The California Coastal Act of 1976 requires a land use plan of a proposed local coastal program to be submitted to the California Coastal Commission for certification. The act authorizes the commission to suggest modifications, which, if adopted and transmitted to the commission by the local government, shall cause the land use plan to be deemed certified upon confirmation of the executive director of the commission. The act requires a local government to submit to the commission the zoning ordinances, zoning district maps and, where necessary, other implementing actions that are required under the act. The act authorizes the commission to suggest modifications in the rejected zoning ordinances, zoning district maps, or other implementing actions, which, if adopted by the local government and transmitted to the commission, shall be deemed approved upon confirmation by the executive director of the commission.

This bill would authorize local governments to adopt those suggested modifications from the commission through ministerial approval by its planning director or equivalent position. the legislative body of a city or county to delegate to its planning director or equivalent position the authority to adopt nonsubstantive modifications to a land use plan, or a zoning ordinance, zoning district map, or other implementing action, if specified conditions are met. The required conditions would include that the legislative body adopt a policy via ordinance or resolution at a regular public meeting delegating the authority to a public official and that the policy include a definition of the scope of modifications that would qualify as nonsubstantive, as provided.

The California Coastal Act of 1976 requires a land use plan of a proposed local coastal program to be submitted to the California Coastal Commission for certification. The act authorizes the commission to suggest modifications, which, if adopted and transmitted to the commission by the local government, shall cause the land use plan to be deemed certified upon confirmation of the executive director of the commission. The act requires a local government to submit to the commission the zoning ordinances, zoning district maps and, where necessary, other implementing actions that are required under the act. The act authorizes the commission to suggest modifications in the rejected zoning ordinances, zoning district maps, or other implementing actions, which, if adopted by the local government and transmitted to the commission, shall be deemed approved upon confirmation by the executive director of the commission.

This bill would authorize local governments to adopt those suggested modifications from the commission through ministerial approval by its planning director or equivalent position.

Date of Hearing: August 7, 2024

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Buffy Wicks, Chair

SBPCA Bill Id:SB 1234

Author:(Allen) – As Amended Ver:June 10, 2024

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill establishes a new comprehensive regulatory structure within the Department of Toxic Substances Control (DTSC) for metal shredding facilities operating in California.

Specifically, this bill:

1. Defines "metal shredding facility" as the entire site and all contiguous properties of a facility that conducts metal shredding and metal processing operations for end-of-life vehicles, appliances, or other metallic feedstock materials to facilitate sizing, separation, sorting, or removal of recoverable ferrous or nonferrous metals from nonrecyclable materials.
2. Prohibits a metal shredding facility from operating in California unless it has a permit from DTSC and requires existing facilities, no later than 120 days after this bill takes effect, to submit detailed permit application information to DTSC for review and approval, with separate processes for new and existing facilities.
3. Requires DTSC to adopt regulations to implement this bill and specifies numerous safety and operations requirements a metal shredding facility must follow.
4. Authorizes DTSC to collect an annual fee from all metal shredding facilities subject to this bill, with fees deposited into a new special fund to cover the costs of this regulatory program.
5. Authorizes DTSC to suspend operating authority of any metal shredding facility determined to pose an imminent and substantial endangerment to human health or the environment.
6. Repeals existing law dealing with metal shredding facilities, existing law that authorizes DTSC to regulate standards for metal shredding facilities for hazardous waste management activities within DTSC’s jurisdiction, and existing law that deems treated metal shredder waste managed in accordance with those regulations as solid waste, not hazardous waste.
7. Repeals any nonhazardous determination issued by DTSC or its predecessor, the State Department of Health Services, to any metal shredding facility pursuant to Section 66260.200(f) of Title 22 of the California Code of Regulations.
8. Prohibits a local agency, in a land use decision, from deeming a metal shredding facility operating pursuant to this bill to be conducting hazardous waste operations.

FISCAL EFFECT:

DTSC reports special fund costs of $530,000 annual ongoing for three permanent full-time positions beginning January 1, 2025, for DTSC’s regulatory and oversight duties over metal shredding facilities.

COMMENTS:

1. Purpose. According to the author:

The industry and DTSC have both acknowledged that a comprehensive regulatory program that recognizes the unique nature and importance of scrap metal is in the best interest of the industry, the state, and communities living near these facilities; and have engaged in years of discussion about the appropriate nature of regulation for this important industry. SB 1234 establishes that new comprehensive framework to ensure safe regulation of metal shredding facilities in California. The new framework would be administered and enforced by DTSC and mirrors the Department’s existing regimes.

1. Background. Nine metal shredding facilities currently operate in California, some under regulatory authorization from the 1980s and 1990s. Some facilities began the permitting process for a full hazardous waste facility permit, and others may have less certain authorization. These facilities are an important part of the metal recycling infrastructure in California. This bill, developed by industry and regulators, seeks to establish one regulatory structure with clear rules for all metal shredding facilities in the state.

The current metal shredding provisions were not in this bill in the Senate and have been considered only by the Assembly Committee on Environmental Safety and Toxics Control, which recommended key issues that should still be addressed.

In support of this bill, the California Metals Coalition states:

SB 1234 solves a problem that has threatened the economic viability of metal shredding facilities for almost a decade—the lack of clarity around how these critical facilities should be regulated….The industry has worked proactively with DTSC to address concerns raised by the agency and to improve the environmental performance of these facilities. Significant improvement has been achieved over the past few years, and the regulatory framework established by SB 1234 will ensure that these important facilities continue to operate safely and in an environmentally protective manner.

In opposition, LJT Trading states:

[A]pplying broad regulations could disproportionately burden smaller shredding companies who are not shredding full automobiles. The bill favors larger auto shredders, potentially creating a monopoly-like situation where smaller competitors are driven out of business. Amendments should aim to level the playing field and promote fair competition among all types of shredding operations. The bill should focus on auto shredders that chemically treat auto shredder residue currently, rather than applying the same regulations to all metal shredders. Doing so will avoid penalizing smaller non-automotive shredders that do not pose the same environmental or operational risks.

1. Technical Errors on Substantive Issues. If this bill moves forward in its current form, two errors need correction. First, Section 25095.50(a) should state that the department “shall” collect an annual fee, not “may.” Second, the following correction on page 10, line 6, regarding CEQA:

The approval of an application for a metal shredding facility permit for a new metal shredding facility shall be considered a discretionary decision that is not subject to the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code).

Analysis Prepared by: Jacqueline Kinney / APPR. / (916) 319-2081

Date of Hearing: June 25, 2024

ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS

Eduardo Garcia, Chair

SBPCA Bill Id:SB 1234

Author:(Allen) – As Amended Ver:June 10, 2024

SENATE VOTE: 37-0

SUBJECT: Hazardous materials: metal shredding facilities

SUMMARY: Establishes permitting requirements for new and existing metal shredding facilities. Requires an owner or operator of an existing metal shredding facility, within 120 days after the effective date of this bill, to submit to the Department of Toxic Substances Control (DTSC), for review and approval, specified information that is required for a metal shredding facility permit. Specifically, this bill:

1) Defines "chemically treated metal shredder residue" or "CTMSR" as the waste generated from the shredding and processing of metallic materials, which may include, but is not limited to, end-of-life vehicles, appliances, and other metal-containing items, by a metal shredding facility where recoverable ferrous or nonferrous metals have been removed and the remaining metal shredder residue has been treated by a waste stabilization process.

2) Defines "Department" as DTSC.

3) Defines "existing metal shredding facility" as a metal shredding facility that is conducting metal shredding and metal processing operations as of the enacted date of this bill.

4) Defines "light fibrous material" as a fibrous mixture of nonmetallic materials, including, but not limited to, synthetic fabric and carpet fibers, and entrained metallic particles, often representing the lightest fraction of metal shredder aggregate produced from the shredding of end-of-life vehicles and other metallic items that is susceptible to dispersal into the environment.

5) Defines "metal processing operations" as the stockpiling and handling of metal shredder aggregate, the operations undertaken to separate, sort, and remove ferrous or nonferrous scrap metal from metal shredder aggregate, and the treatment and storage of metal shredder residue.

6) Defines "metal shredder aggregate" as the mixture of shredded metallic and nonmetallic materials that is produced by the shredding of feedstock and that is subsequently processed for the purpose of separating, sorting, and removing ferrous metals, nonferrous metals, or other recyclable commodities from nonrecyclable materials.

7) Defines "metal shredding facility" as the entire site and all contiguous properties under the control of the owner or operator of a facility that conducts metal shredding and metal processing operations for the purpose of processing end-of-life vehicles, appliances, or other metallic feedstock materials in order to facilitate the sizing, separation, sorting, or removal of recoverable ferrous or nonferrous metals from nonrecyclable materials.

