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AB-245 Hazardous waste: facilities and enforcement.(2017-2018)

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Date Published: 07/12/2017 09:00 PM
AB245:v97#DOCUMENT

Amended  IN  Senate  July 12, 2017
Amended  IN  Senate  June 20, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 245


Introduced by Assembly Members Quirk, Gomez, Reyes, Santiago, and Cristina Garcia

January 30, 2017


An act to amend Sections 25188, 25189, 25189.2, and 25205 of, and to add Sections 25187.3 and 25200.1.3 to, the Health and Safety Code, relating to hazardous waste.


LEGISLATIVE COUNSEL'S DIGEST


AB 245, as amended, Quirk. Hazardous waste: facilities and enforcement.
(1) Existing law, the Hazardous Waste Control Law, regulates the use and disposal of hazardous materials and requires a facility handling hazardous waste to obtain a hazardous waste facilities permit from the Department of Toxic Substances Control. Existing law requires the department to impose certain conditions on each hazardous waste facilities permit and authorizes the department to impose other conditions on a hazardous waste facilities permit, as specified. A violation of the hazardous waste control law is a crime.
This bill would require the department, within 90 days of receiving a renewal application for a hazardous waste facilities permit, to hold a public meeting for specified purposes relating to the renewal in or near the community in which the hazardous waste facility is located.
Existing law prohibits the department from issuing or renewing a permit to operate a hazardous waste facility unless the owner or operator of the facility establishes and maintains financial assurances.
This bill would require the department to review review, at least once every 5 years, the financial assurances required to operate a hazardous waste facility at least once every 5 years. and the cost estimates used to establish the amount of financial assurances required. If the department’s review finds the financial assurances for a facility to be inadequate, the bill would require the department to notify the owner or operator of the facility and would require the owner or operator to update and adopt adequate financial assurances and, if applicable, appropriate cost estimates within 90 days.
(2) Existing law requires the department, in the case of a release of hazardous waste or hazardous waste constituents into the environment from a hazardous waste facility that is required to obtain a permit, to pursue available remedies, including the issuance of an order for corrective action, before using available legal remedies, except in specified circumstances.
This bill would require the department, under specified circumstances, to request an owner or operator of a hazardous waste facility to submit to the department for review and approval a written cost estimate to cover activities associated with a corrective action based on available data, history of releases, and site activities, as specified. The bill would require the owner or operator to submit the corrective action cost estimate within 60 days of the department’s request. The bill would require the owner or operator, within 90 days of the approval or the imposition of a corrective action cost estimate, as specified, to fund the cost estimate or enter into a schedule of compliance for assurances of financial responsibility for completing the corrective action.
(3) Existing law permits the department or an agency authorized to implement and enforce certain laws relating to hazardous materials, known as a unified program agency, to enforce the Hazardous Waste Control Law. Existing law authorizes the department or a unified program agency to issue an order that requires a violation to be corrected and imposes an administrative penalty when there is a violation of the hazardous waste control laws, laws regulating hazardous substances, or any permit, rule, regulation, standard, or requirement issued or adopted pursuant to those laws. Under existing law, a person who does not comply with the order is subject to a civil penalty of not more than $25,000 for each day of noncompliance. In lieu of an administrative penalty, existing law makes any person who intentionally or negligently makes a false statement or representation for purposes of compliance with the hazardous waste control laws, violates a provision of the hazardous waste control laws, disposes or causes the disposal of a hazardous waste at an unauthorized site, or treats or stores a hazardous waste at an unauthorized site liable for a civil penalty not to exceed $25,000, as specified.
This bill would increase these administrative and civil penalties to $37,500 $70,000 and would make nonsubstantive changes in these provisions.
(4) Because a violation of the bill’s requirements would be a crime, the bill would impose a state-mandated local program.
(5)  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 no reimbursement is required by this act for a specified reason.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

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


SECTION 1.

 Section 25187.3 is added to the Health and Safety Code, to read:

