Code Section Group

Health and Safety Code - HSC

DIVISION 20. MISCELLANEOUS HEALTH AND SAFETY PROVISIONS [24000 - 26217]

  ( Division 20 enacted by Stats. 1939, Ch. 60. )

CHAPTER 6.5. Hazardous Waste Control [25100 - 25259]

  ( Chapter 6.5 added by Stats. 1972, Ch. 1236. )

ARTICLE 8.6. Development of Hazardous Waste Management Facilities on Indian Country [25198.1 - 25198.9]
  ( Article 8.6 added by Stats. 1991, Ch. 805, Sec. 3. )

25198.1.
  

As used in this article, unless the context clearly indicates otherwise, the following definitions apply:

(a)  “Indian country” has the same meaning as set forth in Section 1151 of Title 18 of the United States Code.

(b)  “Tribe” means an Indian tribe, band, nation, or other organized group or community, or a tribal agency authorized by a tribe as defined herein, which is recognized as eligible for special programs and services provided by the United States to Indians because of their status as Indians and is identified on pages 52829 to 52835, inclusive, of Number 250 of Volume 53 (December 29, 1988) of the Federal Register, as that list may be updated or amended from time to time.

(c)  “Hazardous waste” has the same meaning as set forth in Sections 25117 and 25117.9.

(d)  “Hazardous waste facility” has the same meaning as set forth in Section 25117.1.

(e)  “Operator” means a person who operates a hazardous waste facility.

(f)  “Owner” means a person who owns a hazardous waste facility.

(g)  “Secretary” means the Secretary for Environmental Protection.

(h)  “State” means the State of California and any agency or instrumentality thereof.

(i)  “Siting” means the physical suitability of a location proposed for a hazardous waste facility.

(Added by Stats. 1991, Ch. 805, Sec. 3.)

25198.2.
  

(a)  Upon receipt of a written request from any tribe considering a proposal to construct each hazardous waste facility in that tribe’s Indian country within this state, the secretary shall convene negotiations for purposes of reaching a cooperative agreement pursuant to this article, which will define the respective rights, duties, and obligations of the state and the tribe concerning the approval, development, and operation of the facility. In convening the negotiations, the secretary shall consult with the Department of Toxic Substances Control, the State Water Resources Control Board, the appropriate California regional water quality control board, the State Air Resources Board, and the appropriate air pollution control district or air quality management district.

(b)  This article does not apply to any facility located on Indian country within the state if it meets all of the following requirements:

(1)  The facility is owned and operated solely by a tribe.

(2)  All hazardous waste accepted by the facility is generated by that particular tribe.

(3)  The United States Environmental Protection Agency has approved the facility.

(Added by Stats. 1991, Ch. 805, Sec. 3.)

25198.3.
  

(a)  The secretary may enter into any cooperative agreement which meets the requirements of this article.

(b)  Each cooperative agreement shall include, but shall not be limited to, all requirements determined to be necessary to meet the requirements of subdivision (e) to do all of the following:

(1)  Protect water quality, as determined by the State Water Resources Control Board or the appropriate California regional water quality control board.

(2)  Protect air quality, as determined by the State Air Resources Board or the appropriate air pollution control officer.

(3)  Provide for proper management of hazardous materials and hazardous wastes, as determined necessary by the Department of Toxic Substances Control.

(4)  In making these determinations, the state agencies shall consider any applicable federal environmental and public health and safety laws.

(c)  A decision by the secretary whether to enter into a cooperative agreement shall be based on a good faith determination concerning whether a proposed cooperative agreement meets the requirements of this article. The secretary shall take this action within 130 days of a written request by the tribe that the secretary approve a draft cooperative agreement. At least 60 days prior to determining whether to enter into a cooperative agreement, the secretary shall provide notice, and make available for public review and comment, drafts of his or her proposed action and drafts of the findings and determinations that are required by this section. The secretary shall hold a public hearing in the affected area on the proposed action within the time period for taking that action, as specified in this section. Within 10 days after the close of the public review and comment period, the agencies shall complete the determinations required by this section and the secretary shall issue a final decision.

(d)  The findings and determinations of the secretary and relevant agencies made pursuant to this section shall explain material differences between state laws and regulations and the proposed tribal or federal functionally equivalent provisions. The findings and determinations do not need to explain each difference between the state and tribal or federal requirements as long as they identify and evaluate whether the material differences meet the requirements of this article, including, but not limited to, providing at least as much protection for public health and safety and the environment as would the state requirements.

(e)  Any cooperative agreement executed pursuant to this article shall provide for regulation of the hazardous waste facility through inclusion in the agreement of design, permitting, construction, siting, operation, monitoring, inspection, closure, postclosure, liability, enforcement, and other regulatory provisions applicable to a hazardous waste facility, or which relate to any environmental consequences that may be caused by facility construction or operation, that are functionally equivalent to all of the following:

(1)  Article 4 (commencing with Section 13260) of Chapter 4 of, Chapter 5 (commencing with Section 13300) of, and Chapter 5.5 (commencing with Section 13370) of, Division 7 of the Water Code.

