Loading...
HomeMy Public PortalAbout14-030RESOLUTION NO. 14-030 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARSON, CALIFORNIA, SUPPORTING A PROPOSAL BY LOS ANGELES COUNTY SUPERVISOR GLORIA MOLINA TO CREATE A COUNTY "TOXICS THREAT STRIKE TEAM" WHEREAS, on March 11, 2014, Los Angeles County Supervisor Gloria Molina introduced a motion proposing that the County convene a "County Toxic Threat Strike Team;" and, ; and, WHEREAS, Super -visor Molina's motion read, inter alia, as follows: 1. Direct the Department of Public Health (DPH) to convene a County Toxic Threat Strike Team, comprised of County agencies, to target facilities that release toxic pollutants in highly burdened communities and have been determined to endanger the public health. The Core Group of the Strike Team will be comprised of the Department of Public Health, County Counsel, District Attorney, Department of Public Works and the Fire Department. 2. The Strike Team will have the authority to engage and collaborate with State agencies and other local jurisdictions as needed, and is directed to make full use of the combined authorities of County, local and State regulatory agencies as appropriate, in afocused effort to gain leverage towards a solution. As an initial assignment, the Strike Team is directed to take the following actions. - a. Identify a list of the ten most highly burdened communities in the County using the cumulative risk -ranking method established by the State Of ce 'fi of Environmental Health Hazard Assessment (OEHHA). b. Request ftom State and local regulatory agencies a listing of facilities within the designated highly burdened communities which are located in close proximity, to residents and believed by the agency to potentially place such residents at significant risk c. Request State and local regulatory agencies to inform the County of other suchfacilities, as they become known. 3. Direct county Counsel, in consultation with the DPH, to negotiate with relevant State Agencies the granting of State authority to the County under specified circumstances, where a determination has been made by the County Health Officer that a facility presents a substantial endangerment to the health of the public, and further, that it is in the best interests of the County and the public that the County assume leadership in mitigating the substantial endangerment. 4. Direct the Department of Public Health and County Counsel to provide to the Board a written report on the progress in 90 days. [MORE] RESOLUTION NO. 14-030 PAGE 2 OF 3 WHEREAS, despite the actions taken by the State Department of Toxic Substance Control ("DTSC") and the South Coast Air Quality Management District ("Air District") and a multitude of concerns being raised by various stakeholders; and, WHEREAS, Supervisor Molina argues that a County Toxic Threat Strike Team is necessary to protect those living near and around the toxic and contaminated sites, as the legal actions brought by others is not likely to bring timely relief, and, WHEREAS, Supervisor Molina argues that: Although State and local environmental regulators may have strong legal authority, due to poor coordination between the agencies, these authorities are rarely leveraged to achieve a complete and rapid solution to toxic pollution in our communities. Most importantly, the lack of State regulatory coordination and communication limits the County's ability to ensure that the course of action selected by, State regulators protects the health of our local residents. :1 and, WHEREAS, Supervisor Molina argues that the Strike Team approach will leverage, prioritize and coordinate existing expertise and success by County departments, such as the Department of Public Health, the District Attorney and the Fire Department; and, WHEREAS, as of the 2000 General Plan Updated, there were 324 businesses in the Citv of Carson that handle hazardous materials and have a business plan on file or pending with the County of Los Angeles Fire Department and of those 43 handled acutely or highly hazardous materials; and, WHEREAS, the residents of Carson are subject to the very concerns Supervisor Molina wishes to address, namely the potentially toxic pollution from a number of environmental sources outside of the City's control, including, but not limited to, the diesel fumes from distribution of goods from the Ports of Los Angeles and Long Beach; and, WHEREAS, the City of Carson supports the efforts of Supervisor Molina to protect the residents of the County of Los Angeles, including the City of Carson, from toxic polluters. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Carson, California, supports the Motion by Supervisor Molina to convene a County Toxic Threat Strike Team and requests that all members of the Board of Supervisors approve and pass the same. BE IT FURTHER RESOLVED that the City Council directs that copies of this resolution be provided to all members of the Los Angeles County Board of Supervisors. [MORE] RESOLUTION NO. 14-030 PAGE 3 OF 3 PASSED, APPROVED and ADOPTED this I 91h day of March, 2014. Mayor Jim Dear ATTEST: City Clerk APPROVED AS TO FORM: City Attorney STATE OF CALIFORNIA COUNTY OF LOS ANGELES ss. CITY OF CARSON 1, Donesia L. Gause, City Clerk of the City of Carson, California, do hereby certify that the whole number of members of the City Council is five. that the foregoing resolution, being Resolution No. 14-030 was duly and regularly adopted by said Council at a regular meeting duly and regularly held on the 19th of March, 2014, and that the same was passed and adopted by the following vote: AYES: COUNCIL MEMBERS: Mayor Dear, Santarina, Gipson, Davis -Holmes and Robles NOES: COUNCIL MEMBERS: None ABSTAIN: COUNCIL MEMBERS: None ABSENT: COUNCIL MEMBERS: None City Clerk Donesia L. Gause, CMC City of Carson Report to Mayor and City Council March 18, 2014 New Business Discussion SUBJECT: CONSIDER ADOPTING RESOLUTION NO 14-030 AND DIRECTING STAFF TO STUDY THE FEASIBILITY OF ESTABLISHING A "CARSON TOXICS THREAT STRIKE TEAM" AND TO REPORT BACK TO THE CITY COUNCIL REGARDING THESAME /V-4�-).v " Submitted by WVam. W. Wynder City Attorney Aacal i A Al Qpr gvedoy Jac�uefyn- Acosta Ac City Manager SUMMARY This item is on the agenda at the request of Councilmember Robles with the concurrence of Mayor Dear. Presented for consideration is a resolution supporting the efforts of Supervisor Gloria Molina to establish a Los Angeles County Toxics Threat Strike Team and directing staff to study the feasibility of establishing the same in Carson and to report back with findings and a recommendation within ninety (90) days. 11. RECOMMENDATION CONSIDER and PROVIDE direction. Ill. ALTERNATIVES 1. WAIVE further reading and ADOPT Resolution No. 14-030 "A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARSON, CALIFORNIA, SUPPORTING A PROPOSAL BY LOS ANGELES COUNTY SUPERVISOR GLORIA MOLINA TO CREATE A COUNTY "TOXICS THREAT STRIKE TEAM;" and 2. DIRECT City Staff to study the feasibility of creating a Carson Toxics Threat Strike Team and REPORT BACK to the City Council regarding the same in ninety (90) days. 3. Take no action on this item and receive and file this report. 4. Take such other action as the City Council deems appropriate consistent with the requirements of law. IV. BACKGROUND At the Los Angeles County Board of Supervisors meeting of March 11, 2014, Supervisor Gloria Molina made the following motion: City of Carson Report to Mayor and City Council March 18, 2014 target facilities that release toxic pollutants in highly burdened communities and have been determined to endanger the public health. The Core Group of the Strike Team will be comprised of the Department of Public Health, County Counsel, District Attorney, Department of Public Works and the Fire Department. 2. The Strike Team will have the authority to engage and collaborate with State agencies and other local jurisdictions as needed, and is directed to make full use of the combined authorities of County, local and State regulatory agencies as appropriate, in a focused effort to gain leverage towards a solution. As an initial assignment, the Strike Team is directed to take the following actions: a., Identify recommended actions to achieve closure of the Exide facility until DTSC makes a final determination regarding Exide's permits. b. Identify a list of the ten most highly burdened communities in the County using the cumulative risk -ranking method established by the State Office of Environmental Health Hazard Assessment (OEHHA). C. Request from State and local regulatory agencies a listing of facilities within the designated highly burdened communities which are located in close proximity to residents and believed by the agency to potentially place such residents at significant risk. d. Request State and local regulatory agencies to inform the County of other suchfacilities, as they become known. 3. Direct County Counsel, in consultation with the DPH, to negotiate with relevant State Agencies the granting of State authority to the County under specified circumstances, where a determination has been made by the County Health Officer that a facility presents a substantial endangerment to the health of the public, andfurther, that it is in the best interests of the County and the public that the County assume leadership in mitigating the substantial endangerment. 