BILL ANALYSIS Ó
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Wieckowski, Chair
2015 - 2016 Regular
Bill No: SB 162
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|Author: |Galgiani |
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|Version: |2/3/2015 |Hearing |3/18/2015 |
| | |Date: | |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Rachel Machi Wagoner |
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Subject: Treated wood waste: disposal
ANALYSIS:
Existing law:
1.Under the Hazardous Waste Control Act (HWCA), provides for the
registration, licensure and permitting of hazardous waste
generators, transporters and storage, transfer and disposal
facilities. HWCA requires the Department of Toxic Substances
Control (DTSC) to implement and enforce the Act.
2.Defines "treated wood" as wood that has been treated with a
chemical preservative for purposes of protecting the wood
against attacks from insects, microorganisms, fungi, and other
environmental conditions that can lead to decay of the wood
and the chemical preservative is registered pursuant to the
Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).
3.Defines "wood preserving industry" as business concerns, other
than retailers, that manufacture or sell treated wood products
in the state.
4.Requires Treated Wood Waste (TWW) to be disposed of in either
a Class I hazardous waste landfill, or in a composite-lined
portion of a solid waste landfill unit that meets specified
requirements.
5.Requires each wholesaler and retailer of treated wood and
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treated wood-like products to conspicuously post specified
warning information at or near the point of display or
customer selection of treated wood and treated wood-like
products used for fencing, decking, retaining walls,
landscaping, outdoor structures, and similar uses.
6.Requires the DTSC, in consultation with the California
Integrated Waste Management Board (now the Department of
Resources, Recycling and Recovery), the State Water Resources
Control Board, and the Office of Environmental Health Hazard
Assessment, and after consideration of any known health
hazards associated with treated wood waste, to adopt
regulations, as specified, establishing alternative management
standards (AMS) for TWW. Authorizes DTSC to subsequently
revise these regulations as necessary.
7.Requires DTSC, on or before June 1, 2011, to prepare and post
on its Internet web site a report that makes a determination
regarding the successful compliance with, and implementation
of, TWW laws and regulations.
8.Sunsets the TWW requirements on June 1, 2017.
This bill:
Removes the above-stated sunset date, continuing this authority
indefinitely.
Background
Comments
1. Purpose of Bill.
The author states that this bill "would extend the operation
of provisions in current law that require TWW to be disposed
of in either a Class I hazardous waste landfill or in a
composite-lined portion of a solid waste (Class II and III)
landfill and maintains the existing management standards
established in the original statute in 2004. This bill
extends current law as it sunsets on June 1, 2017."
The author states that "industrial customers of treated
wood, such as railroads, utilities, ports, marinas, harbors
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and parks are among the users of treated wood who benefit
from the continuation of the current disposal structure of
treated wood waste in California. Additionally, contractors
and consumers of housing and decking material would assume
the benefit of making current law permanent."
The author asserts that "this statute has been successful for
business, the environment and regulators."
2. California's TWW Program.
During the 1980s DTSC issued a number of variances
authorizing the disposal of wood waste treated with wood
preservatives at lined municipal landfills rather than at
Class I facilities if the water quality permits allow for
such disposal.
In the late 1990s, the variances were scrutinized as not
providing sufficient protection to public health and the
environment and DTSC opined that the variances were illegal
and intended to rescind them in the early 2000's. The
treated wood industry pursued legislation essentially
codifying the variances previously granted and proposed to be
rescinded by DTSC. AB 1353 (Matthews) Chapter 597, Statutes
of 2004, was enacted, creating disposal guidelines and
regulatory authority for TWW, requiring DTSC to adopt
regulations establishing AMS for TWW and authorizing the
disposal of TWW in either a Class I hazardous waste landfill,
or in a composite-lined portion of a solid waste landfill
unit that meets specified requirements.
3. What is Treated Wood, TWW and Why is It a Hazardous Waste?
Treated wood contains hazardous chemicals that pose a risk to
human health and the environment. Arsenic, chromium, copper,
creosote, chromated copper arsenate (CCA) and
pentachlorophenol are among the chemicals used to preserve
wood and are known to be toxic or carcinogenic.
