Amended  IN  Senate  June 27, 2018
Amended  IN  Senate  June 11, 2018
Amended  IN  Assembly  April 30, 2018
Amended  IN  Assembly  April 16, 2018
Amended  IN  Assembly  March 19, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 3178

Introduced by Assembly Member Rubio

February 16, 2018

An act to amend Section 41825 of, and to add Section 41780.02 to, of the Public Resources Code, relating to solid waste.


LEGISLATIVE COUNSEL'S DIGEST


AB 3178, as amended, Rubio. Integrated waste management plans: source reduction and recycling element: diversion requirements.
The California Integrated Waste Management Act of 1989, which is administered by the Department of Resources Recycling and Recovery, establishes an integrated waste management program. Existing law requires each city, county, and regional agency, if any, to develop a source reduction and recycling element of an integrated waste management plan. The act requires the source reduction and recycling element to divert from disposal 50% of all solid waste subject to the element through source reduction, recycling, and composting activities, with specified exceptions.
Existing law requires a city, county, or regional agency to submit an annual report to the department summarizing its progress in reducing solid waste. Existing law requires the department to review a jurisdiction’s compliance with the diversion requirements every 2 or 4 years, as specified, and authorizes the department to issue an order of compliance if the department finds, after considering specified factors, the jurisdiction failed to make a good faith effort to implement its source reduction and recycling element.
This bill would make findings, including, among others, that under China’s National Sword import policy, many recyclable materials are now banned and may no longer be imported into that country, which has had a profound impact on California efforts to meet state recycling objectives. The bill would require the department, when evaluating a jurisdiction’s good faith effort to implement a diversion program, to also consider consider, until January 1, 2022, whether China’s National Sword import policy caused the absence or loss of a market for recyclable materials that necessitated the disposal of those materials as a temporary measure to avoid a public health threat, as specified. The bill would also require the department to consider the extent to which the jurisdiction has made efforts to reduce contamination and improve the quality of recycled materials and the extent to which the lack of an available market for one or more types of recyclable materials, which prevented the jurisdiction from fully implementing its diversion programs, was the result of circumstances beyond the reasonable control of the jurisdiction.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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


SECTION 1.Section 41780.02 is added to the Public Resources Code, to read:
41780.02.

The Legislature finds and declares all of the following:

(a)The existence of sustainable and resilient markets able to receive material that has been separated and processed for reuse is essential to any successful recycling or composting system.

(b)Since the inception of the California Integrated Waste Management Act of 1989, California has relied almost exclusively on foreign markets to accept most of the recyclable materials that are recovered in the state. Domestic markets for these materials have not emerged. The department reports that more than 60 percent of California’s recyclable materials were exported to China in 2016.

(c)The need to develop reliable domestic markets for recyclable materials is now more acute than ever before. The National Sword import policy implemented by China in 2018 has had a profound impact on California efforts, and on the efforts of other states, to meet applicable state recycling objectives.

(d)Under China’s new policy, many recyclable materials are now banned and may no longer be imported into that country. Other recyclable materials are now required, as a condition of importation into China, to meet strict new contamination limits that, in certain cases, may be unachievable.

(e)As of the effective date of this section, the network of recycling facilities that was developed to meet California’s waste diversion requirements is being overwhelmed. These facilities are unable to move and market all of the processed recyclables they receive. Most have resorted to stockpiling recyclable materials as they seek to identify alternatives. Many are about to reach their storage capacity.

(f)The state must assert a leadership role and take the steps necessary to reduce its traditional reliance on volatile foreign markets for its recyclable materials. In the interim, it must also consider the potential public health risk associated with recyclable material storage that exceeds the design or permitted capacity of a recycling facility.

SECTION 1.

 The Legislature finds and declares all of the following:
(a) The existence of sustainable and resilient markets able to receive material that has been separated and processed for reuse is essential to any successful recycling or composting system.
(b) Since the inception of the California Integrated Waste Management Act of 1989, California has relied almost exclusively on foreign markets to accept most of the recyclable materials that are recovered in the state. Domestic markets for these materials have not emerged. The department reports that more than 60 percent of California’s recyclable materials were exported to China in 2016.
(c) The need to develop reliable domestic markets for recyclable materials is now more acute than ever before. The National Sword import policy implemented by China in 2018 has had a profound impact on California efforts, and on the efforts of other states, to meet applicable state recycling objectives.
(d) Under China’s new policy, many recyclable materials are now banned and may no longer be imported into that country. Other recyclable materials that are not banned are now required, as a condition of importation into China, to meet strict new contamination limits that, in certain cases, may be unachievable.
(e) As of the effective date of this section, the network of recycling facilities that was developed to meet California’s waste diversion requirements is being overwhelmed. These facilities are unable to move and market all of the processed recyclables they receive. Most have resorted to stockpiling recyclable materials as they seek to identify alternatives. Many are about to reach their storage capacity.
(f) The state must assert a leadership role and take the steps necessary to reduce its traditional reliance on volatile foreign markets for its recyclable materials. In the interim, it must also consider the potential public health risk associated with recyclable material storage that exceeds the design or permitted capacity of a recycling facility.

