BILL ANALYSIS                                                                                                                                                                                                    Ó




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                                   THIRD READING 


          Bill No:  AB 1075
          Author:   Alejo (D)
          Amended:  9/1/15 in Senate
          Vote:     21  

           SENATE ENVIRONMENTAL QUALITY COMMITTEE:  5-0, 7/15/15
           AYES:  Wieckowski, Hill, Jackson, Leno, Pavley
           NO VOTE RECORDED:  Gaines, Bates

           SENATE APPROPRIATIONS COMMITTEE:  5-2, 8/27/15
           AYES:  Lara, Beall, Hill, Leyva, Mendoza
           NOES:  Bates, Nielsen

           ASSEMBLY FLOOR:  45-28, 5/28/15 - See last page for vote

           SUBJECT:   Hazardous waste: enforcement


          SOURCE:    Author

          DIGEST:   This bill creates additional considerations and civil  
          penalties on a person who has multiple violations of the  
          Hazardous Waste Control Act of 1972 (HWCA). 

          ANALYSIS:   

          Existing law governs the disposal of hazardous waste, under the  
          federal Resource Conservation and Recovery Act (RCRA) of 1976:  

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

          2)Authorizes states to carry out many of the functions of the  
            federal law through their own hazardous waste laws if such  








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            programs have been approved by the United States Environmental  
            Protection Agency.

          Existing law, under the HWCA:

          3)Establishes the Hazardous Waste Control program;

          4)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 Control Law or  
            other laws.

          5)Authorizes the 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.

          6)Requires the 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.

          7)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.

          8)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 DTSC.  Specifically, this  
          bill:  








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          1)Requires the DTSC to consider, except under specified  
            circumstances, three 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 five-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 the DTSC to temporarily suspend any permit,  
            registration, or certificate 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.  This bill repeals the requirement that the  
            hearing be held without delay and completed as soon as  
            possible.

          3)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, two or more previous violations of certain  
            of these hazardous waste-related provisions within any  
            consecutive 60 months.

          Background
          
          Permitting hazardous waste storage, treatment, and disposal  
          facilities.  The 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;  
          providing assistance to regulated industry on permitting  
          matters; and providing 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  








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          post-closure sites.

          CPS HR Consulting Audit.  The DTSC has undertaken a review of  
          permitting and enforcement processes for hazardous waste  
          facilities.  To do this, the 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 the 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. 

          The CPS HR Consulting report recommended that the DTSC develop a  
          new system of categorizing violations that reflects whether they  








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          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 the 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 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 the 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."

          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:YesLocal:   No


          According to the Senate Appropriations Committee, minor if any  
          costs to the HWCA (special) for the DTSC to administer the  
          additional considerations and civil penalties for persons with  
          multiple violations.




          SUPPORT:   (Verified8/31/15)










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          Asian Pacific Environmental Network 
          California District Attorneys Association
          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:   (Verified8/31/15)


          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









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          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, 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.  Specifically, 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."

          ASSEMBLY FLOOR:  45-28, 5/28/15
          AYES:  Alejo, Bonilla, Bonta, Brown, Burke, Calderon, Campos,  
            Chau, Chiu, Chu, Cooley, Cooper, Daly, Dodd, Eggman, Frazier,  
            Cristina Garcia, Eduardo Garcia, Gomez, Gonzalez, Gordon,  
            Roger Hernández, Holden, Jones-Sawyer, Levine, Lopez, Low,  
            McCarty, Medina, Melendez, Mullin, Nazarian, Perea, Quirk,  
            Rendon, Rodriguez, Salas, Santiago, Mark Stone, Thurmond,  
            Ting, Weber, Williams, Wood, Atkins
          NOES:  Travis Allen, Baker, Bigelow, Brough, Chang, Chávez,  
            Dababneh, Dahle, Beth Gaines, Gallagher, Gatto, Hadley,  
            Harper, Irwin, Jones, Kim, Lackey, Linder, Maienschein,  
            Mathis, Mayes, Obernolte, Olsen, Patterson, Steinorth, Wagner,  








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            Waldron, Wilk
          NO VOTE RECORDED:  Achadjian, Bloom, Gipson, Gray, Grove,  
            O'Donnell, Ridley-Thomas

          Prepared by:Rachel Machi Wagoner / E.Q. / (916) 651-4108
          9/1/15 21:30:41


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