Amended in Senate August 30, 2013

Amended in Senate August 14, 2013

Amended in Senate August 12, 2013

Amended in Senate June 19, 2013

Amended in Assembly May 8, 2013

Amended in Assembly April 18, 2013

Amended in Assembly March 21, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 1126

Introduced by Assembly Members Gordon and Mullin

(Principal coauthor: Assembly Member Wilk)

February 22, 2013

An act to amend Sections 40121, 40180, 40192, 40194, 40200, 40201, 41700, 41721, 41780.05, 41781, and 50001 of, and to add Section 40131.2 to, the Public Resources Code, relating to solid waste.

LEGISLATIVE COUNSEL’S DIGEST

AB 1126, as amended, Gordon. Solid waste: begin delete biomass conversion: end delete engineered municipal solid waste (EMSW) conversion.

(1) The California Integrated Waste Management Act of 1989 (act), which is administered by the Department of Resources Recycling and Recovery, requires each city, county, and regional agency, if any, to develop a source reduction and recycling element of an integrated waste management plan. With certain exceptions, the source reduction and recycling element of that plan is required to divert 50% of all solid waste, through source reduction, recycling, and composting activities. Existing law allows the 50% diversion requirement to include, pursuant to specified conditions, not more than 10% through biomass conversion, which is defined as the controlled combustion of specific materials for use in producing electricity or heat. Existing law defines the term “transformation” and excludes from that definition composting, gasification, and biomass conversion.

This bill would define the terms “EMSW conversion” and “EMSW conversion facility,” and would make conforming changes to existing definitions with regard to those operations and facilities. The bill would additionally exclude EMSW conversion from the definition of transformation, and would begin delete provide that end delete begin insert allow end insert a transformation facility that begin delete conducts EMSW conversion is an EMSW conversion facility end delete begin insert meets specified requirements relating to EMSW conversion to elect to be considered an EMSW facility for purposes of the act, except as provided end insert .

(2) The act requires the integrated waste management plan required to be adopted by a county to include a countywide siting element that provides a description of the areas to be used for the development of certain facilities. The act excludes certain solid wastes, for purposes of determining the base rate for the diversion of solid waste, and requires that the amount of solid waste diverted include solid waste diverted from a disposal facility or transformation facility. Existing law requires the department to determine compliance with the act’s 50% diversion requirement, based on the jurisdiction’s change in its per capita disposal rate and specifies the procedure for determining that rate.

This bill would require the countywide siting element to include a description of the areas to be used for the development of adequate EMSW conversion, thereby imposing a state-mandated local program by imposing new duties upon local agencies.

This bill would additionally exclude certain used tires or waste tires or biomass materials begin insert that are converted at an EMSW conversion facility end insert from begin delete the solid waste calculation used in that base rate determination and end delete the per capita disposal determination and would require begin insert , for purposes of the solid waste calculation used in the base rate determination, end insert the amount of solid waste to include solid waste diverted from an EMSW conversion facility.

(3) Existing law prohibits a person from establishing or expanding a solid waste facility in a county, after a countywide or regional agency integrated waste management plan has been approved, unless the solid waste facility is, among other things, a disposal facility or a transformation facility that meets certain criteria.

This bill would additionally include, as one of those facilities, an EMSW conversion facility.

(4) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

Section 40121 of the Public Resources Code is
amended to read:

40121.  

“Disposal facility” or “facility” means a facility or
location where disposal of solid waste occurs or an EMSW
conversion facility.

SEC. 2.  

Section 40131.2 is added to the Public Resources Code,
to read:

40131.2.  

(a) “Engineered municipal solid waste conversion”
or “EMSW conversion” means the conversion of solid waste
through a process that meets all of the following requirements:

(1) The waste to be converted is beneficial and effective in that
it replaces or supplements the use of fossil fuels.

(2) The waste to be converted, the resulting ash, and any other
products of conversion do not meet the criteria or guidelines for
the identification of a hazardous waste adopted by the Department
of Toxic Substances Control pursuant to Section 25141 of the
Health and Safety Code.

