View PDF of this article.

CALIFORNIA AB 341 LEGISLATIVE ANALYSIS

New Diversion Law Modifies California's Integrated Waste Management Act

Michael Theroux

June 2012
(Revised July 2013)

Introduction

A complex piece of waste management legislation was approved by Governor Jerry Brown last October 2011, directing the California Department of Resources Recycling and Recovery (CalRecycle) to shift its policy goals beyond current mandates for diversion of waste from disposal, and for recovery of recyclable materials. Assembly Bill 341 (AB 341) singles out Commercial Waste Generators as the sector most in need of improved waste management and requires this broad business sector to "arrange for recycling services" on or after July 1st of this year.

This review considers each section and line of the new law in context of what is being changed in the mandates stemming from the Integrated Waste Management Act (IWMA), as amended, prior to passage of AB 341. It reviews the changes to the Public Resources Code (PRC) in terms of what has been added to the responsibilities (and costs) placed upon the business community, upon California's local jurisdictions, and upon the CalRecycle, primary agency of purview.

The CalRecycle now has a year and a half to seek stakeholder input and develop a report regarding how it will implement the new code section and achieve the new goals. The report is due to the legislature by January 1, 2014. This review is therefore developed in a very detailed manner to inform stakeholders and the state to ensure that the positive aspirations of AB 341 indeed do improve California's lot, while calling attention to the perils and pitfalls attendant to the newly promulgated law.

Findings and Declarations

Authors of legislation must state the basic assumptions upon which a bill is based. These presumptions, or precepts, then justify or at least provide excuses for the subsequent mandates of the law being proposed. Many of the statements made in AB 341 as Findings and Declarations can be rephrased as "We're Number One!" In some cases, the data do not agree that that claim. For example, if we are indeed disposing of resources at a greater rate per capita than the national average, it is puzzling how Californians could at the same time lead the nation in recycling and waste reduction. The answer unfortunately lies (pun intended) in the way the numbers are counted.

AB 341 is primarily aimed at forcing commercial waste recycling. Standing at many large Materials Recovery Facility (MRF) in the state will provide insight into why this might be needed; the garbage trucks full of residential trash get picked through on the conveyors, while the "commercial" waste hauls often go straight through to the landfill. It appears then that the problem rests with design and economical operation of the collection, hauling, and MRF operations, rather than with the segregation of the commercial waste at its varied source.

The act of requiring waste generators segregate recyclable goods from their trash does not constitute recycling on its own, nor does it ensure that the segregated materials do not ultimately end up at the landfill anyway. The CalRecycle's own Glossary provides the following:

"Recycling: Per Public Resources Code section 40180, the process of collecting, sorting, cleansing, treating, and reconstituting materials that would otherwise become solid waste, and returning them to the economic mainstream in the form of raw material for new, reused, or reconstituted products that meet the quality standards necessary to be used in the marketplace."

Section 1 (2)(b)(3) of AB 341 states as a Finding, " The disposal of recyclable materials in the commercial solid waste stream prevents materials from circulating in the state economy to produce jobs and new products."  This precept is poorly stated at best, and patently false in its worst interpretation. The act of releasing recyclable materials into any sub-flow of the solid waste stream does NOT constitute disposal. It is the lack of diversion of materials from reaching final landfill disposal that prevents the recovery. California has no way to determine whether separation of recyclable goods from commercial waste would contribute to the state's economy; there is no mandate to track the materials once they are separated. The statement, stripped of its connotations, should simply read, "Disposal Prevents Recovery."

It is of concern that a law directing an agency whose title is the California Department of Resources Recycling and Recovery (emphasis added) provides so little detail as to how recovery could be one of the key mechanisms by which the state's goals can be met. Although not well defined, the bill's language does leave room for consideration of the importance of recovery beyond source reduction, recycling, and composting. Section 2(a)(1) provides that, "Solid waste diversion and disposal reduction require the availability of adequate solid waste processing and composting capacity," and in 2(a)(3)(b) notes that "…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."

In a rather circular set of code subsections, AB 341 also amends PRC §5001 facility establishment guide lines, using the phrase, "… designed to recover for reuse or recycling at least 5 percent of the total volume of material received by the facility…" In this sense, the bill implies that to recover is the functional step of removal of material from the mixed solid waste stream, enabling reuse or recycling.

Section 2(a)(3)(c) amends prior law and is particularly important when viewed from the perspective of increasing the diversity and availability, the "capacity", of the solid waste processing and composting infrastructure in California:

"By setting new commercial solid waste recycling requirements in Section 42649, the Legislature does not intend to limit a right afforded to local governments pursuant to Section 40059, or to modify or abrogate in any manner the rights of a local government or solid waste enterprise with regard to a solid waste handling franchise or contract."

Yet AB 341 presumes that imposing strict controls on commercial generators will in some way favorably impact the institutionalized patterns of the downstream infrastructure. Better, perhaps, to conceive of a more holistic solution wherein generators are not singled out and the burden of diversion from disposal is spread across the entire supply chain. This indeed must become the plan for implementation of AB 341: a structural re-arrangement starting from Source and ending when the waste is returned to the marketplace as useful resources or diverted by transformation,[2]   with the remainder disposed by landfilling.

