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AB-1500 Hazardous substances.(2019-2020)



Current Version: 06/21/19 - Amended Senate         Compare Versions information image


AB1500:v97#DOCUMENT

Amended  IN  Senate  June 21, 2019
Amended  IN  Assembly  March 28, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 1500


Introduced by Assembly Member Carrillo

February 22, 2019


An act to amend Sections 25404.1.1 and 25510 of, and to add Section 101080.1 to, the Health and Safety Code, relating to hazardous substances.


LEGISLATIVE COUNSEL'S DIGEST


AB 1500, as amended, Carrillo. Hazardous substances.
(1) Existing law requires the Secretary for Environmental Protection to implement a unified hazardous waste and hazardous materials management regulatory program, known as the unified program. Existing law requires every county to apply to the secretary to be certified to implement the unified program, and authorizes a city or local agency that meets specified requirements to apply to the secretary to be certified to implement the unified program, as a certified unified program agency, or CUPA. Existing law authorizes a state or local agency that has a written agreement with a CUPA, and is approved by the secretary, to implement or enforce one or more of the unified program elements as a participating agency. Existing law defines “unified program agency,” or UPA, to mean the CUPA or its participating agencies, as provided.
Existing law authorizes the UPA, if the UPA determines that a person has committed, or is committing, a violation of any law, regulation, permit, information request, order, variance, or other requirement that the UPA is authorized to enforce or implement, to issue an administrative enforcement order requiring that the violation be corrected and imposing an administrative penalty. Existing law authorizes a UPA to suspend or revoke any unified program facility permit, or an element of a unified program facility permit, for not paying the permit fee or a fine or penalty associated with the permit in accordance with specified procedures. Existing law authorizes a UPA, if a permittee does not comply with a written notice from the UPA to the permittee to make those payments by a specified date, to suspend or revoke the permit or permit element. Existing law requires the permittee, if the permit or permit element is suspended or revoked, to immediately discontinue operating that facility or function of the facility to which the permit element applies until the permit is reinstated, or reissued.
This bill would repeal the provision authorizing a UPA to suspend or revoke a unified program facility permit, or an element of a unified program facility permit, for not paying the permit fee or a fine or penalty associated with the permit. The bill would authorize the UPA, if a permittee does not comply with a written notice from the UPA to make those payments by the specified date, in addition to suspending or revoking the permit or permit element, to withhold issuance of the permit or permit element.
The bill would authorize a UPA to suspend, revoke, or withhold issuance of a unified program facility permit if conditions exist at the unified program facility that the UPA considers considers, consistent with criteria or factors, which the bill would require the UPAs to develop collectively, and are supported by written findings, an imminent or substantial threat endangerment to public health, safety, or the environment. The bill would require the permittee to immediately discontinue operating that facility or function of the facility to which the permit or permit element applies until the threat endangerment is abated and the permit or permit element is issued, reinstated, or reissued. The bill would authorize a UPA to suspend, revoke, or withhold the issuance of any unified program facility permit if a permittee of a facility, or the owner or operator, as appropriate, fails to take appropriate action to abate an endangerment.
The bill would require the owner or operator of a unified program facility to be liable for a civil or administrative penalty of not less than $500 or more than $5,000 per day for failure to obtain or keep a permit as required pursuant to the provisions governing the unified program.
The bill would provide that the provisions authorizing a UPA to issue an administrative enforcement order or to withhold issuance, or to suspend or revoke, a permit do not prevent the UPA from issuing an administrative enforcement order for the release of a hazardous substance, as defined, for any violation of specified provisions relating to, among other things, business and area plans and risk management plans.
(2) Existing law requires a business that handles a hazardous material, or an employee, authorized representative, agent, or designee of that business, to, upon discovery, immediately report any release or threatened release of a hazardous material, or an actual release of a hazardous substance, as defined, to the UPA and the Office of Emergency Services, as provided.
This bill would require that reporting of the release or threatened release to the UPA and the Office of Emergency Services only if the release or threatened release results in an emergency response. Services, as provided. The bill would require a handler, employee, authorized representative, agent, or their designee to provide state, city, or county fire or public health or safety personnel and emergency response personnel with access to the handler’s facility if there is a release or threatened release at the facility.
(3) Under existing law, whenever a release, spill, escape, or entry of waste occurs, as specified, and the Director of Health Care Services Public Health or the local health officer makes specified determinations as to that waste, the director is authorized to declare a health emergency and the local health officer is authorized to declare a local health emergency in the jurisdiction or any area thereof affected by the threat to the public health.
This bill would authorize authorize, without a declaration of a local health emergency, the director or local health officer, if a release, spill, escape, or entry entry, as described, of hazardous waste or of a hazardous substance occurs, which the director or local health officer reasonably determines poses an imminent or substantial endangerment to public health due to specified factors, to take specified actions, in consultation with certain state or local regulatory agencies, to protect the health and safety of the public, including, among others, issuing an order to the responsible party to immediately suspend or discontinue the activity causing or contributing to the release, spill, escape, or entry of the hazardous waste or hazardous substance. The bill would require a responsible party to be liable for the costs incurred by the local health officer pursuant to these provisions. The bill would require that actions taken by the director or local health officer to protect or preserve the public health be supported by written findings.
(4) Because the bill would make changes to provisions enforced by unified program agencies, the bill would impose a state-mandated local program.
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 25404.1.1 of the Health and Safety Code is amended to read:

25404.1.1.
 (a) If the unified program agency determines that a person has committed, or is committing, a violation of any law, regulation, permit, information request, order, variance, or other requirement that the UPA is authorized to enforce or implement pursuant to this chapter, the UPA may issue an administrative enforcement order requiring that the violation be corrected and imposing an administrative penalty, in accordance with the following:
(1) Except as provided in paragraph (5), if the order is for a violation of Chapter 6.5 (commencing with Section 25100), the violator shall be subject to the applicable administrative penalties provided by that chapter.
(2) If the order is for a violation of Chapter 6.7 (commencing with Section 25280), the violator shall be subject to the applicable civil penalties provided in subdivisions (a), (b), (c), and (e) of Section 25299.
(3) If the order is for a violation of Article 1 (commencing with Section 25500) of Chapter 6.95, the violator shall be subject to a penalty that is consistent with the administrative penalties imposed pursuant to Section 25515.2.
(4) If the order is for a violation of Article 2 (commencing with Section 25531) of Chapter 6.95, the violator shall be subject to a penalty that is consistent with the administrative penalties imposed pursuant to Section 25540 or 25540.5.
(5) If the order is for a violation of Section 25270.4.5, the violator shall be liable for a penalty of not more than five thousand dollars ($5,000) for each day on which the violation continues. If the violator commits a second or subsequent violation, a penalty of not more than ten thousand dollars ($10,000) for each day on which the violation continues may be imposed.
(b) In establishing a penalty amount and ordering that the violation be corrected pursuant to this section, the UPA shall take into consideration the nature, circumstances, extent, and gravity of the violation, the violator’s past and present efforts to prevent, abate, or clean up conditions posing a threat to the public health or safety or the environment, the violator’s ability to pay the penalty, and the deterrent effect that the imposition of the penalty would have on both the violator and the regulated community.
(c) Any order issued pursuant to this section shall be served by personal service or certified mail and shall inform the person served of the right to a hearing. If the UPA issues an order pursuant to this section, the order shall state whether the hearing procedure specified in paragraph (2) of subdivision (e) may be requested by the person receiving the order.
(d) Any person served with an order pursuant to this section who has been unable to resolve any violation with the UPA, may within 15 days after service of the order, request a hearing pursuant to subdivision (e) by filing with the UPA a notice of defense. The notice shall be filed with the office that issued the order. A notice of defense shall be deemed filed within the 15-day period provided by this subdivision if it is postmarked within that 15-day period. If no notice of defense is filed within the time limits provided by this subdivision, the order shall become final.
(e) Except as provided in subparagraph (B) of paragraph (2), a person requesting a hearing on an order issued by the UPA under this section may select the hearing officer specified in either paragraph (1) or (2) in the notice of defense filed with the UPA pursuant to subdivision (d). If a notice of defense is filed but no hearing officer is selected, the UPA may select the hearing officer. Within 90 days of receipt of the notice of defense by the UPA, the hearing shall be scheduled using one of the following:
(1) An administrative law judge of the Office of Administrative Hearings of the Department of General Services, who shall conduct the hearing in accordance with Chapter 4.5 (commencing with Section 11400) of Part 1 of Division 3 of Title 2 of the Government Code, and the UPA shall have all the authority granted to an agency by those provisions.
