BILL ANALYSIS Ó AB 385 Page 1 Date of Hearing: April 22, 2015 ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT Brian Maienschein, Chair AB 385 (Chu) - As Amended April 14, 2015 SUBJECT: Solid waste facilities: local enforcement agencies. SUMMARY: Requires local enforcement agencies to hold a public meeting and include nearby cities in order to share information about a solid waste facility and to receive information from nearby cities about odor and other nuisance impacts of the facility. Specifically, this bill: 1)Requires, if a solid waste facility in a jurisdiction is within a quarter mile of a municipality or municipalities that are not part of the jurisdiction, the local enforcement agency (LEA) that has jurisdiction over the facility to hold a public meeting, at least every six months, to report violations, investigations, and remedial actions that have occurred since the previous meeting and to receive information regarding odor and other nuisance impacts of the facility from the representatives of that municipality or those municipalities, unless waived in writing by the municipality or municipalities. 2)Requires reimbursement to local agencies and school districts, if the Commission on State Mandates determines that the bill's provisions contain costs mandated by the state. AB 385 Page 2 EXISTING LAW: 1)Pursuant to the Integrated Waste Management Act of 1989 (Act): a) Requires local agencies to divert, through source reduction, recycling, and composting, 50% of solid waste disposed by their jurisdictions by the year 2000; b) Establishes a statewide diversion goal of 75% by 2020; and, c) Requires LEAs (generally cities or counties) to enforce statewide minimum enforcement standards for solid waste handling and disposal. 2)Prohibits a solid waste facility from operating without a solid waste facilities permit and requires a LEA to issue a cease and desist order for any facility operating in violation of this provision. Prohibits an LEA from issuing a stay for a cease and desist order in this instance, unless the facility has applied for a solid waste facilities permit or has been denied a permit for the facility. 3)Defines "solid waste facility," to include "a solid waste transfer or processing station, a composting facility, a gasification facility, a transformation facility, an Engineered Municipal Solid Waste (EMSW) conversion facility, and a disposal facility." FISCAL EFFECT: This bill is keyed fiscal and contains a state-mandated local program. AB 385 Page 3 COMMENTS: 1)Bill Summary. This bill requires, if a solid waste facility in a jurisdiction is within a quarter mile of a city or cities that are not part of the jurisdiction, the LEA that has jurisdiction over the facility to hold a public meeting, at least every six months, to report violations, investigations, and remedial actions that have occurred since the previous meeting and to receive information regarding odor and other nuisance impacts of the facility from the representatives of that city or cities, unless waived in writing by the city or cities. This bill is an author-sponsored measure. 2)Author's Statement. According to the author, "Newby Island Landfill in San Jose, California has posed significant problems for Milpitas and Fremont, the cities that are adjacent to the landfill. The primary problem is the noxious odor from the landfill. Residents contend that the odors prevent them from going outside and many are forced to stay indoors with windows and doors closed. Many also contend their health has suffered and that they are concerned for the future health of their children as a result of odor emissions AB 385 Page 4 from Newby Island. They further maintain that the odors have caused their property values to decrease. "There are various entities involved in this discussion. On February 5, 2015, CalRecycle, the state agency overseeing landfill operation permits, granted issuance of an operating permit allowing "operational/design changes" for Newby Island Landfill. Additionally, the San Jose Planning Commission is scheduled to take this item up on May 6, 2015 to determine whether to issue a Planned Development Permit that would allow the landfill height to expand by 95' to a full height of 245', the height of a ten story building. At a recent Milpitas City Council meeting, there was discussion regarding establishing a third-party odor study. "With this bill, the goal is to afford representation from local governments adjacent to solid waste facilities the opportunity to hear reports, violations and remedial actions from the Local Enforcement Agency regulating the solid waste facility and to voice their concerns regarding its operation, particularly so that their opinions can be heard when considering expansion of this landfill." 