California's Site Mitigation Update

Pacific Studies Center ( )
Wed, 15 Oct 1997 10:26:18 -0700 (PDT)

From: Lenny Siegel <>


California has two hazardous waste cleanup laws: the Porter-Cologne act,
which is enforced by the state and regional water boards, and Chapter
6.8 of the Health and Safety Code, otherwise known as the Site
Mitigation Program. The latter is scheduled to sunset on July 1, 1998,
so earlier this year the Department of Toxic Substances Control (DTSC),
a branch of Cal-EPA, convened the Site Mitigation Update (SMU) advisory
group to consider revisions to the law.

The advisory group contained representatives from industry, local
government, environmental groups, federal agencies, and all kinds of
lawyers. It divided into three subgroups: Process Streamlining, Remedy
Selection and Cleanup Standards (I was on this one), and Brownfields.
The Brownfields group looked primarily at liability and financial
issues, while the Remedy Selection subgroup considered land use issues
related to brownfields cleanup. Process Streamlining included public
participation within its portfolio.

Members of the advisory group met once or twice a month through July.
Though the group did not necessarily seek consensus, each subcommittee
came up with a number of recommendations with broad support. DTSC staff
who worked with each subgroup seemed supportive. On July 15, however,
DTSC issued a memo backing only a small number of the subgroups'
recommendations and ignoring the rest.

At the advisory group's last meeting, several members of the group -
representing a variety of constituencies - indicated their displeasure
with DTSC's unexplained failure to respond to their work. DTSC promised
to come back with a "responsiveness summary," which it released, along
with the subgroup reports, on August 29. (Actually, we didn't receive it
until late September.)

The responses, however, are insultingly unresponsive. Here are two of
the most common DTSC responses:

"While DTSC finds merit with the basic concept within this
recommendation, there needs to be more discussion and thought given to
specific details."

"This recommendation is administratively implementable and does not
require statutory amendment."

Those items - mostly slam-dunk proposals that didn't require the
advisory group's effort - endorsed by DTSC for proposal to the
legislature in its July 15 memo received the friendlier, but equally
brief, "The recommended language was included in the SMU Summary of
Concepts dated July 15, 1997."

Specifically, DTSC ignored (for further thought) all of the Process
Streamlining subgroup's proposals for improved public participation.
With apparent DTSC support, the Remedy Selection subgroup spent a great
deal of time developing a detailed proposal for implementation of "the
Tiered Approach" (see my previous posting), but that too was set aside.

On the positive side, DTSC endorsed the following Brownfields-related
recommendations of the Remedy Selection Subgroup:

"When they are considered or adopted as part of the response action,
institutional controls should be recognized as part of the interim and
final remedies and described in appropriate documents."

"Public notices/meetings [should] explicitly describe any proposed land
use or other types of restrictions."

"DTSC should not approve cleanup levels based upon less [than]
unrestricted land use without enforceable institutional controls that
are binding on future owners and occupants."

DTSC also supported recommendations by the Brownfields subgroup to
protect prospective purchasers from certain third party lawsuits, to
provide liability relief to residential property owners and assocations,
and to expand the state's Voluntary Cleanup Program to cover petroleum
sites (other than leaking underground fuel tanks).

Most of these are small steps in the right direction, but DTSC seems to
have muffed an opportunity to update California's cleanup program with
broad support.


Lenny Siegel Director, SFSU CAREER/PRO (and Pacific Studies Center) c/o PSC, 222B View St., Mountain View, CA 94041 Voice: 650/961-8918 or 650/969-1545Fax: 650/968-1126

Effective August 2, 1997, "415" area code numbers for the area south of San Francisco, including Mountain View, have changed to "650." However,"415" may be used until February 1, 1998.