BILL NUMBER: AB 274 AMENDED
BILL TEXT
AMENDED IN SENATE JULY 9, 2009
AMENDED IN SENATE JUNE 26, 2009
INTRODUCED BY Assembly Member Portantino
FEBRUARY 12, 2009
An act to add Section 43501.2 to, and to add Article 2.1
(commencing with Section 48010) to Chapter 2 of Part 7 of Division 30
of, the Public Resources Code, relating to solid waste.
LEGISLATIVE COUNSEL'S DIGEST
AB 274, as amended, Portantino. Solid waste: landfills: closure
plans.
(1) The California Integrated Waste Management Act of 1989, which
is administered by the California Integrated Waste Management Board
(board), requires the owner or operator of a solid waste landfill,
among other things, to prepare an initial estimate of closure and
postclosure maintenance costs and to submit to the regional water
board, the local law enforcement agency, and the board, a plan for
the closure of the solid waste landfill and a plan for the
postclosure maintenance of the solid waste landfill. A violation of
these provisions is a misdemeanor.
This bill would prohibit the owner or operator of a closed solid
waste landfill that is subject to a closure or a postclosure
maintenance plan from selling or offering for sale any portion of a
closed waste management unit unless the intended purchaser provides
evidence, to the satisfaction of the board, of his or her ability to
meet the financial assurance requirements of the act. By creating a
new crime, the bill would impose a state-mandated local program.
(2) Existing law requires an operator of a solid waste disposal
facility to pay a quarterly fee to the State Board of Equalization
based on the amount of solid waste disposed of at each disposal site.
Commencing with the 1995-96 fiscal year, the act requires the board
to establish the amount of the fee, as specified, and limits the fee
to a maximum of $1.40 per ton. The fees are required to be deposited
in the Integrated Waste Management Account in the Integrated Waste
Management Fund, and the board is authorized to expend the money in
the account, upon appropriation by the Legislature, to administer and
implement the act.
This bill on and after January 1, 2011, would, authorize an
operator of a solid waste disposal facility that is required to meet
financial assurance requirements and is in operation on September 1,
2010, to elect to participate in the State Solid Waste Postclosure
Trust Fund created by this bill.
The bill would require that a participating operator pay a fee of
$0.12 per ton per disposal site that would be deposited in the fund
and made available to the board for expenditure, upon appropriation
by the Legislature, for postclosure activities and corrective actions
not performed by the operator when a participating operator fails to
comply with the board's final order, the financial assurance
mechanisms are inadequate to fund necessary compliance activities,
the solid waste landfill was operating pursuant to a valid solid
waste facilities permit on or after January 1, 1988, and the board
has first used and exhausted the financial assurance mechanism
provided by the public operator.
The bill would also exempt participating operators from certain
financial assurance requirements, and after 15 years of completed
postclosure maintenance would allow participating operators, with
board approval and meeting other requirements, to reduce the term of
financial assurance.
The bill would require that the fee and this act would not be
operative after July 1, 2010 unless the board receives, on or before
July 1, 2010, letters of participation in the State Solid Waste
Postclosure Trust Fund from landfill operators representing at least
50% of the total annual waste disposal volume in 2009.
(3) 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. Section 43501.2 is added to the Public Resources Code,
to read:
43501.2. The owner or operator of a closed solid waste landfill
that is subject to a closure or a postclosure maintenance plan may
not sell or offer for sale any portion of a closed waste management
unit unless the intended purchaser provides evidence, to the
satisfaction of the board, of his or her ability to meet the
financial assurance requirements of Article 4 (commencing with
Section 43600) of Chapter 2 of Part 4 of this division.