Issue 1: Mandate vs. Policy Directive

There is a difference between mandate and policy that is pertinent to interpretation of the changes made by AB 341 to each jurisdiction's Integrated Waste Management Plan:

• The IWMA mandated the Integrated Waste Management Plan - where a Source Reduction and Recycling Element (SRRE) previously needed (1) Source Reduction, (2) Recycling and (3) Composting components that together divert 50% from landfilling or transformation by source reduction, recycling or composting activities by Jan 1, 2000.
• AB 341 does not alter this mandate; rather it makes a "legislative declaration of policy" whereby instead of 50%, the state should seek the goal of processing 75% of generated waste by source reduction, recycling or composting by the year 2020.
• AB 341 requires that the CalRecycle submit a detailed report to the Legislature by January 1, 2014 that outlines "strategies to achieve the state’s policy goal that not less than 75 percent of solid waste generated be source reduced, recycled, or composted by the year 2020."

This comparison between policy and mandate is concisely stated:

• "41780.01. (a) The Legislature hereby declares that it is the policy goal of the state that not less than 75 percent of solid waste generated be source reduced, recycled, or composted by the year 2020, and annually thereafter. (b) Notwithstanding subdivision (a), the department shall not establish or enforce a diversion rate on a city or county that is greater than the 50 percent diversion rate established pursuant to Section 41780."

The law amends the Public Resources Code by adding §41780.02 which essentially provides a Table of Contents for that report that in addition to the proposed strategies, includes six specific elements (plus a seventh "catch-all"): (1) ... emphasis on new and emerging trends in resource management; (2) Identification of problematic waste streams and sources and recommendations on handling those waste streams; (3) Evaluation of current programs and their effectiveness, and recommendations for changes to those programs; (4) Recommendations for reprioritizing existing resources to best achieve the purpose of Section 41780.01; (5) Recommendations for legislative changes, if any, that are necessary to achieve the goals of Section 41780.01; (6) Report on regulatory changes, if any, that are necessary, to achieve the goals of Section 41780.01.

Interpretation:

1.     AB 341 carefully stops short of changing the mandate of the IWMA regarding 50% solid waste diversion from disposal. Instead of replacing the 50% diversion mandate with a 75% diversion mandate, AB 341 utilizes a well-exercised action, a "legislative declaration of policy."

2.     Black's Law Dictionary[3]   defines the term "policy" as "[t]he general principles by which a government is guided in its management of public affairs."  "Policies" are meant to provide a "principled basis for administering and interpreting regulations and statutes."

3.     AB 341 includes a directive from the legislature regarding a change in the policy that is to guide administration of the IWMA by the CalRecycle, rather than legally mandating a different minimum diversion rate. The IWMA mandate for 50% minimum diversion remains the same. The CalRecycle is directed to adopt a policy that actively seeks to achieve a goal of managing 75% of solid waste generated in the state specifically by the mechanisms of source reduction, recycling, and composting. The CalRecycle is not directed to "divert at least 75% from disposal." The CalRecycle is not directed to "increase recycling and resource recovery to at least 75% of the total waste generated." Those would have required legal amendment of the 50% diversion goal established by the IWMA, which AB 341 expressly did not do.

4.     In reviewing instances of the use of "legislative declarations of policy", one aspect becomes clear. A formal legal change to the recycling rate from 50% to 75% would have triggered assessment under the California Environmental Quality Act (CEQA), and potentially under the National Environmental Protection Act (NEPA), given potential impacts upon federal lands, money and/or people. The use of a Policy Directive thus must assume that administration of that policy will NOT alter the underlying determinations of impact associated with the CEQA-compliant IWMA. If it becomes apparent that state implementation of the legislative direction of policy would indeed risk significant impact, it would constitute a new Project requiring CEQA assessment.

5.     The state now has a year and a half to debate the actual roll-out of this bill and the potential changes necessary to policy and code that reaching for the 75% waste management goal entails. The CalRecycle has already released a first draft of the mandatory strategic plan, the assessment of which will be the subject of a subsequent Teru Talk Focus Report.

Issue 2: New Timing Requirement to Nondisposal Facility Element

This appears at first to be a "stream-lining" provision that simplifies the overall SRRE, which needs to be reviewed every five years. Yet what timing and overview requirements were removed are overbalanced by state micro-management of the actual data received by jurisdictions on a daily basis, while leaving in place the IWMA mandated SRRE element periodic revision and review.

The IWMA requires a nondisposal facility element (NDFE) as one of a jurisdiction's integrated waste management planning documents. Prior to AB 341, the NDFE update timing is stipulated at every 5 years, and requires that both the state and a local task force or committee be given the opportunity to review and comment on the Update.

