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Item 11.1 - Status Report on Pending Legislation A~GENDA REPORT SU1V[MARy. TO: Honorable Mayor and Members of the City Council FROM: James L. Bowersox, City Mana INI~TED BY: John D..Fitch, Assistant City Managert~._~% Penny R~ley, Senior Management Analys~ DATE: May 9, 1995 SUBJECT: Status Report on Pending Legislation ABSTRACT The League of California Cities has informed the City of the following measures which are pending in the State Legislature: AB 1436 {Burton) First Responder Reimbursement; ACA 13 (Johnson) Taxes, Assessments and Fees; SB 1X (O'Connell) Disaster Assistance; SB 149 {Johannessen} Vehicle License Fees; SB 1225 (Johannessen) Privatization of Public Works Projects; SB 238 (Haynes) Deferred Compensation Plans; SB 1167 (Craven) Property Tax Growth; AB 915 {Cunneen) Property Tax Exemption; SB 610 (Leonard) Cable Television; SB 936 (Campbell) Housing Element; AB 771 (Aguiar) Subdivisions; SB 657 (Maddy) Property Tax Omnibus Reform Bill; AB 1907 (Sher) Environmental Quality, CEQA; AB 318 {Katz} Water and Power Municipal Utilities; and AB 349 (Escutia) Hazardous Liquid Pipelines. On April 18, 1995, City Council reviewed legislation related to Small Businesses and Environmental Regulations SB 1122 {Mountjoy). Staff recommended that City Council oppose the legislation as it would be overly burdensome for cities. An expanded discussion is included in this report. ENVIRONMENTAL REVIEW Environmental review is not required for this item under CEQA. FISCAL IMPACT There is no fiscal impact associated with this informational report. ADDITIQNAL pLTBLIC NOTIFICATION AND CORRESPONDENCE Assemblyman Jan Goldsmith; Senator David Kelley; Bob Wilson, the City's Lobbyist; and the League of California Cities will be mailed a copy of this staff report. RECOMMENDATION It is recommended that the City Council oppose SB 1122; support AB 1436; oppose ACA 13; support SB 1X: oppose SB 149; support SB 1225l oppose SB 238; support SB 1167; oppose AB 915; oppose SB 610; support SB 936; oppose AB 771; oppose SB 657; support AB 1907; oppose AB 318; and support AB 349. ACTION ] re orts nl c:\ p \p e~.cov 1 of z6 gAY 9 1995 fi'EM CITY OF Pow.AY AGENDA REPORT TO: Honorable Mayor and Member~k~k~e City Council FROM: James L. Bowersox, City Ma~p'~ INITIATED BY: John D. Fitch, Assistant City Manager~ Penny Riley, Senior Management Analysl DATE: May g, 1995 SUBJECT: Status Report on Pending Legislation )ACKGROUND The League of California Cities has informed the City of the following measures which are pending in the State Legislature: AB 1436 (Burton} First Responder Reimbursement; ACA 13 (Johnson) Taxes, Assessments and Fees; SB 1X (O'Connell) Disaster Assistance; SB 149 (Johannessen) Vehicle License Fees; SB 1225 {Johannessen) Privatization of Public Works Projects; SB 238 {Haynes) Deferred Compensation Plans; SB 1167 (Craven) Property Tax Growth; AB 915 (Cunneen) Property Tax Exemption; SB 610 (Leonard} Cable Television; SB 936 (Campbell) Housing Element; AB 771 {Aguiar) Subdivision; SB 657 (Maddy} Property Tax Omnibus Reform Bill; AB 1907 {Sher) Environmental Quality, CEQA; AB 318 (Katz) Water and Power Municipal Utilities; and AB 349 (Escutia) Hazardous Liquid Pipelines. On April 18, 1995, City Council reviewed legislation related to Small Businesses and Environmental Regulations SB 1122 (Mountjoy). Staff recommended that City Council oppose the legislation as it would be overly burdensome for cities. An expanded discussion is included in this report. FINDINGS SB 1122 {Mount.io¥) Small Businesses: Environmental Requlation.. Senator Mountjoy introduced SB 1122 on February 24, 1995, which would require any public entity to comply with a series of requirements in adopting environmental regulations or ordinances (Attachment A). These include making the regulations or ordinances not so burdensome on small business so as not to impede their ability to remain in business, and to take into account current activities by the businesses to reduce adverse environmental impacts. It would limit how and when fines for non-compliance of ordinances are imposed and would not permit the fines to be returned to the regulatory entity that imposed the fines. Finally, SB 1122 would require all public entities to review existing ordinances or regulations imposed by it to determine compliance with the provisions of the bill, and, no 2 of 26 NAY 9 1995 ITEM 11.1 Agenda Report - Pendin. _egislation May g, 1995 Page 2 later than January 1, 1997, to revise or adopt changes to existing requirements to comply with the provisions of SB 1122. After that date, no public entity could enforce any requirement that does not comply with the bill's provisions. While the League is concerned about the impacts of government regulation on the business community, it is believed that the provisions of SB 1122 will increase the regulatory and administrative burdens on local governments and subject them to potential challenges by businesses who wish to claim that the local government, not a recession or a bad business decision, is the cause of its business downturn. Attachment B is a League of California Cities analysis of SB 1122. The primary comments on the legislation relate to the need for clarification of terms and phrases, the effects on regulated industry and regulatory bodies, and public health concerns. Opponents argue that this bill is unnecessary because: 1) existing law already requires regulatory bodies to consider the impact on environmental regulations on small business; 2) environmental regulations can be nullified if their environmental or public health purpose cannot be substantiated with evidence. Opponents, such as the California League of Cities, argue that the bill places a significant regulatory burden on local governments because they would be forced to promulgate separate environmental regulations for all individual small businesses. Opponents argue that the measure would establish a procedure to be followed at the local level which could subject local governments to endless legal challenges by businesses who claim that an ordinance has materially impeded it from remaining in business at its current level of production and employment. Environmental and public health opponents assert that many small businesses severely impact public health. They state that small businesses which would qualify for exemption from state and local regulation under this bill include metal platers, lead-acid battery facilities, furniture manufacturers, auto finishing facilities, dry cleaners, and other businesses emitting toxic air contaminants such as: gylcol ethers, lead, 1,1,1-trichloroethane, toluene, benzene, perchloroethylene, formaldehyde. They state that many of these chemicals are carcinogenic, and that these types of facilities are frequently located within or adjacent to residential communities already heavily impacted by poor air quality. For