BILL ANALYSIS Ó
AB 1329
Page 1
Date of Hearing: April 30, 2013
ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS
Luis Alejo, Chair
AB 1329 (V. Manuel Perez) - As Amended: April 24, 2013
SUBJECT : Hazardous waste: environmental justice.
SUMMARY : Revises the requirement for the Department of Toxic
Substances Control (DTSC) to prepare and adopt a hazardous waste
management plan (plan) to reduce the prevalence and impacts of
hazardous waste facilities in low-income communities and
establishes a moratorium on the issuance of permits for
hazardous waste facilities that have failed to comply with a
corrective action order issued by DTSC until DTSC has developed
the plan. Specifically, this bill :
1)Makes legislative finds about the citing of hazardous waste
facilities near low income communities, including that it is
the intent of the Legislature to establish a moratorium on the
issuance of permits to operators of hazardous waste landfill
facilities or hazardous waste facilities that have failed to
comply with a corrective action order issued by DTSC until
DTSC has developed a plan to reduce the prevalence of
hazardous waste facilities in low-income communities.
2)Defines "significant noncomplying operation" as a facility, an
owner, or an operator that meets either of the following
conditions:
a) The facility, owner, or operator has been issued three
separate class I violations by DTSC within a five-year
period.
b) DTSC finds that the facility, owner, or operator is in
substantial deviation from the terms of a permit, order,
including an order for corrective action, settlement
document, corrective action, or other enforcement action
issued.
3)Defines "environmental justice" as the fair treatment of
people of all races, cultures, and incomes with respect to the
development, adoption, implementation, and enforcement of
environmental laws, regulations, and policies.
4)Revises the requirements for the preparation and adoption of a
hazardous waste management plan (plan) to focus on addressing
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matters of environmental justice in the management of the
state's hazardous waste.
5)Requires the plan to serve as a comprehensive and enforceable
planning document, instead of as a "useful informational
source" as is currently provided in statute, to ensure that
minority populations and low-income populations are not
disproportionately impacted by the adverse human health,
social, economic, and environmental effects of hazardous waste
management, including disposal.
6)Makes the following revisions regarding DTSC's requirements
relating to the plan:
a) Requires DTSC to publish the plan or the revised plan in
English and Spanish, instead of not specifying the
publication language; and,
b) Requires DTSC to conduct at least six, instead of two,
public hearings on the plan or revised plan and specifies
that one public hearing must be in each community that
hosts a hazardous waste facility.
7)Adds to those elements already required to be included in the
plan, an inventory of existing and planned hazardous waste
facilities that handle, treat, recycle, dispose, or otherwise
manage hazardous wastes produced in the state, including:
a) The racial and socioeconomic composition of populations
within one-half-mile, one-mile, and five-mile radius around
each existing or planned hazardous waste facility; and,
b) A description of each facility and a full and complete
summary of the facilities' compliance history, including,
but not limited to, the enforcement actions taken by the
department or any other state department or board that is
within the California Environmental Protection Agency
(CalEPA), and the penalties imposed pursuant to those
enforcement actions.
c) A description of the enforceable policies, programs,
incentives, requirements, prohibitions, or other measures
necessary to eliminate the disproportionate impact of
hazardous waste management, including disposal, on
low-income and minority populations, which may include
specific measures to reduce the amount of hazardous waste
generated within the state.
d) Additional amendments that focus the plan on enforceable
actions and environmental justice in the siting and
operation of hazardous waste facilities and the management
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of hazardous wastes.
8)Requires the director of DTSC to approve a plan and submit the
approved plan to the Assembly Committee on Environmental
Safety and Toxic Materials and the Assembly Committee on
Budget.
9)Prohibits DTSC from issuing a hazardous waste facilities
permit to the operator of a hazardous waste landfill facility
or the operator of a hazardous waste facility that DTSC finds
has not complied with an enforcement order. Sunsets the
permit moratorium on or after the date the director approves
the state hazardous waste management plan.
10)Adds a citizen suit provision that authorizes a person to
commence a civil action on that person's own behalf against a
person who is alleged to be in violation of the regulations
adopted pursuant to the plan.
11)Authorizes a person to commence a civil action on that
person's own behalf alleging a failure by DTSC to perform an
act or duty required under the plan, regulation or permitting
statute and that is not otherwise a discretionary act or duty.
12)Authorizes the superior court to have jurisdiction to enforce
a related regulation, or to order the DTSC to perform an act
or duty, and to apply any appropriate civil penalties.