8) Defines "new metal shredding facility" as a metal shredding facility that had not commenced metal shredding and metal processing operations as of the date that the act adding this bill is signed into law by the Governor.

9) Repeals any nonhazardous determination issued by DTSC or its predecessor, the State Department of Health Services, to any metal shredding facility pursuant to Section 66260.200(f) of Title 22 of the California Code of Regulations.

10) Prohibits a local agency from deeming a metal shredding facility operating pursuant to this bill to be conducting hazardous waste treatment or storage operations for the purposes of making a land use decision.

11) Requires DTSC to adopt regulations to implement this bill.

12) Prohibits a metal shredding facility from operating in California, unless it has a permit issued by DTSC or is deemed to have a permit from DTSC pursuant to this bill.

13) Provides that the owner or operator of an existing metal shredding facility shall be deemed to have a permit from DTSC pursuant to this bill if, on the effective date of the bill, it is operating in accordance with the requirements of this bill and any regulations adopted by DTSC to implement this chapter.

14) Authorizes the owner or operator of an existing metal shredding facility that is deemed to have a permit shall to continue to be deemed to have a permit for as long as they continuously operate the metal shredding facility in accordance with the requirements of this bill and any regulations adopted by DTSC to implement this bill.

15) Requires, no later than 120 days after the effective date of the bill, the owner or operator of an existing metal shredding facility to provide all of the following information to DTSC for review and approval:

a) A description of the metal processing operations conducted at the metal shredding facility, including all equipment used for this purpose;

b) A metal shredding facility inspection plan;

c) A closure plan;

d) A current closure cost estimate;

e) A corrective action cost estimate, if any;

f) A metal shredding facility housekeeping plan:

g) An inventory management plan;

h) A preparedness and prevention plan;

i) A contingency plan;

j) A flood plain map, if applicable; and,

k) Evidence of financial assurance consistent with the requirements of the California Hazardous Waste Control Law (HWCL).

16) Exempts from the requirements of the California Environmental Quality Act (CEQA; Division 13 (commencing with Section 21000) of the Public Resources Code) the review or approval of the information provided by the owner or operator of an existing metal shredding facility to DTSC.

17) Requires the owner or operator of a new metal shredding facility to submit an application to DTSC for a metal shredding facility permit and prohibits operations at the new metal shredding facility until DTSC issues a permit for the new metal shredding facility.

18) Exempts from CEQA requirements the approval of an application for a metal shredding facility permit for a new metal shredding facility.

19) Requires the owner or operator of a metal shredding facility to operate the metal shredding facility in accordance with all of the following requirements:

(a) The metal shredding facility shall be located, designed, constructed, maintained, and operated to minimize the possibility of a fire, explosion, or any unplanned sudden or nonsudden release of any of the following into air, soil, or surface water that could threaten human health or the environment: in-process materials or components thereof, including metal shredder aggregate and light fibrous material; hazardous waste; and, hazardous waste constituents.

b) Requires the owner or operator of the metal shredding facility to develop and follow an inbound source control policy to prevent the shredding of any of the following materials or wastes at the metal shredding facility:

i) Federal Resource Conservation and Recovery Act (RCRA) hazardous waste, and non-RCRA hazardous waste;

ii) Asbestos and asbestos-containing materials, except incidental asbestos-containing material that may be contained inside equipment and is not visible upon inspection;

iii) Radioactive materials;

iv) Petroleum-based wastes, including, but not limited to, used gasoline and diesel;

v) Polychlorinated biphenyls (PCB) materials and wastes, including, but not limited to, capacitors, electrical transformers, and transformer components;

vi) Fluorescent light ballasts, fluorescent lamps, neon, and high-intensity or mercury vapor lights;

vii) Military ordnance, except ordnance designated specifically as "Material Designated as Safe";

viiih) Explosives, explosive residues, fireworks, and other incendiary materials;

ix) Regulated electronic waste;

x) Mercury-containing devices;

xi) Batteries, including, but not limited to, lead-acid batteries and lithium-ion batteries; and,

xii) Compressed gas cylinders and propane canisters, unless empty and disabled.

c) Requires the owner or operator of the metal shredding facility to develop and implement procedures for any depollution operations that are conducted at the metal shredding facility involving the removal of automotive fuels, lubricating oils, refrigerants, and materials that require special handling, including procedures for the proper management of those materials or wastes that are removed during depollution operations.

d) Requires metal shredder aggregate that is transported to an offsite metal shredding facility, for the purposes of processing, to be tarped or otherwise contained during shipment and transported in a manner that prevents its release into the environment.

20) Deems the following materials non-hazardous waste, if managed in accordance with this bill:

a) Scrap metal;

b) Metal shredder aggregate that is managed in specified ways;

c) Intermediate or finished metal products that are subject to further processing to improve product quality;

d) Ferrous and nonferrous metal commodities that are separated or removed from metal shredder aggregate at a metal shredding facility;

e) Nonmetallic recyclable items recovered from metal shredder aggregate for which a market exists; and,

f) Chemically treated metal shredder residue that is treated and managed in accordance with the conditions set forth in this bill.

21) Deems chemically treated metal shredder residue not hazardous waste after waste stabilization if specified conditions are met.

22) Requires the owner or operator of a metal shredding facility to provide DTSC with immediate notice of a fire or other incident at the metal shredding facility that requires the assistance of a local fire department or other first responder. This notice shall be in addition to any notice that is required to be made to the Office of Emergency Services or any other agency under applicable law.

23) Requires the owner or operator of a metal shredding facility to establish an effective means of providing public notice to members of the surrounding community upon the occurrence of a fire or other incident at the metal shredding facility that requires the assistance of a local fire department or other first responder.

24) Requires the owner or operator of a metal shredding facility to have a written closure plan subject to approval of DTSC.

25) Requires the written closure plan to address all of the following:

a) The closure and removal of all feedstock, metal shredder aggregate, and treated and untreated metal shredder residue;

b) The decontamination of equipment and operating areas used for processing metal shredder aggregate; and,

c) The treatment of metal shredder residue and management of chemically treated metal shredder residue.

26) Authorizes DTSC to collect an annual fee from all metal shredding facilities that are subject to the requirements of this bill.

27) Authorizes any authority granted to DTSC under the HWCL to be used to enforce this bill, including, but not limited to, the authority to suspend the authorization of any metal shredding facility that has been determined to pose an imminent and substantial endangerment to human health or the environment.

28) Repeals existing statute dealing with metal shredding facilities.

EXISTING LAW:

1) Requires DTSC to enforce the standards within the HWCL and the regulations adopted by DTSC pursuant to the HWCL. (Health and Safety Code (HSC) § 25180)

2) Authorizes DTSC to deny, suspend, or revoke any permit, registration, or certificate applied for, or issued pursuant to, the HWCL. (HSC § 25186)

3) Authorizes DTSC to issue permits for the use and operation of one or more hazardous waste management units at a facility that meets the standards adopted pursuant to the HWCL. (HSC § 25200 (a))

4) Requires DTSC to impose conditions on each permit specifying the types of hazardous wastes that may be accepted for transfer, storage, treatment, or disposal. (HSC § 25200 (a))

5) Requires DTSC, on or before January 1, 2018, to adopt regulations establishing or updating criteria used for the issuance of a new or modified permit or renewal of a permit, which may include criteria for the denial or suspension of a permit. (HSC § 25200.21)

6) Creates within DTSC the Board of Environmental Safety (Board), consisting of five voting members; requires the Board to set regulatory fees, hear and decide appeals of hazardous waste facility permit decisions, provide opportunities for public hearings on permitted or remediation sites, review and consider for approval the director of DTSC's annual priorities, conduct an analysis of DTSC's regulatory fee structure, and conduct an analysis of DTSC's programs. (HSC § 25125)

7) Authorizes DTSC, in consultation with the Department of Resources, Recycling and Recovery, the State Water Resources Control Board, and affected local air quality management districts, to adopt regulations establishing management standards for metal shredding facilities for hazardous waste management activities within DTSC's jurisdiction as an alternative to the requirements specified in the HWCL (this authority expired on January 1, 2018). (HSC § 25150.82 (c))

8) Authorizes DTSC to collect an annual fee from all metal shredding facilities that are subject to the requirements of the HWCL or to the alternative management standards adopted pursuant to HSC § 25150.82. Requires DTSC to establish and adopt regulations necessary to administer this fee and to establish a fee schedule that is set at a rate sufficient to reimburse DTSC's costs to implement the HWCL as applicable to metal shredder facilities. Authorizes the fee schedule established by DTSC to be updated periodically as necessary and requires the assessment to be no more than the reasonable and necessary cost of DTSC to implement the HWCL, as applicable to metal shredder facilities. (HSC § 25150.84 (a))

9) Defines "metal shredding facility" as an operation that uses a shredding technique to process end-of-life vehicles, appliances, and other forms of scrap metal to facilitate the separation and sorting of ferrous metals, nonferrous metals, and other recyclable materials from nonrecyclable materials that are components of the end-of-life vehicles, appliances, and other forms of scrap metal. "Metal shredding facility" does not include a feeder yard, a metal crusher, or a metal baler, if that facility does not otherwise conduct metal shredding operations. (HSC § 25150.82 (b))

FISCAL EFFECT: Unknown.