these reasons, the demands on cities to implement the requirements of SB 1122 will be costly, burdensome and potentially counterproductive. It is recommended that the City Council join the League of California Cities, California Association of Sanitation Agencies, and Sierra Club in opposing SB ]122. AB 1436 (Burton) First Responder Reimbursement Assemblymember Burton introduced AB 1436 on February 24, 1995, which will provide reimbursement for first responder medical treatment. AB 1436 will, for the first time, recognize a previously uncompensated component of health care. The legislation would require all new and amended health insurance plans to cover 3 of 26 MAY 9 1995 ITEM Agenda Report - Pendi)_ Legislation May g, 1995 Page 3 first responder costs under their policies. Ambulance transport is currently covered while city fire department provided medical care at the scene is not. AB 1436 will greatly benefit cities with respect to recouping these uncompensated costs. The City of Poway, as a provider of emergency medical services, bills $161,000 annually for services; approximately 28% of the total is unrecoverable. It is recommended that the City Council support AB 1436. ACA 13 (Johnson) Vote Requirements for Imposinq Taxes. Assessments and Fee~ The California Constitution requires a local agency to impose a special tax with the approval of two-thirds of the voters voting on that tax at an election. A special tax has been defined by the courts to mean a tax "collected and earmarked for a special purpose." Proposition 62, a statutory initiative, provided that a general tax required a majority vote of the voters, but these provisions have been held unconstitutional by the courts and cities can levy general taxes by a vote of the city council. Assemblymember Johnson introduced ACA 13, which requires a majority vote of the people to impose a general tax. In addition, it limits parcel taxes to those specifically authorized by the Legislature. ACA 13 is identical to SCA 13 (Hurtt) and SCA 15 (Haynes). ACA 13 would provide that direct assessments can be levied without a vote but contains majority protest provisions. A direct assessment is defined as an "assessment imposed to finance capital costs or maintenance and operational expenses for sidewalks, streets, sewers, water, or a flood control or drainage system, or an assessment imposed for vector control." Indirect assessments would require a two-thirds vote of the people. Indirect assessments are assessments to finance capital costs or maintenance and operational expenses for public improvements or for property-related services. This constitutional amendment would also require public hearing and notice on imposition or increases in fees. The fees would be subject to majority protest. It is recommended that City Council oppose ACA 13 as an intrusion on the right of local governments' ability to recover costs through levying general taxes or fees. SB 1X (O'Connell) Disaster Assistanc~ Senator O'Connell introduced SB 1X, which would serve as fiscal relief legislation for those areas hard-hit by recent flooding. The League has supported legislation that would continue to recognize the urgent and extraordinary fiscal burdens natural disasters can be to isolated communities. SB 107 and SB 1X are identical bills which would require the state to pick up the local uncovered portion of the cleanup costs of repairing and responding to the recent flood. The Federal Emergency Management Agency (FEMA) regulations require the state and local governments to pay for 25 percent of the costs of a natural disaster. Of this 25 percent, the state is responsible for three-quarters, or 18.75 percent, with the local share being the remaining one-quarter, or 6.25 4 of 26 9 1995 [[EM 11. I Agenda Report - Pending Legislation May 9, 1995 Page 4 percent. SB 107 and SB 1X would relieve the impacted cities from contributing the 6.25 percent of these costs. The state passed similar legislation to relieve the local share for the Northridge and Loma Prieta quakes and the firestorms north and south. Importantly, the measure only applies to locally owned infrastructure such as streets and roads. It is currently estimated that this legislation will save $18.4 million for affected local governments. It is recommended that the City Council support SB 107 and SB 1X. SB 149 (Johannessen) Vehicle License Fees: Newly Incorporated Cities Current law allows cities that incorporated after January 1, 1987, but prior to 1991, to use a calculation of three times the number of registered voters in that city as of the date of incorporation or their regular population for purposes of determining Vehicle License Fee {VLF) allocations for eight years after incorporation. Cities that incorporated after January 1, 1991 can only use the option of three times registered voters for five years after incorporation. SB 149 would allow cities incorporated on or after January 1, 1987 to use the number of registered voters in that city as of the date of incorporation multiplied by a factor of three for purposes of VLF allocations indefinitely. Twenty-seven cities have incorporated since January 1, 1987. To the extent this formula allocates more revenues to these newly incorporated cities, all other cities receive less revenue. It is recommended that the City Council oppose SB 149, as it would serve to further dilute already scarce VLF revenues. SB 1225 (Johannessen) Privatization of Public Works Projects Senator Johannessen introduced SB 1225 on February 24, 1995, which will allow local governments to use and consider private financing and operation of public facilities. Importantly, SB 1225 will not mandate cities to change their current practices. SB 1225 simply allows cities the option of using private financing for public projects where this strategy makes sense. It is recommended that the City Council support SB 1225 as a mechanism to add flexibility to finance necessary public facilities. SB 238 {Haynes) Deferred Compensation Plans This bill requires any public or private employer that offers its employees a deferred compensation plan to provide, prior to an employee's enrollment in the plan, written notice of the reasonably foreseeable financial risks accompanying participation in the plan and historical information as to the performance of the investments or funds available under the plan. The bill also requires the employer, within 30 days after the end of each quarter of the calendar year, to provide to each enrolled employee a written report summarizing the financial performance of the investments or funds available under the plan and describing the actual performance of the employee's funds that are invested in the plan. The bill permits the employer to designate a plan manager for the purpose of meeting these requirements. 