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THE
IMPACTS OF THE SUNSETTING OF THE CALIFORNIA STATE SUPERFUND PROGRAM
By
Edmond Bourke
A
recent article in the Wall Street Journal entitled: "With State
Superfund Set to End, The Big Question Is: What Now?", has triggered
a lot of questions from clients regarding the specific impacts on
their projects in California. At issue is the California State Superfund
Programs sunsetting on January 1, 1999, after an unsuccessful bid
by Agency personnel to try to extend the program. Articles 1, 2,
3, 4, 6 and 7.5 are exceptions to the Sunsetting of Chapter 6.8
(added by stats.1981CH.756) of the Health and Safety Code (H&S Code)
and they contain Short Title and Legislative Intent, Definitions,
Hazardous Substance Account, Fees, Recovery Actions and Hazardous
Substance Cleanup Bond Act of 1984. C2REM
discussed the sunsetting of the State Superfund with the Legislative
Units of DTSC and was informed that they are not exactly sure of
the detailed impacts and are in the process of developing an approach
to address the unexpected legislative move. However, the Legislative
Unit is in discussions with the Governor's office and Cal EPA and
is presently considering four mechanisms to maintain and continue
environmental remediation projects by the State of California and
subsequently avoiding U.S. EPA involvement. These mechanisms include:
- Existing
Orders and/or Consent Agreements are "contractual obligations"
between the parties (i.e., PRP and DTSC) and cannot be contractually
impaired by legislation, therefore, these projects will continue
as agreed,
- Articles
1, 2, 3, 4, 6, and 7.5 (see above titles) of Chapter 6.8 of the
H&S Code will be maintained until approximately the year 2005
when the State’s $100 million Hazardous Substance Cleanup Bond
has been fully repaid,
- The
DTSC plans to revert to Chapter 6.5 (Hazardous Waste Control Law)
of the H&S Code which was established in 1972 to implement and
obligate responsible parties to conduct cleanup activities and;
- The
few remaining sites, which would not be covered under these aforementioned
tools or have not been assigned or established agreements by January
1, 1999, would be redistributed under Cal EPA to RWQCB.
The
specific Articles which will be ending include: Article 5 - Uses
of State Account; Article 6.3 - Technology Development Programs;
Article 6.5 - Abandoned Site Program; Article 7 - Compensation and;
Article 9 (Draft) - The long anticipated Private Site Manager Program
(REA II) (Note: The Cal EPA's office of Environmental Health Hazard
Assessment is proposing their own regulation and registration process
for the REA II program).
Should
CAL EPA and the Governor's office adopt this approach, the DTSC's
Legislative Unit believes that Environmental Remediation Activities
in the State of California will be as close as possible to business
as usual. From an industry standpoint, the real effect of the Sunsetting
of State Superfund will be the impacts on future remediation of
aboveground activities and shallow soil. These sites typically would
be assigned to DTSC’s Superfund Group, but will now be regulated
either by DTSC under Chapter 6.5 of the H&S Code or under the direction
of the RWQCB.
As
this is an ongoing issue, and its true resolution has not yet been
determined by the agencies, we will keep you updated on the developments.
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