California Putting More Pressure on Hazwaste Facilities—Will Your State Follow Suit?

California is in the process of amending its regulations for facilities that treat, store, and dispose of hazardous waste. The added compliance costs will most likely be passed on to hazardous waste generator customers. With the federal government taking a back seat on environmental regulations, your state regulators may look to states like California for ideas and guidance to amend their regulations.

A 2015 state law requires the California Department of Toxic Substances Control (DTSC) to adopt regulations establishing or updating criteria used for the issuance of a new or modified permit for hazardous waste facilities, which may include criteria for the denial or suspension of a permit. In adopting new permit regulations, the DTSC must consider seven criteria:

• Number and types of past violations that would result in denial;
• The vulnerability of, and existing health risks to, nearby populations, including cumulative impacts;
• Minimum setback distances from sensitive receptors (e.g., schools, hospitals, eldercare facilities, etc.)
• Evidence of financial responsibility and qualifications of ownership;
• Provision of financial assurances;
• Training of personnel in the safety culture and plans; and
• Completion of a health risk assessment.

Five of the seven criteria are being addressed in these proposed rules. The remaining criteria—the vulnerability of, and existing health risks to, nearby populations and the minimum setback distances from sensitive receptors (e.g., schools, hospitals, eldercare facilities, etc.)—will be addressed in a future rulemaking package currently under way.

A (Big) Small Biz Affect

The DTSC has determined that 40% of the hazardous waste facilities affected by this proposed rule are small businesses. The proposed regulations would require small business to incur additional costs associated with preparing and submitting hazardous waste facility permit applications as well as yearly costs to submit training certifications and review their Violations Scoring Procedure (VSP) score.

According to the DTSC, the proposed regulations would not have a significant economic impact on small businesses, with one exception. Those small businesses with a pattern of violating hazardous waste laws and regulations may experience a significant economic impact.

Past Violations

The VSP sets up a process to evaluate a facility’s compliance history. The VSP calculation includes all Class I violations that are found during DTSC compliance inspections over a rolling 10-year period. Each Class I violation is scored, and the DTSC compiles an inspection score that is the total of all the violations found during a given inspection. The total for all inspections is then divided by the number of inspections during the preceding 10-year period. The resulting number is the Facility VSP Score.

Facility VSP Scores will be deemed “acceptable,” “conditionally acceptable,” or “unacceptable.” The Department will be posting Facility VSP Scores and facility-assigned compliance tiers on its website.

Facilities that receive a conditionally acceptable score will be required to prepare a third-party compliance audit and develop a Compliance Implementation Plan. Facilities that receive an unacceptable score may have their permits suspended, revoked, or denied. In order to get the permit, the facility will have to make improvements and potentially increase its amount of financial assurance by 25%.

Provisions of Financial Assurances

The DTSC has proposed to amend three parts of the financial assurance regulations. It would:

• Modify the existing financial test mechanism by adding a credit rating to the financial ratios test, require all financial tests to be supported by a 20% trust fund, and update the regulations to account for changing economic conditions and inflation factors.
• Limit insurance used as a financial assurance mechanism to insurance provided by those companies licensed or authorized in California.
• Clarify the point at which financial assurance for corrective action is required.

Training

The DTSC determined that a modest number of meaningful improvements were needed to make the training programs at hazardous waste facilities more appropriately tailored to facility operations. The DTSC is adding a new requirement for the annual certification of training records. The draft regulations also add language to clarify existing regulations. Training in safety culture and plans, emergency plans, and maintenance of operations would be considered as criteria to make permit decisions for facilities. The proposed regulation would add training requirements related to shutdown of operations, self-protection measures, and accident prevention methods.

HRA

The Health Risk Assessment (HRA) must identify:

• Known releases of hazardous waste or chemicals of potential concern at the facility that have resulted in contaminated media;
• Reasonably foreseeable potential releases of hazardous waste or chemicals of potential concern at the facility from normal operations, upset conditions, or both, including, but not limited to, releases associated with transportation to or from the facility;
• Potential pathways of human exposure to hazardous wastes or chemicals of potential concern resulting from the releases; and
• Potential magnitude and potential health impact of the human exposure to anyone both within and outside the facility resulting from releases.

The DTSC has proposed to set up a three-tiered requirement that would require only those facilities with problematic site-specific conditions to be evaluated more thoroughly.