BILL ANALYSIS Ó
Senate Appropriations Committee Fiscal Summary
Senator Kevin de León, Chair
AB 2355 (Levine) - Local streets and highways: recycled
materials.
Amended: June 11, 2014 Policy Vote: T&H 11-0
Urgency: No Mandate: Yes
Hearing Date: June 30, 2014
Consultant: Mark McKenzie
This bill meets the criteria for referral to the Suspense File.
Bill Summary: AB 2355 would require local agencies with
jurisdiction over streets and highways to either adopt standards
developed by the Department of Transportation (Caltrans) for the
use of recycled materials on roadways, or to discuss the reasons
for not adopting those standards in a public hearing.
Fiscal Impact: Unknown, likely minor reimbursable mandate costs
(General Fund). Actual costs would depend on what duties that
the Commission on State Mandates (COSM) determines are
reasonably necessary to implement the bill. These costs could
be minor to the extent that a local agency simply put a
discussion item on the agenda for a public hearing, but could be
greater if the Commission approved a claim for reimbursement
related to duties associated with adopting recycled materials
standards.
Background: Existing law requires Caltrans to develop standards
and modify all bid specifications relating to the purchase of
paving materials, and base, subbase, and pervious backfill
materials, using recycled materials. The standard and
specifications must provide for the use of recycled materials
and must not reduce the quality standards for highway and road
construction.
Caltrans has policies and procedures in place to promote the use
of recycled material whenever and wherever it is cost-effective.
Caltrans' standards enable contractors to use up to 100%
recycled aggregate in road base, up to 25% reclaimed asphalt
pavement (RAP) in asphalt pavement, and recycled aggregates in
concrete, provided they meet performance standards. Existing
law generally requires Caltrans to ensure that not less than 50%
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of the asphalt it purchases every year includes a certain amount
of crumb rubber from recycled tires. Caltrans is authorized to
establish specifications for the use of up to 40% RAP for hot
mix asphalt by January 1, 2014, and existing law requires
Caltrans to report to the Legislature by March 1, 2016 on
progress since 2011 on the development and implementation of
specifications on the use of RAP.
Article XIII B, section 6 of the California Constitution
requires the state to provide a subvention of funds to reimburse
local governments whenever the Legislature or a state agency
mandates a new program or higher level of service that results
in increased costs for the local governments.
Proposed Law: AB 2355 would require local agencies with
jurisdiction over a street or highway to do either of the
following by January 1, 2017:
Adopt standards developed by Caltrans for recycled
paving materials, and for recycled base, subbase, and
pervious backfill materials.
Discuss the reasons why the standards are not being
adopted at a regularly scheduled public hearing of the
local agency's governing body.
Staff Comments: This bill is intended to expand local agency use
of recycled materials by requiring cities and counties to either
adopt Caltrans' standards or discuss the reasons for not
adopting those standards in a noticed public meeting. Since
recycled materials are generally less costly than virgin
aggregate, contractors have a strong incentive to use as much
recycled material possible. Many California cities and counties
have standards similar to those developed by Caltrans for the
use of recycled materials in roadway construction, although some
rural agencies have not adopted the standards because recycled
materials are not readily available. Although many local
agencies have already adopted these standards, any agency that
has jurisdiction over streets and highways may seek
reimbursement for mandated costs established by the bill.
Government Code section 17565 states that "if a local agency or
a school district, at its option, has been incurring costs which
are subsequently mandated by the state, the state shall
reimburse the local agency or school district for those costs
incurred after the operative date of the mandate."
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AB 2355 gives local agencies the option of either adopting
Caltrans' standards or discussing the reasons for not adopting
those standards at a public meeting by January 1, 2017. While
it could be argued that the bill only mandates the presumed less
costly option of discussing why it has not adopted standards at
a public meeting, COSM determinations are evidence-based and
depend upon arguments of local agency test claimants and
Department of Finance counter arguments. Staff notes that a
previous COSM decision, although not precedential, could be used
to illustrate the likelihood of whether a presumed more costly
option provided in the bill would be deemed a mandated activity.
In its Statement of Decision regarding Integrated Waste
Management Plans (No. 00-TC-07), the COSM determined that a
statutory requirement that Community College Districts adopt an
Integrated Waste Management Plan is not a mandated new program
or higher level of service because the statute allowed the
option for Community Colleges to be governed by a model plan
developed by a state entity.
In AB 2355, there does not appear to be a legal compulsion for
local agencies to adopt Caltrans' standards, or a penalty for
not adopting the standards. However, the COSM is likely to find
that certain duties are mandated by the bill, if a local agency
submits a test claim for reimbursement. At a minimum, the bill
would require a local agency to review Caltrans' standards and
determine whether any standards they may have adopted for the
use of recycled materials in roadway construction are the
equivalent of those adopted by Caltrans. For those who have not
adopted any standards, or adopted standards that differ from
those adopted by Caltrans, a local agency would be required to
conduct some level of analysis to determine the pros and cons of
adopting equivalent standards, develop staff recommendations
related to the adoption of those standards, and take action at a
public hearing to either adopt recycled materials standards or
discuss the reasons for not adopting those standards. These
costs are likely to be relatively minor for individual local
agencies, and actual reimbursable costs would depend upon the
specific activities that the COSM deems to be reasonably
necessary to comply with the statute. However, if even a single
local agency submitted a test claim for reimbursement and the
COSM determined that certain duties are state reimbursable, and
if only ten percent of the over 500 affected local agencies
submitted reimbursement claims that exceed the minimum allowable
claim of $1,000, General Fund costs would exceed this
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Committee's Suspense File threshold of $50,000. It is likely
that many cities and counties would find it more efficient to
simply absorb the staff costs associated with the bill than to
track time spent on specified duties and submit a claim for
reimbursement.