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CALIFORNIA AB 341 LEGISLATIVE ANALYSIS

New Diversion Law Modifies California's Integrated Waste Management Act

Michael Theroux

June 2012
(Revised July 2013)

Continued from Page 1

Issue 3: Commercial Recycling Mandate

A mandate for Commercial Waste Generators to "arrange for recycling services" presupposes the outcome will actually be Recycling as defined by Code. In Issue 2, we observe that although the timing and reporting requirements have changes, there are no changes to mandates for California solid waste facility permits and thus only California facilities have requirements for documentation. Clearly, transport of recyclable goods separated from the waste stream, whether Commercial-sourced or otherwise, must depend upon tracking of some form to ensure Closed-Loop Recycling occurs. When California SWF permitting with its requisite accounting is not applicable, some other means of documentation and LCA-based validation becomes necessary. Without that validation, the process does not comply with the definition of recycling and should not count toward recycling quotas.

• By addition of Section 12.8, PRC §42649.1(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."
• PRC §42649.1(c) defines any "business" as a Commercial Waste Generator if it generates 4 or more cubic yards of "commercial solid waste" per week, or if it is a multifamily residential dwelling of 5 units or more.
• A Commercial Waste Generator must "arrange for recycling services" on or after July 1, 2012. For the recycling service to be acceptable, it must be "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."
• AB 341 adds code to the PRC with §42649.2 that requires any Commercial Waste Generator to take specific actions regarding the handling of the waste it generates, either (1) Source separate recyclable materials from solid waste and subscribe to a basic level of recycling service that includes collection, self-hauling, or other arrangements for the pickup of the recyclable materials; or (2) Subscribe to a recycling service that may include mixed waste processing that yields diversion results comparable to source separation. The new code also specifies that an owner of a multi-family residential building may require tenants to source separate their recyclable materials.
• AB 341 requires that a jurisdiction implement a commercial solid waste recycling program on or after July 1, 2012. The bill does not require that the jurisdiction revise its SRRE "if the jurisdiction adds or expands a commercial solid waste recycling program to meet this requirement."

Perhaps the most confusing and internally contradictory requirement regards changes to the CalRecycle's own purview:

"The bill would require the CalRecycle to review a jurisdiction’s compliance with the above requirement as a part of the department’s review of a jurisdiction’s compliance with the 50% solid waste diversion requirement, and would authorize the department to review a jurisdiction’s compliance pursuant to a specified procedure."

• The only mandatory CalRecycle compliance review for solid waste diversion is still the existing 5-year review for the IWMA's "50% solid waste diversion" mandate.
• AB 341 adds a level of compliance review to the 5-year SRRE assessment: Has the jurisdiction's implementation of the AB 341 Commercial Recycling requirement complied with the IWMA mandated 50% diversion requirement?

Interpretation:

1.     The Commercial Waste Generator must "arrange for recycling services" on or after July 1, 2012 if that entity generates more than 4 cubic yards of solid waste per week. The actual required date of compliance for Commercial Waste Generators will be determined by the jurisdiction as part of preparation of its Commercial Recycling Program.

2.     The jurisdiction is required to educate and monitor Commercial Waste Generators for compliance with the requirement to "arrange for recycling services." Enforcement is optional, and there is no requirement for tracking the fate of the recyclable materials if they are not transferred to a California SWF.

3.     The jurisdiction must develop and implement the Commercial Recycling Program, but does not need to revise the SRRE to coincide with the now-constant updating it must do to keep data current on "existing, existing expanded and proposed" NDFs. The only state review coincides with the jurisdiction's next 5-year SRRE review for compliance with the IWMA's mandate for 50% diversion.

4.     The CalRecycle's determination of a jurisdiction's compliance with AB 341's Commercial Solid Waste Recycling Program provisions is at the time of the 5-year SRRE review, in so far as these impact that jurisdiction's ability to comply with the IWMA's 50% diversion mandate.

5. Since this SRRE update clock is reset when a jurisdiction's SRRE has been accepted, effectiveness of AB 341's Commercial Recycling mandate in terms of impact upon the IWMA's mandate for 50% diversion of solid waste disposal can only be determined for all jurisdictions, once all SRRE documents have been submitted and reviewed, a process that will continue over at least the next five years. Yet since there is no specified mandated program initiation date, this efficacy assessment also has no specific end date.

Issue 4: Annual the IWMA report Due May 1 instead of September 1

The IEMA requires each state agency to submit an annual report to the CalRecycle summarizing its progress in reducing solid waste. AB 341 changes the due date from September 1 to May 1 of each year.

Interpretation:

Finally removed from obscurity, this document may now officially be called the May Day Report.

Issue 5: Notice of Permit Modification without Revision

• AB 341 amends PRC §4404 with an allowance by statute for two types of changes to a facility's SWF Permit by Modifications that do not require the level of scrutiny as for a permit Revision, (A) allows an increase in the amount of solid waste handled, if still within the facility's existing design capacity, and (B) allows 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 (RFI).

