BILL ANALYSIS Ó
AB 1776
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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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