BOARD MEETING DATE: February 1, 2002
AGENDA NO. 15

Legislative Committee

SYNOPSIS: 

The Legislative Committee considered agenda items including the following Legislative Concept for 2002:
State Legislative Concept--Hearing Board Orders for Abatement

RECOMMENDED ACTION:

Approve the Legislative Concept recommended below.

Jane Carney, Vice Chair
Legislative Committee

Attendance

The Legislative Committee met on January 18, 2002. Present were Committee 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 Chair, was appointed as an ad hoc member of the Legislative Committee for the January 18, 2002, meeting only. Committee Chair Beatrice LaPisto-Kirtley was unable to attend. [Attachment 1]

Sacramento Update

Allan Lind, AQMD Sacramento Legislative Representative, reported that the Legislature reconvened on January 7 for the second year of the 2001-02 legislative session. Two-year bills introduced in 2001 have until January 31 to pass their house of origin. The deadline to submit new legislation requests to the Legislative Counsel is January 25 and February 22 is the last day to introduce new bills.

Regarding fiscal affairs for the state of California, the 2001-02 budget is now out of balance. There is a projected $12 billion budget deficit and Governor Davis has convened a new special session to deal with the deficit. In the current year budget, funding appropriated for the Carl Moyer program, the School Bus Replacement program and Zero-Emission Vehicles (ZEVs) is still intact. However, the Governor’s proposed 2002-03 budget reduces subvention funding by 33 percent and provides no funding for Carl Moyer, school bus replacement, or ZEV programs. Funding through the California Energy Commission for Fuel Cell development has also been reduced.

In March, Proposition 40, the California Clean Water, Clean Air, Safe Neighborhoods, Parks and Coastal Protection Act of 2002, will be on the ballot. This park bond initiative, if passed, will provide $50 million in funding for the Carl Moyer program. The Planning and Conservation League also has an initiative that may be placed on the November ballot. This initiative provides funding for various transportation projects, as well as the Carl Moyer and school bus replacement programs.

Efforts are underway to find authors or other legislative vehicles to further the AQMD’s 2002 state legislative agenda approved by the Board in December. The legislative agenda consists of five concepts: 1) expand funding for fleet rule implementation; 2) sustain state subventions to air districts; 3) develop new financial incentives for low sulfur diesel fuel; 4) accelerate CARB’s Diesel Risk Reduction program in the South Coast Air Basin; and 5) provide greater flexibility to the Hearing Board.

Staff is currently reviewing proposed state legislation by other parties that could have an air quality impact. Consideration is being given to draft language that would provide for a petroleum mitigation fee to mitigate the impacts of petroleum on ground water and air pollution. There is also draft language for legislation pertaining to idling trucks in the Los Angeles and Long Beach ports. Ms. Carney commented that staff should encourage legislation on idling trucks. Such legislation could make a meaningful difference. Dr. Wallerstein stated that if granted with the authority to cite idling trucks and with subvention cuts on the horizon, the AQMD would not have adequate enforcement staff, which could have an adverse effect on the community. Staff will work with the author and sponsor of the legislation to ensure a balanced bill.

Federal Update

Lance Larson and Lynnette Jacquez with Copeland, Lowery & Jacquez, Washington Legislative Representatives, reported that they would meet with AQMD staff in January to finalize the AQMD’s 2002 federal legislative agenda. Contacts have been made with various federal agencies to determine what their agendas and budget requests might be. March is the target date to get appropriations requests finalized and submitted.

State Legislative Concept on Hearing Board Orders for Abatement

Peter Mieras, District Prosecutor, explained that the Committee considered various state legislative concepts at their December meeting and requested that staff refine the concept on Hearing Board Orders for Abatement. [Attachment 2] Staff has amended the concept and is now bringing this concept back to the Committee for reconsideration.

This concept would allow the Hearing Board to issue an order for abatement without a finding that the source is in violation and to also issue an emergency order for abatement upon 24-hour notice to the source, instead of the currently required 10-day public notice period. Currently, in a contested order for abatement, the source must be found to be in violation. However, if the source is willing to stipulate to order for abatement, the Hearing Board can issue the order without a finding of violation. The Hearing Board does have the authority to issue variances on an emergency basis and on an interim basis without public notice.

A requirement for "good cause" has been added to this concept proposal. A "good cause" justification to issue an order for abatement to prevent a future violation, with a 10-day public notice period, must be made based on the high probability that a future violation will occur involving excess emissions that will adversely affect the public. An example of this type of order for abatement would be if there were complaints from the community and evidence before the Hearing Board that meets the "good cause" requirement finding.

A "good cause" justification for an emergency order for abatement, without the public notice period, must be made on the basis that the need to prevent such an occurrence outweighs existing requirements for a 10-day public notice period. This requirement is similar to the "good cause" requirement that the Hearing Board currently must make when issuing an emergency or interim variance without public notice. This requirement would be similar to the balancing test used in variances where the need to act quickly outweighs the need to allow the 10-day public notice period. It would involve a showing that there are compelling reasons for acting without public notice. The Hearing Board has had extensive experience with this balance test.

The two concepts may also be combined where there may be an emergency order for abatement on a suspected probable violation, in which case the "good cause" justification in each case would have to be made. Ms. Carney stated that the last sentence under the first paragraph of the legislative concept seems to state the opposite. Mr. Mieras replied that the sentence should be removed because it is an unnecessary limitation on this particular concept. The Legislative Committee approved the State Legislative Concept Proposal for Hearing Board Orders for Abatement with the removal of the sentence as discussed.

OTHER BUSINESS:

No other business

PUBLIC COMMENT:

John Billheimer, Enviro Reality, distributed to the Committee information on a provision in Proposition 65 allowing for private action in the public interest when it is believed that proper authorities are unaware or uninterested in an alleged Proposition 65 violation. Mr. Billheimer stated that this provision in Proposition 65 was amended effective January 1, 2002, to require a Certificate of Merit in such actions. As a result, 3,000 businesses were served notice prior to the new requirement taking effect. Mr. Billheimer stated that the impact on the AQMD from Proposition 65 has not been examined and it is possible that the AQMD could be held accountable by the small business community if these recent actions go forward. [Attachment 3]

Attachments

1. Attendance Roster
2. State Legislative Concept for Hearing Board Orders for Abatement
3. Draft Paper on Proposition 65 Provision Affecting Small Businesses

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