BILL NUMBER: AB 2670AMENDED BILL TEXT AMENDED IN SENATE JUNE 20, 2012 AMENDED IN ASSEMBLY APRIL 10, 2012 AMENDED IN ASSEMBLY MARCH 28, 2012 INTRODUCED BY Committee on Natural Resources (Assembly Members Chesbro (Chair), Brownley, Dickinson, Halderman, Huffman, Monning, and Skinner) MARCH 5, 2012 An act to amend Sections 42301, 42649.1, and 42649.3, and 44004of the Public Resources Code, relating to solid waste. LEGISLATIVE COUNSEL'S DIGEST AB 2670, as amended, Committee on Natural Resources. Solid waste recycling: facilities. (1) The California Integrated Waste Management Act of 1989 requires rigid plastic packaging containers that are sold or offered for sale in this state to meet, on average, one of specified criteria and defines terms for purposes of those requirements. One of those criteria that a rigid plastic packaging container may meet to satisfy this requirement is that the container be source reduced. The act provides for the enforcement of these requirements by the Department of Resources Recycling and Recovery and provides that an entity making a false certification pursuant to those requirements is subject to a violation for fraud. This bill would revise the definitions of the various terms used in the those requirements, including revising the definition of the term "source reduced" to impose new requirements, thereby imposing a state-mandated local program by changing the definition of a crime. (2) The act requires a business, which is defined as a commercial or public entity, that generates more than 4 cubic yards of commercial solid waste per week or is a multifamily residential dwelling of 5 units or more, to arrange for recycling services. Existing law also requires jurisdictions to implement a commercial solid waste recycling program meeting specified elements. Existing law defines the term "commercial solid waste" by reference to a specified regulation. This bill would instead define commercial solid waste in statute to include all types of solid waste generated by a store, office, or other commercial or public entity source, including a business or a multifamily dwelling of 5 or more units, thereby imposing a state-mandated local program by imposing new requirements upon local jurisdictions.(3) Existing law requires an operator of a solid waste facility that wants to change the design or operation of the solid waste facility in a manner not authorized by the current permit to apply for a revised permit, and the enforcement agency is required to inform the operator and the department of its determination to allow the change without revision of the permit, disallow the change, require a revision of the permit to allow the change, or require review under the California Environmental Quality Act before a decision is made. The enforcement agency is required to conduct a hearing regarding the proposed determination.This bill exempt from the hearing process, a change without a revision to the permit and make other technical corrections.(4)(3) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that no reimbursement is required by this act for specified reasons. Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 42301 of the Public Resources Code is amended to read: 42301. For purposes of this chapter, the following definitions apply: (a) "Container manufacturer" means a company or a successor company that manufactures and sells any rigid plastic packaging container subject to this chapter to a manufacturer that sells or offers for sale in this state any product packaged in that container. (b) "Curbside collection program" means a recycling program that collects materials set out by households for collection at the curb at intervals not less than every two weeks. "Curbside collection program" does not include redemption centers, buyback locations, dropoff programs, material recovery facilities, or plastic recovery facilities. (c) "Refillable package" means a rigid plastic packaging container that is routinely returned to and refilled by the product manufacturer or its agent at least five times with the original product contained by the rigid plastic packaging containers. (d) "Reusable package" means a rigid plastic packaging container that is routinely reused by consumers at least five times to store the original product contained by the package. (e) "Manufacturer" means the producer or generator of a product that is sold or offered for sale in the state and that is stored inside of a rigid plastic packaging container. (f) "Rigid plastic packaging container" means a plastic packaging container having a relatively inflexible finite shape or form, with a minimum capacity of eight fluid ounces or its equivalent volume and a maximum capacity of five fluid gallons or its equivalent volume, that is capable of maintaining its shape while holding other products, including, but not limited to, bottles, cartons, and other receptacles, for sale or distribution in the state. (g) (1) "Postconsumer material" means a material that would otherwise be destined for solid waste disposal, having completed its intended end use and product lifecycle. (2) Except as provided in paragraphs (3) and (4), postconsumer material does not include materials and byproducts generated from, and commonly reused within, an original manufacturing and fabrication process. (3) "Postconsumer material" includes finished plastic packaging that has been rejected by a container or product manufacturer, and that would be commonly disposed of, if the department determines the material is later used in a process that is other than an original manufacturing and fabrication process. (4) "Postconsumer material" includes a rigid plastic packaging container holding an obsolete or unsold product that is commonly disposed of, and not commonly reused, within an original manufacturing process, if the rigid plastic packaging container is used as feedstock for new rigid plastic packaging containers or under the alternative compliance method established by Section 42310.3. (h) "Recycled" means a product or material that has been reused in the production of another product and has been diverted from disposal in a landfill. (i) "Recycling rate" means the proportion, as measured by weight, volume, or number, of a rigid plastic packaging container sold or offered for sale in the state that is being recycled in a given calendar year, that is one of the following: (1) A particular type of rigid plastic packaging container, such as a milk jug, soft drink container, or detergent bottle. (2) A product-associated rigid plastic packaging container. (3) A single resin type, as specified in Section 18015, of rigid plastic packaging container, notwithstanding the exemption of that container from this chapter pursuant to subdivision (b), (c), or (d) of