BILL ANALYSIS
AB 2277
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Byron D. Sher, Chairman
2003-2004 Regular Session
BILL NO: AB 2277
AUTHOR: Dymally
AMENDED: June 24, 2004
FISCAL: Yes HEARING DATE: July 1, 2004
URGENCY: No CONSULTANT: Kip Lipper
SUBJECT : HAZARDOUS WASTE: MATERIALS REQUIRING
SPECIAL HANDLING
SUMMARY :
Existing law :
1)Under the California Integrated Waste Management
Act of 1989:
a) Requires "materials that require special handling"
(MRSH) to be removed from major appliances and vehicles
prior to crushing for transport or transferring to a
baler or shredder for recycling.
b) Defines "materials that require special handling" to
be:
i) Sodium azide canisters in unspent airbags that are
determined to be hazardous by federal and state law or
regulation.
ii) Encapsulated polychlorinated biphenyls (PCBs), Di
(2-Ethylhexylphthalate) (DEHP), and metal encased
capacitors, in major appliances.
iii) Chlorofluorocarbons (CFCs),
hydrochlorofluorocarbons (HCFCs), and other non-CFC
replacement refrigerants, injected in
air-conditioning/refrigeration units.
iv) Used oil found in major appliances.
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v) Mercury found in switches and temperature control
devices in major appliances.
vi) Any other material that, when removed from a major
appliance, is a hazardous waste regulated pursuant to
Chapter 6.5 (commencing with Section 25100) of Division
20 of the Health and Safety Code.
2)Under Chapter 6.5 (Commencing with Section 25100) of the
health and Safety Code requires any hazardous material that
becomes a hazardous waste when released or removed from a
major appliance and any mercury-containing motor vehicle
light switch that becomes a hazardous waste when removed
from any vehicle to be managed pursuant to hazardous waste
control requirements.
3)Under (Chapter 6.11 (Commencing with Section 25404) of the
Health and Safety Code which govern the Unified Hazardous
Waste and Hazardous Materials Management Regulatory Program:
a) Requires the Secretary for Environmental Protection to
adopt regulations and implement a unified hazardous waste
and hazardous materials management regulatory program.
b) Authorizes local agencies that meet specified
requirements to apply to the secretary to implement the
unified program, and requires every county to apply to
the secretary to be certified to implement the unified
program.
This bill :
1)Revises the definition of "materials that require special
handling" to include metal encased capacitors,
hyrdochloroflourocarbons (HCFC's) and other non-CFC
replacement refrignerants, and any other material that when
removed from a major appliance is a hazardous waste under
Chapter 6.5.
2)Requires those materials to be removed from major appliances
and vehicles in which they are contained before the
appliance or vehicle is crushed, baled, shredded, or sawed
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or sheared apart, or otherwise processed in a manner that
could result in the release, or prevent the removal of
materials that require special handling.
3)Requires the Department of Toxic Substances Control (DTSC),
by July 1, 2005, to adopt emergency regulations establishing
the requirements and procedures for obtaining, suspending,
and revoking an appliance recycler certificate and imposing
penalties related to the removal of hazardous wastes from
appliances.
4)Requires DTSC, by October 1, 2005, to establish a process
for certifying appliance recyclers, requires appliance
recyclers to apply for certification, and before a
certificate may be granted, requires a certified uniform
program agency (CUPA) in whose jurisdiction the applicant is
located inspect the appliance recycling facility.
5)On and after January 1, 2006, prohibits persons who
transport, deliver, or sell discarded major appliances to
scrap recycling facilities, other than a certified appliance
recycler, to certify to DTSC that all MRSH has been removed
from the appliances.
6)Requires the Secretary for Environmental Protection to
include in the unified program, a person who is subject to
requirements regarding the removal of materials that require
special handling from a major appliance.
COMMENTS :
1)Purpose of Bill . According to the sponsor of this measure,
the Appliance Recycling Centers of America (ARCA):
"The Metallic Discards Act prohibits the landfilling of major
appliances (also known as white goods) and requires that
specified hazardous materials - including mercury, PCBs,
used oil, and CFCs -- be removed from the appliances before
they are crushed or shredded for the purpose of recycling
the metal. According to appliance industry data, more than
3 million major appliances (refrigerators, freezers,
washers, dryers, microwaves, air conditioners, furnaces,
etc.) enter the waste stream every year, generating 84,000
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pounds of mercury devices, 1.75 million pounds of CFCs,
328,000 pounds of PCBs, and 254,000 gallons of used oil. If
these hazardous materials are not removed before the
discarded appliance is crushed or shredded, these toxic
contaminants enter California's air, water, and soil.
A report issued by the California Research Bureau in May
("Appliance Recycling and Materials Requiring Special
Handling: Improving the Effectiveness of the Metallic
Discards Act") analyzed the current system of managing
discarded major appliances in California and concluded that
"there are likely widespread violations" of the requirement
to remove hazardous materials before crushing the
appliances. It also found there are no incentives for
discarded appliance handlers to comply with the law; in fact
there is every incentive not to comply.
