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