BILL ANALYSIS Ó
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Wieckowski, Chair
2015 - 2016 Regular
Bill No: AB 1400
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|Author: |Santiago |
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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 a facility handling hazardous waste to obtain
a hazardous waste facilities permit from the DTSC.
i) Requires DTSC to impose certain conditions on each
hazardous waste facilities permit and authorizes the
department to impose other conditions on a hazardous waste
facilities permit, as specified.
j) A violation of the hazardous waste control law is a
crime.
This bill:
1) 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.
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2) 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, in its discretion, grant such a request
received more than one year from the submission of the
applicable permit application.
3) Requires the permit applicant to fund the grants.
4) Requires DTSC, 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.
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
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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.
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
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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
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
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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 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
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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.
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
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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.
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 in 2015, SB 83
established an Independent Review Panel (IRP) within DTSC.
The IRP is tasked with reviewing and making recommendations
regarding improvements to DTSC's permitting, enforcement,
public outreach, and fiscal management. At recent IRP
meetings, members of the public have expressed concerns that:
(1) DTSC's permitting standards often do not adequately
protect public health and/or the environment; (2) hazardous
waste facilities are frequently located near disadvantaged
communities; and (3) communities are not provided with
permit application information early enough to participate in
DTSC decision-making processes.
The author states, to address public participation and
environmental justice concerns, IRP proposed that DTSC
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establish Technical Assistance Grants to increase public
participation during the hazardous waste facility permit
application process, stating that these grants can allow the
community to raise their questions/concerns and make
permitting decisions more transparent. Furthermore, the IRP
recommended DTSC be given specific authority to require
fence-line monitoring by permit holders in appropriate cases.
The author asserts that AB 1400, in line with the IRP
recommendations and additionally, goals outlined in DTSC's
Permitting Enhancement Workplan, establishes Technical
Assistance Grants and authorizes DTSC to require fence-line
monitoring by permit holders. This measure will increase
public participation in hazardous waste facility permit
applications while additionally strengthening DTSC's
permitting standards.
2) Technical Assistance for What? It is not clear in the
language of the bill what exactly a "technical assistant
grant" is, for what activities the grant could be used or,
how exactly it is to be funded or for how much. The bill
specifies that the permit applicant is to pay for the
technical assistance grant. However, community technical
assistance is not a component of the applicants' compliance
with permit requirements or the facilities regulation and
therefore does not appear to be consistent as a fee on the
applicant.
3) A band aid on a hemorrhage? 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, 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
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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 1205 (Gomez, 2015) 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 and 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 facility and would require the
owner or operator to update and adopt adequate financial
assurances within 90 days.
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.
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 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
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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
Clean Water Action/ Clean Water Fund
Communities for a Better Environment
Environmental Health Coalition
Environmental Working Group
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
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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 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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