4. Direct the De artment of Public Health and County Counsel p to provide to the Board a written report on the progress in 90 days. As can be seen, Supervisor Molina's proposed motion is, in large part, an administrative directive by the Board of Supervisors for various County City of Carson Report to Mayor and City Council March 18, 2014 Departments to form a team and leverage current expertise and authorities. The only portion of her motion that proposes to expand current County authority is under paragraph 3, where it directs the County Counsel to "negotiate with relevant State Agencies the granting of State authority to the County.... Councilmember Robles urges the City Council to endorse and support the Molina motion. He also requested the Office of the City Attorney to consider whether there are any legal impediments to the City of Carson creating its own community Strike Team. What follows is our analysis of the legal feasibility of doing so. Based on our research to date, many of the proposed activities of the proposed Molina Strike Team could be performed by Carson City staff, including identifying if there are any areas of the City which are "highly burdened" under the OEHHA risk -ranking method and identifying facilities that are creating a 64significant risk" to nearby residents in those areas. Additionally, the City could appoint a team to coordinate with the State, County and other local agencies to address any facilities in the City that are creating a "significant risk." To answer the question whether the City could perfon-n the enforcement type activities that are proposed to be performed by the County Strike Team we have considered what enforcement authority the City has to address operations that create toxic hazards within the City's jurisdiction under State law and the City's own organic and police powers. A. State Delegation of Enforcement Authority to Cities There are more than a half dozen statutory schemes that regulate the threat of toxic pollutions in the envirom-nent, including the Porter -Cologne Water Quality Control Act (Wat. Code §§ 13000-16104); the California Clean Air Act (Health & Saf. Code §§ 39000, et seq.), the Carpenter -Presley -Tanner Hazardous Substance Account Act (Health & Saf. Code §§ 25350, et seq.) and the Hazardous Waste Control Act (Health & Saf. Code §§ 25100-25195). While we have not yet reviewed all applicable state laws that may be used to take enforcement action(s) against an operator releasing toxic pollution into the environment, we considered the case of the Exide Technologies plant, which was the impetus for Supervisor Molina's motion to create a County Toxics Threat Strike Team. With the Exide Plant, the State's enforcement authority comes from two statutory schemes, (1) the California Clean Air Act and (2) the Hazardous City of Carson Report to Mayor and City Council March 18, 2014 Waste Control Act.' Both of these sets of laws were reviewed by our office for the ability of the City to be delegated enforcement authority. 1. South Coast Air Quality Management District Authority Rules and regulations adopted by air pollution control districts have the force of law and may be enforced through the criminal or civil penalties by the State Board or South Coast Air Quality Management District, as well as through injunctions, or administrative abatement orders. (Health & Saf. Code §§ 41513, 42400-42410, 42450-42454.) The authority to criminally, civilly and administratively enforce the South Coast Air Quality Management District rules and regulations is expressly given to the Attorney General, the South Coast Air Quality Management Board and the Air District. (See, e.g., 42400-42410.) If a city were to provide assistance in an investigation, data collection, and prosecution that is in coordination with a prosecution by the state board or South Coast Air Quality Management District, the local agency shall be reimbursed out of any penalty collected. (Health & Saf. Code § 42405.5.) Otherwise, there is no express authority in the statutory scheme for the South Coast Air Quality Management District to give its enforcement authority to a local agency, including either a city or a county. (See generally, Health & Saf. Code §§ 42400-42410, 42450-42454.) 2. DTSC Authority The Hazardous Waste Control Act (HWCA) directs the DTSC to adopt standards and regulations governing the management of hazardous wastes in order to protect against hazards to the public health. (Health & S af. Code § 2 5 15 1 0(a).) Generally, the HWCA standards and violations can be enforced by the DTSC or by "any local health officer or any local public officer designated by the director." (Health & Saf Code 25180(a)(1).) Such enforcement authority may include, but is not limited to, issuing orders, administrative penalties, referring violations to prosecutors for civil or criminal prosecution, settling cases and the adoption of enforcement policies and standards. (Health & Saf. Code 25180(d).) 