Treated wood is commonly used to build telephone poles, road
signs and marine pilings as well as decks, play structures
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and raised garden beds. Insects and mold can damage wood over
time. To prevent that damage, wood is often treated with
these pesticides and preservatives.
Precautions have been taken by both the federal and state
governments in concert with the treated wood industry to
limit exposure to these harmful chemicals, especially in
residential settings. As of January 1, 2004, United States
Environmental Protection Agency (US EPA) does not allow CCA
products to be used to treat wood intended for any of these
residential uses such as: wood used in play-structures,
decks, picnic tables, landscaping timbers, residential
fencing, patios and walkways/boardwalks.
Wood preservatives help to extend the life of wood, however
as the product degrades in the environment, preservatives can
slowly leach into the surrounding soil or water.
Additionally, touching the wood can leave residue on exposed
skin. While the product is in use it is important to keep
the wood sealed, providing a protective barrier, in order to
prevent human exposure and leaching into surrounding soil and
groundwater.
At end of life, the wood and its sealant are degraded
providing opportunity for the pesticides and preservatives to
more easily leach out, presenting health and environmental
risks. Proper handling is essential to protecting human
health and the environment.
Harmful exposure to these chemicals may result from exposure
to both treated wood and TWW. The exposure pathways are
touching, inhaling or ingesting the chemicals (e.g., handling
of wood, especially wood with degraded sealant or degraded
wood, inhaling sawdust and smoke or putting one's hand to
one's mouth after touching degraded wood or wood with
degraded sealant).
4. What is Hazardous Waste and What Are the Statutory
Protections of the HWCA?
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A hazardous waste is a waste with a chemical composition or
other properties that make it capable of causing illness,
death, or some other harm to humans and other life forms when
mismanaged or released into the environment.
Among the risks associated with hazardous waste are ground
water contamination, air pollution, soil contamination and
human health risks associated with direct exposure.
In California, the HWCA provides for registration, training
and/or permitting of hazardous waste generators,
transporters/haulers, collection, storage or transfer
facilities and disposal facilities.
Additionally, HWCA provides for tracking of hazardous waste
by all parties who handle the waste through a universal
manifest system and ultimately requires that those manifests
are provided to DTSC in order to track, account for all
hazardous waste in California, and enforce HWCA and the
regulations implementing HWCA.
This system creates accountability and when followed protects
the environment and public health from release of, or
exposure to, the hazards of the waste.
5. Universal Waste.
Universal wastes are hazardous wastes that are widely
generated by households and many different types of
businesses. Universal wastestreams are somewhat ubiquitous
or "universal" in a range of different settings (such as:
households, governments, schools, businesses, industries and
in many different types of facilities), which makes it
difficult and somewhat impractical to comply with the
requirements of HWCA. However, it is recognized these
wastestreams are still hazardous and present a risk to human
health and the environment.
Therefore, the wastestreams should still be treated as
hazardous waste to mitigate that risk. The universal waste
law allows for AMS of these wastestreams in order to ensure
proper handling but alleviate the complexities of the full
HWCA.
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6. TWW Law.
A. DTSC AMS for TWW.
TWW has its own statute directing DTSC to develop
regulations for AMS (separate from universal waste). The
AMS for TWW provide much less stringent storage
requirements, extend accumulation periods, allow
shipments without a hazardous waste manifest or a
hazardous waste hauler, and allow disposal at specific
non-hazardous waste landfills.
The AMS for TWW provide for much less stringent
requirements from HWCA but they are also considerably
less stringent than universal requirements. For example,
the AMS allow a shipping document, bill of lading, or
invoice as documentation of the TWW and allows anyone to
transport TWW. AMS require the waste to be labeled and a
report to be sent by disposal facilities semi-annually to
DTSC. However, AMS do not require any sort of
documentation to travel with this waste, like a manifest
tracking the waste (unlike HWCA or universal waste
regulation) that would allow for any accountability and
enforcement. It appears that these regulations were
written to be completed self-enforced by the generator
with no way to actually track the waste, generators, or
haulers that are not complying with the proper handling
requirements.
