BILL ANALYSIS Ó SENATE COMMITTEE ON ENVIRONMENTAL QUALITY Senator Wieckowski, Chair 2015 - 2016 Regular Bill No: SB 673 ----------------------------------------------------------------- |Author: |Lara | ----------------------------------------------------------------- |-----------+-----------------------+-------------+----------------| |Version: |4/6/2015 |Hearing |4/29/2015 | | | |Date: | | |-----------+-----------------------+-------------+----------------| |Urgency: |No |Fiscal: |Yes | ------------------------------------------------------------------ ----------------------------------------------------------------- |Consultant:|Rachel Machi Wagoner | | | | ----------------------------------------------------------------- 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 SB 673 (Lara) Page 2 of ? 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 SB 673 (Lara) Page 3 of ? 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 SB 673 (Lara) Page 4 of ? 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. SB 673 (Lara) Page 5 of ? 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 SB 673 (Lara) Page 6 of ? 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 SB 673 (Lara) Page 7 of ? 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 SB 673 (Lara) Page 8 of ? 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 SB 673 (Lara) Page 9 of ? 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 SB 673 (Lara) Page 10 of ? 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." -- END --