In 2021, Gov. Gavin Newsom (D) signed SB 158 into law, seeking to improve oversight of DTSC through the creation of the Board of Environmental Safety. While SB 158 grants broad oversight to the board over DTSC’s activities, including permitting, site mitigation, and enforcement, the details regarding the board’s oversight functions will be laid out in future rulemaking.
Significant for the regulated community, the board will be responsible for hearing and deciding appeals of DTSC permitting decisions—presumably replacing the internal DTSC administrative appeals office currently charged with deciding permitting appeals.
Whether this change will be an improvement is yet to be seen, but given the slow processing and lack of transparency in DTSC’s current processes, most DTSC stakeholders remain optimistic that the board appeal process will be an enhancement to the resolution of DTSC permitting appeals.
Why Is the Board Needed?
As criticism of DTSC has continued to build, both from the regulated community and other stakeholders, the need to revamp oversight of DTSC led to multiyear legislative efforts, culminating in the passage of SB 158.
Those legislative processes identified numerous DTSC shortcomings, most notably lack of efficiency, effectiveness, transparency, and accountability in some of DTSC’s core oversight functions—including permitting and enforcement. As these issues have continued to trouble DTSC, the legislature created the board to enhance oversight of DTSC and address these critical shortcomings in DTSC’s oversight of hazardous waste facilities in California.
What Role Will the Board Have?
The board is tasked with a lofty list of duties, including establishing hazardous waste fees, reviewing and approving the DTSC director’s priorities (including the setting of performance metrics), analyzing DTSC’s use of funding and developing long-term goals in coordination with agency staff. The board is also authorized to adopt, amend or appeal regulations via the Administrative Procedure Act, including through the emergency regulation process.
One significant role the board will have is to hear and decide appeals of DTSC’s hazardous waste facility permit decisions. This responsibility will presumably include hearing a gamut of appeals, from new permit issuances and permit renewals to permit modifications.
In the past, a DTSC-appointed appeals officer largely relied on legal briefing to decide administrative permit appeals. While the board is still in its nascent stage and will need to develop regulations on the subject, the board’s public appeal processes will presumably replace the existing internal office currently charged with deciding permit appeals.
SB 158 mandates that board members operate pursuant to “principles of fundamental fairness and due process of law” and “conduct their affairs in an open, objective, and impartial manner, free of undue influence and the abuse of power and authority.” Consistent with the goal of creating a more responsive and transparent DTSC, the board will rely on an ombudsperson to serve as an impartial resource to the public (including fielding public complaints).
Who Will Sit on the Board?
SB 158 mandates that the board feature five full-time members (three appointees from the governor and one each from the Senate Committee on Rules and the speaker of the Assembly). On March 3, the speaker of the Assembly announced the fifth and final member of the board (confirmation is pending).
The five members were nominated on the basis of their demonstrated interest in broad issues such as hazardous waste management, site remediation, and pollution prevention and reduction. Members are required to “possess understanding of the needs of the general public in connection with the risks posed by hazardous materials and the management of hazardous waste, and shall possess experience in at least one of the following: (1) environmental law; (2) environmental science, including toxicology, chemistry, geology, industrial hygiene, or engineering; (3) public health; (4) cumulative impact assessment and management; (5) regulatory permitting.”
What Is the Current Status of the Board?
SB 158 began transferring oversight authority to the board beginning on Jan. 1. Now that all five members of the board have been appointed, the key foundational work to guide the board’s future activities must commence. For example, board staff will need to be hired, and then rules and regulations governing the board’s oversight functions will need to be finalized.
And while the board still appears to be months away from fully operating, the board has scheduled its first public (remote-only) meeting for March 30, where it will hear initial reports from DTSC leadership, address the board’s governance structure, and discuss its statutory responsibilities and preliminary priorities to begin meaningfully operating.
Given the significant unknowns regarding how the board will function, it remains to be seen whether SB 158 and the board will be the answer to historical criticisms of DTSC. However, we are optimistic that the board will lead to DTSC conducting its critical oversight functions more efficiently and effectively—change that stakeholders have been seeking for years.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Matthew Williamson is a litigation partner in Manatt, Phelps & Phillips LLP’s Orange County office whose practice focuses on environmental matters and white collar criminal defense.
David McGrath is an associate in Manatt, Phelps & Phillips LLP’s Orange County office and a member of the firm’s environment practice.