If DTSC feels that such weak regulations are appropriate,
wouldn't it make more sense for the department to
recommend an exemption of this wastestream from HWCA
requirements?
B. Definition of "Wood Preserving Industry".
(1) The definition of "wood preserving industry"
pursuant to this section is "business concerns, other
retailers, that manufacture or sell treated wood
products."
(2) What are business concerns?
(3) Should the committee wish to support this
legislation, this definition should be amended to be
clear as to who is meant as "wood preserving
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industry."
C. Limits on the Regulation in the TWW Statute.
(1) Health and Safety Code Section 25150.7 (f) (2)
(F) (3) (A) through (C) {page 6, lines 10 through 25
of the bill} lists a series of limitations on DTSC's
regulations including:
1. Additional requirements that are not
alternatives to HWCA,
2. Anything that supersedes specified
acceptable disposal of this section, or
3. Anything that "supersedes any other
provision of this chapter that provides a
conditional or unconditional exclusion,
exemption, or exception toa requirement of this
chapter or the regulations adopted pursuant to
this chapter? ."
These provisions of the statute prohibit DTSC from
ever adopting added requirements or superseding
provisions for TWW even if findings are made that
additional requirements or different disposal
facilities are necessary to be protective. DTSC is
responsible for evaluating ever changing science,
technology and data when enforcing and implementing
HWCA.
Does it make sense to tie the regulatory agencies hands
to regulate?
D. DTSC report.
AB 1353 required DTSC to conduct an evaluation of TWW
statute and regulations and report back to the
Legislature. In 2011, DTSC issued a 12-page report that
contained vague language and insufficient information to
evaluate the program.
For instance:
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"To obtain baseline information about compliance with AB
1353 and the AMS regulations, DTSC's Enforcement and
Emergency Response Program has inspected a number of TWW
generators and facilities. This initial survey reveals
that the rate of compliance by TWW facilities is
generally high. Generators of TWW appear to have more
compliance issues, however."
"DTSC's initial round of inspections found that TWW
facilities are generally in compliance with most AMS
regulatory requirements for storage and disposal of TWW,
as well as with reporting requirements. Most commonly
violated by TWW facilities was the requirement to provide
specific occupational safety and health training to
employees who handle TWW."
"Based on a very limited number of inspections, TWW
generators inspected by DTSC were found to have more -
and more- serious - violations, some of which posed
potential threats to the environment and /or public
health ."
What do "a number," "appears to," "generally," "most
commonly," "a very limited number" and "more-and
more-serious" mean?
The intent of the Legislature in asking for this report
from DTSC was to gain insight and information to evaluate
the efficacy of allowing AMS for this wastestream,
assuming that a scientific regulatory agency, such as
DTSC, would have provided a report with specific data to
allow that evaluation.
These vague statements raise significant concerns about
what type of risks are actually occurring in the
mishandling of this wastestream.
It is clear that there are risks to worker safety, public
health, and the environment. What is not clear is why
and to what extent.
7. Emerging Issues - Biomass Conversion.
In recent years, California has developed, explored and
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created incentives for alternative technologies for waste
disposal that have the potential to harness our waste and use
it for energy.
One of these technologies is biomass conversion. Biomass
conversion is the controlled combustion of agricultural
waste, yard and garden clippings, leaves and forestry
residue, wood chips, wood waste, and non-recyclable pulp or
non-recyclable paper materials (when these substances are
separated from other solid waste) {for the production of
electricity}.
According to the CEC, at present, biomass in California is
converted to electric power though one of two processes based
on the characteristics of the biomass. Two-thirds of
California's biomass power capacity is generated by the direct
combustion of solid biomass in boiler-steam turbine plants.
The remainder is generated by the combustion of landfill gas
and biogas in a range of power generating equipment, including
boiler-steam turbine systems, reciprocating engines, and gas
turbines.
