Amended in Assembly June 10, 2014

Amended in Senate May 27, 2014

Amended in Senate April 22, 2014

Senate Bill No. 1249

Introduced by Senator Hill

February 20, 2014

An act to add Sections 25150.9, 25150.9.1, and 25150.9.2 to the Health and Safety Code, relating to hazardous waste.

LEGISLATIVE COUNSEL’S DIGEST

SB 1249, as amended, Hill. Hazardous waste: shredder waste.

(1) The California Integrated Waste Management Act of 1989 requires materials that require special handling, as defined, to be removed from major appliances and vehicles in which they are contained before crushing for transport or transferring to a baler or shredder for recycling.

The hazardous waste control laws prohibit a person who is not a certified appliance recycler from removing materials that require special handling from major appliances and imposes specified requirements regarding transporting, delivering, or selling discarded major appliances to a scrap recycling facility. A violation of the hazardous waste control laws is a crime.

This bill would authorize, until January 1, 2017, the Department of Toxic Substances Control, in consultation with the Department of Resources Recycling and begin delete Recovery and end delete begin insert Recovery, end insert the State Water Resources Control Board, begin insert and affected local air quality management districts, end insert to adopt regulations establishing alternative management standards for a metal shredding facility begin delete , including activities conducted within the boundaries of a metal shredding facility, and for the generation, storage, transportation, and disposal of metal shredder residue and treated metal shredder residue, as defined, end delete begin insert for hazardous waste management activities within the jurisdiction of the Department of Toxic Substances Control, end insert that would apply in lieu of the hazardous waste management standards if the department performs specified actions. The bill would include among those department actions preparing a preliminary analysis and a final analysis evaluating the hazardous waste management activities to which the begin insert alternative end insert management standards would apply. The bill would require the department to provide notice that it proposes to adopt alternative management standards. The bill would prohibit the department from adopting begin insert alternative end insert management standards that are less stringent than applicable standards under federal law and would require begin delete metal shredder residue and end delete treated metal shredder begin delete residue end delete begin insert waste end insert to be disposed of in a specified manner. The bill would require the department to complete the analysis of the hazardous waste management activities and the subsequent regulatory action before January 1, 2017, and would make all hazardous waste determinations and policies, procedures, or guidance issued by the department before January 1, 2014, relating to metal shredder begin delete residue end delete begin insert waste end insert or treated metal shredder begin delete residue end delete begin insert waste end insert inoperative once the department has taken regulatory action. Because a violation of these requirements would be a crime, this bill would impose a state-mandated local program.

The bill would authorize the department to collect an annual fee from metal shredding facilities at a rate sufficient to cover the costs of the department to implement these provisions.

(2) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert The Legislature finds and declares all of the
following: end insert

begin insert

(a) Before 1984, all metal shredder waste was considered not
to be hazardous waste and was disposed of or used as alternative
daily cover in municipal solid waste landfills.

end insert begin insert

(b) In 1984, California deemed metal shredder waste as a
non-RCRA hazardous waste, or California hazardous waste, due
to the presence of lead, cadmium, copper, and zinc at levels above
the state’s regulatory thresholds, as well as polychlorinated
biphenyls in concentrations that, on some occasions, exceeded
either the federal or the California regulatory thresholds, or both.

end insert begin insert

(c) Between 1986 and 1992, the Toxic Substances Control
Division of the Department of Health Services, which was the
predecessor to the Department of Toxic Substances Control
(DTSC), issued conditional nonhazardous waste classifications,
also referred to as “f letters,” to seven shredder facilities in
California that treated their metal shredder waste to affix the
hazardous components into waste. Once a facility operator
received a nonhazardous waste classification, treated metal
shredder waste was no longer regulated as a hazardous waste at
the facility.

end insert begin insert

(d) In early 2001, DTSC began an initiative to evaluate the
adequacy of the metal shredder waste policy and compliance with
the conditional nonhazardous waste classifications, which included
new sampling and analysis. The report from that initiative
recommended rescinding the conditional nonhazardous waste
classifications. However, DTSC took no further action.

end insert begin insert

(e) In 2002, DTSC conducted an auto shredder initiative that
found that both treated and untreated shredder waste exceeded
state regulatory thresholds for lead, zinc, and cadmium. The report
recommended that the DTSC policy and procedure that allowed
the exemption for this waste be rescinded and that the waste stream
be regulated as hazardous waste. No action was taken at that time.

