BILL NUMBER: AB 1398 ENROLLED
BILL TEXT
PASSED THE SENATE SEPTEMBER 9, 2013
PASSED THE ASSEMBLY SEPTEMBER 10, 2013
AMENDED IN SENATE SEPTEMBER 5, 2013
INTRODUCED BY Committee on Natural Resources (Chesbro (Chair),
Grove (Vice Chair), Bigelow, Garcia, Muratsuchi, Patterson, Skinner,
Stone, and Williams)
MARCH 11, 2013
An act to amend Sections 42469.1, 42649.3, 43209, 44012, and 44307
of, and to add Section 43200.5 to, the Public Resources Code,
relating to solid waste.
LEGISLATIVE COUNSEL'S DIGEST
AB 1398, Committee on Natural Resources. Solid waste: recycling:
enforcement agencies.
(1) The California Integrated Waste Management Act of 1989 (act)
requires a business, which is defined as a commercial or public
entity, that generates more than 4 cubic yards of commercial solid
waste per week or is a multifamily residential dwelling of 5 units or
more, to arrange for recycling services. Existing law also requires
jurisdictions to implement a commercial solid waste recycling program
meeting specified elements. Existing law defines commercial solid
waste by reference to a specified regulation.
This bill instead would define commercial solid waste to include
all types of solid waste generated by a store, office, or other
commercial or public entity source, including a business or a
multifamily dwelling of 5 or more units, thereby imposing a
state-mandated local program by imposing new requirements upon local
jurisdictions.
(2) The act provides for the designation of an enforcement agency
under specified procedures, including by the board of supervisors of
a county for purposes of the county, by the county and the cities
within the county pursuant to a joint exercise of powers agreement,
by a city council for purposes of the city, or by the board of
supervisors of a county for purposes of the unincorporated area of
the county. Existing law requires the Department of Resources
Recycling and Recovery to prepare and adopt certification regulations
for local enforcement agencies.
This bill would deem the enforcement agency to be carrying out a
state function governed by the act when exercising the authority or
fulfilling the duties specified in certain provisions of the act. The
bill would deem the enforcement agency, in carrying out this state
function, to be independent from the local governing body, and the
enforcement agency's actions would not be subject to the authority of
the local governing body. The bill would make an enforcement agency,
with regard to an action that it is authorized or required to take
by a state law or local ordinance, which is not otherwise authorized
or required by certain provisions of the act, subject only to that
local ordinance or state law.
(3) Existing law requires enforcement agencies to perform
specified functions with regard to solid waste handling and the
issuance and enforcement of solid waste facilities permits, including
establishing and maintaining an enforcement program. Existing law
allows the enforcement agency to establish specific local standards
for solid waste handling and disposal and requires these standards to
be consistent with the act.
This bill would require those specific local standards for solid
waste handling and disposal to be incorporated into the enforcement
agency's enforcement program and approved by the department.
(4) Existing law requires the enforcement agency, when issuing or
revising a solid waste facilities permit, to ensure that primary
consideration is given to protecting public health and safety and
preventing environmental damage and that the long-term protection of
the environment is the guiding criterion.
This bill would authorize the enforcement agency, when issuing or
revising a solid waste facilities permit, to impose those terms and
conditions on a solid waste facilities permit that it deems necessary
and appropriate to govern the design and operation of the solid
waste facility, for purposes of implementing those policies specified
above.
(5) Existing law requires an enforcement agency to hold a hearing
upon a petition regarding an alleged failure to act as required by
law.
This bill would instead require the enforcement agency to hold
that hearing upon a petition alleging a failure to act pursuant to
specified provisions of the act, or the regulations adopted pursuant
to specified provisions of the act, thereby imposing a state-mandated
local program.
(6) 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.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 42649.1 of the Public Resources Code is amended
to read:
42649.1. For purposes of this chapter, the following terms shall
apply:
(a) "Business" means a commercial or public entity, including, but
not limited to, a firm, partnership, proprietorship, joint stock
company, corporation, or association that is organized as a
for-profit or nonprofit entity, or a multifamily residential
dwelling.
(b) "Commercial solid waste" includes all types of solid waste
generated by a store, office, or other commercial or public entity
source, including a business or a multifamily dwelling of five or
more units.