5 of 26 MAY 9 1995 ITEM 11 · I Agenda Report - Pendir,. _egislation May 9, 1995 Page 5 The League Employees Relations Committee recommended opposition to this legislation because of the inappropriate obligation that it places on an employer. Most of the deferred compensation plans offered by local government employers have this information provided by the investment advisor or administrator, not the employer. The League is asking that the bill be amended to provide that if this type of information is already provided by the administrator/investment advisor that the employer is not required to provide the information. It is recommended that the City Council oppose SB 238 unless the requested amendment is incorporated into the bill text. SB 1167 ~Craven) Property Tax Revenu~ To implement the 1992-93 and 1993-94 state budget, the state shifted nearly $4 billion in property tax revenues from cities, counties, and special districts. Last year, the City of Poway shifted $384,000 in property tax revenue to ERAF. State statute requires county auditors to put the revenue derived from the property tax shift into an Educational Revenue Augmentation Fund (ERAF) in each county and then allocate the funds to school entities. Growth in the shifted property taxes in future fiscal years is also allocated to ERAF. SB 1167 would allocate the growth in these property taxes back to the local agency that contributed the property tax to ERAF. This would allocate the new property tax due to new construction and change in ownership in the same manner as all property tax was allocated prior to 1992-93. The statewide share of this growth for cities in the first year would be about $20 million. Assuming continued depressed property values, this amount would increase to $40 million in the second year and $60 million in the third year. If property values were to escalate, the bill would bring in considerably more revenue to cities. It is recommended that the City Council support SB ]167. AB 915 (Cunneen) Property Tax Exemption Assemblymember Cunneen introduced AB 915 on February 22, 1995, which would exempt new property constructed, acquired or installed to meet or exceed environmental regulations from the property tax. Environmental regulations include laws, rules or regulations administered by any environmental protection agency of the federal government, the state or a political subdivision of this state for the prevention, monitoring, control or reduction of air, water or land pollution. This bill would apply to all property that would otherwise be taxable for the first time on or after March 1, 1996. The League of California Cities opposes AB 915 as another attempt to raid the cities' property tax revenues. All new projects must comply with the California Environmental Quality Act and would, therefore, be exempt from property taxes. It is recommended that the City Council oppose AB 9]5. SB 610 (Leonard) Cable Television Senator Leonard introduced SB 610 on February 22, ]995, which will preempt local governments' ability to regulate late fees charged by cable companies to customers. SB 6]0 will deem automatically valid any late fee of $5.00 if it meets some very simple criteria. The Federal Communication Commission has 6 of 26 ~AY 9 1995 ITEM 11.1 Agenda Report - Pendin~ .egislation May 9, 1995 Page 6 recently clarified that late fee charges are the purview of local government under local customer service standards. The League of California Cities opposes SB 610 because it will preempt the regulatory ability of local agencies in an area that is clearly related to local customer service standards. It is recommended that the City Council oppose SB 610. SB 936 (Campbell) Housinq Elements SB 936 makes important changes to housing element requirements. First, it allows cities to meet their housing obligations in the most cost-effective manner. SB g36 allows cities to subsidize or rehabilitate housing units to meet their regional needs. Second, the bill creates an independent review of regional needs allocations. Cities would no longer be limited to raising challenges to the very body {the Council of Governments or the Department of Housing} which gave them the disputed numbers to begin with. The League believes that Senator Campbell recognizes the problems with housing element law and the gridlock that this issue has produced. It is recommended that the City Council support SB 936 as a much needed housing reform measure. AB 771 (Aquiar) Subdivisions Assemblymember Aguiar introduced AB 771 on February 22, 1995, which would extend the initial life of a tentative map from two years to five years. The bill also grants extensions of 24 months for a tentative map and 36 months for a final map. AB 771 creates a lO-year commitment, where currently a map approval is limited to 24 months. There are a number of sound policy reasons to maintain the current limitations. Chief among them is the need to retain local land use flexibility. A five or ten year restriction on land use changes constrains cities which need to retain the ability to alter general plan and zoning designations without limitations imposed by an extended map. Additionally, cities also need increased flexibility in funding long-term facilities and services. The League has asked that the bill be amended in two important ways. First, the extension should not apply where the underlying general plan designation or zoning has changed. This would allow cities to respond to changing community circumstances and prevent a speculator from stymieing community change. Second, any lengthening of the tentative map life must allow for adjustment of conditions to reflect changed infrastructure and service circumstances. This would allow cities to fine-tune conditions as infrastructure strategies and plans become more definite. In its current form, AB 771 could result in the loss of substantial infrastructure revenue for cities. It is recommended that the City Council oppose AB 771. 7 of 26 ~AY 9 1995 ITEM 11 · 1 Agenda Report - Pendins Legislation May g, lg95 Page 7 SB 657 (Maddy) Property Tax Omnibus Reform Bill Senator Maddy introduced SB 657 on February 22, 1995, which is a major reform bill that would exempt various properties from the property tax. This bill would apply to all property that would otherwise be taxable for the first time on or after March 1, 1996. The State constitution sets the framework for taxation of property in California and the legislature is not granted any statutory authority to exempt property by statute. This legislation would impact sorely-needed property tax revenues. It is recommended that the City Council oppose SB 657. AB 1907 {Sher) Environmental Quality) Assemblymember Sher introduced AB 1907 on February 24, 1995, which seeks to correct a recent change in the California Environmental Quality Act that enacted a provision hidden among many CEQA amendments. The amendment required cities to contract for CEQA consultants within 45 days from the decision that an Environmental Impact Report is required. This