end insert begin insert

(f) In 2002, DTSC issued an “imminent and substantial
endangerment” order against Pacific Steel Inc., because of dust
that blew from contaminated piles of waste stored by Pacific Steel
Inc. out in the open. The contaminated piles, which contained
polychlorinated biphenyls and toxic metals such as lead, zinc, and
copper, polluted and threatened to pollute the air and water near
the facility. In 2011, DTSC issued a remedial action order against
Pacific Steel Inc. to clean up the site.

end insert begin insert

(g) In 2008, DTSC sent letters to operators of metal shredder
facilities expressing the department’s intention to repeal the
conditional authorization that allows metal shredder waste to be
classified as a nonhazardous waste. However, DTSC has not, to
date, rescinded the conditional waste classifications.

end insert begin insert

(h) In 2009, the California Integrated Waste Management
Board, now known as the Department of Resources Recycling and
Recovery, or CalRecycle, issued the “Alternative Daily Cover
White Paper.” The paper states that, “[s]taff with DTSC have
indicated that [metal shredder waste] treatment is not effective,
the material should be considered hazardous, and [metal shredder
waste] should be required to be disposed [of] in Class I landfills.
DTSC staff also indicates that [metal shredder waste] feedstocks
are variable and have changed in the last 20 years (more electronic
components, white goods, chlorinated plastics). Sampling is costly,
and it is difficult to obtain representative samples of [metal
shredder waste].”

end insert begin insert

(i) In 2011, DTSC settled an enforcement action against SA
Recycling, LLC, which is jointly owned by Sims Metal Management
Ltd. and Adams Steel LLC, for $2.9 million. The action alleged
that SA Recycling, LLC violated air pollution laws when an
explosion at its Port of Los Angeles metal shredding facility at
Terminal Island destroyed its air pollution control system in May
of 2007, and the company continued operating for weeks without
proper equipment. As a result, approximately 4.4 tons of toxic
particulate matter were released into the air, and migrated to bay
waters and the community of Wilmington, putting local residents
and the environment at risk.

end insert begin insert

(j) In January 2012, the Redwood City, California, metal
shredding location of Sims Metal Management was cited by the
United States Environmental Protection Agency for polluting the
San Francisco Bay. Inspectors found the company had unlawfully
discharged polychlorinated biphenyls, lead, copper, mercury, and
zinc into Redwood Creek, a tributary of San Francisco Bay. The
United States Environmental Protection Agency found
polychlorinated biphenyl at levels of 195 times of the accepted
levels and lead at levels of more than 10 times of the accepted
levels in sediment near where the shredding yard meets Redwood
Creek. This enforcement action was resolved in 2013.

end insert begin insert

(k) Additionally, there have been several fires in the last several
years at the Sims Metal Management Redwood City facility that
have caused the Bay Area Air Quality Management District to ask
residents to stay inside. Two fires occurred in November and
December of 2013, raising concerns about the proximity of this
facility to residents. In the fire in December of 2013, no one was
reported injured by the smoke or fire, which was limited to a debris
pile about 900 square feet in area and 30 feet tall, but the noxious
odor produced by the blaze was detected as far south as South San
Jose and across the San Francisco Bay in Oakland and Berkeley.

end insert

begin insert (l) end insert begin insert   end insert begin insert Sims Metal Management’s recycling facilities in Hayward
and San Francisco experienced fires in 2009 and 2010,
respectively, according to records from the Bay Area Air Quality
Management District. end insert

begin insert

(m) In 2011, the United States Fish and Wildlife Service
investigated Sims Metal Management for allowing fibrous
automobile shredder residue to blow or drift into wetlands around
Bair Island, 800 feet downwind from the Redwood City facility.

end insert begin insert

(n) DTSC has failed to revoke the nonhazardous waste
classifications for treated shredder waste granted decades ago to
the metal shredding industry despite a 2001 legal opinion by DTSC
attorneys, which called the exemption “outdated and legally
incorrect,” and warnings from the department’s scientists that
this waste could become hazardous during the shredding process.

end insert begin insert

(o) It is the intent of the Legislature that the conditional
nonhazardous waste classifications be revoked and that metal
shredding facilities be thoroughly regulated to ensure adequate
protection of the human health and the environment.

end insert

begin delete SECTION 1. end delete
begin insert SEC. 2. end insert   

Section 25150.9 is added to the Health and Safety
Code, to read:

25150.9.  

