BILL ANALYSIS Ó
AB 1075
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Date of Hearing: April 14, 2015
ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS
Luis Alejo, Chair
AB 1075
(Alejo) - As Introduced February 27, 2015
SUBJECT: Hazardous waste: Enforcement
SUMMARY: Establishes standards for what constitutes a repeat
serious hazardous waste facility violation and specifies the
enforcement action to be taken by the Department of Toxic
Substances Control (DTSC). Specifically, this bill:
1)Defines a repeating or recurring pattern of violation or
noncompliance as a facility operator that has previously been
found to be liable for, or convicted of, two or more
violations of, or noncompliance with, within a five-year
period.
2)Specifics that violation or noncompliance means an action that
creates a significant threat of immediate and acute exposure
to hazardous waste or hazardous waste constituents at a
facility or offsite from a facility.
3)Defines a serious violation as including any of the following:
a) Fire, explosion, or an uncontrolled chemical reaction;
b) Serious or acute injury or illness;
c) Violation of any order issued by DTSC to the applicant
or holder of the permit; or
d) Federal or state felony conviction for violations of
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hazardous waste laws.
4)Provides that DTSC shall consider a repeating or recurring
pattern of violation or noncompliance as compelling cause to
deny, suspend, or revoke the permit for a hazardous waste
facility.
5)Provides that if DTSC finds that extraordinary circumstances
exist, including that a denial, suspension, or revocation of a
permit would endanger the public health or safety or the
environment then the facility would not be subject to permit
revocation.
6)Authorizes DTSC to temporarily suspend a hazardous waste
facility permit prior to a hearing, if the DTSC determines
that conditions may present an imminent and substantial
endangerment to the public health or safety or the
environment.
7)Imposes an additional civil penalty of not less than $5,000 or
more than $50,000 for each day of a serious hazardous waste
violation, if the person has been found liable for, or been
convicted of, 2 or more previous violations within any
consecutive 60 months.
EXISTING FEDERAL LAW:
1)Requires owners and operators of facilities that treat, store,
or dispose of hazardous waste to obtain an operating permit
pursuant to the Resource Conservation and Recovery Act (RCRA).
2)Authorizes, by the United States Environmental Protection
Agency (US/EPA), DTSC to be the lead agency for enforcing the
provisions of RCRA. As an authorized state, California's
regulations to be consistent with, and at least as strict as,
the federal regulations.
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EXISTING STATE LAW: Pursuant to the Hazardous Waste Control Act,
(Chapter 6.5 of Health and Safety Code):
1)Requires any person who stores, treats, or disposes of
hazardous waste to obtain a hazardous waste facility permit
from DTSC.
2)Requires hazardous waste facilities to operate subject to
permits issued by DTSC and which are in accordance with
applicable federal law, including RCRA.
3)Requires DTSC to issue a hazardous waste facilities permit for
a fixed term, which is prohibited from exceeding ten years,
for any land disposal facility, storage facility, incinerator,
or other treatment facility.
4)Defines a "Class I violation" as any deviation from the
requirements of a permit that represents a significant threat
to human health or safety or the environment based on one of
the following:
a) The volume of the waste;
b) The relative hazardousness of the waste; or
c) The proximity of the population at risk.
FISCAL EFFECT: Not known.
COMMENTS:
Need for the bill: According to the author, "AB 1075
establishes a bright regulatory line for permit denial and
revocation. The key feature of AB 1075 is to strengthen the
authority of the Department of Toxic Substance Control (DTSC) by
specifying that three or more serious violations during a
five-year period results in a clear obligation on DTSC to revoke
a hazardous waste facility permit. AB 1075 was developed based
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on the information gathered at the Environmental Safety and
Toxic Materials oversight hearing in September of 2014, where
community groups came forward to report on issues in their
neighborhood."
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 and denial of operating permits;
issuance of post-closure permits; approval and denial of permit
modifications; issuance and denial of emergency permits; review
and approval of closure plans; providing closure oversight of
approved closure plans; issuance and denial of variances;
provide assistance to regulated industry on permitting matters;
and provide for public involvement.
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.
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 the 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 asserted that 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.
DTSC has undertaken a review of permitting and enforcement
processes for hazardous waste facilities. To do this, DTSC
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contracted for an outside program evaluation by CPS HR
Consulting which provided a review of the DTSC permit process in
order to develop a standardized process with decision criteria
and corresponding standards of performance. The DTSC evaluation
included a review and assessment of the current timeliness of
decisions, and evaluates the adequacy of program staffing. It
will make recommendations for process improvement.
