BILL ANALYSIS Ó
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Wieckowski, Chair
2015 - 2016 Regular
Bill No: AB 1205
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|Author: |Gomez |
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|Version: |6/20/2016 |Hearing |6/29/2016 |
| | |Date: | |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Rachel Machi Wagoner |
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SUBJECT: Hazardous waste: facilities permitting.
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).
1) Under the California Hazardous Waste Control Act (HWCA) of
1972:
a) Establishes the Hazardous Waste Control program.
b) Regulates the appropriate handling, processing and
disposal of hazardous and extremely hazardous waste to
protect the public, livestock and wildlife from hazards to
health and safety.
c) Implements federal tracking requirements for the
handling and transportation of hazardous waste from the
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point of waste generation to the point of ultimate
disposition.
d) Establishes a system of fees to cover the costs of
operating the hazardous waste management program.
e) Authorizes the Department of Toxic Substances Control
(DTSC) to enforce federal law and regulations under RCRA.
f) Requires DTSC to grant and review permits and enforce
HWCA requirements for hazardous waste treatment, storage
and disposal facilities.
g) Authorizes DTSC to issue an order under the hazardous
waste control laws requiring that a violation be corrected
and imposing a civil penalty to specified persons,
including a person who has violated various provisions
regulating hazardous waste or provisions concerning removal
and remedial actions for hazardous substance releases. A
person who is issued that order is required to pay for
oversight of the removal or remedial action.
h) Requires DTSC to hold a public meeting for specified
purposes in or near the community in which a new hazardous
waste facilities permit has been applied for.
i) Prohibits DTSC from issuing or renewing a permit to
operate a hazardous waste facility unless the owner or
operator of the facility establishes and maintains
financial assurances.
This bill:
1) Requires DTSC, within 90 days of receiving a renewal
application for a hazardous waste facilities permit, to hold a
public meeting for specified purposes in or near the community
in which the hazardous waste facility is located.
2) Requires DTSC review the financial assurances required to
operate a hazardous waste facility at least once every 5
years. If the department's review finds the financial
assurances for a facility to be inadequate, the bill would
require the department to notify the owner or operator of the
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facility and would require the owner or operator to update and
adopt adequate financial assurances within 90 days.
Background
1) Exide Technologies, Vernon, California. The Exide facility
in Vernon, California was one of two secondary lead smelting
facilities in California which recovered lead from recycled
automotive batteries. It has over 100 employees. It
recycles 23,000 to 41,000 batteries daily and has an average
production of 100,000 to 120,000 tons of lead per year.
The facility has been used for a variety of metal fabrication
and metal recovery operations since 1922. Previous owners
have included Morris P. Kirk & Sons, Inc., NL Industries,
Gould Inc., and GNB Inc.
The facility in Vernon has been operating with an interim
hazardous waste facility permit since 1981.
In recent years, the Exide facility has brought to light the
failings of DTSC's Permitting Program. Over the 30 years that
the facility operated with an interim permit, there were many
violations of the permit as well as other regulatory
standards, such as those by the South Coast Air Quality
Management District, which caused environmental damage and
risk to public health.
In March, 2015 it was announced that an agreement was reached
between the United States Department of Justice and Exide
Technologies to permanently close the battery recycling
facility in Vernon, CA, and in order to avoid criminal
prosecution, Exide Technologies further agreed to a
stipulation and order with DTSC to complete remediation
activities as specified in the stipulation and order issued by
DTSC.
This example of a failed process calls into question whether
the statutory authorizations, requirements and direction to
DTSC is adequate to ensure that the program runs correctly and
is appropriately protective of public health and the
environment, especially in the vulnerable communities where
there are permitted facilities.
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Additionally, it called into question whether there are other
facilities that may currently be similarly causing harm to the
communities in which they are located.
The community crisis around Exide created significant concern
about DTSC's permitting statutory authorization and
implementation.
The DTSC Office of Permitting is authorized to issue hazardous
waste facilities permits, and to impose conditions specifying
the types of hazardous waste that may be accepted for
transfer, storage, treatment, or disposal in California.
