BILL NUMBER: AB 1329 CHAPTERED 10/14/01 CHAPTER 866 FILED WITH SECRETARY OF STATE OCTOBER 14, 2001 APPROVED BY GOVERNOR OCTOBER 13, 2001 PASSED THE ASSEMBLY SEPTEMBER 13, 2001 PASSED THE SENATE SEPTEMBER 12, 2001 AMENDED IN SENATE SEPTEMBER 7, 2001 AMENDED IN SENATE AUGUST 22, 2001 AMENDED IN SENATE JULY 9, 2001 AMENDED IN SENATE JUNE 26, 2001 AMENDED IN ASSEMBLY APRIL 23, 2001 INTRODUCED BY Assembly Member Lowenthal FEBRUARY 23, 2001 An act to amend Sections 25143.2, 25144, and 25198 of the Health and Safety Code, relating to hazardous waste. LEGISLATIVE COUNSEL'S DIGEST AB 1329, Lowenthal. Hazardous waste testing laboratories: recyclable materials. (1) Under existing law, the analysis of any material required by the hazardous waste control laws is to be performed by a laboratory certified by the State Department of Health Services pursuant to the provisions regulating environmental laboratories. Until January 1, 2001, analyses performed by a laboratory pursuant to the facility's waste analysis plan that were prepared in accordance with specified regulations were exempt from those requirements, if the laboratory met specified conditions. This bill would reenact that exemption for those analyses performed by a laboratory pursuant to the facility's waste analysis plan. (2) Under existing law, recyclable materials are subject to the requirements of the hazardous waste control laws, but specified recyclable materials are excluded from classification as a waste if they meet certain requirements, including if the recyclable material is used or reused as an ingredient in an industrial product or as a safe and effective substitute for a commercial product and is subject to specified treatment procedures. Existing law provides that certain units, including associated piping, that are part of a system used for the recovery of oil from oil-bearing materials, and the associated storage of oil-bearing materials and the recovered oil, are exempt from the hazardous waste control laws if specified conditions are met, notwithstanding certain requirements concerning recyclable materials. A violation of any requirement of the hazardous waste control law is a crime. This bill would additionally require that a recyclable material that is used or reused as an ingredient to make a product or a substitute for a commercial product not be a wastewater containing more than 75 parts per million of total petroleum hydrocarbons that is transported offsite to a specified facility. Because a violation of this requirement would be a crime, the bill would impose a state-mandated local program. The bill would make conforming changes to the provisions exempting systems for recovering oil for oil-bearing materials. (3) 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. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 25143.2 of the Health and Safety Code is amended to read: 25143.2. (a) Recyclable materials are subject to this chapter and the regulations adopted by the department to implement this chapter that apply to hazardous wastes, unless the department issues a variance pursuant to Section 25143, or except as provided otherwise in subdivision (b), (c), or (d) or in the regulations adopted by the department pursuant to Sections 25150 and 25151. (b) Except as otherwise provided in subdivisions (e), (f), and (g), recyclable material that is managed in accordance with Section 25143.9 and is or will be recycled by any of the following methods shall be excluded from classification as a waste: (1) Used or reused as an ingredient in an industrial process to make a product if the material is not being reclaimed. (2) Used or reused as a safe and effective substitute for commercial products if the material is not being reclaimed. (3) Returned to the original process from which the material was generated, without first being reclaimed, if the material is returned as a substitute for raw material feedstock, and the process uses raw materials as principal feedstocks. (c) Except as otherwise provided in subdivision (e), any recyclable material may be recycled at a facility that is not authorized by the department pursuant to the applicable hazardous waste facilities permit requirements of Article 9 (commencing with Section 25200) if either of the following requirements is met: (1) The material is a petroleum refinery waste containing oil that is converted into petroleum coke at the same facility at which the waste was generated unless the resulting coke product would be identified as a hazardous waste under this chapter. (2) The material meets all of the following conditions: (A) The material is recycled and used at the same facility at which the material was generated. (B) The material is recycled within the applicable generator accumulation time limits