BILL NUMBER: AB 2159	CHAPTERED
	BILL TEXT

	CHAPTER  448
	FILED WITH SECRETARY OF STATE  SEPTEMBER 10, 2004
	APPROVED BY GOVERNOR  SEPTEMBER 10, 2004
	PASSED THE ASSEMBLY  AUGUST 19, 2004
	PASSED THE SENATE  AUGUST 17, 2004
	AMENDED IN SENATE  AUGUST 12, 2004
	AMENDED IN SENATE  JULY 12, 2004
	AMENDED IN SENATE  JUNE 21, 2004
	AMENDED IN ASSEMBLY  APRIL 12, 2004

INTRODUCED BY   Assembly Member Reyes

                        FEBRUARY 18, 2004

   An act to amend Sections 44002, 44015, 44300, 44305, 44307, 44308,
44309, 44310, 45005, 45017, 45030, 45032, 45033, and 45041 of, and
to add Sections 45002 and 45022.5 to, the Public Resources Code,
relating to solid waste.



	LEGISLATIVE COUNSEL'S DIGEST


   AB 2159, Reyes.  Solid waste facilities:  orders.
   (1) The existing California Integrated Waste Management Act of
1989, which is administered by the California Integrated Waste
Management Board, establishes an integrated solid waste management
program.
   Existing law prohibits a person from operating a solid waste
facility without a solid waste facilities permit if that facility is
required to have a permit pursuant to the act, and requires the
enforcement agency to immediately issue a cease and desist order
ordering the facility to immediately cease operations and directing
the owner or operator of the facility to obtain a permit.  Existing
law authorizes an enforcement agency to issue a cease and desist
order to a person who is taking certain unlawful actions under the
act.  Existing law requires all orders and determinations issued
under that act to take effect immediately after any time period for
appeal has expired.  However, under existing law, a request for a
hearing stays the effect of the order pending completion of all
appeals, but a request for a hearing does not stay a provision of the
order, or the order as a whole, when there is an imminent and
substantial threat to public health and safety or the environment, as
specified.  Existing law specifies a procedure for the appeal of an
order issued by an enforcement agency, including review by a hearing
panel.  Existing law allows an aggrieved person to file an appeal
with the board to review the written decision of a hearing panel and
the board is authorized to determine, within 30 days from the date
after the appeal is filed, whether to hear the appeal.
   This bill would specify that this prohibition on operating without
a permit includes the operation of a solid waste facility without a
required solid waste facilities permit or the operation of a solid
waste facility outside the permitted boundaries specified in a solid
waste facilities permit.
   The bill would require the order issued by an enforcement agency
to require the cessation of all activities for which a permit is
required until the permit or other authorization is obtained.
   The bill would provide that an order issued under the act takes
effect immediately upon service, but would provide that a request for
a hearing would stay the order until the date of the completion of
all administrative appeals.  The bill would provide that a cease and
desist order takes effect upon service and that a request for a
hearing would not stay the order, under specified conditions.
   The bill would revise the provisions for the conduct of hearings
to require a written filing and a statement of the issues and would
require the enforcement agency to comply with a specified time
schedule regarding the conduct of the hearing.
   This bill would additionally allow a hearing by an enforcement
agency to be conducted by a hearing officer appointed by the
governing body of an enforcement agency, pursuant to procedures
adopted by that governing body.
   The bill would revise the procedures for appealing the decision of
the hearing panel or hearing officer to the board and would delete
the prohibition on the board from reducing the amount of a civil
penalty.
   The bill would require the board to hear an appeal within 60 days
after the board receives a request for the appeal.
   The bill would also make changes with regard to the appeal of a
decision on other matters by a hearing panel or hearing officer.
   (2) Existing law requires an enforcement agency that receives a
complaint concerning a solid waste facility that the agency does not
refer to another state agency to take appropriate enforcement action
concerning the facility, refer the complaint to the Attorney General,
the district attorney, or city attorney, whichever is applicable,
or, provide the person who filed the complaint with a specified
written statement.
   This bill would require an enforcement agency to maintain a record
of, and take any action that the enforcement agency is authorized to
take regarding, a complaint, referral, or inspection relating to the
operation of a solid waste facility or other activity within the
jurisdiction of the enforcement agency that is an excluded operation,
as specified.
   (3) The bill would impose a state-mandated local program by
requiring enforcement agencies to take specified solid waste
enforcement actions.
  (4) 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 44002 of the Public Resources Code is amended
to read:
   44002.  (a) (1) No person shall operate a solid waste facility
without a solid waste facilities permit if that facility is required
to have a permit pursuant to this division.
