BILL ANALYSIS Ó
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Wieckowski, Chair
2015 - 2016 Regular
Bill No: AB 1776
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|Author: |Obernolte |
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|Version: |3/17/2016 |Hearing |6/15/2016 |
| | |Date: | |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Rachel Machi Wagoner |
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SUBJECT: Hazardous waste: disposal: exemption
ANALYSIS:
Existing federal law:
1) Establishes the Resource Conservation and Recovery Act of
1976 (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)
Existing state law:
1) Requires, under the California Hazardous Waste Control Act
(HWCA) of 1972, the Department of Toxic Substances Control
(DTSC) to regulate the appropriate handling, processing and
disposal of hazardous and extremely hazardous waste to protect
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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
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)
6) Authorizes DTSC, to the extent consistent with RCRA, to
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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)
This bill: excludes contaminated soil from an outdoor shooting
range or military small arms range from the state's disposal
requirements for hazardous waste.
Specifically, this bill:
1)Excludes from the definition of disposal 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 as specified.
2)Requires the removal activities to be consistent with the United
States Environmental Protect Agency's (US EPA) Best Management
Practices (BMP) for Lead at Outdoor Shooting Ranges manual.
3)Requires the residual soil to be replaced within the area from
which it was originally removed.
4)Allows this exclusion only to the extent it does not jeopardize
the administration of the state hazardous waste program.
5)Requires DTSC to contact the US EPA, by July 1, 2017, to
coordinate consistent implementation of RCRA and ensure that this
approach does not jeopardize the ability of the state to
administer a state hazardous waste program in lieu of the federal
program.
Background
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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 Sections 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 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
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"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.
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.
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.
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.
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In Sacramento, the James G. Mangan Rifle and Pistol Range was closed
December 24, 2014, after years of tests showed lead contamination at
readings well above state Department of Public Health hazard levels.
While this is an indoor range, high levels of lead contamination
was found in the soil immediately surrounding the range. The
cleanup and repair of the sight is estimated at nearly $2 million.
According to DTSC's EnviroStor database, there are 44 outdoor
shooting range cleanup sites (active and inactive) in California.
Comments
1) Purpose of 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."
2) Administrative options: Under current law, certain activities
may be exempt from a hazardous waste permit if the activity is
within 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 an 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
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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
an 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.
3) Is this bill consistent with California's stance 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.
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 in this
case especially where there are specific current incidents of
expensive remediation projects at gun ranges that have put public
health at risk and given that there is an administrative
opportunity for alternative waste management without a statutory
exemption.
Should the committee feel that the current administrative avenue
for remediation of these sites be overly burdensome for the range
owners, the committee may wish to amend the bill to direct DTSC,
by regulation, to adopt an alternative pathway allowing for the
collection and recycling of the ammunition that does not present
an environmental or public health risk.
Related/Prior Legislation
Related legislation: SB 1362 (Correa, 2014) contained identical
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language to this bill. SB 1362 was referred to the Senate Rules
Committee, but was never heard in policy committee.
SOURCE: Author
SUPPORT:
California Rifle & Pistol Association (CRPA)
California Sportsman's Lobby (CSL)
California State Sheriffs' Association (CSSA)
Crossroads of the West (COTW)
Firearms Policy Coalition (FPC)
National Rifle Association (NRA)
National Shooting Sports Foundation (NSSF)
Outdoor Sportsmen's Coalition of California (OSCC)
Safari Club International (SCI)
San Bernardino County Sheriff
OPPOSITION:
None received
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