When an existing, permitted solid waste facility owner/operator wants to make changes to the permitted physical facility and/or operations, the law has required an application for a Revised Permit. When a jurisdiction receives an application to revise a SWF, the enforcement agency in the past has made a determination regarding that potential revision, and notified the state of its decision.

If the Local Enforcement Agency's (LEA) determination was that the proposed changes did not warrant full permit revision, this also de facto constituted in most cases a determination of no significance under CEQA. Such low-level permit changes could be accomplished through application for and approval of a Modification to its SWF; for this, the LEA bore no responsibility to report its determination to the state.

This section adds one critical requirement for notification from the jurisdiction to the CalRecycle that it has not found mandatory in the past. The LEA must now notify the state when it has determined that changes may be made under a Modification, and that a Permit Revision is not necessary.

Interpretation:

This closes a loophole that has apparently been abused. Changes to permitted solid waste facility conditions that were later determined by the state to indeed by quite substantial were allowed by the local jurisdiction to be certified as in compliance through the more expedient and less costly mechanism of a permit Modification, avoiding initial state review and approval.

The operator may still apply for a Modification rather than a Revision to its SWF, and the LEA may still find that the changes do not warrant a Revision. The reporting requirements simply increase the level of state scrutiny, and by implication, increases the pressure upon a local jurisdiction to apply the more stringent permit pathway.

Issue 6: Reimbursement to Local Agency for Mandated Programs

Statutory provisions are established whereby local agencies and school districts may be reimbursed for state-mandated program implementation and maintenance costs.

AB 341 provides that no reimbursement is required for specified reasons:

"SEC. 16. 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, within the meaning of Section 17556 of the Government Code."

Interpretation:

The fees authorized by AB 341 are those that can be levied on the NDFs and Commercial Waste Generators by local agencies to recover costs for meeting the state requirements for the relevant programs.

Conclusion and Recommendations

Bringing about broader programs to "recover for reuse and recycling" is a good thing, and indeed the Commercial Waste Generator is a likely candidate, arguably the most appropriate target, for a state-wide mandatory waste diversion program. Directing an agency to seek the higher goal of 75% rather than the current 50% mandate should strongly encourage diversification of the tools and methods that can now cleanly and safely accomplish the goal. How the CalRecycle will interpret the new code language and implement its policies and mandates remains to be determined.

There must be external, enforceable validation that segregation for recyclable goods does indeed result in Recycling per encoded definition, benefiting California environmentally and socio-economically. A mechanism needs to be developed to ensure that to a measurable degree, segregated recyclable materials are further processed and made ready to reenter the marketplace. Without validation of Closed-Loop Recycling, all that the CalRecycle can hope to accomplish by the law's implementation is Commercial Waste Segregation.

The law provides sufficient time over the next 18 months for the public, the jurisdictions, and the state to figure out what will work for the betterment of the overall socio-economic welfare, and what should not be forced down the proverbial throat of local jurisdictions and the already-struggling business community. Careful scrutiny of resource recovery, waste reduction, increased reuse and recycling, and of all the things the state now calls "composting" can indeed improve business economics while dramatically increasing the amount of the state's resources that are removed from the flow of waste on its way to disposal.

However, AB 341 seems to work against itself. PRC §4004 (b) now reads,

"It is the intent of the Legislature to encourage the development of the additional solid waste processing and composting capacity that is needed to meet state objectives for decreasing solid waste disposal by identifying incentives for local governments to locate and approve new or expanded facilities that meet and exceed their capacity needs, and to recognize local agencies that make significant contributions to the state’s overall solid waste reduction and recycling objectives through the siting of facilities for the processing and composting of materials diverted from the solid waste stream."

Yet the law directs that this diversion policy goal of "not less than 75% of solid waste generated" be reached solely through source reduction, recycling, or composting. Fortunately, in addition to the required explanation of a roll-out strategy, the state's report to the Legislature must include an adequacy assessment of the knowledge base, the assumptions, the policy, the law, and attendant regulatory changes. If the Strategy proposed does not meet both the legislatively-directed Policy Goal and the encoded intent to "encourage the development of the additional solid waste processing and composting capacity," the report fails in its mission.

Most of the cautions presented in this review are intended to arm against divisive sub-agendas driving California's actual balance of waste management forces against poor use of authority beyond the actual intent of a relatively positive piece of legislation. Those cautions are almost equally directed to the public's business sector, to the city and county jurisdictions being saddled with new requirements, and to the state department and administration itself to be unerringly careful with its interpretation and implementation.

CalRecycle staff has already released a first draft of the mandated report that is due on or before January 1, 2014. This analysis of the new legislation has been developed in advance of our upcoming review of the CalRecycle's first attempt at explaining its implementation plans with the hope it may also assist others in considering the merits of the state's proposed approach, and in developing alternatives.

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