BILL NUMBER: AB 2589 CHAPTERED 09/09/02 CHAPTER 443 FILED WITH SECRETARY OF STATE SEPTEMBER 9, 2002 APPROVED BY GOVERNOR SEPTEMBER 9, 2002 PASSED THE ASSEMBLY AUGUST 15, 2002 PASSED THE SENATE AUGUST 12, 2002 AMENDED IN SENATE AUGUST 5, 2002 AMENDED IN SENATE JUNE 28, 2002 AMENDED IN ASSEMBLY MAY 1, 2002 INTRODUCED BY Assembly Member Cardoza FEBRUARY 21, 2002 An act to amend Sections 11479.5 and 25354.5 of the Health and Safety Code, relating to controlled substances. LEGISLATIVE COUNSEL'S DIGEST AB 2589, Cardoza. Controlled substances: destruction of hazardous chemicals. (1) Existing law provides that at any time after seizure by a law enforcement agency of a suspected hazardous chemical believed to have been used or intended to have been used in the unlawful manufacture of controlled substances, that amount in excess of one fluid ounce if liquid, or one avoirdupois ounce if solid, of each different type of suspected hazardous chemical and its container may be disposed of without a court order by the seizing agency. This bill would make the above provision expressly applicable to chemical containers and items contaminated with a hazardous substance, as specified. (2) Existing law provides that the destruction of suspected hazardous chemicals shall not take place until specified requirements are met. This bill would add to the requirements that must be met before destruction may take place a requirement to take photographs of the chemical containers and items contaminated with a hazardous substance that reasonably demonstrate their size. By increasing the duties of a local law enforcement agency, this bill would impose a state-mandated local program upon local governments. (3) Existing law provides that subsequent to any disposal of a suspected hazardous chemical and its container, the law enforcement agency involved shall maintain records, as specified, and shall specify the date and time of the disposal. Existing law provides that subsequent to any destruction of a suspected controlled substance in combination with a hazardous chemical, an affidavit shall be filed within 30 days in the court that has jurisdiction over any pending criminal proceedings pertaining to that suspected controlled substance, reciting specified information. This bill would, with respect to the destruction of a suspected controlled substance in combination with a hazardous chemical, provide that, if a search warrant was issued, an affidavit containing specified information shall be filed in the court that issued the search warrant. (4) The bill would make conforming changes to related provisions. (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, including the creation of a State Mandates Claims Fund to pay the costs of mandates that do not exceed $1,000,000 statewide and other procedures for claims whose statewide costs exceed $1,000,000. This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 11479.5 of the Health and Safety Code is amended to read: 11479.5. (a) Notwithstanding Sections 11473 and 11473.5, at any time after seizure by a law enforcement agency of a suspected hazardous chemical, the chemical's container, or any item contaminated with a hazardous substance believed to have been used or intended to have been used in the unlawful manufacture of controlled substances, that amount in excess of one fluid ounce if liquid, or one avoirdupois ounce if solid, of each different type of suspected hazardous chemical, its container, and any item contaminated with a hazardous substance may be disposed of without a court order by the seizing agency. For the purposes of this section, "hazardous chemical" means any material that is believed by the chief of the law enforcement agency, or his or her designee, to be toxic, carcinogenic, explosive, corrosive, or flammable, and that is believed by the chief of the law enforcement agency, or his or her designee, to have been used or intended to have been used in the unlawful manufacture of controlled substances. (b) Destruction pursuant to this section of suspected hazardous chemicals or suspected hazardous chemicals and controlled substances in combination, or the chemical containers and items contaminated with a hazardous substance, shall not take place until all of the following requirements are met: (1) At least a one ounce sample is taken from each different type of suspected hazardous chemical to be destroyed. (2) At least a one ounce sample has been taken from each container of a mixture of a suspected hazardous chemical with a suspected controlled substance. (3) Photographs have been taken which reasonably demonstrate the total amount of suspected controlled substances and suspected hazardous chemicals to be destroyed. (4) The gross weight or volume of the suspected hazardous chemical seized has been determined. (5) Photographs have been taken of the chemical containers and items contaminated with a hazardous substance that reasonably demonstrate their size. (c) Subsequent to any disposal of a suspected hazardous chemical, its container, or any item contaminated with a hazardous substance pursuant to this section, the law enforcement agency involved shall maintain records concerning the details of its compliance with, and reciting the applicable information required by paragraphs (1), (2), (3), (4), and (5) of subdivision (b), together with the information establishing the location of the suspected hazardous chemical, its container, and any item contaminated with a hazardous substance, and specifying the date and time of the disposal. (d) (1) Subsequent to any destruction of a suspected controlled substance in combination with a hazardous chemical or any item contaminated