BILL ANALYSIS                                                                                                                                                                                                    



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          Date of Hearing:  March 29, 2016


           ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS


                                  Luis Alejo, Chair


          AB 1776  
          (Obernolte) - As Amended March 17, 2016


          SUBJECT:  Hazardous waste:  disposal:  exemption


          SUMMARY:  Excludes contaminated soil from an outdoor shooting  
          range from the state's disposal requirements for hazardous  
          waste.  Specifically, this bill:  


             1)   Excludes from the definition of "disposal," to the  
               extent that it would not jeopardize the state's  
               administration of the state hazardous waste program, the  
               onsite movement of soil at an active outdoor sport shooting  
               range if this movement is done to facilitate the removal  
               and recycling of spent ammunition materials existing on the  
               site as a result of the normal use of the shooting range,  
               the activities are consistent with the United States  
               Environmental Protect Agency's (US EPA) Best Management  
               Practices (BMP) for Lead at Outdoor Shooting Ranges manual,  
               and the residual soil is replaced within the area from  
               which it was originally removed.


             2)   Requires, by July 1, 2017, the Department of Toxic  
               Substances Control (DTSC) to contact the US EPA to  
               coordinate consistent implementation of the Resources  
               Conservation and Recovery Act of 1976 (RCRA) and ensure  








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               that this approach does not jeopardize the ability of the  
               state to administer a state hazardous waste program in lieu  
               of the federal program. 


          EXISTING LAW:  


          UNDER FEDERAL LAW:


             1)   Establishes RCRA to create the proper management of  
               hazardous and non-hazardous solid waste. (42 United States  
               Code (USC) 6926)


             2)   States that hazardous wastes that are recycled will be  
               known as "recyclable materials." (40 Code of Federal  
               Regulations (CFR) Part 261.6(a)(3)(ii))


             3)   Establishes the Military Munitions Rule, which created  
               the conditions specifying when military munitions become  
               subject to regulation as a solid waste or hazardous waste  
               under RCRA. (40 CFR Parts 260- 266, and 270)


          UNDER STATE LAW:


             1)   Requires, under the California Hazardous Waste Control  
               Act (HWCA) of 1972, DTSC to regulate the appropriate  
               handling, processing and disposal of hazardous and  
               extremely hazardous waste to protect the public, livestock,  
               and wildlife from hazards to health and safety. (Health &  
               Safety Code (H&S)  25100, et seq.) 


             2)   Defines hazardous waste as a waste that may cause, or  








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               significantly contribute to, an increase in mortality or an  
               increase in serious irreversible, or incapacitating  
               reversible, illness; pose a substantial present or  
               potential hazard to human health or the environment, due to  
               factors including, but not limited to, carcinogenicity,  
               acute toxicity, chronic toxicity, bioaccumulative  
               properties, or persistence in the environment, when  
               improperly treated, stored, transported, or disposed of, or  
               otherwise managed. (H&S  25141) Hazardous waste includes  
               hazardous waste covered under RCRA. (H&S  25117)


             3)   Defines "disposal" as the discharge, deposit, injection,  
               dumping, spilling, leaking, or placing of any waste so that  
               the waste or any constituent of the waste is or may be  
               emitted into the air or discharged into or on any land or  
               waters, including groundwaters, or may otherwise enter the  
               environment. (H&S  25113)


             4)   Requires DTSC to adopt and revise regulations that will  
               allow the state to receive and maintain authorization to  
               administer a state hazardous waste program in lieu of RCRA.  
               (H&S  25159)


             5)   Requires DTSC, in adopting or revising standards and  
               regulations pursuant to the state's hazardous waste control  
               laws, to make the standards and regulations conform with  
               corresponding regulations adopted by the US EPA pursuant to  
               RCRA. Allows DTSC to adopt standards and regulations that  
               are more stringent or more extensive than federal  
               regulations. Requires all regulations adopted pursuant to  
               RCRA to be deemed to be the regulations of DTSC, except  
               that any state statute or regulation which is more  
               stringent or more extensive than a federal regulation shall  
               supersede the federal regulation. (H&S  25159.5)










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             6)   Authorizes DTSC, to the extent consistent with RCRA, to  
               exclude any portion of a response action conducted entirely  
               onsite from the hazardous waste facility permit  
               requirements under certain conditions. (H&S  25358.9)


             7)   Defines "sport shooting range" as an area designed and  
               operated for the use of rifles, shotguns, pistols,  
               silhouettes, skeet, trap, black powder, or any other  
               similar sport or law enforcement training purpose. (Civil  
               Code  3482.1)


          FISCAL EFFECT:  Unknown. 


