BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1075|
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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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