BILL ANALYSIS Ó
AB 1647
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 1647 (Gordon)
As Amended August 23, 2012
Majority vote
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|ASSEMBLY: |48-20|(May 25, 2012) |SENATE: |26-9 |(August 28, |
| | | | | |2012) |
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Original Committee Reference: NAT. RES.
SUMMARY : Revises the hearing and enforcement process for waste
tire facility and waste tire hauling violations.
The Senate amendments :
1)Repeal the provision that authorizes the Department of
Resources Recycling and Recovery (CalRecycle) to refuse to
issue a new waste tire facility permit on any grounds for
which it may suspend or revoke a permit.
2)Add a provision that authorizes CalRecycle to reject a waste
tire facility permit application if, at the time the
application is submitted, CalRecycle finds that the operator
has exceeded the amount of waste tires allowed. Authorize
CalRecycle to prohibit the operator from reapplying for a
permit at the same location for one year.
3)Specify that if an order issued by CalRecycle is issued to a
person operating a waste tire facility that has not been
issued a waste tire facility permit, CalRecycle shall require
the operator to remove all waste and used tires from the site
and prohibit the operator accepting any additional waste or
used tires at the site for a specified time period.
4)Require, for waste tire facilities operating without a permit,
CalRecycle to perform inspections at the location of the
violation for up to one year. Require the operator to
reimburse CalRecycle for the cost of the inspections.
5)Clarify that if an illegal tire facility fails to comply with
a notice of violation, the Attorney General, at the request of
CalRecycle, shall petition the superior court of the county
for the issuance of an injunction that requires the operator
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to comply with the order. If the Attorney General declines,
or is unable to petition the superior court, the amendments
authorize the district attorney or county counsel to petition
the superior court.
6)Delete the provisions relating to penalties assessed at major
and minor tire facilities.
7)Clarify the provisions relating to the process for revoking,
suspending, or denying a waste tire facility permit.
8)Specify that a suspension, revocation, or denial of a tire
facility permit for violations of Public Resources Code
Section 42843 shall remain in effect until a hearing is
completed and the Director of CalRecycle issues a decision.
9)Extend the timeline for this hearing from 60 days to 90 days,
and authorizes a later date if agreed to by all parties.
10)Specify that for up to one year following a final decision by
the director or an administrative law judge, CalRecycle shall
perform inspections at the location of the violation and
specify that the operator is required to reimburse CalRecycle
for the costs associated with these inspections.
11)Make clarifying changes to the provisions that govern the
immediate suspension of a tire facility permit for imminent or
substantial endangerment to the public health or safety or the
environment.
12)Authorize CalRecycle to convert an informal hearing to a
formal hearing.
13)Add the development and implementation of a waste tire
incentive payment program to promote increased demand for
waste tires recycled in the state and to promote higher valued
products to the types of activities eligible for inclusion
within the tire recycling program administered by CalRecycle.
14)Add "molded products," "products using recycled rubber and
other materials, such as plastic," and, "paint and coatings"
to the list of products eligible for funding under the tire
recycling program.
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15)Require tire brokers, as defined, to register and report to
CalRecycle pursuant to the used tire hauler program.
16)Make related technical and clarifying changes.
EXISTING LAW :
1)Requires, pursuant to the California Tire Recycling Act (Act),
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)Specifies that the tire recycling program is funded by the
California Tire Recycling Management 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 a tire manifest and reporting system for used tire
haulers registered in California.
5)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.
6)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
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.
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7)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; or,
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.
8)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.
AS PASSED BY THE ASSEMBLY , this bill:
1)Authorized CalRecycle to issue penalties of $1,000 to $10,000
per day for violations at major tire facilities, and $500 to
$5,000 per day at minor tire facilities.
2)Authorized CalRecycle to revoke, suspend, or deny a waste tire
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facility permit 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)Authorized CalRecycle to revoke, suspend, or deny a waste tire
facility permit 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)Authorized CalRecycle to "serve an administrative accusation"
to any tire hauler subject to civil liability. Specifies that
upon receipt of a notice of defense, CalRecycle shall schedule
a hearing within 15 days, and that the hearing be held within
60 days, unless the party waives the right to a hearing.
Requires the director to issue a decision within 60 days of
the hearing.
5)Authorized CalRecycle to revoke, suspend 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.
6)Authorized CalRecycle to revoke, suspend, or deny a waste and
used tire hauler registration for three to five years, or may
suspend, revoke, or deny a waste and used tire hauler
registration permanently, under specified circumstances.
7)Repealed the requirement that hearings relating to these
provisions comply with the formal hearing process before an
administrative law judge and instead establishes informal
hearing requirements.
FISCAL EFFECT : According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
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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% 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, 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 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
workshop also included a discussion of "statutory options" that
require legislative action. This bill implements some 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,
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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 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 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 CalRecycle to revoke, suspend, or deny a permit prior to
a hearing for significant violations of tire storage or hauling
requirements. This bill additionally requires tire brokers, who
operate used or waste tire baling and shipping operations, to
register and report to CalRecycle under the existing tire hauler
registration and manifest system.
Analysis Prepared by : Elizabeth MacMillan / NAT. RES. / (916)
319-2092
FN: 0005773