(3) The conversion is efficient and maximizes the net calorific
value and burn rate of the waste.

(4) The waste to be converted contains less than 25 percent
moisture and less than 25 percent noncombustible waste.

(5) The waste received at the facility for conversion is handled
in compliance with the requirements for the handling of solid waste
imposed pursuant to this division, and no more than a seven-day
supply of that waste, based on the throughput capacity of the
operation or facility, is stored at the facility at any one time.

(6) No more than 500 tons per day of waste is converted at the
facility where the operation takes place.

(7) The waste has an energy content equal to, or greater than,
5,000 BTU per pound.

(8) The waste to be converted is mechanically processed at a
transfer or processing station to reduce the fraction of chlorinated
plastics and begin delete materials that do not maximize the net calorific value
and burn rate of the waste. end delete begin insert materials. end insert

(b) “Engineered municipal solid waste conversion facility” or
“EMSW facility” means a facility where municipal solid waste
conversion that meets the requirements of subdivision (a) takes
place.

(c) Notwithstanding Section 40201, a transformation facility
where solid waste conversion takes place that meets begin insert all of end insert the
requirements of subdivision (a) begin delete shall be end delete begin insert may elect to be end insert considered
an EMSW facility for purposes of this division and Division 31
(commencing with Section 50000) begin insert , except that if a portion of a
transformation facility’s operations does not meet the requirements
of subdivision (a), the facility shall be considered to be a
transformation facility end insert .

SEC. 3.  

Section 40180 of the Public Resources Code is
amended to read:

40180.  

“Recycle” or “recycling” means the process of
collecting, sorting, cleansing, treating, and reconstituting materials
that would otherwise become solid waste, and returning them to
the economic mainstream in the form of raw material for new,
reused, or reconstituted products which meet the quality standards
necessary to be used in the marketplace. “Recycling” does not
include transformation, as defined in Section 40201 or EMSW
conversion.

SEC. 4.  

Section 40192 of the Public Resources Code is
amended to read:

40192.  

(a) Except as provided in subdivisions (b) and (c),
“solid waste disposal,” “disposal,” or “dispose” means the final
deposition of solid wastes onto land, into the atmosphere, or into
the waters of the state.

(b) For purposes of Part 2 (commencing with Section 40900),
“solid waste disposal,” “dispose,” or “disposal” means the
management of solid waste through landfill disposal,
transformation, or EMSW conversion, at a permitted solid waste
facility, unless the term is expressly defined otherwise.

(c) For purposes of Chapter 16 (commencing with Section
42800) and Chapter 19 (commencing with Section 42950) of Part
3, Part 4 (commencing with Section 43000), Part 5 (commencing
with Section 45000), Part 6 (commencing with Section 45030),
and Chapter 2 (commencing with Section 47901) of Part 7, “solid
waste disposal,” “dispose,” or “disposal” means the final deposition
of solid wastes onto land.

SEC. 5.  

Section 40194 of the Public Resources Code is
amended to read:

40194.  

“Solid waste facility” includes a solid waste transfer
or processing station, a composting facility, a gasification facility,
a transformation facility, an EMSW conversion facility, and a
disposal facility. For purposes of Part 5 (commencing with Section
45000), “solid waste facility” additionally includes a solid waste
operation that may be carried out pursuant to an enforcement
agency notification, as provided in regulations adopted by the
department.

SEC. 6.  

Section 40200 of the Public Resources Code is
amended to read:

40200.  

(a) “Transfer or processing station” or “station”
includes those facilities utilized to receive solid wastes, temporarily
store, separate, convert, or otherwise process the materials in the
solid wastes, or to transfer the solid wastes directly from smaller
to larger vehicles for transport, and those facilities utilized for
transformation.

(b) “Transfer or processing station” or “station” does not include
any of the following:

(1) A facility, whose principal function is to receive, store,
separate, convert, or otherwise process in accordance with state
minimum standards, manure.