(2) (A) A hearing officer designated by the UPA, who shall conduct the hearing in accordance with Chapter 4.5 (commencing with Section 11400) of Part 1 of Division 3 of Title 2 of the Government Code, and the UPA shall have all the authority granted to an agency by those provisions. When a hearing is conducted by a UPA hearing officer pursuant to this paragraph, the UPA shall issue a decision within 60 days after the hearing is conducted. Each hearing officer designated by a UPA shall meet the requirements of Section 11425.30 of the Government Code and any other applicable restriction.
(B) A UPA, or a person requesting a hearing on an order issued by a UPA, may select the hearing process specified in this paragraph in a notice of defense filed pursuant to subdivision (d) only if the UPA has, as of the date the order is issued pursuant to subdivision (c), selected a designated hearing officer and established a program for conducting a hearing in accordance with this paragraph.
(f) The hearing decision issued pursuant to paragraph (2) of subdivision (e) shall be effective and final upon issuance by the UPA. A copy of the decision shall be served by personal service or by certified mail upon the party served with the order, or their representative, if any.
(g) Any provision of an order issued under this section, except the imposition of an administrative penalty, shall take effect upon issuance by the UPA if the UPA finds finds, pursuant to the criteria or factors developed pursuant to paragraph (2) of subdivision (n), that the violation or violations of law associated with that provision may pose an imminent and substantial endangerment to the public health or safety or the environment. A request for a hearing shall not stay the effect of that provision of the order pending a hearing decision. However, if the UPA determines that any or all provisions of the order are so related that the public health or safety or the environment can be protected only by immediate compliance with the order as a whole, the order as a whole, except the imposition of an administrative penalty, shall take effect upon issuance by the UPA. A request for a hearing shall not stay the effect of the order as a whole pending a hearing decision.
(h) A decision issued pursuant to paragraph (2) of subdivision (e) may be reviewed by a court pursuant to Section 11523 of the Government Code. In all proceedings pursuant to this section, the court shall uphold the decision of the UPA if the decision is based upon substantial evidence in the record as a whole. The filing of a petition for writ of mandate shall not stay any action required pursuant to this chapter or the accrual of any penalties assessed pursuant to this chapter. This subdivision does not prohibit the court from granting any appropriate relief within its jurisdiction.
(i) All administrative penalties collected from actions brought by a UPA pursuant to this section shall be paid to the UPA that imposed the penalty, and shall be deposited into a special account that shall be expended to fund the activities of the UPA in enforcing this chapter.
(j) The UPA shall consult with the district attorney, county counsel, or city attorney on the development of policies to be followed in exercising the authority delegated pursuant to this section as it relates to the authority of the UPA to issue orders.
(k) (1) A permittee unified program facility shall pay a permit fee and any fine or penalty associated with the permit in accordance with the procedures specified in this subdivision.
(2) If a permittee does not comply with a written notice from the UPA to the permittee to make the payments specified in paragraph (1) by the required date provided in the notice, the UPA may withhold issuance, or may suspend or revoke, the permit or permit element.