25187.3.
 (a) After the department has identified a release or releases of a hazardous waste or a hazardous waste constituent into the environment from a hazardous waste facility or when the department determines that corrective action is necessary, the department shall request an owner or operator of a hazardous waste facility to submit to the department for review and approval a written cost estimate to cover activities associated with corrective action based on available data, history of releases, and site activities.
(b) The corrective action cost estimate shall be based on, and be no less stringent than, the ASTM International (ASTM) Standard E2150-13.
(c) (1) The owner or operator of a hazardous waste facility shall submit the corrective action cost estimate to the department within 60 days from the department’s request.
(2) If the department determines the corrective action cost estimate is substantially incomplete or includes substantially unsatisfactory information, the department shall provide a notice of deficiency to the owner or operator of the facility within 60 days of receipt of the corrective action cost estimate.
(3) The owner or operator of the facility shall submit a revised corrective action cost estimate based on the information provided in the notice of deficiency within 30 days.
(4) The department shall approve or deny the revised corrective action cost estimate within 30 days.
(5) If the corrective action cost estimate does not address the information provided in the notice of deficiency, as determined by the department, the department shall deny the revised corrective action cost estimate and shall, within 60 days, develop its own corrective action cost estimate that will be the approved estimate for the facility.
(d) The owner or operator of a facility, within 90 days of the approval of a corrective action cost estimate, shall fund the approved corrective action cost estimate or shall enter into a schedule of compliance for assurances of financial responsibility for completing the corrective action.
(e) If the department determines that the timing or content of a submission of a cost estimate and financial assurance documents are not consistent with the degree and duration of risk posed by the release or releases to be addressed by the corrective action activities, the department shall adjust the level of financial assurance or timing of document submission required by this section as may be necessary to protect human health and the environment.
(f) If the owner or operator of a hazardous waste facility is required to submit a financial assurance mechanism for corrective action, the financial assurance shall be in the form of a trust fund, surety bond, letter of credit, insurance, or any other mechanism authorized under the federal act and the regulations adopted by the department for financial assurance mechanisms.
(g) The department may adopt, and revise, when appropriate, standards and regulations to implement this section. Additionally, the department may adopt emergency regulations in accordance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, to implement this section. The adoption of these regulations shall be deemed an emergency and necessary for the immediate preservation of the public peace, health and safety, or general welfare for purposes of Sections 11346.1 and 11349.6 of the Government Code.

SEC. 2.

 Section 25188 of the Health and Safety Code is amended to read:

25188.
 Any person subject to an order issued pursuant to Section 25187 who does not comply with that order shall be subject to a civil penalty of not more than thirty-seven thousand five hundred dollars ($37,500) seventy thousand dollars ($70,000) for each day of noncompliance.

SEC. 3.

 Section 25189 of the Health and Safety Code is amended to read:

25189.
 (a) A person who intentionally or negligently makes a false statement or representation in an application, label, manifest, record, report, permit, or other document filed, maintained, or used for purposes of compliance with this chapter, shall be liable for a civil penalty not to exceed thirty-seven thousand five hundred dollars ($37,500) seventy thousand dollars ($70,000) for each separate violation or, for continuing violations, for each day that violation continues.
(b) Except as provided in subdivision (c), (d), or (e), a person who intentionally or negligently violates a provision of this chapter or a permit, rule, regulation, standard, or requirement issued or promulgated pursuant to this chapter, shall be liable for a civil penalty not to exceed thirty-seven thousand five hundred dollars ($37,500) seventy thousand dollars ($70,000) for each violation of a separate provision or, for continuing violations, for each day that violation continues.
(c) A person who intentionally disposes or causes the disposal of a hazardous or extremely hazardous waste at a point that is not authorized according to the provisions of this chapter shall be subject to a civil penalty of not less than one thousand dollars ($1,000) or more than thirty-seven thousand five hundred dollars ($37,500) seventy thousand dollars ($70,000) for each violation and may be ordered to disclose the fact of this violation or these violations to those persons as the court may direct. Each day on which the deposit remains and the person has knowledge of the deposit is a separate additional violation, unless the person immediately files a report of the deposit with the department and is complying with an order concerning the deposit issued by the department, a hearing officer, or a court of competent jurisdiction for the cleanup.
(d) A person who negligently disposes or causes the disposal of a hazardous or extremely hazardous waste at a point that is not authorized according to the provisions of this chapter shall be subject to a civil penalty of not more than thirty-seven thousand five hundred dollars ($37,500) seventy thousand dollars ($70,000) for each violation and may be ordered to disclose the fact of this violation or these violations to those persons as the court may direct. Each day on which the deposit remains and the person had knowledge of the deposit is a separate additional violation, unless the person immediately files a report of the deposit with the department and is complying with an order concerning the deposit issued by the department, a hearing officer, or a court of competent jurisdiction for the cleanup.
(e) A person who intentionally or negligently treats or stores, or causes the treatment or storage of, a hazardous waste at a point that is not authorized according to this chapter shall be liable for a civil penalty not to exceed thirty-seven thousand five hundred dollars ($37,500) seventy thousand dollars ($70,000) for each separate violation or, for continuing violations, for each day that the violation continues.
(f) Each civil penalty imposed for a separate violation pursuant to this section shall be separate and in addition to any other civil penalty imposed pursuant to this section or any other provision of law.
(g) A person shall not be liable for a civil penalty imposed under this section and for a civil penalty imposed under Section 25189.2 for the same act or failure to act.

