The California Hazardous Waste Violations Scoring Procedure… A New Trend?

Well, as we all know, California tends to be on the leading edge of implementing environmental regulations (and you may argue that it’s not all good or bad), but I just read about this new approach to compliance violation scoring for permitting hazardous waste facilities. Being the compliance nerd that I am (and I know there are more out there), I found this interesting and perhaps a new trend in hazardous waste facility permitting.

In a nutshell, the California Violations Scoring Procedure (VSP) regulations require the Department of Toxic Substances Control (DTSC) to comprehensively evaluate each hazardous waste facility’s compliance history as part of the permit decision-making process. The VSP regulations establish a systematic process for evaluating and characterizing a hazardous waste facility’s compliance over time with substantive hazardous waste management requirements.

Benefits of the VSP Regulations

The new Facility VSP Score and the corresponding assigned compliance tier provide DTSC important permitting decision metrics. The real intent of the VSP regulations is to incentivize facilities to improve compliance performance and reduce the number of violations, which over time will result in better protection of public health and the environment.

How Does a Facility Get Scored?

Generally, each DTSC identified Class I violation is evaluated and scored for each compliance inspection performed by the DTSC. A Facility VSP Score is calculated by summing the scores for all Class I violations for compliance inspections over a rolling ten-year period, and then dividing that figure by the number of compliance inspections.

Class I Violation Scoring

For the preceding ten calendar years, DTSC will score all Class I violations. When calculating a score for each Class I violation, DTSC shall determine the potential harm to public health and safety, or the environment posed by the violation and the extent of deviation from hazardous waste management requirements posed by the violation. DTSC categorizes the potential harm and extent of deviation as “major,” “moderate,” or “minimal.” DTSC also makes adjustments for repeat violations.

Provisional and Final Inspection Violation Scores

Each compliance inspection for the past ten years is given a provisional inspection violation score. Additionally, all inspections that occurred after the effective date of the VSP regulations will also be given a provisional inspection violation score. A provisional inspection violation score is the sum of the scores for all Class I violations found during the compliance inspection and adjusted for repeat violations. If a compliance inspection has no Class I violations, the inspection violation score is zero. A facility can dispute a provisional inspection violation score, and DTSC’s dispute resolution official will then issue a written decision granting or denying, in whole or in part, the relief sought by the facility.

Annual Facility VSP Scores

The Facility VSP Score calculation includes all Class I violations that are found during DTSC compliance inspections over a rolling ten-year period. The sum of all final inspection violation scores is then divided by the number of compliance inspections that occurred during the preceding ten-year period. The resulting number is the Facility VSP Score. Each year, DTSC will re-calculate the Facility VSP Scores for the prior ten years. On or before September 30 of each calendar year, DTSC shall provide a written notice to each facility of their Facility VSP Score through December 31 of the prior calendar year.

Compliance Tiers

DTSC shall assign a facility to a compliance tier based on the Facility VSP Score. A facility will be assigned to one of the following three compliance tiers: “acceptable,” “conditionally acceptable” and “unacceptable.”

• “Acceptable”
  A facility that receives a Facility VSP Scores of less than 20 shall be designated as “acceptable.” A compliance tier assignment of “acceptable” is not subject to additional administrative dispute resolution.
• “Conditionally Acceptable”
  A facility that receives a Facility VSP Score equal to or greater than 20 and less than 40 shall be designated as “conditionally acceptable.” A compliance tier assignment of “conditionally acceptable” is not subject to additional administrative dispute resolution. Facilities that receive a final compliance tier assignment of “conditionally acceptable” are required to comply with additional requirements outlined in the regulations. A facility that receives a “conditionally acceptable” compliance tier assignment will be required to prepare and provide at least two third-party compliance audits to DTSC. Federal facilities may prepare and submit to DTSC a facility self-disclosure audit using an internal auditor. Upon review, DTSC may then impose other permit restrictions or enhancements, mitigation measures, or even prohibitions on some hazardous waste management activities that are deemed necessary to protect human health, safety, or the environment.
• “Unacceptable”
  A facility that receives a Facility VSP Score equal to or greater than 40 shall be designated as “unacceptable.” DTSC is required to initiate permit denial, suspension, or revocation proceedings for facilities that receive a final compliance tier assignment of “unacceptable.” A facility may challenge an “unacceptable” compliance tier rating. If a facility submits a written notice challenging its “unacceptable” compliance tier assignment within sixty (60) days, a public meeting will take place where DTSC will present the grounds for assigning the facility an “unacceptable” compliance tier, and the facility will demonstrate its opposition. The public is also provided an additional public comment period to weigh in on the pending permit decision. DTSC will issue a written decision regarding the facility’s challenge of its “unacceptable” compliance tier assignment, which will then constitute the facility’s final compliance tier assignment. DTSC may still grant a permit or a permit modification to a facility given an “unacceptable” compliance tier assignment if DTSC determines the operation of the facility will not pose a threat to public health, safety, or the environment. However, DTSC is required by the VSP regulations to impose mandatory permit restrictions, which include limiting the length of the permit, requiring additional audits, and requiring the correction for all potential harm associated with the facility operations.

So, overall kind of interesting . . .at least I think so. I like the intent and the incentivization to permitted facilities and really like the public involvement piece for those “unacceptable” facilities. If this is of interest, keep an eye on it to see if anything similar is potentially happening in your state.

If you have any questions or comments on hazardous waste facility permitting, Scout is available to help. For further inquiries, please contact Jason at jason.strayer@scoutenv.com.