Currently there are 117 permitted Operating Facilities,
including 28 Post Closure Facilities (closed and going through
final remediation) in the state, that provide for the
treatment, storage, or disposal of substances regulated as
hazardous waste under federal and state law. A total of 1.82
billion pounds of California toxic waste were disposed of in
these facilities in 2012, with 62% treated to the point where
it no longer met toxic standards, and 38% placed in landfills.
From a staffing standpoint, currently there are 29 authorized
positions allocated to the Office of Permitting, located in
Sacramento, Berkeley, and Chatsworth.
There has been significant dissatisfaction with the
performance of the Permitting Office, directed at 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
stakeholder interviews conducted as part of this study
identified the following major concerns:
The need to create clear and objective criteria for
making denial/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 department to document and measure
a "scorecard" of attributes that would be perceived as a
"good result" for the permitting program.
DTSC entered into a contract with CPS HR Consulting on
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February 1, 2013, to conduct a Permitting Process Review and
Analysis.
CPS HR was asked to review the existing permitting program and
develop a recommended standardized process with clear decision
criteria and corresponding standards of performance. CPS HR
was also asked to document the changes in the permitting
process over the past five years based primarily on the record
obtained from past internal review, and to obtain perspectives
of designated subject matter experts, including
representatives from the environmentalist, environmental
justice, and industry communities. This report provides
findings in each defined area.
The study found that the overall average permitting process
time, which was 5.0 years prior to FY2003, improved to a 3.2
year average for the period from FY2003 to FY2007, before
again increasing to 4.3 years in the most recent time period
(from FY2008 through part of FY2013). So while there was an
improvement from the oldest period studied to the most recent,
the current trend is again towards longer processing time.
The study notes several key findings regarding the recent
increase in permit processing time which is attributed to at
least two major factors:
There was a reduction in staffing in the office.
Permitting staffing has been reduced significantly from
95.8 personnel years utilized in FY2007 to just 24.6
personnel years utilized in FY2009. The initial change
was a response to the economic recession in 2009, and its
required state budget reductions. However, less than
26.1 personnel years have been utilized in each year
since that time.
The study found that the second primary reason for
permitting delays is poor management practices. Between
December 2009 and June 2013, the Office of Permitting did
not maintain consistent uniform management, supervisory
structure or clear consistent organizational structure.
This is demonstrated by the fact that program managers
were either reassigned to other duties or vacant for a
majority of the time period from July 2009 through July
2013, while program supervisor positions for all
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personnel in the unit were either not authorized or
vacant for more than half of this period. In other words,
there was a fouryear period in which direct supervision
of personnel lapsed.
This study concludes that while many aspects of the work
process required for a permit renewal are well-defined and
well-known, most of the difficult or complex steps are not
clear or well-defined. This is one of the most likely reasons
for prolonged delays, and for future process improvement.
The study further stated that much of the "process" knowledge
within the Office of Permitting is in the individual
professional knowledge of the DTSC staff which is interpretive
and not documented. More importantly, a re-review of the
Permit Renewal Team effort of 20072009 has not found any
structural changes or permanent process changes that have been
implemented that could cause significantly improved permit
renewals in the future. According to CPS HR the lessons
learned from the Renewal team effort appear to have been
misconstrued, and the actions taken after the team experience
were damaging to management and supervision in the unit.
According to the department, for several years, DTSC's efforts
to carry out this mission were compromised by deficiencies in
technical and administrative processes and procedures, from a
misaligned personnel system to insufficient coordination
between programs. These systemic issues resulted in a
structural budget deficit; $184.5 million in uncollected
cleanup costs dating back 26 years; a growing backlog of
applications to renew hazardous waste permits; and decreased
stakeholder confidence and public trust in the department.
In early 2012, the department embarked on its "Fixing the
Foundation" initiative, which includes more than 30 different
activities intended to improve its operations and restore
public trust in the department. Activities include increasing
cost recovery from those responsible for hazardous waste
contamination, reducing permitting backlogs, strengthening
enforcement, and improving the financial sustainability of its
operating funds. This effort includes multiple goals at every
level of the organization, from staff engagement to permitting
backlogs and cost recovery.
