BILL ANALYSIS Ó
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Wieckowski, Chair
2015 - 2016 Regular
Bill No: AB 1075
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|Author: |Alejo |
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|Version: |6/18/2015 |Hearing |7/15/2015 |
| | |Date: | |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Rachel Machi Wagoner |
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SUBJECT: Hazardous waste: enforcement.
ANALYSIS:
Existing law:
1)Under the federal Resource Conservation and Recovery Act
(RCRA) of 1976, governs the disposal of 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 handling, transport and disposal of
hazardous waste and authorizes the Department of Toxic
Substances Control (DTSC) to deny, suspend, or revoke any
permit, registration, or certificate applied for, or issued
to, a person or entity if that person or entity engaged in
specified activities in violation of the Hazardous Waste
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Control Law or other laws.
c) Authorizes DTSC to temporarily suspend any permit,
registration, or certificate prior to a hearing if the
department determines that action is necessary to prevent
or mitigate an imminent and substantial danger to the
public health or safety or the environment.
d) Requires DTSC, upon receipt of a notice of defense to
the accusation from the holder of the permit, registration,
or certificate, to set the matter for hearing within 15
days and to hold the hearing as soon as possible, but not
later than 30 days after receipt of the notice and requires
the hearing to be held without delay and completed as soon
as possible.
e) Requires a petition for judicial review of a final
decision of the department to grant, issue, modify, or deny
a permit, registration, or certificate be filed no later
than 90 days after the date that the notice of final
decision is served.
f) Provides for the imposition of civil and criminal
penalties upon persons who violate the requirements of the
hazardous waste control law or take other actions with
regard to the handling of hazardous waste.
This bill: 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)Requires DTSC to consider, except under specified
circumstances, 3 or more violations of, or noncompliance with,
specified provisions for which a person or entity has been
found liable or has been convicted, with respect to a single
hazardous waste facility within a 5-year period, as compelling
cause to deny, suspend, or revoke a permit, registration, or
certificate applied for by, or issued to, that person or
entity.
2)Authorizes DTSC to temporarily suspend any permit,
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registration, or certificate prior to a hearing if DTSC
determines that conditions may present an imminent and
substantial endangerment to the public health or safety or the
environment. The bill repeals the requirement that the
hearing be held without delay and completed as soon as
possible.
3)Authorizes a person who filed comments on a draft permit or
participated in the public hearing on the draft permit to
appeal the department's decision to the Secretary for
Environmental Protection within 30 days, and would authorize
the secretary to sustain, reverse, or modify the decision of
the department if it was based on a finding of fact or
conclusion of law that was clearly erroneous, or if it was
based on an important policy consideration that the secretary
determines he or she should review. The bill would require
that a petition for judicial review be filed within 90 days of
the secretary's final decision.
4)Imposes upon a person who is subject to the imposition of
those civil or criminal penalties, an additional civil penalty
of not less than $5,000 or more than $50,000 for each day of
each violation, if the person has been found liable for, or
been convicted of, 2 or more previous violations of certain of
these hazardous waste-related provisions within any
consecutive 60 months.
Background
1) 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
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facilities in California. These facilities include: 44
storage sites, 43 treatment facilities, 3 disposal sites, and
28 post-closure sites.
2) CPS HR Consulting Audit. DTSC has undertaken a review of
permitting and enforcement processes for hazardous waste
facilities. To do this, DTSC 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:
The need to create clear and objective
criteria for making denial and revocation decisions
that are based on valid standards of performance and
risk;
A clear standard for violations that would
lead to a denial or revocation;
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;
The need to identify and measure
appropriate permitting process timelines; and,
The need to document, maintain and
implement effective financial assurance standards to
ensure that facilities can meet their permitted
obligations.
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The CPS HR Consulting report recommended that DTSC develop a new
system of categorizing violations that 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 DTSC has a system to assess 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.
Comments
Purpose of 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
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 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."
Related/Prior Legislation
SB 812 (de León, 2014) would have required DTSC to adopt
regulations by January 1, 2017, to specify conditions for new
permits and the renewal of existing permits, as specified, and
establishes deadlines for the submission and processing of
facility applications, as specified. SB 812 was vetoed by
Governor Brown.
SOURCE: Author
SUPPORT:
Asian Pacific Environmental Network
California District Attorneys Association
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California Environmental Justice Alliance
Center for Community Action & Environmental Justice
Center for Environmental Health
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
Physicians for Social Responsibility - San Francisco Bay Area
Sierra Club California
Teens Against Toxins
The People's Senate and Leadership Institute
Worksafe
OPPOSITION:
Automotive Specialty Products Alliance
California Business Properties Association
California Cement Manufacturers Environmental Coalition
California Chamber of Commerce
California Manufacturers and Technology Association
California Metals Coalition
California Trucking Association
Chemical Industry Council of California
Clean Harbors Environmental Services, Inc.
Consumer Specialty Products Association
Industrial Environmental 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
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 assert that, "in
practice, once DTSC issues a permit the agency rarely, if ever,
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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 believe 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 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."
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