BILL NUMBER: AB 1342 CHAPTERED 10/06/05 CHAPTER 577 FILED WITH SECRETARY OF STATE OCTOBER 6, 2005 APPROVED BY GOVERNOR OCTOBER 6, 2005 PASSED THE ASSEMBLY SEPTEMBER 7, 2005 PASSED THE SENATE SEPTEMBER 6, 2005 AMENDED IN SENATE AUGUST 29, 2005 AMENDED IN SENATE AUGUST 16, 2005 INTRODUCED BY Committee on Environmental Safety and Toxic Materials (Ruskin (Chair), Tran (Vice Chair), Chu, De La Torre, Goldberg, Jerome Horton, and Strickland) FEBRUARY 22, 2005 An act to amend Sections 25200.15, 25247, and 25360.2 of, and to add Section 25201.6.1 to, the Health and Safety Code relating to hazardous material. LEGISLATIVE COUNSEL'S DIGEST AB 1342, Committee on Environmental Safety and Toxic Materials Hazardous material. (1) Existing law authorizes the owner or operator of a facility issued a hazardous waste facilities permit to make certain changes in facility structures or equipment without modifying the facility's hazardous waste permit. Existing law provides for the issuance of standardized hazardous waste facilities permits in lieu of other specified permit procedures under prescribed circumstances. A violation of the hazardous waste control laws, including a regulation adopted or requirement issued by the department is a crime. This bill would allow the owner or operator of a facility that has a standardized hazardous waste facilities permit to make those structure or equipment changes. Because a violation of these conditions would be a crime, the bill would impose a state-mandated local program. (2) Existing law requires the owner and operator of a facility that has a hazardous waste facilities permit or standardized hazardous waste facilities permit to obtain prior written approval from the department before making certain Class 1 permit modifications for equipment repair or upgrade. This bill would allow the owner or operator to make these modifications without prior notification, upon complying with specified conditions. This provision would remain in effect until the department amends its regulations to provide for replacement or upgrade of equipment without prior notification subject to conditions and limitations deemed necessary by the department. Because a violation of these conditions would be a crime, the bill would impose a state-mandated local program. (3) Existing law, the federal Resource Conservation Recovery Act (RCRA), requires a transfer facility that stores a hazardous waste regulated under RCRA (RCRA hazardous waste) in excess of 10 days to obtain a permit. RCRA exempts transfer facilities that store a RCRA hazardous waste for 10 days or less from the permitting requirement. Existing law, the Hazardous Waste Control Law, defines a "storage facility" to include a transfer facility. This bill would authorize the Department of Toxic Substances Control to seek a determination from the United States Environmental Protection Agency (EPA) as to conditions under which the department may authorize a storage facility that is authorized to handle non-RCRA hazardous waste to store railcars holding a residual heel from prior loads of RCRA hazardous waste without obtaining a RCRA-equivalent hazardous waste facility permit. The bill would require the department, upon receiving a written determination from the EPA, to take necessary administrative actions to authorize this activity. (4) Existing law requires the owner or operator of a hazardous waste facility to submit a hazardous waste facility closure and postclosure plan to the department and to the California regional water quality control board for the region in which the facility is located. The department is required to impose the requirements of a hazardous waste facility postclosure plan by issuing a postclosure permit, issuing an enforceable order, or entering into an enforceable agreement. The department is authorized to impose postclosure plan requirements through an enforcement order or an enforceable agreement only until January 1, 2007, except as specified. This bill would extend until January 1, 2009, the authorization for the department to impose postclosure plan requirements through an enforcement order or an enforceable agreement and would make conforming changes. Because a violation of these requirements would be a crime, the bill would impose a state-mandated local program. (5) Existing law provides a rebuttable presumption that an owner of property, as defined, that is the site of a hazardous substance release has no liability under the Carpenter-Presley-Tanner Hazardous Substance Account Act for either a hazardous substance release that has occurred on the property or a release of a hazardous substance to groundwater underlying the property, if the release occurred at a site other than the property. Existing law defines "owner" to be the owner of property, as defined, who occupies a single-family residence constructed on the property or the owner of common areas within a residential common interest development who owns those common areas for the benefit of the residential homeowners. This bill would additionally include within the definition of "owner," the owner of property, as defined, who occupies1/2 of a duplex constructed on the property. (6) 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 25200.15 of the Health and Safety Code is amended to read: 25200.15. (a) The owner or operator of a facility that has a hazardous waste facilities