BILL ANALYSIS Ó ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 845| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ THIRD READING Bill No: AB 845 Author: Ma (D) Amended: 8/14/12 in Senate Vote: 21 ASSEMBLY FLOOR : Not relevant NOTE: Senate Floor Amendments of 8/14/12 place substantial provisions of the July 13th version of AB 1178 (Ma). The Senate Environmental Quality Committee approved AB 1178 (4-3) on July 6, 2011. AB 1178 was amended August 24, 2011, and re-referred to the Senate Environmental Quality Committee pursuant to Senate Rule 29.10. AB 1178 was held in committee because the author wanted to continue working with various interests and a bill re-referred to committee pursuant to Senate Rule 29.10 cannot be amended. SUBJECT : Solid waste: place of origin SOURCE : California Refuse Recycling Council DIGEST : This bill prohibits an ordinance enacted by a city or county, including an ordinance enacted by initiative by the voters of a city or county, from otherwise restricting or limiting the importation of solid waste into a privately owned solid waste facility in that city or county based on place of origin. This bill CONTINUED AB 845 Page 2 provides that this prohibition does not require a privately owned or operated solid waste facility to accept certain waste, does not allow a privately owned solid waste facility to abrogate certain agreements, does not prohibit a city, county, or regional agency from requiring a privately owned solid waste facility to guarantee permitted capacity to a host jurisdiction, and does not otherwise supersede or affect the land use authority of a city or county. Senate Floor Amendments of 8/14/12 delete the prior version of the bill covering high-speed rail, and add the above language which is substantially similar to the July 13th version of AB 1178 which was sent back to the Senate Environmental Quality Committee on a Senate Rule 29.10. ANALYSIS : The existing California Integrated Waste Management Act of 1989 allows each county, city, or district to determine aspects of solid waste handling that are of local concern and the means by which the services are to be provided. Waste management is a state and regional issue . Prior to 1989, the state did not have a coherent policy to ensure that its solid waste was managed in an effective and environmentally sound manner. Over 90 percent of the state's solid waste was disposed into landfills, some of which posed a threat to groundwater, air quality, and public health. In 1989, the Legislature passed the California Integrated Waste Management Act (Act) acknowledging that there was an urgent need for state and local agencies to enact and implement an aggressive new integrated waste management program. As part of the Act, the Legislature declared that "it is in the public interest for the state?Ýto] require local agencies to make adequate provisions for solid waste handling, both within their respective jurisdictions and in response to regional needs" (emphasis added). Measure E and Potrero Hills . This bill is in response to Measure E, a 1984 Solano County initiative that "limitÝs] the amount of solid waste imported into Solano County to a maximum of 95,000 tons per year." At the time of this AB 845 Page 3 initiative, Solano County was importing approximately 500,000 tons of solid waste annually from San Francisco. In 1992, the Legislative Counsel of California and the County Counsel of Solano County opined that Measure E violated the commerce clause of the United States Constitution because it discriminates against interstate commerce. In light of these opinions, the Solano County Board of Supervisors (Board) announced that it would not enforce Measure E. Without Measure E, Solano County has been able to import large amounts of solid waste from other areas of the state for disposal at facilities like the Potrero Hills Landfill. The Potrero Hills Landfill in Solano County currently receives approximately 900,000 tons of solid waste annually, including 600,000 tons originating from outside of the county. The landfill is expected to reach capacity by 2016. There are plans to expand the Potrero Hills Landfill from 320 acres to 580 acres and to increase the maximum height from 220 feet to 345 feet, which will extend the life of the landfill for another 35 years. The project contains habitat mitigation that includes preserving and enhancing approximately 994 acres of grassland, wetland, and water features. The cost of the project is approximately $110 million. On June 9, 2009, the Board voted in favor of certifying a final Environmental Impact Report (EIR) for the Potrero Hills Landfill Expansion project-due to legal challenges, this was the third time in four years that the Board certified the final EIR. On October 21, 2010, the San Francisco Bay Conservation and Development Commission approved a permit for the project with a few additional conditions. On June 10, 2009, the day after the Board certified the final EIR, the opponents of the project filed a lawsuit in the Solano County Superior Court to enforce Measure E. On May 12, 2010, the court issued an opinion acknowledging that Measure E as drafted raises valid commerce clause concerns because it would limit the importation of waste from out of state. However, the court invoked a rarely AB 845 Page 4 used judicial authority to actually rewrite Measure E to make it constitutional. The court explained that "Measure E, if rewritten to apply only to waste generated within other counties in California, would not offend the commerce clause." The court ruling has been appealed to the California Court of Appeal. If the ultimate outcome of the case is in support of Measure E, the Potrero Hills Landfill's current waste load would be cut by as much as 85 percent, and could be even lower depending on how much of the 95,000-ton quota imposed by Measure E would be allocated to the facility. Counties in the Bay Area and other parts of Northern California rely on the Potrero Hills Landfill for its solid waste