13)Provides that in an action brought pursuant to the plan,
regulations or permitting, the inquiry shall extend to the
question of whether DTSC has proceeded without, or in excess
of, its jurisdiction, and whether there was any prejudicial
abuse of discretion.
14)Requires, upon the approval of the plan, DTSC to adopt
regulations to implement the plan to ensure that minority
populations and low-income populations are not
disproportionately impacted by the adverse health, social,
economic, and environmental effects of the hazardous waste.
15)Updates hazardous waste tracking requirements to include all
jurisdictions.
16)Adds California's jurisdiction and compacts entered into for
hazardous waste management facilities on Indian Country to the
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list of facilities exempted from the provisions prohibiting
transport and delivery of hazardous waste.
17)Requires DTSC to post specified information in Spanish,
revises existing website requirements to include searchable
lists and requires additional information to be included on
DTSC's website.
18)Includes in the authorization for DTSC to deny, suspend or
revoke permit activities resulting in the applicant or permit
holder meeting the definition of a significant noncomplying
operation.
19)Authorizes, rather than requires, DTSC to issue hazardous
waste facilities permits to facilities, as specified.
20)Prohibits DTSC from issuing a hazardous waste facilities
permit to a significant noncomplying operation.
21)Prohibits the owner or operator from applying to extend the
term of the permit, if the owner or operator of the hazardous
waste facility is a significant noncomplying operation.
22)Prohibits DTSC from granting interim status to any person to
operate a hazardous waste facility if the facility is
classified as a significant noncomplying operation.
EXISTING LAW :
1)Requires the Governor's Office of Planning and Research to be
the coordinating agency in state government for environmental
justice programs.
2)Requires the California Environmental Protection Agency (Cal
EPA) to develop a model environmental justice mission
statement for boards, departments, and offices within the Cal
EPA agency.
3)Requires, pursuant to the federal Resource Conservation and
Recovery Act (RCRA), any person who owns or operates a
facility where hazardous waste is treated, stored, or disposed
to have a RCRA hazardous waste permit issued by the U.S.
Environmental Protection Agency (US EPA).
4)Requires any person who stores, treats or disposes of
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hazardous waste as described in the Hazardous Waste Control
Law (Health and Safety Code, Division 20, Chapter 6.5)
toobtain a permit or a grant of authorization from DTSC.
5)Requires DTSC to establish standards and regulations for the
management of hazardous wastes to protect against the hazards
to public health, domestic livestock, wildlife and the
environment.
6)Requires DTSC to regulate onsite hazardous waste treatment
operations under the "tiered permit" system which was adopted
in 1992. The system, which has no federal equivalent, is made
up of four tiers: conditionally authorized, permit-by-rule,
standardized permit, and conditionally exempt, which are
characterized by increasingly stringent regulation,
respectively.
FISCAL EFFECT : Unknown.
COMMENTS :
1)Need for the bill: According to the author, "Low-income
communities are disproportionately home to the state's
hazardous disposal facilities. While these facilities
sometimes bring jobs to disenfranchised areas, they also place
those communities at risk for the accidental releases of toxic
waste, including ground water and air contamination. These
risks become all the more serious when disposal facilities are
allowed to continue operating on expired permits or even
expand despite not instituting a corrective action previously
ordered by the state. AB 1329 will address these issues by
reforming the hazardous waste facilities permitting process
and by requiring the state to develop an action plan for
avoiding economic and racial disparities in the siting of
hazardous disposal facilities."
2)Permitting hazardous waste storage, treatment and disposal
facilities . DTSC is responsible for the review of RCRA and
non-RCRA hazardous waste permit applications to ensure safe
design and operation; issuance/denial of operating permits;
issuance of post closure permits; approval/denial of permit
modifications; issuance/denial of emergency permits; review
and approval of closure plans; provide closure oversight of
approved closure plans; issuance/denial of variances; provide
assistance to regulated industry on permitting matters;
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provide for public involvement provide.
There are currently 118 DTSC permitted hazardous waste
facilities in California. These facilities include; 44
storage sites, 43 treatment facilities, 3 disposal sites; and
28 post closure sites.
3)Environmental justice. Environmental justice refers to the
fair treatment of people of all races, cultures, and income
with respect to the development, implementation, and
enforcement of environmental laws, regulations, and policies.
Fair treatment implies that no person, or group of people,
should shoulder a disproportionate share of negative
environmental impacts such as exposure to air pollutants,
hazardous facilities, and other forms of environmental
pollution.
