BILL ANALYSIS Ó
AB 1647
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator S. Joseph Simitian, Chairman
2011-2012 Regular Session
BILL NO: AB 1647
AUTHOR: Gordon
AMENDED: June 20, 2012
FISCAL: Yes HEARING DATE: July 2, 2012
URGENCY: No CONSULTANT: Peter Cowan
SUBJECT : WASTE TIRE ENFORCEMENT
SUMMARY :
Existing law :
1) Under administrative adjudication procedures for state
departments and agencies:
a) Establishes a formal hearing process to determine
whether a right, authority, license, or privilege should
be revoked, suspended, limited, or conditioned. The
process must be initiated by an accusation (a statement
of charges) that allows the "respondent" to prepare a
defense, and allows the respondent 15 days to request a
hearing. Formal hearings are before an administrative
law judge. (Government Code §11500 et seq.).
b) Establishes an informal hearing process (§11400 et
seq.) for the following:
i) A proceeding where there is no disputed issue
of material fact.
ii) A proceeding where there is a disputed issue
of material fact, if the matter is limited to
specified conditions.
iii) A preceding where, by regulation, the agency
has authorized use of an informal hearing.
iv) A proceeding where an evidentiary hearing for
determination of facts is not required by statute,
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but where the agency determines the federal or
state Constitution may require a hearing.
2) Under the California Integrated Waste Management Act of
1989:
a) Establishes various waste-related programs, including
the waste tires program, California Tire Recycling Act,
and the tire hauler registration program, and a fee on
new tires to fund tire program activities. (Public
Resources Code §42000 et seq.).
b) Defines two types of waste tire facilities (a "major
waste tire facility" where more than 5,000 waste tires
are accumulated and a "minor waste tire facility" where
between 500 and 5,000 waste tires are accumulated) and
requires that the Department of Resources Recovery and
Recycling (DRRR) issue permits specific to each of these
facility types and adopt regulations related to the
issuing of those permits. (§42800 et seq.). The waste
tire requirements:
i) Provide that a permit issued for a waste tire
facility is valid for five years unless suspended
or revoked. (§42840).
ii) Authorize DRRR, after holding a formal
hearing, to suspend, revoke, or deny a permit for
up to three years if it makes specified
determinations. (§42843).
iii) Authorize DRRR to temporarily suspend a
permit if it determines the action is necessary to
prevent or mitigate endangerment to public health
or safety or the environment, and require that an
accusation be served at the same time and a hearing
be held within 30 days. (§42844).
iv) Authorize DRRR to delegate specific powers
and authorities, including enforcement, to local
enforcement agencies. (§42811).
3) Requires that waste tire haulers transporting greater than
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10 waste or used tires, unless they meet specified
exemptions, be registered by DRRR as a waste and used
hauler. (§42952). DRRR may suspend, revoke, or deny a
waste and used tire hauler registration for a period of up
to three years by filing an accusation in accordance with
the procedures of a formal administrative hearing.
(§42960).
This bill , under the California Integrated Waste Management
Act of 1989:
1)Authorizes DRRR to revoke, suspend, or deny a waste tire
facility permit, by serving a statement of issues prior to
holding a hearing, for a period of up to:
a) Three years for misrepresentation or failure to
disclose factual material in a permit application; or
failure, at any time in the last three years, to comply
with an order regarding compliance after receiving a
notice of violation of certain regulations or conditions
of the permit.
b) Five years for a chronic, recurring pattern of
noncompliance that poses a significant risk to public
health, public safety, or the environment or if the
violation has not been corrected or reasonable progress
toward correction has not been achieved.
c) Five years or greater for violations that result in
significant harm to human health or the environment.
2)Authorizes DRRR to immediately suspend a waste tire facility
permit to prevent or mitigate an imminent or substantial
endangerment to the public health or safety or the
environment.
3)Authorizes a district attorney or county counsel, at DRRR's
request, to petition the superior court for issuance of an
injunction regarding certain waste tire permit violations,
if the Attorney General cannot petition the superior court
within 30 days (rather than 45 days under current law).
4)Authorizes DRRR to "serve an administrative accusation" to
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any person subject to civil liability. The accusation must
inform the party of the right to a hearing. Upon receipt of
a notice of defense, DRRR must schedule a hearing within 15
days, and the hearing must be held within 60 days of
scheduling unless the party waives the right to a hearing.
The director must issue a decision within 60 days of the
hearing including setting the amount of the civil penalty to
be imposed.
5)Specifies that a hearing relating to a waste tire facility
permit must be conducted pursuant to the requirements for an
informal hearing, but allows DRRR to initially file or
convert a hearing to be conducted pursuant to the
requirements for a formal hearing.
6)Authorizes DRRR to serve an administrative accusation to a
person on whom civil liability may be imposed and makes
various requirements for the accusation and a hearing before
the DRRR director, if requested by the accused.
