BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 673|
|Office of Senate Floor Analyses | |
|(916) 651-1520 Fax: (916) | |
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THIRD READING
Bill No: SB 673
Author: Lara (D)
Amended: 5/5/15
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
SOURCE: Center on Race, Poverty & the Environment
DIGEST: This bill revises the Department of Toxic Substances
Control's (DTSC) permitting process and public participation
requirements for hazardous waste facilities.
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.
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3)Implements federal tracking requirements for the handling and
transportation of hazardous waste from the point of waste
generation to the point of ultimate disposition.
4)Establishes a system of fees to cover the costs of operating
the hazardous waste management program.
5)Authorizes the DTSC to enforce federal law and regulations
under RCRA.
6)Requires the DTSC to grant and review permits and enforce HWCA
requirements for hazardous waste treatment, storage and
disposal facilities.
7)Authorizes the DTSC 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:
1)Establishes, until January 1, 2021, the DTSC California
Communities Committee within the DTSC and requires the
committee to make recommendations to the DTSC to increase
public participation in, and the transparency of, the DTSC's
decisionmaking.
2)Requires the DTSC, 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 DTSC's permitting program.
3)Requires a person to pay for oversight of any corrective
action required of the person with respect to hazardous waste.
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Background
DTSC Permitting Program Backlog. The DTSC Office of Permitting
(Office) 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,
located in Sacramento, Berkeley, and Chatsworth.
There has been significant dissatisfaction with the performance
of the 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:
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;
3)The need for the DTSC to document and measure a "scorecard" of
attributes that would be perceived as a "good result" for the
permitting program.
The DTSC entered into a contract with CPS HR Consulting on
February 1, 2013, to conduct a Permitting Process Review and
Analysis.
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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. Between December 2009 and
June 2013, the 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
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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 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, the 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, the 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, the 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 in Vernon has been operating with an interim
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hazardous waste facility permit since 1981.
In recent years, the Exide facility has brought to light the
failings of the 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 the
DTSC to complete remediation activities as specified in the
stipulation and order issued by the DTSC.
This example of a failed process calls into question whether the
statutory authorizations, requirements and direction to the 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 "SB 673 establishes the
California Communities 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
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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."
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: No
According to the Senate Appropriations Committee:
Ongoing costs of $1.2 annually from the Hazardous Waste
Control Account (special) beginning in 2015-16 and continuing
through 2020-21to DTSC to administer and staff the DTSC
California Communities Committee.
One-time costs of no more than $600,000 costs from the
Hazardous Waste Control Account (special) to develop
additional permit criteria regulations and financial assurance
regulations.
SUPPORT: (Verified5/28/15)
Center on Race, Poverty & the Environment (source)
California Environmental Justice Alliance
Center for Community Action and Environmental Justice
Clean Water Action
Communities for a Better Environment
Concerned Neighbors of Wildomar
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Environmental Action Committee of West Marin
Environmental Working Group
Greater Pasadena Jews for Justice
LA Human Right to Housing Collective
Natural Resource Defense Council
People's Senate and Leadership Institute
Physicians for Social Responsibility, Los Angeles
OPPOSITION: (Verified5/28/15)
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
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
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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."
Prepared by:Rachel Machi Wagoner / E.Q. / (916) 651-4108
5/31/15 12:53:57
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