with a hazardous substance pursuant to this section, an affidavit containing applicable information required by paragraphs (1), (2), (3), (4), and (5) of subdivision (b) shall be filed within 30 days in the court that issued the search warrant. (2) If the disposed materials were seized without a warrant, an affidavit containing applicable information required by paragraphs (1), (2), (3), (4), and (5) of subdivision (b) shall be filed in the court that has jurisdiction over any criminal proceedings pertaining to the suspected controlled substance after the criminal proceedings are initiated. (e) A law enforcement agency responsible for the disposal of any hazardous chemical shall comply with the provisions of Chapter 6.5 (commencing with Section 25100) of Division 20 of the Health and Safety Code, as well as all applicable state and federal statutes and regulations. SEC. 2. Section 25354.5 of the Health and Safety Code is amended to read: 25354.5. (a) Any state or local law enforcement officer or investigator or other law enforcement agency employee who, in the course of an official investigation or enforcement action regarding the manufacture of any illegal controlled substance, comes in contact with, or is aware of, the presence of a substance that the person suspects is a hazardous substance at a site where an illegal controlled substance is or was manufactured, shall notify the department for the purpose of taking removal action, as necessary, to prevent, minimize, or mitigate damage that might otherwise result from the release or threatened release of the hazardous substance, except for samples required under Section 11479.5 to be kept for evidentiary purposes. (b) (1) Notwithstanding any other provision of law, upon receipt of a notification pursuant to subdivision (a), the department shall take removal action, as necessary, with respect to any hazardous substance that is an illegal controlled substance, a precursor of a controlled substance, a material intended to be used in the unlawful manufacture of a controlled substance and any container for such a material, a waste material from the unlawful manufacture of a controlled substance, or any other item contaminated with a hazardous substance used or intended to be used in the manufacture of a controlled substance. The department may expend funds appropriated from the Illegal Drug Lab Cleanup Account created pursuant to subdivision (e) to pay the costs of removal actions required by this section. The department may enter into oral contracts, not to exceed ten thousand dollars ($10,000) in obligation, when, in the judgment of the department, immediate corrective action to a hazardous substance subject to this section is necessary to remedy or prevent an emergency. (2) The department shall, as soon as the information is available, report the location of any removal action that will be carried out pursuant to paragraph (1), and the time that the removal action will be carried out, to the local environmental health officer within whose jurisdiction the removal action will take place, if the local environmental officer does both of the following: (A) Requests, in writing, that the department report this information to the local environmental health officer. (B) Provides the department with a single 24-hour telephone number to which the information can be reported. (c) (1) For purposes of Chapter 6.5 (commencing with Section 25100) or this chapter, any person who is found to have operated a site for the purpose of manufacturing an illegal controlled substance or a precursor of an illegal controlled substance is the generator of any hazardous substance at, or released from, the site that is subject to removal action pursuant to this section. (2) During the removal action, for purposes of complying with the manifest requirements in Section 25160, the department, the county health department, the local environmental health officer, or their designee may sign the hazardous waste manifest as the generator of the hazardous waste. In carrying out that action, the department, the county health department, the local environmental health officer, or their designee shall be considered to have acted in furtherance of their statutory responsibilities to protect the public health and safety and the environment from the release, or threatened release, of hazardous substances, and the department, the county health department, the local environmental health officer, or their designee are not responsible parties for the release or threatened release of the hazardous substances. (3) The officer, investigator, or agency employee specified in subdivision (a) is not a responsible party for the release or threatened release of any hazardous substances at, or released from, the site. (d) The department may adopt regulations to implement this section in consultation with appropriate law enforcement and local environmental agencies. (e) The Illegal Drug Lab Cleanup Account is hereby created in the General Fund and the department may expend any money in the account, upon appropriation by the Legislature, to carry out the removal actions required by this section. The account shall be funded by moneys appropriated directly from the General Fund. (f) The responsibilities assigned to the department by this section apply only to the extent that sufficient funding is made available for that purpose. SEC. 3. Notwithstanding Section 17610 of the Government Code, if the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code. If the statewide cost of the claim for reimbursement does not exceed one million dollars ($1,000,000), reimbursement shall be made from the State Mandates Claims Fund.