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 |4/29/2015 |
| | |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
treated wood-like products to conspicuously post specified
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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 and parks
are among the users of treated wood who benefit from the
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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 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.
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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?
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.
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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.
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
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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 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
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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
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
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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.
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
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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.
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
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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
with CalRecycle because of CalRecycle's oversight of landfill
operations.
The committee may wish to amend the bill to extend the sunset
date for this statute by 3 years, which is 2020 and require
DTSC to do a specific and comprehensive report on the
implementation of the AMS, collecting representative data from,
including, but not limited to, generators, disposal facilities,
CUPAs and local governments about the enforcement and
compliance with the AMS. This report should be to the
Legislature no later than June 30, 2018, in order for it to be
reviewed prior to potential, future legislation extending the
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sunset date again. In addition, an amendment should be taken
to give DTSC the statutory authority to amend the AMS
regulations as deemed necessary. This will ensure the
collection of the data necessary to provide the Legislature
with such a comprehensive report.
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.
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JH Baxter
McFarland Cascade
Natural Wood Solutions, LLC
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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