(2) A facility, whose principal function is to receive, store,
convert, or otherwise process wastes that have already been
separated for reuse and are not intended for disposal.

(3) The operations premises of a duly licensed solid waste
handling operator who receives, stores, transfers, or otherwise
processes wastes as an activity incidental to the conduct of a refuse
collection and disposal business in accordance with regulations
adopted pursuant to Section 43309.

(4) An EMSW conversion facility.

SEC. 7.  

Section 40201 of the Public Resources Code is
amended to read:

40201.  

“Transformation” means incineration, pyrolysis,
distillation, or biological conversion other than composting.
“Transformation” does not include composting, gasification,
EMSW conversion, or biomass conversion.

SEC. 8.  

Section 41700 of the Public Resources Code is
amended to read:

41700.  

Each county shall prepare a countywide siting element
that provides a description of the areas to be used for development
of adequate transformation, EMSW conversion, or disposal
capacity concurrent and consistent with the development and
implementation of the county and city source reduction and
recycling elements adopted pursuant to this part.

SEC. 9.  

Section 41721 of the Public Resources Code is
amended to read:

41721.  

(a) The countywide siting element shall be approved
by the county and by a majority of the cities within the county that
contain a majority of the population of the incorporated area of
the county except in those counties that have only two cities, in
which case the element is subject to approval of the city that
contains the majority of the population of the incorporated area of
the county. Each city shall act upon the countywide siting element
within 90 days after receipt of the siting element. If a city fails to
act upon the siting element within 90 days after receiving the siting
element, the city shall be deemed to have approved the siting
element as submitted.

(b) Notwithstanding subdivision (a), a siting element providing
for an EMSW conversion facility is only required to be approved
by the city in which it is located, or if the EMSW is not located in
a city, by the county.

SEC. 10.  

Section 41780.05 of the Public Resources Code is
amended to read:

41780.05.  

(a) After January 1, 2009, pursuant to the review
authorized by Section 41825, the department shall determine each
jurisdiction’s compliance with Section 41780 for the years
commencing with January 1, 2007, by comparing each
jurisdiction’s change in its per capita disposal rate in subsequent
years with the equivalent per capita disposal rate that would have
been necessary for the jurisdiction to meet the requirements of
Section 41780 on January 1, 2007, as calculated pursuant to
subdivisions (c) and (d).

(b) (1) For purposes of paragraph (5) of subdivision (e) of
Section 41825, in making a determination whether a jurisdiction
has made a good faith effort to implement its source reduction and
recycling element or its household hazardous waste element, the
department shall consider, but is not limited to the consideration
of, the jurisdiction’s per capita disposal rate and whether the
jurisdiction adequately implemented its diversion programs.

(2) When determining whether a jurisdiction has made a good
faith effort pursuant to Section 41825 to implement its source
reduction and recycling element or its household hazardous waste
element, the department shall consider that an increase in the per
capita disposal rate is the result of the amount of the jurisdiction’s
disposal increasing faster than the jurisdiction’s growth. The
department shall use this increase in the per capita disposal rate
that is in excess of the equivalent per capita disposal rate as a factor
in determining whether the department is required, pursuant to
Section 41825, to more closely examine a jurisdiction’s program
implementation efforts. This examination may indicate that a
jurisdiction is required to expand existing programs or implement
new programs, in accordance with the procedures specified in
Article 4 (commencing with Section 41825) and in Article 5
(commencing with Section 41850).

(3) When reviewing the level of program implementation
pursuant to Sections 41825 and 41850, the department shall use,
as a factor in determining compliance with Section 41780, the
amount determined pursuant to subdivision (d) when comparing
a jurisdiction’s per capita disposal rate in subsequent years.

(c) (1) (A) Except as otherwise provided in this subdivision,
for purposes of this section, “per capita disposal” or “per capita
disposal rate” means the total annual disposal, in pounds, from a
jurisdiction divided by the total population in a jurisdiction, as
reported by the Department of Finance, divided by 365 days.

