BILL ANALYSIS Ó AB 341 SENATE COMMITTEE ON ENVIRONMENTAL QUALITY Senator S. Joseph Simitian, Chairman 2011-2012 Regular Session BILL NO: AB 341 AUTHOR: Chesbro AMENDED: May 5, 2011 FISCAL: Yes HEARING DATE: June 27, 2011 URGENCY: No CONSULTANT: Caroll Mortensen SUBJECT : SOLID WASTE DIVERSION SUMMARY : Existing law : 1) Under the California Integrated Waste Management Act (Act) of 1989: a) Requires each city or county source reduction and recycling element to include an implementation schedule that shows a city or county must divert 25% of solid waste from landfill disposal or transformation by January 1, 1995, through source reduction, recycling, and composting activities, and must divert 50% of solid waste on and after January 1, 2000. (Public Resources Code §41780). b) Requires the Department of Resources Recycling and Recovery (DRRR) to determine compliance status for cities and counties in achieving and maintaining the 50% diversion rate. Jurisdictions are found to be in compliance by meeting or exceeding the 50% diversion rate and implementing the programs described in their plans or by making a good faith effort to implement their programs but not achieving the 50% diversion rate. Jurisdictions who do not meet the above are placed on compliance orders and are subject to fines. (§41850). c) Authorizes a local governmental agency to determine aspects of solid waste handling that are of local concern, such as frequency of collection, levels of AB 341 Page 2 service, and fees. (§40059). d) Provides programs for recycling at certain types of facilities (e.g., schoolsites, large venues), and requires model ordinances for certain matters (e.g., adequate areas for collection and loading of recyclable materials in development projects; diversion of construction and demolition materials; solid waste reduction, reuse, and recycling at large venues). e) Prohibits a local agency from issuing a building permit for a development project unless the project provides for adequate space for collecting and loading recyclable materials. (§42905) f) Authorizes DRRR to designate and certify local enforcement agencies (LEAs) to carry out local permitting and enforcement of solid waste facilities. (§43200 et seq.). g) Prohibits the operator of a solid waste facility from making a significant change to the design or operation of a facility that is not authorized in the existing solid waste facility permit. (§44004). h) Requires local jurisdictions to prepare, adopt, and submit to the DRRR, a Non-Disposal Facility Element (NDFE) which includes a description of new facilities and expansion of existing facilities, and all solid waste facility expansions (except disposal and transformation facilities) that recover for reuse at least 5% of the total volume. The NDFE must also be consistent with the implementation of a local jurisdiction's Source Reduction and Recycling Element. (§§41730 to 41736). 2) Under the California Global Warming Solutions Act of 2006 (CGWSA): a) Requires ARB to determine the 1990 statewide greenhouse gas (GHG) emissions level and approve a statewide GHG emissions limit that is the equivalent to that level, to be achieved by 2020 (Health and Safety AB 341 Page 3 Code §38500 et seq.). ARB must adopt rules and regulations to achieve GHG emission reductions to achieve the maximum technologically feasible and cost-effective reductions in GHGs, subject to certain requirements (§38562(h)). b) Requires ARB to prepare and approve a scoping plan for achieving the maximum technologically feasible and cost-effective reductions in GHG emissions from sources or categories of sources of GHGs by 2020. ARB must evaluate the total potential costs and total potential economic and noneconomic benefits of the plan for reducing GHGs to the state's economy, and public health, using the best economic models, emission estimation techniques, and other scientific methods. The plan must be updated at least once every five years. (§38561). 3) Authorizes the ARB to adopt GHG emission limits or emission reduction measures prior to January 1, 2011, imposing those limits or measures prior to January 1, 2012, or providing early reduction credit where appropriate. (§38563). This bill : 1) Adds extensive findings and declarations related to recycling and recycling infrastructure. 2) Requires that the DRRR must ensure that by January 1, 2020, and annually thereafter, 75% of the solid waste generated in California is source reduced, recycled or composted. 3) Requires that by January 1, 2012, any owner or operator of a business that contracts for solid waste services and generates more than 4 cubic yards of material per week or is a multifamily residential dwelling of five units or more shall arrange for recycling services, consistent with state or local laws or requirements, including a local ordinance or agreement, applicable to the collection, handling, or recycling of solid waste to the extent that these services are offered and reasonably available from a local service provider. 4) Requires that each jurisdiction implement a commercial AB 341 Page 4 solid waste recycling program appropriate for that jurisdiction designed to divert solid waste generated from businesses as described. 5) Adds to the list of determinations that a LEA can make when reviewing a solid waste facility permit. Allows the LEA to consider whether to require a modification for a proposed change in maximum tonnage if it is provided for within the existing design capacity as described in the facility transfer processing report as well as relevant permits and environmental review pursuant to the California Environmental Quality Act. 6) Changes the due date for the State Agency Recycling Program annual report from September 1st to May 1st. 7) Proposes changes to the amendment process for NDFEs that would allow changes without approval by the local task force and instead require the jurisdiction making the change to provide the information to the local task force as described. COMMENTS : 1)Purpose of Bill . According to the author, California is a national leader in diverting waste from landfills by currently diverting 58% of all waste, which is well above the state's 50% mandate. The state has achieved this mandate in part by increasing recycling opportunities through the Integrated Waste Management Act. Despite the state's high diversion rate, Californians still dispose more waste than the national average. There are measures that can be taken, such as mandatory commercial and multifamily residential recycling, that will decrease the state's solid waste disposal and increase its diversion rate. Additionally, new waste diversion of 75% will help facilitate more source reduction, recycling, and composting in the state. 