Board of Environmental Safety: California’s New Hazardous Waste Permit Review Authority is Ramping Up

November 8, 2022

In July 2021, Governor Gavin Newsom signed SB 158 into law, which established the Board of Environmental Safety (BES)—an agency charged with overseeing the Department of Toxic Substances Control’s (DTSC) hazardous waste permitting decisions. The need for BES arose when the public and other stakeholders raised concerns over DTSC’s transparency, accountability, and fiscal stability. SB 158 and the creation of BES seek to rectify those concerns, most prominently by putting BES in control of DTSC’s permit appeals process and bringing significant change to the hazardous waste appeal processes.

What is BES and What are its Responsibilities?

BES is responsible for hearing and deciding appeals of hazardous waste facility permit decisions, providing opportunities for public hearings on permit and remediation decisions, reviewing and approving DTSC’s annual priorities and adopting performance metrics, developing long-term goals for DTSC’s programs, and aligning fees with legislative mandates on an annual basis.

BES’s Appeals Authority

Although the agency’s review procedures are still under development, BES is holding permit appeal workshops to preview its plans for how the permit appeal process will work and request input from the public. The main workshop topics center around: (1) how the public should be notified of a permit decision, (2) who has the right to participate in the appeals process, (3) what the administrative record should include and how it should be accessed, and (4) the possibility of an alternative dispute resolution procedure as a part of the appeals process.

BES held its first workshop on October 20, 2022, and another workshop is scheduled for November 14 in Kern County. On November 8, 2022, BES plans to discuss its draft operating plan, which sets forth BES’s statutory requirements under SB 158 and also emphasizes BES’s role in prioritizing environmental justice issues.

Notice of Permit Decision

At the October 20 hearing, BES asked how notice of a permit decision should be handled and whether BES should keep DTSC’s traditional notice procedures intact. An attendee suggested that when a permit is approved, notice of a final permit could be posted on DTSC’s and BES’s website for anyone to view, regardless of their involvement in the permitting process. Some attendees from public agencies and community groups urged greater transparency and increasing the time for appeals from 30 days to 60 days, especially for non-parties.

Conversely, facility owners and operators warned that expanding the time for an appeal would significantly slow down BES’s processing of appeals, and, ultimately, the efficiency of DTSC’s permitting function in direct conflict with SB 158. BES is already dealing with a backlog of permit applications from DTSC. While DTSC’s permit process is not perfect, facility owners and operators believe that it still provides a solid framework for BES to further refine and improve upon rather than create a whole new permit process from scratch.

Participation in the Appeal Process

To have the right to appeal, an appellant must be the permit applicant or DTSC. BES is seeking input on whether the participation process should be expanded to allow more parties to appeal, i.e., who should have standing. An attendee suggested that standing should be expanded to include communities who will be impacted by the permit if it were to be granted, and that BES should take into consideration more environmental justice issues during the permitting process generally.

Facility owners and operators again raised the concern that expanding standing to non-parties would bog down the permitting process. While they agree with environmental justice groups that DTSC’s permit and appeal processes lack transparency and engagement, they also believe that granting non-parties standing to appeal would go too far the other way and inhibit the possibility of an expeditious appeal process.

Alternative Dispute Resolution

Currently, there is no requirement for a settlement conference between the parties involved during the appeal process, and there is no neutral third party who gets involved. During the October 20 workshop, various attendees expressed concern over the current appeal process and the potential lack of accountability. Since the same parties are involved even after an appeal, there is no guarantee that the appeal process will be fair unless a neutral third party gets involved. To address these concerns, BES and other attendees floated the idea of having a mediator or some other neutral third party present during the appeal process.

Facility owners and operators largely agree that some sort of alternative dispute resolution procedure should be available to avoid an arduous appeal process. Appeals frequently arise as part of long-standing disagreements between facility owners and operators and members of the surrounding communities. DTSC’s previous appeal process did little to mitigate these larger disputes, primarily due to the lack of transparency and engagement. Facility owners and operators hope to see BES encouraging engagement and providing avenues for discussions that promote informal resolution of appeals to better address these larger disputes.

Moving Forward

BES is currently soliciting comments regarding the permit appeal process. In particular, BES welcomes public comment on the above-referenced topics. You can submit comments here.  For additional information about BES, please click here.