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SB-71 Solid waste: disposal.(2017-2018)

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Date Published: 08/06/2018 02:00 PM
SB71:v91#DOCUMENT

Amended  IN  Assembly  August 06, 2018
Amended  IN  Assembly  June 27, 2018
Amended  IN  Assembly  February 26, 2018
Amended  IN  Senate  May 26, 2017
Amended  IN  Senate  May 16, 2017
Amended  IN  Senate  May 02, 2017
Amended  IN  Senate  April 18, 2017
Amended  IN  Senate  March 01, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Senate Bill No. 71


Introduced by Senator Wiener

January 09, 2017


An act to amend Sections 41953 and 41956 of, to amend and renumber Sections 40059.2 and 40059.3 of, and to amend, renumber, add, and repeal Section 40059.1 of, the Public Resources Code, relating to solid waste.


LEGISLATIVE COUNSEL'S DIGEST


SB 71, as amended, Wiener. Solid waste: disposal.
The California Integrated Waste Management Act of 1989, administered by the Department of Resources Recycling and Recovery, generally regulates the disposal, management, and recycling of solid waste. The act authorizes each county, city, district, or other local governmental agency to determine whether aspects of solid waste handling services are to be provided by franchise, contract, license, permit, or other authorization. The act prohibits a person, other than an authorized recycling agent, from removing specified materials that have been segregated from solid waste materials and placed at a designated recycling collection location for residential curbside collection programs authorized by a city, county, or local agency for the purposes of collection and recycling or at a designated recycling collection location by any commercial or industrial entity. Existing law authorizes a court, in a civil action by a recycling agent against a person alleged to have violated these laws, to either allow treble damages or award a civil penalty, as specified, against the unauthorized person removing the recyclable material, and to allow treble damages or award a higher civil penalty, as specified, against a person for a second violation and subsequent violations.
This bill, until January 1, 2022, bill would require a court to award to a prevailing party reasonable attorney’s fees, expert witness fees, and other costs incurred in a civil action brought to enforce a franchise, contract, license, permit, or other authorization for solid waste handling services in an amount the court deems appropriate, but would prohibit the court from awarding those fees and costs under specified circumstances. The bill would expand civil enforcement to knowing and willful participation in the unauthorized removal of the segregated recyclable material, would explicitly authorize a local governmental agency to bring an enforcement action, and would require a court to award to the prevailing party reasonable attorney’s fees, expert witness fees, and costs incurred in the course of the litigation, except as specified. The bill would require a plaintiff, in order for a court to award to a prevailing party those costs and fees, to first notify and request approval to proceed from the relevant local agency. The bill would require the local agency to post all notices and approval requests it receives on the local agency’s Internet Web site, as specified. By imposing additional duties on local agencies, the bill would impose a state-mandated local program. The bill would require a person seeking costs and fees in accordance with that provision to notify the department, and would require the department to report to the Legislature the total number and dispositions of actions filed in accordance with that provision for the previous calendar year. The bill would repeal these provisions as of January 1, 2022.
The act prohibits a person, other than an authorized recycling agent, from removing specified materials that have been segregated from solid waste materials and placed at a designated recycling collection location for residential curbside collection programs authorized by a city, county, or local agency for the purposes of collection and recycling or at a designated recycling collection location by any commercial or industrial entity. Existing law authorizes a court, in a civil action by a recycling agent against a person alleged to have violated these laws, to either allow treble damages or award a civil penalty, as specified, against the unauthorized person removing the recyclable material, and to allow treble damages or award a higher civil penalty, as specified, against a person for a second violation and subsequent violations.
This bill would expand this civil enforcement to apply to knowing and willful participation in the unauthorized removal of the segregated recyclable material, would explicitly authorize a local governmental agency to bring an enforcement action, and would require a court to award to the prevailing party reasonable attorney’s fees, expert witness fees, and costs incurred in the course of the litigation, except as specified.
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, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NOYES   Local Program: NOYES  

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


SECTION 1.

