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Department of Toxic Substances Control January 2017
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DTSC’s Response to the IRP’s Request for Information Regarding DTSC’s
Compliance to Health & Safety Code Section 25200.8 in Permit Decisions for
Facilities with Three or More Notices of Deficiency
In its April 21, 2016 quarterly report to the Governor and Legislature, the Independent Review Panel
(IRP) requested information about the Department of Toxic Substances Control’s (DTSC’s) compliance
with requirements to deny a permit application if an applicant unsatisfactorily responds to multiple
Notices of Deficiency (NOD). Specifically, in the IRP’s Second Report to the Governor and the
Legislature, the Panel made the following request:
By January 1, 2017, report to the IRP on whether DTSC is complying with the Health & Safety
Code Section 25200.8 requirement to initiate proceedings to deny a permit application if an
applicant does not respond to three or more Notices of Deficiency, or responds with
substantially incomplete or unsatisfactory information on three or more occasions. If the DTSC
is not currently complying, it should explain the reasons for not doing so and indicate whether
the code section should be amended.
This document is prepared in response to this inquiry from the IRP. In implementing section 25200.8,
DTSC recognized that before it could deny permits based on failure to adequately respond to three or
more NODs, it had to standardize how it wrote NODs, among other improvements to the permitting
process. DTSC has adopted changes to make the permitting process more efficient and thorough, and is
now implementing those improvements.
Overview
When DTSC receives a permit application, it conducts two main types of reviews prior to making a
decision on the application. The first is the Administrative Review to identify whether all required
elements of the application have been submitted. The second is the Technical Review, during which
DTSC evaluates the content of the required elements and whether they demonstrate that the facility, as
described, will comply with all applicable laws and regulations. If DTSC determines that the information
provided in the application does not demonstrate compliance, DTSC issues a Notice of Deficiency, or
NOD, to the applicant. The NOD details the additional information needed to allow DTSC to conclude
that the facility would comply with the law and to support approval of the permit application.
Health and Safety Code Section 25200.8 states that “…If an applicant responds to three or more of these
notices of deficiency regarding the same or different deficiencies or responds with substantially
incomplete or substantially unsatisfactory information on three or more occasions, the department
shall, pursuant to regulations adopted by the department, initiate proceedings to deny the permit
application.” Historically, DTSC has not had a policy regarding the interpretation or implementation of
this language. In addition, DTSC did not have clear guidance on required application content or on
preparing NODs.
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This led to considerable variation in the comprehensiveness of the NODs that were issued by DTSC.
Some NODs were very detailed and comprehensive, while others followed a more iterative approach to
identifying information needed to complete the permit review. This iterative process frequently
resulted in more NODs and contributed to delays in DTSC decisions on permit applications.
In 2014, DTSC began a systematic review of its permitting process to improve the consistency and rigor
of the review, and eliminate inefficiencies that led to delays. This review has been described in other
reports (see, for example, the Permitting Program Update for the Independent Review Panel, presented
to the IRP on March 9, 2016). As part of this review, DTSC applied a Lean Six Sigma (LSS) analysis to
three different aspects of the permitting process: the Technical Review, the Administrative Review, and
the Notice of Deficiency. While only one LSS project specifically focused on the NOD process, all three
projects are expected to improve the quality of the permit applications and reduce the number of NODs
issued. A brief summary of these projects and an explanation of how the projects are expected to affect
the NOD process are provided in this report (see Process Improvement Projects, below).
DTSC currently has forty‐four permit applications pending.1 Forty‐one of these applications have two or
fewer NODs. Three of the applications (all predating the new guidance) have received three or more
NODs; however none of the applicants responded with “substantially incomplete” or “substantially
unsatisfactory” information. Table 1, Current Application Status, provides a list of the pending
applications, showing the project type and number of NODs issued. With the guidance established
through these LSS projects DTSC is establishing a consistent interpretation and implementation of
Health and Safety Code Section 25200.8.
Table 1 – Current Application Status
No. Project Name Activity Type # of NODs
1 American Oil Renewal 0
2 Asbury Environmental Services Mod Class 2 0
3 Atlas Precious Metals Renewal 2
4 Chemical Waste Management – Kettleman Renewal 1
5 Chevron El Segundo Renewal 0
6 Chevron Richmond Renewal 0
7 Chevron Richmond Post Closure Renewal 2
8 Clean Harbors Button Willow Renewal 2
9 Clean Harbors Westmorland Renewal 2
10 Clean Harbors San Jose Renewal 0
11 Dynegy Moss Landing Renewal 0
12 Edwards Air Force Base Renewal 2
13 EPC Westside Renewal 0
1This includes applications for new hazardous waste facility permits, and modifications to, or renewals of, existing hazardous waste facility permits. For a discussion of permit decisions, see Appendix A, Background on Permit Decisions.
