Trust but verify: Uneasy coalition comes together in two-year metal recycling fight

The two-year fight over new metal recycling laws is a wild tale that involves hostile amendments, gut-and-amends, committee fights, floor battles and the often-invisible influence of powerful lobbying firms on the legislative process.

For now, at least, it appears a détente has taken hold, and the metal-theft struggle may finally be coming to an end. But the uneasy coalition of forces that have tangled throughout this legislative session is still fragile, and all sides retain some skepticism about their new partners.

"We're continuing to watch it very closely," said Assemblyman Tom Berryhill, R-Modesto, who used the old Ronald Reagan adage to describe his relationship to the new coalition: "Trust but verify."

The scrap metal recycling saga began in 2007, when Berryhill introduced AB 844 at the request of local law enforcement. Berryhill wanted to restrict cash payments to people who bring in metal to be recycled, increase fines and jail time for recyclers who knowingly buy stolen merchandise and wanted any payment from a recycling center to be subject to a three-day hold to crack down on the growing crime of metal theft.

Though the bill had support from a number of Assembly Democrats, including Fiona Ma, D-San Francisco, Nicole Parra, D-Hanford, and others, Berryhill's measure stalled in the Senate last year. That's when Sen. Ron Calderon, D-Montebello, with encouragement from the recyclers, waded into the issue.

Calderon took amendments to his bill in the Assembly Appropriations committee last year sought by Berryhill and his supporters. They wanted to protect local laws that dealt with metal theft that were already on the books, and leave some room for cities and counties to pass their own metal theft and recycler regulations.

Recyclers see those local ordinances as confusing and say it will lead metal thieves to shop for counties that have weaker metal theft laws, and wanted those local laws off the books.

The measure blew up on the Assembly floor in September in a strange, contentious floor debate. Sen Calderon's brother, Assemblyman Charles Calderon, was presenting the bill on his brother's behalf, imploring members to vote for the bill, saying it "was the same language as the Berryhill bill."

But angry Assemblymembers from both parties said the bill had been stealthily amended in Assembly Appropriations, and that the changes agreed to by Berryhill in that committee never made their way into the bill.

"This is the recyclers bill," Berryhill said during that Sept. 5 floor session. "The intent of this bill is to dumb down all the local ordinances. This industry is aiding and abetting criminals. They know it. They want to maintain the status quo."

"There was some confusion about how this bill left the Appropriations Committee," said Appropriations chairman Mark Leno. Leno said his understanding was that the existing local ordinances would be grandfathered in, and not preempted by the new law.
Berryhill lamented the bill was "stole fair and square," and raised the specter that legislative leadership in both houses was working to intentionally weaken or kill the measure

Confusion reigned during the floor debate about the whos and hows of the amendments. Fingers were pointed, conspiracy theories hatched. In the end, the measure only received six votes, and died for the year.

Ron Calderon says it was apparently a misunderstanding. "Last time, we had instructions from leadership that they didn't want locals to preempt state law," Calderon said this week. "So, we are usually good soldiers. We saw merit in that. Some uniformity provides more guidance for the counties."

Berryhill maintains it was an effort to weaken existing laws in Stanislaus, Fresno, San Francisco, and other counties who had already begun cracking down on recyclers who knowingly buy stolen metal. And he suggested the weakened measure was pushed by then-Speaker Fabian Nunez and Senate Leader Don Perata, who were doing the bidding of the recyclers.

The impetus for Berryhill's bill came from local law enforcement, particularly in the Central Valley, eager to crack down on the growing crime of metal theft. Everything from copper wire to guard rails to manhole covers has disappeared throughout California, and turned in to recyclers for quick cash. Law enforcement officials say metal theft and recycling is an easy way for drug addicts to score quick cash.

More than a dozen counties across the state have passed their own metal theft ordinances, placing new restrictions on the recycling centers that process and pay cash for this metal. Recyclers have fought many of those local ordinances, saying they put undue restrictions on small business owners.

Here in Sacramento, scrap metal recyclers have enlisted the influential Flanigan Firm to tweak and modify, some would say kill, Berryhill's proposal.

The firm's lobbyist, Katherine Brandenburg, did not return calls seeking comment for this story.

The main issue for the recyclers was making sure any new state law would preempt existing local ordinances relating to regulating metal recyclers. More than a dozen counties have laws on the books, including increased fines and jail terms for recyclers who do not abide by local record-keeping rules.

There has also been wrangling over the cash payments recyclers make for metal. Law enforcement officials say those cash payments help stoke the black market for stolen metal. But they have gotten push-back from others, including Nunez's chief of staff, Dan Eaton, who have aggressively pushed to allow recyclers continue to make cash payments for any metal worth less than $200.

Supporters of the cap say it is necessary to help poor people, who rely on metal recycling for income, to have access to quick cash. Critics of the $200 cap call it "the crack-head exemption," saying it would continue to allow drug dealers to grab metal and sell it for quick cash, and day it would be used as leverage for recyclers to control the market price of recycled metal.

For now, at least, all sides have agreed on a bill that does not have a cap. But amendments were suggested this week from the staff of the Assembly Judiciary Committee, pushing for the $200 cap.

Judiciary Chairman Dave Jones, D-Sacramento, rejected the suggestion.

"In my opinion, by taking the cap, that would not just threaten the coalition, but it would also leave a large loophole for thieves," Calderon said, "Law enforcement has expressed their concern with that."

Berryhill says he does not know where the pressure for the $200 cap is coming from, though both authors have suggested the issue may be coming from the offices of Speaker Karen Bass and President Pro Tem Don Perata.

A Bass spokesman said the speaker does still have concerns about the bill's impact on poor people.

Speculation abounds that the cap is being suggested by Capitol forces that intentionally want a weak bill. But for now, recyclers, law enforcement officials, Calderon and Berryhill are standing shoulder-to-shoulder.

"We're very guardedly optimistic about where we are," said Berryhill "But funny things happen with this bill."

For now, Berryhill and Calderon have identical measures moving through the process. Berryhill's AB 844 is awaiting a hearing date in Senate Environmental Quality, and Senate Public Safety. Calderon's SB 691 will be heard next in Assembly Appropriations.
Public Safety could become an obstacle for the bill. It now contains a provision that requires recyclers to capture thumbprints from me
tal sellers, a provision that is opposed by the American Civil Liberties Union. Romero has objected to thumbprint provisions in the past, but Calderon says preliminary discussions with Romero about the bill indicate she does not have a problem with it.

"There's two different kinds of discussions you have with members, one in the office and then the casual discussions on the plane or in passing. I have discussed it in passing with Sen. Romero, and her indication to me is that she's happy to see the bill and that she does not have a problem with it."

Romero did not return calls seeking comment for this story.

Berryhill says he is keeping a watchful eye on committees and committee staff.

"It was Assembly Approps where the hostile amendments were put in," Berryhill said. "We will watch that committee very closely."

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