SEC. 2.

 Section 41825 of the Public Resources Code, as amended by Section 1 of Chapter 155 of the Statutes of 2017, is amended to read:

41825.
 (a) Using the information in the report submitted to the department by the jurisdiction pursuant to Section 41821 and any other relevant information, the department shall make a finding whether each jurisdiction was in compliance with Section 41780 for calendar year 2006 and shall review a jurisdiction’s compliance with Section 41780 in accordance with the following schedule:
(1) If the department makes a finding that the jurisdiction was in compliance with Section 41780 for calendar year 2006, the department shall review, commencing January 1, 2012, and at least once every four years thereafter, whether the jurisdiction has implemented its source reduction and recycling element and household hazardous waste element.
(2) If the department makes a finding that the jurisdiction made a good faith effort to implement its source reduction and recycling element and household hazardous waste element, the department shall review, commencing January 1, 2010, and at least once every two years thereafter, whether the jurisdiction has implemented its source reduction and recycling element and household hazardous waste element.
(3) If the department makes a finding that the jurisdiction was not in compliance with Section 41780 for calendar year 2006 or for any subsequent calendar year, the department shall review, commencing January 1, 2010, and at least once every two years thereafter, whether the jurisdiction has implemented its source reduction and recycling element and household hazardous waste element.
(4) If, after determining that a jurisdiction is subject to paragraph (2), or, if, after determining that a jurisdiction is not in compliance with Section 41780 and is subject to paragraph (3), the department subsequently determines that the jurisdiction has come into compliance with Section 41780, the department shall review, at least once every four years, whether the jurisdiction has implemented its source reduction and recycling element and household hazardous waste element in the same manner as a jurisdiction that is subject to paragraph (1).
(5) If, after determining that a jurisdiction is in compliance with Section 41780 and is subject to paragraph (1), the department subsequently determines that the jurisdiction is not in compliance with Section 41780, the department shall review, at least once every two years, whether the jurisdiction has implemented its source reduction and recycling element and household hazardous waste element in the same manner as a jurisdiction that is subject to paragraph (2) or (3).
(b) In addition to the requirements of subdivision (a), the department may review whether a jurisdiction is in compliance with Section 41780 in accordance with the requirements of this section at any time that the department receives information that indicates the jurisdiction may not be making a good faith effort to implement its source reduction and recycling element and household hazardous waste element.
(c) (1) Before issuing a compliance order pursuant to subdivision (d), the department shall confer with the jurisdiction regarding conditions relating to the proposed order of compliance, with a first meeting occurring not less than 60 days before issuing a notice of intent to issue an order of compliance.
(2) The department shall issue a notice of intent to issue an order of compliance not less than 30 days before the department holds a hearing to issue the notice of compliance. The notice of intent shall specify all of the following:
(A) The proposed basis for issuing an order of compliance.
(B) The proposed actions the department recommends are necessary for the jurisdiction to complete to implement its source reduction and recycling element or household hazardous waste element.
(C) The proposed recommendations to the department.
(3) The department shall consider any information provided pursuant to subdivision (c) of Section 41821 if the proposed issuance of an order of compliance involves changes to a jurisdiction’s calculation of annual disposal.
(d) (1) If, after holding a public hearing, which, to the extent possible, shall be held in the local or regional agency’s jurisdiction, the department finds that a jurisdiction has failed to make a good faith effort to implement its source reduction and recycling element or its household hazardous waste element, the department shall issue an order of compliance with a specific schedule for achieving compliance.
(2) The compliance order shall include those conditions that the department determines to be necessary for the jurisdiction to implement its diversion programs.
(3) In addition to considering the good faith efforts of a jurisdiction, as specified in subdivision (e), to implement a diversion program, the department shall consider all of the following factors in determining whether or not to issue a compliance order:
(A) Whether an exceptional growth rate may have affected compliance.
(B) Whether China’s National Sword import policy caused the absence or loss of a market for recyclable materials diverted from solid waste facilities that necessitated the disposal of those materials as a temporary measure to avoid a public health threat associated with storing recyclable materials in amounts that exceed the permitted or design capacity of a solid waste facility.
(C) Other information that the jurisdiction may provide that indicates the effectiveness of the jurisdiction’s programs, such as disposal characterization studies or other jurisdiction specific information.
(e) For purposes of making a determination pursuant to this section whether a jurisdiction has failed to make a good faith effort to implement its source reduction and recycling element or its household hazardous waste element, the department shall consider all of the following criteria:
(1) For the purposes of this section, “good faith effort” means all reasonable and feasible efforts by a jurisdiction to implement those programs or activities identified in its source reduction and recycling element or household hazardous waste element, or alternative programs or activities that achieve the same or similar results.
(2) For purposes of this section, “good faith effort” may also include the evaluation by a jurisdiction of improved technology for the handling and management of solid waste that would reduce costs, improve efficiency in the collection, processing, or marketing of recyclable materials or yard waste, and enhance the ability of the jurisdiction to adequately address all sources of significant disposal, the submission by the jurisdiction of a compliance schedule, and the undertaking of all other reasonable and feasible efforts to implement the programs identified in the jurisdiction’s source reduction and recycling element or household hazardous waste element.
(3) In determining whether a jurisdiction has made a good faith effort, the department shall consider the enforcement criteria included in its enforcement policy, as adopted on April 25, 1995, or as subsequently amended.
(4) The department shall consider all of the following when considering whether a jurisdiction has made a good faith effort to implement its source reduction and recycling element or its household hazardous waste element:
(A) Natural disasters.
(B) Budgetary conditions within a jurisdiction that could not be remedied by the imposition or adjustment of solid waste fees.
(C) Work stoppages that directly prevent a jurisdiction from implementing its source reduction and recycling element or household hazardous waste element.
(D) The impact of the failure of federal, state, and other local agencies located within the jurisdiction to implement source reduction and recycling programs in the jurisdiction.
(E) The extent to which the jurisdiction has implemented additional source reduction, recycling, and composting activities.
(F) The extent to which the jurisdiction has made program implementation choices driven by considerations related to other environmental issues, including climate change.
(G) The extent to which the jurisdiction has made efforts to reduce contamination and improve the quality of recycled materials.
(H) Whether the jurisdiction has provided information to the department concerning whether construction and demolition waste material is at least a moderately significant portion of the waste stream, and, if so, whether the local jurisdiction has adopted an ordinance for diversion of construction and demolition waste materials from solid waste disposal facilities, has adopted a model ordinance pursuant to subdivision (a) of Section 42912 for diversion of construction and demolition waste materials from solid waste disposal facilities, or has implemented another program to encourage or require diversion of construction and demolition waste materials from solid waste disposal facilities.
(I) The extent to which the jurisdiction has implemented programs to comply with Section 41780 and to maintain its per capita disposal rate.
(J) The extent to which the lack of an available market for one or more types of recyclable materials is the result of circumstances beyond the reasonable control of the jurisdiction, and prevented the jurisdiction from fully implementing its diversion programs.
(5) In making a determination whether a jurisdiction has made a good faith effort, pursuant to this section, the department may consider a jurisdiction’s per capita disposal rate as a factor in determining whether the jurisdiction adequately implemented its diversion programs. The department shall not consider a jurisdiction’s per capita disposal rate to be determinative as to whether the jurisdiction has made a good faith effort to implement its source reduction and recycling element or its household hazardous waste element.
(f) This section shall remain in effect only until January 1, 2022, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2022, deletes or extends that date.