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No. Project Name Activity Type # of NODs
14 Evoqua Water Tech/ US Ecology Renewal 5
15 Filter Recycling Services Renewal 1
16 GEM of Rancho Cordova Renewal 0
17 HGST Renewal 1
18 HGST Mod Class 1 0
19 Industrial Service Oil Co Inc Mod Class 1* 0
20 John Smith Road Landfill Renewal 2
21 Kearney – KPF Renewal 0
22 KW Plastics of CA Renewal 0
23 Lawrence Berkeley National Laboratory Renewal 0
24 Lawrence Livermore Laboratories Renewal 0
25 Lawrence Livermore Laboratories PC Renewal 0
26 Lighting Resources Renewal 0
27 Naval Air Weapons Station China Lake Renewal 1
28 Naval Station San Diego Renewal 1
29 PG&E/Diablo Canyon Renewal 0
30 Pacific Scientific Renewal 0
31 Phibro‐Tech Renewal 0
32 Quemetco Inc. Renewal 0
33 Riverbank Oil Transfer, LLC Renewal 3
34 Safety‐Kleen Systems Inc, Sacramento Renewal 1
35 Safety‐Kleen Systems Inc, Newark Renewal 1
36 Sandia National Laboratories Renewal 0
37 San Diego Gas Renewal 0
38 Southern Cal Pico Riviera Renewal 0
39 Southern Cal Gas Los Angeles Renewal 0
40 TFX Aviation Mod Class 1 0
41 The Dow Chemical Co MS‐HAF Renewal 3
42 The Dow Chemical Drums Renewal 0
43 World Oil – San Joaquin Mod Class 3 0
44 Safety‐Kleen Systems Inc, Renewal 0
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ProcessImprovementProjects
1. TechnicalCompleteness
The steps DTSC takes to make a permit decision are numerous and in the past have taken a long time. In
light of this, DTSC completed a Lean Six Sigma (LSS) project in 2014 to identify process improvements.
Data analysis suggested that the extended period spent reviewing the technical completeness of the
permit applications was the leading cause of the time required to make a permit decision. After further
analysis, the project team concluded that requiring the permit project manager (PPM) to use the Permit
Completeness Checklist during the technical review would be the most impactful way to shorten the
permit decision‐making process.
The checklist contains a total of 1,029 line items that serve as a guide to the project manager to help
with a complete and thorough review. Using the checklist will provide a consistent review process by
clarifying what needs to be reviewed in each application. Because of the increased clarity and
thoroughness of the review, the number of NOD comments will be reduced. The permit completeness
checklist can also be utilized to track the progress of permit reviews by the PPM or supervisors. Figure 1
shows a sample portion of the Permit Completeness Checklist.
Figure 1 – Permit Completeness Checklist (Sample)
2. AdministrativeCompleteness
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The process improvements delivered from the initial LSS project led to a LSS Phase II project in 2014.
The LSS Phase II project further addressed the length of time to complete a permit decision. The Phase
II project considered whether other tasks in the permitting process (beside the technical review process)
could be improved upon to expedite reaching a decision. The Phase II analysis identified the need for
improvements to the administrative review of the permit application to shorten the time to complete
the review from an average of 7 months to 30 days.
3. NoticesofDeficiency
In 2015 a third LSS project was completed, which addressed the inefficiencies in the NOD process. The
objective of the LSS Phase III project was to cut in half the average number of NOD comments per
permit.
The LSS team analyzed all of the individual comments within 25 of the most recently issued NODs and
the causes of the comments. It was determined that 532 of the 618 NOD comments were due to
administrative issues (not technical issues) and that 331 of the 532 comments were the result of missing
information. Figures 2 and 3 show the two level Pareto analysis breakdown of the causes for NOD
comments.
Figure 2 – Pareto Analysis of NOD Comments
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Figure 3 – Pareto Analysis of NOD Comments (Administrative)
The LSS Phase III project resulted in thirteen recommendations, including the need for guidance
documents and training. The Pre‐Application Meeting Agenda and Signature sheet (shown in Appendix
B) was created to give facilities notice of format expectations, guidance and an opportunity to get up
front clarity and direction from DTSC. The Pre‐Application meeting is expected to reduce the number of
NODs issued, as facilities will understand, up front, what information must be included in the permit
application.
The Guidance on Notice of Deficiency (shown in Appendix C) was issued in May of 2016 to address the
need for standardized training for staff. The Guidance includes training, a new template cover letter, a
model NOD, some “dos and don’ts” tips, factors to consider and a sample meeting agenda for an NOD
meeting.
As part of the new Guidance on Notice of Deficiency, the new template cover letter (which is included in
the NOD documents issued to the facility) contains the following text regarding multiple NOD’s:
Please note that pursuant to Health and Safety Code Section 25200.8 and California Code of
Regulations, Title 22, Section 66271.2(e), DTSC may deny permit applications based on a failure
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of the applicant to respond to a NOD or when the applicant responds with substantially
incomplete or substantially unsatisfactory information. 2
Along with the Guidance on Notice of Deficiency, a Notice of Deficiency Meeting Guidance was issued
(Shown in Appendix D) to aid in preparing for and conducting a meeting with the facility when
communicating the NODs. This should reduce the number of future NODs, as the meeting with the
facility will allow it to ask specific questions and submit a response to the NOD that will be sufficient and
complete.
SUMMARY
DTSC has established new guidelines, processes, and checklists to improve the quality of permit
applications and allow the department to deny a permit if an applicant fails to provide substantially
complete and satisfactory information. This includes the Guidance on Notice of Deficiency, Notice of
Deficiency Meeting Guidance, the Permit Completeness Checklist, and the Pre‐Application Meeting
Agenda. All permitting staff have been trained in the implementation of the new guidelines and tools.
DTSC will ensure all new staff are trained prior to beginning permitting review work.
DTSC is preparing similar guidance documents for standardized facility permits that will be completed by
June 30, 2017. Model permit applications for permits under the Resource Conservation and Recovery
Act (RCRA) will be completed by June 30, 2018. These tools will further improve the quality of permit
applications, the rigor of the permit review, and the timeliness of the permit process.
The management team of the Permitting Division conducts a quarterly audit on EnviroStor to determine
the number of NODs issued per permit decision and the duration of the permit decision‐making process.
This control measure allows management to ensure improvements are being made.
2 DEPARTMENT OF TOXIC SUBSTANCES CONTROL NOTICE OF DEFICIENCY COVER LETTER TEMPLATE
