BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 654|
|Office of Senate Floor Analyses | |
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THIRD READING
Bill No: SB 654
Author: De León (D)
Amended: 6/2/15
Vote: 21
SENATE ENVIRONMENTAL QUALITY COMMITTEE: 5-2, 4/29/15
AYES: Wieckowski, Hill, Jackson, Leno, Pavley
NOES: Gaines, Bates
SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/28/15
AYES: Lara, Beall, Hill, Leyva, Mendoza
NOES: Bates, Nielsen
SUBJECT: Hazardous waste: facilities permitting
SOURCE: Author
DIGEST: This bill revises the Department of Toxic Substance
Control's (DTSC) permitting process.
ANALYSIS: Existing law, under the California Hazardous Waste
Control Act (HWCA) of 1972:
1)Establishes the Hazardous Waste Control program.
2)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.
3)Establishes a system of fees to cover the costs of operating
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the hazardous waste management program.
4)Requires DTSC to grant and review permits and enforce HWCA
requirements for hazardous waste treatment, storage and
disposal facilities.
This bill revises DTSC's permitting process requirements for
hazardous waste facilities by:
1)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.
2)Requiring DTSC to approve or deny the permit renewal
application within 36 months.
3)Providing that applications to renew permits that expire in
2016 and 2017 are due by January 1, 2018.
4)Providing that DTSC has until January 1, 2019 to deal with
applications for renewals that are received before January 1,
2016.
Background
DTSC permitting renewal process. 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 the federal Resource Conservation and Recovery Act
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.
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Permit renewals must meet all of the land use and permitting
requirements for obtaining a new permit.
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 Office of Permitting, 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:
1)The need to create clear and objective criteria for making
denial/revocation decisions that are based on valid standards
of performance and risk;
2)A clear standard for violations that would lead to a denial or
revocation; and
3)The need for DTSC 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
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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:
1)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 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.
2)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 than half of this period. In other words,3) 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.
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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 Permit
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.
In the 2014-15 Budget Act DTSC requested and was granted eight
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.
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
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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 calls into question whether there are other
facilities that may currently be similarly causing harm to the
communities in which they are located.
Comments
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
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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, 2015) revises DTSC's permitting process and public
participation requirements for hazardous waste facilities by
creating the California Communities Committee and by revising
the statutes related to permitting regulation.
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.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: Yes
According to the Senate Appropriations Committee:
Ongoing costs of $1.466 million from the HWCA (special) to
review hazardous waste facilities permits within three years
of expiration.
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Unknown one-time costs, between minor and in the mid-hundreds
of thousands, to process additional permits in 2016 and 2017.
SUPPORT: (Verified 6/1/15)
Center on Race, Poverty & the Environment
OPPOSITION: (Verified6/1/15)
Automotive Specialty Products Alliance
California Business Properties Association
California Cement Manufacturers Environmental Coalition
California Chamber of Commerce
California Manufacturers and Technology Association
Chemical Industry Council of California
Clean Harbors Environmental Services, Inc.
Consumer Specialty Products Association
Industrial Environmental Association
Institute of Scrap Recycling Industries
Metals Finishing Association of Northern California
Metals Finishing Association of Southern California
Simi Valley Chamber of Commerce
Western Plant Health Association
Western States Petroleum Association
Prepared by:Rachel Machi Wagoner / E.Q. / (916) 651-4108
6/4/15 9:29:12
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