(a) The Legislature finds and declares that this section
is intended to address the unique circumstances associated with
the operation of metal shredding facilities, and the generation and
management of wastes generated by metal shredding facilities.
The Legislature further declares that this section does not set a
precedent applicable to the management, including disposal, of
other hazardous wastes.

(b) For purposes of this section, begin delete the following definitions shall
apply: end delete

begin delete

(1) “Metal shredder aggregate” means the combination of ferrous
metal, nonferrous metal, other recyclable materials, and
nonrecyclable materials that exits from a metal shredding facility.

(2) “Metal shredder residue” means the predominantly
nonmetallic material that remains after conducting physical
separation methods to separate any ferrous or nonferrous metals,
or any other recyclable materials, from the materials created by a
metal shredding facility. Metal shredder residue does not include
the ferrous and nonferrous metals and other recyclable materials
that have been removed from the metal shredder aggregate.

end delete

begin delete (3) end delete begin delete   end delete begin delete “Metal end delete begin insert “metal end insert shredding facility” means an operation that
uses a shredding technique to process end-of-life vehicles, waste
appliances, and other forms of scrap metal to facilitate the
separation and sorting of ferrous metals, nonferrous metals, and
other recyclable materials from nonrecyclable materials that are
components of the end-of-life vehicles, waste appliances, and other
forms of begin delete scrap end delete metal begin insert objects containing material to be discarded end insert .
“Metal shredding facility” does not include a feeder yard, a metal
crusher, or a metal baler.

begin delete

(4) “Scrap metal” includes ferrous metals, nonferrous metals,
aluminum scrap, other metals, and auto bodies, but does not include
aluminum cans, steel cans, or bimetal cans.

end delete begin delete

(5) “Treated metal shredder residue” means metal shredder
residue that has been chemically treated to alter its chemical
characteristics for purposes of rendering the metal shredder residue
less hazardous or nonhazardous for purposes of classifying the
waste in accordance with the criteria and guidelines adopted by
the department pursuant to Section 25141.

end delete

(c) The department, in consultation with the Department of
Resources Recycling and begin delete Recovery and end delete begin insert Recovery, end insert the State Water
Resources Control Board, begin insert and affected local air quality
management districts, end insert may adopt regulations establishing
management standards for metal shredding facilities begin delete and for the
generation, storage, transportation, and disposal of metal shredder
residue or treated metal shredder residue end delete begin insert end insert begin insert for hazardous waste
management activities within the department’s jurisdiction end insert as an
alternative to the requirements specified in this chapter and the
regulations adopted pursuant to this chapter, if the department does
all of the following:

(1) Prepares an analysis of the activities to which the begin insert alternative end insert
management standards will apply pursuant to subdivision (d). The
department shall first prepare the analysis as a preliminary analysis
and make it available to the public at the same time that the
department gives notice, pursuant to Section 11346.4 of the
Government Code, that it proposes to adopt the alternative
management standards. The department shall include in the notice
a statement that the department has prepared a preliminary analysis
and a statement concerning where a copy of the preliminary
analysis can be obtained. The information in the preliminary
analysis shall be updated and the department shall make the
analysis available to the public as a final analysis not less than 10
working days before the date that the regulation is adopted.

(2) Demonstrates at least one of the conclusions set forth in
paragraphs (1) to (4), inclusive, of subdivision (e).

(3) Imposes, as may be necessary, conditions and limitations
as part of the begin insert alternative end insert management standards that ensure that
the hazardous waste management activity to which the begin insert alternative end insert
management standards will apply will not pose a significant
potential hazard to human health or safety or to the environment.

(d) Before the department gives notice of a proposal to adopt
the begin insert alternative end insert management standards pursuant to subdivision (c),
and before the department adopts the regulation, the department
shall begin insert evaluate the operative environmental and public health
regulatory oversight of metal shredding facilities, identifying
activities that need to be addressed by the alternative management
standards, or other advisable regulatory or statutory changes, and
shall end insert evaluate the hazardous waste management activities and
prepare, as required by paragraph (1) of subdivision (c), an analysis
that addresses all of the following aspects of the activity, to the
extent that the begin insert alternative end insert management standards can affect these
aspects of the activity:

(1) The types of hazardous waste and the estimated amounts of
each hazardous waste that are managed as part of the activity and
the hazards to human health or safety or to the environment posed
by reasonably foreseeable mismanagement of those hazardous
wastes and their hazardous constituents. The estimate of the
amounts of each hazardous waste that are managed as part of the
activity shall be based upon information reasonably available to
the department.

