BILL ANALYSIS                                                                                                                                                                                                    

                                                                AB 222

                        Senator S. Joseph Simitian, Chairman
                              2009-2010 Regular Session
           BILL NO:    AB 222
           AUTHOR:     Adams and Ma
           AMENDED:    July 8, 2009
           FISCAL:     Yes               HEARING DATE:     July 13, 2009
           URGENCY:    No                CONSULTANT:       Caroll  

            SUMMARY  :    
            Existing law  :

           1)Requires retail sellers of electricity to meet 20% of sales  
             from eligible renewable resources by December 31, 2010.   
             This is known as the Renewable Portfolio Standard (RPS)  
             (Public Utilities Code 399.11et seq.). 

           2)Defines renewable resources eligible under the RPS as  
             biomass, solar thermal, photovoltaic, wind, geothermal, fuel  
             cells using renewable fuels, small hydroelectric generation,  
             digester gas, municipal solid waste conversion, landfill  
             gas, ocean wave, ocean thermal, or tidal current.

           3)Further defines "solid waste conversion" for purposes of the  
             RPS to mean, a technology that uses a noncombustion thermal  
             process to convert solid waste to a clean-burning fuel for  
             the purpose of generating electricity, and that meets all of  
             the following criteria:  The technology does not use air or  
             oxygen in the conversion process, except ambient air to  
             maintain temperature control.

              a)   The technology produces no discharges of air  
                contaminants or emissions, including greenhouse gases as  
                defined in Health and Safety Code (HSC) 38505.

              b)   The technology produces no discharges to surface or  
                groundwaters of the state.


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              c)   The technology produces no hazardous wastes.

              d)   To the maximum extent feasible, the technology removes  
                all recyclable materials and marketable green waste  
                compostable materials from the solid waste stream prior  
                to the conversion process and the owner or operator of  
                the facility certifies that those materials will be  
                recycled or composted. 

              e)   The facility at which the technology is used is in  
                compliance with all applicable laws, regulations, and  

              f)   The technology meets any other conditions established  
                by the California Energy Commission (CEC).

              g)   The facility certifies that any local agency sending  
                solid waste to the facility diverted at least 30 percent  
                of all solid waste it collects through solid waste  
                reduction, recycling, and composting.  For purposes of  
                this paragraph, "local agency" means any city, county, or  
                special district, or subdivision thereof, which is  
                authorized to provide solid waste handling services.

            Under the California Integrated Waste Management Act (Act) of  
           1989  :

           1)Requires each city or county source reduction and recycling  
             element to include an implementation schedule that shows a  
             city or county must divert 25 % of solid waste from landfill  
             disposal or transformation by January 1, 1995, through  
             source reduction, recycling, and composting activities, and  
             must divert 50% of solid waste on and after January 1, 2000.  
              (PRC 41780).

           2)Defines "gasification" to mean a technology that uses a  
             noncombustion thermal process to convert solid waste to a  
             clean burning fuel for the purpose of generating  
             electricity, and that, at minimum, meets all of the  
             following criteria: 

              a)   The technology does not use air or oxygen in the  
                conversion process, except ambient air to maintain  


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                temperature control. 

              b)   The technology produces no discharges of air  
                contaminants or emissions, including greenhouse gases, as  
                defined in HSC 38505(g).

              c)   The technology produces no discharges to surface or  
                groundwaters of the state. 

              d)   The technology produces no hazardous waste. 

              e)   To the maximum extent feasible, the technology removes  
                all recyclable materials and marketable green waste  
                compostable materials from the solid waste stream prior  
                to the conversion process and the owner or operator of  
                the facility certifies that those materials will be  
                recycled or composted. 

              f)   The facility where the technology is used is in  
                compliance with all applicable laws, regulations, and  

              g)   The facility certifies to the board that any local  
                agency sending solid waste to the facility is in  
                compliance with this division and has reduced, recycled,  
                or composted solid waste to the maximum extent feasible,  
                and the board makes a finding that the local agency has  
                diverted at least 30% of all solid waste through source  
                reduction, recycling, and composting.