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In 2014, DTSC released its Permitting Enhancement Work Plan as
a comprehensive roadmap to guide efforts to improve DTSC's
ability to issue protective, timely and enforceable permits
using more transparent standards and consistent procedures.
In the 2014-15 Budget Act, DTSC requested and was granted 8
limited-term positions and $1.2 million for reduction of
backlogged permitting application review.
As part of the 2015-16 Budget Act, DTSC requested an
additional $1.632 million and 16 limited-term positions for
two years to address the permitting backlog.
2) Independent Review Panel (IRP). The IRP was created within
DTSC by SB 83 (Committee on Budget and Fiscal Review, Chapter
24, Statutes of 2015). The IRP is comprised of three members
tasked with reviewing and making recommendations regarding
improvements to DTSC's permitting, enforcement, public
outreach, and fiscal management. The IRP will issue reports
to the Governor and Legislature every 90 days detailing
updates on DTSC's performance and backlogs. The IRP reports
will additionally include recommendations for improving DTSC
programs.
The IRP has submitted 2 reports thus far with a series of
observations, concerns and recommendations for improving
DTSC's permitting, cost recovery and site remediation
programs. Much of the reports' focus is on budgetary
improvements that have been made or are being made. In
addition the IRP makes several process improvement
recommendations around DTSC's permitting program with an
emphasis on increasing public participation and
accountability.
Comments
1) Purpose of Bill. According to the author, years of systemic
issues and programmatic deficiencies have affected DTSC's
ability to adequately protect public health and the
environment, particularly in disadvantaged communities that
suffer from multiple pollution burdens and vulnerabilities.
Over the past few years, legislative oversight, community
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advocacy, and internal reform efforts have slowly begun to
turn the ship around. Much work still remains to be done,
however.
The author asserts that AB 1205 is another step in the right
direction. AB 1205 requires DTSC to review financial
assurances required to operate a hazardous waste facility at
least once every five years. The author believes that this
will ensure that facilities have the financial capacity to
restore the public resources they degrade, pay for any
necessary cleanup or closure, and protect the state and
taxpayers from financial liability. The author states that his
bill also requires early public engagement upon submittal of a
permit renewal application so that communities have the
opportunity to understand and participate in the
decision-making process and learn about the facility's
enforcement history. Low-income communities and communities of
color have historically lacked the resources, capacity and
expertise to understand the complex permitting process as well
as engage with regulators and industry. It is critical for the
public to be aware of and involved in decisions that will
impact their communities, and this engagement should occur
well before a draft permit is prepared.
2) Or what? AB 1205 requires DTSC to review the financial
assurances required to operate a hazardous waste facility at
least once every 5 years. If DTSC's review finds the financial
assurances for a facility to be inadequate, the bill would
require DTSC to notify the owner or operator of the facility
and would require the owner or operator to update and adopt
adequate financial assurances within 90 days. What happens
after 90 days if the owner or operator doesn't adopt adequate
financial assurances?
3) A band aid on a hemorrhage? The author correctly points out
that the Legislature, the Administration and stakeholders have
all pointed to systemic issues and programmatic deficiencies
that have impacted DTSC's ability to fulfill its public health
and environmental protection mandates. The Legislature has
had nearly 20 hearings on the department's deficiencies in the
last 3 years between policy and budget committees in both
houses. DTSC and the Governor have initiated audits, panels,
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reports, and their own initiatives to fix identified problems.
The Legislature has passed several reform bills and
significantly augmented DTSC's budget and staff.
It is not clear that a suite of bills that make small "steps
in the right direction" at the 11th hour of the Legislature's
policy deadlines at the end of a two-year session is the right
direction at this point. This lacks the opportunity to do the
thoughtful consideration necessary to review how these reforms
impact all stakeholders and may actually hinder significant
reform necessary to improve DTSC.
It is clear however, that all review to date has pointed to
systemic issues at DTSC. At the heart of the criticisms
around DTSC's failings is a lack of accountability. These
bills, while they may tighten the statute, do not help solve
the root problem of greater transparency and accountability.