specified in Section 25123.3 and the regulations adopted by the department pursuant to paragraph (1) of subdivision (b) of Section 25123.3. (C) The material is managed in accordance with all applicable requirements for generators of hazardous wastes under this chapter and regulations adopted by the department. (d) Except as otherwise provided in subdivisions (e), (f), (g), and (h), recyclable material that meets the definition of a non-RCRA hazardous waste in Section 25117.9, is managed in accordance with Section 25143.9, and meets or will meet any of the following requirements is excluded from classification as a waste: (1) The material can be shown to be recycled and used at the site where the material was generated. (2) The material qualifies as one or more of the following: (A) The material is a product that has been processed from a hazardous waste, or has been handled, at a facility authorized by the department pursuant to the facility permit requirements of Article 9 (commencing with Section 25200) to process or handle the material, if the product meets both of the following conditions: (i) The product does not contain constituents, other than those for which the material is being recycled, that render the material hazardous under regulations adopted pursuant to Sections 25140 and 25141. (ii) The product is used, or distributed or sold for use, in a manner for which the product is commonly used. (B) The material is a petroleum refinery waste containing oil that is converted into petroleum coke at the same facility at which the waste was generated, unless the resulting coke product would be identified as a hazardous waste under this chapter. (C) The material is oily waste, used oil, or spent nonhalogenated solvent that is managed by the owner or operator of a refinery that is processing primarily crude oil and is not subject to permit requirements for the recycling of used oil, of a public utility, or of a corporate subsidiary, corporate parent, or subsidiary of the same corporate parent of the refinery or public utility, and meets all of the following requirements: (i) The material is either burned in an industrial boiler, an industrial furnace, an incinerator, or a utility boiler that is in compliance with all applicable federal and state laws, or is recombined with normal process streams to produce a fuel or other refined petroleum product. (ii) The material is managed at the site where it was generated; managed at another site owned or operated by the generator, a corporate subsidiary of the generator, a subsidiary of the same entity of which the generator is a subsidiary, or the corporate parent of the generator; or, if the material is generated in the course of oil or gas exploration or production, managed by an unrelated refinery receiving the waste through a common pipeline. (iii) The material does not contain constituents, other than those for which the material is being recycled, that render the material hazardous under regulations adopted pursuant to Sections 25140 and 25141, unless the material is an oil-bearing material or recovered oil that is managed in accordance with subdivisions (a) and (c) of Section 25144 or unless the material is used oil removed from equipment, vehicles, or engines used primarily at the refinery where it is to be used to produce fuels or other refined petroleum products and the used oil is managed in accordance with Section 279.22 of Title 40 of the Code of Federal Regulations prior to insertion into the refining process. (D) The material is a fuel that is transferred to, and processed into, a fuel or other refined petroleum product at a petroleum refinery, as defined in paragraph (4) of subdivision (a) of Section 25144, and meets one of the following requirements: (i) The fuel has been removed from a fuel tank and is contaminated with water or nonhazardous debris, of not more than 2 percent by weight, including, but not limited to, rust or sand. (ii) The fuel has been unintentionally mixed with an unused petroleum product. (3) The material is transported between locations operated by the same person who generated the material, if the material is recycled at the last location operated by that person and all of the conditions of clauses (i) to (vi), inclusive, of subparagraph (A) of paragraph (4) are met. If requested by the department or by any official authorized to enforce this section pursuant to subdivision (a) of Section 25180, a person handling material subject to this paragraph, within 15 days from the date of receipt of the request, shall supply documentation to show that the requirements of this paragraph have been satisfied. (4) (A) The material is transferred between locations operated by the same person who generated the material, if the material is to be recycled