BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 1325| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: SB 1325 Author: De León (D) Amended: 4/12/16 Vote: 21 SENATE ENVIRONMENTAL QUALITY COMMITTEE: 5-0, 4/20/16 AYES: Wieckowski, Hill, Jackson, Leno, Pavley NO VOTE RECORDED: Gaines, Bates SENATE APPROPRIATIONS COMMITTEE: 6-1, 5/27/16 AYES: Lara, Beall, Hill, McGuire, Mendoza, Nielsen NOES: Bates SUBJECT: Hazardous waste: facilities: postclosure plans SOURCE: Author DIGEST: This bill removes the sunset date of 2009 for the use of enforcement order or enforceable agreements by the Department of Toxic Substances Control (DTSC) to impose postclosure plan requirements and requires DTSC to adopt new regulations for review, oversight and enforcement of closure and postclosure of hazardous waste facilities plans. ANALYSIS: Existing law: 1)Governs, under the federal Resource Conservation and Recovery Act (RCRA) of 1976, the disposal of hazardous waste: SB 1325 Page 2 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)Enacts the California Hazardous Waste Control Act (HWCA) of 1972 which: 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 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 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 for both facilities in operation SB 1325 Page 3 and those closed and postclosure. i) California Code of Regulations Title 22 66264 implements hazardous waste permitting requirements, including closure/postclosure requirements for California hazardous waste facilities. g) Provides DTSC the authority to impose postclosure plan requirements through an enforcement order or an enforceable agreement. This bill: 1)Removes the sunset date of 2009 for the use of enforcement order or enforceable agreements by DTSC to impose postclosure plan requirements. 2)Requires DTSC to adopt new regulations for review, oversight and enforcement of closure and postclosure of hazardous waste facilities plans. Background 1)Permitting hazardous waste storage, treatment, and disposal facilities and closure/postclosure. DTSC is responsible for the review of RCRA and non-RCRA hazardous waste permit applications to ensure the safe design and operation; issuance/denial of operating permits; issuance of postclosure 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; and public involvement. SB 1325 Page 4 As of 2015, there were 118 DTSC permitted hazardous waste facilities in California. These facilities include: 44 storage sites, 43 treatment facilities, 3 disposal sites, and 28 postclosure sites. A facility closure plan demonstrates that hazardous materials at a closed facility have been transported, disposed of, or reused in a manner which eliminates the need for further maintenance and any threat to public health and safety or the environment. California follows the federal rules for closure and postclosure rules of hazardous waste treatment, storage, and disposal facilities (TSDFs). However, the state has adopted more stringent requirements for notification, time allowed for closure, and disposal restrictions. In addition, the state requires a variance for any on-site postclosure construction activity and has additional closure and postclosure rules for specific TSDFs. California Environmental Protection Agency's DTSC enforces the TSDF closure and postclosure requirements in California. 2)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: Clear and updated permitting standards and decision making criteria; SB 1325 Page 5 Increased and early public participation; Enhanced enforcement actions; and, Developing new and more effective engagement strategies for communities overburdened by multiple pollution sources. 1)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. The facility was 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 SB 1325 Page 6 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. On April 7, 2016, the Senate approved AB 118 (Santiago, Chapter 10) which appropriates $176.6 million from the Toxic Substances Control Account to provide cleanup and investigation of properties contaminated by lead in communities surrounding the Exide Technologies facility in the City of Vernon and other related activities. Comments 1)Purpose of bill. DTSC has not updated its regulations related to closure/postclosure requirements in 20 years. As discovered with the closure of the Exide facility in Vernon, California, and the Senate's on-going oversight of DTSC and its permitting program, there is a great risk of long-term environmental damage and potential public health exposures and harm from some of these facilities. Much new technology and knowledge about the activities at these facilities and their potential closures has been developed in the last 20 years, especially the impacts to our most vulnerable and disadvantaged communities. Current practices for closure/postclosure requirements should be reviewed and new regulations developed to ensure the appropriate regulatory oversight tools are used to protect human health and the SB 1325 Page 7 environment. Prior Legislation SB 673 (Lara, Chapter 611, Statutes of 2015) revises DTSC's permitting process and public participation requirements for hazardous waste facilities by creating the Community Oversight Committee and by revising the statutes related to permitting regulation. SB 712 (Lara, Chapter 833, Statutes of 2014) requires 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 establishes deadlines for the submission and processing of facility applications, as specified. SB 812 was vetoed by Governor Brown. FISCAL EFFECT: Appropriation: No Fiscal Com.:YesLocal: No According to the Senate Appropriations Committee: Unknown, but likely minimal costs, to DTSC to develop regulations to impose postclosure plan requirements. Up to a $287,000 (special fund) annual reduction in permitting SB 1325 Page 8 fees, which DTSC notes could be offset by lower processing costs. SUPPORT: (Verified5/27/16) None received OPPOSITION: (Verified5/27/16) None received Prepared by:Rachel Machi Wagoner / E.Q. / (916) 651-4108 5/28/16 17:00:36 **** END ****