BILL ANALYSIS Ó
SB 812
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Date of Hearing: June 17, 2014
ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS
Luis A. Alejo, Chair
SB 812 (De Leon) - As Amended: June 12, 2014
SENATE VOTE : 27-7
SUBJECT : Department of Toxic Substance Control Oversight.
SUMMARY : Modifies the permitting process for hazardous waste
facilities and the public participation requirements for the
Department of Toxic Substance Control (DTSC). Specifically,
this bill :
1)Makes a series of legislative findings related to the health
risk posed by hazardous waste treatment facilities, including:
a) The Department of Toxic Substance Control (DTSC)
regulates 117 facilities across the state that store,
treat, or dispose of hazardous waste, and nearly a quarter
are operating on permits whose original expiration dates
have passed, including the Exide Technologies in Vernon,
California. Exide has been allowed to operate on an
interim permit for over 30 years, regardless of its
repeated violations of environmental and public health
standards.
b) Finds that is the intent of the Legislature to
strengthen our hazardous waste management regulatory system
to better protect vulnerable communities and residents from
toxic pollution by addressing loopholes in the permitting
system.
2)Requires DTSC to modify the existing pubic Internet web site
to include:
a) Spanish translation of facility permit;
b) The facility status and the DTSC's evaluation of the
permitting criteria: and
c) The evaluations or findings that support permitting
decisions.
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3)Establishes a Bureau of Internal Affairs to oversee DTSC and
investigate departmental misconduct. The Bureau of Internal
Affairs will include the following:
a) The Bureau of Internal Affairs is directed to determine
if allegations of misconduct within DTSC warrant
investigation and carry out investigations of those
allegations of Department misconduct.
b) Provides that all allegations or complaints are logged
in and the log along with the disposition of the
allegations are forwarded to a newly created DTSC Citizen
Oversight Committee and posted on the DTSC Internet Site.
c) Provides that all allegations of misconduct are reviewed
by the Bureau of Internal Affairs, and upon completion of
the review, a written report shall be made public.
d) The Bureau of Internal Affairs shall issue regular
reports, no less than annually, on the number of complaints
against DTSC, the disposition on the complaints, and the
outcome of the investigations, including the discipline
imposed and the degree to which DTSC agrees with the Bureau
of Internal Affairs' recommendations.
e) The Secretary of the California Environmental Protection
Agency (Cal/EPA) shall appoint the director of the Bureau
of Internal Affairs.
4)Establishes the DTSC Citizen Oversight Committee to receive
and review allegations of misconduct from members of the
public, as well as the Bureau of Internal Affairs. The DTSC
Citizen Oversight Committee shall:
a) Be comprised of 13 members appointed by the Governor and
Senate Rules Committee and the Speaker of the Assembly.
The appointees may not be representatives from DTSC or from
regulated entities.
b) Make recommendation for changes in policies, procedures,
and standards of DTSC and increase public participation and
transparency of the DTSC decision-making process.
c) Review and make public any reports received from the
Bureau of Internal Affairs.
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d) The members of the DTSC Citizen Oversight Committee will
be provided per diem compensation.
5)Requires DTSC to adopt regulations to specify the financial
assurance required as a condition for receiving Hazardous
Waste Facility permits. The regulations are required to be
completed by January 1, 2016.
6)Requires DTSC to contract with an independent third party to
conduct any required testing to verify that a hazardous waste
release has been abated and that a site has been remediated.
7)Requires DTSC to adopt regulations to specify the conditions
that must be met to receive a new permit or to renew an
excising permit. The regulations would be required to be
completed by January 1, 2016, and include the following permit
review considerations:
a) The number and type of violations that shall result in
permit denial;
b) The vulnerability of, and existing health risks to,
nearby populations. Vulnerability shall be assessed using
CalEnviroScreen data, local and regional health risk
assessments, the region's state and federal Clean Air Act
attainment status, and other indicators of community
vulnerability, cumulative impact, and potential risks to
health and wellbeing;
c) A minimum set back distance from sensitive receptors
such as schools, childcare facilities, residences,
hospitals or elder care facilities, and other sensitive
locations from permitted facilities;
d) Certification provided by the owner or operator that
the activity sought to be permitted uses the
least-hazardous materials, product formulations, and
production processes reasonably available;
e) Certification provided by the owner or operator that it
has employed all technically feasible, economically
practicable source reduction techniques;
f) Demonstration of financial responsibility,
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qualifications of ownership, and continuity of ownership
and operation, including financial assurances;
g) Provide training of personnel, safety culture and plans,
emergency plans, and maintenance of operations; and,
h) Compliance with other DTSC established standards.