SEC. 2. Article 2.1 (commencing with Section 48010) is added to
Chapter 2 of Part 7 of Division 30 of the Public Resources Code, to
read:
Article 2.1. State Solid Waste Postclosure Trust Fund
48010. (a) It is the intent of the Legislature to authorize the
creation and maintenance of a State Solid Waste Postclosure Trust
Fund dedicated exclusively to protecting the General Fund from
expenditures resulting from the failure of the owner or operator of a
closed solid waste landfill who was required to maintain evidence of
financial ability pursuant to Article 4 (commencing with Section
43600) of Chapter 2 of Part 4 to comply with a final order from the
board relating to compliance with postclosure and corrective action
requirements.
(b) The State Solid Waste Postclosure Trust Fund is intended to
allow the board to respond rapidly to violations of postclosure care
and corrective action orders, thereby limiting environmental harm and
threats to public health and safety.
(c) Participation in the State Solid Waste Postclosure Trust Fund
is intended to be a voluntary decision by operators of operating
landfills who are required to maintain evidence of financial ability
pursuant to Article 4 (commencing with Section 43600) of Chapter 2 of
Part 4.
(d) Since the existence of a State Solid Waste Postclosure Trust
Fund will greatly reduce the impacts of financial defaults by
operators during the postclosure period, it is the intent of the
Legislature that owners or operators who participate in the trust
fund be subject to differing financial assurance requirements for
postclosure maintenance and nonwater quality corrective action than
those owners or operators who do not participate in the trust fund.
(e) It is the intent of the Legislature that this article
authorize complete cost recovery by the state for expenditures from
the State Solid Waste Postclosure Trust Fund and that the trust fund
be preserved for its intended purpose.
48011. 48010. (a) On and after
January 1, 2011, each operator of a solid waste landfill that
notifies the board that it elects to participate in the State Solid
Waste Postclosure Trust Fund shall pay a fee quarterly to the State
Board of Equalization that is based on the amount, by weight or
volumetric equivalent, as determined by the board, of all solid waste
disposed of at each disposal site.
(b) The fee shall be twelve cents ($0.12) per ton and shall be
collected in the same manner as the solid waste disposal fee. The
board shall deposit proceeds from this fee in the State Solid Waste
Postclosure Trust Fund, which is hereby created in the State
Treasury. Fee revenues and all interest earned shall be available to
the board, upon appropriation by the Legislature, to carry out the
purposes of this article.
(c) The board shall notify the State Board of Equalization on the
first day of the period in which the rate shall take effect and of
any rate change adopted pursuant to this section.
(d) The board and the State Board of Equalization shall ensure
that all the fees for solid waste imposed pursuant to this section
that are collected at a transfer station are paid to the State Board
of Equalization in accordance with this article.
48012. 48011. (a) (1) An operator of
a landfill that is required to maintain evidence of financial
ability pursuant to Article 4 (commencing with Section 43600) of
Chapter 2 of Part 4 and is operating on September 1, 2010, that
elects to participate in the State Solid Waste Postclosure Trust Fund
pursuant to this article, shall submit written notice to the board
on or before September 1, 2010.
(2) An operator of multiple landfills that elects to participate
in the State Solid Waste Postclosure Trust Fund is required to submit
written notice that includes all of the operator's operating
landfills.
(b) If an operator elects to participate after the trust fund fee
goes into effect, the operator shall pay all back fees and a 5
percent penalty.
(c) For new landfills that receive a solid waste facility permit
after September 1, 2010, the operator's election to participate in
the State Solid Waste Postclosure Trust Fund shall be submitted in
writing to the board before the board concurs on the permit pursuant
to Section 44009.
(d) All elections made by landfill operators pursuant to this
section are final, binding, and irrevocable.
48013. 48012. (a) The board may
only expend the money in the State Solid Waste Postclosure Trust Fund
to pay for corrective action and postclosure activities that have
not been performed by the operator of a solid waste landfill
participating in the State Solid Waste Postclosure Trust Fund, and
only upon a determination by the board that all of the following
conditions are met:
(1) The solid waste landfill owner or operator has failed to
comply with a final order issued by the board.