The program analysis of DTSC carried out by CPS HR Consulting of
DTSC permitting process found that there has been significant
dissatisfaction with the performance of the permitting office,
due to the cost and length of time in completing the permit
process and a perception that the office does not deny or revoke
permits as often as it should to address community concerns.
The stakeholders included in the review identified the following
major concerns:
1)The need to create clear and objective criteria for making
denial and revocation decisions that are based on valid
standards of performance and risk;
2)A clear standard for violations that would lead to a denial or
revocation;
3)The need for the DTSC to document and measure a "scorecard" of
attributes that would be perceived as a "good result" for the
permitting program;
4)The need to identify and measure appropriate permitting
process timelines; and,
5)The need to document, maintain and implement effective
financial assurance standards to ensure that facilities can
meet their permitted obligations.
Creating a bright line for regulatory action on hazardous waste
facility permits: The CPS HR Consulting report recommended that
DTSC develop a new system of categorizing violations that
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reflects whether they present an immediate and direct threat to
human health and safety, versus a less urgent threat that can be
mitigated or resolved through further actions of DTSC. The
current definition of "Class I violations," although mandated by
law, includes both violations that pose immediate and direct
threats along with many that are relatively low- or long-term
threats. Until the DTSC has a system to asses violations that
can distinguish between significant threats to human health and
safety and lesser threats, it will not be able to provide an
objective standard to guide its own staff actions and to inform
the public that the significant threats have been mitigated
through actions such as permit modification, denial or
revocation.
Arguments in support: A coalition of community and environmental
organizations including the Center for Community Action &
Environmental Justice supported the strengthening of standards
for facility permits. Specifically, they found that, "in
practice, once DTSC issues a permit the agency rarely, if ever,
uses its authority to revoke or suspend that permit. In fact, a
report commissioned by DTSC found that the agency's permitting
program lacked clear objectives and criteria for denying or
revoking permits based on past compliance. As a result, numerous
hazardous waste facilities across California have continually
and repeatedly violated the terms of their permit and threatened
the health and safety of nearby residents without any real
consequence. These failures disproportionately affect low income
communities and communities of color who are already most
burdened by toxic pollution.
Arguments in opposition: A coalition of business groups,
including the California Chamber of Commerce voiced concerns
related to AB 1075. Specially, they report that, "AB 1075
substantially expands DTSC's existing authority by providing
DTSC with "compelling cause" to deny, suspend or revoke
hazardous waste permits for mere minor or paperwork violations
that pose absolutely no endangerment to the public health,
safety or the environment. Specifically, AB 1075 states that a
mere violation of any order issued by DTSC to the applicant or
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permit holder would constitute a violation or noncompliance
which, if repeated three times in five years, would provide DTSC
with "compelling cause" to deny, suspend, or revoke a permit."
PRIOR LEGISLATION:
1)SB 712 (Lara) Chapter 833, Statutes of 2014. Established
deadlines for DTSC to take final action on permit applications
from hazardous waste facilities operating under an interim
status grant.
2)AB 1330 (John A. Pérez) 2014. Would have increased the
coordination and enforcement of environmental protection laws
by DTSC and CalEPA, and increased funding for environmental
improvements specifically for environmental justice
communities. Held on the Senate Floor.
3)SB 812 (De Leon) 2014. Would have modifies the permitting
process for hazardous waste facilities and the public
participation requirements for DTSC. Vetoed by Governor Brown.
REGISTERED SUPPORT / OPPOSITION:
Support
Asian Pacific Environmental Network
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California District Attorneys Association
California Environmental Justice Alliance
Center for Community Action & Environmental Justice
Center on Race, Poverty & the Environment
Clean Water Action
Communities for a Better Environment
Concerned Neighbors of Wildomar
Environmental Action Committee of West Marin
Environmental Working Group
Pesticide Action Network North America
Physicians for Social Responsibility - Los Angeles
Teens Against Toxins
The People's Senate and Leadership Institute
Opposition
Automotive Specialty Products Alliance
California Business Properties Association
California Cement Manufacturers Environmental Coalition
California Chamber of Commerce
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California Manufacturers and Technology Association
California Metals Coalition
Chemical Industry Council of California
Clean Harbors Environmental Services, Inc.
Consumer Specialty Products Association
Metals Finishing Association of Northern California
Metals Finishing Association of Southern California
U.S. Department of Defense, Region 9
West Coast Chapter, Institute of Scrap Recycling Industries
West Coast Lumber & Building Material Association
Western Plant Health Association
Western States Petroleum Association
Analysis Prepared by:Bob Fredenburg / E.S. & T.M. / (916)
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