1 h!tps://dtsc.ca.pov/HazardousWaste/Projects/gpload/Exide Exhibits.pdf (Order for Temporary Suspension, citing to Health & Saf Code § 25186.1 and 25186.2); https://www.aqmd.jZov/prdas/AB2588/Exide/Exide.htmi (SCAQMD webpage on Exide enforcement history). City of Carson Report to Mayor and City Council March 18, 2014 Pursuant to state regulations, the DTSC may designate a local public officer (which could include a city) to enforce the standards and regulations in the Hazardous Waste Control Act, if they finds that: (1) The prospective designee has appropriate Jurisdiction and competency, facilities and personnel to perform the functions specified by the Department; and (2) Other activities of prospective designee designee's ability to effectively. (22 C.C.R. § 66272.10.) the governmental entity which the represents will not compromise the enforce those regulations equitably and The DTSC may designate a local public officer to enforce all of the DTSC's regulations if they find: (1) the prospective designee can meet the requirements cited in above; (2) the prospective designee has countywide jurisdiction; (3) the governmental entity which the prospective designee represents does not operate a hazardous waste facility; (4) the prospective designee's personnel are qualified to the satisfaction of the Department,* (5) the prospective designee's laboratory support is adequate to determine whether wastes contain hazardous materials; (6) the prospective designee's personnel will be able to provide adequate reviews, inspections, and monitoring of hazardous waste and enforcement of the requirements of this division. (22 C.C.R. § 66272.10.) Civil Action brought under the HWCA, at the request of the authorized enforcing agency, may be brought by the city attorney, the county attorney, the district attorney or the Attorney General. (Health & Saf. Code § 25182.) City of Carson Report to Mayor and City Council March 18, 2014 Certain violations of the Hazardous Waste Control Act may be criminally prosecuted by a city attorney at the request of the authorized enforcement agency (whether it is the DTSC, or designated local official). (Health & Saf. Code § 25191.2.) These specifically include the following types of actions: (1) Illegal dumping of hazardous waste at an unpermitted facilitv. (Health & Saf. Code § 25189.5.) (2) Knowingly or recklessly treating, handling, transporting, disposing or storing hazardous waste in a manner that causes an unreasonable risk to the public. Health & Saf. Code § 25189.6.) (3) Burning hazardous waste at an unpermitted facility. (Health & Saf. Code § 25189.7.) (4) A misdemeanor action of any violation of the HWCA. (Health & Saf. Code 25190.) (5) Makes false statements, destroys records, or withholds evidence, and other specific violations related to reporting requirements of the HWCA. (Health & Saf. Code § 2519 1.) Based on research, it appears there is a legal mechanism and authority by which the City could become the enforcing agency of the HWCA and be able to bring criminal and civil actions. However, it is not clear that the DTSC would find the City of Carson eligible based on the regulatory criteria. It may be useful for City staff to consult with the DTSC to find out if any other cities have been appointed as the enforcing agency and if so, what the circumstances were. B. City's Police Power Authorities to Abate Nuisances Notwithstanding the City's ability to obtain authority to enforce the State pollution laws, the City may pursue its own ordinances and general public nuisance abatement authority. Generally, a city has the authority to abate public nuisance, even where there are state pollution enforcement remedies or statutory schemes available. (See, e.g., City of Lodi v. Randtron (2004) 118 Cal.App.4th 337 (recognizing that, the State has authorized cities to adopt ordinances declaring what constitutes a public nuisance and for its abatement, including the regulation of materials that may pollute water quality); see also Water Code § 13002 (providing that no order of a RWQCB is a limitation on a city to abate nuisances); Gov't Code § 38771 (providing that a city may by ordinance declare what is a public nuisance); and Gov't Code § 65850 (providing that cities may by ordinance regulate the use of buildings and land as between industries, businesses, 2 City of Carson Report to Mayor and City Council March 18, 2014 residences, open space, recreation, enjoyment of scenic beauty, use of natural resources and other purposes).) However, some statutory schemes do not leave room for the City to do adopt its own enforcement scheme, where it's particular provisions conflict with or overlap the states enforcement scheme. In City of Lodi v. Randtron (2004) 118 Cal.AppAth 337, the court found that the City of Lodi was preempted from adopting its own ordinance and issuing a clean-up order against the defendant to clean up hazardous waste because the polluted property was