BILL ANALYSIS Ó
AB 1647
Page 1
Date of Hearing: April 23, 2012
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Wesley Chesbro, Chair
AB 1647 (Gordon) - As Amended: April 16, 2012
SUBJECT : Solid waste: waste tires
SUMMARY : Revises the hearing and enforcement process for waste
tire facility and waste tire hauling violations.
EXISTING LAW :
1)Requires, pursuant to the California Tire Recycling Act (Act),
the Department of Resources Recycling and Recovery
(CalRecycle) to administer a tire recycling program that
promotes and develops alternatives to the landfill disposal of
waste tires. The tire recycling program may include, among
other things, grants, subsidies, and loans to businesses or
other enterprises and public entities involved in activities
that result in reduced landfill disposal or stockpiling of
waste tires. Activities eligible for funding may include the
manufacturing of products made from used tires such as
rubberized asphalt and crash barriers.
2)Requires CalRecycle to adopt a five-year plan, which must be
updated every two years, to establish goals and priorities for
the tire recycling program. Every two years, CalRecycle is
required to submit the adopted five-year plan to the
Legislature.
3)The tire recycling program under the Act is funded by the
California Tire Recycling Management Fund (Fund). The Fund is
supported by the California tire fee, which is a $1.75 per
tire charge imposed on a person who purchases a new tire.
4)Establishes an "administrative adjudication bill of rights,"
which specifies fundamental adjudicatory protections,
including (in part) the right to an open hearing, the right to
a written decision, the right to an unbiased decision maker,
and the separation of adjudicatory from adversary functions.
5)Establishes a formal hearing process to determine whether a
right, authority, license, or privilege should be revoked,
suspended, limited, or conditioned. Requires that the process
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be initiated by an accusation (a statement of charges) that
allows the "respondent" to prepare a defense. Allows the
respondent 15 days to request a hearing. Formal hearings are
before an administrative law judge.
6)Establishes an informal hearing process for the following:
a) A proceeding where there is no disputed issue of
material fact.
b) A proceeding where there is a disputed issue of material
fact, if the matter is limited to:
i) A monetary amount of not more than $1,000;
ii) A disciplinary sanction against an employee that
does not involve discharge from employment, demotion, or
suspension of not more than five days;
iii) A disciplinary sanction against a student that does
not involve a expulsion from an academic institution or
suspension for more than 10 days; or,
iv) A disciplinary sanction against a licensee that does
not involve an actual revocation of a license or an
actual suspension of a license for more than five days,
but clarifies that this provision does not preclude an
agency from imposing a stayed revocation or a stayed
suspension in an informal hearing.
c) A preceding where, by regulation, the agency has
authorized use of an informal hearing.
d) A proceeding where an evidentiary hearing for
determination of facts is not required by statute, but
where the agency determines the federal or state
Constitution may require a hearing.
7)Authorizes the presiding officer to deny the use of the
informal hearing procedure or to convert an informal hearing
to a formal hearing under specified circumstances.
THIS BILL :
1)Authorizes CalRecycle to issue penalties of $1,000 to $10,000
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per day for violations at major tire facilities, and $500 to
$5,000 per day at minor tire facilities.
2)Authorizes CalRecycle to revoke, suspend, or deny a waste tire
facility permit, prior to holding a hearing, for up to three
years if it determines that the permit was obtained by a
material misrepresentation or failure to disclose relevant
factual information, or if the operator, during the previous
three years, has been issued a final order for, failed to
comply with, or has been convicted of specified violations.
3)Authorizes CalRecycle to revoke, suspend, or deny a waste tire
facility permit, prior to holding a hearing, for a period of
up to five years for a chronic, recurring pattern of
noncompliance, and for five years or greater for violations
that result in a significant harm to human health or the
environment.
4)Repeals the provision that authorizes CalRecycle to
temporarily suspend a permit prior to a hearing if it
determines that the action is necessary to prevent or mitigate
an imminent or substantial endangerment to public health and
safety or the environment. (Under this bill, all permits will
be immediately suspended until an informal hearing takes
place, or for the duration of the revocation or suspension if
the operator waives the right to a hearing.)
5)Repeals the requirement that hearings relating to these
provisions comply with the formal hearing process (see #5,
above), and instead establishes informal hearing requirements
as follows:
a) Requires CalRecycle to notify the applicant or holder of
the permit of the revocation, suspension, or denial and the
effective date of the revocation, suspension, or denial,
and to serve the person with a statement of issues;
b) Upon receipt of a notice of defense, requires CalRecycle
to, within 15 days, schedule a hearing before the director.
Requires the hearing to take place "as soon as possible."
c) Specifies that the revocation or suspension remain in
effect until the hearing is completed and the director
issues a decision. Requires the director to issue a
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decision within 60 days of the hearing.
6)Authorizes CalRecycle to "serve an administrative accusation"
to any person subject to civil liability. Specifies that the
accusation inform the party that a hearing shall be conducted
within 60 days of being served. Specifies that upon receipt
of a notice of defense, CalRecycle schedule a hearing (within
15 days), and that the hearing be held "as soon as possible,"
unless the party waives the right to a hearing. Requires the
director to issue a decision within 60 days of the hearing.
(The 60-day requirement for the hearing appears to be a
drafting oversight.)
