BILL ANALYSIS Ó SENATE COMMITTEE ON ENVIRONMENTAL QUALITY Senator Wieckowski, Chair 2015 - 2016 Regular Bill No: AB 1075 ----------------------------------------------------------------- |Author: |Alejo | ----------------------------------------------------------------- |-----------+-----------------------+-------------+----------------| |Version: |6/18/2015 |Hearing |7/15/2015 | | | |Date: | | |-----------+-----------------------+-------------+----------------| |Urgency: |No |Fiscal: |Yes | ------------------------------------------------------------------ ----------------------------------------------------------------- |Consultant:|Rachel Machi Wagoner | | | | ----------------------------------------------------------------- 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 AB 1075 (Alejo) Page 2 of ? 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, AB 1075 (Alejo) Page 3 of ? 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 AB 1075 (Alejo) Page 4 of ? 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. AB 1075 (Alejo) Page 5 of ? 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 AB 1075 (Alejo) Page 6 of ? 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, AB 1075 (Alejo) Page 7 of ? 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." -- END --