(c) "Commercial waste generator" means a business subject to
subdivision (a) of Section 42649.2.
(d) "Self-hauler" means a business that hauls its own waste rather
than contracting for that service.
SEC. 2. Section 42649.3 of the Public Resources Code is amended to
read:
42649.3. (a) On and after July 1, 2012, each jurisdiction shall
implement a commercial solid waste recycling program appropriate for
that jurisdiction designed to divert commercial solid waste from
businesses subject to Section 42649.2, whether or not the
jurisdiction has met the requirements of Section 41780.
(b) If a jurisdiction already has a commercial solid waste
recycling program as one of its diversion elements that meets the
requirements of this section, it shall not be required to implement a
new or expanded commercial solid waste recycling program.
(c) The commercial solid waste recycling program shall be directed
at a commercial waste generator, as defined in subdivision (c) of
Section 42649.1, and may include, but is not limited to, any of the
following:
(1) Implementing a mandatory commercial solid waste recycling
policy or ordinance.
(2) Requiring a mandatory commercial solid waste recycling program
through a franchise contract or agreement.
(3) Requiring all commercial solid waste to go through either a
source separated or mixed processing system that diverts material
from disposal.
(d) The commercial solid waste recycling program shall include
education, outreach to, and monitoring of, businesses. A jurisdiction
shall notify a business if the business is not in compliance with
Section 42649.2.
(e) The commercial solid waste recycling program may include
enforcement provisions that are consistent with a jurisdiction's
authority, including a structure for fines and penalties.
(f) The commercial solid waste recycling program may include
certification requirements for self-haulers.
(g) The department shall review a jurisdiction's compliance with
this section as part of the department's review required by Section
41825. Each jurisdiction shall report the progress achieved in
implementing its commercial recycling program, including education,
outreach, identification, and monitoring, and if applicable,
enforcement efforts, by providing updates in the annual report
required by Section 41821.
(h) The department may also review whether a jurisdiction is in
compliance with this section at any time that the department receives
information that a jurisdiction has not implemented, or is not
making a good faith effort to implement, a commercial recycling
program.
(i) During its review pursuant to subdivision (g) or (h), the
department shall determine whether each jurisdiction has made a good
faith effort to implement its selected commercial recycling program.
For purposes of this section, "good faith effort" means all
reasonable and feasible efforts by a jurisdiction to implement its
commercial recycling program. During its review, the department may
include, but is not limited to, the following factors in its
evaluation of a jurisdiction's good faith effort:
(1) The extent to which businesses have complied with Section
42649.2, including information on the amount of disposal that is
being diverted from the businesses, if available, and on the number
of businesses that are subscribing to service.
(2) The recovery rate of the commercial waste from the material
recovery facilities that are utilized by the businesses, all
information, methods, and calculations, and any additional
performance data, as requested by the department from the material
recovery facilities pursuant to Section 18809.4 of Title 14 of the
California Code of Regulations.
(3) The extent to which the jurisdiction is conducting education
and outreach to businesses.
(4) The extent to which the jurisdiction is monitoring businesses,
and notifying those businesses that are out of compliance.
(5) The availability of markets for collected recyclables.
(6) Budgetary constraints.
(7) In the case of a rural jurisdiction, the effects of small
geographic size, low population density, or distance to markets.
SEC. 3. Section 43200.5 is added to the Public Resources Code, to
read:
43200.5. (a) An enforcement agency that has been designated by
the local governing body and certified by the department pursuant to
this chapter has the authority provided, and the duties required, by
this part, Part 5 (commencing with Section 45000), and Part 6
(commencing with Section 45030).
(b) When exercising the authority and fulfilling the duties
specified in subdivision (a), an enforcement agency is deemed to be
carrying out a state function that is governed by this division. In
carrying out this state function, an enforcement agency is deemed to
be independent from the local governing body, and the enforcement
agency's actions in carrying out this state function is not subject
to the authority of the local governing body.
(c) If an enforcement agency is authorized or required to take an
action by a state law or local ordinance and that action is not
otherwise authorized or required by this part, Part 5 (commencing
with Section 45000), or Part 6 (commencing with Section 45030), the
enforcement agency, with regard to that action, is governed only by
that local ordinance or state law, respectively, in exercising that
authority or carrying out that requirement and is not governed by
this division.