7)Authorizes CalRecycle to revoke, suspend, or deny a waste and
used tire hauler registration, prior to holding a hearing, for
up to three years if it finds that the hauler commits more
than three violations; if the violation poses an immediate
threat of harm to public safety or the environment; if it
shows a "repeating and recurring occurrence" or that the
failure to comply may post a threat to public safety or the
environment; or, if the hauler commits any misrepresentation
or omission of a significant fact or other required
information, as specified.
8)Authorizes CalRecycle to revoke, suspend, or deny a waste and
used tire hauler registration, prior to holding a hearing, for
three to five years, or may suspend, revoke, or deny a waste
and used tire hauler registration permanently, under specified
circumstances.
9)Requires CalRecycle to notify the hauler of the revocation,
suspension, or denial of the permit and the effective date of
the suspension and revocation and shall serve the hauler with
a statement of issues. Upon receipt of a request for a
hearing, CalRecycle shall, within 15 days, schedule a hearing
before the director. Specifies that the hearing be held "as
soon as possible."
10)Requires that the revocation or suspension remain in effect
until a hearing is completed and the director issues a
decision, which must be issued within 60 days.
11)Requires the hearings undertaken by CalRecycle to comply with
the informal hearing process established by the Government
Code (see #6 above) and expressly prohibits the use of the
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formal hearing process.
FISCAL EFFECT : Unknown
COMMENTS :
According to the author, tire recyclers and processors have been
reporting an increasing number of waste tires that are being
sent to unpermitted facilities. The tires are trucked to
California ports, loaded onto cargo ships, and transported
overseas. An investigative report by Today/Tonight in Australia
found that containers of waste tires are shipped to Vietnam,
offloaded to trucks, and then transported to China (in violation
of Chinese law) where they are burned for fuel. The transport
and burning of these tires generates significant greenhouse
gases and other air emissions.
Legitimate California-based tire recyclers, processors, and
tire-derived product (TDP) manufacturers indicate that they have
noticed as much as a 50 percent drop in waste tire feedstock.
Some have expressed concern that they may be unable to stay in
business if they have to compete with illegal tire baling
operations.
In response to these concerns, last month CalRecycle released a
bulletin and held a workshop to discuss the permitting, storage,
and hauling requirements applicable to baled waste tires.
CalRecycle states that, "waste tire baling is becoming more
common because it allows for the efficient storing and
transporting of waste tires." Regulations define baled tires as
"whole or altered waste tires that have been compressed and then
secured with a binding material for the purpose of reducing
their volume." Baled tires must be managed as waste tires. The
bulletin clarifies that waste tire baling facilities are waste
tire facilities (not collection facilities) and must be managed
as such; baled tires are not tire derived product (TDP) and are
not exempt from waste tire hauling requirements; common carrier
exemptions may apply to loads of baled tires, but require an
exemption letter from CalRecycle; transportation of baled tires
may result in overweight containers; and, baled tires must be
manifested.
At the workshop, CalRecycle identified 13 "business practice"
changes that they can make administratively to improve
enforcement of waste tire hauling and storage requirements. The
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workshop also included a discussion of "statutory options" that
require legislative action. This bill implements two of the
statutory changes identified by CalRecycle to streamline the
enforcement process for violations of waste tire storage and
hauling requirements.
Under current law, hearings relating to the denial, revocation,
or suspension of a waste tire facility permit or a waste tire
hauler registration must go through the formal Office of
Administrative Hearings process. According to CalRecycle,
hearings are scheduled approximately six months after they are
requested, allowing illegal facilities to continue to operate.
This bill establishes an informal hearing process, with the
director of CalRecycle acting as the presiding officer.
Current law also specifies that a permit cannot be revoke,
suspended, or denied prior to the hearing, except when necessary
"to prevent or mitigate an imminent or substantial endangerment
to the public health or safety or the environment." This bill
allows CalRecycle to revoke, suspend, or deny a permit prior to
a hearing in any case, as determined by the department. For
waste tire hauling registrations, this bill expressly states
that the revocation, suspension, or denial cannot be stayed
pending the hearing.
While a streamlined enforcement process may assist CalRecycle in
stopping illegal baling operations, this bill is overly broad
and may infringe on an accused violator's rights. In order to
ensure that due process rights are protected, the committee may
wish to amend the bill to make it consistent with the informal
hearing process in place for solid waste facility permit
violations (Sections 44305-44310 of the Public Resources Code).
In order to ensure that the informal hearing process remains
efficient, the committee may wish to amend the bill to require
CalRecycle to schedule the hearing within a specific time frame.
Specifically, the committee may wish to make the following
changes:
1)Require CalRecycle to schedule the hearing within 60 days of
receiving a notice of defense;
2)Reinstate the requirement that CalRecycle can only revoke,
suspend, or deny a permit prior to a hearing when it
determines that the action is necessary to prevent or mitigate
an imminent or substantial endangerment to the public health
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or safety or the environment; and,
3)Correct a drafting error on page 11, line 28, by replacing
"permit" with "registration."
REGISTERED SUPPORT / OPPOSITION :
Support
Ag Link, Inc.
BAS Recycling, Inc.
Californians Against Waste
Lakin Tire West
Northern California Recycling Association
Opposition
None on file
Analysis Prepared by : Elizabeth MacMillan / NAT. RES. / (916)
319-2092