   (2) The prohibition specified in paragraph (1) includes, but is
not limited to, the operation of a solid waste facility without a
required solid waste facilities permit or the operation of a solid
waste facility outside the permitted boundaries specified in a solid
waste facilities permit.
   (b) If the enforcement agency determines that a person is
operating a solid waste facility in violation of subdivision (a), the
enforcement agency shall immediately issue a cease and desist order
pursuant to Section 45005 ordering the facility to immediately cease
all activities for which a solid waste facilities permit is required
and desist from those activities until the person obtains a valid
solid waste facilities permit authorizing the activities or has
obtained other authorization pursuant to this division.
  SEC. 2.  Section 44015 of the Public Resources Code is amended to
read:
   44015.  A solid waste facilities permit issued or revised under
this chapter shall be reviewed and, if necessary, revised at least
once every five years.
  SEC. 3.  Section 44300 of the Public Resources Code is amended to
read:
   44300.  An enforcement agency may, after holding a public hearing
before a hearing panel or a hearing officer appointed pursuant to
Section 44308 or 44309, in accordance with the procedures set forth
in Section 44310, deny a solid waste facilities permit in any of the
following cases:
   (a) The application is incomplete or otherwise inadequate.
   (b) The applicant has not complied with Division 13 (commencing
with Section 21000).
   (c) The applicant has failed to demonstrate that the facility will
meet minimum regulatory standards.
   (d) The application contains significant false or misleading
information or significant misrepresentations.
   (e) The agency determines the applicant has, during the previous
three years, been convicted of, or been issued a final order for, one
or more violations of this division, or regulations adopted pursuant
to this division, or the terms and conditions of the permit, and the
violation meets both of the following criteria:
   (1) The violation demonstrates a chronic recurring pattern of
noncompliance that has posed, or may pose, a significant risk to
public health and safety or to the environment.
   (2) The violation has not been corrected or reasonable progress
toward correction has not been achieved.
  SEC. 4.  Section 44305 of the Public Resources Code is amended to
read:
   44305.  (a) An enforcement agency may, after holding a public
hearing before a hearing panel or a hearing officer appointed
pursuant to Section 44308 or 44309, in accordance with the procedures
set forth in Section 44310, temporarily suspend a solid waste
facilities permit if the enforcement agency determines that changed
conditions at the facility necessitate a permit revision or
modification to eliminate a significant threat to public health and
safety or to the environment.
   (b) Notwithstanding subdivision (a), the enforcement agency may
suspend a solid waste facilities permit prior to holding a hearing if
the enforcement agency determines that changed conditions at the
facility necessitate a permit revision or modification to prevent or
mitigate an imminent and substantial threat to the public health and
safety or to the environment.  However, any person aggrieved by an
action by an enforcement agency to suspend a permit pursuant to this
subdivision may appeal the action to a hearing panel or hearing
officer appointed pursuant to Section 44308 or 44309.  The hearing
panel or hearing officer shall, at the request of the aggrieved
party, hear the appeal within three business days of the date when
the permit was suspended, or the first day thereafter requested by
the aggrieved party in compliance with Chapter 9 (commencing with
Section 54950) of Division 2 of Title 5 of the Government Code.  The
hearing panel or hearing officer shall render its decision on the day
the hearing concludes.  The hearing panel or hearing officer may
affirm, modify, or rescind the permit suspension.  A decision of a
hearing panel or hearing officer appointed pursuant to Section 44308
or 44309 may be appealed pursuant to Section 45030.
   (c) The enforcement agency shall lift the permit suspension as
soon as the changed conditions that necessitated the suspension
pursuant to subdivision (b) have been corrected.
  SEC. 5.  Section 44307 of the Public Resources Code is amended to
read:
   44307.  From the date of issuance of a permit that imposes
conditions that are inappropriate, as contended by the applicant, or
after the taking of any enforcement action pursuant to Part 5
(commencing with Section 45000) by the enforcement agency, the
enforcement agency shall hold a hearing, if requested to do so, by
the person subject to the action.  The enforcement agency shall also
hold a hearing upon a petition to the enforcement agency from any
person requesting the enforcement agency to review an alleged failure
of the agency to act as required by law or regulation.  A hearing
shall be held in accordance with the procedures specified in Section
44310.
  SEC. 6.  Section 44308 of the Public Resources Code is amended to
read:
   44308.  (a) All hearings conducted pursuant to this chapter by the
enforcement agency shall be conducted by a hearing officer appointed
pursuant to subdivision (d) or a hearing panel appointed pursuant to
either of the following procedures:
   (1) The governing body may appoint three of its members as the
hearing panel.
