HB20-1265 Increase Public Protection Air Toxics Emissions (Gonzales (D), Moreno (D)) [Benavidez (D), A. Valdez (D)]

AMENDED: Very Significant (category change)

SIGNED INTO LAW

Appropriation: None
Fiscal Impact: Not yet released

Goal: More heavily regulate certain dangerous air pollutants and the facilities that emit them into our air, including heavier monitoring requirements, health-based thresholds that cannot be exceeded, more power for the state to help disproportionately impacted communities, and increase requirements around incident reporting.

Description:

Requires the state to regulate more heavily polluters to provide more communication about incidents concerning certain dangerous air pollution as toxic: hydrogen cyanide, hydrogen fluoride, hydrogen sulfide, and benzene. Any facility that reported amounts over the minimum allowed by the bill for any of these gases becomes a covered facility under the bill. These facilities are required to have fenceline monitoring and near-source monitoring of these gases and a plan submitted to the state that identifies its equipment locations, procedures for dealing with maintenance and equipment failures that must include backup plans, methods for disseminating data to the public, governments, and schools in real time, and other air pollutants the monitors can measure. There must be a least two public hearings on the plan and the state must approve it. Plans must be updated and resubmitted every five years and state may require a more frequent update if it believes there has been a substantial change in the facility’s operations or emissions. State must create rules for this monitoring by end of year and plans must be in place by November 2021. Data collection must begin by 2022. State can add new gases to this toxic category by rule and must re-evaluate both the gases and the qualifying emissions levels every five years. conduct outreach to representatives of the community surrounding the facility to discuss communications regarding emissions releases above allowable numbers. This must include methods by which the facility can dissemenate information to the community and how the community can contact the facility, including provisions for communicating in Spanish. The facility must use an emergency notification service to communicate with and make data available to the community and it must pay for this itself. Service must be available within six months.

If there is not existing health-based emissions limit at the state or federal level for a toxic gas the state must create health-based emissions limits for these facilities to follow by rule. It must then re-evaluate these limits every five years. State is prohibited from revising a health-based emission limit unless the revision is more protective of public health and cannot solely consider cost or technical feasibility in setting a limit. Health-based limitations must contain a numerical limit, require maximum degree of reduction in emissions, provide an ample margin of safety to protect public health, consider cumulative effects from multiple sources of pollution, consider available monitoring data from covered facilities, consider both cancer and non-cancer health risks, and consider effects on disproportionately impacted communities and employees at facilities. The acceptable cancer risk is set at one extra cancer case per 100,000 people. There can be a phase-in period for facilities, but it must be prompt.

When considering air pollution permits for covered facilities that are in or near disproportionately impacted communities, the state must consider the cumulative impact of emissions (a report of this must be included by the facility in its application) and can only approve a permit if there is no net increase in the adverse cumulative impacts of hazardous air pollution in each disproportionately impacted community affected.

If the state finds that existing emissions exceed the health-based limits, then it must require a decrease or cessation in the applicable emissions from the covered facility. This must be done within 90 days. The state may also proceed with existing cease-and-desist judicial procedures in existing law dealing with air pollution. The state may also set target emission reductions and deadlines for achieving them in disproportionately impacted communities.

State must set up a real-time community alert system for incidents, with the information required in them to be set by rule. Alerts must be in the two most prevalent language spoken in the community (as determined by the Census) and available through opt-out text messages and reverse 911 calls. Alerts must go to local emergency planning and response organizations, area health agencies, clinics, hospitals, local governments, and school administrators. When an incident occurs the facility must immediately call the emergency number setup to report incidents and disseminate the required information to the required entities. Facilities must coordinate with local first responders at least annually, including providing its emergency action plan and its emergency response plan (if it has one).

Additional Information:

Arguments For:

We had a release from a Suncor oil refinery last year that resulted in ash falling on cars in the vicinity. Suncor claimed all was well and told people to wash their hands and offered free car washes. Schools sheltered in place and all Suncor could do was refuse to comment on exactly what happened but say there was an investigation underway. While the truncated nature of this session means we cannot do more for now, we need at least better communication when incidents like this occur. This facility emits more than 800,000 tons of greenhouse gases and other pollutants a year. It broke its permitted level of 12.8 tons of hydrogen cyanide (the gas used in Nazi concentration camps for executions) and didn’t think it was necessary to alert the public (to be fair, neither did the state) and want to actually raise its permitted level. Even low levels of hydrogen cyanide can cause difficulty breathing, chest pain, vomiting, headaches, and thyroid gland enlargement. Benzene and is a known cancer causing gas. Hydrogen sulfide can be tolerated by the body at lower levels but even moderately breaching those levels can cause eye irritation, a sore throat and cough, nausea, shortness of breath, and fluid in the lungs. Chronic low-level exposure has been linked to fatigue, loss of appetite, headaches, irritability, poor memory, and dizziness. High-level exposure is extremely dangerous and has a high probability of death. Hydrogen fluoride immediately converts to hydrofluoric acid upon contact with the body. This is highly corrosive and toxic and can cause blindness by rapid destruction of the corneas in addition to severe burns. High levels can cause death. Suncor has a history of releasing large amounts of just about all of these with just about the same “everything’s fine, nothing to see here reaction” each time. The community around this refinery have suffered disproportionately from asthma, cancer, and heart-lung aliments for decades, in part of course because this Suncor refinery isn’t the only heavy polluter in the area. Our current approach of just letting companies figure it out when there are no federal regulations is a clear failure. Our air quality does not meet federal health standards and there is no sign of it getting better. This bill is not about Suncor alone (although it is a major catalyst for it) but about any facility that is emitting these extremely dangerous gases into the air. We actually don’t know the long-term effects of exposure to this deadly cocktail of gases (as opposed to the individualized effects of each one, which we do know) but it would seem well within the realm of probability that it isn’t good. It is long past time to crack down on these facilities. The current concept of fines and penalties (Suncor has faced at least seven in the past six years) is not working and our community is suffering. We cannot wait for the EPA to step in and regulate this for us.

Arguments Against:

First, the refining industry (which is the clear target of this bill) is one of the more regulated industries in the country. Note that incidents paraded in the arguments for section are all known because these things are heavily monitored. Of course no one can be perfect, but Suncor has poured $1.6 billion into upgrading this refinery in the past 14 years and continues to work with the state government anytime there is an issue (as do all other regulated refineries). State regulators themselves have noted that Suncor has generally been proactive in identifying issues and self-reporting any potential compliance problems. These facilities are important to our state economy in creating the energy that we all use, including gasoline. This bill will dramatically increase their operating costs in the best-case scenarios and in the worst-case, force shutdowns of plants. People work at those plants and they are key cog in our energy supply chain, so any closures could have ripple effects in the oil and gas industry. By its very nature oil refining is a dirty business, if we want to have gasoline we can afford to put into our cars we cannot simply waive away all oil refineries. If the EPA has not decided these gases need to be regulated to this degree (and remember that the Democrats controlled the agency for eight years), then we don’t need to jump in and do it ourselves.