BILL ANALYSIS �
AB 1178
Page 1
Date of Hearing: April 25, 2011
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Wesley Chesbro, Chair
AB 1178 (Ma) - As Amended: April 4, 2011
SUBJECT : Solid waste: place of origin
SUMMARY : Prohibits a local government from restricting or
limiting in any way the importation of solid waste based on the
place of origin.
EXISTING LAW : Under the California Integrated Waste Management
Act of 1989 (Act) (Public Resources Code 40000 et. seq.):
1)Declares that it is in the public interest for the state to
authorize and require local agencies, as subdivisions of the
state, to make adequate provisions for solid waste handling,
both within their respective jurisdictions and in response to
regional needs.
2)Requires local governments to divert 50% of solid waste
generated from landfill disposal through source reduction,
reuse, recycling and composting activities.
3)Defines "solid waste" as solid, semisolid, and liquid waste,
including garbage, trash, refuse, paper, rubbish, ashes,
industrial wastes, demolition and construction wastes,
abandoned vehicles and parts thereof, discarded home and
industrial appliances, dewatered, treated, or chemically fixed
sewage sludge that is not hazardous waste, manure, vegetable
or animal solid and semisolid wastes, and other discarded
solid and semisolid wastes.
THIS BILL:
1)Declares that restrictions on the disposal of solid waste that
discriminates on the basis of place of origin of the waste are
an obstacle to, and conflict with, statewide and regional
policies to ensure adequate and appropriate capacity for solid
waste disposal.
2)Declares that restrictions or limitations on the importation
of solid waste based on the place of origin are not aspects of
the solid waste handling subject to local government
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determination because they unreasonably limit the disposal of
solid waste.
3)Prohibits a city, county, or local agency from restricting or
limiting in any way the importation of solid waste based on
the place of origin, because ensuring adequate and appropriate
capacity for disposal of solid waste is a matter of state and
regional concern.
FISCAL EFFECT : Unknown
COMMENTS :
1)Background. 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% 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 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?�to] require local agencies
to make adequate provisions for solid waste handling, both
within their respective jurisdictions and in response to
regional needs" (emphasis added).
2)Measure E and Potrero Hills. The bill is in response to
Measure E, a 1984 Solano County initiative that "limit�s] the
amount of solid waste imported into Solano County to a maximum
of 95,000 tons per year." At the time of this 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 State 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.
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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 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%, 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.
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The 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.
3)Anti-Trust Issues. Beginning in 2008, then-California
Attorney General Jerry Brown and the U.S. 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.
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. The Attorney
General concluded that Measure E would increase municipal
solid waste disposal costs in the San Francisco Bay Area and
"businesses in the area will be placed at a competitive
disadvantage to their competitors in other areas and states
where �waste disposal] competition is greater."
4)In Any Way. The bill prohibits a city, county, or local
agency from "restrict�ing] or limit�ing] in any way the
importation of solid waste?based on the place of origin"
(emphasis added). The "in any way" language could create
unintended consequences by imposing a stricter restriction on
local government than is necessary to address the Measure E
issue.
AB 1178
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REGISTERED SUPPORT / OPPOSITION :
Support
Atlas Disposal Industries
Blue Line Transfer, Inc.
Burrtec Waste Industries, Inc.
CalAsian Chamber of Commerce
California Association of Sanitation Agencies
California Refuse Recycling Council
Central Contra Costa Solid Waste Authority
Commercial Fleet Services, Inc.
Davis Waste Removal Co.
Desert Valley Disposal, Inc.
East Bay Sanitary Co., Inc.
Elk Grove Waste Management
Freeman & Williams, LLP
Fremont Recycling & Transfer Station
Garden City Sanitation Inc.
Gilton Solid Waste Management, Inc.
Livermore Sanitation Inc.
Marin Sanitary Service
Marin Resource Recovery
Napa Recycling & Waste Services, LLC
Olympic Wire and Equipment, Inc.
Palm Springs Disposal Services
Recology Inc.
Rehrig Pacific Company
Sacramento Recycling & Transfer Station
Salinas Valley Solid Waste Authority
South Lake Refuse & Recycle
SSI Schaefer Systems International
Solid Waste Insurance Managers, Inc.
South San Francisco Scavenger Co.
Trust Lubrication Co. Inc.
Turlock Scavenger Company
Upper Valley Disposal & Recycling
Vacaville Valley Chamber of Commerce
Varner Bros., Inc.
Vence Consulting
Waste Connections, Inc.
Westhoff, Cone & Holmstedt
Opposition
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California Resource Recovery Association
Californians Against Waste
County of San Bernardino
Keith Carson, Alameda County Supervisor, 5th District
Northern California Recycling Association
Sierra Club California
Solano County Orderly Growth Committee
StopWaste.org
Sustainability, Parks, Recycling and Wildlife Legal Defense Fund
Analysis Prepared by : Mario DeBernardo / NAT. RES. / (916)
319-2092