 Section 40059.1 of the Public Resources Code is amended and renumbered to read:

40059.2.
 (a) The Legislature hereby finds and declares both of the following:
(1) In 1989, the Legislature enacted this division as the California Integrated Waste Management Act of 1989. One of the key provisions of this division is that each local agency has the responsibility for diverting 50 percent of all solid waste generated within the local agency by January 1, 2000.
(2) The public policy objective of the Legislature in enacting this section is to ensure that those local agencies that require an indemnity obligation retain their responsibility for implementing the diversion requirements of this division.
(b) For the purposes of this section, the following terms have the following meanings:
(1) “Indemnity obligation” means any indemnity obligation directly or indirectly related to the failure of a local agency to meet the solid waste diversion requirements imposed by Chapter 6 (commencing with Section 41780) of Part 2, that is expressly assumed by, or imposed upon, the solid waste enterprise, whether pursuant to ordinance, contract, franchise, license, permit, or other entitlement or right, for the benefit of the local agency.
(2) “Local agency” means any county, city, city and county, district, regional agency as defined in Section 40181, or other local government agency.
(c) Any provision, term, condition, or requirement contained in any ordinance, contract, franchise, license, permit, or other entitlement or right adopted, entered into, issued, or granted, as the case may be, by a local agency for solid waste collection and handling, including the recycling, processing, or composting of solid waste, or in any request for bids or proposals in connection with any such contract or franchise, that authorizes or requires the imposition of an indemnity obligation, shall, notwithstanding any such provision, term, condition, or requirement, be subject to all of the following restrictions:
(1) An indemnity obligation shall not be enforceable if the department imposed penalty is based solely upon the failure of the local agency to establish and maintain a source reduction and recycling element pursuant to Chapter 2 (commencing with Section 41000) of Part 2, Chapter 3 (commencing with Section 41300) of Part 2, or Section 41750.1, as the case may be.
(2) Any department imposed penalty based upon a local agency’s failure to meet the solid waste diversion requirements imposed by Chapter 6 (commencing with Section 41780) of Part 2, resulting in whole or in part from the solid waste enterprise’s breach of contract or noncompliance with any other authorization, shall be apportioned in accordance with the percentage of fault of the local agency and the solid waste enterprise.
(3) For purposes of this section, a solid waste enterprise is not liable for the indemnity obligation to the extent that the solid waste enterprise’s breach or noncompliance resulted from the action or failure to act of the local agency.
(4) No payment required or imposed pursuant to an indemnity obligation, whether required or imposed by ordinance, contract, franchise, license, permit, or other entitlement or right, may exceed that portion of any penalty assessed by the department against the local agency that was caused by the solid waste enterprise’s breach or noncompliance of an express obligation or requirement.
(5) No indemnity obligation shall be enforceable against a solid waste enterprise until the local agency has affirmatively sought, in good faith, all administrative relief available pursuant to Chapter 6 (commencing with Section 41780) and Chapter 7 (commencing with Section 41800) of Part 2, unless the local agency demonstrates good cause, based on substantial evidence in the record, for not pursuing that administrative relief. The solid waste enterprise shall cooperate, in good faith, with the local agency seeking that administrative relief and shall provide in writing to the local agency all known defenses to the imposition of penalties.
(d) Nothing in this section shall be construed to preclude either party from seeking any other remedy under law or equity.
(e) The provisions of this section are not subject to waiver, and any attempted waiver shall be null and void as against public policy.
(f) This section is not intended to do any of the following:
(1) Add to or expand the authority of local agencies to determine aspects of solid waste collection and handling pursuant to Section 40059.
(2) Alter the authority of business entities to collect or process materials that are not solid waste.
(3) Affect any contract right existing on the effective date of this section.

SEC. 2.

 Section 40059.1 is added to the Public Resources Code, to read:

40059.1.
 (a) The court shall award a prevailing party in any civil action to enforce a franchise, contract, license, permit, or other authorization granted pursuant to subdivision (a) of Section 40059 reasonable attorney’s fees, expert witness fees, and other costs incurred in the course of the litigation in an amount the court, in its discretion, deems appropriate, but only if the plaintiff, prior to the civil action, provided does both of the following:
(1) Provides written notice to the defendant demanding that the illegal action cease.
(2) (A) Provides the notice specified in paragraph (1) to, and requests written approval to proceed pursuant to this section from, the local agency that granted the franchise, contract, license, permit, or other authorization granted pursuant to subdivision (a) of Section 40059.
(B) Within 15 business days of receiving a request for approval from a plaintiff, a local agency may approve or deny the request. If the local agency does not approve or deny the request within 15 business days of receiving the request, the request shall be deemed approved.
(C) A local agency shall post all notices and requests for approval it receives on the local agency’s publicly accessible Internet Web site within three days of receipt of the notice or request.
(b) The court shall not award fees or costs pursuant to subdivision (a) to a prevailing plaintiff in any of the following:
(1) A civil action in which the value of the stolen recyclable materials is fifty dollars ($50) of or less or no vehicle, as defined in Section 670 of the Vehicle Code, was used in connection with the removal of the materials.
(2) A civil action in which a person is alleged to be transporting organic materials to a facility that composts or vermicomposts green material, agricultural material, food material, and vegetative food material, alone or in combination, if the total amount of feedstock and compost onsite at the facility that at any one time does not exceed 100 cubic yards and 750 square feet.
(3) A civil action in which a person is alleged to be transporting food destined for human consumption.
(4) A civil action in which a person is alleged to be transporting byproducts from processing food, if those byproducts meet all of the following conditions:
(A) They originate from agricultural or industrial sources.
(B) They do not include animal, including fish, processing byproducts.
(C) They are source separated by the generator of the byproducts.
(D) They are not discarded.
(E) They are destined for use as animal feed.
(c) A person seeking costs and fees in accordance with this section shall notify the department and submit to the department the notice provided pursuant to paragraph (1) of subdivision (a) and the initial complaint filed in superior court.
(d) A person seeking costs and fees in accordance with this section shall, after the action or violation is subject either to a settlement or to a judgment, submit to the department the results of that settlement or judgment, the final disposition of the case, even if dismissed, and any other information deemed necessary by the department, on a form developed by the department for this purpose.
(e) The department shall maintain copies of the documents submitted pursuant to subdivisions (c) and (d), and shall make the copies available to the public or the Legislature upon request.
(f) On or before June 1, 2020, and annually thereafter, the department shall submit to the Legislature in compliance with Section 9795 of the Government Code a report detailing the total number of actions filed and dispositions, if known, for all actions submitted to the department for the previous calendar year. The report shall disaggregate that information by county.

(c)

(g) This section shall remain in effect only until January 1, 2022, and as of that date is repealed.

SEC. 3.

 Section 40059.2 of the Public Resources Code is amended and renumbered to read:

40059.3.
 (a) The Legislature hereby finds and declares all of the following:
(1) In 1996, the voters of California adopted Proposition 218, which among other things, limits the ability of local agencies to impose certain property-related fees and assessments without prior property owner consent. In 2010, California voters passed Proposition 26, a further initiative that limits the ability of local agencies to impose fees, levies, charges, assessments, or other exactions without prior voter approval. These initiatives, among other things, amended Article XIII C and Article XIII D of the California Constitution.
(2) The public policy objective of the Legislature in enacting this section is to ensure that those local agencies that require an indemnity obligation from solid waste enterprises, as a condition of providing solid waste handling services within the local agency’s jurisdiction, retain their responsibility for complying with Article XIII C and Article XIII D of the California Constitution.
(3) This section is not intended to address or to determine whether fees for solid waste handling services are fees imposed as an incident of property ownership or fees imposed for a property-related service, within the meaning of Section 2 of Article XIII D of the California Constitution.
(b) For the purposes of this section, the following terms have the following meanings:
(1) “Indemnity obligation” means an indemnity obligation related to the failure of a local agency to obtain voter or property owner approval of a fee, levy, charge, assessment, or other exaction, that may be required by Article XIII C or Article XIII D of the California Constitution, if that indemnity obligation is expressly assumed by, or imposed upon, the solid waste enterprise, including pursuant to ordinance, contract, franchise, license, permit, or other entitlement or right, for the benefit of the local agency.
(2) “Local agency” means a county, city, city and county, district, regional agency as defined in Section 40181, or other local government agency.
(c) An indemnity obligation that meets either of the following conditions is subject to subdivision (d):
(1) The indemnity obligation is imposed or required by a provision, term, condition, or requirement contained in an ordinance, contract, franchise, license, permit, or other entitlement or right adopted, entered into, issued, or granted, as the case may be, by a local agency for solid waste handling services, including the recycling, processing, or composting of solid waste.
(2) The indemnity obligation is authorized or required in a request for bids or proposals in connection with a contract or franchise specified in paragraph (1).
(d) Notwithstanding any provision, term, condition, or requirement, an indemnity obligation, including the duty and the cost of defense, shall be subject to the following restrictions:
(1) An indemnity obligation or other provision, clause, covenant, or agreement that purports to obligate a solid waste enterprise to indemnify a local agency against liability for claims by a third party for failure to obtain voter or property owner approval of a fee, levy, charge, assessment, or other exaction in violation of Article XIII C or Article XIII D of the California Constitution is not enforceable to the extent the claims arise out of, pertain to, or relate to the liability of the local agency.
(2) An indemnity obligation is not enforceable if it requires a solid waste enterprise to refund fees to its customers, if the fees are collected and retained by the local agency, or are collected on behalf of the local agency by the solid waste enterprise and have been remitted by the solid waste enterprise to the local agency, and in either case have been found by a final judgment of a court to have been imposed in violation of Article XIII C or Article XIII D of the California Constitution.
(e) The provisions of this section are not subject to waiver, and any attempted waiver shall be null and void as against public policy.
(f) This section is not intended to do any of the following:
(1) Add to or expand the authority of local agencies to determine aspects of solid waste collection and handling specified in Section 40059.
(2) Alter the authority of business entities to collect or process materials that are not solid waste.
(3) Determine whether or not a fee, levy, assessment, or exaction requires voter or property owner approval by Article XIII C or Article XIII D of the California Constitution.
(g) This section shall only apply to a provision, term, condition, or requirement contained in an ordinance, contract, franchise, license, permit, or other entitlement or right adopted, entered into, issued, or granted on or after July 1, 2012.
(h) This section shall become operative on July 1, 2012.