(2) The complexity of the activity, and the amount and
complexity of operator training, equipment installation and
maintenance, and monitoring that are required to ensure that the
activity is conducted in a manner that safely and effectively
manages each hazardous waste.

(3) The chemical or physical hazards that are associated with
the activity and the degree to which those hazards are similar to,
or different from, the chemical or physical hazards that are
associated with the production processes that are carried out in the
facilities that produce the hazardous waste that is managed as part
of the activity.

(4) The types of accidents that might reasonably be foreseen to
occur during the management of particular types of hazardous
waste streams as part of the activity, the likely consequences of
those accidents, and the reasonably available actual accident history
associated with the activity.

(5) The types of locations where the activity may be carried out,
an estimate of the number of these locations, and the types of
hazards that may be posed by proximity to the land uses described
in Section 25227. The estimate of the number of locations where
the activity may be carried out shall be based upon information
reasonably available to the department.

(e) The department shall not give notice proposing the adoption
of, and the department shall not adopt, a regulation pursuant to
subdivision (c) unless it first demonstrates at least one of the
following, begin insert for each requirement that the alternative management
standards are intended to replace, end insert using the information developed
in the analysis prepared pursuant to subdivision (d):

(1) The requirements that the begin insert alternative end insert management standards
replace are not significant or important in either of the following
situations:

(A) Preventing or mitigating potential hazards to human health
or safety or to the environment posed by the activity.

(B) Ensuring that the activity is conducted in compliance with
other applicable requirements of this chapter and the regulations
adopted pursuant to this chapter.

(2) A requirement is imposed and enforced by another public
agency that provides protection of human health and safety and
the environment that is as effective as, and equivalent to, the
protection provided by the requirement, or requirements, that the
begin insert alternative end insert management standards replace.

(3) Conditions or limitations imposed as part of the begin insert alternative end insert
management standards will provide protection of human health
and safety and the environment equivalent to the requirement, or
requirements, that the begin insert alternative end insert management standards replace.

(4) Conditions or limitations imposed as part of the begin insert alternative end insert
management standards accomplish the same regulatory purpose
as the requirement, or requirements, that the begin insert alternative end insert
management standards replace, but at less cost or with greater
administrative convenience, and without increasing potential risks
to human health or safety or to the environment.

(f) The department shall not adopt begin insert alternative end insert management
standards pursuant to this section if those standards are less
stringent than the standards that would otherwise apply under the
federal act.

(g)  begin delete The management standards adopted by the department
pursuant to this section shall establish requirements that apply not
only to the generation, management, and disposal of metal shredder
residue or treated metal shredder residue, but shall apply to all
activities being conducted within the boundaries of any metal
shredding facility. end delete Nothing in begin delete this subdivision end delete begin insert the alternative
management standards authorized by this section end insert is intended to
duplicate or conflict with other laws, rules, or regulations adopted
by other state agencies begin insert or affected local air quality management
districts end insert . The department shall, as much as possible, align the
begin insert alternative end insert management standards with the laws, rules, and
regulations of other state agencies begin insert or affected local air quality
management districts end insert .

begin insert

(h) The owner or operator of a metal shredding facility that
may be subject to the alternative management standards shall
provide to the department all information and data determined by
the department to be relevant to the evaluation and preparation
of the analysis required by paragraphs (1) to (5), inclusive, of
subdivision (d).

end insert begin delete

(h)

end delete

begin insert (i) end insert  The begin insert alternative end insert management standards adopted by the
department pursuant to this section may, to the extent it is
consistent with the standards that would otherwise apply under
the federal act, allow for begin delete metal shredder residue or end delete treated metal
shredder begin delete residue end delete begin insert waste end insert to be classified and managed as
nonhazardous waste, provided that the analysis prepared pursuant
to subdivision (d) demonstrates that classification and management
as hazardous waste is not necessary to prevent or mitigate potential
hazards to human health or safety or to the environment posed by
the begin delete metal shredder residue or end delete treated metal shredder begin delete residue end delete begin insert waste end insert .