COMMENTS:

Need for the bill: According to the author, "Metal shredding facilities recycle millions of end-of-life vehicles, household appliances, and other metallic items produced annually in California. Unless recycled, these materials would rapidly overwhelm all available landfill capacity, contributing to urban blight, creating massive accumulations of abandoned cars and appliances, and posing threats to public safety and welfare. Instead, recovered material is valuable feedstock for manufacturing. By providing a reliable and effective means of recycling these huge volumes of material, metal shredding facilities are a critical part of the State’s infrastructure and essential to a successful circular economy.

Metal shredding can also pose significant concerns to surrounding communities, however, due to potential exposure to hazardous materials and potential fires. However, under existing law, because scrap metal is excluded from the definitions of waste and hazardous waste, these facilities are not permitted by Department of Toxic Substances Control (DTSC). Without a comprehensive regulatory framework, DTSC has been regulating the industry using existing hazardous waste enforcement authority on a facility-by-facility basis.

The industry and DTSC have both acknowledged that a comprehensive regulatory program that recognizes the unique nature and importance of scrap metal is in the best interest of the industry, the state, and communities living near these facilities; and have engaged in years of discussion about the appropriate nature of regulation for this important industry. SB 1234 establishes that new comprehensive framework to ensure safe regulation of metal shredding facilities in California. The new framework would be administered and enforced by DTSC and mirrors the Department’s existing regimes."

California Hazardous Waste Control Law (HWCL): The HWCL is the state's program that implements and enforces federal hazardous waste law in California and directs DTSC to oversee and implement the state's hazardous waste laws and regulations. Any person who stores, treats, or disposes of hazardous waste must obtain a permit from DTSC. The HWCL covers the entire management of hazardous waste, including hazardous waste generation, management, transportation, and ultimately disposal into a state or federal authorized facility.

DTSC's hazardous waste management permitting program: DTSC is responsible for administering the hazardous waste facility permitting program established under the HWCL and the federal RCRA. The core activities of the permitting program include: review of RCRA and non-RCRA hazardous waste permit applications to ensure safe design and operation; issuance and denial of operating permits; issuance of post-closure permits; approval and denial of permit modifications; issuance and denial of emergency permits; review and approval of closure plans; oversight of approved closure plans; and, ensuring a public process on the permitting of hazardous waste facilities.

Tiered permitting of hazardous waste facilities: California has a five-tiered permitting program, with each tier matching the degree of risk posed by the hazardous waste facility. The five permitting tiers are: full permit, standardized permit, permit by rule (PBR), conditional authorization, and conditional exemption.

The Full Permit tier: This tier includes all facilities requiring a RCRA permit in addition to facilities performing selected non-RCRA activities pursuant to Title 22 of the California Code of Regulations. Any person who stores, treats, or disposes of hazardous waste as described in the HWCL, must obtain a permit or a grant of authorization from DTSC. The Full Permit involves considerable document preparation and review, substantial fees, and various other requirements.

The Standardized Permit tier: This tier includes some facilities that manage waste not regulated under RCRA, but are regulated as a hazardous waste in California (i.e., non-RCRA hazardous waste). Examples of facilities that may be eligible for authorization under a standardized permit include, but are not limited to, used oil transfer/storage facilities and precious metal recyclers. A facility with a Standardized Permit must comply with most of the operational requirements applicable to a full-permit facility, but the permit application process has been simplified and annual facility fees are lower than for a full permit.

The Permit by Rule (PBR) tier: This tier is a non-RCRA onsite treatment permit for specific waste streams and treatment processes. Example waste streams and treatment processes that may fall under the PBR tier include, but are not limited to, concentrated metal-bearing wastes, concentrated acids or alkalis, wastes posing multiple hazards, and silver recovery.

The Conditional Authorization (CA) tier: This tier is a non-RCRA hazardous waste onsite treatment authorization for specific waste streams.

The Conditional Exemption (CE) tier: This tier is a non-RCRA hazardous waste onsite treatment authorization for small-quantity treatment and other low-risk treatment. Example treatment processes that may fall under the CE tier include, but are not limited to, oil-water separation, container rinsing or destruction, gravity settling, and some neutralization.

The requirements in SB 1234 are similar to the requirements for facilities within the PBR tier.

DTSC's hazardous waste management enforcement program: DTSC's inspection and enforcement responsibilities include its delegated authority under RCRA, California's HWCL, and state laws pertaining to toxics in packaging, toxic substances in consumer products, and disposal of universal wastes, such as electronic waste. Core activities of DTSC's hazardous waste management program include routine compliance inspections and targeted compliance inspections. Routine compliance inspections involve review of submitted data and reports, as well as physical observation, testing, and evaluation of regulated facilities. Targeted compliance inspections involve review of specific units or processes in response to focused concerns or to inform permitting decisions, as well as analysis of current and historical compliance.

Violations Scoring Procedure (VSP): SB 673 (Lara, Chapter 611, Statutes of 2015) required DTSC to update its permitting criteria for hazardous waste facilities. To comply with SB 673, in 2019 DTSC adopted regulations for the VSP review of a hazardous waste facility's compliance history and the assignment of a score to that facility. DTSC uses the information from the VSP when it reviews a facility's renewal permit application.

It is unclear if the VSP would apply to the compliance history of metal shredding facilities permitted pursuant to SB 1234.

Board of Environmental Safety (Board): Senate Bill 158 (Committee on Budget and Fiscal Review, Chapter 73, Statutes of 2021) created the Board to improve DTSC's transparency, accountability, and fiscal stability. The Board is comprised of 4 part-time members and one full-time member. Three of the Board members are appointed by the Governor, including the full-time Board Chair, and subject to confirmation by the Senate. The Senate and Assembly each appoint one additional member.

The Board's duties and authorities include developing a multi-year schedule to develop long-term goals for DTSC's programs; reviewing and approving the Director's priorities and adopting performance metrics; adjusting fee rates based upon changes made in the annual Budget Act; hearing and deciding hazardous waste facility permit appeals; providing opportunities for public hearings on permitted and remediation sites; conducting an analysis of DTSC's fee structure; conducting an analysis of DTSC's programs and their relationship with related programs in other agencies; and, forming advisory subcommittees on any topic, including fees and environmental justice.

As SB 1234 is currently drafted, it is not clear if the permits for metal shredding facilities could be appealed to the Board.

Metal shredder facilities: California law defines a "metal shredding facility" as an operation that uses a shredding technique to process end-of-life vehicles, appliances, and other forms of scrap metal to facilitate the separation and sorting of ferrous metals, nonferrous metals, and other recyclable materials from non-recyclable materials. A "metal shredding facility" does not include a feeder yard, a metal crusher, or a metal baler, if that facility does not otherwise conduct metal shredding operations. As such, most scrap metal recycling facilities would not be subject to any proposed regulations meant to manage the waste generated from metal shredding facilities.

Metal shredder waste: The shredding of scrap metal (e.g., end-of-life vehicles) results in a mixture of recyclable materials (e.g., ferrous metals and nonferrous metals) and non-recyclable material (i.e., metal shredder waste). Aggregate is generated after the initial separation of ferrous metals and consists of nonferrous metals that can be further recovered and metal shredder waste. Metal shredder waste consists mainly of glass, fiber, rubber, automobile fluids, dirt and plastics in automobiles and household appliances that remain after the recyclable metals have been removed. Because scrap metal contains regulated hazardous constituents, it can contaminate and ultimately cause metal shredder waste to exhibit a characteristic of hazardous waste for toxicity. In a 2002 draft report on auto shredder waste, DTSC showed that metal shredder waste often exceeded the soluble threshold limit concentrations (STLCs) for lead, cadmium, and zinc.

Non-hazardous waste classification granted to metal shredding facilities: Based on the hazardous characteristics of metal shredder waste, in many instances, metal shredding facilities are hazardous waste generators and are thus subject to hazardous waste requirements, including permitting, transportation and disposal. In the late 1980s, in an effort to relieve metal shredding facilities of these requirements, the Department of Health Services (DHS) (the predecessor of DTSC) determined that the metal treatment fixation technologies were capable of lowering the soluble concentrations of metal shredder waste such that the treated metal shredder waste was rendered insignificant as a hazard to human health and safety, livestock, and wildlife. Seven metal shredding facilities applied for and were granted nonhazardous waste classification letters by DHS, and later DTSC, if they used the metal treatment fixation technologies. The authority to issue these classifications is found in subdivision (f) of Section 66260.200 of Title 22 of the California Code of Regulations, and these determinations are now known as "f letters." These classifications ultimately allowed treated metal shredder waste to be handled, transported, and disposed of as non-hazardous waste in class III landfills (i.e., solid (nonhazardous) waste landfills).