SEC. 3.

 Section 41825 of the Public Resources Code, as amended by Section 2 of Chapter 155 of the Statutes of 2017, is amended to read:

41825.
 (a) At least once every two years, the department shall review each jurisdiction’s source reduction and recycling element and household hazardous waste element for compliance with Section 41780.
(b) In addition to the requirements of subdivision (a), the department may review whether a jurisdiction is in compliance with Section 41780 in accordance with the requirements of this section at any time that the department receives information that indicates the jurisdiction may not be making a good faith effort to implement its source reduction and recycling element and household hazardous waste element.
(c) (1) Before issuing a compliance order pursuant to subdivision (d), the department shall confer with the jurisdiction regarding conditions relating to the proposed order of compliance, with a first meeting occurring not less than 60 days before issuing a notice of intent to issue an order of compliance.
(2) The department shall issue a notice of intent to issue an order of compliance not less than 30 days before the department holds a hearing to issue the notice of compliance. The notice of intent shall specify all of the following:
(A) The proposed basis for issuing an order of compliance.
(B) The proposed actions the department recommends are necessary for the jurisdiction to complete the implementation of its source reduction and recycling element or household hazardous waste element.
(C) The proposed recommendations to the department.
(3) The department shall consider any information provided pursuant to subdivision (c) of Section 41821, if the proposed issuance of an order of compliance involves changes to a jurisdiction’s calculation of annual disposal.
(d) (1) If, after holding a public hearing, which, to the extent possible, shall be held in the local or regional agency’s jurisdiction, the department finds that a jurisdiction has failed to make a good faith effort to implement its source reduction and recycling element or its household hazardous waste element, the department shall issue an order of compliance with a specific schedule for achieving compliance.
(2) The compliance order shall include those conditions that the department determines to be necessary for the jurisdiction to implement its diversion programs.
(3) In addition to considering the good faith efforts of a jurisdiction, as specified in subdivision (e), to implement a diversion program, the department shall consider all both of the following factors in determining whether or not to issue a compliance order:
(A) Whether an exceptional growth rate may have affected compliance.

