BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                SB 812
                                                                       

                      SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
                              Senator Jerry Hill, Chair
                              2013-2014 Regular Session
                                           
           BILL NO:    SB 812
           AUTHOR:     de León
           AMENDED:    January 6, 2014
           FISCAL:     Yes               HEARING DATE:     January 15,  
           2014
           URGENCY:    No                CONSULTANT:        Rachel Machi 
                                                             Wagoner  
           
           SUBJECT  :    HAZARDOUS WASTE:  FACILITIES PERMITTING

           SUMMARY  :    
           
            Existing law  :


           1) Under the federal Resource Conservation and Recovery Act  
              (RCRA) of 1976, governs the disposal hazardous waste:

              a)    Through regulation, sets standards for the treatment,  
                 storage, transport, tracking and disposal of hazardous  
                 waste in the United States.   

              b)    Authorizes states to carry out many of the functions  
                 of the federal law through their own hazardous waste  
                 laws if such programs have been approved by the United  
                 States Environmental Protection Agency (US EPA).


           2) Under the California Hazardous Waste Control Act (HWCA) of  
              1972:

              a)    Establishes the Hazardous Waste Control program;

              b)    Regulates the appropriate handling, processing and  
                 disposal of hazardous and extremely hazardous waste to  
                 protect the public, livestock, and wildlife from hazards  
                 to health and safety.

              c)    Implements federal tracking requirements for the  









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                 handling and transportation of hazardous waste from the  
                 point of waste generation to the point of ultimate  
                 disposition.  

              d)    Establishes a system of fees to cover the costs of  
                 operating the hazardous waste management program.

              e)    Authorizes the Department of Toxic Substances Control  
                 (DTSC) to enforce federal law and regulations under  
                 RCRA.

              f)    Requires DTSC to grant and review permits and enforce  
                 HWCA requirements for hazardous waste treatment, storage  
                 and disposal facilities.

            This bill  :  

           1) Makes various findings and declarations stating that the  
              Legislature finds that California's current hazardous waste  
              management regulatory system provides limited protection  
              for affected communities and that there are loopholes in  
              the permitting system that need to be fixed to address this  
              limited protection.

           2) Changes the requirements pertaining to the renewal of  
              hazardous waste facilities permits by:

              a)    Requiring that a complete renewal application,  
                 containing both Part A and Part B of the application, be  
                 submitted by the facility prior to the expiration of the  
                 permit.

              b)    Requires DTSC to approve or deny the permit renewal  
                 application within 36 months or the permit is deemed  
                 denied.

              c)    For permits that expire prior to January 1, 2015,  
                 requires DTSC to approve or deny the permit renewal  
                 application by January 1, 2018.

           3) Provides that interim status granted on or after January 1,  
              2015, terminates five years from the date the interim  
              status is granted or on the date the department took final  









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              action on the application for a permit, whichever is  
              earlier.

            COMMENTS  :

            1) Purpose of Bill  .  According to the author, this bill will  
              establish deadlines by which final permit decisions must be  
              made by DTSC for facilities that handle the most serious  
              and dangerous hazardous waste, thereby limiting the amount  
              of time a facility can operate on an expired or interim  
              permit.

            2) DTSC Permitting Renewal Process  .  Title 22, Cal. Code of  
              Regs., section 66270.10(h) requires "Any hazardous waste  
              management facility with an effective permit shall submit a  
              new application at least 180 days before the   expiration  
              date of the effective permit, unless permission for a later  
              date has been granted by the Department.  The Department  
              shall not grant permission for applications to be submitted  
              later than the expiration date of the existing permit."  To  
              ensure completion of the permit renewal application at  
              least 180 days before the expiration date of the effective  
              permit, it is recommended that the renewal application be  
              submitted at least one year before the expiration date of  
              the permit.  Current applicants who apply to renew RCRA  
              permits, where the renewal application contains significant  
              changes in the facility's operation (equal to a Class 3  
              Permit modification), must hold an informal preapplication  
              meeting.  Permit renewals must meet all of the land use and  
              permitting requirements for obtaining a new permit.   

           3) Exide Technologies  .  Exide Technologies is an American  
              manufacturer of lead-acid batteries, including automotive  
              batteries and industrial batteries. Its four global  
              business groups (Transportation Americas, Transportation  
              Europe and Rest of World, Industrial Power Americas, and  
              Industrial Power Europe and Rest of World) provide stored  
              electrical energy products and services.

