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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