(2) The financial assurance mechanisms are inadequate to fund
necessary compliance activities.
(3) The solid waste landfill was operating pursuant to a valid
solid waste facilities permit on or after January 1, 1988, when the
state's requirements for solid waste landfill financial assurances
went into effect as a result of Assembly Bill 2448 of the 1987-88
Regular Session, and is required to have financial assurances
pursuant to Sections 43600 to 43610.1, inclusive.
(4) The board has first used and exhausted the financial assurance
mechanism mechanisms provided by the
public operator.
(b) The board may adopt regulations, if necessary, setting forth
additional criteria for making expenditures from the State Solid
Waste Postclosure Trust Fund.
(c) Notwithstanding Section 10295 of the Public Contract Code, a
contract entered into by the board for the purposes of this section
is not subject to approval by the Department of General Services.
(d) No liability or obligation is imposed on the state under this
subdivision, and the board shall not incur any obligation beyond the
extent to which money is expended from the State Solid Waste
Postclosure Trust Fund pursuant to this section.
(e) The board shall, to the maximum extent feasible, recover from
the landfill operator the amount of money expended from the State
Solid Waste Postclosure Trust Fund, including a reasonable amount for
any contract administration costs of the board and an amount equal
to the interest that would have been earned on the expended funds as
the result of the operator's failure to comply with the final order
issued by the board. The board shall deposit all funds recovered
pursuant to an action authorized by this section into the State Solid
Waste Postclosure Trust Fund.
(f) The amount of any cost incurred by the board pursuant to this
section is recoverable from the landfill operator in a civil action
brought by the Attorney General pursuant to Section 40432.
(g) The board may impose a lien on the operator's assets or real
property as an additional remedy to recover funds from the operator
for expenditures from the State Solid Waste Postclosure Trust Fund.
48014. 48013. On or before January
1, 2014, and every two years thereafter, the board shall report to
the Legislature on expenditures from the State Solid Waste
Postclosure Trust Fund, the status of cost recovery actions, and any
recommended statutory changes that are required to ensure adequate
resources are available to carry out the purposes of the State Solid
Waste Postclosure Trust Fund.
48015. Notwithstanding Article 4 (commencing with Section 43600)
of Chapter 2 of Part 4, operators participating in the State Solid
Waste Postclosure Trust Fund shall only be required to demonstrate
financial assurance for corrective actions relating to the reasonable
and foreseeable potential migration of landfill gas, exclusive of
the corrective action requirements of the regional water quality
control boards, unless the board determines, with technical input
from an independent third-party engineering firm, that specific site
conditions indicate that additional specific corrective actions are
required at the site.
48016. After 15 years of completed postclosure maintenance,
operators participating in the State Solid Waste Postclosure Trust
Fund, with board approval, may reduce the term of financial assurance
in five-year increments down to a minimum of five years if all of
the following requirements are met:
(a) The operator has not been issued an enforcement order during
the prior five-year period.
(b) The operator has performed enhanced monitoring activities in
conformance with the postclosure maintenance plan and applicable
board regulations and has performed appropriate maintenance and
corrective action based on the monitoring.
(c) The operator demonstrates the remaining financial assurance
mechanism is adequate to cover all reasonably expected costs to be
incurred until the completion of the postclosure maintenance period.
48017. 48014. (a) The fee imposed
by Section 48011 48010 and this article
shall not be operative after July 1, 2010 unless the board receives
on or before July 1, 2010, letters of participation in the State
Solid Waste Postclosure Trust Fund from landfill operators
representing at least 50 percent of the total annual waste disposal
volume in 2009.
(b) An operator of multiple landfills that are
is required to maintain evidence of financial ability
pursuant to Article 4 (commencing with Section 43600) of Chapter 2 of
Part 4 and that are operating on July 1, 2010, is required to
include all of the operator's operating landfills in the letter of
participation.
SEC. 3. 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.