under the jurisdiction of the Department of Toxic Substance Control ("DTSC"). The court found that State law does recognize the ability of cities to regulate and abate public nuisances caused by ground contamination that threatens ground water. (See id. at 352.) However, in the City of Lodi case, the site at issue was under the jurisdiction of the DTSC and was on the State's list of clean-up sites ("Cortese List") under the Carpenter -Tanner Hazardous Substance Account Act (44HSAA"). Under that law, it expressly provides that the DTSC has exclusive jurisdiction over the clean-up of sites listed on the Cortese List. Under the HSAA, the city may initiate abatement or clean up, but the city must get approval of the DTSC for its clean-up plan. (See id. at 353-54.) Based upon this, the court found that the city was preempted from adopting an ordinance and issuing a clean-up order. (See id. at 354.) By contrast, other statutory schemes, such as the Porter -Cologne Act, expressly leave open City regulation and enforcement. As noted by the City of Lodi court, the Porter -Cologne Act expressly provides the following: No provision of [the Porter -Cologne Act] or any ruling of the state board or a regional board is a limitation: (a) On the power of a city ... to adopt and enforce additional regulations, not in conflict therewith, imposing further conditions, restrictions, or limitations with respect to the disposal of waste or any other activity which might degrade the quality of the waters of the state. (b) On the power of any city ... to declare, prohibit, and abate nuisances. (Cal. Water Code § 13002.) Additionally, state law supports finding that cities have authority to adopt stricter air quality standards than the district. (See 87 Ops. Cal. Atty. Gen. 96 (2004); see City of Carson Report to Mayor and City Council March 18, 2014 also Health & Saf. Code §§ 39002 and 41508 (expressly authorizing cities to adopt and enforce stricter standards than those adopted by the State) but see CEB, The California Municipal Law Handbook (2011 ed.) § 11.214) (stating that, most cities and counties have elected not to exercise their authority to adopt air pollution control standards because of the technical nature of emission controls.) In 2004, the California Attorney General was asked to determine if a city could adopt an ordinance limiting vehicle idling for the purpose of reducing air emissions when the Air District already had similar rules. The Attorney General found that the city was not preempted from adopting vehicle idling limits so long as they were more restrictive than an Air District. (87 *Ops. Cal. Atty. Gen. 96 (2004); see also ) If the City adopted a standard that was the same or less than the Air District it would be preempted by the Air District standard and the State air pollution laws. However, a standard that was more restrictive would not be preempted because the State had specifically provided that nothing prevented a city from adopting an ordinance that was otherwise allowed at law. The Attorney General noted that "[alir pollution has long been regarded as a type of nuisance." (Id. citing to Dauberman v. Grant(1926) 198 Cal. 586, 590 [soot and smoke may constitute a nuisance]-, Sullivan v. Royer (1887) 72 Cal. 248, 249.). And all cities have authority under the California Constitution to abate a public nuisance. (Id.) Additionally, the courts have held that the Hazardous Waste Control Act and its implementing regulations do not clearly preempt enforcement of applicable local land use regulations provided they do not interfere with the State's statutory scheme. (IT Corp. v. Solano County Board of Supervisors (1991) 1 CalAth 81, 93.) Based on the above, for any given operation or use, the City would need to determine if there was a particular statute and/or enforcement order issued by a State agency to see if the City would be preempted from pursuing an abatement. V. FISCAL IMPACT Adoption of this resolution will have no fiscal impact. However, depending on the report to be provided to the City Council implementation of a Carson Toxics Threat Strike Team may have some fiscal impact which cannot be determined as of the preparation of this staff report. V1. EXHIBITS, Resolution No. 14-030. (pgs. 10-12) City of Carson Report to Mayor and City Council March 18, 2014 Prepared by: William -W. Wynder, City Attomey 70 R-09-05-2013 Reviewed bv: City Clerk City Treasurer Administrative Services Public Works Community Development Community Services Action taken by City Council Date Action I RESOLUTION NO. 14-030 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARSON, CALIFORNIA, SUPPORTING A PROPOSAL BY LOS ANGELES COUNTY SUPERVISOR GLORIA MOLINA TO CREATE A COUNTY "TOXICS THREAT STRIKE TEAM" WHEREAS, on March 11, 2014,, Los Angeles County Supervisor Gloria Mohr— introduced a motion proposing that the County convene a "County Toxic Threat Strike Teani�-' and, WHEREAS, Supervisor Molina's motion read, inter alia, as follows: 1. Direct the Department of Public Health (DPH) to convene a County Toxic Threat Strike Team, comprised of County, agencies, to target facilities that release toxic pollutants in highly burdened communities and have been determined to endanger the public health. The Core Group of the Strike Team will be comprised of the Department of Public Health, County Counsel, District Attorney, Department of Public Works and the Fire Department. 