provision has caused consternation among local planning departments because previously contracting for CEQA consultants was left to the discretion of local agencies. The League of California Cities has commended Assemblymember Sher for recognizing that micromanagement of local planning departments by the State legislature is unnecessary. It is recommended that the City Council support AB 1907. AB 318 (Katz) Water and Municipal Utilities Assemblymember Katz introduced AB 318 on February 8, 1995, which would prohibit municipal water and/or power agencies from contributing funds to its municipal general fund. Such agencies would be prohibited from using any funds generated by the imposition of water or power rates for purposes not directly related to the powers and purposes of that agency. Many jurisdictions view revenues from such agencies as payments in lieu of property and franchise taxes, and as offsets for charges for water and electricity used by city departments. The League opposes AB 318 because it is an intrusion into traditional rate setting authority of cities. In addition, loss of the "in lieu" fees transferred to the general fund would have a significant impact on city budgets. At the request of Assemblymember Jan Goldsmith, staff reviewed the assumptions on which AB 318 was founded. At the May 2, 1995 City Council meeting, the City Manager provided an overview of the flawed supporting analysis for AB 318 performed by a senior policy analyst {Attachment C}. The Assembly Local Government Committee held a hearing on AB 318 on May 3, 1995. The measure failed passage but the committee granted a motion for reconsideration. It is recommended that the City Council oppose AB 318. 8 of 26 ~AY 9 1995 ITEM 11.1 Agenda Report - Pendin~ .egislation May 9, 1995 Page 8 AB 349 (Escutia) Hazardous Liouid Pioelines Assemblymember Escutia introduced AB 349 on February 10, ]995, which requires an operator of a pipeline used for the transportation of hazardous liquid substances to conform the pipeline with specified federal regulations adopted pursuant to the federal Hazardous Liquid Pipeline Safety Act. While the City of Poway does not have any hazardous liquid pipeline transmission facilities in our city, many other communities have aging pipelines placed under their streets, homes and public meeting places. The State Fire Marshal's Hazardous Liquid Pipeline Risk Assessment report found that the leading cause of hazardous liquid pipeline leak incidents between January 1981 and December 1990 was external corrosion. The report also found a significant correlation between aging pipelines and the occurrence of external corrosion and leaks. Assembly Bill 349 also requires the State Fire Marshal, in coordination with specified state agencies, to begin assessing the possibility of consolidating pipeline age and location information in a single interactive database. Currently, safety information on regulated pipelines is scattered among hundreds of local agencies and departments. It is recommended that the City Council support AB 349 as a statewide public safety measure. - ENVIRONHENTAL REVIEW Environmental review is not required for this item under California Environmental Quality Act guidelines. FISCAL IHPACT There is no fiscal impact associated with this informational report. ADDITIONAL PUBLIC NOTIFICATION AND CORRESPONDENCE Assemblyman Jan Goldsmith; Senator David Kelley; Bob Wilson, the City's Lobbyist; and the League of California Cities will be mailed a copy of this staff report. RECOHHENDATION It is recommended that the City Council take the following actions: 1. Oppose SB 1122 and direct staff to notify the Senate Committee of Natural Resources of the City's opposition to the measure. 2. Support AB 1436 and direct staff to notify the Assembly Appropriations Committee of the City's support for the measure. 3. Oppose ACA 13 and direct staff to notify the Assembly Committee on Revenue and Taxation of the City's opposition to the measure. 9 of 26 MAY 9 1995 ITEM 1 1.1 Agenda Report - Pendir Legislation May g, 1995 Page g 4. Support SB 1X and direct staff to notify the local Assembly delegation of the City's support for the measure. $. Oppose SB 149 and direct staff to notify the local Senate delegation of the City's opposition to the measure. 6. Support SB 1225 and direct staff to notify the Senate Governmental Organization Committee of the City's support for the measure. 7. Oppose SB 238 and direct staff to notify the Senate Appropriations Committee of the City's opposition to the measure. 8. Support SB 1167 and direct staff to notify the Senate Appropriations Committee of the City's support for the measure. g. Oppose AB 915 and direct staff to notify the Assembly Revenue and Taxation Committee of the City's opposition to the measure. 10. Oppose SB 610 and direct staff to notify the local Senate delegation of the City's opposition to the measure. 11. Support SB 936 and direct staff to notify the Senate Appropriations Committee of the City's support for the measure. 12. Oppose AB 771 and direct staff to notify the Assembly Appropriations Committee of the City's opposition to the measure. 13. Oppose SB 657 and direct staff to notify the Senate Revenue and Taxation Committee of the City's opposition to the measure. 14. Support AB 1907 and direct staff to notify the Assembly Natural Resource Committee of the City's support for the measure. 15. Oppose AB 318 and direct staff to notify the Assembly Local Government Committee of the City's opposition to the measure. 16. Support AB 349 and direct staff to notify the Assembly Revenue and Taxation Committee of the City's support for the measure. Attachments: A - Text of SB 1122 (Mountjoy) B - Senate Natural Resources and Wildlife Committee Analysis of SB 1122 C - Letter from J. L. Bowersox regarding AB 318 eb: \rpts\pnLeg. 509 10 of 26 ) IAY 9 1995 ITEM 1 1.1 - California 1995-96 Regular Session 1995 CA SB 1122 Amended AMENDED IN SENATE MARCH 30, 1995 SENATE BILL No. 1122 INTRODUCED BY ID> Senators Mountjoy, Haynes and Hurtt <DJ IA> Senator Mountjoy <Al IA> (Coauthors: Senators Haynes, Hurtt, Johannessen, and Monteith) <Al (Coauthors: Assembly Members Alby, Baldwin, Boland, Bordonaro, Bowler, Conroy, and Harvey} FEBRUARY 24, 1995 An act to add Division 35 (commencing with Section 72000) to the Public Resources Code, relating to business regulation. LEGISLATIVE COUNSEL'S DIGEST SB 1122, as amended, Mountjoy. Small businesses: environmental regulations. Existing law imposes various requirements relating to air and water pollution and hazardous waste. Existing law also provides for the creation of a certified unified program to coordinate requirements of state and local law relating to these subjects. Existing law also provides for the designation of a consolidated permit agency where more than one state or local agency requires a permit to engage in an activity. Existing law requires state agencies, in