   (2) The chairperson of the governing body may appoint an
independent hearing panel consisting of three members.
   (b) (1) If an independent hearing panel is appointed pursuant to
paragraph (2) of subdivision (a), not more than one member of the
governing body shall serve on the hearing panel.
   (2) Members of the independent hearing panel shall be selected for
their legal, administrative, or technical abilities in areas
relating to solid waste management.
   (3) At least one member of the independent hearing panel shall be
a technical expert with knowledge of solid waste management methods
and technology.
   (4) At least one member of the independent hearing panel shall be
a representative of the public at large.
   (5) A member of an independent hearing panel shall serve for a
term of four years, and may not serve more than two consecutive
terms.
   (6) If a member of an independent hearing panel does not complete
the member's term, the chairperson of the governing body shall
appoint a replacement to serve out the remainder of the unexpired
term.
   (c) Members of the hearing panel may receive per diem and
necessary expenses while conducting the hearing.
   (d) The governing body of an enforcement agency may appoint a
hearing officer only if the governing body has adopted procedures for
making that appointment and has adopted qualifications that the
hearing officer is required to meet.
  SEC. 7.  Section 44309 of the Public Resources Code is amended to
read:
   44309.  All hearings conducted by the board acting as the
enforcement agency pursuant to Section 43205 shall be conducted by a
hearing panel of three board members appointed by the chairperson of
the board.
  SEC. 8.  Section 44310 of the Public Resources Code is amended to
read:
   44310.  All hearings conducted pursuant to this chapter shall be
based on the following procedures:
   (a) (1) The hearing shall be initiated by the filing of a written
request for a hearing with a statement of the issues.
   (A) If the hearing request is made by the person subject to the
action, the request shall be made within 15 days from the date that
person is notified, in writing, of the enforcement agency's intent to
act in the manner specified.
   (B) If the hearing request is made by a person alleging that the
enforcement agency failed to act as required by law or regulation
pursuant to Section 44307, the person shall file a request for a
hearing within 30 days from the date the person discovered or
reasonably should have discovered, the facts on which the allegation
is based.
   (2) The enforcement agency shall, within 15 days from the date of
receipt of a request for a hearing, provide written notice to the
person filing the request notifying the person of the date, time, and
  place of the hearing.
   (3) If that person fails to request a hearing or to timely file a
statement of issues, the enforcement agency may take the proposed
action without a hearing or may, at its discretion, proceed with a
hearing before taking the proposed action.
   (4) The enforcement agency shall file its written response to the
statement of issues filed by the person requesting the hearing with
the hearing panel or the hearing officer, and provide a copy to the
person requesting the hearing, not less than 15 days prior to the
date of the hearing.
   (b) The hearing shall be held no later than 30 days after
receiving the request for a hearing on the merits of the issues
presented, in accordance with the procedures specified in Article 10
(commencing with Section 11445.10) of Chapter 4.5 of Part 1 of
Division 3 of Title 2 of the Government Code.
   (c) Within five days from the conclusion of the hearing, the
hearing panel or hearing officer shall issue its decision.  The
decision shall become effective as provided in Section 45017.
  SEC. 9.  Section 45002 is added to the Public Resources Code, to
read:
   45002.  An order issued pursuant to this part or Part 4
(commencing with Section 43000) shall provide the person subject to
that order with a notice of that person's right to appeal pursuant to
Part 4 (commencing with Section 43000) and Part 6 (commencing with
Section 45030).
  SEC. 10.  Section 45005 of the Public Resources Code is amended to
read:
   45005.  A person who is operating, or proposes to operate, a solid
waste facility, or who is disposing of solid waste in an
unauthorized manner, or who owns a solid waste facility and causes or
permits the operator to operate the facility (1) in violation of a
solid waste facilities permit or in violation of this division, or
any regulation adopted pursuant to this division, or (2) without a
solid waste facilities permit, or (3) in a manner that causes or
threatens to cause a condition of hazard, pollution, or nuisance
shall, upon order of the enforcement agency, cease and desist any
prohibited activities.
  SEC. 11.  Section 45017 of the Public Resources Code is amended to
read:
   45017.  (a) (1) Except as provided in paragraphs (2) and (3), all
orders and determinations issued pursuant to this part or Part 4
(commencing with Section 43000) shall take effect   immediately upon
service, except that a request for a hearing pursuant to Section
44307 shall stay the effect of any or all provisions of the order
until the date of the completion of all administrative appeals.