SEC. 4. Section 43209 of the Public Resources Code is amended to
read:
43209. The enforcement agency, within its jurisdiction and
consistent with its certification by the board, shall do all of the
following:
(a) Enforce applicable provisions of this part, regulations
adopted under this part, and terms and conditions of permits issued
pursuant to Chapter 3 (commencing with Section 44001).
(b) Request enforcement by appropriate federal, state, and local
agencies of their respective laws governing solid waste storage,
handling, and disposal.
(c) File with the board, upon its request, information the board
determines to be necessary.
(d) Develop, implement, and maintain inspection, enforcement,
permitting, and training programs.
(e) (1) Establish and maintain an enforcement program consistent
with regulations adopted by the board to implement this chapter, the
standards adopted pursuant to this chapter, and the terms and
conditions of permits issued pursuant to Chapter 3 (commencing with
Section 44001).
(2) The enforcement agency may establish specific local standards
for solid waste handling and disposal subject to approval by a
majority vote of its local governing body, by resolution or
ordinance, if those standards are incorporated into the enforcement
program specified in paragraph (1) and are approved by the
department.
(3) A standard established pursuant to this subdivision shall be
consistent with this division and all regulations adopted by the
board.
(f) Keep and maintain records of its inspection, enforcement,
permitting, training, and regulatory programs, and of any other
official action in accordance with regulations adopted by the board.
(g) (1) Consult, as appropriate, with the appropriate local health
agency concerning all actions which involve health standards.
(2) The consultation required by this subdivision shall include
affording the health agency adequate notice and opportunity to
conduct and report the evaluation as it reasonably determines is
appropriate.
(h) Establish and maintain an inspection program.
(1) The inspection program required by this subdivision shall be
designed to determine whether any solid waste facility is operating
under any of the following:
(A) The facility is operating without a permit.
(B) The facility is operating in violation of state minimum
standards.
(C) The facility is operating in violation of the terms and
conditions of its solid waste facilities permit.
(D) The facility may pose a significant threat to public health
and safety or to the environment, based on any relevant information.
(2) The inspection program established pursuant to this
subdivision shall also ensure frequent inspections of solid waste
facilities that have an established pattern of noncompliance with
this division, regulations adopted pursuant to this division, or the
terms and conditions of a solid waste facilities permit. The
inspection program may include public awareness activities,
enforcement to prevent the illegal dumping of solid waste, and the
abatement of the illegal dumping of solid waste.
SEC. 5. Section 44012 of the Public Resources Code is amended to
read:
44012. (a) When issuing or revising a solid waste facilities
permit, the enforcement agency shall ensure that primary
consideration is given to protecting public health and safety and
preventing environmental damage, and that the long-term protection of
the environment is the guiding criterion.
(b) When issuing or revising a solid waste facilities permit, an
enforcement agency may impose those terms and conditions on a solid
waste facilities permit that it deems necessary and appropriate to
govern the design and operation of the solid waste facility, for
purposes of implementing the requirements of subdivision (a).
(c) The terms and conditions of the solid waste facilities permit
imposed by an enforcement agency pursuant to this section shall be
consistent with the enforcement policy adopted pursuant to
subdivision (e) of Section 43209 and shall be consistent with this
division.
SEC. 6. Section 44307 of the Public Resources Code is amended to
read:
44307. From the date of issuance of a permit that imposes
conditions that are inappropriate, as contended by the applicant, or
after the taking of any enforcement action pursuant to Part 5
(commencing with Section 45000) by the enforcement agency, the
enforcement agency shall hold a hearing, if requested to do so, by
the person subject to the action. The enforcement agency shall also
hold a hearing upon a petition to the enforcement agency from any
person requesting the enforcement agency to review an alleged failure
of the agency to act as required by this part, Part 5 (commencing
with Section 45000), or Part 6 (commencing with Section 45030) or a
regulation adopted by the department pursuant to this part, Part 5
(commencing with Section 45000), or Part 6 (commencing with Section
45030). A hearing shall be held in accordance with the procedures
specified in Section 44310.
SEC. 7. 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.