management. These counties would have to find alternative ways to manage their solid waste that would otherwise go to the Potrero Hills Landfill. This bill will essentially nullify Measure E and the Solano County Superior Court ruling by prohibiting a local government from restricting or limiting the importation of solid waste based on the place of origin. Anti-Trust issues . Beginning in 2008, then-California Attorney General Jerry Brown and the United States Department of Justice investigated the merger of two of the three largest waste-hauling companies in the country, Republic Services, Inc. (Republic) and Allied Waste Industries, Inc. (Allied), for antitrust-law implications. The investigation found that before the merger Republic's Potrero Hills Landfill, Allied's Keller Canyon facility in Contra Costa County, and Republic's Vasco Road site in Alameda County were the primary competitors in the waste disposal industry in the San Francisco Bay Area. Moreover, the Attorney General determined that competition between these three landfills kept the price charged for disposal (i.e., tipping fees) to competitive levels. To address the loss of competition that would occur if one company controlled all three landfills, the Attorney General entered into a consent decree that allowed Allied and Republic to merge, but required the divestiture of the Potrero Hills Landfill. The Potrero Hills Landfill is now owned by Waste Connections, Inc. AB 845 Page 5 Attorney General Brown filed an amicus brief in the Measure E litigation explaining that if Measure E was enforced, the Potrero Hills Landfill would only be able to accept a very limited amount of out-of-county waste and the competitive benefits of the divesture required by the Attorney General and the U.S. Department of Justice will be lost. FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local: No SUPPORT : (Verified 8/24/11) (per AB 1178 Senate Floor Analyses analysis) California Refuse Recycling Council (source) Atlas Disposal Industries Blue Line Transfer, Inc. Bridgeport Sales and Service Burrtec Waste Industries Calasian Chamber of Commerce California Association of Sanitation Agencies California Teamsters City of Fairfield City of Vacaville Commercial Fleet Services, Inc. Consolidated Fabricators Corp. County of Sacramento Board of Supervisors Davis Waste Removal Desert Valley Disposal East Bay Sanitation Company EDCO Waste and Recycling Services Elk Grove Waste Management Freeman and Williams, LLP. Fremont Recycling and Transfer Station Garaventa Enterprises Garden City Sanitation, Inc. Gilton Solid Waste Management, Inc. Heffernan Insurance Brokers John R. Knight, El Dorado County Supervisor Livermore Sanitation, Inc. Marin Resource Recovery Marin Sanitary Service Napa Recycling and Waste Services, LLC. National Solid Waste Management Association Olympic Wire and Equipment, Inc. AB 845 Page 6 Palm Springs Disposal Services Palo Verde Valley Disposal Service Recology Waste Zero Recology, Inc. Rehig Pacific Company Sacramento Recycling and Transfer Station Salinas Valley Solid Waste Authority San Luis Obispo County Integrated Waste Management Authority Soft-Pak Solano County Board of Supervisors Solid Waste Insurance Managers South Lake Refuse and Recycling South San Francisco Scavenger Co. Southern California Disposal and Recycling Co., Inc. SSI Schaefer Systems International Stockton Tri Industries, Inc. Truck Lubrication Co., Inc. Turlock Scavenger Company Upper Valley Disposal and Recycling Vacaville Chamber of Commerce Varner and Sons, Inc. Varner Bros., Inc. Vence Consulting Waste Connections, Inc. Westhoff, Cone and Holmstedt OPPOSITION : (Verified 8/24/11) (per AB 1178 Senate Floor Analyses analysis) Alameda County Barbara Kondylis, Solano County Supervisor California League of Conservation Voters California Resource Recovery Association Californians Against Waste Center of Biological Diversity City of Glendale Kern County Board of Supervisors League of California Cities Linda Seifert, Solano County Supervisor Los Angeles County Board of Supervisors (5 members) Los Angeles County Solid Management Authority Merced County Regional Waste Management Authority Natural Resources Defense Council AB 845 Page 7 North Valley Coalition Northern California Recycling Association Orange County Board of Supervisors Riverside County Waste Management Department Sierra Club California Solano County Orderly Growth Commission Solid Waste Association of North America Stopwaste.org Sustainability, Parks, Recycling and Wildlife Legal Defense Fund Western Placer Waste Management Authority Yuba Group Against Garbage City of Los Angeles (Verified 8/21/12) ARGUMENTS IN SUPPORT : Supporters generally contend that limiting importation and exportation of waste conflict with the goals of the Act and obstruct the flow of waste throughout the state. They contend that many local jurisdictions depend on state-of-the art regional facilities for their recycling needs and flow restrictions prevent effective and environmentally sound facilities from being utilized. Supporters state that this bill preserves local authority to site, permit, and oversee waste activities while preserving the regional waste system established by the Act. Also, they note that in the past 10 years over 100 landfills have closed while no new landfills have opened. ARGUMENTS IN OPPOSITION : Opponents state that this bill interferes with judicial matters, usurps local authority and hinders local jurisdictions' solid waste planning activities. They also contend that this bill will have unintended consequences by eliminating local jurisdictions' flexibility to manage their long-term community needs. Opponents from the area around the Potrero Hills Landfill state that Measure E should be enforced to limit out-of-jurisdiction waste. They state that expansion of Potrero Hills is not needed as there is adequate regional, as well as statewide, capacity. DLW:k 8/25/12 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE AB 845 Page 8 **** END ****