              Exide's global headquarters are located in Milton, Georgia.  
              It has both manufacturing and recycling plants. 

              Equipment used in the battery recycling process includes  









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              machines to break batteries apart and separate different  
              materials, furnaces and kettles to melt metals, and  
              miscellaneous equipment including storage tanks, conveying  
              equipment, and engines.   Exide operates numerous pieces of  
              control equipment to reduce pollution including baghouses,  
              dust collectors, and filters for reducing dust and metals;  
              and scrubbers, mist eliminators, and an afterburner, which  
              remove pollution from gases.   

              Exide has five "secondary lead" smelters or recyclers, only  
              two of which - Forest City, Missouri, and Muncie, Indiana -  
              are operating.

              However, at the Muncie, Indiana plant, Exide settled a  
              notice of violation and signed an agreed order with the  
              Indiana Department of Environmental Management that calls  
              for fines if it does not meet specified cleanup conditions  
              involving brown-colored, lead contaminated water along a  
              storage area and rail spur near a ditch leading to a  
              stormwater outfall.

              Exide closed its smelter in Frisco, Texas, in 2012 after a  
              lengthy battle by the city and residents over lead and  
              arsenic pollution coming from the site.  The plant ceased  
              operations November 30, 2012, as part of an agreement with  
              the city.  The agreement calls for the City of Frisco to  
              purchase about 170 acres of buffer land from Exide for $45  
              million.  Exide will keep the 90 acres used for its  
              operations.  The deal is contingent on complete cleanup.   
              Preliminary estimates peg cleanup costs at anywhere from  
              $15 million to more than $130 million.  However, over a  
              year after the plant closed, Exide has not fully  
              characterized the extent of the contamination or cleanup.   
              An article by the Dallas Morning News, states that "efforts  
              the past year have been complicated by Exide's bankruptcy  
              filing in June."

            4) Exide, Vernon, California  .  The Exide facility in Vernon,  
              California is one of two secondary lead smelting facilities  
              in California which recovers lead from recycled automotive  
              batteries.  It has over 100 employees.  It recycles 23,000  
              to 41,000 batteries daily and has an average production of  
              100,000 to 120,000 tons of lead per year.  This is  









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              equivalent to recycling approximately 11 million car  
              batteries, which is about the same number of used batteries  
              generated in California annually.  

              Battery recycling recycles 97% of the battery lead to be  
              recycled. 

              Exide also recovers lead from lead bearing plant scrap and  
              secondary materials, primarily from lead-acid battery  
              manufacturers. 

              This facility is regulated by various local and state  
              regulatory agencies.  

              DTSC regulates companies that handle hazardous waste under  
              federal and state hazardous waste laws.  DTSC permits and  
              inspects facilities, issues violations of hazardous waste  
              rules, and monitors corrective action at sites.

              The South Coast Air Quality Management District (SCAQMD)  
              regulates Exide's air emissions, in part with what is  
              called a Title V permit, which allows the company to  
              release pollutants into the air up to certain levels.

              The Los Angeles Regional Water Quality Control Board  
              (LARWQCB) is responsible for protecting water quality.   
              Exide has wastewater treatment systems, and a stormwater  
              system that includes a retention basin.  LARWQCB with the  
              State Water Resources Control Board set and enforce  
              standards for water that flows away from Exide's property  
              into the sewer.

              The City of Vernon issues health and other permits to  
              Exide.  

            5) The History of the Exide Hazardous Waste Permit  .  The  
              facility in Vernon has been operating with an interim  
              hazardous waste facility permit since 1981.  However, it  
              has had several owners prior to Exide Technologies.

              The facility has been used for a variety of metal  
              fabrication and metal recovery operations since 1922.   
              Previous owners have included Morris P. Kirk & Sons, Inc.,  









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              NL Industries, Gould Inc., and GNB Inc. 

              Gould Inc. filed a RCRA Part A notification on November 19,  
              1980, as a treatment and storage facility.  This Part A  
              identified storage of spent lead-acid batteries and other  
              lead-bearing material prior to treatment and recycling, and  
              a wastewater treatment system.  

              Gould Inc. was issued an Interim Status Document (ISD) by  
              the State of California Department of Health Services  
              (DHS), DTSC's predecessor agency, on December 18, 1981.

              The US EPA rescinded the facility's Treatment and Storage  
              Facility classification by returning Gould Inc.'s original  
              RCRA Part A application, after Gould Inc. eliminated its  
              waste pile, claimed that the smelters do not require a  
              permit, and requested reclassification to generator status.  