           3)Defines "solid waste disposal," "disposal," or "dispose" to  
             mean the final deposition of solid wastes onto land (PRC  

           4)Defines" solid waste facility" to include a solid waste  
             transfer or processing station, a composting facility, a  
             gasification facility, a transformation facility, and a  
             disposal facility. For purposes of Part 5 (PRC 45000),  
             "solid waste facility" additionally includes a solid waste  
             operation that may be carried out pursuant to an enforcement  
             agency notification, as provided in regulations adopted by  
             the board (PRC 40194).


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           5)Defines "transformation" as incineration, pyrolysis,  
             distillation, or biological conversion other than  
             composting.  "Transformation" does not include composting,  
             gasification, or biomass conversion (PRC 40201).

            This bill  :

           1) Allows energy generated from a "biorefinery" to count under  
              the RPS as long as the biorefinery conforms to existing air  
              and water quality laws.

           2) Adds a definition of "biorefinery" to the RPS that means a  
              facility that uses a nonincineration, thermal, chemical,  
              biological, or mechanical conversion process, or a  
              combination of those processes, to produce a clean burning  
              fuel for the purposes of generating electricity or a  
              renewable fuel from either carbonaceous material,  not   
              derived from fossil fuels or from a solid waste feedstock.   
              Carbonaceous materials include, but are not limited to, any  
              of the following:

              a)    Dedicated energy crops.

              b)    Agricultural crop residues.

              c)    Bark, lawn, yard, and garden clippings.

              d)    Leaves, silvicultural residue, and tree and brush  

              e)    Wood, wood chips, and wood waste.

              f)    Nonrecyclable pulp or nonrecyclable paper materials.

              g)    Waste fat, oils, and greases.

           3) Requires a biorefinery to satisfy all of the following  

              a)    Meet or exceed standards set by the State Air  
                 Resources Board (ARB), local air pollution control  
                 districts, or local air quality management districts  
                 regarding air contaminants or emissions, including  


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                 greenhouse gases, as defined in HSC 38505(g).

              b)    Meet or exceed standards set by the State Water  
                 Resources Control Board or regional water quality  
                 control boards regarding discharges to surface waters or  
                 groundwaters of the state.

              c)    Routinely test the ash or other residue from the  
                 facility at least once quarterly, or on a more frequent  
                 basis as determined by the agency responsible for  
                 regulating the testing and disposal of ash or residue.   
                 Notwithstanding HSC 25143.5, if hazardous wastes are  
                 present, the ash or residue is sent to a class 1  
                 hazardous waste disposal facility.

              d)    Preprocess the solid waste feedstock to remove, to  
                 the maximum extent feasible, all recyclable materials  
                 prior to the conversion process.

              e)    Meet all of the requirements of Division 30 of the  
                 PRC commencing with 40000 for solid waste handling  
                 prior to the conversion process.

              f)    Is in compliance with all applicable laws,  
                 regulations, and ordinances.

           4) States that a facility utilizing anaerobic digestion is not  
              a biorefinery.

           5) Requires biorefinery operators to submit an annual report  
              to the CEC summarizing the percentage of feedstock  
              processed through the facility that is derived from fossil  
              fuel sources.

           6) Allows only the nonfossil biogenic portion of the feedstock  
              processed through a biorefinery shall be considered  
              eligible for RPS credit.

           7) Adds a "biorefinery that processes solid waste" to the  
              definition of "solid waste facility".

           8) Deletes "pyrolysis", "biomass conversion" and  
              "distillation" for the definition "transformation" and  


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              states that biomass conversion, anaerobic digestion and  
              solid waste conversion at a biorefinery is NOT  

           9) Adds a definition of "anaerobic digestion" to mean the  
              process using the bacterial breakdown of compostable  
              organic material in the absence of oxygen and meeting other  
              parameters as established by the IWMB.

           10)Disallows solid waste diverted to a biorefinery to 'count'  
              for diversion credit for the 50% diversion mandated.

           11)Allows solid waste diverted to a biorefinery can 'count'  
              toward diversion credit if the diversion rate is changed in  
              the future to greater than 50%. 

            COMMENTS  :

            1)Purpose of Bill  .  According to the authors, the purpose of  
             this bill is to encourage the production of low-cost  
             biofuels and green power by converting municipal solid waste  
             into a fuel source that can be used to produce renewable  
             electricity.  The authors and supporters believe these goals  
             can be achieved by permitting solid waste conversion  
             facilities that convert municipal solid waste into  
             electricity to count toward a utility's RPS and by creating  
             incentives for local governments to fuel the conversion  
             facilities with solid waste fuel stocks.