adopting regulations, to assess impact on businesses, and makes regulations adopted after January 1, 1993, that require a report inapplicable to small businesses unless the agency finds the regulation necessary for the health, safety, or welfare of the people of the state. This bill would provide that no requirement may be adopted by any public entity unless it complies with specified requirements. The bill - would apply to regulations, ordinances, and rules adopted or enforced by a public entity for the purpose of alleviating, mitigating, limiting, or eliminating any environmental or hazardous substance impact of a small Attachment A ~AY 9 1995 IT~ 11 · 1 11 of 26 business. The bill would require that the application of the requirement to any small business shall not be so burdensome as to materially impede the small business from remaining tn business at its current level of production and employment. It would require flexible application to individual small businesses and the development of an economically feasible compliance plan, as specified. The bill would provide that requirements shall take into account current efforts by businesses to reduce adverse environmental impacts. It would provide that requirements must be coordinated with other requirements of the same public entity, and with those of other public entities. The bill would prohibit requirements that require the use of technology that has not been proven to work in a setting other than in a laboratory setting. It would provide that all fines for noncompliance with a requirement shall be in a reasonable amount. A fine may be imposed only in the event of significant noncompliance with a requirement, and then only if the business has received a warning and an offer of assistance with compliance with a requirement. It would provide that no fine shall be used to finance the regulatory program of the public entity that imposes the fine. The bill would require each public entity to review any existing requirements imposed by it to determine compliance with these provisions, and, no later than January 1, 1997, to revise or adopt changes to existing requirements so as to comply with these provisions. It would provide that, on and after January 1, 1997, no public entity may enforce any requirement imposed by it that does not comply with these provisions, as specified. The bill would impose a state-mandated local program by imposing new requirements on local agencies. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement, including the creation of a State Mandates Claims Fund to pay the costs of mandates that do not exceed $1,000,000 statewide and other procedures for claims whose statewide costs exceed $1,000,000. This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions. Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Division 35 {commencing with Section 72000} is added to the Public Resources Code, to read: DIVISION 35. BUSINESS REGULATION AY9 1995 ITE. , 11. 1 12 of 26 SENATE NATURAL RESOURCES AND WILDLIFE BILL NO.: SB 1122 Senator Tom Hayden, Chair AUTHOR: MOUNTJOY VERSION: (original) : 2/24/95 (Amended) : 3/30/95 FISCAL: yes URGENCY: no CONSULTANT: Lisa Hoyos HEARING DATE: 4/5/95 SUBJECT: Small business: environmental regulations ISSUE: Should small business be exempt from local and state environmental regulations which materially impede its production or employment? Should environmental requirements be individually tailored and flexibly applied to the needs of each small business? SUMMARY Provides that state or local environmental regulations may not be applied to - small business if they materially impede the businesses, current level of production or employment. Stipulates that regulations applied to small business must tailor to the individual needs of each small business. States that fines for pollution violations be applied only in the event of "significant noncompliance" and only if the non- complying business has received both a prior warning and an offer of assistance with compliance from a regulatory agency. BACKGROUND AND EXISTING LAW: Existing law requires sources of air pollution, water pollution and hazardous waste to adhere to environmental regulations. Existing law also provides for the creation of a certified unified program to coordinate requirements of state and local law relating to these subjects. In 1991 AB 2061 was enacted. This law requires state agencies proposing to adopt or amend any regulation which would affect small business to conduct an assessment of adverse economic impact that could result from the compliance, record keeping or reporting requirements of the regulation. If the agency assesses that there is no adverse impact, it is required to make a declaration to that effect, and support it with evidentiary findings. Existing law states that environmental regulations on small business can be declared invalid if the agency determines that the regulation's necessity is not supported by substantial evidence. Regulations can also be deemed invalid if the agency declares it is necessary but cannot support its declaration with substantial evidence. 16 of 26 Attachment B ~AY 9 1995 ITEM 11. Currently, air districts with over 500,000 people are required to perform a socioeconomic impact assessment before adopting, amending, or repealing any air quality regulation. In air districts with under 500,000 people, the districts were required by June 1, 1992 to contract with independent firms which would analyze districts methodology for assessing socioeconomic impact of regulations. These analyses were due to the legislature in October of 1992. For the purpose of this bill, small business is defined as any corporation, limited liability company, partnership, or person engaged in business in California that does not have securities listed or approved for listing on a national securities exchange, and that has a net worth of less than five million dollars. The five million dollar figure shall be adjusted on January 1, 1997, and annually thereafter, by the percentage in the All Commodities Producers Price Index of the Bureau of Labor Standards. PROPOSED LAW: Prohibits public entities from applying to small businesses any requirements (ordinances, regulations, or rules) which have the purpose of limiting or eliminating any environmental or hazardous substance impact unless the requirements meet all of the following criteria: a) May not materially impede the small business from remaining in business at its current level of production and employment. b) Requirements or regulations must be tailored to the individual needs of each small business, and be flexible in their application. Shall provide for the development of an economically feasible compliance plan. c) Fines may only be applied if the business fails to comply with its individually tailored, flexible compliance plan, as outlined in subdivision (b) . Furthermore, fines can only be applied only in the event of "significant noncompliance" with a requirement, and only if the business has received a prior warning and an offer of assistance. d) Requirements must not be implemented in a manner which requires all businesses to reduce their environmental impact by a percentage amount of their current impact. e) Requirements must be coordinated such that a regulated business has to deal with only one public entity in coordinating reporting and permit authorization requirements. If no single public entity can be determined under statutory provisions, the small business may choose the lead agency it wants to deal with. f) Regulations can require only the use of technology which has been proven to work in a setting other than a laboratory setting. g) All fees applied in connection with a regulation shall be reasonable, and not exceed the amount necessary to administer the requirement. 