          COMMENTS:  


          Purpose of the bill: According to the author, under the current  
          definition of "disposal", "? if a shooting range operator wants  
          to remove spent ammunition from the soil for the purpose of  
          recycling it, the soil that remains must then be treated as  
          hazardous waste and disposed of. This is in direct conflict with  
          [US] EPA best practices and places unreasonable burdens and  
          costs on outdoor shooting ranges. It also discourages the  
          regular recycling of lead from the soil and leads to the  
          creation of excessive amounts of hazardous waste. If this  
          contradiction between state and federal law is not rectified, it  
          could negatively impact public, private, and law enforcement  
          shooting ranges across the state. AB 1776 seeks to address this  
          problem by simply clarifying that "disposal" of hazardous waste  
          does not include the onsite movement of soil at an active  
          outdoor shooting range if this movement is done to facilitate  
          the removal and recycling of spent ammunition materials existing  
          on the site as a result of the normal use of the shooting range  
          and the residual soil is replaced within the area from which it  
          was originally removed."









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          Outdoor shooting ranges: Outdoor shooting ranges provide  
          recreational facilities for shooting sports enthusiasts across  
          California. Outdoor shooting ranges are used for longer distance  
          shooting up to or exceeding 1,200 yards. Spent lead bullets and  
          shot are most often deposited directly on and into soil during  
          shooting. Outdoor shooting ranges are designed to contain all  
          fired shots.

          According to the National Association of Shooting Ranges,  
          estimates, based on statistics of purchased goods and services  
          for target shooting, show that 1.7 million Californians enjoy  
          recreational shooting ranges, and that "in California, the state  
          with the greatest number of target shooting enthusiasts,  
          participation exceeded attendance at all 2011 Oakland A's  
          baseball games." The National Shooting Sports Foundation cites  
          294 small arms ranges in California.  

          According to US EPA's 2005 figures, an estimated 9,000  
          non-military outdoor ranges exist in the United States,  
          collectively shooting millions of pounds of lead annually. It is  
          estimated that approximately four percent (80,000 tons/year) of  
          all the lead produced in the United States in the late 1990's  
          (about 2 million tons/year), is made into bullets and shot.  
          Taking into account rounds used off-range, and rounds used at  
          indoor ranges, it's expected that much of this 160,000,000  
          pounds of lead shot/bullets finds its way into the environment  
          at ranges. 

          Lead: Lead has been listed under California's Proposition 65  
          since 1987 as a substance that can cause reproductive damage and  
          birth defects and has been on the list of chemicals known to  
          cause cancer since 1992.  There is no level that has been proven  
          safe, either for children or for adults.


          Soil disposal: According to the author's office, when it comes  
          to soil disposal, the current practice at outdoor shooting  








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          ranges is to hire a contractor to come in and mechanically  
          remove the lead from the soil or "bullet impact material" (sand,  
          wood chips, granular rubber). When this takes place, according  
          to the author's office, 95% of the lead is successfully removed  
          and recycled. The recovered lead is then transported to a scrap  
          metal recycler and the range obtains a receipt for the recycled  
          materials. The soil or other impact material is then placed back  
          onto the berm for further use. This process is the practice  
          recommended in the US EPA's BMP manual (described below).

          The process of removing the lead from bullet impact material  
          allows the shooting range owner/operator to avoid contamination  
          of the site, reduce liability with regard to potential  
          government issued violations and civil lawsuits, and, possibly,  
          benefit economically from the recycling of lead. 