Legislation to address impacts of metal shredding facilities: In 2014, Senator Jerry Hill introduced SB 1249, based in part on concerns about metal shredder safety due to recent fires at metal shredding facilities in his district, but also in response to the historic concerns about metal shredding facilities and their potential impact on the environment. The intent of the bill was that the conditional nonhazardous waste classifications, as documented through the historical "f letters," be revoked and that metal shredding facilities be thoroughly evaluated and regulated to ensure adequate protection of the human health and the environment. SB 1249 (Hill, Chapter 756, Statutes of 2014 ) was signed by the Governor and authorized DTSC to develop alternative management standards (different from a hazardous waste facility permit) if, after a comprehensive evaluation of metal shredding facilities, DTSC determined that alternative management standards were warranted.

DTSC's implementation of SB 1249: DTSC's implementation of SB 1249 included: conducting a comprehensive evaluation of metal shredding facilities and metal shredder waste; determining if alternative management standards specific to metal shredding facilities could be developed to ensure that the management, treatment, and disposal practices related to metal shredder waste are protective of human health and the environment; preparing an analysis of activities to which the alternative standards will apply, made available to the public before any regulations were adopted; and, adopting emergency regulations establishing a fee schedule to reimburse DTSC's costs for the evaluation, analysis, and regulatory development for metal shredding facilities.

As part of this implementation, in January 2015, DTSC developed a three-year work plan to implement SB 1249. The work plan includes development of a treatability study on metal shredder wastes to demonstrate the highest level of treatment that can be achieved with the current technology, and an assessment of the potential for treated or untreated metal shredder waste to migrate off-site and impact residents or business occupants in the areas surrounding metal shredding facilities and landfills that accept metal shredder waste.

As part of the work plan, DTSC approved air monitoring summary reports for metal shredding facilities located in Bakersfield, Redwood City, and Terminal Island. Air sampling was conducted at the facilities during October 2016 to assess the potential for offsite emissions associated with the metal shredding operations.

DTSC oversight of metal shredders: DTSC has inspected and taken various enforcement actions on metal shredder facilities, as well as metal recyclers. One facility to note is Schnitzer Steel Industries, Inc. (now known as Radius Recycling), located in Oakland, in Alameda County.

Schnitzer Steel owns and operates a scrap metal recovery and recycling facility, located at 1101 Embarcadero West, Oakland, California 94607 (Facility), occupying approximately 33.2 acres adjacent to the Oakland Inner Harbor waterfront and the Port of Oakland. The Facility is bounded on the south by the Oakland Inner Harbor, to the east and west by the Port of Oakland (Howard Terminal and Roundhouse Terminal respectively), and, to the north by Embarcadero West and Union Pacific Railroad tracks. Radius Recycling is the new brand and assumed name of Schnitzer Steel as of July 2023.

Schnitzer Steel’s operations at the Facility include, but are not limited to: collecting, sorting, and transporting waste metallic containing materials using conveyor belts and heavy equipment; shredding end-of-life automobiles, appliances, and other recyclable metal containing items; shearing recyclable metals; preparing and sorting ferrous and non-ferrous metal recycling feedstock; stockpiling of unprocessed feedstock, metal shredder aggregate (partially sorted shredder output) and processed metal; chemically treating residue from the metal shredding and separation operations; and, loading of processed materials for disposition.

In 2012, the Alameda County District Attorney’s Office, in consultation with DTSC and the California Department of Fish and Wildlife, initiated an investigation of the area surrounding the Facility in response to alleged releases of light fibrous material (LFM). On February 3, 2021, a Stipulation for Entry of Final Judgement and Order on Consent (Stipulation) was filed and approved by the Alameda County Superior Court. Schnitzer Steel agreed to a $4.1 million settlement over allegations that it violated the state’s environmental laws.

Due to concerns about ongoing releases of LFM, DTSC’s Office of Criminal Investigations conducted an air monitoring study and collected samples of LFM from the ground in the areas surrounding the Facility from December 2020 to May 2023.

On February 23, 2021, DTSC ordered Schnitzer Steel, through a formal enforcement action, to clean up contamination both onsite and within the surrounding community, modify the facility as needed to prevent releases, and submit a plan to control immediate threats from metal shredding practices.

On March 30, 2022, a joint letter from DTSC, the Attorney General’s Office, and the Alameda County District Attorney’s Office (the "People") was sent to Schnitzer Steel notifying them of continued off-site releases and deposition of LFM from the Facility and their violation of the February 3, 2021 Stipulation. The letter included actions Schnitzer Steel must take to stop these releases. After multiple rounds of communication and DTSC’s observations that LFM releases are still occurring, a final cease and desist LFM letter was sent to Schnitzer Steel by the People on July 31, 2023.

On August 9, 2023, a fire started in an unprocessed scrap metal pile at Schnitzer Steel’s Facility. The next morning, DTSC inspectors responded to investigate the fire and all hazardous waste generated as a result of the fire. DTSC inspectors interviewed facility personnel, inspected the scrap metal pile, and collected samples from the fire impacted metal pile and water runoff samples. DTSC issued violations to Schnitzer Steel for failure to operate the facility to minimize the possibility of a fire and for failure to immediately notify the State Office of Emergency Services that the facility had a fire. DTSC’s investigation and collaboration with other regulatory agencies on this incident are ongoing.

Currently Schnitzer Steel’s hazardous waste treatment operations are being conducted under an Interim Status authority overseen by DTSC. This allows Schnitzer Steel to conduct hazardous waste treatment at the Facility until DTSC issues a decision on Schnitzer Steel’s permit application.

Schnitzer Steel is an example of a metal shredding facility that has had multiple enforcement actions brought against it over the years by DTSC.

Interaction with Assembly Bill 2851: This bill is repealing some code sections in the Health and Safety Code that AB 2851 (Bonta) is seeking to amend. AB 2851 was heard and passed by this committee earlier this year. As this bill moves through the process, the author may wish to continue to coordinate with the author of AB 2851 to avoid potential code conflicts.

This bill: SB 1234 creates a regulatory structure in state law for metal shredding facilities. There are currently nine metal shredding facilities in the state, some operating under regulatory authorization from the 1980s and 1990s. Some facilities began the permitting process for a full hazardous waste facility permit and others may have less certain authorization. These facilities are an important piece of the metal recycling infrastructure in California. However, having one clear regulatory structure for all metal shredding facilities in the state makes sense. Having clear rules will be helpful for state and local regulators and facilities, and will help set the regulatory standard for future metal recycling facilities in the state.

Issues for further consideration: This is the first policy hearing for this bill. The bill was recently significantly amended and this policy has not yet been heard in a policy committee. While the regulation of metal shredding facilities is important, as the bill moves through the process, the author, committee, stakeholders and the Administration may wish to further refine a few issues:

• For other permits issued by DTSC, the details of the permit are usually done through regulations. However, this bill establishes requirements for the specific construction of a metal shredding permit. This means that any future changes to the permit conditions may have to be made by a future statutory change. It could be helpful to identify which permitting requirements should be in statute and which requirements could be in regulation.
• The permitting requirements in this bill are more similar to the requirements for the PBR tier, rather than the requirements for a Full Permit. However, a Full Permit lasts for up to 10 years and has to be renewed; can be appealed to the Board of Environmental Safety; and, is subject to scoring under the violation scoring procedure regulation. These requirements would not apply to a metal shredder permit under this bill.
• This bill deems an existing metal shredding facility to be in compliance if the facility self certifies that it meets the requirements in the bill. Should there be a period of review and ultimate approval by DTSC before the facility is deemed to have a permit? Should the facility be inspected by DTSC for compliance before it is deemed to have a permit?
• This bill exempts the approval of both an existing and new metal shredding facility from the requirements of CEQA – is that appropriate?
• This bill, once a facility is deemed to have a permit, authorizes a metal shredding facility to conduct various activities, such as the storage and processing of metal shredder aggregate and the onsite treatment of metal shredder residue, even if a facility does not conduct these activities. Should the authorizations for a facility be tied to the actual operations of that particular facility?
• This bill deems various waste streams as "non-hazardous," such as metal shredder aggregate. Should there be some evaluation of this authorization? What if this waste stream changes over time, would it still be appropriate to be "non-hazardous"?
• This bill authorizes DTSC to impose an annual fee on metal shredding facilities to cover its regulatory costs. Perhaps DTSC should be required to impose this fee.
• This bill authorizes DTSC to use any enforcement authority it currently has for hazardous waste facilities, except the bill differs from existing authority when dealing with the ability to revoke or suspend a permit.

