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."
                                           
                                       -- END --