begin delete

(i)

end delete

begin insert (j) end insert  (1) Notwithstanding Sections 25189.5 and 25201, begin delete metal
shredder residue or end delete treated metal shredder begin delete residue end delete begin insert waste end insert shall be
disposed of in either a class I hazardous waste landfill or, if the
management standards adopted by the department pursuant to this
section result in it being classified as a nonhazardous waste, begin delete in a
composite-lined portion of a solid waste landfill unit that meets
all requirements applicable to the disposal of municipal solid waste
in California after October 9, 1993, and that is regulated by waste
discharge requirements issued pursuant to Division 7 (commencing
with Section 13000) of the Water Code for discharges of designated
waste, as defined in Section 13173 of the Water Code, or metal
shredder residue or treated metal shredder residue end delete begin insert as specified by
the alternative management standards end insert .

(2) If the begin insert alternative end insert management standards adopted by the
department pursuant to this section result in begin delete metal shredder residue
or end delete treated metal shredder begin delete residue end delete begin insert waste end insert being classified as
nonhazardous waste begin insert and deem it appropriate end insert , the material may be
used as alternative daily cover or for beneficial reuse pursuant to
Section 41781.3 of the Public Resources Code and its implementing
regulations.

begin insert

(3) Upon the department’s final regulatory action required in
regard to the consideration of alternative management standards
pursuant to this section, the current disposal and beneficial use
practices determinations allowed pursuant to the hazardous waste
determinations issued by the department before January 1, 2014,
shall cease to apply.

end insert begin delete

(j)

end delete

begin insert (k) end insert  The department shall complete the analysis described in
paragraph (1) of subdivision (c) and subsequent regulatory action
before January 1, 2017. All hazardous waste determinations and
policies, procedures, or guidance issued by the department before
January 1, 2014, governing or related to the generation, treatment,
and management of metal shredder begin delete residue end delete begin insert waste end insert or treated metal
shredder begin delete residue end delete begin insert waste end insert shall be inoperative and have no further
effect once the department has taken begin insert the required end insert regulatory action.

begin delete

(k)

end delete

begin insert (l) end insert  The authority of the department to adopt original regulations
pursuant to this section shall remain in effect only until January
1, 2017, unless a later enacted statute, which is enacted before
January 1, 2017, deletes or extends that date. This subdivision does
not invalidate any regulation adopted pursuant to this section before
the expiration of the department’s authority.

begin delete

(l)

end delete

begin insert (m) end insert  A regulation adopted pursuant to this section on or before
January 1, 2017, shall continue in force and effect after that date,
until repealed or revised by the department.

begin delete SEC. 2. end delete
begin insert SEC. 3. end insert   

Section 25150.9.1 is added to the Health and Safety
Code, to read:

25150.9.1.  

The department is authorized to collect an annual
fee from all metal shredding facilities that are subject to the
requirements of this chapter or to the begin insert alternative end insert management
standards adopted pursuant to Section 25150.9. The department
shall establish and adopt by regulation a fee schedule that is set at
a rate sufficient to reimburse the department’s costs to implement
this chapter begin insert as applicable to metal shredder facilities end insert . The fee
schedule established by the department may be updated periodically
as necessary and shall provide for the assessment of no more than
the reasonable costs of the department to implement this chapter.

begin delete SEC. 3. end delete
begin insert SEC. 4. end insert   

Section 25150.9.2 is added to the Health and Safety
Code, to read:

25150.9.2.  

If begin delete metal shredder residue or end delete treated metal shredder
begin delete residue end delete begin insert waste end insert is accepted by a solid waste landfill that manages
and disposes of the begin delete metal shredder residue or end delete treated metal shredder
begin delete residue end delete begin insert waste end insert in accordance with the begin insert alternative end insert management
standards adopted by the department pursuant to Section 25150.9,
the begin delete metal shredder residue or end delete treated metal shredder begin delete residue end delete begin insert waste end insert ,
upon acceptance by the solid waste landfill, shall thereafter be
deemed to be a solid waste, and not a hazardous waste, for purposes
of this chapter and Section 40191 of the Public Resources Code.

begin delete SEC. 4. end delete
begin insert SEC. 5. end insert   

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.