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








                                                                  AB 1329
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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








                                                                  AB 1329
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          Youth United for Community Action

           Opposition:
           
          None received.
           

          Analysis Prepared by  :    Bob Fredenburg / E.S. & T.M. / (916)  
          319-3965