Arguments in support: According to the California Metals Coalition, "SB 1234 solves a problem that has threatened the economic viability of metal shredding facilities for almost a decade—the lack of clarity around how these critical facilities should be regulated. Because scrap metal is exempt from regulation under the Hazardous Waste Control Law, facilities that recycle these valuable materials fall outside the permitting program administered by the Department of Toxic Substances Control (DTSC). This bill would establish a new regulatory program tailored specifically to this industry that would be administered by DTSC under new authority. The industry has worked proactively with DTSC to address concerns raised by the agency and to improve the environmental performance of these facilities. Significant improvement has been achieved over the past few years, and the regulatory framework established by SB 1234 will ensure that these important facilities continue to operate safely and in an environmentally protective manner. The operating and performance standards have been discussed at length with DTSC and are supported by members of the industry. California’s metal shredders and DTSC agree that a comprehensive regulatory program that recognizes the unique nature and importance of scrap metal is in the best interest of the industry and the state."

Arguments in opposition: According to LJT Trading, "I wanted to express my opposition to SB 1234 because applying broad regulations could disproportionately burden smaller shredding companies who are not shredding full automobiles.

The bill favors larger auto shredders, potentially creating a monopoly-like situation where smaller competitors are driven out of business. Amendments should aim to level the playing field and promote fair competition among all types of shredding operations.

The bill should focus on auto shredders that chemically treat auto shredder residue currently, rather than applying the same regulations to all metal shredders. Doing so will avoid penalizing smaller non-automotive shredders that do not pose the same environmental or operational risks."

Related legislation:

1) AB 2851 (Bonta, 2024). Requires DTSC, in consultation with local air pollution control districts and air quality management districts, to develop and implement facility-wide fence-line air quality monitoring at metal shredding facilities. This bill is pending action in the Senate Environmental Quality Committee.

2) SB 158 (Committee on Budget and Fiscal Review, Chapter 73, Statutes of 2021). Enacted several policy reforms to the programs overseen by DTSC, stabilized DTSC's funding, and created the Board.

3) SB 673 (Lara, Chapter 611, Statutes of 2015). Revised DTSC's permitting process and public participation requirements for hazardous waste facilities.

4) SB 1249 (Hill, Chapter 756, Statutes of 2014). Authorizes DTSC to adopt regulations establishing alternative management standards for hazardous waste management activities at metal shredding facilities until January 1, 2018.

REGISTERED SUPPORT / OPPOSITION:

Support

California Legislative Conference of Plumbing, Heating & Piping Industry
California Metal Recyclers Coalition

Californians Against Waste
National Electrical Contractors Association (NECA)

Recology Inc.

Republic Services
SCADA
West Coast Chapter-institute of Scrap Recycling Industries

Opposition

LJT Trading, LLC

Analysis Prepared by: Josh Tooker / E.S. & T.M. /

 THIRD READING  

Bill No: SB 1234

Author: Allen (D)

Amended: 4/23/24

Vote: 21

SENATE NATURAL RES. & WATER COMMITTEE: 11-0, 4/9/24

AYES: Min, Seyarto, Allen, Dahle, Eggman, Grove, Hurtado, Laird, Limón, Padilla, Stern

SENATE LOCAL GOVERNMENT COMMITTEE: 7-0, 4/17/24

AYES: Durazo, Seyarto, Dahle, Glazer, Skinner, Wahab, Wiener

SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/16/24

AYES: Caballero, Jones, Ashby, Becker, Bradford, Seyarto, Wahab

SUBJECT: Coastal resources: local land use plan: zoning ordinances and district maps: nonsubstantive modifications

SOURCE: Author

DIGEST:

This bill authorizes the legislative body of a city or county to delegate to its planning director or equivalent position the authority to adopt nonsubstantive modifications suggested by the California Coastal Commission (Commission) to the city or county’s Local Coastal Program (LCP), if specified conditions are met.

ANALYSIS:

Existing law:

1. Establishes the California Coastal Act of 1976 (Coastal Act), which provides for the planning and regulation of development within the coastal zone. (Public Resources Code (PRC) §§30000 et seq.)
2. Establishes the Commission and vests the Commission with primary responsibility for implementation of the Coastal Act. (PRC §30330.)
3. Requires, generally, each local government lying within the coastal zone to prepare a local coastal program for that portion of the coastal zone within its jurisdiction. (PRC §30500.)
4. Provides that an LCP is composed of (1) a land use plan, which must be submitted to the Commission for certification, and (2) zoning ordinances, zoning district maps, and any other actions required by the Coastal Act, which must be submitted to the Commission for approval. The latter is known as an implementation plan. (PRC §30512 and PRC §30513, respectively.)
5. Requires the Commission, if it determines not to certify a submitted land use plan, to provide a written explanation for the determination and allows the Commission to suggest modifications, which, if adopted by the local government, would cause the land use plan to be deemed certified, as specified. (PRC §30512.)
6. Requires the Commission, if it rejects the submitted zoning ordinances, zoning district maps, or any other implementing actions, to provide written notice of the rejection and authorizes the Commission to suggest modifications to these items, which, if adopted by the local government, would cause these items to be deemed approved, as specified. (PRC §30513.)

This bill authorizes the legislative body of a city or county to delegate to its planning director or equivalent position the authority to adopt nonsubstantive modifications suggested by the Commission to the city or county’s LCP, if the following conditions are met:

1. The amendment to the LCP that is the subject of the modification pertains to a project that has at least 15% of the units affordable to lower income households.
2. The modification qualifies as “nonsubstantive,” as defined.
3. The legislative body adopts a policy, via ordinance or resolution, at a regular public meeting that delegates the authority to a public official and includes a definition of the scope of modifications that qualify as nonsubstantive, as specified.
4. The policy adopted pursuant to (3) must:
   1. Identify the public official to whom the authority to adopt modifications is delegated.
   2. Require the public official to make a finding, supported by substantial evidence, that the modification meets the requirements of (1) and (2), above.
   3. Require online posting of the findings and proposed decisions, mailed notice to affected property owners, as specified, and electronic notification to individuals that request to be notified of these decisions, as specified.
   4. Require notice to the members of the legislative body not less than 45 days before the decision becomes effective.
   5. Establish a means for accepting written comments on the proposed decision for at least 30 days before the decision becomes effective.
   6. Provide that the posting, notice, and comment periods in (c), (d), and (e), above, may commence only after the Commission has taken final action on a modification.
   7. Provide the authority for a single member of the legislative body to refer any proposed decision to the legislative body for action before the decision becomes effective.
   8. Include expiration of the delegation after no more than two years.

Background

Local Coastal Programs. Local governments play an essential role in coastal management under the Coastal Act, sharing responsibility with the Commission to protect and enhance California’s coastal resources. The Coastal Act requires local governments in the coastal zone to develop LCPs to carry out Coastal Act policies at the local level. LCPs establish the kinds, locations, and intensities of new development allowed in the coastal zone, and identify other development standards necessary to achieve the objectives of the Coastal Act. Each LCP includes a land use plan, which contains policies, and an implementation plan, which includes accompanying measures to implement the land use plan, like zoning ordinances, zoning district maps, and other implementing actions.

The Commission reviews these plans and ordinances for consistency with the Coastal Act. If the Commission certifies the LCP, the local government assumes responsibility for issuing most Coastal Development Permits (CDPs) under the certified LCP. If the Commission rejects the submitted land use or implementation plans, it can suggest modifications that would result in the Commission’s automatic certification of these documents. Under existing law, the local government’s legislative body – board of supervisors or city council – must vote to approve the suggested modifications.

Santa Monica Land Use Plan. The City of Santa Monica (Santa Monica or the city) has a certified land use plan, but it does not have a certified implementation plan, which means it does not have a certified LCP. Thus, the Commission retains authority for issuing CDPs in Santa Monica.

In December 2023, the Commission considered a request from Ocean Avenue Partners for a CDP for the Ocean Avenue Mixed-Use Development Project (proposed project) in Santa Monica. The proposed project included a 120-room hotel, a 100-unit residential development, a museum, a public observation deck, 381 subterranean parking spaces, and new retail and restaurant uses. The proposed project would have been inconsistent with Santa Monica’s certified land use plan, so the city also submitted a project-specific amendment to the development standards in the land use plan for the Commission’s review and certification at the December meeting. In the staff report, Commission staff recommended the Commission reject Santa Monica’s proposed amendment to the land use plan, but vote to certify the amendment if the city adopted two modifications:

• To allow for specified flexibility should low-cost overnight accommodations be proposed or required.
• To add a footnote to a map in the land use plan to reflect the new development standards proposed.

