BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     AB 385


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          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.








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          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.








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          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  








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            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),  








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            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  








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               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  








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            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.








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          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  








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            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  








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               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.












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             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;









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               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.











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          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












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