If an appliance handler does comply with the Metallic Discards
Act by removing hazardous materials from appliances, that
person becomes a hazardous waste generator under the law and
must apply to DTSC for a hazardous generator ID number. In
essence, compliance with the Metallic Discards Act puts a
person into DTSC's regulatory universe. Absent a rigorous
inspection and enforcement function to ensure compliance,
non-compliance with the Metallic Discards Act will be
widespread, as the CRB found.
The current problem will not be resolved until the regulated
universe of discarded appliance handlers is narrowed so that
local agencies, like CUPAs, can identify those businesses
that claim to be removing hazardous materials and can ensure
they are complying with the law.
2)Opponents State There is no compelling evidence that AB 2277
is warranted. The bill creates an unnecessary and costly
mandate on the Department of Toxic Substances Control. AB
2277 could have an adverse effect on the recycling
community . Opponents to this measure state:
"The California Research Bureaus's report?does not provide any
conclusive evidence that current laws are ineffective.
Public Resources Code, Section 42175, requires the removal
of materials requiring special handling from appliances and
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vehicles prior to crushing for transport or transferring to
a baler or shredder for recycling. The CRB report states
that there is some evidence that compliance with the
Metallic Discards Act has reduced PCB contamination of
wastes produced by metal shredding operations. The report
further states that the rate of environmental release of
some materials requiring special handling from appliances
(in particular, mercury and PCBs) is likely to eventually
diminish over time.
"AB 2277 requires DTSC to adopt emergency regulations for the
certification of appliance recyclers. The cost of creating
this program is unknown at this time. The mandate would
create another layer of bureaucracy by establishing an
unnecessary certification process for persons who already
remove and handle special wastes as required by law. The
California Integrated Waste Management Board published the
"Appliance Recycling Guide" in November 1994. The guide is
designed to assist those persons in the disposal and
recycling sectors who intend to process appliances and the
special materials contained within them. DTSC recently
published a manual for the removal of mercury switches found
in appliances and is in the process of conducting workshops
to assist appliance recyclers in identifying mercury
switches found in appliances. Thus, there really appears to
be no necessity to create another costly bureaucracy when,
in fact, the current law is sufficient to handle the
problem, and the recycling community is complying with the
law.
"This bill states that only "certified appliance recyclers"
would be allowed to remove the materials that require
special handling. Many recyclers are small businesses. The
added costs that are unknown at this time could be
detrimental to the small recyclers. Recyclers currently
remove materials that require special handling from the
appliance prior to the appliance arriving at a
shredding/recycling facility. It is important to note that
shredding facilities require its suppliers to sign a
certification stating that all refrigerants such as CFCs
will be removed and recovered prior to delivery. As a
general practice, the shredding facilities also distribute
to their suppliers a Scrap Acceptance Policy stating that
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the companies will not accept appliances containing MRSH.
"Unless there is compelling evidence presented, which there
has not been, that the current law is not being complied
with or is ineffective, this bill should not be passed out
of your committee.
3)California Research Bureau Report Described . In May 2004,
at the request of Senator Bowen and Assemblymember Dymally,
the California Research Bureau of the State Library issued a
report entitled, Applicance Recycling and Materials
Requiring Special Handling: Improving Effectiveness of the
Metallic Discards Act. The executive summary of the report
makes the following observations:
"?.it appears that enforcement of Section 42175 [the provision
of current law that requires removal of MRSH from major
appliances and vehicles] is uneven and that there are likely
widespread violations. In many instances, MRSH are not
being entirely removed before an appliance is recycled. In
other cases, it is probable that MRSH are removed from the
appliance, but not properly handled or disposed of according
to relevant hazardous waste rules.
"Compliance with Section 42175 is probably strongest for CFCs,
due both to the economic value of CFCs and the additional
regulation of them by the federal government. Compliance is
probably weakest for removal of mercury switches/thermostats
and PCB capacitors. There are a number of likely reasons
for noncompliance with Section 42175. Until recently, it
was not entirely clear who was supposed to enforce Section
42175. It is now clear that enforcement is the
responsibility of the Department of Toxic Substances
"Control (DTSC) and local enforcement agencies.
However, there are still ambiguities in the language of the
Metallic Discards Act, particularly with regard to exactly
who is supposed to comply with Section 42175 and when. In
addition, the economics of recycling do not provide strong
incentives to properly remove and dispose of all the MRSH.
The only really valuable components that pay for their own
recovery are the scrap metal and the CFCs. Also contributing
may be the relative inconvenience of identifying, removing
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and correctly disposing of some of the MRSH, and perhaps a
lack of knowledge on the part of recyclers and local
regulators.
"Enforcement of the Metallic Discards Act is mostly left up to
local agencies. However, according to a survey we conducted
of local enforcement agencies, many of them haven't kept
track of all of the companies and facilities in their
jurisdiction that process appliances for recycling. If they
do inspect or otherwise verify compliance at these
operations, they frequently don't verify the removal of all
the kinds of MRSH listed in the Metallic Discards Act. It
appears that the focus of many local enforcement agencies is
on enforcing the laws on known hazardous waste generators -
but if a company fails to comply with Section 42175, it may
not be registered as a hazardous waste generator at all, and
thus may escape attention.
