BILL ANALYSIS Ó SB 673 Page 1 Date of Hearing: July 14, 2015 ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS Luis Alejo, Chair SB 673 (Lara) - As Amended July 8, 2015 SENATE VOTE: 21-14 SUBJECT: Hazardous waste. SUMMARY: 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 DTSC and requires it to make recommendations to DTSC to increase public participation in, and the transparency of, the department's decision making process, and to serve as a resource and liaison for communities and residents in communication with DTSC. 2)Requires the Community Oversight Committee is comprised of thirteen members appointed by California Environmental Protection Agency (five members), Senate Rules Committee (four members), and Speaker of the Assembly (four members). Provides that the members of the Community Oversight Committee receive per diem and serve at the pleasure of the respective SB 673 Page 2 appointing authorities. 3)Requires DTSC, by July 1, 2018, to adopt additional criteria for use in determining whether to issue a new or modified 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 DTSC's permitting program. 4)Requires DTSC to consider vulnerable communities in making permit decisions using the CalEnviroScreen tool, local and regional health risk assessments, the region's federal Clean Air Act attainment status, and other indicators of community vulnerability, cumulative impact, and potential risks to health and well-being. 5)Requires DTSC to consider minimum facility setback distances from sensitive receptors, such as schools, child care facilities, residences, hospitals, elder care facilities, and other sensitive locations when making permit decisions. 6)Requires DTSC to establish criteria of the completion of a health risk assessment associated with facility permit reviews. 7)Requires a person to pay for oversight of any corrective action required of the person with respect to hazardous waste. SB 673 Page 3 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 (US/EPA) 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 hazardous waste facilities to operate subject to permits issued by DTSC and which are in accordance with applicable federal law, including RCRA. 5) 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. 6) Establishes an independent review panel to make recommendations regarding improvements to the DTSC's permitting, enforcement, public outreach and fiscal management. SB 673 Page 4 7) Creates an assistant director for environmental justice within DTSC to serve as an ombudsperson for disadvantaged communities. FISCAL EFFECT: According to the Senate Appropriations Committee, this bill would have ongoing costs of $1.2 annually from the Hazardous Waste Control Account (special) beginning in 2015-2016 and continuing through 2020-2021to DTSC to administer and staff the DTSC California Communities Committee. The bill would result in 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. COMMENTS: Need for the bill: According to the author, "Recent high profile cases involving permitted facilities such as the Exide Technologies battery recycling facility in Vernon, CA, and the Kettleman Hills Hazardous Waste Facility in Kings County have raised significant environmental justice concerns from the communities surrounding the facilities and have led to criticism of the department's permitting procedures and responsiveness to community concerns. An external peer review of permit reforms undertaken by DTSC found that there has been significant dissatisfaction with the performance of the department, and in particular a perception that the office is not responsive to community concerns. That report also recommended that clear and objective permitting criteria should be developed to establish when permits should be SB 673 Page 5 revoked or not renewed." Permitting hazardous waste storage, treatment, and disposal facilities: DTSC is responsible for the review of RCRA and non-RCRA hazardous waste permit applications for to ensure the 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; closure oversight of approved closure plans; issuance/denial of variances; assistance to regulated industry on permitting matters; 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. Criticism of the DTSC hazardous waste facility permitting process: A report entitled "Golden Wasteland," prepared by the Consumer Watchdog organization, issued in February of 2013, was critical of DTSC's hazardous waste permitting and enforcement processes. According the report, DTSC settles cases out of court with facility operators, levies ineffective fines, and fails to develop and refer cases for prosecution. It was asserted that DTSC often awards permits without environmental review, and has not revoked the permit of a serial violator of environmental laws in more than 15 years. DTSC external peer review of permit reforms: DTCS has undertaken a review of permitting and enforcement processes for hazardous waste facilities. To do this, DTSC contracted for an outside program evaluation by CPS HR Consulting that provided a review of the DTSC permit process to develop a standardized process with decision criteria and corresponding standards of SB 673 Page 6 performance. The program evaluation of the DTSC permitting process found that 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. DTSC Permitting Enhancement Work Plan (PEWP): In 2014, DTSC developed PEWP to improve DTSC's permitting program and to ensure that the problems of the past do not resurface in the future. The PEWP will serve as a comprehensive work plan for DTSC's efforts to improve the permitting program's ability to issue protective, timely, and enforceable permits using more transparent standards and consistent procedures. Key provisions of the PEWP include: 1)Clear and updated permitting standards and decision making criteria; 2)Increased and early public participation; 3)Enhanced enforcement actions; and, 4)Developing new and more effective engagement strategies for communities overburdened by multiple pollution sources. Arguments in support: According to a coalition of environmental, public health and community organizations, including the Center on Race, Poverty & the Environment, "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 SB 673 Page 7 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 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: A coalition of business and industry groups, including the California Chamber of Commerce, are opposed to SB 673 and voiced a concern over the effect of the facility siting standards, "SB 673 requires DTSC to adopt regulations establishing additional criteria that DTSC must use to determine whether to issue a new or renewed hazardous waste permit. According to SB 673, these criteria shall include, among others: (1) minimum setback distances from sensitive receptors and (2) the vulnerability of, and existing health risks to, nearby populations. Vulnerability, according to SB 673, shall be assessed using the CalEnviroScreen tool and other indicators of community vulnerability. The permit criterion related to minimum setbacks from sensitive receptors fails to take into account that virtually every application for a hazardous waste permit is for a renewal of an existing facility. With this understanding in mind, some sensitive receptors have located near hazardous waste facilities after the facility had already been operating for years within an existing, permitted footprint. SB 673 would now require DTSC to potentially impose new, more restrictive setback requirements which would, in turn, require existing facilities to change SB 673 Page 8 their operating footprint. This would be impossible for many facilities as a practical matter, and would further raise serious legal implications with respect to the vested property rights of existing facilities." Recent related legislation: 1)SB 83 (Senate Budget Committee) Chapter 24, Statutes of 2015. Established of an independent review panel at DTSC to make recommendations regarding improvements to the department's permitting, enforcement, public outreach and fiscal management. Also establishes an assistant director for environmental justice to serve as an ombudsperson for disadvantaged communities. 2)SB 812 (De León) 2014. Would have provided permit standards and community involvement in the DTSC process similar in nature to those provided by this bill. SB 812 was vetoed by Governor Brown. In his veto message the Governor stated, "The delay and complexity that has plagued the Department's permit process over the last few decades has resulted in an inadequate and unresponsive regulatory program. Unfortunately, there are provisions in the bill that will unintentionally delay the Department's current plan to revise its program and complete its review of expired permits over the next two years. Instead of risking further delay and confusion, I would like to personally work with the author on modifications to the language, including providing the Department the necessary authority and adequate resources to fulfill our shared SB 673 Page 9 objectives of improving the performance of this critically important state program." REGISTERED SUPPORT / OPPOSITION: Support: California Environmental Justice Alliance Center for Community Action and Environmental Justice Center on Race, Poverty & the Environment 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 Organizing to Demand Environmental & Economic Rights (PODER) 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 Cement Manufacturers Environmental Coalition California Chamber of Commerce California Council for Environmental and Economic Balance California Manufacturers and Technology Association California Metals Coalition Chemical Industry Council of California Clean Harbors Environmental Services, Inc. SB 673 Page 10 Consumer Specialty Products Association Industrial Environmental Association Institute of Scrap Recycling Industries, Inc. Western Plant Health Association Western States Petroleum Association Analysis Prepared by:Bob Fredenburg / E.S. & T.M. / (916) 319-3965