            2)What are Conversion Technologies / Biorefineries?   According  
             to the IWMB, conversion technologies, or as refered to in AB  
             222, "biorefineries", are facilites that can process organic  
             materials for energy and use three main  
             pathways-thermochemical, biochemical, and physicochemical.   
             Forms of energy that can be produced include heat, steam,  
             electricity, natural gas, and liquid fuels.

              Thermochemical conversion  processes include combustion,  
             gasification, and pyrolysis.  Thermochemical conversion is  
             characterized by higher temperatures and faster conversion  
             rates.  It is best suited for lower moisture feedstocks.   
             Thermochemical routes can convert all of the organic portion  
             of suitable feedstocks.  The inorganic fraction (ash) of a  


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             feedstock does not contribute to the energy products but may  
             contribute to fouling of high temperature equipment,  
             increased nutrient loading in wastewater treatment and  
             disposal facilities, and in some cases by providing  
             marketable coproducts or adding disposal cost.  Inorganic  
             constituents may also accelerate some of the conversion  

              Biochemical conversion  processes include aerobic conversion  
             (i.e., composting), anaerobic digestion (which occurs in  
             landfills and controlled reactors or digesters), and  
             anaerobic fermentation (for example, the conversion of  
             sugars from cellulose to ethanol).  Biochemical conversion  
             proceeds at lower temperatures and lower reaction rates.   
             Higher moisture feedstocks are generally good candidates for  
             biochemical processes.  The lignin fraction of biomass can  
             not be converted by anaerobic biochemical means and only  
             very slowly through aerobic decomposition.  As a  
             consequence, a significant fraction of woody and some other  
             fibrous feedstocks exits the process as a residue that may  
             or may not have market value.  The residue called digestate  
             can be composted.

              Physiochemical conversion  involves the physical and chemical  
             synthesis of products from feedstocks (for example,  
             biodiesel from waste fats, oils, and grease--known as FOG)  
             and is primarily associated with the transformation of fresh  
             or used vegetable oils, animal fats, greases, tallow, and  
             other suitable feedstocks into liquid fuels or biodiesel. 

            3)Concerns with Biorefineries .  While these technologies have  
             been used to process solid waste in some form or fashion,  
             they have not been widely accepted as alternatives to  
             landfills in the United States.  There are some pilot, bench  
             scale and other types of projects located in California and  
             other states and countries.  UC Riverside has completed  
             numerous studies on these various technologies, but  
             questions still remain regarding proven track records and  
             consistent emmissions data.  This is especially true of the  
             thermochemical processes that use mixed wastes as  
             feedstocks.  Concerns still remain regarding the safety and  
             viability of these technologies and the potential impact  
             they have on the existing solid waste infrastructure and  


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             recycling markets in California.
           4)Renewable Portfolio Standard Background  .  The RPS was  
             adopted in 2002 with a primary goal of reducing air  
             emissions from electricity generation to improve public  
             health.  To achieve that goal the investor-owned (IOU) and  
             publicly owned utilities (POU), along with other retail  
             electricity providers, are required to procure 20% of  
             electricity sales from specified renewable resources.  Since  
             that time more than 900 megawatts of new renewable  
             generation has been brought on-line.  Nearly 6,700 MW of  
             renewable generation has been contracted to come online in  
             the coming years.
           5)Proposed Definition of "Biorefinery" vs existing definition  
             of "Solid Waste Conversion"  .  Current law (PRC  
             25741(b)(3)), which AB 222 is proposing to repeal, defines  
             solid waste conversion using noncombustion technologies as  
             an eligible resource under the RPS program.  The primary  
             difference between current law, and the modified definition  
             proposed in this bill,  is that under current law  
             "discharges of air contaminants or emissions, including  
             greenhouse gases as defined in Section 38505 of the Health  
             and Safety Code" are prohibited.  To be RPS eligible AB 222  
             merely requires that the biorefinery be in compliance with  
             ARB, local air pollution district air quality requirements  
             and other required permits (which would be the case whether  
             the facility and feedstock was RPS eligible or not).  The  
             consequence is that that AB 222 proposes to define, as RPS  
             eligible, a processes and technologies that are directly  
             contrary to the goal of the RPS - to reduce air emissions.   
             The sponsor reports that "independently-verified emissions  
             test result show that thermochemical conversion technologies  
             are able to meet existing local, state and federal emissions  
             limits."  As mentioned above, these are existing  
             requirements and would be required of any new facility or  

