BILL ANALYSIS                                                                                                                                                                                                    



          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  
                                         -- END --