The Saga of SB 36

SierraScape August - September 2003
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by McNeer Dillon

The new Republican majority in both houses of the General Assembly tried strenuously to free businesses from environmental regulations and restrictions to the greatest extent possible. They sought to do this through enactment of new laws and budget cutting to disable regulatory agencies. The Department of Natural Resources was a target in focus.

SB 36 was a bill that became a nexus of this struggle. It began as a simple bill and became encumbered with numerous anti-environmental amendments. These caused Governor Holden to characterize it as the "Polluter Protection Act". It was fought over and finally set aside in conference owing to the threat of a filibuster ahead of the budget debate.

All these environmentally ruinous provisions will appear again in the next legislative session. They have been delayed in this session, but not terminated. Hence it is important that Sierra Club members understand what they are. We will combat most of them again. We will seek to elect persons who will vote against such issues.

Senator Klindt first proposed to require risk assessment and cost benefit analysis to be prepared before any environmental rules could be promulgated. This would belabor and delay environmental regulations, under the false premise that it is necessary to prevent their establishment through the flippant whimsy of regulators. DNR regulators already use science and consider carefully the purpose and effects of rules they establish. This provision would simply make it more difficult to control any environmental abuse.

Then SB 36 was amended to loosen restrictions upon sand and gravel miners. They were exempted from the need to obtain permits if they removed less than 5000 tons annually from streams. This doubled the previous tonnage limit.

Further amendments were added. SB 36 became so controversial that some were removed. By May 12, 2003, the following provisions had been added and later subtracted from the bill:

  1. Environmental self-audit privilege for businesses
  2. No stricter than federal regulations by DNR
  3. Relaxations of CAFO water pollution standards
  4. Redefinitions of water discharge language
  5. Deny 3rd party right of appeal
  6. Office of commissions support
  7. Placed burden of proof on regulators
  8. Hazardous waste fee (not bad)
  9. Landfill Tax
  10. Weights and measures

There was more cutting and adding, modifying and substituting of language in committees and floor discussions. It would bore anyone for me to recount all of the details. The bill assumed a final form. SB 36, as it was written when set aside in conference on 16 May provided the following:

  1. Environmental Rules:
    1. Rules prescribing environmental standards must cite a section of law it is based and the DNR must prepare a regulatory impact report in all cases.
    2. It is provided that regulations may be promulgated immediately without the impact report if the DNR Director believes public health and welfare are threatened, but he must justify these actions in writing and subsequently complete the impact report.
    3. The burden of proof shifts to the regulatory agency to prove that a rule is needed before it may be issued or enforced.
  2. The DNR may issue no rules stricter than those already existing in the state.
  3. Holders of permits issued by the DNR who fail to file required reports will not be in violation until the DNR attempts to notify person and the report is not filed within 30 days.
  4. Persons are prohibited from operating any regulated air containment Class A source without an operating permit.
  5. Solid waste processing facilities may not store solid waste longer than 48 hours on-site over any weekend other than state-observed holiday weekends, then allowing 72 hours.
  6. A local government may not provide garbage collection outside its boundaries.
  7. The waste tire fee is extended to January 1, 2009.
  8. The hazardous waste management fee is extended to January 1, 2010.
  9. Johnson County may hold an election to impose a landfill fee to benefit this county. The fee may not exceed $1.50 per ton and will be collected by the landfill operation.
  10. Sand and gravel miners are exempted from obtaining permits if they remove less than 5000 tons from streams annually.

Perhaps this will give members a better understanding of what we were combating in the SB 36 that we termed the "Environmental Destruction Act". We hope to gain more support when we take up the struggle again.