          Lead is a recyclable and finite resource and can be recovered  
          from the active portion of ranges and sold to lead reclaimers.  
          Frequently, reclaimers do not charge range owners/operators to  
          recover lead from ranges, and owners and operators may receive a  
          percentage of the profit from the sale of reclaimed lead. This  
          factor drives recycling efforts at many ranges.

          Federal regulations on outdoor shooting ranges: According to the  
          US EPA, lead shot is not considered a hazardous waste subject to  
          RCRA at the time it is discharged from a firearm because it is  
          used for its intended purpose. Therefore, a RCRA permit is not  
          required to operate a shooting range. However, spent lead shot  
          (or bullets) are subject to the broader definition of solid  
          waste contained in RCRA, so spent shot and bullets are  
          potentially subject to RCRA statutory authority including  
          Section 7002 and 7003. 

          The US EPA developed a BMP for Lead at Outdoor Shooting Ranges  
          manual to provide owners and operators of outdoor rifle, pistol,  
          trap, skeet and sporting clay ranges with information on lead  
          management at their ranges. The manual explains how  
          environmental laws are applicable to lead management and  
          presents successful BMPs available to the shooting range  








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          community.

          The lead, if recycled, is considered a scrap metal pursuant to  
          federal regulations and is therefore exempt from RCRA  
          regulation. After a removal contractor or reclaimer applies  
          standard BMPs to separate the lead from soil, the soil may be  
          placed back on the range without further treatment.

          Military Munitions Rule (MMR): In 1997, the US EPA adopted a  
          rule that identifies when conventional and chemical military  
          munitions become a hazardous waste under RCRA, and that provides  
          for the safe storage and transport of such waste. The MMR policy  
          set forth the guidance necessary to determine when RCRA applied  
          to specific munitions operations. Specifically, it provided  
          authorization for military bases to do range clearance  
          activities and soil management in a way that did not trigger  
          having to get a hazardous waste permit or run the risk of  
          running afoul of federal hazardous waste (RCRA) laws.  The MMR,  
          in regulation, is applicable to military facilities only. The US  
          EPA eventually extended the MMR to private, or nonmilitary,  
          operations, which includes outdoor shooting ranges, but adopted  
          the expansion by an administrative ruling, not regulation.  


          The US EPA authorizes states to implement the MMR for military  
          facilities; however, DTSC has not adopted the MMR in California.  



          State regulations on outdoor shooting ranges: Under RCRA, the US  
          EPA authorizes California to administer and enforce the RCRA  
          hazardous waste program. Additionally, RCRA (Section 3009)  
          allows California to impose regulatory standards that are more  
          stringent or more extensive in scope than those in the federal  
          program. Therefore, if a specific outdoor shooting range is  
          located in California, a "RCRA-approved" state, California has  
          the authority to impose restrictions or definitions more  
          stringent or broader in scope than those presented in RCRA or  
          related regulations. 








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          DTSC regulates hazardous waste, which in the case of outdoor  
          shooting ranges could mean the regulation of any contaminated  
          soil.  Under state law, once an outdoor shooting range removes  
          or moves any contaminated soil, s/he would be the generator of  
          hazardous waste and would be responsible for the proper  
          management of that hazardous waste (including manifesting the  
          waste, transporting the hazardous waste via a registered hauler  
          and taking the contaminated soil to an authorized facility).  
          Compliance with state law would require an outdoor shooting  
          range operator to properly remove, transport and dispose of all  
          of the contaminated soil. 


          Additionally, under current state law, DTSC must adopt and  
          revise regulations to allow the state to receive and maintain  
          authorization to administer a state hazardous waste program in  
          lieu of the federal program (RCRA Section 6926), and DTSC must  
          make the standards and regulations conform with corresponding  
          regulations adopted by the US EPA. 


          For a federal rule, which is less stringent, to be operational,  
          California would have to adopt it in state rules. California,  
          however, is mandated through state statute to assure our  
          regulations are as stringent as federal regulations. 


