New Regulatory Hurdles Proposed for Hazardous Waste Facilities in California

Alston & Bird

On September 22, 2017, DTSC commenced the public comment period for its proposed regulations update the criteria for the issuance of hazardous waste facility permit and permit modifications pursuant to SB 673.

The 70 pages of the proposed regulations are a radical departure from the past 25 years permitting process in California.   In some respects, the burdens proposed are so high that one wonders if this portends the end of hazardous waste facilities in this State.  On the positive side, this will have local EJ (environmental justice) communities cheering and it does present an enormous business opportunity for the hazardous waste facilities in the other 49 states.

New annual certification requirements, new training requirements, new health risk assessments and new community involvement requirements are added.  For instance, the permit applicant must “identify known health or environmental concerns . . . asserted by the public.”  The proposed regulations also include a new “facility violations scoring procedure score” [Facility VSP Score] based on its 10 year inspection history that will be assessed annually.  The proposed regulations would allow, inter alia, DTSC to suspend a permit for “unacceptable” Facility VSP Scores, which is a score of over 40 based on the criteria matrix and point system proposed in the new regulations.

Financial assurances will be required much earlier in corrective action process – as soon as DTSC can come up with a “reasonable determination of the amount” that may be needed.  Critically, the proposed rules would restrict and possibly eliminate the ability of companies to rely on the corporate guarantee or captive insurance, and require the establishment of a trust fund equal to 20% of the closure estimate – the assets of which cannot be the same as those serving the basis for any other financial assurance requirement of any other agency.

The economic impact statement accompanying these proposed regulations appears to greatly underestimate its costs on businesses and loss of jobs.  The environmental analysis ignores the potential transportation, global warming and accident risk impacts given the probability that these regulations will result in a greater portion, if not all, hazardous waste generated in California traveling to another state for treatment and disposal.

Comments are due by November 6, 2017.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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