California Senate Bill SB1249 Amended / Bill

 BILL NUMBER: SB 1249AMENDED BILL TEXT AMENDED IN ASSEMBLY JUNE 10, 2014 AMENDED IN SENATE MAY 27, 2014 AMENDED IN SENATE APRIL 22, 2014 INTRODUCED BY Senator Hill FEBRUARY 20, 2014 An act to add Sections 25150.9, 25150.9.1, and 25150.9.2 to the Health and Safety Code, relating to hazardous waste. LEGISLATIVE COUNSEL'S DIGEST SB 1249, as amended, Hill. Hazardous waste: shredder waste. (1) The California Integrated Waste Management Act of 1989 requires materials that require special handling, as defined, to be removed from major appliances and vehicles in which they are contained before crushing for transport or transferring to a baler or shredder for recycling. The hazardous waste control laws prohibit a person who is not a certified appliance recycler from removing materials that require special handling from major appliances and imposes specified requirements regarding transporting, delivering, or selling discarded major appliances to a scrap recycling facility. A violation of the hazardous waste control laws is a crime. This bill would authorize, until January 1, 2017, the Department of Toxic Substances Control, in consultation with the Department of Resources Recycling and  Recovery and   Recovery,  the State Water Resources Control Board,  and affected local air quality management districts,  to adopt regulations establishing alternative management standards for a metal shredding facility  , including activities conducted within the boundaries of a metal shredding facility, and for the generation, storage, transportation, and disposal of metal shredder residue and treated metal shredder residue, as defined,   for hazardous waste management activities within the jurisdiction of the Department of Toxic Substances Control,  that would apply in lieu of the hazardous waste management standards if the department performs specified actions. The bill would include among those department actions preparing a preliminary analysis and a final analysis evaluating the hazardous waste management activities to which the  alternative  management standards would apply. The bill would require the department to provide notice that it proposes to adopt alternative management standards. The bill would prohibit the department from adopting  alternative  management standards that are less stringent than applicable standards under federal law and would require  metal shredder residue and  treated metal shredder  residue   waste  to be disposed of in a specified manner. The bill would require the department to complete the analysis of the hazardous waste management activities and the subsequent regulatory action before January 1, 2017, and would make all hazardous waste determinations and policies, procedures, or guidance issued by the department before January 1, 2014, relating to metal shredder  residue   waste  or treated metal shredder  residue   waste  inoperative once the department has taken regulatory action. Because a violation of these requirements would be a crime, this bill would impose a state-mandated local program. The bill would authorize the department to collect an annual fee from metal shredding facilities at a rate sufficient to cover the costs of the department to implement these provisions. (2) 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 a specified reason. 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.   The Legislature finds and declares all of the following:   (a) Before 1984, all metal shredder waste was considered not to be hazardous waste and was disposed of or used as alternative daily cover in municipal solid waste landfills.   (b) In 1984, California deemed metal shredder waste as a non-RCRA hazardous waste, or California hazardous waste, due to the presence of lead, cadmium, copper, and zinc at levels above the state's regulatory thresholds, as well as polychlorinated biphenyls in concentrations that, on some occasions, exceeded either the federal or the California regulatory thresholds, or both.   (c) Between 1986 and 1992, the Toxic Substances Control Division of the Department of Health Services, which was the predecessor to the Department of Toxic Substances Control (DTSC), issued conditional nonhazardous waste classifications, also referred to as "f letters," to seven shredder facilities in California that treated their metal shredder waste to affix the hazardous components into waste. Once a facility operator received a nonhazardous waste classification, treated metal shredder waste was no longer regulated as a hazardous waste at the facility.   (d) In early 2001, DTSC began an initiative to evaluate the adequacy of the metal shredder waste policy and compliance with the conditional nonhazardous waste classifications, which included new sampling and analysis. The report from that initiative recommended rescinding the conditional nonhazardous waste classifications. However, DTSC took no further action.   (e) In 2002, DTSC conducted an auto shredder initiative that found that both treated and untreated shredder waste exceeded state regulatory thresholds for lead, zinc, and cadmium. The report recommended that the DTSC policy and procedure that allowed the exemption for this waste be rescinded and that the waste stream be regulated as hazardous waste. No action was taken at that time.   (f) In 2002, DTSC issued an "imminent and substantial endangerment" order against Pacific Steel Inc., because of dust that blew from contaminated piles of waste stored by Pacific Steel Inc. out in the open. The contaminated piles, which contained polychlorinated biphenyls and toxic metals such as lead, zinc, and copper, polluted and threatened to pollute the air and water near the facility. In 2011, DTSC issued a remedial action order against Pacific Steel Inc. to clean up the site.   (g) In 2008, DTSC sent letters to operators of metal shredder facilities expressing the department's intention to repeal the conditional authorization that allows metal shredder waste to be classified as a nonhazardous waste. However, DTSC has not, to date, rescinded the conditional waste classifications.   (h) In 2009, the California Integrated Waste Management Board, now known as the Department of Resources Recycling and Recovery, or CalRecycle, issued the "Alternative Daily Cover White Paper." The paper states that, "  s]taff with DTSC have indicated that metal shredder waste] treatment is not effective, the material should be considered hazardous, and metal shredder waste] should be required to be disposed of] in Class I landfills. DTSC staff also indicates that metal shredder waste] feedstocks are variable and have changed in the last 20 years (more electronic components, white goods, chlorinated plastics). Sampling is costly, and it is difficult to obtain representative samples of metal shredder waste]."   (i) In 2011, DTSC settled an enforcement action against SA Recycling, LLC, which is jointly owned by Sims Metal Management Ltd. and Adams Steel LLC, for $2.9 million. The action alleged that SA Recycling, LLC violated air pollution laws when an explosion at its Port of Los Angeles metal shredding facility at Terminal Island destroyed its air pollution control system in May of 2007, and the company continued operating for weeks without proper equipment. As a result, approximately 4.4 tons of toxic particulate matter were released into the air, and migrated to bay waters and the community of Wilmington, putting local residents and the environment at risk.   (j) In January 2012, the Redwood City, California, metal shredding location of Sims Metal Management was cited by the United States Environmental Protection Agency for polluting the San Francisco Bay. Inspectors found the company had unlawfully discharged polychlorinated biphenyls, lead, copper, mercury, and zinc into Redwood Creek, a tributary of San Francisco Bay. The United States Environmental Protection Agency found polychlorinated biphenyl at levels of 195 times of the accepted levels and lead at levels of more than 10 times of the accepted levels in sediment near where the shredding yard meets Redwood Creek. This enforcement action was resolved in 2013.   (k) Additionally, there have been several fires in the last several years at the Sims Metal Management Redwood City facility that have caused the Bay Area Air Quality Management District to ask residents to stay inside. Two fires occurred in November and December of 2013, raising concerns about the proximity of this facility to residents. In the fire in December of 2013, no one was reported injured by the smoke or fire, which was limited to a debris pile about 900 square feet in area and 30 feet tall, but the noxious odor produced by the blaze was detected as far south as South San Jose and across the San Francisco Bay in Oakland and Berkeley.   (l)     Sims Metal Management's recycling facilities in Hayward and San Francisco experienced fires in 2009 and 2010, respectively, according to records from the Bay Area Air Quality Management District.   (m) In 2011, the United States Fish and Wildlife Service investigated Sims Metal Management for allowing fibrous automobile shredder residue to blow or drift into wetlands around Bair Island, 800 feet downwind from the Redwood City facility.   (n) DTSC has failed to revoke the nonhazardous waste classifications for treated shredder waste granted decades ago to the metal shredding industry despite a 2001 legal opinion by DTSC attorneys, which called the exemption "outdated and legally incorrect," and warnings from the department's scientists that this waste could become hazardous during the shredding process.   (o) It is the intent of the Legislature that the conditional nonhazardous waste classifications be revoked and that metal shredding facilities be thoroughly regulated to ensure adequate protection of the human health and the environment.   SECTION 1.  SEC. 2.  Section 25150.9 is added to the Health and Safety Code, to read: 25150.9. (a) The Legislature finds and declares that this section is intended to address the unique circumstances associated with the operation of metal shredding facilities, and the generation and management of wastes generated by metal shredding facilities. The Legislature further declares that this section does not set a precedent applicable to the management, including disposal, of other hazardous wastes. (b) For purposes of this section,  the following definitions shall apply:   (1) "Metal shredder aggregate" means the combination of ferrous metal, nonferrous metal, other recyclable materials, and nonrecyclable materials that exits from a metal shredding facility.   (2) "Metal shredder residue" means the predominantly nonmetallic material that remains after conducting physical separation methods to separate any ferrous or nonferrous metals, or any other recyclable materials, from the materials created by a metal shredding facility. Metal shredder residue does not include the ferrous and nonferrous metals and other recyclable materials that have been removed from the metal shredder aggregate.   (3)     "Metal   "metal  shredding facility" means an operation that uses a shredding technique to process end-of-life vehicles, waste appliances, and other forms of scrap metal to facilitate the separation and sorting of ferrous metals, nonferrous metals, and other recyclable materials from nonrecyclable materials that are components of the end-of-life vehicles, waste appliances, and other forms of  scrap  metal  objects containing material to be discarded  . "Metal shredding facility" does not include a feeder yard, a metal crusher, or a metal baler.  (4) "Scrap metal" includes ferrous metals, nonferrous metals, aluminum scrap, other metals, and auto bodies, but does not include aluminum cans, steel cans, or bimetal cans.   (5) "Treated metal shredder residue" means metal shredder residue that has been chemically treated to alter its chemical characteristics for purposes of rendering the metal shredder residue less hazardous or nonhazardous for purposes of classifying the waste in accordance with the criteria and guidelines adopted by the department pursuant to Section 25141.  (c) The department, in consultation with the Department of Resources Recycling and  Recovery and   Recovery,  the State Water Resources Control Board,  and affected local air quality management districts,  may adopt regulations establishing management standards for metal shredding facilities and for the generation, storage, transportation, and disposal of metal shredder residue or treated metal shredder residue     for hazardous waste management activities within the department's jurisdiction  as an alternative to the requirements specified in this chapter and the regulations adopted pursuant to this chapter, if the department does all of the following: (1) Prepares an analysis of the activities to which the  alternative  management standards will apply pursuant to subdivision (d). The department shall first prepare the analysis as a preliminary analysis and make it available to the public at the same time that the department gives notice, pursuant to Section 11346.4 of the Government Code, that it proposes to adopt the alternative management standards. The department shall include in the notice a statement that the department has prepared a preliminary analysis and a statement concerning where a copy of the preliminary analysis can be obtained. The information in the preliminary analysis shall be updated and the department shall make the analysis available to the public as a final analysis not less than 10 working days before the date that the regulation is adopted. (2) Demonstrates at least one of the conclusions set forth in paragraphs (1) to (4), inclusive, of subdivision (e). (3) Imposes, as may be necessary, conditions and limitations as part of the  alternative  management standards that ensure that the hazardous waste management activity to which the  alternative  management standards will apply will not pose a significant potential hazard to human health or safety or to the environment. (d) Before the department gives notice of a proposal to adopt the  alternative  management standards pursuant to subdivision (c), and before the department adopts the regulation, the department shall  evaluate the operative environmental and public health regulatory oversight of metal shredding facilities, identifying activities that need to be addressed by the alternative management standards, or other advisable regulatory or statutory changes, and shall  evaluate the hazardous waste management activities and prepare, as required by paragraph (1) of subdivision (c), an analysis that addresses all of the following aspects of the activity, to the extent that the  alternative  management standards can affect these aspects of the activity: (1) The types of hazardous waste and the estimated amounts of each hazardous waste that are managed as part of the activity and the hazards to human health or safety or to the environment posed by reasonably foreseeable mismanagement of those hazardous wastes and their hazardous constituents. The estimate of the amounts of each hazardous waste that are managed as part of the activity shall be based upon information reasonably available to the department. (2) The complexity of the activity, and the amount and complexity of operator training, equipment installation and maintenance, and monitoring that are required to ensure that the activity is conducted in a manner that safely and effectively manages each hazardous waste. (3) The chemical or physical hazards that are associated with the activity and the degree to which those hazards are similar to, or different from, the chemical or physical hazards that are associated with the production processes that are carried out in the facilities that produce the hazardous waste that is managed as part of the activity. (4) The types of accidents that might reasonably be foreseen to occur during the management of particular types of hazardous waste streams as part of the activity, the likely consequences of those accidents, and the reasonably available actual accident history associated with the activity. (5) The types of locations where the activity may be carried out, an estimate of the number of these locations, and the types of hazards that may be posed by proximity to the land uses described in Section 25227. The estimate of the number of locations where the activity may be carried out shall be based upon information reasonably available to the department. (e) The department shall not give notice proposing the adoption of, and the department shall not adopt, a regulation pursuant to subdivision (c) unless it first demonstrates at least one of the following,  for each requirement that the alternative management standards are intended to replace,  using the information developed in the analysis prepared pursuant to subdivision (d): (1) The requirements that the  alternative  management standards replace are not significant or important in either of the following situations: (A) Preventing or mitigating potential hazards to human health or safety or to the environment posed by the activity. (B) Ensuring that the activity is conducted in compliance with other applicable requirements of this chapter and the regulations adopted pursuant to this chapter. (2) A requirement is imposed and enforced by another public agency that provides protection of human health and safety and the environment that is as effective as, and equivalent to, the protection provided by the requirement, or requirements, that the  alternative  management standards replace. (3) Conditions or limitations imposed as part of the  alternative  management standards will provide protection of human health and safety and the environment equivalent to the requirement, or requirements, that the  alternative  management standards replace. (4) Conditions or limitations imposed as part of the  alternative  management standards accomplish the same regulatory purpose as the requirement, or requirements, that the  alternative  management standards replace, but at less cost or with greater administrative convenience, and without increasing potential risks to human health or safety or to the environment. (f) The department shall not adopt  alternative  management standards pursuant to this section if those standards are less stringent than the standards that would otherwise apply under the federal act. (g)  The management standards adopted by the department pursuant to this section shall establish requirements that apply not only to the generation, management, and disposal of metal shredder residue or treated metal shredder residue, but shall apply to all activities being conducted within the boundaries of any metal shredding facility.  