              The Interim Status Document was subsequently rescinded by  
              DHS in 1982. 

              GNB, Inc. purchased the facility and filed a revised Part A  
              application on July 5, 1985. 

              On September 3, 1986, DHS determined that a hazardous waste  
              facilities permit was necessary. 

              GNB, Inc. submitted the first RCRA Part B application on  
              November 8, 1988. 

              On December 13, 1999, DTSC approved a Class 2 Interim  
              Status modification for Supplemental Environmental Projects  
              (SEPs) as a result of an enforcement case settlement. 

              On June 30, 2000, DTSC approved a Class 2 Interim Status  
              modification, for replacement of the Waste Water Treatment  
              Plant and to provide secondary containment.

              On January 5, 2001, DTSC approved a Class 1 Interim Status  
              modification, for change of ownership and operational  
              control to Exide Corporation.










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              On November 16, 2001, DTSC approved a Class 1 Interim  
              Status modification, for a name change from Exide  
              Corporation to Exide Technologies.

              In 2006, Exide submitted a completed application and DTSC  
              circulated for public hearing, a draft permit for the  
              Vernon Exide facility.

              In mid-2006, DTSC received significant comments from the  
              SCAQMD and the public in regards to three specific areas:  
              1) the risk assessment prepared by the contractor used  
              proprietary software, which was not accessible by the  
              public to verify parameters and assumptions used in the  
              risk assessment model. The risk assessment model for the  
              air emissions model was not an approved model by SCAQMD; 2)  
              the environmental impact report (EIR) lacked significant  
              alternative analysis to mitigate the environmental impacts;  
              and 3) the Part B application had not adequately assessed  
              the secondary containment, tank systems, and closure of  
              former tank systems.
            
              As a result DTSC took the following actions: 1) worked  
              closely with SCAQMD to require Exide to prepare a risk  
              assessment (AQMD required risk assessment for air  
              emissions); 2) prepared a revised EIR; and 3) required  
              Exide to submit a revised Part B application addressing  
              comments received during comment period.  
            
              In 2010, the risk assessment indicated high arsenic  
              emissions prompting Exide to petition SCAQMD to redo the  
              source testing (data required for the risk assessment) in  
              order to prepare a revised risk assessment.  [Note: source  
              testing is an expensive process that can cost up to $1  
              million).
            
              In January 2013, Exide provided DTSC and SCAQMD with a  
              revised risk assessment.  The risk assessment showed high  
              risks to potential receptors (workers and residents).
            
              In April 2013, DTSC issued an administrative suspension  
              order because it was concerned about the releases of  
              hazardous waste (leaking stormwater pipes) and air  
              emissions into the environment.









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              In May 2013, Exide requested a hearing with the Office of  
              Administrative Hearings (OAH).  A hearing was held in June  
              2013 by OAH.
            
              In June 2013, the Los Angeles Superior Court granted  
              Exide's ex parte application and issued a temporary  
              restraining order which stayed the Order for Temporary  
              Suspension and prevented DTSC from enforcing it until the  
              hearing and determination on the order to show cause  
              regarding the preliminary injunction was concluded.
            
              In October 2013, DTSC and Exide signed a Stipulation and  
              Order.  The Stipulation and Order resolves the  
              administrative suspension order that DTSC issued against  
              Exide in April 2013 and resolves a legal action that Exide  
              filed against DTSC in June 2013.  The Stipulation and Order  
              sets out conditions that Exide must meet and timelines for  
              completing them.  There are automatic penalties in place if  
              the timelines are not met as specified in the Stipulation  
              and Order.
            
              October 2013 - Present:  Exide is in the process of  
              implementing the requirements set forth in the Stipulation  
              and Order. 
            
           6) History of Environmental Impact and Enforcement at Vernon  
              Exide Facility  .  
               
              1999-2000
                        DTSC found lead at levels of 40 percent in the  
                   sediment at the bottom of the stormwater retention  
                   pond and required Exide to clean it up. 




              2003
                        DTSC fined Exide $40,000 for improper storage of  
                   used lead-acid batteries. Exide delayed payment  
                   because of the company's Chapter 11 bankruptcy filing.

              2004 









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                        DTSC took emergency measures in 2004 and again  
                   in 2008 to require Exide to clean up a  
                   lead-contaminated drainage channel, and public areas  
                   like sidewalks, streets, and neighboring roofs.