"There is strong circumstantial evidence to infer that
violations of the Metallic Discards Act lead to the release
of harmful substances into the environment. There is also
some evidence that compliance with the Metallic Discards Act
has helped reduce PCBs contamination of wastes produced by
metal shredding operations.
"But there is little solid information available about the
extent of the environmental harms from appliance disposal.
Unless more information can be developed about environmental
impacts, it will be difficult to say with any precision what
the benefits would be of achieving higher levels of
compliance. In addition, it should be noted that the rate
of environmental release of some MRSH from appliances (in
particular, mercury and PCBs) is likely to eventually
diminish over time. These components are generally found
only in older appliances. Over time there will probably be
fewer and fewer such appliances in service or entering the
waste stream."
4)Should CRB Report's Recommendations Be Included In Bill?
The CRB Report concludes with several policy options and
recommendations for consideration by the Legislature that do
not appear to be contained in the bill. The author and
committee may wish to consider the following additional
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recommendations made by the CRB Report:
a) Compliance might be improved by providing economic
incentives. It might be possible to levy recycling fees
on new appliance sales or manufacture, in order to fund
recycling programs or provide a bounty for recovered
MRSH. However, it is not clear how an equitable system
could be developed, given that much of the MRSH is only
present in old appliances that are no longer manufactured
or sold.
b) The state could undertake new efforts to educate and
guide local agencies in enforcement of the Metallic
Discards Act, such as updating its appliance recycling
guide, and its list of recycling companies.
c) Heightened enforcement of the Metallic Discards Act
may just move problems from one part of the system to
another. There are potentially millions of parties who
could be violating the Act, and enforcement actions on
one group can increase the economic incentives of others
to violate the law. Therefore, it seems likely that an
effective change would require not only increasing
enforcement but also tightening the rules to make
accountability clearer, and/or altering the economic
incentives.
d) The Metallic Discards Act contains discrepancies
between its treatment of appliances and its treatment of
vehicles that are potentially confusing and don't have
any obvious policy rationale.
5)Technical Amendments Needed . As presently drafted, this
measure needs a series of technical amendments:
a) On page 5, line 21 strike out "and (c)". (There is no
"(c)").
b) Section 5 of the bill (page 6, lines 16-29)--In
addition to submitting the info to DTSC, the CAR should
be required to retain, and make available, the
documentation. The basic records retention and
availability standards found throughout Chapter 6.5 are:
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(i) Documentation must be retained for 3 years; (ii) the
period of retention is extended automatically during the
course of any unresolved enforcement action or as
requested by DTSC or the CUPA; and (iii) the
documentation must be made available for inspection upon
request by a representative of DTSC or the CUPA.
c) Section 6 of the bill (page 6, line 32-39 and page 7,
page 8, lines 1-16) The problems associated with
requiring DTSC to adopt regulations for the certification
program and making the certification discretionary could
be eliminated by revising 25211.4 along the following
lines:
To operate as a Certified Appliance Recycler (CAR) pursuant
to this article, a person must submit an application to
DTSC pursuant to (b), and must obtain a CAR certification
from DTSC pursuant to (c).
A person who intends to operate as a CAR shall submit an
Application for a CAR Certification to DTSC. The
application shall, at a minimum, include any other
information that DTSC may specify in regulation.
DTSC shall review each received Application for a CAR
Certification for completeness, and shall issue a
numbered CAR Certification to the applicant upon
determining that the application is complete and meets
the requirements of (b).
The department may suspend or revoke any CAR Certification,
in accordance with the procedures specified in Sections
25186.1 and 25186.2, for any of the grounds specified in
Section 25186.
Add another section authorizing (but not requiring) DTSC to
adopt any regulations determined necessary to implement
and enforce this article.
Section 7 of the bill(page 8, lines 17-40) ( HSC 25404
(c)(1)(A)) : Under current law, only the generator
requirements and tiered permit requirements (and
perchlorate management requirements) of Chapter 6.5 are
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included in the CUPA program.
For the most part, the requirements of Article 10.1 would
not be considered generator requirements (or either of
the other two listed types of requirements). If the
author wants CUPAs to enforce Article 10.1, the
following words should be inserted into HSC 25404
(c)(1)(A)"persons subject to the requirements of Article
10.1".
d) The ability of the regulated entities to comply with,
and the ability of DTSC and the CUPAs to enforce, the
requirements of this article and PRC 42175 would be
greatly enhanced if the appliance manufacturers were
required to provide to DTSC the identification, location,
and removal procedures for MRSH found in appliances.
e) Section 8 (Page 9, lines 1-10) PRC 42175 : The opening
phrase, "In order to prevent an illegal release of a
hazardous waste" is unnecessary and could lead to debates
at to whether or not this requirement is in all cases
necessary for this purpose. Also, this section should be
amended to explicitly prohibit the disposal of MRSH in
solid waste disposal facilities.
SOURCE : Appliance Recycling Centers of America
SUPPORT : Californians Against Waste
OPPOSITION : Solid Waste Association of North America
Institute of Scrap Recycling Industries