Nothing in  this subdivision   the alternative management standards authorized by this section  is intended to duplicate or conflict with other laws, rules, or regulations adopted by other state agencies  or affected local air quality management districts  . The department shall, as much as possible, align the  alternative  management standards with the laws, rules, and regulations of other state agencies  or affected local air quality   management districts  .  (h) The owner or operator of a metal shredding facility that may be subject to the alternative management standards shall provide to the department all information and data determined by the department to be relevant to the evaluation and preparation of the analysis required by paragraphs (1) to (5), inclusive, of subdivision (d).   (h)   (i)  The  alternative  management standards adopted by the department pursuant to this section may, to the extent it is consistent with the standards that would otherwise apply under the federal act, allow for  metal shredder residue or  treated metal shredder  residue   waste  to be classified and managed as nonhazardous waste, provided that the analysis prepared pursuant to subdivision (d) demonstrates that classification and management as hazardous waste is not necessary to prevent or mitigate potential hazards to human health or safety or to the environment posed by the  metal shredder residue or  treated metal shredder  residue   waste  .  (i)   (j)  (1) Notwithstanding Sections 25189.5 and 25201,  metal shredder residue or  treated metal shredder  residue   waste  shall be disposed of in either a class I hazardous waste landfill or, if the management standards adopted by the department pursuant to this section result in it being classified as a nonhazardous waste,  in a composite-lined portion of a solid waste landfill unit that meets all requirements applicable to the disposal of municipal solid waste in California after October 9, 1993, and that is regulated by waste discharge requirements issued pursuant to Division 7 (commencing with Section 13000) of the Water Code for discharges of designated waste, as defined in Section 13173 of the Water Code, or metal shredder residue or treated metal shredder residue   as specified by the alternative management standards  . (2) If the  alternative  management standards adopted by the department pursuant to this section result in  metal shredder residue or  treated metal shredder  residue   waste being classified as nonhazardous waste  and deem it appropriate  , the material may be used as alternative daily cover or for beneficial reuse pursuant to Section 41781.3 of the Public Resources Code and its implementing regulations.  (3) Upon the department's final regulatory action required in regard to the consideration of alternative management standards pursuant to this section, the current disposal and beneficial use practices determinations allowed pursuant to the hazardous waste determinations issued by the department before January 1, 2014, shall cease to apply.   (j)   (k)  The department shall complete the analysis described in paragraph (1) of subdivision (c) and subsequent regulatory action before January 1, 2017. All hazardous waste determinations and policies, procedures, or guidance issued by the department before January 1, 2014, governing or related to the generation, treatment, and management of metal shredder  residue   waste  or treated metal shredder  residue   waste  shall be inoperative and have no further effect once the department has taken  the required  regulatory action.  (k)   (l)  The authority of the department to adopt original regulations pursuant to this section shall remain in effect only until January 1, 2017, unless a later enacted statute, which is enacted before January 1, 2017, deletes or extends that date. This subdivision does not invalidate any regulation adopted pursuant to this section before the expiration of the department's authority.  (l)   (m)  A regulation adopted pursuant to this section on or before January 1, 2017, shall continue in force and effect after that date, until repealed or revised by the department.  SEC. 2.   SEC. 3.  Section 25150.9.1 is added to the Health and Safety Code, to read: 25150.9.1. The department is authorized to collect an annual fee from all metal shredding facilities that are subject to the requirements of this chapter or to the  alternative  management standards adopted pursuant to Section 25150.9. The department shall establish and adopt by regulation a fee schedule that is set at a rate sufficient to reimburse the department's costs to implement this chapter  as applicable to metal shredder facilities  . The fee schedule established by the department may be updated periodically as necessary and shall provide for the assessment of no more than the reasonable costs of the department to implement this chapter.  SEC. 3.   SEC. 4.  Section 25150.9.2 is added to the Health and Safety Code, to read: 25150.9.2. If  metal shredder residue or  treated metal shredder  residue   waste  is accepted by a solid waste landfill that manages and disposes of the  metal shredder residue or  treated metal shredder  residue   waste  in accordance with the  alternative  management standards adopted by the department pursuant to Section 25150.9, the  metal shredder residue or  treated metal shredder  residue   waste  , upon acceptance by the solid waste landfill, shall thereafter be deemed to be a solid waste, and not a hazardous waste, for purposes of this chapter and Section 40191 of the Public Resources Code.  SEC. 4.   SEC. 5.  No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only 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.