BILL ANALYSIS �
AB 845
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 845 (Ma)
As Amended August 14, 2012
Majority vote
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|ASSEMBLY: | |(June 2, 2012) |SENATE: |22-14|(August 23, |
| | | | | |2012) |
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(vote not relevant)
Original Committee Reference: TRANS.
SUMMARY : Prohibits a local ordinance, whether approved by a
city, county, or voters, from restricting or limiting the
importation of solid waste into a privately owned facility based
on the place of origin.
The Senate amendments delete the Assembly version of this bill,
and instead:
1)State the Legislature's intent that it is in the public
interest for the state to authorize and require local
agencies, as subdivisions of the state, to make adequate
provision for solid waste handling, both within their
respective jurisdictions and in response to regional needs
consistent with the policies, standards, and requirements of
the California Integrated Waste Management Act (Act). Declare
that restrictions on the disposal of solid waste that
discriminate on the basis of the place of origin of the waste
are an obstacle to, and conflict with, statewide and regional
policies to ensure adequate and appropriate capacity for solid
waste disposal.
2)Prohibit a local ordinance or initiative approved by a city,
county, or voters from restricting or limiting the importation
of solid waste into a privately owned facility based on the
place of origin.
3)Specify that the bill does not:
a) Require a privately owned or operated solid waste
facility to accept solid waste from outside the city or
county where the facility is located.
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b) Allow a privately owned solid waste facility to abrogate
a written agreement guaranteeing permitted capacity to a
host jurisdiction, including a regional agency.
c) Prohibit a city, county, or regional agency from
requiring a privately owned solid waste facility to
guarantee permitted capacity to a host jurisdiction,
including a regional agency.
d) Supersede or affect any other land use authority of a
city or county, including, but not limited to, planning,
zoning, and permitting, and an ordinance adopted pursuant
to that land use authority.
EXISTING LAW : Under the Act:
1)Declares that it is in the public interest for the state to
authorize and require local agencies, as subdivisions of the
state, to make adequate provisions for solid waste handling,
both within their respective jurisdictions and in response to
regional needs.
2)Requires local governments to divert 50% of solid waste
generated from landfill disposal through source reduction,
reuse, recycling and composting activities.
AS PASSED BY THE ASSEMBLY , this bill established provisions
governing the distribution of $950 million in bond funds
authorized in the Safe, Reliable High-Speed Passenger Train Bond
Act for the 21st Century (Bond Act) for intercity, commuter, and
urban rail lines. Specifically, the bill:
1)Required the distribution of the funds to be based on data in
the National Transit Database of the Federal Transit
Administration.
2)Directed the California Transportation Commission (CTC) to
accept from each eligible recipient of the funds a priority
list of projects; projects must meet criteria set forth in the
Bond Act.
3)Directed the CTC to require that matching funds are to be
provided from non-state funds.
4)Provided that the required match for commuter and urban rail
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projects begins with expenditures made subsequent to the
adoption of the program by the CTC.
FISCAL EFFECT : None
COMMENTS : This bill was developed in response to Measure E, a
1984 Solano County initiative that "limit�s] the amount of solid
waste imported into Solano County to a maximum of 95,000 tons
per year." At the time of this initiative, Solano County was
importing approximately 500,000 tons of solid waste annually
from San Francisco.
In 1992, the Legislative Counsel of California and the County
Counsel of Solano County opined that Measure E violated the
commerce clause of the United State Constitution, because it
discriminates against interstate commerce. In light of these
opinions, the Solano County Board of Supervisors (Board)
announced that it would not enforce Measure E. Without Measure
E, Solano County has been able to import large amounts of solid
waste from other areas of the state for disposal, including at
the Potrero Hills Landfill.
The Potrero Hills Landfill currently receives approximately
900,000 tons of solid waste annually, including 600,000 tons
originating from outside of the county. The landfill is
expected to reach capacity by 2016. There are plans to expand
the Potrero Hills Landfill from 320 acres to 580 acres and to
increase the maximum height from 220 feet to 345 feet, which
will extend the life of the landfill for another 35 years. The
project requires habitat mitigation that includes preserving and
enhancing approximately 994 acres of grassland, wetland, and
water features. The cost of the project is approximately $110
million.
On June 9, 2009, the Board voted in favor of certifying a final
Environmental Impact Report (EIR) for the Potrero Hills Landfill
Expansion project; due to legal challenges, this was the third
time in four years that the Board certified the final EIR. On
October 21, 2010, the San Francisco Bay Conservation and
Development Commission approved a permit for the project with a
few additional conditions.
On June 10, 2009, the day after the Board certified the final
EIR, the opponents of the project filed a lawsuit in the Solano
County Superior Court to enforce Measure E.
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On May 12, 2010, the court issued an opinion acknowledging that
Measure E as drafted raises valid commerce clause concerns,
because it would limit the importation of waste from out of
state. However, the court invoked a rarely used judicial
authority to actually rewrite Measure E to make it
constitutional. The court explained that "Measure E, if
rewritten to apply only to waste generated within other counties
in California, would not offend the commerce clause." The court
ruling has been appealed to the California Court of Appeal.
If the ultimate outcome of the case is in support of Measure E,
the Potrero Hills Landfill's current waste load would be cut by
as much as 85%; it could be even lower depending on how much of
the 95,000 ton quota imposed by Measure E would be allocated to
the facility. Counties in the Bay Area and other parts of
Northern California rely on the Potrero Hills Landfill for solid
waste disposal. These counties would have to find alternative
management options for this material.
This bill will essentially nullify Measure E and the Solano
County Superior Court ruling by prohibiting a local government
from restricting or limiting the importation of solid waste
based on the place of origin.
This bill also has anti-trust implications. Beginning in 2008,
then-California Attorney General Jerry Brown and the U.S.
Department of Justice investigated the merger of two of the
three largest waste-hauling companies in the country, Republic
Services, Inc. (Republic) and Allied Waste Industries, Inc.
(Allied), for antitrust-law implications. The investigation
found that before the merger Republic's Potrero Hills Landfill,
Allied's Keller Canyon facility in Contra Costa County, and
Republic's Vasco Road site in Alameda County were the primary
competitors in the waste disposal industry in the San Francisco
Bay Area. The Attorney General determined that competition
between these three landfills kept the price charged for
disposal (i.e., tipping fees) to competitive levels. To address
the loss of competition that would occur if one company
controlled all three landfills, the Attorney General entered
into a consent decree that allowed Allied and Republic to merge,
but required the divestiture of the Potrero Hills Landfill. The
Potrero Hills Landfill is now owned by Waste Connections, Inc.
Attorney General Brown filed an amicus brief in the Measure E
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litigation explaining that if Measure E was enforced, the
Potrero Hills Landfill would only be able to accept a very
limited amount of out-of-county waste and the competitive
benefits of the divesture required by the Attorney General and
the U.S. Department of Justice will be lost. This bill will
maintain the benefits of the Attorney General's consent decree
by preventing the enforcement of Measure E.
Analysis Prepared by : Elizabeth MacMillan / NAT. RES. / (916)
319-2092
FN: 0005515