(2)  Chapter 3 (commencing with Section 41700) of, Chapter 4 (commencing with Section 42300) of, and Chapter 5 (commencing with Section 42700) of, Part 4 of, and Part 6 (commencing with Section 44300) of, Division 26.

(3)  This chapter, Chapter 6.6 (commencing with Section 25249.5), Chapter 6.8 (commencing with Section 25300), and Chapter 6.95 (commencing with Section 25500).

(4)  All regulations adopted pursuant to the statutes specified in this section.

(5)  Any other provision of state environmental, public health, and safety laws and regulations germane to the hazardous waste facility proposed by the tribe.

(f)  The tribal organizational structures or other means of implementing the requirements specified in subdivision (e) are not required to be the same as the state organizational structures or means of implementing its system of regulation.

(g)  Neither the approval of any cooperative agreement nor amendments to the agreement, nor any determination of sufficiency provided in Section 25198.5, shall constitute a “project” as defined in Section 21065 of the Public Resources Code and shall not be subject to review pursuant to the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code).

(h)  Each cooperative agreement shall provide for the incorporation of the standards and requirements germane to the protection of the environment, public health, and safety listed in subdivision (e), as enacted, or as those provisions may be amended after January 1, 1992, or after the effective date of any cooperative agreement, if those standards and requirements meet both of the following requirements:

(1)  The standards and requirements do not discriminate against a tribe which has executed a cooperative agreement, or a lessee of the tribe, and are applicable to, or not more stringent than, other rules applicable to other similar or analogous facilities or operations outside Indian country.

(2)  Adequate notice and opportunity for comment on the incorporation of new and amended standards or requirements are provided to the tribe, facility owner, and operator to facilitate any physical or operational changes in the facility in accordance with state law.

(Amended by Stats. 1992, Ch. 427, Sec. 101. Effective January 1, 1993.)

25198.4.
  

(a)  A tribe shall be eligible for technical assistance to the extent feasible, from the agencies specified in subdivision (b) of Section 25198.3, for the design, establishment, and implementation of a permit system, cooperative monitoring programs, a tribal enforcement system, and implementation of any other regulatory requirement.

(b)  Each cooperative agreement shall provide for reasonable compensation to relevant state agencies for costs and expenses incurred by the state in connection with technical assistance provided to the tribe for the regulatory activities provided in this article, including, but not limited to, monitoring, enforcement, permitting, review, and other activities described in this article, and the reviews required by Section 25198.3, on a nondiscriminatory basis when compared with similar services to similar projects outside of Indian country.

(c)  Each cooperative agreement shall provide for the sharing of appropriate data and other information between any tribal regulatory body, any federal agency, the owner or operator, and applicable state agencies, including, but not limited to, all monitoring data collected respecting the hazardous waste facility. The agreement shall provide for confidentiality of privileged, proprietary, or trade secret information.

(d)  Each cooperative agreement shall include a dispute resolution mechanism for addressing issues of contract interpretation arising out of the cooperative agreement.

(e)  The parties to a cooperative agreement executed pursuant to this article may mutually agree to modifications of time periods for actions which are required by this article, except the time periods provided for public notice, review, and comment shall not be eliminated or reduced.

(f)  Each cooperative agreement shall require the relevant state agencies to provide detailed comments regarding completeness within 30 days after receiving copies of applications filed for tribal and applicable federal permits with respect to the deficiencies, if any, of the application with respect to the state standards identified in Section 25198.3. The failure of any of these state agencies to provide those comments within that period shall be deemed a finding of completeness of the respective applications.

(g)  Each cooperative agreement shall provide for reasonable access by state agency personnel to Indian country governed by a tribe which has executed a cooperative agreement pursuant to this article for purposes of assistance with permit application review, inspection, and monitoring of operation of a hazardous waste facility. The cooperative agreement shall also provide for reasonable access for purposes of permit application review and inspection, to the extent the state can provide that access, by tribal regulatory authorities to transfer stations, or similar facilities, located outside of Indian country and handling waste to be transferred to tribal lands.

(Added by Stats. 1991, Ch. 805, Sec. 3.)

25198.5.
  

(a)  Each cooperative agreement shall require the public agencies specified in subdivision (b) of Section 25198.3 to review any draft tribal permit and any applicable federal permit to determine whether it contains all conditions sufficient to do all of the following:

(1)  Meet the functionally equivalent standards provided in the cooperative agreement, as required by subdivision (e) of Section 25198.3.