                        SCAQMD fined Exide and Exide paid $3,000 to  
                   settle two air quality violations with regulators.
              
              2006
                        DTSC fines Exide $39,000 for failing to minimize  
                   the possibility of hazardous releases.

              2007 
                        A study prepared by e2 Environmental for Exide  
                   at the request of the LARWQCB, and shared with DTSC  
                   officials, said modeling of the dispersion of heavy  
                   metals from the site "suggest that in the last three  
                   years, Exide has contributed through deposition  
                   approximately 424 lbs. of lead in both 2004 and 2005,  
                   and 712 lbs. of lead in 2006 to the watershed."

              2008 
                        Exide paid $5,000 to settle an air quality  
                   violation with SCAQMD.
              
              2009 
                        During an annual compliance evaluation  
                   inspection, DTSC officials find lead sludge in the  
                   stormwater retention basin.  Exide tells regulators it  
                   cleans out the basin once a year.  That discovery  
                   leads to an enforcement order in 2010.
           
                        In May, Exide paid $7,500 to settle an air  
                   quality violation with regulators.
           
                        In July, Exide paid $150,000 to settle 14 air  
                   quality violations with SCAQMD. In addition, Exide  
                   paid $250,000 to partially reimburse air regulators  
                   investigation and enforcement costs.

              2010 
                        DTSC fined Exide more than $100,000 for lead  
                   releases into the environment.









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                        SCAQMD adopted Rule 1420.1 - Emissions Standards  
                   for Lead from Large Lead-Acid Battery Recycling  
                   Facilities.  The rule imposed on Exide more stringent  
                   monitoring, operating and reporting requirements in  
                   order to meet the new lowered federal emissions  
                   standards for lead. Rule 1420.1 requires total  
                   facility enclosure, additional air monitoring and  
                   sampling, annual source testing, and additional  
                   housekeeping measures.

              2011
                        Exide told SCAQMD that it exceeded ambient  
                   concentrations of lead that had been defined the  
                   previous November.  By the beginning of 2012, the  
                   company lowered its air emissions of lead with  
                   additional measures, thereby complying with the law. 

              2012
                        SCAQMD approved a settlement with Exide of  
                   $119,000 to settle 7 air quality violations.

              2013

              March
                        A Health Risk Assessment by Exide indicated the  
                   facility poses a maximum individual cancer risk (MICR)  
                   of 156 in one million for an offsite worker receptor  
                   about 300 meters northeast of the facility (primarily  
                   arsenic).  Air regulators also asserted that the  
                   facility poses a maximum chronic hazard index (HI) of  
                   63 for the respiratory system at the same offsite  
                   worker receptor identified in Section 16.1 (from  
                   arsenic). 

                        In a report by Exide, breaches were detected in  
                   underground pipelines which were used to convey the  
                   lead contaminated stormwater to a hazardous waste  
                   treatment tank system.  They were found to be in poor  
                   conditions from an accumulation of semi-solid sludge  
                   materials (also known in the industry as mud)  
                   generally throughout the piping system that contained  
                   elevated levels of hazardous waste, specifically  









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                   metals (e.g., lead, arsenic and cadmium). 

                        SCAQMD ordered Exide to submit a risk reduction  
                   plan for air emissions, and ordered the company to  
                   hold public meetings, after a report completed in  
                   January showed cancer risks of 156 in a million mostly  
                   from arsenic in areas immediately surrounding the  
                   plant. 

              April
                        DTSC director Debbie Raphael ordered Exide to be  
                   closed, finding that "an imminent and substantial  
                   danger to the public health, safety and the  
                   environment" exists. The finding was based on a  
                   "recent report" submitted by Exide showing that  
                   underground storm sewer pipelines are releasing toxic  
                   material to the environment, and on a report submitted  
                   by Exide to SCAQMD showing that toxic emissions pose a  
                   risk to the surrounding community. 
           
              May
                        Exide Technologies contested the shutdown and  
                   called for a hearing before an administrative law  
                   judge. "The DTSC has known of the issues raised in the  
                   Order and Accusation for an extended period of time,  
                   and has consented to Exide's continued operation,"  
                   wrote the Los Angeles firm of Sheppard, Mullin,  
                   Richter & Hampton, in the notice of defense Exide  
                   submitted. 
           
