SB 654
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Date of Hearing: July 14, 2015
ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS
Luis Alejo, Chair
SB 654 (De León) – As Amended June 2, 2015
SENATE VOTE: 21-16
SUBJECT: Hazardous waste: facilities permitting.
SUMMARY: Modifies the permitting process for hazardous waste facilities permitted by the
Department of Toxic Substances Control (DTSC). Specifically, this bill:
1) Requires the owner or operator of a facility to submit a complete application for a permit
renewal at least 2 years prior to the expiration date of the permit.
2) Provides that when a complete renewal application has been submitted before the end of a
permit’s fixed term, the permit shall be deemed extended for a period not to exceed 36
months until the renewal application is approved or denied.
3) Requires the 36 month time period including any applicable rights to appeal the DTSC action
on a permit.
4) Provides that an alternative timeline would apply to renewal for permits that expire before
January 1, 2019.
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 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 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.
5) Provides that a hazardous waste facility which was in existence on November 19, 1980,
pending the review and decision of DTSC on the permit application, may be granted interim
status by DTSC if the person has made application for a permit.
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6) Requires DTSC to take final action prior to December 31, 2015, on a permit renewal
application for a hazardous waste treatment facility operating under an interim permit issued
on or prior to January 1, 1986.
7) Provides that any interim permit status granted for a hazardous waste facility shall terminate
five years from the date on which the status was granted.
FISCAL EFFECT: According to the Senate Appropriations committee the bill would result in
ongoing costs of $1.466 million from the Hazardous Waste Control Account (special) to review
hazardous waste facilities permits within three years of expiration. Further the bill sold result in
unknown one-time costs, between minor and in the mid-hundreds of thousands, to process
additional permits in 2016 and 2017.
COMMENTS:
Need for the bill: According to the author, DTSC has a long-standing failure to protect
California’s disadvantaged communities through its lack of oversight and enforcement of its
hazardous waste facilities permitting process.
The author states that, "DTSC’s consistent failure to complete the permitting renewal process
prior to permit expiration has been a systemic problem with the program since its inception.
DTSC’s regulations require a submittal of a permit renewal application only six months prior to
the permit expiration, yet the time it takes for DTSC to review and decide on that renewal is
often two or more years. It doesn’t make sense to have a timeline that assumes that the permit
will expire and then allow facilities to continue to operate without a current permit under the
assumption that the facility’s permit renewal should or will be granted.
"The drawn out process has created de facto permitted operation of hazardous waste facilities
without adequate review of the facilities permit and operation.
“SB 654 will correct this failure in permitting by requiring earlier submittal of permit renewal
applications and states that if the process is not complete then the facility will be in violation
with the HWCA."
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.
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.
Hazardous waste facility 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
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environment. In addition, assessments to identify releases of hazardous waste from the facility
will not have been conducted, potentially allowing contaminants to migrate further, possibly
causing increased environmental damage and public exposure.
DTSC entered into a contract with CPS HR Consulting to conduct a Permitting Process Review
and Analysis. CPS HR was asked to review the existing permitting program and develop a
recommended standardized process with clear decision criteria and corresponding standards of
performance. CPS HR was also asked to document the changes in the permitting process over the
past five years based primarily on the records obtained from past internal review, and to obtain
perspectives of designated subject matter experts, including representatives from the
environmentalist, environmental justice, and industry communities. The CPS review found that
the overall average permitting process time, which was 5.0 years prior to 2003, improved to a 3.2
year average for the period from 2003 to 2007, before again increasing to 4.3 years in the most
recent time period. While there was an improvement from the oldest period studied to the most
recent, the current trend is again towards longer processing times.
Hazardous waste facilities operating with expired permits: According to DTSC, the following
facilities are example of operations with the longest period of operation with expired permits.
While many of these facilities, like the BKK site in West Covina, are currently closed, they are
still required to maintain an active permit for the cleanup needed prior to completing the full
closure of a facility. Many of these facilities are currently operating under these expired permits.
Hazardous Waste Facilities Operation on Expired DTSC Permits: March 2015
Facility Name
Permit Expiration Date
BKK Sanitary Landfill
Phibro-Tech
Clean Harbors
The Boeing Co-Canoga Park
Clean Harbors
Evoqua Water Technologies
Wit Sales and Refining
Bayside Oil II
Best Environmental
Ramos Environmental Services
Lawrence Livermore National Laboratory
Lawrence Livermore National Laboratory
06/24/1992
07/29/1996
05/02/2004
05/11/2005
04/06/2006
10/07/2006
09/12/2007
12/20/2007
12/29/2007
05/18/2009
11/19/2009
04/03/2013
City
West Covina
Santa Fe Springs
Westmorland
Simi Valley
Buttonwillow
Los Angeles
San Jose
Santa Cruz
Lancaster
West Sacramento
Livermore
Tracy
Augments in support: A coalition of environmental and public health organizations have stated,
"DTSC allows companies who continually violate environmental laws to remain in business and
allows hazardous waste facilities to operate on expired permits for years on end. In fact, about a third
of California’s hazardous waste facilities are currently operating on expired permits. These abuses
disparately affect low income communities and communities of color where most of California’s
hazardous waste facilities are located. By limiting the time DTSC can allow the facility to operate
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once its permit has expired, SB 654 will ensure that DTSC regularly reviews the operations and
compliance history of hazardous waste facilities and applies the most current standards and
technologies for facilities seeking to extend their permits. By ensuring that hazardous waste facilities
are operating pursuant to regularly updated permits, the agency will be better positioned to protect
the health and safety of those living near hazardous waste facilities."