(B)Whether China’s National Sword import policy caused the absence or loss of a market for recyclable materials diverted from solid waste facilities that necessitated the disposal of those materials as a temporary measure to avoid a public health threat associated with storing recyclable materials in amounts that exceed the permitted or design capacity of a solid waste facility.

(C)

(B) Other information that the jurisdiction may provide that indicates the effectiveness of the jurisdiction’s programs, such as disposal characterization studies or other jurisdiction specific information.
(e) For purposes of making a determination pursuant to this section as to whether a jurisdiction has failed to make a good faith effort to implement its source reduction and recycling element or its household hazardous waste element, the department shall consider all of the following criteria:
(1) For the purposes of this section, “good faith effort” means all reasonable and feasible efforts by a jurisdiction to implement those programs or activities identified in its source reduction and recycling element or household hazardous waste element, or alternative programs or activities that achieve the same or similar results.
(2) For purposes of this section, “good faith effort” may also include the evaluation by a jurisdiction of improved technology for the handling and management of solid waste that would reduce costs, improve efficiency in the collection, processing, or marketing of recyclable materials or yard waste, and enhance the ability of the jurisdiction to adequately address all sources of significant disposal, the submission by the jurisdiction of a compliance schedule, and the undertaking of all other reasonable and feasible efforts to implement the programs identified in the jurisdiction’s source reduction and recycling element or household hazardous waste element.
(3) In determining whether a jurisdiction has made a good faith effort, the department shall also consider the enforcement criteria included in its enforcement policy, as adopted on April 25, 1995, or as subsequently amended.
(4) The department shall consider all of the following when considering whether a jurisdiction has made a good faith effort to implement its source reduction and recycling element or its household hazardous waste element:
(A) Natural disasters.
(B) Budgetary conditions within a jurisdiction that could not be remedied by the imposition or adjustment of solid waste fees.
(C) Work stoppages that directly prevent a jurisdiction from implementing its source reduction and recycling element or household hazardous waste element.
(D) The impact of the failure of federal, state, and other local agencies located within the jurisdiction to implement source reduction and recycling programs in the jurisdiction.
(E) The extent to which the jurisdiction has implemented additional source reduction, recycling, and composting activities.
(F) The extent to which the jurisdiction has made program implementation choices driven by considerations related to other environmental issues, including climate change.
(G) The extent to which the jurisdiction has made efforts to reduce contamination and improve the quality of recycled materials.
(H) Whether the jurisdiction has provided information to the department concerning whether construction and demolition waste material is at least a moderately significant portion of the waste stream, and, if so, whether the local jurisdiction has adopted an ordinance for diversion of construction and demolition waste materials from solid waste disposal facilities, has adopted a model ordinance pursuant to subdivision (a) of Section 42912 for diversion of construction and demolition waste materials from solid waste disposal facilities, or has implemented another program to encourage or require diversion of construction and demolition waste materials from solid waste disposal facilities.
(I) The extent to which the jurisdiction has implemented programs to comply with Section 41780 and to maintain its per capita disposal rate.
(J) The extent to which the lack of an available market for one or more types of recyclable materials is the result of circumstances beyond the reasonable control of the jurisdiction, and prevented the jurisdiction from fully implementing its diversion programs.
(5) In making a determination whether a jurisdiction has made a good faith effort, pursuant to this section, the department may consider a jurisdiction’s per capita disposal rate as a factor in determining whether the jurisdiction adequately implemented its diversion programs. The department shall not consider a jurisdiction’s per capita disposal rate to be determinative as to whether the jurisdiction has made a good faith effort to implement its source reduction and recycling element or its household hazardous waste element.
(f) This section shall become operative on January 1, 2022.