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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