              June
                        Exide Technologies filed for Chapter 11  
                   bankruptcy protection.  Exide Technologies reported  
                   $1.9 billion in assets and $1.1 billion in liabilities  
                   as of the end of last quarter. By entering Chapter 11,  
                   the company is likely to avoid paying off maturing  
                   bonds and payments for debt interest.
           
                        Judge Luis Lavin issued a temporary restraining  
                   order against DTSC, writing that Exide would be  
                   irreparably harmed by a slow administrative hearing,  
                   and that the public interest will not suffer by  
                   allowing the lead recycler to get the Vernon plant  









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                   back to work.

              
              July
                        Judge Luis Lavin finalized his restraining order  
                   against DTSC, enabling Exide to open for business  
                   while waiting for the administrative hearing. 

                        Fire at an Exide baghouse temporarily shut down  
                   operations.  Baghouses reduce emissions from furnace  
                   feed rooms and other places within the Vernon plant.   
                   Exide reported "excessive heat" damage in one of those  
                   baghouses, then restarted operations.  SCAQMD  
                   inspectors issued a notice of violation for that,  
                   since both baghouses must be working when the plant is  
                   working. The incident stopped Exide operations until  
                   July 15th.

                        Emissions limits drove the plant's operators to  
                   take two furnaces offline.  The reverberatory furnace  
                   and the blast furnace are steps in the smelting  
                   process for lead.  Creating heat to apply to  
                   recyclable material produces carbon monoxide, a toxic  
                   gas that is colorless, and can create dizziness,  
                   fatigue, disorientation and nausea. Air regulators  
                   limit the amount of carbon monoxide a source can emit  
                   over a 30-day period; to stay within the limits, plant  
                   regulators turned off the furnaces.  Air regulators  
                   reported that Exide began reheating the furnaces for  
                   active use in early August. 

              August
                        Exide gave regulators a plan to reduce hazards  
                   posed by air emissions that include toxic chemicals.  
              
              September
                        The Los Angeles County Department of Public  
                   Health said it would offer blood testing for lead to  
                   members of the community.

              October

                        DTSC announced that it reached a stipulation  









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                   order with Exide that would allow the plant to stay  
                   open. The order required Exide to clean up leaky  
                   stormwater pipes and control toxic substances in air  
                   emissions and additionally identify potential impacts  
                   the facility may have had on surrounding communities.   
                   Also, Exide agreed to pay up to $7.7 million for  
                   cleanup of those violations and to cover the cost of  
                   blood tests for lead for people living and working  
                   around the facility, and other environmental tests.
                        Lawyers for the SCAQMD appealed to the  
                   district's hearing board to shut Exide down for  
                   "failing to adequately capture and control gaseous  
                   emissions from its blast and reverberatory furnaces,  
                   including arsenic."

              December
                        DTSC issued an emergency order directing a  
                   Vernon battery recycler to clean up lead and other  
                   metals that had been deposited near the Exide  
                   Technologies plant.  Dust and soil samples with metals  
                   in concentrations at or near hazardous waste levels  
                   have been found near the facility and must be cleaned  
                   up by January 31, 2014.  The order is urgent, the  
                   agency wrote, because winter rains could wash the  
                   metals into the Los Angeles River.
            
           7) Is 180 days sufficient for review of a permit renewal?
               
              Given that permit renewals can be as involved as the  
              application for a new facility permit, requiring facilities  
              to meet all CEQA, local land use requirements and other  
              permit conditions of DTSC and the SCAQMD, is 180 days  
              sufficient time to review this application?  Is it expected  
              that all permits will be continued beyond expiration given  
              this short timeline.

              In acknowledgment of the complexity of the permit review  
              process, DTSC's permitting handbook recommends complete  
              renewal applications be submitted a year in advance of the  
              permit expiration.  

              Why should in not be a requirement to submit permit renewal  
              applications a year in advance of expiration?









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              The author may wish to amendment this measure to require  
              permit renewal applications be submitted a year in advance  
              of expiration.  

            8) Duplicative provisions  .  Both SB 812 (de León) and SB 712  
              (Lara) provide that interim status for hazardous waste  
              permits terminates after 5 years.  Is it necessary to have  
              this provision in two bills?  

            9) California Hazardous Waste Facilities  .  Battery recyclers  
              provide an important service in recovering lead and reusing  
              the metal rather than disposing of it in a hazardous waste  
              landfill and mining new metals.  However, these facilities  
              must operate in a manner that does not jeopardize public  
              health and the environment.

            SOURCE  :        Author  

           SUPPORT  :       None on file  

           OPPOSITION  :    None on file