(B) “Per capita disposal” does not include used tires or waste
tires, as defined in Article 1 (commencing with Section 42800) of
Chapter 16 of Part 3 begin insert , that are converted at an EMSW conversion
facility end insert .

(C) “Per capita disposal” does not include biomass material, as
begin delete described end delete begin insert defined end insert in subdivision (a) of Section 40106, that is
converted at an EMSW conversion facility.

(2) (A) If a jurisdiction is predominated by commercial or
industrial activities and by solid waste generation from those
sources, the department may alternatively calculate per capita
disposal to reflect those differing conditions.

(B) When making a calculation for a jurisdiction subject to this
paragraph, “per capita disposal” or “per capita disposal rate” means
the total annual disposal, in pounds, from a jurisdiction divided
by total industry employment in a jurisdiction, as reported by the
Employment Development Department, divided by 365 days.

(C) The department shall calculate the per capita disposal rate
for a jurisdiction subject to this paragraph using the level of
industry employment in a jurisdiction instead of the level of
population in a jurisdiction.

(3) If the department determines that the method for calculating
the per capita disposal rate for a jurisdiction provided by paragraph
(1) or (2) does not accurately reflect that jurisdiction’s disposal
reduction, the department may use an alternative per capita factor,
other than population or industry employment, to calculate the per
capita disposal rate that more accurately reflects the jurisdiction’s
efforts to divert solid waste.

(d) The department shall calculate the equivalent per capita
disposal rate for each jurisdiction as follows:

(1) Except as otherwise provided in this subdivision, the
equivalent per capita disposal rate for a jurisdiction shall be
determined using the method specified in this paragraph.

(A) The calculated generation tonnage for each year from 2003
to 2006, inclusive, shall be multiplied by 0.5 to yield the 50 percent
equivalent disposal total for each year.

(B) The 50 percent equivalent disposal total for each year shall
be multiplied by 2,000, divided by the population of the jurisdiction
in that year, and then divided by 365 to yield the 50 percent
equivalent per capita disposal for each year.

(C) The four 50 percent equivalent per capita disposal amounts
from the years 2003 to 2006, inclusive, shall be averaged to yield
the equivalent per capita disposal rate.

(2) If a jurisdiction is predominated by commercial or industrial
activities and by solid waste generation from those sources, the
department may alternatively calculate the equivalent per capita
disposal rate to reflect those conditions by using the level of
industry employment in a jurisdiction instead of the level of
population in that jurisdiction.

(3) If the department determines that the method for calculating
the equivalent per capita disposal rate for a jurisdiction pursuant
to this subdivision does not accurately reflect a jurisdiction’s per
capita disposal rate that would be equivalent to the amount required
to meet the 50 percent diversion requirements of Section 41780,
the department may use an alternative per capita factor, other than
population or industry employment, to calculate the equivalent per
capita disposal rate that more accurately reflects the jurisdiction’s
diversion efforts.

(4)  The department shall modify the percentage used in
paragraph (1) to maintain the diversion requirements approved by
the department for a rural jurisdiction pursuant to Section 41787
or for a reduction granted pursuant to Section 41786.

(5)  The department may modify the years included in making
a calculation pursuant to this subdivision for an individual
jurisdiction to eliminate years in which the calculated generation
amount is shown not to be representative or accurate, based upon
a generation study completed in one of the five years 2003 to 2007,
inclusive. In these cases, the department shall not allow the use of
an additional year other than 2003, 2004, 2005, 2006, or 2007.

(6)  The department may modify the method of calculating the
equivalent per capita disposal rate for an individual jurisdiction to
accommodate the incorporation of a new city, the formation of a
new regional agency, or changes in membership of an existing
regional agency. These modifications shall ensure that a new entity
has a new equivalent per capita disposal rate and that the existing
per capita disposal rate of an existing entity is adjusted to take into
account the disposal amounts lost by the creation of the new entity.