SEC. 4.

 Section 40059.3 of the Public Resources Code is amended and renumbered to read:

40059.4.
 (a) An ordinance adopted by a city or county or an ordinance enacted by initiative by the voters of a city or county shall not restrict or limit the importation of solid waste into a privately owned facility in that city or county based on the place of origin.
(b) This section does not do any of the following:
(1) Require a privately owned solid waste facility or privately operated solid waste facility to accept solid waste from outside the city or county where the facility is located.
(2) Allow a privately owned solid waste facility to abrogate a written agreement guaranteeing permitted capacity to a host jurisdiction, including a regional agency.
(3) 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.
(4) Supersede or otherwise affect the land use authority of a city or county, including, but not limited to, planning, zoning, and permitting, or an ordinance lawfully adopted pursuant to that land use authority.

SEC. 5.

 Section 41953 of the Public Resources Code is amended to read:

41953.
 (a) In any civil action by a recycling agent or a local governmental agency against a person alleged to have violated, or to have knowingly and willfully participated in the violation of, Section 41950 or 41951, the court may either allow treble damages, as measured by the market value of the recyclable material removed, or award a civil penalty of not more than two thousand dollars ($2,000), whichever is greater, for each unauthorized removal, against the unauthorized person removing the recyclable material.
(b) In any civil action by a recycling agent or local governmental agency against a person alleged to have violated, or to have knowingly and willfully participated in the violation of, Section 41950 or 41951 for a second, or subsequent, time in any 12-month period, the court may either allow treble damages, as measured by the market value of the recyclable material removed, or award a civil penalty of not more than five thousand dollars ($5,000), whichever is greater, for each unauthorized removal against the unauthorized person removing the recyclable material.
(c) (1) The court shall award the prevailing party reasonable attorney’s fees, expert witness fees, and costs incurred in the course of the litigation in an amount the court, in its discretion, deems appropriate.
(2) This subdivision shall not apply to a civil action for a violation or knowing participation in a violation of Section 41950 or 41951 in which the value of the stolen recyclable materials is fifty dollars ($50) or less or no vehicle, as defined in Section 670 of the Vehicle Code, was used in connection with the removal of the materials.

SEC. 6.

 Section 41956 of the Public Resources Code is amended to read:

41956.
 The department may award special enforcement grants to cities or counties to support pilot programs designed to develop and evaluate enforcement techniques to reduce the theft of recyclable materials from commercial, industrial, or other nonresidential establishments.

SEC. 7.

 If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.