BILL ANALYSIS Ó
SB 654
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Date of Hearing: July 14, 2015
ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS
Luis Alejo, Chair
SB
654 (De León) - As Amended June 2, 2015
SENATE VOTE: 21-16
SUBJECT: Hazardous waste: facilities permitting.
SUMMARY: Modifies the permitting process for hazardous waste
facilities permitted by the Department of Toxic Substances
Control (DTSC). Specifically, this bill:
1)Requires the owner or operator of a facility to submit a
complete application for a permit renewal at least 2 years
prior to the expiration date of the permit.
2)Provides that when a complete renewal application has been
submitted before the end of a permit's fixed term, the permit
shall be deemed extended for a period not to exceed 36 months
until the renewal application is approved or denied.
3)Requires the 36 month time period including any applicable
rights to appeal the DTSC action on a permit.
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4)Provides that an alternative timeline would apply to renewal
for permits that expire before January 1, 2019.
EXISTING LAW:
1)Pursuant to the federal Resource Conservation and Recovery Act
(RCRA), requires owners and operators of facilities that
treat, store, or dispose of hazardous waste to obtain an
operating permit.
2)Provides, under RCRA, that DTSC is authorized by the United
States Environmental Protection Agency to be the lead agency
for enforcing the provisions of RCRA. Requires, as an
authorized state, California's regulations be consistent with,
and at least as strict as, the federal regulations.
3)Requires, pursuant to the Hazardous Waste Control Act, any
person who stores, treats, or disposes of hazardous waste, to
obtain a hazardous waste facility permit from the DTSC.
4)Requires DTSC to issue a hazardous waste facilities permit for
a fixed term, which is prohibited from exceeding ten years,
for any land disposal facility, storage facility, incinerator,
or other treatment facility.
5)Provides that a hazardous waste facility which was in
existence on November 19, 1980, pending the review and
decision of DTSC on the permit application, may be granted
interim status by DTSC if the person has made application for
a permit.
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6)Requires DTSC to take final action prior to December 31, 2015,
on a permit renewal application for a hazardous waste
treatment facility operating under an interim permit issued on
or prior to January 1, 1986.
7)Provides that any interim permit status granted for a
hazardous waste facility shall terminate five years from the
date on which the status was granted.
FISCAL EFFECT: According to the Senate Appropriations committee
the bill would result in ongoing costs of $1.466 million from
the Hazardous Waste Control Account (special) to review
hazardous waste facilities permits within three years of
expiration. Further the bill sold result in unknown one-time
costs, between minor and in the mid-hundreds of thousands, to
process additional permits in 2016 and 2017.
COMMENTS:
Need for the 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
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be granted.
"The drawn out process has created de facto permitted operation
of hazardous waste facilities without adequate review of the
facilities permit and operation.
"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."
Permitting hazardous waste storage, treatment, and disposal
facilities: DTSC is responsible for the review of RCRA and
non-RCRA hazardous waste permit applications to ensure safe
design and operation; issuance/denial of operating permits;
issuance of post closure permits; approval/denial of permit
modifications; issuance/denial of emergency permits; review and
approval of closure plans; provide closure oversight of approved
closure plans; issuance/denial of variances; provide assistance
to regulated industry on permitting matters; and provide 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
post-closure sites.
Hazardous waste facility permitting backlog: DTSC currently has
a backlog of 24 permits operating as "continued permits" with
pending permit renewal applications. The backlog is anticipated
to grow to 34 pending applications by 2017. Facilities
operating under continued permits are held to the standards in
the original permit and do not have the advantage of the most
recent technologies, practices, and safeguards to prevent
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releases of hazardous waste into the environment. In addition,
assessments to identify releases of hazardous waste from the
facility will not have been conducted, potentially allowing
contaminants to migrate further, possibly causing increased
environmental damage and public exposure.
DTSC entered into a contract with CPS HR Consulting 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 records obtained from past
internal review, and to obtain perspectives of designated
subject matter experts, including representatives from the
environmentalist, environmental justice, and industry
communities. The CPS review found that the overall average
permitting process time, which was 5.0 years prior to 2003,
improved to a 3.2 year average for the period from 2003 to 2007,
before again increasing to 4.3 years in the most recent time
period. While there was an improvement from the oldest period
studied to the most recent, the current trend is again towards
longer processing times.
Hazardous waste facilities operating with expired permits:
According to DTSC, the following facilities are example of
operations with the longest period of operation with expired
permits. While many of these facilities, like the BKK site in
West Covina, are currently closed, they are still required to
maintain an active permit for the cleanup needed prior to
completing the full closure of a facility. Many of these
facilities are currently operating under these expired permits.
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Hazardous Waste Facilities Operation on Expired DTSC Permits:
March 2015
Facility Name Permit
Expiration Date City
BKK Sanitary Landfill 06/24/1992West Covina
Phibro-Tech 07/29/1996Santa Fe
Springs
Clean Harbors 05/02/2004Westmorland
The Boeing Co-Canoga Park 05/11/2005Simi
Valley
Clean Harbors 04/06/2006Buttonwillow
Evoqua Water Technologies 10/07/2006Los
Angeles
Wit Sales and Refining 09/12/2007San Jose
Bayside Oil II 12/20/2007Santa Cruz
Best Environmental 12/29/2007Lancaster
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Ramos Environmental Services 05/18/2009West
Sacramento
Lawrence Livermore National Laboratory 11/19/2009Livermore
Lawrence Livermore National Laboratory 04/03/2013Tracy
Augments in support: A coalition of environmental and public
health organizations have stated, "DTSC allows companies who
continually violate environmental laws to remain in business and
allows hazardous waste facilities to operate on expired permits
for years on end. In fact, about a third of California's
hazardous waste facilities are currently operating on expired
permits. These abuses disparately affect low income communities
and communities of color where most of California's hazardous
waste facilities are located. By limiting the time DTSC can
allow the facility to operate once its permit has expired, SB
654 will ensure that DTSC regularly reviews the operations and
compliance history of hazardous waste facilities and applies the
most current standards and technologies for facilities seeking
to extend their permits. By ensuring that hazardous waste
facilities are operating pursuant to regularly updated permits,
the agency will be better positioned to protect the health and
safety of those living near hazardous waste facilities."