at an authorized offsite hazardous waste facility and if all of the following conditions are met: (i) The material is transferred by employees of that person in vehicles under the control of that person or by a registered hazardous waste hauler under contract to that person. (ii) The material is not handled at any interim location. (iii) The material is not held at any publicly accessible interim location for more than four hours unless required by other provisions of law. (iv) The material is managed in compliance with this chapter and the regulations adopted pursuant to this chapter prior to the initial transportation of the material and after the receipt of the material at the last location operated by that person. Upon receipt of the material at the last location operated by that person, the material shall be deemed to have been generated at that location. (v) All of the following information is maintained in an operating log at the last location operated by that person and kept for at least three years after receipt of the material at that location: (I) The name and address of each generator location contributing material to each shipment received. (II) The quantity and type of material contributed by each generator to each shipment of material. (III) The destination and intended disposition of all material shipped offsite or received. (IV) The date of each shipment received or sent offsite. (vi) If requested by the department, or by any law enforcement official, a person handling material subject to this paragraph, within 15 days from the date of receipt of the request, shall supply documentation to show that the requirements of this paragraph have been satisfied. (B) For purposes of paragraph (3) and subparagraph (A) of this paragraph, "person" also includes corporate subsidiary, corporate parent, or subsidiary of the same corporate parent. (C) Persons that are a corporate subsidiary, corporate parent, or subsidiary of the same corporate parent, and that manage recyclable materials under paragraph (3) or subparagraph (A) of this paragraph, are jointly and severally liable for any activities excluded from regulation pursuant to this section. (5) The material is used or reused as an ingredient in an industrial process to make a product if the material meets all of the following requirements: (A) The material is not a wastewater that meets all of the following criteria: (i) The wastewater is a non-RCRA hazardous waste. (ii) The wastewater contains more than 75 parts per million of total petroleum hydrocarbons, as determined by use of United States Environmental Protection Agency Method 1664, Revision A for Silica Gel Treated N-Hexane Extractable Material. (iii) The wastewater has been transported offsite to a facility, that is not a publicly owned treatment works, a facility owned by the generator, or a corporate subsidiary, corporate parent, or a subsidiary of the same corporate parent of the generator. (B) Any discharges to air from the treatment of the material by the procedures specified in subparagraph (C) do not contain constituents that are hazardous wastes pursuant to the regulations of the department and are in compliance with applicable air pollution control laws. (C) The material is not being treated except by one or more of the following procedures: (i) Filtering. (ii) Screening. (iii) Sorting. (iv) Sieving. (v) Grinding. (vi) Physical or gravity separation without the addition of external heat or any chemicals. (vii) pH adjustment. (viii) Viscosity adjustment. (6) The material is used or reused as a safe and effective substitute for commercial products, if the material meets all of the following requirements: (A) The material is not a wastewater that meets all of the following criteria: (i) The wastewater is a non-RCRA hazardous waste. (ii) The wastewater contains more than 75 parts per million of total petroleum hydrocarbons, as determined by use of United States Environmental Protection Agency Method 1664, Revision A for Silica Gel Treated N-Hexane Extractable Material. (iii) The wastewater has been transported offsite to a facility that is not a publicly owned treatment works, or a facility owned by the generator, or a corporate subsidiary, corporate parent, or a subsidiary of the same corporate parent of the generator. (B) Any discharges to air from the treatment of the material by the procedures specified in subparagraph (C) do not contain constituents that are hazardous wastes pursuant to the regulations of the department and the discharges are in compliance with applicable air pollution control laws. (C) The material is not being treated, except by one or more of the following procedures: (i) Filtering. (ii) Screening. (iii) Sorting. (iv) Sieving. (v) Grinding. (vi) Physical or gravity