by Celeste Drake, Duy Dang, and Pamela Meesri

For full report click here.

In 1993, California legislators passed SB 1082, creating the Certified Unified Program Agency (“CUPA”) system in order to simplify the process of regulating and managing hazardous materials and hazardous wastes. Rather than having numerous state and local agencies regulating a single business, SB 1082 consolidates the enforcement of several different environmental regulations under the administration of one local agency called a CUPA.

Since 1999, both the Legislative Analyst’s Office (“LAO”) and the California State Auditor (“CSA”) have evaluated the CUPA system, and both evaluations noted a lack of consistent enforcement by CUPAs. Both reports emphasized equity to regulated parties, but neither agency fully explored the causes of the enforcement inconsistencies they identified. This report will expand on the enforcement problems identified but with a focus on equity in environmental protection to California residents rather than equity to regulated businesses. The recommendations in this report are based on information drawn from statistical analysis, interviews, literature review, and attendance at the 2001 CUPA Forum Conference.

This report presents three important findings that will add depth to the current debate concerning the CUPA program. First, empirical analysis reveals significant differences in the performance of city based CUPAs and county based CUPAs. Second, local differences in fee structures have resulted in some CUPAs receiving inadequate funding. Third, previously unexamined statutory incentives exist that impact CUPA choices for instituting enforcement actions against violators. All of these findings relate to a “local control versus consistency dichotomy,” which results from the requirements of SB 1082. In enacting SB 1082, the legislature made a choice to devolve the responsibility for six environmental regulation programs to local agencies, away from direct state control.

Data analysis reveals that city based CUPAs out perform county based CUPAs in detecting businesses which are out of compliance with hazardous materials and hazardous waste regulations. This difference is likely a result of the structure of the CUPA system, which requires all counties to participate, but allows cities to participate at their option. In such a system, only cities with a strong interest in environmental regulation would be likely to opt in to the CUPA program.

Insufficient funds often limit CUPAs from implementing all six program elements adequately and may prevent aggressive enforcement against violators. Financial constraints cause many CUPAs to have inadequate staff to carry out the required number of inspections and evidence collection and documentation. This situation hampers the enforcement efforts of district attorneys in prosecuting violators. A related complaint is that staff lack the time to complete the required follow-up. Some program managers feel that it is not cost effective to pursue certain enforcement actions because it is too expensive to pursue a case to compliance. To address the financial constraints that affect CUPAs’ enforcement capabilities state legislators should consider the following three options: 1) maintain the status quo, 2) institute state mandated fee and performance levels, 3) institute statewide minimum fees and performance standards. The third option has the best chance to improve CUPA performance while maintaining some local control.

Once a CUPA determines that an establishment is out of compliance, the CUPA has variety of formal, informal, civil, criminal, and administrative enforcement options available to pursue the violator. If the state focuses solely on enforcement actions based on one or two state code provisions, it may not be aware of all the CUPAs’ enforcement activities. Thus, CUPAs

may appear to be more lax on enforcement than is really the case. CUPAs may appear weak in the enforcement arena due to lack of prosecutorial support, experience, adequate staff, or political will, as well as inadequate data collection. The state has several options: 1) maintain the status quo, 2) adjust the data collection system, 3) centralize prosecution and investigation, 4) embark on an education campaign for judges, prosecutors, and elected officials, 5) address the plethora of code sections under which the states allows localities to prosecute violators. Options two and five together will give Department of Toxic Substances Control (“DTSC”) more information to better identity and address future enforcement problems and will allow the state legislators to explicitly address problems created by the various incentives for prosecution. In weighing the recommendations that this report outlines, legislators should consider not only what trade-offs they will confront in modifying the CUPA system, but also what their real goals for environmental regulation are.