AB 939 Requirements for Waste Diversion

In 1989, the State legislature passed the California Integrated Waste Management Act (commonly known as AB 939). This Act imposed far-reaching changes in solid waste management practices and placed responsibility for implementation and funding of these changes on cities and counties under regulatory authority of the newly created California Integrated Waste Management Board (CIWMB). Among other things, AB 939 stipulated preparation and adoption of numerous planning documents and established solid waste reporting requirements and methodologies in an attempt to quantify the amount of waste being generated, disposed, and diverted within each of the 450 or so local jurisdictions in California. Based on this information, AB 939 required that each jurisdiction demonstrate a waste diversion rate of 25% by the year 1995 and 50% by the year 2000. Subsequent legislation has established provisions under which jurisdictions may apply to the California Integrated Waste Management Board for time extensions (of up to six years) to meet the 50% diversion rate. Also, there are statutory provisions which allow rural jurisdiction to ask for a reduction of the 50% waste diversion requirement.

Over the past ten years, Calaveras County and the City of Angels have implemented a wide range of successful recycling programs and have adopted policies to encourage waste diversion from the landfill. A listing of some of these programs and policies is included as Attachment A to this memo. Many of these programs are being effectively operated by local solid waste management / recycling companies and the programmatic success has been due, in large part, to the voluntary participation of local residents, businesses, and community-based organizations.

In 1990, the City and County, combined, had an estimated waste diversion rate of 2.4%. Using the CIWMB’s methodology, the combined waste diversion rate for the City and County in 1998 has increased to over 38%. This figure compares to an estimated 1998 waste diversion rate of 33% statewide. A tabular summary of calculated waste diversion rates for our 1990 "base year" and for the years from 1995-1998 can be found at this link. Statewide totals have been provided for comparison. Along with this tabular summary, we have included a brief discussion of the current methodology which the CIWMB uses to compute diversion rates. There is considerable debate about the accuracy of this methodology and, as explained in the narrative, CIWMB-approved diversion rates for the County and the City of Angels are highly dependent on various demographic factors which are used to extrapolate our "1990 base-year waste generation" tonnages to future years. A "calculation sheet" at this link demonstrates how changes in population, sales tax revenue, and employment rate have been used to determine the 1998 diversion rates for the City and County.

CIWMB-approved waste diversion rates for the year 2000 will not be available until sometime in the year 2002 or 2003. Our "Annual Report" for 2000 is due to the CIWMB on August 1, 2001, and this Report will include our estimated waste diversion rates for 2000 along with a description of existing and planned recycling programs. "Annual Reports" from each jurisdiction within California must then be reviewed by CIWMB staff and submitted to the Waste Board for final approval.

Mainly because of uncertainties about the year 2000 demographics, it is difficult for us to project, with any degree of reliability, what the year 2000 waste diversion rates will be for Calaveras County and the City of Angels. Our "best guess" at this time is that the numbers will likely fall short of the 50% requirement–probably near 40%. However, as explained below, this potential mathematical shortfall does not imply statutory non-compliance. There are several administrative options available to us if our year 2000 numbers come up "short". Plus, both the City and County continue to demonstrate "good faith efforts" to achieve the objectives of AB 939 and this will be a major consideration for CIWMB when evaluating our year 2000 Annual Report.

"Good Faith" Efforts: Since the passage of AB 939, there has been continuing debate about whether compliance with waste diversion requirements should be judged based on program implementation or achievement of numerical quotas. The CIWMB has continuously maintained that they are more interested in the "good faith efforts" being made by local jurisdictions to develop successful recycling programs and less concerned about "bean-counting" in order to demonstrate mathematical compliance with AB 939. Based on regulatory definitions and CIWMB policy statements, Public Works is quite confident that our programmatic achievements to date qualify as "good faith efforts". Even as the year 2000 is upon us, there continues to be ongoing legislative and regulatory activity surrounding this issue of "good faith" versus "numerical compliance". A bill is currently before the State legislature which would explicitly preclude the CIWMB from taking any type of enforcement action against a jurisdiction which is able to demonstrate that it has made "good faith efforts" to meet AB 939's waste diversion mandates.

"Time Extensions" to Meet AB 939 Requirements: Several years ago, SB 1066 passed the State legislature. Among other things, this law gives the CIWMB statutory authority to grant time extensions (not to exceed six years) for meeting the 50% waste diversion requirement. This option is to be available to all jurisdictions in California, provided that they demonstrate to the satisfaction of CIWMB that they have made a "good faith effort" to comply with AB 939 and are willing to commit to a detailed plan and schedule for achieving 50% waste diversion.

Reduction of Diversion Requirements for Rural Jurisdictions: In addition to the SB 1066 allowances, statutory provisions exist that allow rural jurisdictions to petition the CIWMB for a "permanent" reduction of the 50% waste diversion mandate. Current regulatory restrictions, however, effectively limit this statutory allowance to rural counties with populations of less than about 18,000. Along with others, Calaveras County is working to have the CIWMB modify their regulations in order to allow all "rural" counties to be eligible for reductions in the waste diversion mandate as, we believe, was intended by statute. If this regulatory issue is not satisfactorily resolved in the near future, the City and County would still have the option of forming a "rural regional agency" and, under this designation, both jurisdictions, in combination, could request that the CIWMB grant the "rural regional agency" permanently reduced waste diversion rates.