Activists Oppose Relaxation Of DTSC Hazardous-Waste Enforcement Bill

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Environmentalists are objecting to lawmaker plans to significantly weaken a bill requiring the toxics department to beef up enforcement efforts at hazardous-waste facilities in poor, minority communities, with some sources alleging that department officials are lobbying behind the scenes to scale back the bill.

But the department claims it has not taken a position on the bill and has only informed lawmakers that the measure would require new money and staff at the agency.

The bill as originally drafted could have led to many facilities having their permits revoked, a possible outcome that may have startled some department officials into lobbying against the bill privately, sources say.

The measure in question, AB 1329 by Assemblyman V. Manuel P¾rez (D-Coachella), was recently weakened by amendments and is expected to be further scaled back with forthcoming amendments by a key Senate policy committee, sources say.

Industry officials say they are aware of the bill, but have yet to take a position on it.

AB 1329 is being sought at least partially in response to a scathing report issued earlier this year by an advocacy group that claimed the Department of Toxic Substances Control has failed to properly enforce its hazardous waste permits and regulations. The report has been tied to the recent resignation of the department's deputy director, who stepped down to take another position within DTSC.

AB 1329 is scheduled to be heard July 3 by the Senate Environmental Quality Committee. Sponsored by environmental justice groups, the bill would revise current requirements for DTSC to prepare and adopt a hazardous waste management plan to reduce impacts of hazardous waste facilities in low-income, environmental justice communities.

The bill would make legislative findings about the siting of hazardous waste facilities in environmental justice areas and revise the plan to serve as a comprehensive and enforceable planning document, instead of a "useful informational source" as is currently provided in statute, according to a May 25 Assembly floor analysis.

The bill would attempt to ensure that minority populations and low-income populations are not disproportionately impacted by the adverse effects of hazardous waste management, including disposal.

But amendments made to the bill in April and May substantially weakened the original intent of the measure, environmentalists say.

The bill, as originally drafted earlier this year, would have prohibited the department from issuing a hazardous waste facility permit if DTSC finds the facility has not complied with a corrective action order. The bill also would have defined the term "significant noncomplying operation" and would prohibit the department from issuing a hazardous waste permit to a significant noncomplying operation.

The bill also would have required DTSC to adopt regulations to ensure that minority populations are not disproportionately impacted by impacts of hazardous waste.

But the recent amendments deleted all of this language. There are rumors that DTSC officials raised concerns privately that if the bill was adopted with the original language, the department would be forced to close down many hazardous waste facilities in the state, according to a source.

More amendments are expected to soon be made to the bill by the Senate Environmental Quality Committee, an environmentalist says. These new amendments, although not yet in print, are expected to address additional concerns by some that the bill may have too much of a fiscal impact by requiring DTSC to hire new staff, the source says. If the bill has any sort of fiscal impact, it would be referred to the Senate Appropriations Committee where it would be shelved on the "suspense" file and essentially killed, the source claims.

The May 25 Assembly floor analysis says the bill would include increased costs to DTSC for public outreach, translation and regulation development in the $600,000 range. DTSC's hazardous waste control account is not sufficient to fund the requirements of the bill, the analysis says. A new revenue source or redirection from current enforcement or permitting activities would be required, the analysis says.

But the Senate Environmental Quality Committee's amendments will likely include language requiring DTSC to only "prioritize" enforcement actions in environmental justice communities, and this language would likely allow the bill to avoid scrutiny by the Senate Appropriations Committee, the source says. But, "I'm not sure what the language will look like," the source says. It is also unclear how DTSC would prioritize enforcement actions or whether this would be developed through a DTSC rulemaking, the source says.

Environmentalists are viewing these expected amendments as further weakening the bill, which is upsetting, the source says. While environmentalists will still support the bill, that backing is now "lukewarm," the source says. "We're not happy about this."

The source claims DTSC originally raised concerns about the level of additional staffing or "resources" the bill would require of the department. DTSC has also signaled that the agency is already working on an internal plan to prioritize enforcement in environmental justice communities without the bill, but it is unclear when or whether that plan will actually materialize, the source also claims.

A DTSC spokesman says the agency has not taken a position on AB 1329. When asked by the Assembly Appropriations Committee, DTSC officials stated that there would be a need for additional resources to implement the bill, the spokesman says. "These resources would come from our Hazardous Waste Control Account, and [as was] discussed in the [DTSC] fee reform budget discussions, there are not excess funds in this account (expenditures and revenues are aligned)," the spokesman adds. "So either an increase in funds would be needed or a redirection of existing staff would have to occur."

Liza Tucker of Consumer Watchdog, the group that authored the report earlier this year criticizing DTSC's enforcement efforts, says that DTSC currently refuses to specify when a company must lose its hazardous waste permit. "It is time for the Legislature to define it for them," she says. "DTSC's lobbying to water down this bill suggests that if you applied a three-strikes rule, most of the hazardous waste industry in this state would have to be shut down. Some sort of formula can be crafted fairly to say that so many lesser violations equal one of the most serious. And three serious violations means you are out. As it stands now, bad apples know they can pollute with impunity, thumb their noses at DTSC orders to clean up, and never lose a permit."

In response to claims that the bill's fiscal impact is raising concerns among lawmakers, DTSC could "slash some administrator [jobs] and hire some enforcers," Tucker argues.

Meanwhile, waste industry groups have been "watching the bill, but not working it," an industry source says. These groups have no position on AB 1329 as this time, the source says.

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