          The US EPA's administrative action on the MMR expansion is in  
          conflict with state law. Even if DTSC adopted the MMR, it could  
          not apply it to non-military ranges because the US EPA expanded  
          the less stringent rule to non-military ranges in an  
          administrative ruling, not written regulation. 


          Therefore, California is in a pickle. The state is more  
          stringent on hazardous waste laws, and state law requires us to  
          conform to federal regulations, but conforming would be less  
          stringent. 








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          AB 1776 is proposing to allow DTSC to regulate soil disposal at  
          outdoor shooting ranges consistent with the US EPA's BMPs, which  
          are less stringent than state law.  

          Administrative options: Under current law, certain activities  
          may be exempt from a hazardous waste permit if the activity is a  
          remedial action plan (RAP) or removal action work plan (RAW).


          To the extent it is consistent with RCRA, DTSC may exclude any  
          portion of a response action conducted entirely onsite from the  
          hazardous waste facility permit requirements if the removal or  
          remedial action is carried out pursuant to a RAP or RAW, or if  
          the RAP or RAW requires that the response action complies with  
          all laws, rules, regulations, standards, requirements, criteria,  
          or limitations applicable to the construction, operation,  
          closure of the type of facility at the hazardous substance  
          release site and with any other condition imposed by DTSC as  
          necessary to protect public health and safety and the  
          environment. 


          In other words, an owner or operator of an outdoor shooting  
          range can comply with state law without having to obtain a  
          hazardous waste permit for soil management if the soil disposal  
          is part of a RAP or RAW. While this may be a more cumbersome,  
          bureaucratic approach for the owner or operator, it is an option  
          that is consistent with state law and that obviates the need for  
          legislatively codifying federal BMPs, which do not have the  
          weight of law. 


          California's track record on regulating lead exposure:  
          California has a long history of regulating lead and preventing  
          lead exposure. In the last twenty-five years, lead-based paint,  
          leaded gasoline, leaded can solder and lead-containing plumbing  
          materials were among the products that were gradually restricted  








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          or phased out of use. The use of lead, however, is far from  
          obsolete. An important commodity, lead also continues to be used  
          in paint, glass, ceramics, pigments, casting metals, metal  
          products, solder, ammunition, and other minor uses. That said,  
          the US EPA recognizes that the relative risk of lead exposure to  
          people in a well-managed outdoor shooting range facility is low.
          
          Are we being soft on lead? Recent events, like the Exide  
          Technologies lead-acid battery recycling facility, which  
          resulted in the state's most extensive lead-contaminated soil  
          removal effort in history, and Flint, Michigan's drinking water  
          crisis, which resulted in exposing between 6,000 to 12,000  
          children to drinking water with high levels of lead, have led to  
          nearly daily headlines on lead exposure in the U.S. and scrutiny  
          of government oversight of lead contamination.


          More recently and more relevantly, on March 1, 2016, the East  
          Bay Regional Park District Board voted to close the gun range at  
          Anthony Chabot Regional Park because of extensive lead  
          contamination. The closure follows years of concern over the  
          range's contributions to extensive lead contamination in soil  
          and water on public park land. Park officials estimate it could  
          cost $200,000 a year to contain tainted runoff, and $2 million  
          to $20 million over the long term to clean it up. 


          According to DTSC's EnviroStor database, there are 44 outdoor  
          shooting range cleanup sites (active and inactive) in  
          California. 

          At a time when California is looking at additional ways to  
          prevent lead contamination, the Committee may wish to consider  
          if it is appropriate to provide an exemption from the state's  
          hazardous waste laws for lead-contaminated soil removal.


          Related legislation: Senate Bill (SB) 1362 (Correa, 2014)  
          contained identical language to this bill. SB 1362 was referred  








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          to the Assembly Rules Committee, but was never heard in policy  
          committee. 


          REGISTERED SUPPORT / OPPOSITION:




          Support


          California Rifle and Pistol Association


          California State Sheriffs' Association 


          Firearms Policy Coalition


          National Shooting Sports Foundation




          Opposition


          None on file. 




          Analysis Prepared by:Paige Brokaw / E.S. & T.M. / (916) 319-3965












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