8)Establishes deadlines for the submission of applications for
hazardous waste facility permits, as well as deadlines, for
the processing of facility applications. These deadlines
include:
a) The DTSC shall approve or deny the application for
permit renewal for a facility within 36 months following
the expiration of the permit's fixed term;
b) An application for permit renewal is deemed denied if
DTSC fails to act within 36 months following the expiration
of the permit's fixed term;
c) For a facility with a permit that expired on or before
January 1, 2015, and for which an application for permit
renewal had been submitted before January 1, 2015, DTSC
shall approve or deny the application on or before January
1, 2018; and,
d) An application for permit renewal is deemed denied if
DTSC fails to act on or before January 1, 2018.
9)Requires that interim status granted for a facility on or
after January 1, 2015, will terminate five years from the date
the interim status is granted or on the date the DTSC takes
final action on the application.
10)Requires DTSC to provide a public notice and comment period
before the preparation and adoption of a draft hazardous waste
facility permit.
EXISTING FEDERAL LAW :
1)Requires owners and operators of facilities that treat, store,
or dispose of hazardous waste to obtain an operating permit
pursuant to the Resource Conservation and Recovery Act (RCRA).
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2)RCRA grants "interim status" to any facility in existence on
November 19, 1980, or on the effective date of a statutory or
regulatory change that subjected the facility to the
permitting requirement.
3)California Department of Toxic Substances Control (DTSC) has
been authorized by the United States Environmental Protection
Agency (US/EPA) to be the lead agency for enforcing the
provisions of RCRA. As an authorized state, California's
regulations must be consistent with, and at least as strict
as, the federal regulations.
EXISTING STATE LAW :
1)Pursuant to the Hazardous Waste Control Act, Chapter 6.5 of
Health and Safety Code, requires any person who stores,
treats, or disposes of hazardous waste, to obtain a hazardous
waste facility permit from the DTSC.
2)Requires hazardous waste facilities to operate subject to
permits issued by DTSC and which are in accordance with
applicable federal law, including RCRA.
3)Requires the 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.
4)Provides that a hazardous waste facility which was in
existence on November 19, 1980, pending the review and
decision of the DTSC on the permit application, may be granted
interim status by DTSC if the person has made application for
a permit.
FISCAL EFFECT : Not known.
COMMENTS :
Need for the bill : According to the author, "SB 814 will
strengthen the hazardous waste regulatory system, beginning with
addressing when final permit decisions must be made by the
Department of Toxic Substances Control (DTSC). We are not going
to let hazardous waste facilities continue to pollute vulnerable
neighborhoods anymore. Some facilities are emitting toxic
hazardous waste, including lead, mercury, and arsenic. Many of
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them have been operating under expired permits for decades.
Facilities not in compliance with public health and
environmental standards will be shut down."
Permitting hazardous waste storage, treatment, and disposal
facilities : DTSC is responsible for the review of RCRA and
non-RCRA hazardous waste permit applications to ensure 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; provide closure oversight of approved
closure plans; issuance/denial of variances; provide assistance
to regulated industry on permitting matters; and provide for
public involvement provide.
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 a
consumer advocacy organization, issued in February of 2013, was
critical of DTSC hazardous waste permitting and enforcement
process. According the report, DTSC settled cases out of court
with facility operators, levies ineffective fines, and fails to
develop and refer cases for prosecution. It was asserted that
the DTSC often awards permits without environmental review, and
it has not revoked the permit of a serial violator of
environmental laws in more than 15 years, the report found.
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 has 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
performance. The DTSC process will review and assess the
current timeliness of decisions, and evaluate the adequacy of
program staffing. It will make recommendations for process
improvement. DTSC is currently taking action on the specific
recommendations through the review process for permit process
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changes. The program changes have been included with the
Governor's Budget for FY 2014-2015.
The program analysis 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. The stakeholders included in the
review 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 Department to document and measure a
"scorecard" of attributes that would be perceived as a "good
result" for the permitting program;
4)The need to identify and measure appropriate permitting
process timelines; and,
5)The need to document, maintain and implement effective
financial assurance standards to
ensure that facilities can meet their permitted obligations.
Permitting Backlog : DTSC currently has a backlog of 24 permits
operating as "continued permits" with pending permit renewal
applications. The backlog is anticipated to grow to 34 pending
applications by 2017. Facilities operating under continued
permits are held to the standards in the original permit and do
not have the advantage of the most recent technologies,
practices, and safeguards to prevent releases of hazardous waste
into the environment. In addition, assessments to identify
releases of hazardous wastes from the facility will not have
been conducted, potentially allowing contaminants to migrate
further, and possibly causing increased environmental damage and
public exposure.
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Facilities Financial Assurance : Financial assurance mechanisms
are based on DTSC-approved cost estimates. Funds placed in
these mechanisms are used to pay for the costs of deconstructing
the structures and equipment utilized in the operation of the
facility, and to monitor any hazardous waste left in place when
the facility closes. Costs are estimated based upon engineering
and financial calculations, and are reviewed by DTSC technical
staff as part of the permit review process or whenever
significant operation changes are proposed by the facility.