Augments in opposition: A number of business groups, including the California Chamber of
Commerce, have opposed this bill. Specifically, they claim, "SB 654 requires the project
applicant to submit a complete application two years prior to the expiration of the existing
permit’s fixed term. The Part A application is relatively simple because it merely defines the
processes to be used for treatment, storage, and disposal of hazardous wastes, the design capacity
of such processes, and the specific hazardous wastes to be handled at a facility. The Part B
application, however, typically takes much longer because it contains detailed, site-specific
information, and requires the completion of highly technical studies that can take many months if
not years to complete. This iterative process, as with any permitting process for complex land
use projects subject to a myriad of local, state and federal requirements, is necessary and
important because it allows the permit applicant to address any deficiencies in the application or
conduct additional studies as may be required. By the end, the Part B application process equips
DTSC with the relevant information so that it can make a well-informed and fact-based decision
on the application. SB 654 would completely undermine this process by imposing an arbitrary
deadline by when this iterative process must take its course."
Related/Prior Legislation:
SB 673 (Lara) Revises DTSC 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. This measure will be heard by the Assembly
Environmental Safety and Toxic Materials Committee at its July 14th hearing.
SB 712 (Lara), Chapter 833, Statutes of 2014. Requires DTSC, 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 and establishes deadlines
for the submission and processing of facility applications. SB 812 was vetoed by Governor
Brown.
Outstanding policy issues:
1) Due process for permit decisions: The provisions of this bill have the potential to require the
closure of facilities after the 36 moth time period without an option for an appeal of the effect
of DTSC failing to take any action on a permit. While specific permit decisions include a
due process for appeals, this new action would not include such a process. A model for an
appeals board can be found within the local air quality districts, which appoint independent
outside professionals to review air permit appeals. Similar independent appeals board could
hear appeals of DTSC permit actions.
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2) The role of the appeals process within the 3 year time deadline: The bill, as currently
drafted, establishes a 36 month deadline for permit actions, including any appeals of those
decisions. The Committee may wish to exclude the appeals time from the deadline.
3) Increased resources to meet enhanced deadlines: The accelerated review of permits by
DTSC will require additional resources. The current fee system for a hazardous waste
facility permit provides either a lump sum payment or a fee-for-service payment. The
experience of lump sum payments has been that the full cost of permits review is not
currently covered by that fee. The Committee may wish to consider providing a fee-forservice standard for permit applications rather than a lump sum payment.
4) Notice of deficiency in permit application: Among the many reasons for delay in permit
processing and action is a reported cycle of data submittal and re-submittals. Since permits
continue to be in effect, the delays may thwart the timely action on permits. The Committee
may wish to consider a limit of the number of notices of deficiency that would be allowed
and provide that DTSC may suspend permits if a second notice of deficiency is not
adequately responded to by the applicant.
5) Streamline the permit process for closed facilities: Approximately 25% of facility permits are
currently issued for closed facilities undergoing clean-up or remediation before the sites can
be closed. Since these are not operating facilities, the prospect of revoking or not renewing a
permit may not be a feasible alternative. The committee may wish to re-authorize the
authority of DTSC to issue a post-closure enforcement order or enforcement agreement,
thereby allowing DTSC to adopt a regulation to mirror the federal post-closure rule, which
allows DTSC to utilize mechanisms for post-closure enforcement order or enforcement
agreement other than a permit.
REGISTERED SUPPORT / OPPOSITION:
Support
Center on Race, Poverty & the Environment
Opposition
Alhambra Chamber of Commerce
Automotive Specialty Products Alliance
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
Chemical Industry Council of California
Clean Harbors Environmental Services, Inc.
Consumer Specialty Products Association
Fullerton Chamber of Commerce
Greater Fresno Area Chamber of Commerce
Industrial Environmental Association
Institute of Scrap Recycling Industries
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Metals Finishing Association of Northern California
Metals Finishing Association of Southern California
Oxnard Chamber of Commerce
Palm Desert Area Chamber of Commerce
Rancho Cordova Chamber of Commerce
Redondo Beach Chamber of Commerce & Visitors Bureau
San Diego Regional Chamber of Commerce
Simi Valley Chamber of Commerce
South Bay Alliance of Chambers of Commerce
Southwest California Legislative Council
Torrance Chamber of Commerce
U.S. Department of Defense, Region 9
Western Plant Health Association
Western States Petroleum Association
Analysis Prepared by: Bob Fredenburg / E.S. & T.M. / (916) 319-3965