(l) (1) (A) If the permittee unified program facility does not have a valid unified program facility permit or if the permit or permit element is suspended or revoked, the permittee unified program facility shall immediately discontinue operating, as applicable, that facility or function of the facility to which the permit or permit element applies until the permit is issued, reinstated, or reissued.
(B) Subparagraph (A) does not apply to the owner or operator of a facility who timely submitted an application for a unified program facility permit or for a renewal of the permit, and that facility is in compliance with the requirements of this chapter, but has not yet received the permit or the renewed permit from the UPA. A submittal of a hazardous materials business plan into the California Environmental Reporting System constitutes a submittal of an application for purposes of this subparagraph.
(2) A permittee may request a hearing to appeal the withholding of the issuance of, or the suspension or revocation of, a permit or element of a permit pursuant to this subdivision by requesting a hearing using the procedures provided in subdivision (d).
(m) (1) The owner or operator of a unified program facility shall be liable for a civil or administrative penalty of not less than five hundred dollars ($500) or more than five thousand dollars ($5,000) per day for failure to obtain or keep a permit as required pursuant to this chapter.
(2) Paragraph (1) does not apply to the owner or operator of a facility who timely submitted an application for a unified program facility permit or for a renewal of the permit, and that facility is in compliance with the requirements of this chapter, but has not yet received the permit or the renewed permit from the UPA. A submittal of a hazardous materials business plan into the California Environmental Reporting System constitutes a submittal of an application for purposes of this paragraph.
(n) (1) (A) A UPA may suspend, revoke, or withhold issuance of any unified program facility permit, if the UPA determines that conditions exist at the unified program facility that the UPA considers an imminent or substantial threat endangerment to public health, safety, or the environment. The permittee unified program facility shall immediately discontinue operating that facility operation or function of the facility to which the permit or permit element applies until the threat endangerment is abated and the permit or permit element is issued, reinstated, or reissued.
(B) A UPA may suspend, revoke, or withhold issuance of any unified program facility permit if the permittee, or the owner or operator of the facility, as appropriate, fails to take appropriate action to abate an endangerment.
(2) (A) The UPAs collectively shall develop criteria or factors that shall be taken into consideration before a condition may be found to present an imminent or substantial endangerment to public health, safety, or the environment. The UPAs shall develop the criteria or factors in a process that is open to, and that allows for public review and comment of any proposed criteria or factors by, interested members of the public.
(B) Each UPA shall incorporate the criteria or factors developed pursuant to subparagraph (A) into its enforcement plan and shall post those criteria or factors on its internet website.
(3) An action taken by a UPA pursuant to paragraph (1) shall be consistent with the criteria or factors developed pursuant to paragraph (2) and supported by written findings.
(o) This section does not do any of the following:
(1) Otherwise affect the authority of a UPA to take any other action authorized by any other provision of law, except the UPA shall not require a person to pay a penalty pursuant to this section and pursuant to a local ordinance for the same violation.
(2) Restrict the power of a city attorney, district attorney, county counsel, or the Attorney General to bring, in the name of the people of California, any criminal proceeding otherwise authorized by law.
(3) Restrict or limit, in any manner, the authority of a district, as defined in Section 39025.

