation by the paint manufacturers regarding architectural coatings. It is aimed at the ARB and it sets a precedent that the AQMD will want to look at very closely. Ms. Baird commented that the legislation sounds very significant because right now the local districts have the authority to regulate architectural coatings, except for aerosol paints, which is given to the ARB. The AQMD Board adopted an aerosol paint rule years ago that was ultimately upheld by the courts after litigation. The aerosol paint community wrote legislation and got that authority transferred to the ARB. Currently, there are two pending cases regarding the last two rules the Board adopted on architectural coatings. This may be an attempt to do the same thing with the architectural coatings authority. If that happens, we will push to make sure the ARB is required to make the rules as stringent as possible.
Other Business
Ms. Baird stated that an item came to staff’s attention after posting of the agenda, so it is necessary for this committee to make a motion to add the item to the agenda by a two-thirds vote. The need for urgent action is the timing of the Legislative session and the need to seek authors for legislative proposals. Therefore, it is important to have this proposal before the Governing Board for consideration in January. (Attachment 4) The Committee unanimously determined that there was a need to take immediate action and that the need for action came to the District’s attention after the agenda was posted. The item was added to the Legislative Committee agenda for consideration.
Ms. Baird explained that the proposal came from the Hearing Board and is supported by the District Prosecutor's Office. The proposal slightly broadens the Hearing Board's authority in the area of abatement orders. Abatement orders are very similar to an injunction that is issued by a court. When there is a violation of a District rule, the Hearing Board is empowered to issue an abatement order. This order would require the violating source to come into compliance as quickly as possible under the terms and conditions imposed by that Hearing Board after a full evidentiary hearing at which the source presents its case, the District Prosecutor presents its case, and the public is allowed to testify. Currently, the Hearing Board can only issue an abatement order after a violation occurs. In the court system an injunction can be obtained to prevent an imminent or threatened violation. The intent of this proposal is to allow the Hearing Board to have similar authority in the administrative arena as is currently available to the courts.
Peter Mieras, District Prosecutor, added that in general, the District has adequate enforcement authority to allow it to enforce its rules and regulations. This proposal, however, would improve the process if the Hearing Board had authority to issue abatement orders before a violation is actually documented. It would not happen very often but there are situations where problems are continually investigated in a community regarding fugitive dust, potential nuisance, and suspected toxic emissions. In some situations it is believed that the sources, despite warnings that a problem is brewing and a violation is imminent, do not acknowledge the problem and act responsibly to address it.
Ms. Carney commented that she does not see in the proposal the concept of imminent. Mr. Mieras responded that imminent is not stated in the proposal, but when developing legislation, there would have to be a standard for the Hearing Board to make a finding.
Under these circumstances, the findings should correlate closely with what a court would use as a standard in issuing an injunction. It would be some standard like imminent or highly likely or in the near future. Ms. Carney stated she believes the proposal should include a standard. Mr. Mieras agreed that reference to a timeframe should be included in the proposal and suggested that staff look at the various standards to determine which is most appropriate to include in legislation.
Mr. Lind asked if the proposal is AQMD-specific or does it pertain to all Hearing Boards? Ms. Baird responded that it would be useful in other districts, but staff would want policy direction from the Board as to what is appropriate. Chair LaPisto-Kirtley suggested that perhaps Dr. Wallerstein could approach the subject with CAPCOA. It would be more powerful if other districts joined in. The Legislative Committee approved State Legislative Concept 7 with inclusion of reference to a timeframe.
Public Comment
John Billheimer, Environmental Reality, shared with the Committee a briefing paper on the status of replacement sources for the VOC-exempt parachlorobenzotrifluoride (PCBTF) as discontinued by Oxychem with no alternate supplier in the United States. There are three possible foreign sources – Brazil, Italy, and China – but these sources only provide agricultural grade, which tolerates 2 percent water. Oxychem was providing water-free pharmaceutical grade. This paper was submitted for information purposes only. (Attachment 5)
Ethnic Community Advisory Group
Attached for information are the Ethnic Community Advisory Group minutes for the October 11, 2000; November 8, 2000; and December 13, 2000, meetings. (Attachments 6, 7, and 8)
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