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AB 332 Restores Alternative Management Standards for Disposal of Treated Wood Waste

By Tim Flanagan, General Manager, Monterey Regional Waste Management District 

The famous German chancellor and statesman Otto von Bismarck made many statements on politics during his career, and perhaps one of his most famous quotes stated, “Laws are like sausages. It is better not to see them being made.”  Such is the case with Assembly Bill 332 (Committee on Environmental Safety and Toxic Materials), which facilitates the safe and proper handling, transportation, management, and disposal of  treated wood waste (TWW) by restoring Alternative Management Standards (AMS) found in 22 CCR 67386.1 et seq. that sunset on January 1, 2021. As a result, variances are no longer needed for disposal facilities, handlers, and generators of TWW.

The need for AB 332 arose from a veto of a bill at the end of 2020, Senate Bill 68 (Galgiani), which sought to repeal the sunset date and allow continued alternative management of TWW. Special Districts are already under great duress by the annual legislative and regulatory requirements passed on an annual basis. The majority of these requirements are developed with positive intentions in mind – to help protect the health and safety of Californians. However, sometimes regulations have unintended consequences that create a significant challenge for special districts and local government to comply with - such was the case in the veto of SB 68. The result was a near immediate cancellation of the alternate management standards for TWW long in use by the industry and a scramble for compliance. This left residential and commercial customers with no practical disposal options because of the significantly greater costs and complexities of managing and transporting these materials as hazardous wastes to a Class I hazardous waste disposal facility.

The Department of Toxic Substances Control (DTSC) defines TWW as wood treated with chemical preservatives to prevent wood rot and decay from weathering, insects, and fungus. Examples of TWW include treated decking, fence posts, pilings, landscaping timber, sill plates, and guardrails. TWW is considered hazardous waste due to the toxic or carcinogenic chemicals it contains the risk that it poses to human health and the environment. TWW has the potential to be a hazardous waste if it contains elevated levels of one or more of the following constituents: arsenic, chromium, copper, pentachlorophenol, and creosote.

Treated wood is commonly used as a building material in many construction, agricultural, and aquatic settings, as it has been specifically treated with preservatives to resist decay related to moisture, pests, and exposure to the environment. If TWW is not properly managed and disposed of, the chemicals it contains can contaminate soil, surface water, and groundwater. This poses a risk to human health and the environment. Because of this, treated wood must be carefully managed and disposed.

Prior to January 1, 2021, TWW could be disposed of in either a Class I hazardous waste landfill or in a composite lined portion of an approved solid waste landfill utilizing the AMS that sunset.  However, due to the expiration of the former allowance, during 2021 the DTSC worked diligently to develop a temporary, short-term fix by issuing variances to generators, transporters, handlers, and disposal facilities for the management and disposal of TWW. This variance system was not intended to be a permanent solution, but instead facilitated the proper management and disposal of TWW while the State Legislature crafted a long-term approach.

On August 31, 2021, Governor Newsom signed Assembly Bill 332 and the bill took effect immediately. As a result of the chaptering of the bill, all TWW variances issued by DTSC since March 2021 are now inoperative and have no further effect. The variances are no longer necessary because they have been replaced by the AMS in statute. The new AMS are similar to the rules that applied under the variance program, except that no variance is required.

In a September 27, 2021 article in Merchant Magazine, Dallin Brooks, executive director of Western Wood Preservers Institute, stated “The passage of AB 332 is a huge win for homeowners, contractors, builders, environmentalists and our infrastructure. The broad support for this bill reaffirms treated wood waste can safely be disposed while providing environmental benefits.” The article went on to state that the AMS had been in effect for nearly 15 years before the program expired on Jan. 1, 2021. Consequently, chaos ensued for the first three months of 2021 when treated wood disposal was only authorized at a hazardous waste landfill.

Prior to the passage of AB 332, when applied to the available estimated amount of TWW generated at 45,000 tons, the expiration of AMS would have resulted in statewide increased disposal costs of at least $22,500,000 per year. However, that estimate might have been exponentially low given the CalRecycle Disposal Characterization Study reflects a statewide treated/painted/stained wood waste estimate of 1,740,699 tons that went into California landfills in 2018.

AB 332 requires the wood preserving industry to update DTSC on industry trends regarding the use of treated wood preservatives and the generation of TWW as well as to maintain an Internet website and prepare fact sheets and other outreach materials on the appropriate handling, disposal, and other management of TWW for generators of treated wood waste and for facilities that may receive or handle treated wood waste. Additionally, the wood preserving industry must annually update and renew the outreach materials, disseminate the outreach materials, and provide an update to the Department relating to that dissemination.

Conversely, AB 332 requires DTSC to provide notification to the State Legislature no later than July 1, 2028 as to whether the Department is prepared to ensure the safe management of TWW in accordance with the hazardous waste control laws. If DTSC provides that notification by July 1, 2028, then the provisions of AB 332 would be repealed as of January 1, 2030.

In conclusion, with regards to Bismarck, this is a story about “sausages” that has a happy ending. A strong coalition of local government, business, environmental organizations, and the solid waste industry (both private and public) came together, reacted swiftly to reach compliance when SB 68 was vetoed and then worked together to make a better set of regulations. The end result crafted a “better sausage”- or at least one that could be stomached - and reduced negative impacts on special districts and the communities they serve.

This article was written by Tim Flanagan, general manager of Monterey Regional Waste Management District , as part of CSDA’s New Laws Series, where experts explain legislation passed in 2021 and how it will impact special districts moving forward. This article is provided for general information only and is not offered or intended as legal advice. Readers should seek the advice of an attorney when confronted with legal issues, and attorneys should perform an independent evaluation of the issues raised in these materials.

Stay tuned to the New Laws Series in CSDA eNews for more in-depth analyses on new laws affecting special districts.

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