Section 42340. (j) (1) "Source reduced container" means a rigid plastic container for which the container weight per unit or number of product uses has been reduced by 10 percent when compared with one of the following: (A) The rigid plastic packaging container used for the product by the manufacturer on January 1, 1995. (B) The rigid plastic packaging container used for that product by the product manufacturer over the course of the first full year of commerce in this state. (C) A rigid plastic packaging container used in commerce in this state during the same year for similar products in similar rigid plastic packaging containers by the product manufacturer whose containers have not been considered source reduced, or a particular type of rigid plastic packaging container that is used to hold a similar product by other product manufacturers, as determined by the department, whose containers have not been considered source reduced. (2) A rigid plastic packaging container is not a source reduced container for the purposes of this chapter if the reduction was achieved by any of the following: (A) Substituting a different material type for a material that previously constituted the principal material of the container. (B) Increasing a container's weight per unit or number of product uses after January 1, 1991. (C) Packaging changes that adversely affect the potential for the rigid plastic packaging container to be recycled or to be made of postconsumer material. (k) "Product-associated rigid plastic packaging container" means a brand-specific, rigid plastic packaging container line that may have one or more sizes, shapes, or designs and that is used in conjunction with a particular generic product line. ( l ) "PETE" means polyethylene terephthalate as specified in subdivision (a) of Section 18015. (m) "HDPE" means high-density polyethylene. SEC. 2. Section 42649.1 of the Public Resources Code is amended to read: 42649.1. For purposes of this chapter, the following shall apply: (a) "Business" means a commercial or public entity, including, but not limited to, a firm, partnership, proprietorship, joint stock company, corporation, or association that is organized as a for-profit or nonprofit entity, or a multifamily residential dwelling. (b) "Commercial solid waste" includes all types of solid waste generated by a store, office, or other commercial or public entity source, including a business or a multifamily dwelling of five or more units. (c) "Commercial waste generator" means a business subject to subdivision (a) of Section 42649.2. (d) "Self-hauler" means a business that hauls its own waste rather than contracting for that service. SEC. 3. Section 42649.3 of the Public Resources Code is amended to read: 42649.3. (a) On and after July 1, 2012, each jurisdiction shall implement a commercial solid waste recycling program appropriate for that jurisdiction designed to divert commercial solid waste from businesses subject to Section 42649.2, whether or not the jurisdiction has met the requirements of Section 41780. (b) If a jurisdiction already has a commercial solid waste recycling program as one of its diversion elements that meets the requirements of this section, it shall not be required to implement a new or expanded commercial solid waste recycling program. (c) The commercial solid waste recycling program shall be directed at a commercial waste generator, as defined in subdivision (c) of Section 42649.1, and may include, but is not limited to, any of the following: (1) Implementing a mandatory commercial solid waste recycling policy or ordinance. (2) Requiring a mandatory commercial solid waste recycling program through a franchise contract or agreement. (3) Requiring all commercial solid waste to go through either a source separated or mixed processing system that diverts material from disposal. (d) The commercial solid waste recycling program shall include education, outreach to, and monitoring of, businesses. A jurisdiction shall notify a business if the business is not in compliance with Section 42649.2. (e) The commercial solid waste recycling program may include enforcement provisions that are consistent with a jurisdiction's authority, including a structure for fines and penalties. (f) The commercial solid waste recycling program may include certification requirements for self-haulers. (g) The department shall review a jurisdiction's compliance with this section as part of the department's review required by Section 41825. Each jurisdiction shall report the progress achieved in implementing its commercial recycling program, including education, outreach, identification, and monitoring, and if applicable, enforcement efforts, by providing updates in the annual report required by Section 41821. (h) The department may also review whether a jurisdiction is in compliance with this section at any time that the department receives information that a jurisdiction has not implemented, or is not making a good faith effort to implement, a commercial recycling program. (i) During its review pursuant to subdivision (g) or (h), the department shall determine whether each jurisdiction has made a good faith effort to implement its selected commercial recycling program. For purposes of this section, "good faith effort" means all reasonable and feasible efforts by a jurisdiction to implement its commercial recycling program. During its review, the department may include, but is not limited to, the following factors in its evaluation of a jurisdiction's good faith effort: (1) The extent to which businesses have complied with Section 42649.2, including information on the amount of disposal that is being diverted from the businesses, if available, and on the number of businesses that are subscribing to service. (2) The recovery rate of the commercial waste from the material recovery facilities that are utilized by the businesses, all information, methods, and calculations, and any additional performance data, as requested by the department from the material recovery facilities pursuant to Section 18809.4 of Title 14 of the California Code of Regulations. (3) The extent to which the jurisdiction is conducting education and outreach to businesses. (4) The extent to which the jurisdiction is monitoring businesses, and notifying those businesses that are out of compliance. (5) The availability of markets for collected recyclables. (6) Budgetary constraints. (7) In the case of a rural jurisdiction, the effects of small geographic size, low population density, or distance to markets.SEC. 4.Section 44004 of the Public Resources Code is amended to read: 44004. (a) An operator of a solid waste facility shall not make a significant change in the design or operation of the solid waste facility that is not authorized