According to the California Biomass Collaborative, there are
27 wood waste and agricultural biomass conversion facilities
in commercial operation in California. These plants are
located throughout the state, often near timber harvest or
agricultural operations.
Could TWW be going into biomass conversion facilities?
If so, those facilities do not have the technology built into
the operation to extract the hazardous chemicals released
during the combustion process. This would present a public
health and environmental risk.
Without adequate tracking and enforcement, there is no way to
know if TWW could be going to these facilities.
Additionally, the energy created by biomass conversion is
eligible for diversion credit from the Department of
Resources, Recycling and Recovery (CalRecycle) and renewable
portfolio standard (RPS) credit from the CEC, which creates an
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incentive to send wood to these facilities.
8. Lack of Funding.
DTSC's HWCA implementation and enforcement activities are
funded through fees on the regulated community (i.e., the
generators, transporters and /storage/transfer/disposal
facilities). When a waste, like TWW, is provided an
alternative management scheme for the waste, which does not
include the registration, licensure or permitting of the
parties noted above, no fee is collected. Therefore, DTSC
does not have the needed resources to enforce the AMS. What
is the point of adopting AMS, if there are not assurances
that they will be enforced. Is this a case where extended
producer responsibility should be adopted and should some
sort of fee be applied on the manufacturers of a product that
results in a hazardous waste, to be used for the
administration and enforcement of the AMS?
9. Conclusion.
When the Legislature passed AB 1353 in 2004, the intent was
to allow for a temporary set of AMS to be tried, and for DTSC
to do a comprehensive evaluation of the AMS, providing the
Legislature an opportunity to thoroughly review the adequacy
of AMS.
From the little information stated in the DTSC report, it
appears that there is reason to believe that the AMS are not
adequately protective.
"Based on a very limited number of inspections, TWW
generators inspected by DTSC were found to have more -
and more- serious - violations, some of which posed
potential threats to the environment and /or public
health."
Recognizing that the volume of TWW and range and type of
generator of TWW would make it difficult to put TWW back into
the hazardous wastestream, the committee may wish to amend
the bill to require that TWW be treated as universal waste
with added controls for tracking that ensure that this
wastestream is not ending up in the biomass stream or other
inappropriate disposal and require better enforcement.
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Additionally, a new sunset date should be added and a
comprehensive report with specified inspections and data
metrics should be required of DTSC, perhaps in consultation
with CalRecycle because of CalRecycle's oversight of landfill
operations.
Related/Prior Legislation
AB 1353 (Matthews) Chapter 597, Statutes of 2004, rescinded
variances that had been previously issued by DTSC allowing TWW
to be disposed of in lined municipal landfills. At the same
time AB 1353 provided for the disposal of TWW under similar
restrictions as provided by the rescinded variance while DTSC
adopted predisposal management and worker safety regulations. A
final version of these regulations took effect July 1, 2007.
SB 909 (La Malfa) Chapter 601, Statutes of 2011, extended the
sunset of above statute related toTWW disposal requirements from
2012 to 2017, deleted obsolete sections of code, and specified
the website and phone number that wholesalers and retailers of
treated wood and treated wood-like products are required to post
on warning signs so that consumers can access information about
treated wood. (NOTE: This bill, as introduced, would have
removed the sunset date, extending the program indefinitely.
However, because DTSC's report had not been released at the time
the legislation was in the Legislature, the bill was amended to
extend the sunset date.)
SOURCE:
Western Wood Preservers Institute
SUPPORT:
American Forest & Paper Association
American Wood Council
California Forestry Association
Chemical Industry Council of California
Republic Services, Inc.
Rio Tinto Minerals
Treated Wood Council
West Coast Lumber & Building Material Association
OPPOSITION: None on file
ARGUMENTS IN SUPPORT: According to the sponsor, "this
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legislation will continue to provide clear statutory guidance
for the disposal of treated wood waste in either a Class I
hazardous waste landfill or in a composite-line portion of a
solid waste (Class II and III) landfill. When treated wood
waste is properly disposed of, it becomes non-hazardous waste."
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