California Hazardous Waste Program Needs Modernizing, Streamlining, Not Piecemeal Approach

The California Chamber of Commerce is leading a coalition seeking to develop a comprehensive solution to address Californians’ legitimate concerns about the hazardous waste program.

The CalChamber and coalition are opposing four bills to be considered by the Assembly Environmental Safety and Toxic Materials Committee today, arguing that those bills take a piecemeal approach to issues with the state’s  hazardous waste program.

  • AB 245 (Gomez; D-Los Angeles) Imposes unnecessary and substantial new costs on hazardous waste permit applicants by requiring them to pay for a public hearing within 90 days of submitting a hazardous waste renewal application, notwithstanding the fact that current regulations and the California Environmental Quality Act (CEQA) already provide multiple opportunities for public hearings.
  • AB 246 (Santiago; D-Los Angeles) Creates ambiguity and uncertainty regarding the status of hazardous waste permits and the suspension or revocation of such permits by broadly and vaguely requiring, as a condition preceding a new or renewal permit, that the permittee “maintain compliance” with a local air permit, with the intent of requiring fence-line monitoring that would impose significant additional costs on permittees.
  • AB 248 (Reyes; D- Grand Terrace)Undermines the iterative permit application process by requiring premature submittal of permit renewal application paperwork and creates uncertainty by failing to identify the consequences to the regulated community in the event the Department of Toxic Substances Control (DTSC) fails to take action on the permit renewal application within a specified timeframe, even if the permit applicant acted diligently and in good faith throughout the permit application process.
  • AB 249 (Gomez; D-Los Angeles) Prematurely increases penalties on hazardous waste permit operators by imposing the federal per-day penalty of $37,500 notwithstanding the fact that comprehensive reform of the DTSC’s permitting, enforcement, and fiscal management is under review and consideration.

The coalition hopes to coordinate and work with the authors of these bills to develop a comprehensive solution relating to the DTSC permitting, enforcement, and fiscal management process.

AB 245: Increased Costs to Hazardous Waste Permit Operators

AB 245 requires the DTSC to hold a public meeting within 90 days of receiving a renewal application for a permit and to review the financial assurances (FA) of permitted facilities at least once every five years.

The coalition members agree that early public participation is important to ensure that the public may raise issues at the outset of the permitting process rather than at the end, when many significant decisions have already been made. In this vein, it is important to note that generally, before reaching the permitting process at DTSC, there are significant opportunities for public participation due to local and regional permitting requirements applicable to these facilities. For example, CEQA already provides a procedural mechanism for DTSC or any local lead agency to consult with the public at a very early stage of the permitting process regarding the scope and contents of the environmental document being prepared for the project.

Accordingly, the coalition believes that the public meeting required under AB 245 is unnecessary. Further, the coalition is increasingly concerned about the costs associated with additional and duplicate permitting requirements. As “fee for services” for permitting relates to AB 245, hazardous waste permit applicants would then be required to pay for the hourly costs of the additional public hearing and any DTSC staff preparation, which could be significant depending on the amount of resources DTSC devotes to the process. With regard to AB 245’s requirements that DTSC review FAs of permitted facilities at least once every five years, the bill not only contains vaguely worded language that gives the regulated community cause for concern, but also includes language that essentially sets up expectations of some potentially dire, yet unknown, repercussion for a permitted facility that fails to meet AB 245’s vaguely worded expectations.

AB 245’s language provides neither DTSC nor the regulated community with any guidance or context as to what exactly the bill’s wording of “adequate” or “inadequate” would mean in a permitted facility’s FA. Likewise, the bill institutes a 90-day clock whereby the facility operator must somehow rectify an “inadequate” determination made by DTSC within that timeframe or else face some undisclosed consequence and apparently without any opportunity to appeal DTSC’s determination that rendered the facility’s FA as “inadequate.”

AB 245 appears to be attempting to incorporate aspects of the financial assurances process under the Surface Mining and Reclamation Act (SMARA) into the hazardous waste permitting process. The CalChamber and coalition members are open to discussing ways to make improvements to the FA process, but there are dissimilarities between SMARA and hazardous waste laws that require a more comprehensive discussion regarding how to effectively address FAs in the context of hazardous waste permitting. Simply cutting and pasting a concept from one law into another without discussing whether the two laws deserve equal treatment can and will result in unintended consequences. The cumulative effect of this bill, combined with other proposed legislation, will make the hazardous waste permitting process unworkable and excessively expensive, and thus would result in hazardous waste being sent out of state, where the waste would be treated as garbage and thus subject to few, if any, environmental protections. Such unintended consequences would not further California’s goals.

AB 246: Creates Uncertainty Regarding Hazardous Waste Permits

According to a fact sheet from the author’s office, AB 246 would “instruct the Department of Toxic Substances Control (DTSC), as a condition for a new or renewal permit, to require an applicant to obtain and maintain compliance with a permit from a local air quality management or air pollution control district.”

The fact sheet indicates that the bill is intended to “promote the use of fence-line monitoring by hazardous waste facility permit holders (i.e., the use of equipment to monitor potential releases of toxic materials).”  As noted in the fact sheet, the issue of fence-line monitoring arose during a public hearing by the Independent Review Panel (IRP). During that meeting, DTSC representatives publicly stated to the IRP that DTSC currently has the discretion under its general authority derived from other existing Health and Safety Code statutes, to require fence-line monitoring and, indeed, does utilize that authority when it deems appropriate.

The coalition believes it is appropriate to maintain the status quo and to continue to allow DTSC discretion to require fence-line monitoring when needed, depending on the specific permit situation.

AB 248: Creates Unworkable Hazardous Waste Permitting Process

AB 248 requires hazardous waste facilities permitted by the DTSC to submit completed permit renewal applications two years before the permits expire, starting with permits expiring after July 1, 2020. The coalition opposes AB 248 because, as a practical matter, the application deadline AB 248 seeks to impose completely undermines the iterative nature of the permit application process by imposing an arbitrary deadline by when this iterative process must take its course.

Specifically, AB 248 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 critical because it allows the permit applicant to address any deficiencies in the application or to 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.

AB 249: Prematurely Increases Penalties on Hazardous Waste Permit Operators

AB 249 increases the civil penalties imposed on toxic waste facilities for noncompliance with an order for corrective action from $25,000 per day to $37,500 per day.

While the AB 249 Fact Sheet, compiled by the author’s office, indicates that the bill intends to respond to findings and recommendations by the three-person IRP, it is important to note that the IRP will continue to formulate its findings and recommendations through the end of 2017. As the IRP has explained during its hearings, a comprehensive reform of the system as a whole is necessary to address Californians’ concerns regarding the DTSC’s permitting, enforcement, and fiscal management. The coalition supports a more comprehensive solution rather than piecemeal revisions in the absence of comprehensive reform.

More Information

For more information about hazardous waste permitting and enforcement, visit CalChamber’s 2017 Business Issues Guide policy paper.

Staff Contact: Louinda Lacey

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