BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     AB 385


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          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  








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               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:











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                 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.   








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            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;









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             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  








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            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: 











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             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  








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               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












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