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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