by the existing permit, unless the change is approved by the enforcement agency, the change conforms with this division and all regulations adopted pursuant to this division, and the terms and conditions of the solid waste facilities permit are revised to reflect the change. (b) If the operator wishes to change the design or operation of the solid waste facility in a manner that is not authorized by the existing permit, the operator shall file an application for revision of the existing solid waste facilities permit with the enforcement agency. The application shall be filed at least 180 days in advance of the date when the proposed modification is to take place unless the 180-day time period is waived by the enforcement agency. (c) The enforcement agency shall review the application to determine all of the following: (1) Whether the change conforms with this division and all regulations adopted pursuant to this division. (2) Whether the change requires review pursuant to Division 13 (commencing with Section 21000). (d) Within 60 days from the date of the receipt of the application for a revised permit, the enforcement agency shall inform the operator and the department, unless the department is acting in the capacity as the enforcement agency, of its determination to do any of the following: (1) Allow the change without a revision to the permit. (2) Allow the following changes without a revision to the permit through a modification to the permit allowed pursuant to regulations developed by the department: (A) The proposed change is to allow a nondisposal facility to increase the amount of solid waste that it may handle and that increased amount is within the existing design capacity as described in the facility's transfer processing report and review pursuant to Division 13 (commencing with Section 21000). (B) The proposed change is to allow a disposal facility to add a nondisposal activity to the facility that will increase the amount of solid waste that may be handled as described in the facility's report of facility information and review pursuant to Division 13 (commencing with Section 21000). (3) Disallow the change because it does not conform with the requirements of this division or the regulations adopted pursuant to this division. (4) Require a revision of the solid waste facilities permit to allow the change. (5) Require review under Division 13 (commencing with Section 21000) before a decision is made. (e) The operator has 30 days within which to appeal the decision of the enforcement agency to the hearing panel, as authorized pursuant to Article 2 (commencing with Section 44305) of Chapter 4. The enforcement agency shall provide notice of a hearing held pursuant to this subdivision in the same manner as notice is provided pursuant to subdivision (h). (f) Under circumstances that present an immediate danger to the public health and safety or to the environment, as determined by the enforcement agency, the 180-day filing period may be waived. (g) (1) A permit revision is not required for the temporary suspension of activities at a solid waste facility if the suspension meets either of the following criteria: (A) The suspension is for the maintenance or minor modifications to a solid waste unit or to solid waste management equipment. (B) The suspension is for temporarily ceasing the receipt of solid waste at a solid waste management facility and the owner or operator is in compliance with all other applicable terms and conditions of the solid waste facilities permit and minimum standards adopted by the department. (2) An owner or operator of a solid waste facility who temporarily suspends operations shall remain subject to the closure and postclosure maintenance requirements of this division and to all other requirements imposed by federal law pertaining to the operation of a solid waste facility. (3) The enforcement agency may impose any reasonable conditions relating to the maintenance of the solid waste facility, environmental monitoring, and periodic reporting during the period of temporary suspension. The department may also impose any reasonable conditions determined to be necessary to ensure compliance with applicable state standards. (h) (1) (A) Except with regard to a change as provided in paragraph (2) of subdivision (d), before making its determination pursuant to subdivision (d), the enforcement agency shall submit the proposed determination to the department for comment and hold at least one public hearing on the proposed determination. The enforcement agency shall give notice of the hearing pursuant to Section 65091 of the Government Code, except that the notice shall be provided to all owners of real property within a distance other than 300 feet of the real property that is the subject of the hearing, if specified in the regulations adopted by the department pursuant to subdivision (i). The enforcement agency shall also provide notice of the hearing to the department when it submits the proposed determination to the department. (B) The enforcement agency shall mail or deliver the notice required pursuant to subparagraph (A) at least 10 days prior to the date of the hearing to any person who has filed a written request for the notice with a person designated by the enforcement agency to receive these requests. The enforcement agency may charge a fee to the requester in an amount that is reasonably related to the costs of providing this service and the enforcement agency may require each request to be annually renewed. (C) The enforcement agency shall consider environmental justice issues when preparing and distributing the notice to ensure that the notice is concise and understandable for limited-English-speaking populations. (2) If the department comments pursuant to paragraph (1), the department shall specify whether the proposed determination is consistent with the regulation adopted pursuant to subdivision (i). (i) (1) The department shall, to the extent resources are available, adopt regulations that implement subdivision (h) and define the term "significant change in the design or operation of the solid waste facility that is not authorized by the existing permit." (2) While formulating and adopting the regulations required pursuant to paragraph (1), the department shall consider recommendations of the Working Group on Environmental Justice and the advisory group made pursuant to Sections 71113 and 71114 and the report required pursuant to Section 71115.SEC. 5.SEC. 4. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because a local agency or school district has the authority to levy service charges, fees, or assessments sufficient to pay for the program or level of service mandated by this act or because costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.