separation without the addition of external heat or any chemicals. (vii) pH adjustment. (viii) Viscosity adjustment. (7) The material is a chlorofluorocarbon or hydrochlorofluorocarbon compound or a combination of chlorofluorocarbon or hydrochlorofluorocarbon compounds, is being reused or recycled, and is used in heat transfer equipment, including, but not limited to, mobile air-conditioning systems, mobile refrigeration, and commercial and industrial air-conditioning and refrigeration systems, used in fire extinguishing products, or contained within foam products. (e) Notwithstanding subdivisions (b), (c), and (d), all of the following recyclable materials are hazardous wastes and subject to full regulation under this chapter, even if the recycling involves use, reuse, or return to the original process as described in subdivision (b), and even if the recycling involves activities or materials described in subdivisions (c) and (d): (1) Materials that are a RCRA hazardous waste, as defined in Section 25120.2, used in a manner constituting disposal, or used to produce products that are applied to the land, including, but not limited to, materials used to produce a fertilizer, soil amendment, agricultural mineral, or an auxiliary soil and plant substance. (2) Materials that are a non-RCRA hazardous waste, as defined in Section 25117.9, and used in a manner constituting disposal or used to produce products that are applied to the land as a fertilizer, soil amendment, agricultural mineral, or an auxiliary soil and plant substance. The department may adopt regulations to exclude materials from regulation pursuant to this paragraph. (3) Materials burned for energy recovery, used to produce a fuel, or contained in fuels, except materials exempted under paragraph (1) of subdivision (c) or excluded under subparagraph (B), (C), or (D) of paragraph (2) of subdivision (d). (4) Materials accumulated speculatively. (5) Materials determined to be inherently wastelike pursuant to regulations adopted by the department. (6) Used or spent etchants, stripping solutions, and plating solutions that are transported to an offsite facility operated by a person other than the generator and either of the following applies: (A) The etchants or solutions are no longer fit for their originally purchased or manufactured purpose. (B) If the etchants or solutions are reused, the generator and the user cannot document that they are used for their originally purchased or manufactured purpose without prior treatment. (7) Used oil, as defined in subdivision (a) of Section 25250.1, unless one of the following applies: (A) The used oil is excluded under subparagraph (B) or (C) of paragraph (2) of subdivision (d), paragraph (4) of subdivision (d), subdivision (b) of Section 25250.1, or Section 25250.3, and is managed in accordance with the applicable requirements of Part 279 (commencing with Section 279.1) of Title 40 of the Code of Federal Regulations. (B) The used oil is used or reused on the site where it was generated or is excluded under paragraph (3) of subdivision (d), is managed in accordance with the applicable requirements of Part 279 (commencing with Section 279.1) of Title 40 of the Code of Federal Regulations, and is not any of the following: (i) Used in a manner constituting disposal or used to produce a product that is applied to land. (ii) Burned for energy recovery or used to produce a fuel unless the used oil is excluded under subparagraph (B) or (C) of paragraph (2) of subdivision (d). (iii) Accumulated speculatively. (iv) Determined to be inherently wastelike pursuant to regulations adopted by the department. (f) (1) Any person who manages a recyclable material under a claim that the material qualifies for exclusion or exemption pursuant to this section shall provide, upon request, to the department, the California Environmental Protection Agency, or any local agency or official authorized to bring an action as provided in Section 25180, all of the following information: (A) The name, street and mailing address, and telephone number of the owner or operator of any facility that manages the material. (B) Any other information related to the management by that person of the material requested by the department, the California Environmental Protection Agency, or the authorized local agency or official. (2) Any person claiming an exclusion or an exemption pursuant to this section shall maintain adequate records to demonstrate to the satisfaction of the requesting agency or official that there is a known market or disposition for the material, and that the requirements of any exemption or exclusion pursuant to this section are met. (3) For purposes of determining that the conditions for exclusion from classification as a waste pursuant to this section