permit issued pursuant to Section 25200 or 25201.6 may change facility structures or equipment without modifying the facility's hazardous waste facilities permit, if either of the following apply: (1) The change to structures or equipment is not within a permitted unit. (2) Both of the following apply to the change to the structures or equipment: (A) The change to structures or equipment is within the boundary of a permitted unit, and the structure or equipment is certified by the owner or operator not to be actively related to the treatment, storage, or disposal of hazardous waste, or the secondary containment of those hazardous wastes. (B) The department, within 30 days from the date of receipt of notice from the owner or operator, does not determine any of the following: (i) The change is related to the treatment, storage, or disposal of hazardous waste or the secondary containment of those hazardous wastes. (ii) The change may otherwise significantly increase risks to human health and safety or the environment related to the management of the hazardous wastes. (iii) The regulations adopted pursuant to the federal act require a permit modification for the change. (b) (1) To the extent consistent with the federal act, and the regulations adopted pursuant to the federal act, the owner or operator of a facility that has a hazardous waste facilities permit issued pursuant to Section 25200 or 25201.6 may change the facility structure or equipment utilizing the Class 1* permit modification, specified in Chapter 20 (commencing with Section 66270.1) of Division 4.5 of Title 22 of the California Code of Regulations, as adopted by the department, if the department determines that all of the following apply: (A) The change to the structure or equipment is necessary to comply with requirements or the request of a state or federal agency or an air quality management district or air pollution control district. (B) The change to the structure or equipment will decrease one or more risks, and will not result in any increased risks to human health and safety or the environment related to the management of the hazardous wastes in the structure or equipment. (C) The owner or operator has submitted sufficient information for the department to make the determinations required by subparagraphs (A) and (B) to comply with the requirements of Division 13 (commencing with Section 21000) of the Public Resources Code, the California Environmental Quality Act. (2) A change to a facility structure or equipment that is authorized by this subdivision may not result in an increase in the permitted capacity of a hazardous waste management unit affected by the change. (3) This subdivision does not apply to changes for which no permit modification is required pursuant to subdivision (a) and the regulations adopted to implement that subdivision. (4) This subdivision does not apply to changes classified as Class 1 or Class 1* under the department's regulations pursuant to Chapter 20 (commencing with Section 66270.1) of Division 4.5 of Title 22 of the California Code of Regulations. (5) The owner or operator of a facility applying for a "Class 1* permit modification" pursuant to this subdivision shall enter into a written agreement with the department pursuant to which that person shall reimburse the department, pursuant to Article 9.2 (commencing with Section 25206.1), for the costs incurred by the department in processing the application. (c) (1) To the extent consistent with the federal act, the owner or operator of a facility operating under a hazardous waste facilities permit issued pursuant to Section 25200 or 25201.6 may make a Class 1 permit modification for minor equipment replacement or upgrade with functionally equivalent components of equipment such as pipes, valves, pumps, conveyors, controls, or other similar equipment, as specified in Section (A)(3) of Appendix I of Chapter 20 (commencing with Section 66270.1) of Division 4.5 of Title 22 of the California Code of Regulations, without providing prior notification as long as the modification is exempt from the requirements of the California Environmental Quality Act, Division 13 (commencing with Section 21000) of the Public Resources Code, and if the owner or operator complies with both of the following conditions: (A) The owner or operator notifies the department concerning the replacement or upgrade by certified mail or other means that establish proof of delivery within seven calendar days after the change is commenced. The notice shall specify the replacement or upgrade being made to the equipment referenced in the permit and shall explain why the replacement or upgrade is necessary. (B) Except as otherwise specified in this subdivision, the owner or operator complies with the requirements of Chapter 20 (commencing with Section 66270.1) and Chapter 21 (commencing with Section 66271.1) of Division 4.5 of Title 22 of the California Code of Regulations, as adopted by the department, that are applicable to a Class 1 modification. (2) Misapplication of the Class 1 modification allowed under this subdivision is subject to enforcement by the department under this chapter. (3) This subdivision shall remain in effect until the time when the department amends its regulations to provide for replacement or upgrade of equipment without prior notification, subject to those conditions and limitations