California Senate Bill SB1249 Amended / Bill

 BILL NUMBER: SB 1249AMENDED BILL TEXT AMENDED IN ASSEMBLY JUNE 24, 2014 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.  The department is authorized to grant a variance from the requirements of the hazardous waste control laws, under specified conditions and if the department   makes one of specified findings.  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, 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 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 treated metal shredder 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 waste or treated metal shredder waste inoperative once the department has  taken regulatory action   completed that analysis and either rescinds the conditional nonhazardous waste classification of that waste or adopts alternative management standards pursuant   to this bill  . 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   due to the adoption of new state hazardous waste regulations, metal shredder waste was classified  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  pursuant to subdivision (f) of Section 66260.200 of Title 22 of the California Code of Regulations  , 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.   stabilize the metals in the waste and reduce their solubility.  Once a facility operator received a nonhazardous waste classification, treated metal shredder waste was no longer regulated as a hazardous  waste at the facility.   waste.  (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  draft  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)   (e)  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   did not rescind  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)   (f)  It is the intent of the Legislature that the conditional nonhazardous waste  classifications   classifications, as documented through the historical "f letters,   "  be revoked and that metal shredding facilities be thoroughly  evaluated and  regulated to ensure adequate protection of the human health and the environment. 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, "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.   objects.  "Metal shredding facility" does not include a feeder yard, a metal crusher, or a metal baler  , if that facility does not otherwise conduct metal shredding operations  . (c) The department, in consultation with the Department of Resources Recycling 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 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) Nothing in 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). (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 treated metal shredder 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 treated metal shredder waste.  (j) (1) Notwithstanding Sections 25189.5 and 25201, treated metal shredder 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, as specified by the alternative management standards.   (2) If the alternative management standards adopted by the department pursuant to this section result in treated metal shredder 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) (1) The disposal of treated metal shredder waste shall be regulated pursuant to this chapter and the regulations adopted pursuant to this chapter, unless alternative management standards are adopted by the department pursuant to this section.   (2) If the alternative management standards adopted by the department pursuant to this section result in treated metal shredder waste being classified as nonhazardous waste, the material may be managed in either of the following manners:   (A) It may be used as alternative daily cover or for beneficial reuse pursuant to Section 41781.3 of the Public Resources Code and the regulations adopted to implement that section.   (B) It may be placed in a unit that meets the waste discharge requirements issued pursuant to Division 7 (commencing with Section 13000) of the Water Code that allow for discharges of designated waste, as defined in Section 13173 of the Water Code, or of treated metal shredder waste.   (3) This section does not limit the use of treated metal shredder waste as alternative daily cover pursuant to Section 41781.3 of the Public Resources Code and the regulations adopted to implement that section, or for other authorized beneficial uses if that use is made under the authority of the hazardous waste determinations governing metal shredder waste issued by the department before January 1, 2014, and that use is before the department does either of the following:   (A) Rescinds the conditional nonhazardous waste classifications issued pursuant to Section 25143 with regard to treated metal shredder waste.   (B) Completes the adoption of alternative management standards pursuant to this section.  (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 waste or treated metal shredder waste shall be inoperative and have no further effect once the department  has taken the required regulatory action.   completes its analysis pursuant to subdivision (c) and takes one of the following actions:   (1) Rescinds the conditional nonhazardous waste classifications issued pursuant to Section 25143 with regard to that waste.   (2) Adopts alternative management standards pursuant to this section.  (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. (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. 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. 4. Section 25150.9.2 is added to the Health and Safety Code, to read:  25150.9.2. If treated metal shredder waste is accepted by a solid waste landfill that manages and disposes of the treated metal shredder waste in accordance with the alternative management standards adopted by the department pursuant to Section 25150.9, the treated metal shredder 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.   25150.9.2.  Treated metal shredder waste that meets both of the following conditions shall be deemed to be a solid waste for the purposes of this chapter and Section 40191 of the Public Resources Code:   (a) The waste is accepted by a solid waste landfill for disposal or for use as alternative daily cover or other beneficial uses.   (b) The management of that waste complies with the alternative management standards adopted by the department pursuant to Section 25150.9.  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.