              Policy Concern .  The proposed definition of "biorefinery"  
             poses a policy problem for RPS in that it sets a different,  
             and arguably lower, emission standards for these activities  
             than the other RPS eligible activities.  Some contend that  
             the existing definition of "solid waste conversion" is  


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             problematic and scientifically inaccurate.  If that is the  
             case, then the existing definition should be amended to  
             correct those inadequacies.  

            6)Recycling Markets  .  According to the Integrated Waste  
             Management Board (IWMB), the statewide solid waste diversion  
             rate for 2007, which was calculated and announced as 2008  
             was drawing to a close, rose from 54% in 2006 to 58% in  
             2007.  Overall, during 2007 Californians were able to divert  
             about 53.5 million tons of solid waste away from landfills  
             and into higher and better uses, but approximately 40  
             million tons of waste were disposed. 
              Since last fall, recycling markets in California and  
             worldwide have suffered the effects of the slow-down in the  
             economy.  While markets are rebounding, it does demonstrate  
             the vulnerability of California's diversion efforts by  
             depending on foreign markets as outlets for recyclables.   
             Also, the exportation of recyclable materials to other  
             countries can pose health and safety and environmental  
             problems for the receiving counties if there are not  
             standards in place to safely manage those materials.  This  
             highlights the need to do more to reduce waste generation  
             and increase traditional recycling markets, including  
             processing capacity, in California.  Efforts that are  
             consistent with the existing waste management hierarchy of  
             source reduction and recycling/composting should be expanded  
             and explored before options such as biorefineries are  
             accepted as solid waste management options.  Uncertainty of  
             the repercussions on the current recycling markets and  
             infrastructure is unclear and could be detrimental if it  
             becomes "convenient" to utilize these types of facilities.   
             Also, since these facilities require a certain amount of  
             feedstock to viably operate, there is no incentive to reduce  
             materials going to these facilities.

              Policy Concern  .  This proposed deletion of the definitions  
             of "solid waste conversion" (in the RPS area of the law) and  
             "gasification" (in the waste management area of the law) is  
             problematic for the diversion related side of the equation.   
             The existing definitions set forth a more stringent process  
             for safeguarding recycling markets by requiring operator  
             certification of the removal of recyclables.  The proposed  


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             definition of "biorefinery" regarding the processing of  
             solid waste and the removal of recyclable materials is  
             problematic and does not adequately address the need to  
             protect existing markets and ensure the establishment of new  

            7)Other Policy Concerns  .  In addition to the issues raised  
             above, the content of the bill poses implementation  
             challenges and does not seem to accomplish the authors'  
             objectives.  Currently, there do not appear to be any  
             statutory barriers to the siting, construction or operation  
             of these facilities.  Further, the proposed changes may  
             create more challenges than they remove.  

             Also, regarding diversion requirements, the statute  
             currently only "counts" for disposal those wastes that are  
             sent to a solid waste landfill and transformation  
             facilities.  Thus, the currently statutory framework and the  
             IWMB's guidance documents do not prohibit waste being sent  
             to nondisposal facilities from counting for diversion  
             credit.  (Note: The July 8th version of the bill states that  
             feedstocks from solid waste are not eligible for RPS, the  
             author notes that this is an error and the intent is to  
             include solid waste feedstocks).

             In attempting to address concerns that "anaerobic digestion"  
             would be brought in under the proposed definition of  
             "biorefinery" and cause confusion and program implementation  
             challenges, it creates further confusion regarding how this  
             proven, viable, and currently well established technology  
             should be viewed by defining it separately and not  
             indicating it is part of RPS.

             Aside from the outstanding policy issues regarding the role  
             these types of facilities have in the RPS and/or the solid  
             waste management hierarchy, the bill does not seem to meet  
             the authors' objectives and could cause further confusion  
             and delays in bringing the technologies that they are  
             looking to encourage to the forefront.

