Governor. Gavin Newsom (D), signed SB 158 into law to improve oversight of DTSCs through the creation of a Board of Environmental Safety. While SB 158 grants broad oversight of DTSCs activities including enforcement and permitting, the Board of Environmental Safety will provide details about the oversight functions.
This is significant for the regulated communities as the board will hear and decide appeals of DTSC permits decisions. It will likely replace the internal DTSC administrativeAppeals office currently responsible for deciding permitting appeals.
While it is unclear if this change will result in an improvement, given the slow process and lack of transparency in DTSCs current processes most DTSC stakeholders remain optimistic about the board appeal process being an enhancement to the resolution DTSC permitting appeals.
Why is the Board necessary?
As criticism of DTSC continues to mount, both from the regulated community as well as other stakeholders, the need for a revamp in oversight of DTSC led multiple year-long legislative efforts that culminated in the passage SB 158.
Among the DTSC’s weaknesses were identified by these legislative processes, including a lack of efficiency, effectiveness and transparency in some of DTSCs core oversight functions, including permitting and enforcement. These issues have been a problem for DTSC. The legislature created the board to increase oversight of DTSC. It also addressed the critical weaknesses in DTSCs oversight in California of hazardous waste facilities.
What role will the Board have?
The board has a wide range of duties. These include reviewing and approving the priorities for DTSC directors (including setting performance metrics), analyzing DTSCs usage of funding, and developing long-term objectives in coordination with agency staff. The Administrative Procedure Act grants the board the power to amend, repeal, or appeal regulations. This includes emergency regulations.
One important role of the board is to hear appeals against DTSCs hazardous material facility permit decisions. This will likely include hearing appeals from permit renewals, new permit issuances, and permit modifications.
In the past, a DTSC-appointed appels officer relied heavily upon legal briefing in order to decide administrative permit appeals. Although the board is still in its infancy and will need to create regulations on the subject matter, the boards public appeal process will presumably replace existing internal offices that are responsible for deciding permit appels.
SB 158 directs board members to operate in accordance with principles of fundamental fairness as well as due process of the law. They must also conduct their affairs in an open, objective and impartial manner, without undue influence and without any abuse of power or authority. In keeping with the goal to create a more responsive and transparent DTSC board, an ombudsperson will be used to provide impartial resources to the public (including handling public complaints).
Who will Sit on the Board of Directors?
SB 158 stipulates that the board should have five full-time directors (three appointees by the governor, one each from Senate Committee on Rules and speaker of the Assembly). The speaker of the Assembly announced on March 3 the fifth and last member of the board. Confirmation is pending.
The five members were chosen based on their demonstrated interest in broad topics such as site remediation, hazardous waste management, and pollution prevention and/or reduction. Members must have an understanding of the public’s concerns regarding hazardous materials and hazardous waste management. They also need to have experience in at least one: (1) environmental law; (2) environmental science including toxicology, geology, industrial hygiene or engineering; (3) public safety; (4) cumulative effect assessment and management; and (5) regulatory permitting.
What is the Current Status of The Board?
SB 158 was the first law to transfer oversight authority to the board. It took effect on January 1. The important foundational work for the boards future activities must now be completed, now that all five members have been appointed. Board staff will first need to be hired. Then rules and regulations governing board oversight functions will have to be finalized.
The board is still months away from being fully operational, but it has scheduled its first public (remote only) meeting for March 30, where it will receive initial reports from DTSC leadership and address the boards governance structure. It will also discuss its statutory responsibilities as well as preliminary priorities to get started meaningfully operating.
It is still unclear how the board will function. This will make it difficult to answer historical criticisms of DTSC. We believe that the board will make it easier for DTSC to carry out its critical oversight functions and provide the change that stakeholders have been looking for for years.
This column does not necessarily reflect The Bureau of National Affairs, Inc.’s opinion.
Information for Authors
Matthew WilliamsonManatt Phelps & Phillips LLP’s Orange County office has a litigation partner. His practice focuses on environmental issues and white collar criminal defense.
David McGrathAssociate in Manatt Phelps & Phillips LLP’s Orange County office. Also a member of the firm’s environment practice.