The cost estimates for closure and corrective action at 40
permitted facilities have not been updated in over 5 years. If
these facilities fail to set aside sufficient funds, there would
be no funds available if the facilities become insolvent and
unable to pay for decommissioning and decontaminating the
facility. In that case, DTSC and not the permitted facility
would need to seek other funds to pay those costs, likely from
the General Fund or other funds from other California feepayers
or taxpayers.
Exide Technologies Plant : According to the DTSC, the Exide
Technologies in Vernon, California, located at 2700 South
Indiana Street, is an existing secondary lead smelting facility.
The facility recovers and reprocesses lead from used automotive
batteries and other sources. About 85 percent of the lead
recycled at the facility is derived from used automobile
batteries, with the remaining 15 percent consisting of other
batteries and scrap lead. About 22 million automotive batters
are processed annually at the facility. As a result, Exide
conducts the following major activities on site: 1) storing
lead acid batteries, lead bearing materials, and hazardous waste
generated as a result of the facility's operation, 2) breaking
spent batteries and separating the battery components, 3)
conducting smelting to recover lead from spent lead acid
batteries, and, 4) operating wastewater treatment to neutralize
sulfuric acid and treat both process water and stormwater.
In March 2013, the South Coast Air Quality Management District
(SCAQMD) found that the Exide plant's emissions contained high
levels of arsenic, which contribute to an increased cancer risk
to those at and around the facilities in the surrounding
communities, including Maywood, Huntington Park, Commerce, and
Boyle Heights. The standard at which SCAQMD requires the public
to be notified of increased risks is an expectation of 10 cases
per million people. The SCAQMD announced that as a result of
its findings, Exide would be required to prepare a risk
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reduction plan to reduce its harmful emissions, and to hold
meetings in the affected communities notifying them of the risks
they had been exposed to.
DTSC ordered that operations at the plant be suspended, citing
unsafe conditions related to deteriorated systems for the
handling and disposal of contaminated wastewater. As a result,
operations at the plant where temporarily suspended (April 2013)
by the DTSC; however, Exide appealed the action, and the plant
was allowed to resume operations.
The DTSC then entered into an agreement with Exide that required
Exide to spend $7.7 million for a new water runoff system and
improvements to reduce arsenic emissions. In December 2013, the
DTSC released reports showing that high lead and arsenic levels
had been detected in several residential areas around the plant.
Technical Amendments :
1)The bill as currently drafted provides for extensions of
permits during an appeal by the facility owner or operator.
The extension of permits should be available in those cases
where a non-operator or owner, as in the case of a community
group or neighboring property owner, has appealed DTSC
permitting decisions. The author may wish to provide similar
standing to non-facility owners in the appeals process.
2)The bill as currently drafted provides for the revocation of
permits for failure to seek timely approval of the permit.
Among "facilities" that are required to receive permits are
those sites that have been closed, but are subject to cleanup
requirements. These are generally referred to as post-closure
permits. Without the post-closure permits, DTSC is limited in
their ability to enforce cleanup standards or requirements on
the closed facility owner. The Author may wish to exclude
post-closure permits from the provisions that deem permits
denied for failure of the owner to take timely actions.
3)The provision of the bill that deems interim status permits to
be terminated if DTSC fails to take final action on the
application for a hazardous waste facilities permit within 5
years of the permit application. The "final action" is not
specially defined but the author may wish to specify that the
deadline be linked to the "final permit decision" to be
consistent with the DTSC current regulations (22 CCR §
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66271.14).
Related Legislation :
SB 712 (Lara). Establish deadlines for DTSC to take final
action on permit applications from hazardous waste facilities
operating under an interim status grant. SB 712 is to be heard
by this committee on June 17, 2014.
AB 1330 (John A. Pérez). Increase the coordination and
enforcement of environmental protection laws by DTSC and
Cal/EPA, and increase funding for environmental improvements
specifically for environmental justice communities. AB 1330 is
awaiting action on the Senate floor.
AB 1329 (V. Manuel Pérez, Chapter 598, Status of 2013).
Requires DTSC to prioritize enforcement activities in
environmental justice concerns in communities as identified by
Cal/EPA.
REGISTERED SUPPORT / OPPOSITION :
Support :
California Environmental Justice Alliance
Center for Community Action and Environmental Justice
Center on Race, Poverty & the Environment
Coalition for Clean Air
Communities for a Better Environment
Concerned Neighbors of Wildomar
Environmental Working Group
Neighbors Against Phibro-Tech
People Organizing to Demand Environmental and Economic Rights
(PODER)
People's Senate
Physicians for Social Responsibility - Los Angeles
Residents Against Phibro-Tech
Sierra Club California
Opposition :
None received.
Analysis Prepared by : Bob Fredenburg / E.S. & T.M. / (916)
319-3965
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