BILL ANALYSIS �
AB 1178
Page 1
ASSEMBLY THIRD READING
AB 1178 (Ma)
As Amended May 10, 2011
Majority vote
NATURAL RESOURCES 5-3 APPROPRIATIONS 15-0
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|Ayes:|Chesbro, Brownley, |Ayes:|Fuentes, Blumenfield, |
| |Dickinson, Monning, | |Bradford, Charles |
| |Skinner | |Calderon, Campos, Davis, |
| | | |Donnelly, Gatto, Hall, |
| | | |Hill, Lara, Mitchell, |
| | | |Smyth, Solorio, Wagner |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Grove, Halderman, Huffman | | |
| | | | |
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SUMMARY : Prohibits a local government from restricting or
limiting in any way the importation of solid waste based on the
place of origin. Specifically, this bill :
1)Prohibits a city or county from restricting or limiting in any
way the importation of solid waste based on the place of
origin.
2)Protects a publicly owned solid waste facility's ability to
limit or restrict its acceptance of solid waste from outside
the jurisdiction.
3)Protects a privately owned or operated solid waste facility's
ability to refuse solid waste from outside the city or county
where the facility is located.
4)Protects a city or county's authority to exercise its land use
authority, including making a zoning, permitting, or other
land use determination.
EXISTING LAW : Under the California Integrated Waste Management
Act of 1989 (Act) (Public Resources Code Section 40000 et.
seq.):
1)Declares that it is in the public interest for the state to
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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.
3)Defines "solid waste" as solid, semisolid, and liquid waste,
including garbage, trash, refuse, paper, rubbish, ashes,
industrial wastes, demolition and construction wastes,
abandoned vehicles and parts thereof, discarded home and
industrial appliances, dewatered, treated, or chemically fixed
sewage sludge that is not hazardous waste, manure, vegetable
or animal solid and semisolid wastes, and other discarded
solid and semisolid wastes.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, negligible state costs, if any.
COMMENTS :
Waste management is a state and regional issue . Prior to 1989,
the state did not have a coherent policy to ensure that its
solid waste was managed in an effective and environmentally
sound manner. Over 90% of the state's solid waste was disposed
into landfills, some of which posed a threat to groundwater, air
quality, and public health. In 1989, the Legislature passed the
Act acknowledging that there was an urgent need for state and
local agencies to enact and implement an aggressive new
integrated waste management program.
As part of the Act, the Legislature declared that "it is in the
public interest for the state?�to] require local agencies to
make adequate provisions for solid waste handling, both within
their respective jurisdictions and in response to regional
needs" (emphasis added).
Measure E and Potrero Hills . The bill is 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
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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 at facilities
like the Potrero Hills Landfill.
The Potrero Hills Landfill in Solano County 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 contains 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.
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
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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%, and 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 its
solid waste management. These counties would have to find
alternative ways to manage their solid waste that would
otherwise go to the Potrero Hills Landfill.
The 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.
Anti-Trust issues . 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.
Moreover, 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
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.
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Analysis Prepared by : Mario DeBernardo / NAT. RES. / (916)
319-2092
FN: 0000757