determined to be necessary by the department. (d) Any determination made pursuant to this section, including, but not limited to, any determination by the department regarding the classification of a permit modification, may be appealed by the owner or operator in the manner provided for appeal of a permit determination pursuant to the regulations adopted by the department. SEC. 2. Section 25201.6.1 is added to the Health and Safety Code, to read: 25201.6.1. The department shall seek a determination from the United States Environmental Protection Agency as to the conditions, if any, under which the department may authorize a storage facility that is authorized under Section 25201.6 to transfer bulk liquids to and from railcars, to store railcars holding a residual heel from prior loads of RCRA hazardous waste in excess of 10 days without obtaining a RCRA-equivalent hazardous waste facility permit. Upon receipt of a written determination from the United States Environmental Protection Agency, the department shall initiate whatever administrative actions are necessary to enable the department to authorize this activity, subject to any regulatory or permit conditions that are required by the United States Environmental Protection Agency or are determined to be necessary by the department. Those administrative actions may include, but are not limited to, one or more of the following, as determined necessary: (a) Adopting regulations. (b) Processing permit modification requests. (c) Seeking authorization from the United States Environmental Protection Agency to allow the department to authorize this activity. SEC. 3. Section 25247 of the Health and Safety Code is amended to read: 25247. (a) The department shall review each plan submitted pursuant to Section 25246 and shall approve the plan if it finds that the plan complies with the regulations adopted by the department and complies with all other applicable state and federal regulations. (b) The department shall not approve the plan until at least one of the following occurs: (1) The plan has been approved pursuant to Section 13227 of the Water Code. (2) Sixty days expire after the owner or operator of an interim status facility submits the plan to the department. If the department denies approval of a plan for an interim status facility, this 60-day period shall not begin until the owner or operator resubmits the plan to the department. (3) The director finds that immediate approval of the plan is necessary to protect public health, safety, or the environment. (c) Any action taken by the department pursuant to this section is subject to Section 25204.5. (d) (1) To the extent consistent with the federal act, the department shall impose the requirements of a hazardous waste facility postclosure plan on the owner or operator of a facility through the issuance of an enforcement order, entering into an enforceable agreement, or issuing a postclosure permit. (A) A hazardous waste facility postclosure plan imposed or modified pursuant to an enforcement order, a permit, or an enforceable agreement shall be approved in compliance with the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code). (B) Before the department initially approves or significantly modifies a hazardous waste facility postclosure plan pursuant to this subdivision, the department shall provide a meaningful opportunity for public involvement, which, at a minimum, shall include public notice and an opportunity for public comment on the proposed action. (C) For the purposes of subparagraph (B), a "significant modification" is a modification that the department determines would constitute a class 3 permit modification if the change were being proposed to a hazardous waste facilities permit. In determining whether the proposed modification would constitute a class 3 modification, the department shall consider the similarity of the modification to class 3 modifications codified in Appendix I of Chapter 20 (commencing with Section 66270.1) of Division 4.5 of Title 22 of the California Code of Regulations. In determining whether the proposed modification would constitute a class 3 modification, the department shall also consider whether there is significant public concern about the proposed modification, and whether the proposed change is so substantial or complex in nature that the modification requires the more extensive procedures of a class 3 permit modification. (2) This subdivision does not limit or delay the authority of the department to order any action necessary at a facility to protect public health or safety. (3) If the department imposes a hazardous waste facility postclosure plan in the form of an enforcement order or enforceable agreement, in lieu of issuing or renewing a postclosure permit, the owner or operator who submits the plan for approval shall, at the time the plan is submitted, pay the same fee specified in subparagraph (F) of paragraph (1) of subdivision (d) of Section 25205.7, or enter into a cost reimbursement agreement pursuant to subdivision (a) of Section 25205.7 and upon commencement of the postclosure period shall pay the fee required by paragraph (9) of subdivision (c) of Section 25205.4. For purposes of this paragraph and paragraph (9) of subdivision (c) of Section 25205.4, the commencement of the postclosure period shall be the effective date of the postclosure permit, enforcement