BILL ANALYSIS Ó
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Wieckowski, Chair
2015 - 2016 Regular
Bill No: SB 673
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|Author: |Lara |
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|Version: |4/6/2015 |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
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
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and transportation of hazardous waste from the 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.Establishes, until January 1, 2021, the DTSC Community Oversight
Committee within the department and requires the committee to
make recommendations to the department to increase public
participation in, and the transparency of, the department's
decisionmaking, and to serve as a resource and liaison for
communities and residents in communication with the department.
A. Specifies that the Community Oversight Committee be
comprised of thirteen members appointed by California
Environmental Protection Agency (five members), Senate
Rules Committee (four members) and Speaker of the Assembly
(four members). Members of the Community Oversight
Committee receive per diem and serve at the pleasure of the
respective appointing authorities.
B. Specifies that the Community Oversight Committee
provides input to the Director of DTSC on improving
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outreach and communications with communities and
stakeholders to increase public participation and
transparency.
2.Requires the department, by July 1, 2018, to adopt additional
criteria, as specified, for use in determining whether to issue
a new hazardous waste facilities permit or a renewal of a
hazardous waste facilities permit, and to develop and implement
programmatic reforms designed to improve the protectiveness,
timeliness, legal defensibility, and enforceability of the
department's permitting program.
3.Requires a person to pay for oversight of any corrective action
required of the person with respect to hazardous waste.
Background
1. 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:
The need to create clear and objective criteria
for making denial/revocation decisions that are based on
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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:
1. 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.
2. The study found that the second primary reason
for permitting delays is poor management practices.
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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 ot3.her 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 rereview 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.
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.
2. Exide Technologies, Vernon, California. The Exide facility in
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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.
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 "SB 673 establishes a
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Community Oversight Committee within DTSC to make policy
recommendations to the department, and to serve as a liaison
and conduit between the department and communities that may be
impacted by permitting and enforcement actions for facilities
regulated by the department. The bill also requires DTSC to
adopt additional permitting criteria, and evaluate past and
potential future community impacts, when determining whether to
issue or renew a hazardous waste facilities permit."
The author states that "the bill creates important additional
criteria that DTSC must consider when issuing or renewing a
permit for a hazardous waste facility. The bill will ensure
that the department considers past violations of the facility,
vulnerability of surrounding communities, evidence of financial
responsibility and adequate financial assurances for closure
and cleanup. The bill also establishes an opportunity for
public participation and input in DTSC actions, improving
accountability and transparency."
The author asserts that "SB 673 will create a conduit between
DTSC and vulnerable communities across California that are
impacted by hazardous waste facilities that are regulated by
the department. Many of those communities are low income
communities and communities of color that are already
disproportionally affected by pollution. This bill provides
important accountability, transparency, and oversight measures
that will improve the relationship between DTSC and the
communities it is mandated to protect."
2. What is the Role of the "Community Oversight Committee"?
This bill creates a 13 member committee of community members to
fulfill two roles: 1) give DTSC community member input on
hazardous waste permitting, enforcement and public
participation and 2) be a communication resource to communities
with DTSC. The intent of this new committee is to create more
accountability and transparency within DTSC around its
hazardous waste activities and to allow California communities
input in making improvements.
The bill, however, does not provide clear direction of how the
committee will fulfill these roles, how it will interact with
the department and how members of the public that do not sit on
the committee can participate. The following amendments would
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further clarify the bill to meet the above intent:
A. Provide for designation, by the Secretary of the
California Environmental Protection Agency, of a chair of
the committee.
B. Require the committee meetings include the Secretary or
designee of Cal EPA and the DTSC director and staff.
C. Require that dates for the meetings be agreed upon and
set with the DTSC director.
D. Require that the committee provide to the DTSC director
an agenda for the meeting at least 30 days prior to the
meeting.
E. Require DTSC to post that agenda on its Internet web
site.
F. Require DTSC to provide meeting space for the committee
meetings.
G. Require that the committee meetings be public and comply
with the Bagley-Keene Open Meeting Act.
H. Clarify the role of the committee by removing the role of
"resource" and "liaison" and replacing it with language
stating that the committee shall provide DTSC with
information about the specific communities and the impacts
of DTSC hazardous waste activities within those communities.
Additionally, the term "oversight" implies a supervisorial role.
Based on the description of this committee with the legislation,
this committee appears to be providing advice as opposed to
oversight. The author may wish to consider amending the bill to
provide a name that is more accurately descriptive of the role of
the committee.
Related/Prior Legislation
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
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establishes deadlines for the submission and processing of
facility applications, as specified. SB 812 was vetoed by
Governor Brown.
SOURCE:
Center on Race, Poverty & the Environment
SUPPORT:
California Environmental Justice Alliance
Center for Community Action and Environmental Justice
Clean Water Action
Communities for a Better Environment
Concerned Neighbors of Wildomar
Environmental Action Committee of West Marin
Environmental Working Group
Greater Pasadena Jews for Justice
LA Human Right to Housing Collective
People's Senate and Leadership Institute
Physicians for Social Responsibility, Los Angeles
OPPOSITION:
Automotive Specialty Products Association
California Building Industry Association
California Business Properties Association
California Chamber of Commerce
California Cement Manufacturers Environmental Coalition
California Manufacturers and Technology Association
California Metals Coalition
Chemical Industry Council of California
Clean Harbors Environmental Services, Inc.
Consumer Specialty Products Association
Industrial Environmental Association
Institute of Scrap Recycling Industries, Inc.
Western States Petroleum Association
Western Plant Health Association
ARGUMENTS IN
SUPPORT:
According to the support, "residents impacted by hazardous waste
sites across
California have identified a need for an effective forum to
develop community-led solutions to reduce the toxic threats they
face, as well as to improve communications, transparency and
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agency responsiveness. The committee is designed to do just that
and will provide a seat at the table for those most impacted by
DTSC decisions."
The support continues by stating that, "the additional permitting
criteria will ensure that DTSC's permitting decisions are more
protective of neighborhoods near proposed hazardous waste
facilities by providing consistent and objective standards to
evaluate an applicant's compliance history as well as the
neighborhoods' social and environmental vulnerabilities."
ARGUMENTS IN
OPPOSITION:
According to the opposition, "SB 673 is unnecessary, and at the
very least premature, as it fundamentally undermines DTSC's
recently proposed regulatory plan to improve the hazardous waste
permitting system by issuing protective, timely and enforceable
hazardous waste permits."
The opposition further states that the Permitting Enhancement Work
Plan "seeks to achieve similar goals as SB 673 on the regulatory
level."
The opposition asserts that while their organizations "do not take
a formal position on the Permitting Enhancement Work Plan, but
merely reference its existence and content to underscore [their]
position that substantive legislation to reform the hazardous
waste permitting system is unneeded at this time and could further
complicate and undermine DTSC's efforts to make needed potentially
effective improvements through the regulatory process."
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