2)Right Timing for New Policy Direction . With the elimination of the Integrated Waste Management Board (IWMB) concerns have been raised that the mission and direction of the policies under the purview of the new DRRR are stagnate. AB AB 341 Page 5 341 provides renewed policy direction that the new department needs to focus on implementing its existing legislatively mandated programs toward ensuring 75% diversion. This bill moves the state toward even more aggressive diversion efforts that are necessary to compensate for population growth and increases in per capita generation of waste by requiring DRRR to ensure that by 2020, 75% of the solid waste generated is diverted from landfill disposal. This also represents a shift toward statewide diversion efforts to complement the efforts already being accomplished by local jurisdictions. 3)Regulations requiring commercial recycling . Under the CGWSA, ARB must prepare and approve a scoping plan for achieving the maximum technologically feasible and cost-effective reductions in GHG emissions from sources or categories of sources of GHGs by 2020. According to the ARB, the scoping plan "contains the main strategies California will use to reduce ÝGHGs] that cause climate change. The scoping plan has a range of GHG reduction actions which include direct regulations, alternative compliance mechanisms, monetary and non-monetary incentives, voluntary actions, market-based mechanisms such as a cap-and-trade system, and Ýa CGWSA] program implementation regulation to fund the program." The scoping plan identifies the solid waste sector as a significant source of GHG emissions, and a scoping plan measure to reduce GHG emissions in this sector includes mandatory commercial recycling. The mandatory commercial recycling measure is expected to achieve a reduction in GHG emissions of 5 million metric tons of carbon dioxide equivalents. The DRRR began workshops for the mandatory commercial recycling measure rulemaking process in August 2009. January 1, 2012, is the planned effective date of the recycling regulation, and July 1, 2012, is the planned effective date for jurisdictions and businesses to implement the commercial recycling programs. Some sources indicate that these dates may be adjusted. 4) Non-disposal Facility Element (NDFE) . A NDFE is one of a AB 341 Page 6 local jurisdiction's planning documents required by the Act. It identifies IWMB permitted "non-disposal" facilities used by a jurisdiction to help reach the diversion mandates. Non-disposal facilities that require a solid waste facility permit are primarily materials recovery facilities (MRF) that accept mixed municipal solid waste, compost facilities, and transfer stations. A jurisdiction's NDFE may also include other facilities not defined as non-disposal facilities, such as recycling centers and drop-off centers. A jurisdiction must amend its NDFE when siting a new non-disposal facility within its jurisdiction that was not previously identified in its NDFE. The NDFE is linked to the solid waste permitting process by a conformance finding, made first by the LEA for the county, and corroborated by the DRRR. A conformance finding is verification that the location of a permitted disposal facility is identified in the appropriate county's siting element or that a non-disposal facility is identified in the appropriate NDFE. 5)Changes to a Solid Waste Facility Permit . An operator of a solid waste facility cannot make a significant change to design or operation unless specified criteria are met and approved by the LEA. And, depending on the modification, the IWMB must also approve the change. This bill attempts to clarify that if an operator is proposing changes to the facility that are within the permitted parameters that those changes would trigger a permit modification rather than a full permit revision. However, the language proposed in the bill requires clarification to accomplish this. 6)Related Legislation . a) AB 818 (Blumenfeld) of 2011 enacts the Renters Right to Recycle Act that requires a multifamily dwelling owner, on and after July 1, 2010, to arrange for recycling services that are appropriate and available for the multifamily dwelling, consistent with state or local law or requirements, including a local ordinance or agreement applicable to the collection, handling, or recycling of solid waste. A "multifamily dwelling" is defined as a residential facility consisting of five or AB 341 Page 7 more living units. b) AB 479 (Chesbro) of 2009 (Senate Appropriations Committee August 17, 2009, amendments applied the commercial recycling requirements to multifamily dwellings of 5 units or more) was held on the Committee's suspense file; and AB 737 (Chesbro) was amended on the Senate Floor September 4, 2009, to include the commercial recycling and other provisions, and was re-referred to the Senate Appropriations Committee, approved by the Committee and the Senate, and vetoed by Governor Schwarzenegger. c) SB 25 (Padilla) of 2009-10 increased the diversion rate mandate for local jurisdictions for solid waste from 50% to 60% by 2015. The bill mandates commercial recycling for entities that generate more than 4 cubic yards of solid waste per week. This bill also made a variety of changes to existing laws relating to permit review, solid waste tipping fees, illegal dumping and refuse service providers. A June 28, 2010, hearing of the Assembly Natural Resources Committee was canceled at the author's request. d) SB 1020 (Padilla) of 2007, required IWMB to develop a plan to achieve a 75% statewide rate of solid waste diversion from landfills and other disposal facilities by January 1, 2020. This bill was held in the Assembly Appropriations Committee. 7)Amendment needed . The author has indicated that it is not the intent of AB 341 to place further diversion requirements on local governments. An amendment is needed to clarify that the 75% diversion obligation is a statewide effort for DRRR and does not place additional diversion responsibility on local jurisdictions. Also, due to conflicts with AB 818 (Blumenfield), AB 818 cannot be approved if AB 341 is approved unless either: a) the provisions of AB 818 are replaced with the AB 341 commercial recycling provisions (Public Resources Code §§42649.1 and 42649.2); or b) a new section is added to AB 341 (SEC. 11.5) striking a reference to multifamily residential dwellings in §42649.2(a) that would become law only if both bills are signed. AB 341 Page 8 SOURCE : Californians Against Waste SUPPORT : California League of Conservation Voters Center for Biological Diversity Ecology Action Environment California Planning and Conservation League National Resources Defense Council Sierra Club California OPPOSITION : County of Los Angeles Board of Supervisors Los Angeles County Solid Waste Management Committee Orange County Board of Supervisors