BILL ANALYSIS Ó SENATE COMMITTEE ON ENVIRONMENTAL QUALITY Senator Wieckowski, Chair 2015 - 2016 Regular Bill No: SB 162 ----------------------------------------------------------------- |Author: |Galgiani | ----------------------------------------------------------------- |-----------+---------------------+-------------+-----------------| |Version: |2/3/2015 |Hearing |4/15/2015 | | | |Date: | | |-----------+---------------------+-------------+-----------------| |Urgency: |No |Fiscal: |Yes | ----------------------------------------------------------------- ----------------------------------------------------------------- |Consultant:|Rachel Machi Wagoner | | | | ----------------------------------------------------------------- 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 SB 162 (Galgiani) Page 2 of ? 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 SB 162 (Galgiani) Page 3 of ? 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 SB 162 (Galgiani) Page 4 of ? 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? SB 162 (Galgiani) Page 5 of ? 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. SB 162 (Galgiani) Page 6 of ? 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 SB 162 (Galgiani) Page 7 of ? 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 SB 162 (Galgiani) Page 8 of ? 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. SB 162 (Galgiani) Page 9 of ? 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. SB 162 (Galgiani) Page 10 of ? 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 SB 162 (Galgiani) Page 11 of ? 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 SB 162 (Galgiani) Page 12 of ? 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." -- END --