Prior to the December meeting, the city pushed back on the modifications suggested in the staff report, requesting the elimination of both. In an addendum to the staff report for the December meeting, Commission staff responded to the city’s stated concerns by amending the first suggested modification and retaining the second suggested modification, which staff interpreted as a conforming change to a referenced map in line with the city’s proposed amendment. According to the author, there were concerns that if the suggested modifications went back to the Santa Monica city council, which included new members who had not voted on the original project proposal, the city council might not adopt the modifications and might reconsider the whole project. Further, there were concerns that the developer might walk away, as well. To avoid these outcomes, the Commission voted to certify the land use plan amendment as originally proposed by the city, leaving the identified issues unaddressed.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to the Senate Appropriations Committee:

• The California Coastal Commission estimates ongoing costs of approximately $50,000 annually (General Fund) associated with coordination and outreach to local governments across all districts, as well as drafting and updating a written guidance document regarding implementation.

SUPPORT: (Verified 5/16/24)

YIMBY Action

OPPOSITION: (Verified 5/16/24)

None received

ARGUMENTS IN SUPPORT: According to the author, “The California Coastal Commission seeks to set a responsible balance between coastal protection and coastal development. Because of their oversight, development planning and approval in the coastal zone can be a nuanced and often time-consuming process. While it is important to be deliberate when considering potential coastal development given our state’s renowned and unique coastline, there are times in which the approval process can become unnecessarily lengthy, particularly when it comes to the sign off of minor changes to a plan that, while non-significant, still require additional full voting approval from several bodies.”

“To alleviate some of the time consumption caused by unnecessary back-and-forth, SB 1234 seeks to allow a local government to accept minor or conforming changes as part of a development plan through ministerial approval and without the requirement of a vote of the full elected body or further certification thereafter by the Coastal Commission. Through this, significant time can be saved in the approval process over non-controversial issues, saving costs and reducing the

amount of resources that must be expended by local governments and Coastal Commission.”

Prepared by: Catherine Baxter / N.R. & W. / (916) 651-4116

5/17/24 18:49:01

**** END ****

SENATE COMMITTEE ON

Senator Anna Caballero, Chair

2023 - 2024 Regular Session

SB 1234 (Allen) - Coastal resources: local land use plan: zoning ordinances and district maps: nonsubstantive modifications

Bill Summary:

This bill would authorize the legislative body of a city or county to delegate to its planning director or equivalent position the authority to adopt nonsubstantive modifications to a land use plan, or a zoning ordinance, zoning district map, or other implementing action, if specified conditions are met.

Fiscal Impact:

• The California Coastal Commission estimates ongoing costs of approximately $50,000 annually (General Fund) associated with coordination and outreach to local governments across all districts, as well as drafting and updating a written guidance document regarding implementation.

Background:

Local governments play an essential role in coastal management under the Coastal Act, sharing responsibility with the Commission to protect and enhance California’s coastal resources. The Coastal Act requires local governments in the coastal zone to develop Local Coastal Programs (LCPs) to carry out Coastal Act policies at the local level. LCPs establish the kinds, locations, and intensities of new development allowed in the coastal zone, and identify other development standards necessary to achieve the objectives of the Coastal Act. Each LCP includes a land use plan, which contains policies, and an implementation plan, which includes accompanying measures to implement the land use plan, like zoning ordinances, zoning district maps, and other implementing actions.

The Commission reviews these plans and ordinances for consistency with the Coastal Act. If the Commission certifies the LCP, the local government assumes responsibility for issuing most Coastal Development Permits (CDPs) under the certified LCP. If the Commission rejects the submitted land use or implementation plans, it can suggest modifications that would result in the Commission’s automatic certification of these documents. Under existing law, the local government’s legislative body – board of supervisors or city council – must vote to approve the suggested modifications.

Proposed Law:

This bill would authorize the legislative body of a city or county to delegate to its planning director or equivalent position the authority to adopt nonsubstantive modifications to a land use plan, or a zoning ordinance, zoning district map, or other implementing action, if specified conditions are met. The required conditions would include that the legislative body adopt a policy via ordinance or resolution at a regular public meeting delegating the authority to a public official and that the policy include a definition of the scope of modifications that would qualify as nonsubstantive, as provided.

Related Legislation:

SB 689 (Blakespear, 2023) would require that any amendment to an LCP to develop a dedicated bike lane, as specified, be considered a de minimis change by the Coastal Commission executive director, as specified.

-- END --

SENATE COMMITTEE ON LOCAL GOVERNMENT

Senator María Elena Durazo, Chair

2023 - 2024 Regular

Coastal resources: local land use plan: zoning ordinances and district maps: modifications: ministerial approval

Allows a local government to adopt a modification proposed by the Coastal Commission to certain land use programs through ministerial approval at the staff level.

Background

Local land use planning. Planning and approving new housing is mainly a local responsibility. The California Constitution allows cities and counties to “make and enforce within its limits, all local, police, sanitary and other ordinances and regulations not in conflict with general laws.” It is from this fundamental power (commonly called the police power) that cities and counties derive their authority to regulate behavior to preserve the health, safety, and welfare of the public—including land use authority.

State law provides additional powers and duties for cities and counties regarding land use. The Planning and Zoning Law requires every county and city to adopt a general plan that sets out planned uses for all of the area covered by the plan. A general plan must include specified mandatory “elements,” including a housing element that establishes the locations and densities of housing, among other requirements. Cities’ and counties’ major land use decisions—including zoning ordinances and other aspects of development permitting—must be consistent with their general plans.

Local governments use their police power to enact zoning ordinances that shape development, such as setting maximum heights and densities for housing units, minimum numbers of required parking spaces, setbacks to preserve privacy, lot coverage ratios to increase open space, and others. These ordinances can also include conditions on development to address aesthetics, community impacts, or other particular site-specific considerations.

Public input on zoning decisions. The Planning and Zoning Law requires, when a local government is considering amending a general plan or zoning ordinance, that the planning commission in that city or county hold a public hearing on the proposed general plan amendment or zoning ordinance, after:

• Publishing notice in the newspaper or positing in three public places; and
• Mailing notices to affected property owners if the notice affects the permitted uses of real property.

After the hearing, the planning commission must provide a recommendation to the legislative body (the city council or board of supervisors), which the legislative body must hear at a separate public hearing subject to the notice requirements above before adopting the ordinance.

These public hearings must comply with the Ralph M. Brown Act (Brown Act), which provides guidelines for how local agencies must hold public meetings. Among other provisions, the Brown Act requires that meetings of the legislative body of a local agency be open and public. The Brown Act generally requires local agencies to notice meetings in advance, including the posting of an agenda online, and requires these meetings to be open and accessible to the public. It also lays out certain requirements for public participation, including to:

• Generally require that every agenda for meetings must provide an opportunity for the public to directly address the legislative body on any item of public interest, before or during its consideration of the item, that is within its jurisdiction; and
• Make available any written materials that are distributed to at least a majority of the members of a legislative body in connection with a public meeting. Any member of the public can request that a local agency provide them a copy of the meeting materials via mail or electronically.

Coastal Act of 1972. The California Coastal Commission (Coastal Commission) was established by voter initiative in 1972 (Proposition 20). The Legislature later made the Coastal Commission permanent through the adoption of the California Coastal Act of 1976 (Coastal Act). The Coastal Commission plans for and regulates the use of land and water in the Coastal Zone. The Coastal Zone encompasses the land and water area along the entire California coast extending seaward to the state's outer limit of jurisdiction, including all offshore islands, and extending inland generally 1,000 yards from the mean high tide line of the sea. In areas with significant coastal resources, the Coastal Zone extends inland to the first major ridgeline paralleling the sea or five miles from the mean high tide line of the sea, whichever is less. However, the Coastal Zone excludes the San Francisco Bay and certain related bodies of water. In developed urban areas, the Coastal Zone generally extends inland less than 1,000 yards.

The Coastal Commission is an independent, quasi-judicial state agency, and is composed of 12 voting members appointed by the Governor, the Senate Rules Committee, and the Speaker of the Assembly (four each). Six members are public members, and six are locally elected officials from specified coastal areas. There are also three ex officio, non-voting members of the Coastal Commission.

The Coastal Act gives the state a unique role in planning and regulating the use of land and water along the coast. Specifically, within the coastal zone—unlike most other areas of California—the state possesses the authority to regulate development, which is broadly defined to include the construction of structures, divisions of land, and activities that change the intensity of use of land or public access to coastal waters, among other projects.

The basic goals of the Coastal Act are to balance development along the coast with protecting the environment and public access. The Coastal Act includes specific policies that address issues such as shoreline public access and recreation, habitat protection, landform alteration, industrial uses, water quality, transportation, development design, ports, and public works. The Coastal Act tasks the Coastal Commission with implementing these laws and protecting coastal resources. As such, entities seeking to undertake development activities within the coastal zone must first attain a coastal development permit (CDP) from the Coastal Commission.

