BILL ANALYSIS Ó AB 385 Page 1 Date of Hearing: April 27, 2015 ASSEMBLY COMMITTEE ON NATURAL RESOURCES Das Williams, Chair AB 385 (Chu) - As Amended April 14, 2015 SUBJECT: Solid waste facilities: local enforcement agencies SUMMARY: Requires the local enforcement agency (LEA) of any jurisdiction that has a solid waste facility located within one-quarter of a mile of another municipality or municipalities 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, unless waived in writing by the other municipalities. 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 a city or county department) to AB 385 Page 2 enforce statewide minimum standards for solid waste handling and disposal. 2)Requires a LEA to issue, and CalRecycle to concur with, a solid waste facilities permit (SWFP) if the permit complies with state minimum standards for solid waste facilities. 3)Prohibits a solid waste facility from operating without a SWFP and requires a LEA to issue a cease and desist order for any facility operating in violation of this provision. 4)Prohibits CalRecycle from establishing or enforcing odor standards (or any air quality standards) at solid waste facilities and exclusively grants this authority to the Air Resources Board (ARB) and local air districts. Authorizes LEAs to investigate and respond to odor issues at compost facilities only. 5)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 conversion facility, and a disposal facility." FISCAL EFFECT: Unknown COMMENTS: 1)Author's Statement: AB 385 Page 3 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 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. 2)Background on the Newby Island Landfill. According to CalRecycle, the Newby Island Landfill is located in the City of San Jose, and has been used as a landfill since the 1930s. AB 385 Page 4 It was annexed into the City of San Jose as an operating landfill in 1968. The SWFP, 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 debris that is sorted, recycled and processed for re-use both onsite and elsewhere; and, materials that are used for alternative daily cover (ADC). ADC materials can include biosolids, processed C&D debris, contaminated soil, green waste, and organic material from the onsite composting operation. The facility also accepts recyclables, including appliances, tires, carpet, and cardboard, which 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 anaerobically digested or composted. CalRecycle received an application for a permit expansion from the LEA on December 9, 2014. According to the CalRecycle staff report, the landfill and proposed expansion comply with state minimum standards, and staff determined that the California Environmental Quality Act requirements have been met to support concurrence. The 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 with the issuance of a Revised SWFP for the Newby Island Landfill. The SWFP allows 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; AB 385 Page 5 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. 3)Odors and odor enforcement. The Act prohibits CalRecycle from regulating or enforcing odor standards. This provision 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." 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, marshes, and conservation areas. At this March 16, 2015, meeting, BAAQMD discussed their role as the local air district with jurisdiction over the area, detailed its investigation and complaint process, and their ongoing AB 385 Page 6 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). All complaints are responded to by an inspector who complies with a rigorous confirmation process. At the meeting, it was also discussed that a South Bay Odor Stakeholders Group would be convened to discuss odor issues. Since the meeting on March 16th, BAAQMD has convened the South Bay Odor Stakeholders Group to "provide a forum for industry, regulatory, and community collaboration in identifying and resolving odor issues in the South Bay Area." The group includes the Cities of San Jose, Fremont, and Milpitas, the San Jose LEA, the State Water Resources Control Board, CalRecycle, Republic Services (which owns the landfill), San Jose STP, Zero Waste Energy Development, Bay Restoration Projects, and members of the affected communities. The first meeting of the stakeholders group is scheduled for April 30, 2015. BAAQMD has also issued notices of violations to Republic Services and has referred issues to California Division of Occupational Safety and Health and the LEA for possible enforcement action against Zero Waste Energy Development (an anaerobic digestion facility). According to BAAQMD staff, the facilities are cooperating with investigations and enforcement actions, and some operational changes have already occurred to minimize odors. For example, Republic Services has stopped using biosolids as ADC. 4)Double referral. This bill was heard by the Assembly Local Government Committee on April 22, 2015 and passed with a vote of 9-0 with significant amendments. Due to legislative deadlines, these amendments will be adopted by this committee if the bill passes. The Local Government amendments delete the provisions of the bill and instead: AB 385 Page 7 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; iii) A representative from BAAQMD, to be appointed by the BAAQMD; 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 AB 385 Page 8 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. REGISTERED SUPPORT / OPPOSITION Support None on file Opposition None on file Analysis Prepared by:Elizabeth MacMillan / NAT. RES. / (916) 319-2092 AB 385 Page 9