Augments in opposition: A number of business groups, including
the California Chamber of Commerce, have opposed this bill.
Specifically, they claim, "SB 654 requires the project applicant
to submit a complete application two years prior to the
expiration of the existing permit's fixed term. The Part A
application is relatively simple because it merely defines the
processes to be used for treatment, storage, and disposal of
hazardous wastes, the design capacity of such processes, and the
specific hazardous wastes to be handled at a facility. The Part
B application, however, typically takes much longer because it
contains detailed, site-specific information, and requires the
completion of highly technical studies that can take many months
if not years to complete. This iterative process, as with any
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permitting process for complex land use projects subject to a
myriad of local, state and federal requirements, is necessary
and important because it allows the permit applicant to address
any deficiencies in the application or conduct additional
studies as may be required. By the end, the Part B application
process equips DTSC with the relevant information so that it can
make a well-informed and fact-based decision on the application.
SB 654 would completely undermine this process by imposing an
arbitrary deadline by when this iterative process must take its
course."
Related/Prior Legislation:
SB 673 (Lara) Revises 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 Assembly Environmental Safety and Toxic Materials
Committee at its July 14th hearing.
SB 712 (Lara), Chapter 833, Statutes of 2014. Requires DTSC,
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 and establishes
deadlines for the submission and processing of facility
applications. SB 812 was vetoed by Governor Brown.
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Outstanding policy issues:
1)Due process for permit decisions: The provisions of this bill
have the potential to require the closure of facilities after
the 36 moth time period without an option for an appeal of the
effect of DTSC failing to take any action on a permit. While
specific permit decisions include a due process for appeals,
this new action would not include such a process. A model for
an appeals board can be found within the local air quality
districts, which appoint independent outside professionals to
review air permit appeals. Similar independent appeals board
could hear appeals of DTSC permit actions.
2)The role of the appeals process within the 3 year time
deadline: The bill, as currently drafted, establishes a 36
month deadline for permit actions, including any appeals of
those decisions. The Committee may wish to exclude the appeals
time from the deadline.
3)Increased resources to meet enhanced deadlines: The
accelerated review of permits by DTSC will require additional
resources. The current fee system for a hazardous waste
facility permit provides either a lump sum payment or a
fee-for-service payment. The experience of lump sum payments
has been that the full cost of permits review is not currently
covered by that fee. The Committee may wish to consider
providing a fee-for-service standard for permit applications
rather than a lump sum payment.
4)Notice of deficiency in permit application: Among the many
reasons for delay in permit processing and action is a
reported cycle of data submittal and re-submittals. Since
permits continue to be in effect, the delays may thwart the
timely action on permits. The Committee may wish to consider
a limit of the number of notices of deficiency that would be
allowed and provide that DTSC may suspend permits if a second
notice of deficiency is not adequately responded to by the
applicant.
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5)Streamline the permit process for closed facilities:
Approximately 25% of facility permits are currently issued for
closed facilities undergoing clean-up or remediation before
the sites can be closed. Since these are not operating
facilities, the prospect of revoking or not renewing a permit
may not be a feasible alternative. The committee may wish to
re-authorize the authority of DTSC to issue a post-closure
enforcement order or enforcement agreement, thereby allowing
DTSC to adopt a regulation to mirror the federal post-closure
rule, which allows DTSC to utilize mechanisms for post-closure
enforcement order or enforcement agreement other than a
permit.
REGISTERED SUPPORT / OPPOSITION:
Support
Center on Race, Poverty & the Environment
Opposition
Alhambra Chamber of Commerce
Automotive Specialty Products Alliance
California Business Properties Association
California Cement Manufacturers Environmental Coalition
California Chamber of Commerce
California Council for Environmental and Economic Balance
California Manufacturers and Technology Association
Chemical Industry Council of California
Clean Harbors Environmental Services, Inc.
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Consumer Specialty Products Association
Fullerton Chamber of Commerce
Greater Fresno Area Chamber of Commerce
Industrial Environmental Association
Institute of Scrap Recycling Industries
Metals Finishing Association of Northern California
Metals Finishing Association of Southern California
Oxnard Chamber of Commerce
Palm Desert Area Chamber of Commerce
Rancho Cordova Chamber of Commerce
Redondo Beach Chamber of Commerce & Visitors Bureau
San Diego Regional Chamber of Commerce
Simi Valley Chamber of Commerce
South Bay Alliance of Chambers of Commerce
Southwest California Legislative Council
Torrance Chamber of Commerce
U.S. Department of Defense, Region 9
Western Plant Health Association
Western States Petroleum Association
Analysis Prepared by:Bob Fredenburg / E.S. & T.M. / (916)
319-3965