are met, any person, facility, site, or vehicle engaged in the management of a material under a claim that the material is excluded from classification as a waste pursuant to this section is subject to Section 25185. (g) For purposes of Chapter 6.8 (commencing with Section 25300), recyclable materials excluded from classification as a waste pursuant to this section are not excluded from the definition of hazardous substances in subdivision (g) of Section 25316. (h) Used oil that fails to qualify for exclusion pursuant to subdivision (d) solely because the used oil is a RCRA hazardous waste may be managed pursuant to subdivision (d) if the used oil is also managed in accordance with the applicable requirements of Part 279 (commencing with Section 279.1) of Title 40 of the Code of Federal Regulations. SEC. 2. Section 25144 of the Health and Safety Code is amended to read: 25144. (a) For purposes of this section, the following terms have the following meaning: (1) "Oil" means crude oil, or any fraction thereof, that is liquid at 60 degrees Fahrenheit and 14.7 pounds per square inch absolute pressure. "Oil" does not include any of the following, unless it is exempt from regulation under paragraph (1) of subdivision (g) of Section 279.10 of, or paragraph (5) of subdivision (g) of Section 279.10 of, Part 279 of Title 40 of the Code of Federal Regulations: (A) Spent lubricating fluids that have been removed from an engine crankcase, transmission, gearbox, or differential of an automobile, bus, truck, vessel, heavy equipment, or machinery powered by an internal combustion engine. (B) Spent industrial oils, including compressor, turbine, and bearing oil, hydraulic oil, metal-working oil, refrigeration oil, and railroad drainings. (2) "Oil-bearing materials" means any liquid or semisolid material containing oil, partially refined petroleum products, or petroleum products. "Oil-bearing materials" do not include either of the following: (A) Soil from remediation projects. (B) Contaminated groundwater that is generated at, or originating from the operation, maintenance, or cleanup of, service stations, as defined in Section 13650 of the Business and Professions Code. (3) "Oil recovery operations" means the physical separation of oil from oil-bearing materials by means of gravity separation, centrifugation, filter pressing, or other dewatering processes, with or without the addition of heat, chemical flocculants, air, or natural gas to enhance separation. (4) "Petroleum refinery" means an establishment that has the Standard Industrial Classification Code 2911 and that is not subject to the permit requirements for the recycling of used oil imposed pursuant to Article 9 (commencing with Section 25200). (5) "Subsidiary" means a corporate entity engaged in the exploration, production, transportation, refining, marketing, or distribution of crude oil or petroleum products. (b) (1) Except as provided in paragraph (2), a biological process on the property of the producer treating oil, its products, and water, that meets the definition of a non-RCRA waste, and that produces an effluent that is continuously discharged to navigable waters in compliance with a permit issued pursuant to Section 402 of the Federal Water Pollution Control Act (33 U.S.C. Sec. 1342), is exempt from this chapter. (2) Residues produced in the treatment process and subsequently removed that conform to any criterion for the identification of a hazardous waste adopted pursuant to Section 25141 are not exempt from this chapter. (c) To the extent consistent with the applicable provisions of the federal act, units, including associated piping, that are part of a system used for the recovery of oil from oil-bearing materials, and the associated storage of oil-bearing materials and the recovered oil, are exempt from this chapter, if all of the following conditions are met: (1) The oil recovery operations are conducted at a petroleum refinery, or at another facility owned or operated by the corporate entity that owns or operates the refinery, or a corporate parent or subsidiary of the corporate entity. (2) The oil-bearing materials are generated at the refinery or at another facility owned or operated by the corporate entity that owns or operates the refinery, or a corporate parent or subsidiary, including a sister subsidiary, of the corporate entity, or are generated in the course of oil or gas exploration or production operations conducted by an unrelated entity and placed in a common pipeline. (3) The recovered oil is inserted into petroleum refinery process units to produce fuel or other refined petroleum products. This paragraph does not allow the direct blending, into final petroleum products, of oil-bearing materials or recovered oil that contain constituents that