• AB 341 inserts a timing requirement at §41734.5(b): Once a NDFE has been certified, all updates to the conditions of permitted solid waste facilities must be submitted to the state and copied to the local oversight body within 30 days of the change in information. This constitutes a mandate for a constant stream of detail in addition to a periodic and thorough 5-year assessment, but does not require state approval of each update.
• AB 341 by statute eliminates the potential that the ongoing receipt of data and updating of the nondisposal facility (NDF) changes might trigger CEQA. In the same section, the law is amended to allow a jurisdiction to charge a fee for each instance of data submission by an owner/operator, for such NDF changes:
• "SEC. 7. Section 41735 of the Public Resources Code is amended to read: (a) Notwithstanding Division 13 (commencing with Section 21000), the adoption or update of a nondisposal facility element shall not be subject to environmental review. (b) Local agencies may impose a fee on project proponents to fund their necessary and actual costs of preparing and approving updates to Nondisposal facility elements."

A Nondisposal facility element is defined in CalRecycle's on-line glossary as:

Nondisposal facility element (NDFE): One of a jurisdiction's planning documents, the NDFE identifies CalRecycle-permitted "non-disposal" facilities used by a jurisdiction to help reach the IWMA's diversion mandates. Nondisposal facilities are primarily materials recovery facilities, compost facilities, and transfer stations, but a jurisdiction's NDFE may also discuss recycling centers, drop-off centers and household hazardous waste facilities. Please see Title 14, California Code of Regulations, sections 18752-18754. Reviewing the referenced text is informative:

CCR 14 Article 6.4 Nondisposal Facility Element, § 18752. Scope. 

Defines a NDF as "any solid waste facility required to obtain a permit pursuant to Article 1 (commencing with Section 44001) Chapter 3 Part 4, except a disposal facility or a transformation facility."

• The law only requires that the jurisdiction update with "information available" (instead of seeking an exhaustive investigative assessment), and notes that any jurisdiction can include other facilities in the NDFE beyond those specifically defined as NDFs, giving as examples, recycling centers, drop-off centers, and household hazardous waste facilities.

§ 18753. Description of Nondisposal Facilities within a Jurisdiction.

Mandates identification of, and stipulates minimum data reporting requirements for, ALL existing, expanding and proposed NDFs which "recover for reuse or recycling at least five percent of the total volume of material received by a facility." Reporting requirements include "anticipated diversion rate or expected diversion rate from the total amount of waste that the facility receives.

• The section does NOT require any form of actual monitoring or validation of the "anticipated diversion rate."

§ 18753.5. Description of Nondisposal Facilities outside a Jurisdiction.

Duplicates the above provisions, but for facilities a jurisdiction plans to use that are outside of that jurisdiction "which recover for reuse or recycling at least five percent of the total volume of material received by a facility."

• Note that there is no "distance from jurisdiction" disclaimer to this mandate, and that it applies to essentially ALL out-of-jurisdiction NDFs as long as they are required to obtain a California Solid Waste Facilities (SWF) permit.

• Therefore: the IWMA mandates a provision that AB 341 has not altered (except for timing and oversight) that REQUIRES identification, amount of waste to be transported to the facility, anticipated diversion rate and location only when processing occurs in our state.

§ 18754. Description of Transfer Stations within a Jurisdiction.

Duplicates the above NDFE identification provisions for "existing, expansion of existing or proposed transfer stations located within a jurisdiction, which recover less than five percent of the volume of materials received for reuse or recycling" but without the requirement to document the "anticipated or expected diversion rate."

§ 18754.5. Description of Transfer Stations outside a Jurisdiction.

Duplicates above provisions, but requires only name and location of identified facilities.

• Whatever sort of facility a jurisdiction transports waste to must be at least identified as to name and location, again, as long as there is the requisite California SWF permit

Interpretation:

1.     Without altering the intent or mandate of solid waste management of the IWMA, the new law increases data management provisions and requires that a jurisdiction's SRRE of its Integrated Waste Management Plan (IWMP) be constantly updated with respect to "existing, existing, expanded, and proposed" NDFs, as the information regarding those facilities becomes available to the jurisdiction.

2.     At the time when a jurisdiction receives information about a NDF to which it might consider delivering solid waste, it is now required to update the NDFE with the requirements that the facility would need a SWF, whether existing and expanding, or simply proposed. Within 30 days of receipt of the information, the jurisdiction then must inform the state and the local task force of each updated data element received. Under the IWMA this didn't matter; all changes since the last mandated update went into the next 5-year review.

3.     Each time facility owner/operators notify the local jurisdiction of a change in facility detail, the law now allows the jurisdiction to charge a fee for "preparing and approving updates" to the NDFE with the new information. There does not appear to be any enforcement measure requiring a facility owner/operator to submit such data; the combination will tend to discourage timely submission of detail.

4.     The act of publicizing a proposal for a project impacts that proposal in that it immediately opens the information to public scrutiny. This raises the question of what defines a "proposed project". Is it the moment a developer's application is submitted, the application is accepted as complete, or when the project is approved by the local jurisdiction's planning body? Cities and Counties would do well to determine what constitutes a "proposed project" within their own ordinances.