SEC. 4.

 Section 25189.2 of the Health and Safety Code is amended to read:

25189.2.
 (a) A person who makes a false statement or representation in an application, label, manifest, record, report, permit, or other document, document filed, maintained, or used for purposes of compliance with this chapter, is liable for a civil penalty not to exceed thirty-seven thousand five hundred dollars ($37,500) seventy thousand dollars ($70,000) for each separate violation or, for continuing violations, for each day that the violation continues.
(b) Except as provided in subdivision (c) or (d), a person who violates a provision of this chapter or a permit, rule, regulation, standard, or requirement issued or adopted pursuant to this chapter, is liable for a civil penalty not to exceed thirty-seven thousand five hundred dollars ($37,500) seventy thousand dollars ($70,000) for each violation of a separate provision or, for continuing violations, for each day that the violation continues.
(c) A person who disposes, or causes the disposal of, a hazardous or extremely hazardous waste at a point that is not authorized according to the provisions of this chapter is liable for a civil penalty of not more than thirty-seven thousand five hundred dollars ($37,500) seventy thousand dollars ($70,000) for each violation and may be ordered to disclose the fact of this violation or these violations to those persons as the court or, in the case of an administrative action, a hearing officer, may direct. Each day on which the deposit remains is a separate additional violation, unless the person immediately files a report of the deposit with the department and is complying with an order concerning the deposit issued by the department, a hearing officer, or a court of competent jurisdiction for the cleanup.
(d) A person who treats or stores, or causes the treatment or storage of, a hazardous waste at a point that is not authorized according to this chapter, shall be liable for a civil penalty not to exceed thirty-seven thousand five hundred dollars ($37,500) seventy thousand dollars ($70,000) for each separate violation or, for continuing violations, for each day that the violation continues.
(e) For purposes of subdivisions (c) and (d), a person who offers hazardous waste to a transporter that is registered pursuant to Section 25163 or to a storage, treatment, transfer, resource recovery, or disposal facility that holds a valid hazardous waste facilities permit or other grant of authorization from the department that authorizes the facility to accept the waste being offered shall not be considered to have caused disposal, treatment, or storage of hazardous waste at an unauthorized point solely on the basis of having offered that person’s waste, provided the person has taken reasonable steps to determine that the transporter is registered or the facility is authorized by the department to accept the hazardous waste being offered.
(f) A person shall not be liable for a civil penalty imposed under this section and for a civil penalty imposed under Section 25189 for the same act or failure to act.
(g) Liability under this section may be imposed in a civil action or liability may be imposed administratively pursuant to Section 25187.

SEC. 5.

 Section 25200.1.3 is added to the Health and Safety Code, to read:

25200.1.3.
 The department shall, within 90 days of receiving a renewal application for a hazardous waste facilities permit, hold a public meeting in or near the community in which the hazardous waste facility is located in order to inform the public of the submission of the renewal application, the process for reviewing and making a decision on the renewal application, how the public can participate in the process, and the facility’s enforcement history.

SEC. 6.

 Section 25205 of the Health and Safety Code is amended to read:

25205.
 (a) Except as provided in Section 25245.4, the department shall not issue or renew a permit to operate a hazardous waste facility unless the owner or operator of the facility establishes and maintains the financial assurances required pursuant to Article 12 (commencing with Section 25245).
(b) The grant of interim status of a facility, or any portion thereof, that is operating under a grant of interim status pursuant to Section 25200.5, based on the facility having been in existence on November 19, 1980, shall terminate on July 1, 1997, unless the department certifies, on or before July 1, 1997, that the facility is in compliance with the financial assurance requirements of Article 12 (commencing with Section 25245) for a facility in operation since November 19, 1980, for all units, tanks, and equipment for which the facility has authorization to operate pursuant to its grant of interim status.
(c) The department shall review review, at least once every five years, the financial assurances required to operate a hazardous waste facility at least once every five years. and the cost estimates used to establish the amount of the financial assurances required. If the department’s review finds the financial assurances for a facility to be inadequate, inadequate for any reason, including, but not limited to, due to underestimated potential costs, the department shall notify the owner or operator of the facility and require the owner or operator to update and adopt adequate financial assurances assurances and, if applicable, appropriate cost estimates within 90 days.

SEC. 7.

  No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.