(7) The department shall not incorporate generation studies or
new base year calculations for a year commencing after 2006 into
the equivalent per capita disposal rate, unless a generation study
that included the year 2007 was commenced on or before June 30,
2008.

(8) If the department determines that the equivalent per capita
disposal rate cannot accurately be determined for a jurisdiction,
or that the rate is no longer representative of a jurisdiction’s waste
stream, the department shall evaluate trends in the jurisdiction’s
per capita disposal to establish a revised equivalent per capita
disposal rate for that jurisdiction.

SEC. 11.  

Section 41781 of the Public Resources Code is
amended to read:

41781.  

(a) Except as provided in Sections 41781.1, and
41781.2, for the purpose of determining the base rate of solid waste
from which diversion requirements shall be calculated, “solid
waste” includes only the following:

(1) The amount of solid waste generated within a local agency’s
jurisdiction, the types and quantities of which were disposed of at
a permitted disposal facility as of January 1, 1990. Nothing in this
section requires local agencies to perform waste characterization
in addition to the waste characterization requirements established
under Sections 41030, 41031, 41330, 41331, and 41332.

(2) The amount of solid waste diverted from a disposal facility,
transformation facility, or EMSW facility, through source
reduction, recycling, or composting.

(b) For the purposes of this section, “solid waste” does not
include begin delete any of the following: end delete

begin delete (1) end delete begin delete   end delete begin delete Solid end delete begin insert solid end insert waste that would not normally be disposed of
at a disposal facility.

begin delete

(2) Used tires or waste tires, as defined in Article 1 (commencing
with Section 42800) of Chapter 16 of Part 3, or biomass material,
as described in subdivision (a) of Section 40106, which are
converted at an EMSW conversion facility.

end delete

(c) For the purposes of this chapter, the amount of solid waste
from which the required reductions are measured shall be the
amount of solid waste existing on January 1, 1990, with future
adjustments for increases or decreases in the quantity of waste
caused only by changes in population or changes in the number
or size of governmental, industrial, or commercial operations in
the jurisdiction.

SEC. 12.  

Section 50001 of the Public Resources Code is
amended to read:

50001.  

(a) Except as provided by subdivision (b), after a
countywide or regional agency integrated waste management plan
has been approved by the Department of Resources Recycling and
Recovery pursuant to Division 30 (commencing with Section
40000), a person shall not establish or expand a solid waste facility,
as defined in Section 40194, in the county unless the solid waste
facility meets one of the following criteria:

(1) The solid waste facility is a disposal facility, a transformation
facility, or an EMSW conversion facility, the location of which is
identified in the countywide siting element or amendment to that
element, which has been approved pursuant to Section 41721.

(2) The solid waste facility is a facility that is designed to
recover for reuse or recycling at least 5 percent of the total volume
of material received by the facility, and that is identified in the
nondisposal facility element that has been approved pursuant to
Section 41800 or is included in an update to that element.

(b) Solid waste facilities other than those specified in paragraphs
(1) and (2) of subdivision (a) shall not be required to comply with
the requirements of this section.

(c) The person or agency proposing to establish a solid waste
facility shall prepare and submit a site identification and description
of the proposed facility to the task force established pursuant to
Section 40950. Within 90 days after the site identification and
description is submitted to the task force, the task force shall meet
and comment on the proposed solid waste facility in writing. These
comments shall include, but are not limited to, the relationship
between the proposed solid waste facility and the implementation
schedule requirements of Section 41780 and the regional impact
of the facility. The task force shall transmit these comments to the
person or public agency proposing establishment of the solid waste
facility, to the county, and to all cities within the county. The
comments shall become part of the official record of the proposed
solid waste facility.

(d) The review and comment by the local task force shall not
be required for an update to a nondisposal facility element.

SEC. 13.  

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
a local agency or school district has the authority to levy service
charges, fees, or assessments sufficient to pay for the program or
level of service mandated by this act, within the meaning of Section
17556 of the Government Code.