BILL ANALYSIS Ó
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Wieckowski, Chair
2015 - 2016 Regular
Bill No: SB 654
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|Author: |de León |
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|Version: |4/21/2015 |Hearing |4/29/2015 |
| | |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).
2.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 the Department of Toxic Substances Control
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.
This bill: Revises the Department of Toxic Substances Control's
(DTSC) permitting process and public participation requirements
for hazardous waste facilities. Specifically, this bill:
1. Changes the requirements pertaining to the renewal of
hazardous waste facilities permits by:
A. Requiring that a complete renewal application,
containing both Part A and Part B of the application, be
submitted by the facility at least two years prior to the
expiration of the permit.
B. Requires DTSC to approve or deny the permit renewal
application within 36 months or the facility is deemed in
violation of the HWCA.
Background
1. DTSC Permitting Renewal Process.
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Title 22, California Code of Regulations, Section 66270.10(h)
requires "[a]ny hazardous waste management facility with an
effective permit shall submit a new application at least 180
days before the expiration date of the effective permit,
unless permission for a later date has been granted by the
Department. The Department shall not grant permission for
applications to be submitted later than the expiration date
of the existing permit." To ensure completion of the permit
renewal application at least 180 days before the expiration
date of the effective permit, it is recommended that the
renewal application be submitted at least one year before the
expiration date of the permit. Current applicants who apply
to renew RCRA permits, where the renewal application contains
significant changes in the facility's operation (equal to a
Class 3 Permit modification), must hold an informal
preapplication meeting. Permit renewals must meet all of the
land use and permitting requirements for obtaining a new
permit.
2. DTSC Permitting Program Backlog.
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:
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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
time.
The study notes several key findings regarding the recent
increase in permit processing time, which is attributed to at
least two major factors:
A. There was a reduction in staffing in the
office. Permitting staffing has been reduced
significantly from 95.8 personnel years utilized in FY
2007 to just 24.6 personnel years utilized in FY2009.
The initial change was a response to the economic
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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.
B. The study found that the second primary reason
for permitting delays is poor management practices.
Between December 2009 and June 2013, the Permitting
Program Office 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 thaC.n
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.
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.
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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 has requested an
additional $1.632 million and 16 limited term positions for
two years to address the permitting backlog.
3. 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
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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 calls into question whether there are other
facilities that may currently be similarly causing harm to
the communities in which they are located.
Comments
1. Purpose of Bill. According to the author, DTSC has a
long-standing failure to protect California's disadvantaged
communities through its lack of oversight and enforcement of
its hazardous waste facilities permitting process.
The author states that DTSC's consistent failure to complete
the permitting renewal process prior to permit expiration has
been a systemic problem with the program since its inception.
DTSC's regulations require a submittal of a permit renewal
application only six months prior to the permit expiration,
yet the time it takes for DTSC to review and decide on that
renewal is often two or more years. It doesn't make sense to
have a timeline that assumes that the permit will expire and
then allow facilities to continue to operate without a
current permit under the assumption that the facility's
permit renewal should or will be granted.
The author further states, that the drawn out process has
created de facto permitted operation of hazardous waste
facilities without adequate review of the facilities permit
and operation.
The author asserts that this negligence in permitting review
puts our most pollution vulnerable communities at risk.
SB 654 will correct this failure in permitting by requiring
earlier submittal of permit renewal applications and states
that if the process is not complete then the facility will be
in violation with the HWCA.
Related/Prior Legislation
SB 673 (Lara) revises the Department of Toxic Substances
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Control's (DTSC) permitting process and public participation
requirements for hazardous waste facilities by creating the
Community Oversight Committee and by revising the statutes
related to permitting regulation. This measure will be heard by
the Senate Environmental Quality Committee on April 29, 2015.
SB 712 (Lara), Chapter 833, Statutes of 2014, requires the
Department of Toxic Substances Control (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: None on file
OPPOSITION:
Western Placer Waste Management Authority
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