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 AB 1329 Page 2 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 AB 1329 Page 3 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 AB 1329 Page 4 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 AB 1329 Page 5 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; AB 1329 Page 6 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 AB 1329 Page 7 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 AB 1329 Page 8 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 AB 1329 Page 9 Youth United for Community Action Opposition: None received. Analysis Prepared by : Bob Fredenburg / E.S. & T.M. / (916) 319-3965