   (2) Any provision of an order issued under this part or Part 4
(commencing with Section 43000) shall take effect upon service on the
affected person if the enforcement agency finds that the actions or
inactions associated with that provision may pose an imminent and
substantial threat to the public health and safety or to the
environment, and a request for a hearing shall not stay the effect of
that provision of the order pending completion of all administrative
appeals.
   (3) A cease and desist order issued pursuant to Section 44002
shall take effect upon service on the affected person and a request
for a hearing shall not stay the effect of the order, not
withstanding the completion of any administrative appeal, if the
cease and desist order is issued to a person operating a solid waste
facility on a property for which a solid waste facilities permit is
required, and one of the following applies:
   (A) The person has not applied for any solid waste facilities
permit for that property before the date of the issuance of the cease
and desist order.
   (B) The person has been denied a solid waste facilities permit for
the operation on that property for which a solid waste facilities
permit is required.
   (b) For purposes of this section, service may be effected by any
of the following:
   (1) Personal delivery.
   (2) First-class United States mail, if it is made by certified
mail with a return receipt requested.
   (3) Express delivery by a national express mail service that
provides evidence of delivery.
  SEC. 12.  Section 45022.5 is added to the Public Resources Code, to
read:
   45022.5.  An enforcement agency shall maintain a record of, and
take any action that the enforcement agency is authorized to take
regarding, a complaint, referral, or inspection relating to the
operation of a solid waste facility, solid waste disposal site, or
solid waste handling activity, including, but not limited to, those
activities that do not require a solid waste facilities permit,
within its jurisdiction.
  SEC. 13.  Section 45030 of the Public Resources Code is amended to
read:
   45030.  (a) A party to a hearing held pursuant to Chapter 4
(commencing with Section 44300) of Part 4 may appeal to the board to
review the written decision of the hearing panel or hearing officer
or to review the petitioner's request in the instance of a failure of
a hearing panel or hearing officer to render a decision or consider
the request for review, or a determination by the governing body not
to direct the hearing panel or hearing officer to hold a public
hearing, under the following circumstances:
   (1) Within 10 days from the date of issuance of a written decision
by a hearing panel or hearing officer.
   (2) If no decision is issued, within 45 days from the date a
request for a hearing was received by the enforcement agency for
which there was a failure of a hearing panel or hearing officer to
render a decision or consider a petitioner's request pursuant to
Section 44310.
   (b) An appellant shall commence an appeal to the board by filing a
written request for a hearing together with a brief summary
statement of the legal and factual basis for the appeal.
   (c) Within five days from the date the board receives the request
for a hearing, the board shall schedule a hearing on the appeal and
notify the appellant and all other parties to the underlying
proceeding of the date of the board hearing.
   (d) The board shall hear the appeal  within 60 days from the date
the board received the request for the appeal.
   (e) The board shall conduct the hearing on the appeal in
accordance with the procedures specified in Article 10 (commencing
with Section 11445.10) of Chapter 4.5 of Part 1 of the Government
Code.
  SEC. 14.  Section 45032 of the Public Resources Code is amended to
read:
   45032.  (a) In the board's hearing on the appeal, the evidence
before the board shall consist of the record before the hearing panel
or hearing officer, relevant facts as to any actions or inactions
not subject to review by a hearing panel or hearing officer, the
record before the local enforcement agency, written and oral
arguments submitted by the parties, and any other relevant evidence
that, in the judgment of the board, should be considered to
effectuate and implement the policies of this division.
   (b) The board may only overturn an enforcement action, and any
administrative civil penalty, by a local enforcement agency if it
finds, based on substantial evidence, that the action was
inconsistent with this division.  If the board overturns the decision
of the local enforcement agency, the hearing panel, or the hearing
officer, or finds that the enforcement agency has failed to act as
required, the board may do both of the following:
   (1) Direct that the appropriate action be taken by the local
enforcement agency.
   (2) If the local enforcement agency fails to act by the date
specified by the board, take the appropriate action itself.
  SEC. 15.  Section 45033 of the Public Resources Code is amended to
read:
   45033.  A failure to appeal to the hearing panel, the hearing
officer, or the board for review, or the refusal of the local
enforcement agency, a hearing panel, the hearing officer, or the
board to hear an appeal does not preclude a person from filing an
action with the superior court to contest any action or inaction of
the local enforcement agency or the board.
  SEC. 16.  Section 45041 of the Public Resources Code is amended to
read:
   45041.  The evidence before the court shall consist of the records
before the hearing panel or hearing officer and the board, if any,
including the enforcement agency's records, and any other relevant
evidence that, in the judgment of the court, should be considered to
effectuate and implement the policies of this division.
  SEC. 17.  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.