BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     SB 673


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          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  








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            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.
          








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          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.  









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             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  








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          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  








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          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  








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          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  








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          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  








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          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.








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          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