            8)Support and Opposition Concerns  .  Proponents contend that  
             this bill is necessary to 'level the playing' field for  
             these technologies and are necessary tools for local  


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             jurisdictions to meet their diversion mandates.  They also  
             contend that this will save the export of materials to other  
             countries where concerns for health and environmental safety  
             are questionable. 

             The opponents raise issues of lack of data on the safety and  
             the questionable performance records of these technologies.   
             They also raise the threat to the existing recycling markets  
             and the uncertainties that these new facilities bring to the  
             growth of those markets.

            SOURCE  :        Bioenergy Producers Association  

           SUPPORT  :       adaptiveARC
           Agricultural Council of California
           Alternative Resources, Inc.
           American Council on Renewable Energy/Biomass
              Coordinating Council
           Athens Services
           Balboa Pacific Corporation
           Blue Line Transfer, Inc.
           Biomass Coordinating Council
           California Association of Professional Employees
           California Chamber of Commerce
                                                                        California Energy Commission
           California Farm Bureau Federation
           California Manufacturers and Technology Association
           California Refuse Recycling Council
           California State Association of Counties
           California State Association of Electrical Workers
           California State Pipe Trades Council
           Card Construction
           Cities of Azusa, Bell, Glendale (Public Works Dept.),  
                          Hawthorne, Long Beach, Los Angeles, Pico  
                          Rivera, San Diego (Environmental Services  
                          Dept.), and Vernon
           Clean Cities Coalition
           Clements Environmental
           Commercial Industrial Waste Applications, Inc.
           Consolidated Disposal Service
           County Sanitation Districts of Los Angeles County
                          Department of the Navy
           Desert Valley Disposal Services


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           Fulcrum BioEnergy, Inc. 
           Global Energy, Inc.
           ICM, Inc.
           INEOS Bio
           Inland Empire Disposal Association
           Innovative Logistics Solutions, Inc.
           International Environmental Solutions
           International Union of Operating Engineers
           Interstate Waste Technologies
           League of California Cities
           Long Beach Coalition for a Safe Environment
           Los Angeles County Solid Waste Management
             Committee/Integrated Waste Management Task Force
           Los Angeles County Board of Supervisors
           Marin Resource Recovery
           Marin Sanitary Service
           Mid State Solid Waste & Recycling
           Miller De Wulf Corporation
           New Planet Energy, LLC
           North Valley Coalition of Concerned Citizens, Inc.
           Orange County Board of Supervisors
           Pacific Gas and Electric Company
           Palm Springs Disposal Services
           Pena's Disposal, Inc.
           Phoenix Biomass Energy, Inc.
           Rainbow Disposal Co., Inc.
           Redwood City Planning Commission
                          Regional Council of Rural Counties
           Remediation Earth, Inc.
           Republic Services, Inc.
           Sacramento Municipal Utility District
           San Bernardino County Board of Supervisors
           San Gabriel Valley Economic Partnership
           San Luis Obispo County Integrated Waste Management
           Sempra Energy
           Solid Waste Association of North America
           Solid Waste Association of Orange County
           Southern California Edison
           Sustainable Conservation
           Ternion Bio Industries
           ThermoChem Recovery International, Inc. (TRI) 


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           Theroux Environmental 
           UCLA Recycling and Municipal Solid Waste Management
               Certificate Training Program
           Valley Industry & Commerce Association
           Waste to Energy, LLC
           Western States Council of Sheet Metal Workers
           Yolo County Board of Supervisors
           2 individuals
           OPPOSITION  :    Alameda County Waste Management Authority and  
                          Recycling Board (
                          American Lung Association
                          Breathe California
                          California League of Conservation Voters
                          California Resource Recovery Association
                          Californians Against Waste
                          Center for Biological Diversity
                          Central Valley Air Quality Coalition;  
                          Legislative Cmt
                          Clean Water Action
                          Coalition for Clean Air
                          Environment California
                          Environmental Defense Fund
                          Global Anti-Incinerator Alliance
                          Natural Resources Defense Council
                          Planning and Conservation League
                          City and County of San Francisco, Dept of the  
                          Sierra Club California