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      |4/15/2015        |
          |           |                     |Date:        |                 |
          |-----------+---------------------+-------------+-----------------|
          |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 to a 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:

                  "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  








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                 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  
             created incentives for alternative technologies for waste  
             disposal that have the potential to harness our waste and use  
             it for energy.








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             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  
            incentive to send wood to these facilities.

          8. Lack of Funding. 








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              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 additional controls for tracking that ensure that this  
             wastestream is not ending up in the biomass stream or other  
             inappropriate disposal and require better enforcement.   
             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  








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             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:               
          Allweather Wood, LLC
          American Forest & Paper Association
          American Wood Council
          Brooks Manufacturing Company
          California Cascade Industries
          California Chamber of Commerce
          California Construction and Industrial Materials Association
          California Farm Bureau Federation
          California Forestry Association
          California Manufacturers & Technology Association
          Chemical Industry Council of California
          Exterior Wood, Inc.
          JH Baxter
          McFarland Cascade
          Natural Wood Solutions, LLC








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          Osmose
          Railway Tie Association
          Republic Services, Inc.
          Rio Tinto Minerals
          Ruetgers Canada, Inc.
          Rural County Representatives of California
          Solid Waste Association of Northern America, California Chapters
          Southeastern Lumber Manufacturers Association
          Southern Pressure Treaters Association
          Treated Wood Council
          West Coast Lumber & Building Material Association
          Western Wood Preservers Institute
          Wine Institute
           
           OPPOSITION:    None on file  

           ARGUMENTS IN SUPPORT:    According to the sponsor, "this  
          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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