2. The Strike Team will have the authority to engage and collaborate with State agencies and other local jurisdictions as needed, and is directed to make full use of the combined authorities of County,, local and State regulatory agencies as appropriate, in a focused effort to gain leverage towards a solution. As an initial assignment, the Strike Team is directed to take the following actions: a. Identify a list of the ten most highly burdened communities in the County using the cumulative risk -ranking method established by the State Office of Environmental Health Hazard Assessment (OEHHA). b. Request-ftom State and local regulatory agencies a listing offacilities within the designated highly burdened communities which are located in close proximily to residents and believed by the agency to potentially place such residents at significant risk. c. Request State and local regulatory agencies to inform the County of other suchfacilities, as they become known. .3. Direct county Counsel, in consultation with the DPH to negotiate with relevant State Agencies the granting of State authority to the County under specified circumstances, where a determination has been made by the County Health Officer that a facility presents a substantial endangerment to the health of the public, andfurther, that it is in the best interests of the County and the public that the CouVty assume leadership in mitigating the substantial endangerment. 4. Direct the Department of Public Health and County Counsel to provide to the Board a written report on the progress in 90 days. EXHIBIT NO. 0 1 RESOLUTION NO. 14-030 PAGE 2 OL3 -, and, WHEREAS, despite the actions taken by the State Department of Toxic Substancc- Control ( ' "DTSC") and the South Coast Air Quality Management District ("Air District") and a multitude of concerns being raised by various stakeholders; and, WHEREAS, Supervisor Molina argues that a County Toxic Threat Strike Team is necessary to protect those living near and around the toxic and contaminated sites, as the legal actions brought by others is not likely to bring timely relief, and,, WHEREAS, Supervisor Molina argues that: Although State and local environmental regulators ma - v have strong legal authority, due to poor coordination between the agencies, these authorities are rarely leveraged to achieve a complete and rapid solution to toxic pollution in our communities. Most importantly, the lack of State regulatory coordination and communication limits the County's ability to ensure that the course of action selected by State regulators protects the health of our local residents. and, WHEREAS, Supervisor Molina argues that the Strike Team approach will leverage, prioritize and coordinate existing expertise and success by County departments, such as the Department of Public Health, the District Attorney and the Fire Department; and, WHEREAS, as of the 2000 General Plan Updated, there were 324 businesses in the City of Carson that handle hazardous materials and have a business plan on file or pending with the County of Los Angeles Fire Department and of those 43 handled acutely or highly hazardous materials; and, WHEREAS, the residents of Carson are subject to the very concerns Supervisor Molina wishes to address, namely the potentially toxic pollution from a number of environmental sources outside of the City's control, including, but not limited to, the diesel fumes from distribution of goods from the Ports of Los Angeles and Long Beach; and, WHEREAS, the City of Carson supports the efforts of Supervisor Molina to protect the residents of the County of Los Angeles, including the City of Carson, from toxic polluters. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Carson, California, supports the Motion by Supervisor Molina to convene a County Toxic Threat Strike Team and requests that all members of the Board of Super -visors approve and pass the same. RESOLUTION NO. 14-030 PAGE 3 OF 3 BE IT FURTHER RESOLVED that the City Council directs that copies of this resolution be provided to all members of the Los Angeles County Board of Supervisors. PASSED, APPROVED and ADOPTED this day of March, 2014. Mayor Jim Dear ATTEST: City Clerk APPROVED AS TO FORM: City Attorney