A number of factors exist in identifying an environmental
justice issue. Factors include a concentration of
environmental hazards in an affected area because of the lack
of public participation, a lack of adequate protection under
health and environmental laws, and unusual vulnerability of a
community to hazards. Examples of environmental justice
problems include inadequate storm water protection in a
predominately minority populated section of a city compared to
systems in other parts of the city, siting a landfill in a
community with an over concentration of other hazards,
placement of a highway through a low-income and minority
community.
4)Criticism of the DTSC hazardous waste facility permitting
process. A report entitled "Golden Wasteland," prepared by a
consumer advocacy organization, issued in February of 2013,
was critical of DTSC hazardous waste permitting and
enforcement process. According the report, DTSC settled cases
out of court with facility operators, levies ineffective fines
and fails to develop and refer cases for prosecution. It was
asserted that the DTSC often awards permits without
environmental review, and it has not revoked the permit of a
serial violator of environmental laws in more than 15 years,
the report found.
5)DTSC external peer review of permit reforms . DTCS has
undertaken a review of permitting and enforcement processes
for hazardous waste facilities. To do this, DTSC has
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contracted for an outside program evaluation that will provide
a review of the DTSC permit process to develop a standardized
process with decision criteria and corresponding standards of
performance. The DTSC process will review and assess the
current timeliness of decisions, and evaluate the adequacy of
program staffing. It will make recommendations for process
improvement. DTSC anticipates recommendations through the
review process for permit process changes by June of 2013.
6)Committee recommended amendments . AB 1329 contains a wide
range of regulatory actions and reforms, including regulatory
implementation of the environmental justice elements of a
statewide facility plan; ensuring the permitted status of
receiving facilities; and, increasing and specific actions to
revoke permits for existing facilities with previous
violations. While the statewide planning process and enhanced
public participation processes are part of a
forwarding-thinking strategy, the requirements to revoke
permits or mandate a permit moratorium on existing disposal
facilities without a clear alterative standard may leave the
State unable to manage its hazardous waste safely.
The Committee may wish to consider limiting the scope of this
bill to the development and enforcement of the new
environmental justice plan, providing increased public
participation and eliminating the current weaknesses of the
tracking of waste to unlicensed facilities. This change to
the bill would eliminate the permitting moratorium, as well as
the automatic revocation of permits for existing 118 hazardous
waste facilities.
REGISTERED SUPPORT / OPPOSITION :
Support:
Asemblea de Poder Popular de Gonzales
Asian Pacific Environmental Network
BlueGreen Alliance
Breast Cancer Action
Breast Cancer Fund
California Civil Rights Coalition
California Coastal Protection Network
California Environmental Justice Alliance
California Rural Legal Assistance Foundation
CCoMPRESS
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Center for Biological Diversity
Center for Community Action and Environmental Justice
Center on Race, Poverty & the Environment
Central California Environmental Justice Network
Central Valley Air Quality Coalition
CHANGE Coalition
Clean Water Action
Comite Civico Del Valle
Committee for a Better Arvin
Committee for a Better Arvin
Committee for a Better Shafter
Communications Workers of America (IUE-CWA)
Communities Against a Radioactive Environment
Communities for a Better Environment
Concerned Community Members & Parents of Redwood Elementary
School
Consumer Watchdog
El Pueblo para el Aire y Agua Limpio
Environmental Defense Fund
Environmental Health Coalition
Environmental Health Coaltion (EHC)
Equal Justice Society
Fresno Metro Ministry
Friends of the Northern San Jacinto Valley
Global Community Monitor
Grayson Neighborhood Council
Greenaction for Health & Environmental Justice
Greenfield Walking Group
Mentone Area Community Association
Natural Resources Defense Council
Numerous Individual Letters
Physicians for Social Responsibility Los Angeles
Planning and Conservation League
PODER
Public Advocates
Silicon Valley Toxics Coalition
Students for Economic and Environmental Justice
The Family Treehouse
Tri-Valley Communities Against a Radioactive Environment
UC Berkeley School of Law Student Group
Valley Improvement Projects
West Berkeley Alliance for Clean Air and Safe Jobs
West County Toxics Coalition
Western Center on Law & Poverty
Wild Equity Institute
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Youth United for Community Action
Opposition:
None received.
Analysis Prepared by : Bob Fredenburg / E.S. & T.M. / (916)
319-3965