order, or enforceable agreement. (4) In addition to any other remedy available under state law to enforce a postclosure plan imposed in the form of an enforcement order or enforcement agreement, the department may take any of the following actions: (A) File an action to enjoin a threatened or continuing violation of a requirement of the enforcement order or agreement. (B) Require compliance with requirements for corrective action or other emergency response measures that the department deems necessary to protect human health and the environment. (C) Assess or file an action to recover civil penalties and fines for a violation of a requirement of an enforcement order or agreement. (e) Subdivision (d) does not apply to a postclosure plan for which a final or draft permit has been issued by the department on or before December 31, 2003, unless the department and the facility mutually agree to replace the permit with an enforcement order or enforceable agreement pursuant to the provisions of subdivision (d). (f) (1) Except as provided in paragraphs (2) and (3), the department may only impose postclosure plan requirements through an enforcement order or an enforceable agreement pursuant to subdivision (d) until January 1, 2009. (2) This subdivision does not apply to an enforcement order or enforceable agreement issued prior to January 1, 2009, or an order or agreement for which a public notice is issued on or before January 1, 2009. (3) This subdivision does not apply to the modification on or after January 1, 2009, of an enforcement order or enforceable agreement that meets the conditions in paragraph (2). (g) If the department determines that a postclosure permit is necessary to enforce a postclosure plan, the department may, at any time, rescind and replace an enforcement order or an enforceable agreement issued pursuant to this section by issuing a postclosure permit for the hazardous waste facility, in accordance with the procedures specified in the department's regulations for the issuance of postclosure permits. (h) Nothing in this section may be construed to limit or delay the authority of the department to order any action necessary at a facility to protect public health or safety, or the environment. SEC. 4. Section 25360.2 of the Health and Safety Code is amended to read: 25360.2. (a) For purposes of this section, the following definitions apply: (1) "Owner" means either (A) the owner of property who occupies a single-family residence or one-half of a duplex constructed on the property, or (B) the owner of common areas within a residential common interest development who owns those common areas for the benefit of the residential homeowners. This paragraph does not include the developer of the common interest development. (2) "Property" means either (A) real property of five acres or less which is zoned for, and on which has been constructed, a single-family residence, or (B) common areas within a residential common interest development. (b) (1) Notwithstanding any other provision of this chapter, an owner of property that is the site of a hazardous substance release is presumed to have no liability pursuant to this chapter for either of the following: (A) A hazardous substance release that has occurred on the property. (B) A release of a hazardous substance to groundwater underlying the property if the release occurred at a site other than the property. (2) The presumption may be rebutted as provided in subdivision (d). (c) An action for recovery of costs or expenditures incurred from the state account or the Hazardous Substance Cleanup Fund pursuant to this chapter in response to a hazardous substance release may not be brought against an owner of property unless the department first certifies that, in the opinion of the department, one of the following applies: (1) The hazardous substance release that occurred on the property occurred after the owner acquired the property. (2) The hazardous substance release that occurred on the property occurred before the owner acquired the property and at the time of acquisition the owner knew or had reason to know of the hazardous substance release. (3) The owner of property where there has been a release of a hazardous substance to groundwater underlying the property took, or is taking, one or more of the following actions: (A) Caused or contributed to a release of a hazardous substance to the groundwater. (B) Fails to provide the department, or its authorized representative, with access to the property. (C) Interferes with response action activities. (d) In an action brought against an owner of property to recover costs or expenditures incurred from the state account or the Hazardous Substance Cleanup Fund pursuant to this chapter in response to a hazardous substance release, the presumption established in subdivision (b) may be rebutted if it is established by a preponderance of the evidence that the facts upon which the department made the certification pursuant to paragraph (1), (2), or (3) of subdivision (c) are true. (e) Notwithstanding any other provision of this chapter, this section governs liability pursuant to this chapter for an owner of property, as defined in subdivision (a). SEC. 5. No reimbursement is required by this act pursuant to Section 6 of Article XIII B 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 XIII B of the California Constitution.