(3)

(4) Prevent the UPA from cooperating with, or participating in, a proceeding specified in paragraph (2).

(4)

(5) Prevent the UPA from issuing an administrative enforcement order for the release of a hazardous substance, as defined in subdivision (b) of Section 374.8 of the Penal Code, for any violation of Chapter 6.95 (commencing with Section 25500).

SEC. 2.

 Section 25510 of the Health and Safety Code is amended to read:

25510.
 (a) (1) Except as provided in subdivision (b), if a release or threatened release of a hazardous material, or an actual release of a hazardous substance, as defined in Section 374.8 of the Penal Code, results in an emergency response, the handler, or an employee, authorized representative, agent, or designee of the handler, shall immediately report the release or threatened release upon its discovery a hazardous material, hazardous waste, or hazardous substance release or threatened release shall be reported by the handler, an employee, authorized representative, agent, or designee of the handler to the UPA, and to the office, in accordance with the regulations adopted pursuant to this section. The handler or an employee, authorized representative, agent, or designee of the handler shall provide all state, city, or county fire or public health or safety personnel and emergency response personnel with access to the handler’s facilities. section as follows:
(A) For facilities subject to this chapter, upon discovery of any release or threatened release. The reporting shall be made immediately upon discovery.
(B) (i) For facilities not subject to this chapter, upon the discovery of an actual release, as described in Section 374.8 of the Penal Code, that results in an emergency response.
(ii) For purposes of this subparagraph, “emergency response” means the activation of any public emergency response personnel, as defined in Section 25501, who are responsible for response, mitigation, or recovery activities in a hazardous material incident where public health, public safety, or the environment may be affected.
(2) Except as provided in subdivision (b), the handler, an employee, authorized representative, agent, or designee of those entities, shall provide state, city, or county fire or public health or safety personnel and emergency response personnel with access to the handler’s facility if there is a release or threatened release of hazardous material, hazardous waste, or a hazardous substance.
(b) Subdivision (a) does not apply to a person engaged in the transportation of a hazardous material on a highway that is subject to, and in compliance with, the requirements of Sections 2453 and 23112.5 of the Vehicle Code.
(c) On or before January 1, 2016, the office shall adopt regulations to implement this section. In developing these regulations, the office shall closely consult with representatives from regulated entities, appropriate trade associations, fire service organizations, federal, state, and local organizations, including unified program agencies, and other interested parties.
(d) The UPA shall maintain one or more nonemergency contact numbers for release reports that do not require immediate agency response. The UPA shall promptly communicate changes to this information to regulated facilities and to the office.

SEC. 3.

 Section 101080.1 is added to the Health and Safety Code, to read:

101080.1.
 (a) (1) If Notwithstanding any other law, if a release, spill, escape, or entry entry, as described in paragraph (2) of subdivision (b) of Section 101075, of hazardous waste or a hazardous substance, as defined in Section 101075 or 25316, occurs and the director or local health officer reasonably determines that the release, spill, escape, or entry poses an imminent or substantial endangerment to public health, due to factors including, but not limited to, carcinogenicity, acute toxicity, chronic toxicity, bioaccumulative properties, or persistence in the air or environment, the director or local health officer officer, without declaring a local health emergency, may take the following actions to protect the health and safety of the public:
(A) Issue an order to the responsible party to immediately suspend or discontinue the activity causing or contributing to the release, spill, escape, or entry of the hazardous waste or hazardous substance. The order may be issued in coordination with the appropriate regulatory agency, including the unified program agency, as defined in Section 25404, if applicable, and shall remain in effect until the director or local health officer determines that the imminent or substantial endangerment to public health has been abated.
(B) Take any other action necessary to protect the public health, including, but not limited to, environmental investigations and temporary relief to, or relocation of, affected individuals.
(C) An action taken by the director of local health office to protect or preserve the public health pursuant to this section shall be supported by written findings.
(2) The director or local health officer, if taking an action pursuant to paragraph (1), shall consult with the state or local regulatory agency that has primary jurisdiction to regulate the entity that caused the release, spill, escape, or entry, in order to ensure that efforts are coordinated.
(b) A responsible party shall be liable for the costs incurred by the local health officer pursuant to this section.
(c) Providing resident assistance and reimbursement for local health officer expenses shall not relieve a responsible party from liability for damages, and any responsible party shall not condition assistance on, or request, a waiver of liability from a recipient of assistance.

SEC. 4.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because a local agency or school district has the authority to levy service charges, fees, or assessments sufficient to pay for the program or level of service mandated by this act, within the meaning of Section 17556 of the Government Code.