The Coastal Commission can delegate some permitting authority to the 76 cities and counties along the coast if they develop plans—known as Local Coastal Programs (LCPs)—to guide development in the coastal zone. Each LCP includes a land use plan (LUP), which contains policies, and an implementation plan, which includes accompanying measures to implement the land use plan, like zoning ordinances, zoning district maps, and other implementing actions. The LCPs specify the appropriate location, type, and scale of new or changed uses of land and water, as well as measures to implement land use policies (such as zoning ordinances). The Coastal Commission reviews and approves (“certifies”) these plans to ensure they protect coastal resources in ways that are consistent with the goals and policies of the Coastal Act.

Local governments have incentives to complete certified LCPs, as they can then handle development decisions themselves, although stakeholders can appeal such decisions to the Coastal Commission. In contrast, any project undertaken in the coastal zone in communities without certified LCPs must obtain a permit from the Coastal Commission, in addition to approval from the local government.

Modifications to LUPs and implementation plans. When a local government proposes an amendment to an LUP or an implementation plan, it must submit the amendment to the Coastal Commission for approval. The Coastal Commission must hold a public hearing on it and then can certify the LUP or implementation plan as drafted, or suggest modifications to the local government that would result in certification.

Because the Planning and Zoning Law requires land use changes to be adopted in a public hearing after the provision of sufficient notice, any modified LUP or implementation plan must be approved by the legislative body of the city or county (the city council or board of supervisors), following all of the procedures in the Planning and Zoning Law.

Ocean Avenue Project. The City of Santa Monica has a certified LUP, but it does not have a certified implementation plan, which means it does not have a certified LCP. Thus, the Coastal Commission retains authority for issuing CDPs in Santa Monica.

In December 2023, the Coastal Commission considered a request from Ocean Avenue Partners for a CDP for the Ocean Avenue Mixed-Use Development Project (proposed project) in Santa Monica. The proposed project included a 120-room hotel, a 100-unit residential development, a museum, a public observation deck, 381 subterranean parking spaces, and new retail and restaurant uses. The proposed project would have been inconsistent with Santa Monica’s certified LUP, so the city also submitted a project-specific amendment to the development standards in the LUP for the Coastal Commission’s review and certification at the December meeting. In the staff report, Coastal Commission staff recommended the Coastal Commission reject Santa Monica’s proposed amendment to the land use plan, but vote to certify the amendment if the city adopted modifications to:

• Allow for specified flexibility should low-cost overnight accommodations be proposed or required; and
• Add a footnote to a map in the land use plan to reflect the new development standards proposed.

Prior to the December meeting, the city argued against the modifications suggested in the staff report, requesting the elimination of both because they might jeopardize the project. In an addendum to the staff report for the December meeting, Coastal Commission staff responded to the city’s stated concerns by amending the first suggested modification and retaining the second suggested modification, which staff interpreted as a conforming change to a referenced map in line with the city’s proposed amendment.

According to city staff, there were concerns that if the suggested modifications went back to the Santa Monica city council, the city council might not adopt the modifications or the developer might not pursue the project. To avoid these outcomes, the Coastal Commission voted to certify the LUP amendment as originally proposed by the city.

The author wants to reduce conflict over modifications to LUPs and implementation plans.

Proposed Law

Senate Bill 1234 allows a local government to adopt a modification proposed by the Coastal Commission to an LUP, zoning ordinance, or other implementation actions through ministerial approval by its planning director or equivalent position.

Comments

1. Purpose of the bill. According to the author, “The California Coastal Commission seeks to set a responsible balance between coastal protection and coastal development. Because of their oversight, development planning and approval in the coastal zone can be a nuanced and often time-consuming process. While it is important to be deliberate when considering potential coastal development given our state’s renowned and unique coastline, there are times in which the approval process can become unnecessarily lengthy or redundant, particularly when it comes to the sign off of minor changes to a plan that, while non-significant, still require additional full voting approval from several bodies. To alleviate some of the time consumption caused by unnecessary back-and-forth, SB 1234 seeks to authorize a local government to accept minor or conforming modifications to a Local Coastal Program amendment through ministerial approval and without the requirement of a vote of the full elected body or further certification thereafter by the Coastal Commission. This change would afford local governments added flexibility in the approval of non-controversial modifications, reducing the amount of time and resources that must be expended throughout the approval process.”

2. Pandora’s box. The Planning and Zoning Law requires legislative acts in the land use sphere, such as general plan amendments or zoning ordinances, to be adopted publicly by the governing body of the city or county for good reason. These land use changes can have major impacts on property rights, the environment, nearby residents (including lower-income or marginalized individuals), workers, and others. By allowing a local’s government’s staff – and not the elected officials – to approve modifications to zoning ordinances, SB 1234 reduces the opportunity for public input and the ability of important communities to make their voices heard. Furthermore, SB 1234 establishes a precedent that may be applied in other contexts to allow staff to adopt zoning ordinances or otherwise make broadly applicable decisions. Will the next step be to allow (or require) planning staff to ministerially adopt suggested modifications to housing elements from HCD if HCD determines a housing element is not compliant, which could include reducing impact fees or inclusionary requirements if HCD identifies them as a constraint to housing? SB 1234 may open the door to more consequential changes to the responsibilities of local elected officials and local staff.

3. The dictionary defines.... Local government land use actions fall into three categories: (Calvert v. County of Yuba (2006) 145 Cal.App.4th 613, 622 [51 Cal. Rptr. 3d 797].)

• Legislative actions “involve the enactment of general laws, standards or policies, such as general plans or zoning ordinances.”
• Adjudicative actions “involve discretionary decisions” that apply laws to specific development projects.
• Ministerial actions “involve nondiscretionary decisions based only on fixed and objective standards, not subjective judgment.”

SB 1234 allows “ministerial” approval of modifications to LUPs and zoning ordinances. Yet ministerial approval is a term that can apply to individual development projects where planning staff determine whether a project meets a set of objective criteria that are easily knowable to third parties, and then approve or deny it. Zoning ordinances, by contrast are legislative acts that fundamentally require the exercise of discretion. What SB 1234 proposes cannot properly be called ministerial because it allows staff to make legislative—discretionary—decisions. Furthermore, calling these actions ministerial may imply that these zoning ordinances, as modified by staff, are not subject to the California Environmental Quality Act, which does not apply to actions that don’t require the exercise of discretion. This means a creative legislative body and staff could utilize SB 1234 to inappropriately exempt certain projects from CEQA review. The Committee may wish to consider amending SB 1234 to remove instances of the word ministerially and instead allow a board of supervisors or city council to delegate the authority to adopt modifications to an LUP or zoning ordinance.

4. First, do no harm. Existing law provides many opportunities for public input on modifications to LUPs and implementation plans, which SB 1234 undoes at the local level. Additionally, the bill currently does not limit the types of modifications that could be ministerially approved, meaning that large modifications that significantly affect land use could be approved by staff. The author has expressed the desire to limit the bill to only apply to minor modifications. However, the dispute at the Coastal Commission that gave rise to this bill lays bare the difficulty in determining what is a minor or nonsubstantive change—there was disagreement between the city and the Coastal Commission about the necessity of the addition of a footnote to the zoning diagram. Nonetheless, some parameters could be placed on this bill to minimize the potential unintended consequences and increase the opportunities for local elected officials and the public to weigh in on these staff decisions under the bill—opportunities they would otherwise be guaranteed under the Brown Act and other provisions of state law. The Committee may wish to consider amending SB 1234 to:

• • • • Allow a legislative body to delegate the authority to staff to adopt “nonsubstantive” modifications that have no effect on the physical environment or the intensity of permissible land uses on a parcel.
      • Require the legislative body to adopt a policy via ordinance or resolution at a regular public meeting that delegates the authority and include, at a minimum, a definition of the scope of modifications that qualify as nonsubstantive, as defined above, as well as all of the following requirements:
  • Identification of the public official to whom the authority to adopt modifications is delegated;
  • Online posting of proposed decisions, mailed notice to affected property owners in the manner required for zoning ordinances under existing law, and electronic notification to individuals that request to be notified of these decisions, not less than 45 days before the decision becomes effective;
  • Notice to the members of the legislative body at least 45 days prior to the decision becoming effective;
  • A means for accepting written comments on the proposed decision for at least 30 days prior to the decision becoming effective;
  • Giving a single member of the legislative body the ability to refer any proposed decision to the legislative body for action prior to the decision becoming effective; and
  • Expiration of the delegation after no more than two years.