17 of 26 9 1995 ITEM This bill does not apply to regulations or requirements necessary to prevent immediate danger to human life which might result from a hazardous emission of a specific business. Nor does it apply to regulations or requirements necessary to prevent immediate danger to animal life, or a significant biological ecosystem which might result from a hazardous emission of a specific business. lhis bill requires all public entities to review and modify all existing environmental regulations on small business in order to comply with this division no later than January 1, lg97. If the regulations are required by statute, public entities must report all statutory changes necessary to comply with this division. On or after January 1, 1997, no public entity may enforce any existing environmental regulation that does not comply with the provisions of this bill. COMMENTS: 1) Need for clarification of terms and phrases. This bill allows only for environmental regulations which do not "materially impede the small business from remaining in business at its current level of production and employment." Who defines what constitutes a material impediment to production and/or employment? Who determines what is a reasonable' fee? What constitutes s~gn~ficant noncompliance,? What would be classified an economically feasible compliance plan" and who defines "economically feasible'? Does "technology to reduce adverse impacts" refer to a specific category of technology, such as "best available control technology" or 'best available retrofit control technology"? What is considered and who determines what constitutes "immediate danger to human life, animal life, or a significant biological ecosystem"? Is it the intention of the author to solely exclude from the division "requirements necessary to prevent immediate ~anger to.human ~!f? .~- which-might result from a hazardous air emss~on'? Woulo ~mmeo~a[e oangers posed,by contaminated water or hazardous waste be considered? Accordingly, does the exclusion apply only if the immediate danger is caused by a "specific business'? Should immediate dangers to human, animal, and ecosystem health caused by the combined impact of several businesses be considered? 2) Effects on regulated industry and regulatory bodies Supporters argue that SB 1122 is an important step in assisting small businesses to comply with regulations. The California Chamber of Commerce especially supports the provisions which allow for flexible compliance and the development of an economically feasible compliance plan, and the coordination of reporting and compliance requirements. Supporters say that, while environmental regulations are necessary, they should not be implemented at the expense of small business, which they state is the core and backbone of the economy. ~Y 9 1995 ITEM 11. 1 18 of 26 Opponents argue that this bill is unnecessary because: 1) existing law already requires regulatory bodies to consider the impact on environmental regulations on small business, 2) environmental regulations can be nullified if their environmental or public health purpose cannot be substantiated with evidence. Opponents, such as the California League of Cities, argue that the bill places a significant regulatory burden on local governments because they would be forced to promulgate separate environmental regulations for all individual small businesses. Opponents argue that the measure would establish a procedure to be followed at the local level which could subject local governments to endless legal challenges by businesses who claim that an ordinance has materially impeded it from remaining in business at its current level of production and employment. Public health concerns Environmental and public health opponents assert that many small businesses severely impact public health. They state that small businesses which would qualify for exemption from state and local regulation under this bill include metal platers, lead-acid battery facilities, furniture manufacturers auto finishing facilities, dry cleaners and other businesses emitting toxic air contaminants such as: glycol ethers, lead, 1,1,1-trichloroethane, toluene, benzene, perchloroethylene, formaldehyde. They state that many of these chemicals are carcinogenic, and that these types of facilities are frequently located within or adjacent to residential communities already heavily impacted by poor air quality. SUPPORT: La Mesa Chamber of Commerce California Chamber of Commerce Workman Enterprises, Inc. OPPOSITION: California League of Cities California Association of Sanitation Agencies City of Norco Citizens for a Better Environment Sierra Club 19 of 26 gAY 9 1995 ITEM 11.1 May 2, 1995 Jan Goldsmith, Assemblyman 75th District 2002 Capitol Building Sacramento, CA 95814 Dear Jan: Thank you for your call regarding AB 318 (Katz). I have analyzed the findings in the letter dated May 1, 1995 from Dennis O'Connor, Senior Policy Analyst, California Research Bureau of the California State Library. My analysis included a review of the Financial Transactions Concernino Cities for 1992-93 and a telephone conversation with Mr. O'Connor. The following is a summaw of my analysis regarding Mr. O'Connor's letter and suggestions for amendments if AB 318 is going to pass committee. 1. Mr. O'Connor used a five-year average (FY 88/89 to 92/93) of the net expenditure for water public utilities as shown in the [=inancial Transactions ~_C~. For reference purposes, I have circled the 92/93 numbers (total expenditures, functional revenues, end net expenditure) for Poway on the enclosed pages 308 and 309. For FY 92/93, our 'net expenditure" was -$2,192,181, which was considered a "profit" by Mr. O'Connor. In reality, this "profit" was not a profit at all. $1.1 million was expended for debt service on General Obligation Bonds and Assessment District 79-1. The remaining funds, $1.1 million, went into reserve funds for operations and replacement of capital improvements. As you may recall, the Poway Municipal Water District did not set aside any funds for system replacement. At this time, we are setting aside about $400,000 per year towards major capital replacement. In 1994/95, we are using over $3.0 million in capital replacement funds to upgrade the water treatment plant to meet mandated Clean Water Act standards. The balance of the $9.0 million project is being funded by the Redevelopment Agency and proceeds of a revenue bond to be issued this summer. 