3)Background on the Newby Island Landfill. According to CalRecycle, the Newby Island Landfill is an existing Solid Waste Disposal Facility situated on a 342 acre site at 1601 Dixon Landing Road, City of San Jose, and has been used as a landfill since the 1930s. It was annexed into the City of San Jose as an operating landfill in 1968. The Solid Waste Facilities Permit, issued on March 14, 1997, allows for a maximum receipt of 4,000 tons per day (TPD) of waste disposed and an equivalent of 4,000 TPD maximum traffic volume. Materials that pass through the gate of the landfill include waste that is disposed in the landfill; clean soil that is used for cover and for temporary roadways; construction and demolition (C & D) debris that is sorted, recycled and processed for re-use both on-site and elsewhere; and, materials that are used for alternative daily cover (ADC), AB 385 Page 5 which include, but are not limited to, biosolids, processed C&D debris, contaminated soil, green waste, and organic material from the on-site composting operations. In addition to C&D waste, bulky recyclables, including appliances, tires, carpet, and cardboard, are sent to the landfill and either recycled or diverted for beneficial use. Incoming organics received at the landfill are processed and utilized as mulch for erosion control on-site and ADC or are sent off-site to be used as biofuel, for erosion control, or as a soil additive. 4)Newly Island Landfill Expansion. CalRecycle received the proposed permit by the City of San Jose, Department of Planning, Building and Code Enforcement, Local Enforcement Agency on December 9, 2014, with the request that CalRecycle concur on the issuance of a proposed revised Solid Waste Facilities Permit (SWFP). According to the CalRecycle staff report, all of the required submittals and findings required by Title 27 of the California Code of Regulations, have been provided and made, and staff determined that the California Environmental Quality Act (CEQA) requirements have been met to support concurrence. The City of San Jose LEA provided a finding that the proposed permit was consistent with and supported by the cited environmental document. On February 5, 2015, Cal Recycle concurred on the issuance of a Revised Solid Waste Facilities Permit for Newby Island Sanitary Landfill, City of San Jose. That permit allowed for the following operational/design changes: a) An increase in maximum elevation from 150 feet mean sea AB 385 Page 6 level to 245 feet mean sea level; b) An increase in design capacity from 50.8 million cubic yards to 57.5 million cubic yards; c) A decrease in permitted disposal area from 308 acres to 298 acres; and, d) An extension of the estimated closure date from 2025 to 2041. 5)Public Comment and Permit Approval. According to CalRecycle, the project document availability, hearings, and associated meetings were noticed consistent with SWFP requirements. The LEA held a public informational meeting on November 6, 2014, in the City of Milpitas. Department staff attended the meeting, which was attended by approximately 65 people, of which about half offered comments, with the majority of those comments relating to complaints of bad odor. During that meeting, Department staff received a letter from the City Manager of the City of Milpitas, regarding the proposed revised SWFP, that provided a list of reasons opposing the proposed SWFP. Prior to submitting the proposed permit to the CalRecycle, the LEA received approximately 70 written comments in opposition of the project. As of January 29, 2015, CalRecycle had received over 250 written comments and phone calls in opposition. CalRecycle staff provided an opportunity for AB 385 Page 7 public comment during their monthly public meeting held on December 16, 2014, and January 27, 2015. At the December 16, 2014 meeting, 39 members of the public were in attendance to provide oral comments. At the January 27, 2015 meeting, 29 members of the public provided oral comments in opposition to the project. CalRecycle notes that the majority of those comments were from concerned members of the public regarding odor and air quality issues. On February 5, 2015, Cal Recycle concurred on the issuance of a Revised Solid Waste Facilities Permit for Newby Island Sanitary Landfill, City of San Jose. That permit allowed for the following operational/design changes: a) An increase in maximum elevation from 150 feet mean sea level to 245 feet mean sea level; b) An increase in design capacity from 50.8 million cubic yards to 57.5 million cubic yards; c) A decrease in permitted disposal area from 308 acres to 298 acres; and, d) An extension of the estimated closure date from 2025 to 2041. AB 385 Page 8 6)Air Quality Issues and Landfills. According to Public Resources Code Sections 43100 et seq, CalRecycle is prohibited under California law from regulating or enforcing odor standards and landfills. This section of law was designed to eliminate regulatory overlap, conflict, and duplication between state agencies and state and local agencies. Public Resources Code 43020 states that CalRecycle "shall not include [in its regulations] any requirements that are already under the authority of the State Air Resources Board for the prevention of air pollution or of the state water board for the prevention of water pollution." And, Public Resources Code Section 43021 states that CalRecycle's regulations "shall not include aspects of solid waste handling of disposal which are solely of local concern or which are within the jurisdiction of the State Air Resources Board, air pollution control districts and air quality management districts." According to a presentation of the Bay Area Air Quality Management District's (BAAQMD) Stationary Source Committee on March 16, 2015, there are several odor sources in the area that could be causing odor problems, including Newby Island Landfill, Newby Island Compost Facility, Zero Waste Energy Development Company, the San Jose/Santa Clara Regional Wastewater Facility, and surrounding bay lands, which include salt ponds, marches, conservation areas, etc. At this March 16, 2015, meeting, BAAQMD discussed their role as the Air District with jurisdiction over the area, detailed the investigation and complaint process, and their ongoing investigation into the odor issues. As part of the next steps, BAAQMD will conduct a public meeting on April 23, 2015. There is a complaint process in place with a hotline (1-800-334-ODOR), with an inspector response to all odor complaints and a rigorous confirmation process. At the meeting, it was also discussed that a South Bay Odor AB 385 Page 9 Stakeholders Group would be convened to discuss odor issues. 