7)Authorizes DRRR to revoke, suspend, or deny a waste and used
tire hauler registration, prior to holding a hearing, for up
to three years if: a) DRRR finds that the hauler commits
more than three violations within a year; b) the violation
poses an immediate threat of harm to public safety or the
environment; c) the hauler is determined to repeatedly fail
to comply or the failure to comply may pose a threat to
public safety or the environment; or d) the hauler
misrepresents or fails to disclose material factual
information as specified.
8)Authorizes DRRR 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 DRRR to notify the hauler of the revocation,
suspension, or denial of the registration, the effective
date of the suspension and revocation, and serve the hauler
with a statement of issues. Upon receipt of a request for a
hearing, DRRR must, within 15 days, schedule a hearing
before the director within 90 days of that scheduling.
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10)Requires the revocation or suspension to 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 related to waste and used tire hauler
registration undertaken by DRRR to comply with the informal
hearing process, but allows DRRR to initially file or
convert a hearing to be conducted pursuant to the
requirements for a formal hearing.
COMMENTS :
1) Purpose of Bill . According to the author, "AB 1647 would
remove the formal administrative hearing procedures
requirements for revoking, suspending, or denying a waste
tire facility permit or a waste tire hauler registration,
and for issuing administrative penalties for noncompliance
with waste tire storage laws. In its place, AB 1647 would
require that CalRecycle issue the revocation, suspension,
or denial for permits and registration, and issue the
penalties to noncompliant waste tire storage sites and
noncompliant waste tire haulers. The recipient of any
revocation, suspension, denial, or penalty could seek
recourse by appealing to the Director of CalRecycle, or a
delegated representative, and appeals would take the form
of an informal hearing process. AB 1647 would also provide
that the revocation or suspension is of no further effect
if CalRecycle fails to transmit the determination within 60
days of the submission of the case."
According to the author, tire recyclers and processors
report increased rates of tires going to nonpermitted
facilities where they are loaded into cargo containers and
shipped overseas. This activity decreases tire feedstocks
for legitimate California tire recyclers, processors and
tire-derived product manufacturers.
2) California's Tire Program .
a) Funding: The California Tire Recycling Act authorizes
the creation of the Tire Recycling Program and the
California Tire Recycling Management Fund. A fee is
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assessed on the sale of new tires, and collected revenue
is deposited quarterly into the tire fund. DDDR
allocates funds annually based on availability and
changing program needs. The fee is currently $1.75 for
each new tire sold in the state. However, $0.75 of the
$1.75 is transferred to the Air Pollution Control Fund
for use by the Air Resources Board for air pollution
activities. So, $1.00 per tire is deposited into the
Tire Fund for use by DRRR for the tire-related
activities. There are approximately 41.1 million waste
tires generated in California annually.
b) Program Structure: California's waste tire management
and recycling efforts are divided into two functional
areas: tire permitting and enforcement activities, and
tire recycling and market development activities. The
tire permitting and enforcement activities ensure that
reusable and waste tires are stored and transported
safely. DRRR staff also coordinate with local and
regional agencies to mitigate unsafe situations at
existing abandoned tire pile sites and provide technical
assistance. Tire recycling activities include offering
financial assistance, engaging in recycling and marketing
research, and providing technical assistance.
3) Baled tire enforcement . In March DRRR released a bulletin
and held a workshop to discuss the permitting, storage, and
hauling requirements applicable to baled waste tires. DRRR
states that, "waste tire baling is becoming more common
because it allows for the efficient storing and
transporting of waste tires." Baled tires must be managed
as waste tires. The bulletin clarifies that waste tire
baling facilities are waste tire facilities; baled tires
are not tire-derived product 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 DRRR; transportation of baled tires may result
in overweight containers; and, baled tires must be
manifested.
At the workshop, DRRR identified 13 "business practice"
changes that they can make administratively to improve
enforcement of waste tire hauling and storage requirements.
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The workshop also included a discussion of "statutory
options" that require legislative action. This bill
implements one of those statutory changes identified by
DRRR to streamline the enforcement process for violations
of waste tire storage and hauling requirements.
4) Hearing process . 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 (OAH)
process. According to DRRR, hearings must be scheduled on
the OAH calendar causing more than six months of delay
during which illegal facilities continue to operate. AB
1647 establishes an informal hearing process, with the
director of DRRR acting as the presiding officer.
Current law also specifies that a permit cannot be revoked,
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 DRRR to revoke,
suspend, or deny a permit prior to a hearing in any case,
as determined by DRRR. For waste tire hauling
registrations, this bill expressly states that the
revocation, suspension, or denial cannot be stayed pending
the hearing.
SOURCE : Californians Against Waste
SUPPORT : Ag Link, Inc.
BAS Recycling
CRM Company
Shamrock Recycling of California
Solid Waste Association of North America
Lakin Tire West
Tri-C Manufacturing
Waste Recovery West
OPPOSITION : None on file.
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