5. Anyone, anyone? It is unclear whether it is possible to design a program for delegating modification decisions to staff that both prevents abuses or negative consequences while simultaneously providing a material benefit to local governments over what they can already do. SB 1234 in its current form gives broad latitude to local governments to choose to adopt streamlined processes, but runs the risk that major decisions would be made by staff without important review by the people elected to serve a particular city or county. With the amendments above, the risks of the bill are smaller, but so are the benefits, and the precedent remains. Local governments already possess the ability to place nonsubstantive modifications on a consent calendar. While the recommended safeguards above are important, local governments may simply choose to use their existing authority. Does the value of the bill in its current form, or with the proposed amendments above, grant enough of a benefit to local governments to warrant establishing the precedent?

6. Incoming! The Senate Rules Committee has ordered a double-referral of SB 1234: first to the Committee on Natural Resources and Water, which approved the bill at its April 9^th meeting on a vote of 11-0; and second to the Committee on Local Government.

Support and Opposition

(4/12/24)

Support: Yimby Action

Opposition: None submitted.

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SENATE COMMITTEE ON NATURAL RESOURCES AND WATER

Senator Dave Min, Chair

2023 - 2024 Regular

Bill No: SB 1234 Hearing Date: April 9, 2024

Subject: Coastal resources: local land use plan: zoning ordinances and district maps: modifications: ministerial approval

SUMMARY

This bill would authorize a local government’s planning director to adopt, through a ministerial approval process, modifications suggested by the California Coastal Commission (Commission) to the local government’s local coastal program that, if adopted by the local government, would secure the Commission’s automatic certification of the local coastal program.

BACKGROUND AND EXISTING LAW

Background:

Local Coastal Programs. Local governments play an essential role in coastal management under the Coastal Act, sharing responsibility with the Commission to protect and enhance California’s coastal resources. The Coastal Act requires local governments in the coastal zone to develop Local Coastal Programs (LCPs) to carry out Coastal Act policies at the local level. LCPs establish the kinds, locations, and intensities of new development allowed in the coastal zone, and identify other development standards necessary to achieve the objectives of the Coastal Act. Each LCP includes a land use plan, which contains policies, and an implementation plan, which includes accompanying measures to implement the land use plan, like zoning ordinances, zoning district maps, and other implementing actions.

The Commission reviews these plans and ordinances for consistency with the Coastal Act. If the Commission certifies the LCP, the local government assumes responsibility for issuing most Coastal Development Permits (CDPs) under the certified LCP. If the Commission rejects the submitted land use or implementation plans, it can suggest modifications that would result in the Commission’s automatic certification of these documents. Under existing law, the local government’s legislative body – board of supervisors or city council – must vote to approve the suggested modifications.

Santa Monica Land Use Plan. The City of Santa Monica (Santa Monica or the city) has a certified land use plan, but it does not have a certified implementation plan, which means it does not have a certified LCP. Thus, the Commission retains authority for issuing CDPs in Santa Monica.

In December 2023, the Commission considered a request from Ocean Avenue Partners for a CDP for the Ocean Avenue Mixed-Use Development Project (proposed project) in Santa Monica. The proposed project included a 120-room hotel, a 100-unit residential development, a museum, a public observation deck, 381 subterranean parking spaces, and new retail and restaurant uses. The proposed project would have been inconsistent with Santa Monica’s certified land use plan, so the city also submitted a project-specific amendment to the development standards in the land use plan for the Commission’s review and certification at the December meeting. In the staff report, Commission staff recommended the Commission reject Santa Monica’s proposed amendment to the land use plan, but vote to certify the amendment if the city adopted two modifications:

• To allow for specified flexibility should low-cost overnight accommodations be proposed or required.
• To add a footnote to a map in the land use plan to reflect the new development standards proposed.

Prior to the December meeting, the city pushed back on the modifications suggested in the staff report, requesting the elimination of both. In an addendum to the staff report for the December meeting, Commission staff responded to the city’s stated concerns by amending the first suggested modification and retaining the second suggested modification, which staff interpreted as a conforming change to a referenced map in line with the city’s proposed amendment. According to the author, there were concerns that if the suggested modifications went back to the Santa Monica city council, which included new members who had not voted on the original project proposal, the city council might not adopt the modifications and might reconsider the whole project. Further, there were concerns that the developer might walk away, as well. To avoid these outcomes, the Commission voted to certify the land use plan amendment as originally proposed by the city, leaving the identified issues unaddressed.

Existing law:

1. Establishes the California Coastal Act of 1976 (Coastal Act), which provides for the planning and regulation of development within the coastal zone. Public Resources Code (PRC) §§30000 et seq.
2. Establishes the Commission and vests the Commission with primary responsibility for implementation of the Coastal Act. PRC §30330.
3. Generally requires each local government lying within the coastal zone to prepare a local coastal program for that portion of the coastal zone within its jurisdiction. PRC §30500.
4. Provides that a local coastal program is composed of (1) a land use plan, which must be submitted to the Commission for certification, and (2) zoning ordinances, zoning district maps, and any other actions required by the Coastal Act, which must be submitted to the Commission for approval. The latter is known as an implementation plan. PRC §30512 and PRC §30513, respectively.
5. Requires the Commission, if it determines not to certify a submitted land use plan, to provide a written explanation for the determination and allows the Commission to suggest modifications, which, if adopted by the local government, would cause the land use plan to be deemed certified, as specified. PRC §30512.
6. Requires the Commission, if it rejects the submitted zoning ordinances, zoning district maps, or any other implementing actions, to provide written notice of the rejection and authorizes the Commission to suggest modifications to these items, which, if adopted by the local government, would cause these items to be deemed approved, as specified. PRC §30513.

PROPOSED LAW

This bill would authorize a local government to act through ministerial approval by its planning director or equivalent position for the purposes of adopting modifications suggested by the Commission to proposed land use plans or implementation plans in order to secure the Commission’s automatic certification or approval of these items.

ARGUMENTS IN SUPPORT

According to the author, “The California Coastal Commission seeks to set a responsible balance between coastal protection and coastal development. Because of their oversight, development planning and approval in the coastal zone can be a nuanced and often time-consuming process. While it is important to be deliberate when considering potential coastal development given our state’s renowned and unique coastline, there are times in which the approval process can become unnecessarily lengthy, particularly when it comes to the sign off of minor changes to a plan that, while non-significant, still require additional full voting approval from several bodies.

To alleviate some of the time consumption caused by unnecessary back-and-forth, SB 1234 seeks to allow a local government to accept minor or conforming changes as part of a development plan through ministerial approval and without the requirement of a vote of the full elected body or further certification thereafter by the Coastal Commission. Through this, significant time can be saved in the approval process over non-controversial issues, saving costs and reducing the amount of resources that must be expended by local governments and Coastal Commission.”

ARGUMENTS IN OPPOSITION

None received.

COMMENTS

Dual referral. This bill is referred to this Committee and the Senate Local Government Committee. Elements of the bill under the latter Committee’s jurisdiction will be discussed before that Committee and are included here for completeness and context only.

This bill is a work in progress. According to the author, this bill targets modifications suggested by the Commission that are minor, conforming, not significant, and/or noncontroversial for ministerial approval by a local government’s planning director. However, the current version of the bill does not impose any limitations on the type or scope of modifications that the Commission could suggest. It is worth noting that while many modifications proposed by the Commission have been minor and conforming, the Commission can and has proposed significant changes in the past. The example noted in the Background includes both a significant modification and a conforming modification.

A substantial modification suggested by the Commission would, by definition, go beyond what the city council or board of supervisors had originally approved in the proposed land use or implementation plan during a noticed public hearing of that body. Authorizing the city or county’s planning director to adopt such changes through a ministerial process would infringe on the city or county’s legislative authority and curtail the public’s opportunity to offer public comment on the matter. It is worth noting that the public would still have an opportunity to weigh in on the issue during the Commission’s public hearing.

One solution to this issue is to limit the planning director’s authority to nonmaterial or de minimis changes suggested by the Commission, which staff understands is the author’s intent. The challenge, however, is defining what qualifies as a de minimis change. Further, there are concerns that, however defined, there might still be ambiguity, potentially opening the local government up to a legal challenge or preventing the local government from acting through the bill’s authority out of concern for potential legal challenges. Also, there may be other ways to achieve the author’s general intent to streamline the process without granting the planning director new authority.

Ultimately, however, this issue relates to how a local government could respond to an action of the Commission. While this Committee has jurisdiction over the Commission, the Local Government Committee has jurisdiction over local governments and will consider this issue further during its hearing. This Committee, however, reserves the right to pull the bill back for review if any amendments adopted in the Senate Local Government Committee impact the Coastal Commission’s authority.

Related legislation.

SB 689 (Blakespear, 2023) would require that any amendment to an LCP to develop a dedicated bike lane, as specified, be considered a de minimis change by the Coastal Commission executive director, as specified. This bill is pending referral in the Assembly.

SUPPORT

YIMBY Action

OPPOSITION

None Received

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