BILL ANALYSIS Ó AB 1776 Page 1 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 AB 1776 Page 2 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 AB 1776 Page 3 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) AB 1776 Page 4 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." AB 1776 Page 5 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 AB 1776 Page 6 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 AB 1776 Page 7 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. AB 1776 Page 8 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. AB 1776 Page 9 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 AB 1776 Page 10 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 AB 1776 Page 11 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 AB 1776 Page 12