render these materials hazardous under the regulations adopted pursuant to Sections 25140 and 25141, other than those for which the material is being recycled. (4) The recovered oil is not stored in a surface impoundment or accumulated speculatively at the refinery or at an offsite facility. (5) Any residual materials removed from a unit that is exempt under this subdivision are managed in accordance with all other applicable laws. (6) The oil-bearing materials would be excluded from classification as a waste pursuant to, or would otherwise meet the requirements for an exemption under, Section 25143.2, except that the following provisions do not apply to those oil-bearing materials: (A) The prohibitions against prior reclamation in paragraphs (1), (2), and (3) of subdivision (b) of Section 25143.2. (B) Subparagraph (C) of paragraph (2) of subdivision (c) of Section 25143.2. (C) Paragraph (3) of subdivision (e) of Section 25143.2. (D) Sections 25143.9 and 25143.10. (E) The exceptions for wastewater containing more than 75 parts per million of total petroleum hydrocarbons, as provided by subparagraph (A) of paragraph (5) of, and subparagraph (A) of paragraph (6) of, subdivision (d) of Section 25143.2. SEC. 3. Section 25198 of the Health and Safety Code is amended to read: 25198. (a) For purposes of this section, "state department" means the State Department of Health Services. (b) Except as provided in subdivision (c), the analysis of any material required by this chapter shall be performed by a laboratory certified by the state department pursuant to Article 3 (commencing with Section 100825) of Chapter 4 of Part 1 of Division 101, except that laboratories previously issued a certificate under this section shall be deemed certified until the time that certification under Article 3 (commencing with Section 100825) of Chapter 4 of Part 1 of Division 101 has been either granted or denied, but not beyond the expiration date shown on the certificate previously issued under this section. (c) The requirements of subdivision (b) shall not apply to analyses performed by a laboratory pursuant to the facility's waste analysis plan, that is prepared in accordance with the regulations adopted by the Department of Toxic Substances Control pursuant to this chapter, if both of the following conditions are met: (1) The laboratory is owned or operated by the same person who owns or operates the facility at which the waste will be managed, and the facility is a hazardous waste treatment, storage, or disposal facility that is required to obtain a hazardous waste facilities permit pursuant to Article 9 (commencing with Section 25200). (2) The analysis is conducted for any of the following purposes: (A) To determine whether a facility will accept the hazardous waste for transfer, storage, or treatment, as described in paragraph (3) of subdivision (a) of Section 66264.13 of, and paragraph (3) of subdivision (a) of Section 66265.13 of, Title 22 of the California Code of Regulations, as those sections read on January 1, 2001. (B) To ensure that the analysis used to determine whether a facility will accept the hazardous waste for transfer, storage, or treatment is accurate and up to date, as described in paragraph (4) of subdivision (a) of Section 66264.13 of, and paragraph (4) of subdivision (a) of Section 66265.13 of, Title 22 of the California Code of Regulations, as those sections read on January 1, 2001. (C) To determine whether the hazardous waste received at the facility for transfer, storage, or treatment matches the identity of the hazardous waste designated on an accompanying manifest or shipping paper, as described in paragraph (5) of subdivision (a) of Section 66264.13 of, and paragraph (5) of subdivision (a) of Section 66265.13 of, the California Code of Regulations, as those sections read on January 1, 2001. (d) An analysis performed in accordance with subdivision (c) is not an analysis performed for regulatory purposes within the meaning of paragraph (19) of subdivision (c) of Section 100825. (e) The exemption provided by subdivision (c) does not exempt the analyses of waste for purposes of disposal from the requirements of subdivision (b) requiring certified laboratory analyses. The analyses described in subdivision (c) are not exempt from any other requirement of law, regulation, or guideline governing quality assurance and quality control. (f) No person or public entity of the state shall contract with a laboratory for environmental analyses for which certification is required pursuant to this chapter, unless the laboratory holds a valid certificate. SEC. 4. No reimbursement is required by this act pursuant to Section 6 of Article XIIIB 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 XIIIB of the California Constitution.