7)Policy Considerations. The Committee may wish to consider the following: a) Broad Scope. This bill, as currently written, applies broadly to all solid waste facilities in a jurisdiction that is within a quarter mile of a city or cities that are not part of the jurisdiction. However, the author has articulated one specific instance (Newby Island Landfill) as the impetus for the bill. The Committee may wish to consider whether the need is statewide or should be narrowed. Also, the bill refers to any "solid waste facility," which is defined in the Integrated Waste Management Act to include "a solid waste transfer or processing station, a composting facility, a gasification facility, a transformation facility, an EMSW conversion facility, and a disposal facility." The Newby Island Landfill is considered a solid waste disposal facility, just one type of "solid waste facility" as defined in law. b) Air Quality. As noted in Comment #6 above, the issue of AB 385 Page 10 odor from a landfill may be more appropriately handled by the local entity that deals with air quality. c) Public Process. It appears that the public process and requirements in state law were followed by both the LEA and CalRecycle, and that there were several opportunities for interested parties to make their concerns heard. The Committee may wish to consider whether the approach in the bill creates an additional meaningful public process in which the public can make their concerns heard. d) Will the Bill Solve Community Concerns? While the bill will provide an additional forum for representatives from nearby cities to share information with the LEA by requiring the LEA to hold a public meeting at least every six months and to report violations, investigations and remedial actions that have occurred since the previous meeting, and for the LEA to receive information regarding odor and other nuisance impacts of the facility, there is no mechanism for action in the bill after such meetings are held. The Committee may wish to consider whether the additional public meeting and information will be helpful to a community that may ultimately want to see the expansion of the Newby Island Landfill halted. Also, given that a South Bay Odor Stakeholders Group is being formed, the Committee may wish to consider whether the bill duplicates efforts at the local level to address these problems. AB 385 Page 11 e) Landfill Siting vs. Local Government Land Use Authority. The Newby Island Landfill site has been used as a landfill since the 1930s. The City of Milpitas incorporated in 1954 and has had land use authority over their boundaries since that time, and approved development near the landfill. f) Pending Investigations. It is unclear whether information regarding pending investigations could actually be shared by the LEA because of pending legal issues. 8)Committee Amendments. To address the policy considerations raised in Comment #7, the Committee may wish to consider amending the bill to strike the existing contents of the bill, and instead: a) Require the LEA that has jurisdiction over the Newby Island Landfill to create a Newby Island Landfill Community Advisory Committee to consist of the following: i) A representative from each neighboring municipality within one mile of the Newby Island Landfill, to be appointed by that municipality and represent that municipality; ii) A representative from the LEA that has jurisdiction over the Newby Island Landfill, to be appointed by the LEA; AB 385 Page 12 iii) A representative from the Bay Area Air Quality Management District, to be appointed by the District; iv) A representative on behalf of the Newby Island Landfill operator; and, v) A total of two members of the public, to be agreed upon and appointed by the neighboring municipalities. b) Require the Newby Island Landfill Community Advisory Committee to hold a public meeting, at least every six months, or more frequently if the Newby Island Landfill Community Advisory Committee wishes, to discuss issues related to the Newby Island Landfill Expansion. c) Require the Newby Island Landfill Community Advisory Committee to receive information related to an independent odor study, if one is completed, and allow the Newby Island Landfill Community Advisory Committee to make recommendations to the member agencies of the Newby Island Landfill Community Advisory Committee. d) Require the provisions of the bill to sunset on December 31, 2018, unless a later statute extends the date. AB 385 Page 13 9)Arguments in Support. None on file. 10)Arguments in Opposition. None on file. 11)Double-Referral. This bill is double-referred to the Natural Resources Committee. REGISTERED SUPPORT / OPPOSITION: Support None on file Opposition None on file Analysis Prepared by:Debbie Michel / L. GOV. / (916) 319-3958 AB 385 Page 14