(2)  Provide not less than the level of protection for public health, safety, and the environment that would have been the case if that state agency had issued the permit.

(3)  Implement all feasible mitigation measures. For purposes of this paragraph, “feasible” has the same meaning as in Sections 21001, 21002.1, and 21004 of the Public Resources Code, and any regulations adopted pursuant to those sections.

(b)  Each cooperative agreement shall provide that the tribal or federal permits issued for the hazardous waste facility meet the requirements of this section.

(c)  The failure of a party to a cooperative agreement to meet the requirements of this section shall be determined to be an actionable breach of the cooperative agreement.

(d)  The election by a party to a cooperative agreement to pursue a contractual remedy shall not limit the ability of a party to assert its respective claims of jurisdiction or sovereign immunity.

(e)  Entering into a cooperative agreement shall not be a basis for denying any remedy to which a party is otherwise entitled.

(f)  Within 10 days of issuance of a final federal permit or tribal permit, a copy of that permit shall be provided to the California Environmental Protection Agency and the tribe having jurisdiction over the facility.

(Amended by Stats. 1992, Ch. 427, Sec. 102. Effective January 1, 1993.)

25198.6.
  

(a)  Nothing in this article shall limit or expand, or be construed to limit or expand, the jurisdiction of any state agency specified in subdivision (b) of Section 25198.3 or any tribal agency with respect to any hazardous waste facility located in Indian country, including, but not limited to, the enforcement powers and procedures available to the state or any tribe with respect to those facilities to the extent not preempted by federal law, including, but not limited to, powers and procedures contained in state or tribal statutes or regulations.

(b)  The cooperative agreement shall provide that the state may exercise its enforcement powers over any hazardous waste facility project on Indian country where a cooperative agreement has been executed, subject to all of the following requirements:

(1)  A violation or threatened violation of any standard or requirement set forth in Section 25198.3, or its functional equivalent in the cooperative agreement, or any condition set forth in a cooperative agreement or permit for the facility, has occurred or is occurring. For purposes of this paragraph, “threatened violation” means a condition creating a substantial probability of harm, when the probability and potential extent of harm make it reasonably necessary to take immediate action to prevent, reduce, or mitigate damages to persons, property, or natural resources.

(2)  The violation or violations have been brought to the attention of the tribe and to the owner and operator of the hazardous waste facility, through written notice from the appropriate agency. The notice shall identify the specific violation or violations which are occurring or have occurred and a specific corrective or enforcement action or range of actions, including sufficient penalties. The notice shall include a specific and reasonable timeframe in which to take appropriate corrective or enforcement action.

(3)  The tribe, after receiving the notice, has failed to take the action or actions, or to take other reasonable action to abate or correct the violation or violations, in a reasonable time.

(c)  The functionally equivalent provisions of tribal or federal permits, as determined sufficient pursuant to Section 25198.3, together with any cooperative agreement approved pursuant to this article, shall collectively be deemed to constitute permits issued under state law for all purposes of enforcing state law.

(d)  Notwithstanding subdivision (b), each of the public agencies specified in subdivision (b) of Section 25198.3 may immediately exercise its enforcement powers over any hazardous waste facility project on Indian country where a cooperative agreement has been executed, if, in the judgment of the public agency, immediate state action is required to avoid an imminent and substantial threat to public health and safety or to the environment. The state shall notify the tribe prior to taking any action pursuant to this subdivision.

(Amended by Stats. 1992, Ch. 113, Sec. 2. Effective July 2, 1992.)

25198.7.
  

(a)  The cooperative agreement shall provide that the state or tribe may bring an appropriate civil action in a court of competent jurisdiction to enforce the terms of the cooperative agreement as a contract, and shall not limit the availability to either party of any remedy at law or in equity otherwise available under California law.

(b)  The cooperative agreement shall require that the tribe waive its sovereign immunity from any action brought by the state in any court otherwise having jurisdiction over the subject matter, and that the state shall waive its sovereign immunity from any action brought by the tribe, in any court otherwise having jurisdiction over the subject matter, to enforce the terms of the cooperative agreement.

(Added by Stats. 1991, Ch. 805, Sec. 3.)

25198.8.
  

A cooperative agreement executed pursuant to this article shall be executed for the express benefit of the citizens of this state.

(Added by Stats. 1991, Ch. 805, Sec. 3.)

25198.9.
  

Any person may commence a civil action on the person’s own behalf against any of the public agencies specified in subdivision (b) of Section 25198.3, or against the secretary, who is alleged to have approved or certified the sufficiency of any cooperative agreement or permit in violation of this article. No action may be commenced under this section more than 60 days after the agency or secretary has approved or certified the sufficiency of any cooperative agreement or permit under this article.

(Added by Stats. 1991, Ch. 805, Sec. 3.)

HSCHealth and Safety Code - HSC8.6.