Related/Prior Legislation
AB 1102 (Santiago, 2016) requires DTSC to inspect a permitted
hazardous waste land disposal facility no less than once per
month, inspect a permitted and operating hazardous waste facility
no less than 4 times per calendar year, and inspect a permitted
hazardous waste facility no less than 2 times per calendar year.
AB 1400 (Santiago, 2016) requires DTSC, as a condition for a new
hazardous waste facilities permit or a renewal of a hazardous
waste facilities permit, to require a facility operator to
install monitoring devices or other equipment at the fence line
of the facility to monitor for potential releases from the
facility into the surrounding community, except as specified;
requires DTSC to grant such a request from a member of the public
for a technical assistance grant for the purpose of getting
assistance relating to, and information about, a pending
hazardous waste facilities permit if DTSC receives the request
within one year of the submission of the applicable hazardous
waste facilities permit application, and would authorize DTSC to,
in its discretion, grant such a request received more than one
year from the submission of the applicable permit application,
requires the permit applicant to fund the grants; requires DTSC,
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upon receipt of an application for a new hazardous waste
facilities permit or for a renewal of a hazardous waste
facilities permit, to post on its Internet Web site that the
application has been received, and to include with this
information a description of the process for applying for a
technical assistance grant.
SB 83 (Committee on Budget and Fiscal Review, Chapter 24,
Statutes of 2015) among other things, created the IRP to review
and make recommendations for improving DTSC programs, as
specified.
SB 673 (Lara, Chapter 611, Statutes of 2015) revises the DTSC's
permitting process and public participation requirements for
hazardous waste facilities.
SB 712 (Lara, Chapter 833, Statutes of 2014) requires DTSC, on or
before December 31, 2015, to issue a final permit decision on an
application for a hazardous waste facilities permit that is
submitted by a facility operating under a grant of interim status
on or before January 1, 1986, by either issuing a final permit or
a final denial of the application.
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
Breast Cancer Fund
California Environmental Justice Alliance
California League of Conservation Voters
Center for Community Action and Environmental Justice
Center on Race, Poverty & The Environment
Clean Water Action/ Clean Water Fund
Communities for a Better Environment
Environmental Health Coalition
Environmental Working Group
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Natural Resources Defense Council
OPPOSITION:
CalChamber
Waste Management
These lists are likely incomplete as the bill was gut and amended
on 6/20/16, not giving stakeholders a sufficient opportunity to
review.
ARGUMENTS IN SUPPORT:
Supporters state that the DTSC reform package (AB 1102, AB 1205
and AB 1400) will improve DTSC's hazardous waste permit program
by setting minimum inspection frequencies at hazardous waste
facilities, increasing public's ability to participate in the
permitting process, ensuring adequate monitoring to avoid
off-site migration of contaminants and requiring financial
assurances to cover hazardous waste facilities clean-up costs.
ARGUMENTS IN OPPOSITION:
According to Waste Management "the objection pertains to the
cumulative effect of these combined proposals, the costs of which
must all be borne by applicants or operators. In brief, the
cumulative effect will be large, poorly-understood, and clearly
discourage the operation of DTSC-licensed facilities in
California. Please note that legislation to eliminate the
flat-fee option for permit applicants is part of the budget and
trailer bills. Additionally, legislation to create an Appeals
Hearing Board is being actively considered. Can we reasonably
expect DTSC to implement the totality of these changes smoothly?
It is ill-advised to inundate DTSC with a myriad of lately
developed proposals.
These proposals should not be considered in isolation. Important
issues of public policy should be considered. For example,
approximately 85% of material deposited at Kettleman Hills is
non-RCRA waste. If transported to the border, non-RCRA waste is
subjected to dramatically less demanding regulatory standards.
During Waste Management's recent permit modification "ordeal",
waste previously deposited at Kettleman Hills went elsewhere (not
in California). No one has studied where this waste went and the
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manner in which it was handled, treated, etc. Enactment of the
three bills (and other matters) identified above could result in
the export of more waste and related activity.
No one questions the need to reform DTSC. But the rapid adoption
of multiple bills fails to prioritize reforms, frustrates
integration, and may impede reform. Further delay and
frustration may result."
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