9 1 95 ITF..M 20 of 26 City Hall Lo Ai~TAC~i~liNT C Jic Center Drive ........ o ...... ss: P.O. Box 789, Po~ 74-0789 · (619) 748-6600, 695'1400 72000. As used in this division: (a) "Public entity" has the meaning set forth in Section 811.2 of the Government Code. (b) "Requirement" means any ordinance, regulation, or rule adopted by a public entity for the purpose of alleviating, mitigating, limiting, or eliminating any environmental or hazardous substance impact of a small business. {c) "Environmental or hazardous substance impact" means the impact of a small business caused by using, storing, generating, emitting, disposing of, or releasing any substance that may cause harm to the environment or to persons coming in contact with the substance. It includes impact caused by air pollution, water pollution, groundwater contamination, waste disposal, and toxic and hazardous material handling. (d) "Small business" means any person, partnership, limited liability company, or corporation engaged in business in California that does not have securities listed or approved for listing on a national securities exchange or designated or approved for designation as a national market system security on an interdealer quotation system by the National Association of Securities Dealers, if the exchange or system has been approved by the Commissioner of Corporations under Section 25100 of the Corporations Code IA> that has a net worth of less than five million dollars ($5,000,000). However, the five million dollar figure shall be adjusted on January 1, 1997, and annually on January 1, thereafter, by the percentage change in the All Commodities Producers Price Index of the Bureau of Labor Standards <A] 72001. No requirement may be adopted by any public entity unless it complies with all of the following requirements: (a) The application of the requirement to any small business shall not be so burdensome as to materially impede the small business from remaining in business at its current level of production and employment. (b} The requirement shall provide for flexible application to individual small businesses tailored to the needs of each small business. The requirement shall provide for the development of an economically feasible compliance plan with the assistance of the public entity. (c) Requirements shall take into account current efforts by businesses to reduce adverse environmental impacts and shall not penalize those businesses that currently use technology to reduce adverse impacts. Accordingly, requirements shall not be implemented in a manner to require all businesses to reduce environmental impacts by a percentage amount of their current impact, but shall take into account, and give credit for, current efforts of the business to use manufacturing and other methods to eliminate impacts on the environment. (d} Requirements shall be coordinated with other requirements of the 13 of 26 I~AY 9 1995 ITE J 11. 1 - same public entity, and with those of other public entities. Where multiple requirements are interrelated, so that reporting and compliance requirements could be coordinated by a single public entity, coordination shall be provided through a certified uniform program agency designated pursuant to Chapter 6.11 (commencing with Section 25404) of Division 20 of the Health and Safety Code, or a consolidated permit agency designated pursuant to Division 34 (commencing with Section 71000). If no single public entity may be designated under those or other statutory provisions, the small business may designate a single public entity as the lead agency to coordinate any reporting and permit authorization requirements. {e) No requirements shall require the use of technology unless that technology has been proven to work in a setting other than a laboratory setting. (f) All fines for noncompliance with a requirement shall be in a reasonable amount and may be imposed only if the business fails to comply with the plan approved under subdivision (b). A fine may be imposed only in the event of significant noncompliance with a requirement, and then only if the business has received a warning and an offer of assistance with compliance with a requirement. No fine shall be used to finance the regulatory program of the public entity that imposes the fine. (g) All fees imposed in connection with a requirement shall be reasonable and shall not exceed the amount necessary to administer the requirement. 72002. Every public entity shall review any existing requirements adopted by it to determine compliance with this division. No later than January 1, 1997, the public entity shall revise or adopt changes to existing requirements adopted by it so as to comply with this division, and, in the case of requirements imposed by statute, the public entity shall report to the Legislature as to statutory changes necessary to comply with this division. On and after January 1, 1997, no public entity may enforce any requirement adopted by it that does not comply with this division. 72003. This division does not apply to any of the following: (a) Any requirement necessary to prevent immediate danger to human life, animal life, or a significant biological ecosystem than might result from a hazardous emission of a specific business. (b) Any requirement that is mandated by federal law, provided, however, that in any case where a federally mandated requirement would be in violation of this division, the public entity shall take all feasible steps to permit the small business to comply with the federal mandate without unnecessary adverse impact on the business's economic viability. SEC. 2. Notwithstanding Section 17610 of the Government Code, if the Commission on State Mandates determines that this act contains costs MAY 9 1995 ITEM 11.1 14 of 26 mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 {commencing with Section 17500) of Division 4 of Title 2 of the Government Code. the statewide cost of the claim for reimbursement does not exceed one million dollars ($1,000,000), reimbursement shall be made from the State Mandates Claims Fund. Notwithstanding Section 17580 of the Government Code, unless otherwise specified, the provisions of this act shall become operative on the same date that the act takes effect pursuant to the California Constitution. END OF REPORT 15 of 26 MAY 9 1995 Assemblyman Jan Goldsmith May 2, 1995 Page 2 As you can see from the above, Poway is not making a profit. I believe that if the other 169 cities reviewed this report, most would come to the same conclusion. I am quite concerned that those who receive Mr. O'Connor's report will not read his disclaimer on Page 2 of his letter. To use this report as evidence for enactment of legislation would be · travesty. 2. If this legislation is moving forward, these are my suggested amendments: a. I would suggest that proposed Water Code Section 114(b)(1) be amended to add "repayment of debt, and operating reserves" following the ..."costs of administration" provision. This would clearly address the circumstance of a $1.1 million expenditure for debt service being included as a profit for Poway es well as having operating reserve funds available to meet unforeseen needs. b. Proposed Water Code Section 114 (b)(2) be amended by inserting "multi-year" in front of "capital outlay programs." This would address - our circumstance with respect to setting aside funds each year towards replacement of part of the system. If I can provide additional information or clarification, please let me know. Sincerely, \ ~Jar~es L. Bowersox City~ Manager Attachments 21 of 26 9 1995 I'I'EE 11. 1 California Research Bureau P.O. Box 942837 Sacramento, California 94237-0001 (916) 653-78~.3 FAX (916) 65~-6353 May 1, 1995 The Honorable Rich&rd Kat. z California State Capita, Room 3146 Sacramento, CA 95814 De.-u Assembly Member Katz: You have introduced A~sembly Bill 318. This bill, among other things, adds Section 113 to the Wa,er Code. In your bill, as amended April 26, 1995, $~tion 113 paragraph (d) reads: (d) Municipal ~atcr and pOwer agencies .~toultl not terve as ~urrogt:te t~ collectors Y~r exampi¢, the £o.~ Angeles Department of Water and power tron~rert an re.rage qf oac 6undred million dollars (~JO0. O00. O00) ~nnually to the CiO~ off.,os Angeles for nou~,h 'it~ related services undertaken by that a~ty. ~'hese tran~rers are not t~rot~er and constitute a hidden t~x an the rotepay'er$ oft:ny rtrunicipal water a~dpower agency You asked u~ if there was any ex6dence that other municipal water and power agencies are being opermed "a~ a profit". I'he short answer is: Yes. There i~ strong evidence that as ma.%, ~ s 170 cities, consistently operate their water or power u-ill,ties ax a significant profit. These dina ~e sho'~m in the attached table. Our initial review raises a number of questions. For ~xampl¢, Proposition 13 draws a distiactit, n between fees and special taxes. Fees mu~t reasonably reflect the cost of providing a service, ffthc charge exceeds the reasonable co~, th~n the charge is a special tax At firs~ glance, many of these municipal water and power agencic~ ~eem to be chazgLn,~; more than the reasonable co~t of providing utility .~ervices. If so, are the charges in violation oYProposition 139 A rela~ed set of questions regards the appropriation~ (Germ) lLmJt. 'l'he appropr/ations limit restricts cities' ability to spend the proceeds of taxes. Fees are not the proceeds of :~-xes. --nd therefore are not subject to limitation. If the utility charg~ are ind~,x:l special taxe~, how were they treated when these citi,s established their initial appropriations limit, and how does this affe~ these cities' current appropriations limit? Z4 of ~6 ,.~I9~6 01 HIIWSCI~OO N~£ N~A~SWBSS~ WO~t~ ~S:~0 S66I-z_¢-~tk ......... 9 19S5 ITEM 11.1 - The Honorable Richard Katz I~4~_~ l, 1995 PaBe 2 Another issue that arose dealt with the distinction between chan~ and seneral law General law cities derive their powers from acts of the Legislature. Accordingly, the LegisI~ure can ch~n§e the powers that general law citie~ can ~ercise. Charter cities de,bye their powers .from their adopted chartar. The Constitution of the State of California ~u~antees to these cities a large measure of"home rule". This means charter cities can operate larf, eiy independent of acts o£ the LeBislature. However, charter cities mu~ still comply witl' the State Constitution. The charters for some citi~ might contain provisions that mJlo~v their utLlities to run a surplus. We cannot say, at this time, exactly which charter cities do or do not have such provision-, in thei~ che.n~rs. Nor cmn we say precisely how the existence of such provisions would affect the LeBidature's ability to restrict th,at city £orm operttkng its utilities for a These findings presented in the attached tab)e should be considered prelimina, ry, Our ~n~lysis draws primarily on our review of the California State Controller's annual ~ _]'raa_sa__~ion~s ~. The Controller's data, though f~irly detailed, ere still a~rcgated Consequently, we cannot state with complete certainty that our analy.~is included orJy rclcvanI data) We hope }'au find this information useful. Our initial analyds reveeled a number of potentially interesting issues We would bc happy to pursue this issue with you furt.hcr. Sincerely, Denms O' Con.nor Senior Policy A-n~tyst ,Attachment 1 ~or example, the Con~oller's published da~a do not ~Uow us _ fl~ci~ ~ent~. such ~ ~nd ~eSm ~C Controller'S ~-publiih~ ~. how~I. ~ch d~ls. ~AY 9 1995 ITEM 11. i Cities ~;hose Utility Revenues Exceed Expenditures (Continued) Ci,- Counv,.' Class Servl,'," Profit Percent Los Bane. Mcrced C, en~-a] Law Water $'/0.131 7% Marlex a Madera General Law Water S200.225 16% Manleea San Je. aquin Cn:ncral l_nw Water S213.617 11% Menlo Park San Mat*o C~neral Law Water $910,567 $0% Memed Merced Char~rM Wattn' $651,682 16% M/llbrae San Marco C,¢neral Law Water $299,0~9 20% Mode~o Stanislaus Chartere. tl Water S6,026,452 100% Moru't~-.'~a Los Angeles G-~neral Laxn. Water S739.126 29% Montebdlo los Angeles C~ncra! Law Water $315,64.6 Monterey- Pa, k Lo, Ang-les C-~neml Law Water $358,773 10g; Morgan 1til1 Sax, ta Claxa General La,.,. Water $742.449 19% Mm.mt.m~ \5~, Sane Clara Chartered Water $1.746.396 25% Mt Shast i Siskiyou C.~neral Lay,' Water S102.575 Nape Nape Chartered Water S868~554 9% Needles San Bemaxdino G-~neral Law El~:tric $278.411 Newrt~.n Stamslau., General Law Wat*r $112.133 27% Ney, pea Brach Orange CMrtarcd Water $1.286.$84 O~kd.!lc Srardsla~ General 1~,.. Wa~r S$0.632 13°,/o Ck:can~idc San Diego General La~ W'a~r Sl.783.407 Ontario San Bra-aardine General Law Water $1.921.290 15% Oxnard Venture General La~, Wa~r $688.921 6% ?ale .~ho Santa Clara Cha.ner~l El~tri¢ S 18,909.76-/ 39% Pale .-Mto Santa Clara Chartered Cms $2.859.670 19% Pale A]w . 'c,~m:~ Clara Chattered Water $3,580.597 51% Patlier Yresno C,~neral Law Water $21.117 Pcm,~ l~vcr.~idc Ocacti ~r Water S84.788 '7% Pice l~ve. ra Los 3mgeles O~neral Law Wa~r $512,194 Yq)'mou~ A.mador General Law Water $20,$09 10% Yo~.x San Diego General Law Water S2.065,304 29% Re~ ~i,;ff Tel;ama General Law Water $68.819 Reddin{, SMgta General Law Water $563.513 11% Keadle>. Fresno General Law Water $158,209 26% l~a!tc San Bema.rdino General Law Water Sl,976.357 53",/0 Kio Dell Humboldt General Law Water $28.004 11% ]~.io Vi~a Sola,no General Law Water $189,705 80% ~6 of Z6 ,6~9~C, Ol HilWSO]09 N~£ N~WAqSWBSS~ WO~ gAY ITEh 11.1