Amended in Senate June 18, 2015

Amended in Assembly May 13, 2015

California Legislature—2015–16 Regular Session

Assembly Bill No. 1075

Introduced by Assembly Member Alejo

February 27, 2015

An act to amend Sections begin delete 25186 end delete begin insert 25186, 25186.1, end insert and 25186.2 of, and to add begin delete Section end delete begin insert Sections 25186.05 and end insert 25189.4 to, the Health and Safety Code, relating to hazardous waste.

LEGISLATIVE COUNSEL’S DIGEST

AB 1075, as amended, Alejo. Hazardous waste: enforcement.

(1) The Hazardous Waste Control Law regulates the use and disposal of hazardous waste and authorizes the Department of Toxic Substances Control to deny, suspend, or revoke any permit, registration, or certificate applied for, or issued to, a person or entity if that person or entity engaged in specified activities in violation of the Hazardous Waste Control Law or other laws.

This bill would require the department to consider, except under specified circumstances, 3 or more violations of, or noncompliance with, specified provisions for which a person or entity has been found liable or has been convicted, with respect to a single hazardous waste facility within a 5-year period, as compelling cause to deny, suspend, or revoke a permit, registration, or certificate applied for by, or issued to, that person or entity.

(2) Existing law authorizes the department to temporarily suspend any permit, registration, or certificate prior to a hearing if the department determines that action is necessary to prevent or mitigate an imminent and substantial danger to the public health or safety or the environment. Existing law requires the department, upon receipt of a notice of defense to the accusation from the holder of the permit, registration, or certificate, to set the matter for hearing within 15 days and to hold the hearing as soon as possible, but not later than 30 days after receipt of the notice. Existing law requires the hearing to be held without delay and completed as soon as possible.

This bill would instead authorize the department to temporarily suspend any permit, registration, or certificate prior to a hearing if the department determines that conditions may present an imminent and substantial endangerment to the public health or safety or the environment. The bill would repeal the requirement that the hearing be held without delay and completed as soon as possible.

begin insert

(3) Existing law requires a petition for judicial review of a final decision of the department to grant, issue, modify, or deny a permit, registration, or certificate be filed no later than 90 days after the date that the notice of final decision is served.

end insert begin insert

This bill would authorize a person who filed comments on a draft permit or participated in the public hearing on the draft permit to appeal the department’s decision to the Secretary for Environmental Protection within 30 days, and would authorize the secretary to sustain, reverse, or modify the decision of the department if it was based on a finding of fact or conclusion of law that was clearly erroneous, or if it was based on an important policy consideration that the secretary determines he or she should review. The bill would require that a petition for judicial review be filed within 90 days of the secretary’s final decision.

end insert begin delete

(3)

end delete

begin insert (4) end insert  Existing law provides for the imposition of civil and criminal penalties upon persons who violate the requirements of the hazardous waste control law or take other actions with regard to the handling of hazardous waste.

This bill would impose, upon a person who is subject to the imposition of those civil or criminal penalties, an additional civil penalty of not less than $5,000 or more than $50,000 for each day of each violation, if the person has been found liable for, or been convicted of, 2 or more previous violations of certain of these hazardous waste-related provisions within any consecutive 60 months.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 25186 of the Health and Safety Code is
amended to read:

25186.  

begin delete (a) end delete begin delete   end delete The department may deny, suspend, or revoke any
permit, registration, or certificate applied for, or issued, pursuant
to this chapter in accordance with the procedures specified in
Sections 25186.1 and 25186.2, where the applicant or holder of
the permit, registration, or certificate, or in the case of a business
concern, any trustee, officer, director, partner, or any person
holding more than 5 percent of the equity in or debt liability of
that business concern, has engaged in any of the following:

begin delete

(1)

end delete

begin insert (a) end insert  Any violation of, or noncompliance with, this chapter,
Chapter 6.7 (commencing with Section 25280), Chapter 6.8
(commencing with Section 25300), the Porter-Cologne Water
Quality Control Act (Division 7 (commencing with Section 13000)
of the Water Code), the Resource Conservation and Recovery Act
of 1976, as amended, (42 U.S.C. Sec. 6901 et seq.), the Hazardous
Materials Transportation Act (49 U.S.C. Sec. 5101 et seq.), the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. Sec. 9601 et seq.), the Toxic
Substances Control Act (15 U.S.C. Sec. 2601 et seq.), or any other
equivalent federal or state statute or any requirement or regulation
adopted pursuant thereto relating to the generation, transportation,
treatment, storage, recycling, disposal, or handling of a hazardous
waste, as defined in Section 25117, a hazardous substance, as
defined in Section 25316, or a hazardous material, as defined in
Section 353 of the Vehicle Code, if the violation or noncompliance
shows a repeating or recurring pattern or may pose a threat to
public health or safety or the environment.

begin delete

(2)

end delete

begin insert (b) end insert  The aiding, abetting, or permitting of any violation of, or
noncompliance with, this chapter, Chapter 6.7 (commencing with
Section 25280), Chapter 6.8 (commencing with Section 25300),
the Porter-Cologne Water Quality Act (Division 7 (commencing
with Section 13000) of the Water Code), the Resource
Conservation and Recovery Act of 1976, as amended, (42 U.S.C.
Sec. 6901 et seq.), the Hazardous Materials Transportation Act
(49 U.S.C. Sec. 5101 et seq.), the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42 U.S.C.
Sec. 9601 et seq.), the Toxic Substances Control Act (15 U.S.C.
Sec. 2601 et seq.), or any other equivalent federal or state statute
or any requirement or regulation adopted pursuant thereto relating
to the generation, transportation, treatment, storage, recycling,
disposal, or handling of a hazardous waste, as defined in Section
25117, a hazardous substance, as defined in Section 25316, or a
hazardous material, as defined in Section 353 of the Vehicle Code,
if the violation or noncompliance shows a repeating or recurring
pattern or may pose a threat to public health or safety or the
environment.

begin delete

(3)

end delete

begin insert (c) end insert  Any violation of, or noncompliance with, any order issued
by a state or local agency or by a hearing officer or a court relating
to the generation, transportation, treatment, storage, recycling,
disposal, or handling of a hazardous waste, as defined in Section
25117, a hazardous substance, as defined in Section 25316, or a
hazardous material, as defined in Section 353 of the Vehicle Code.

begin delete

(4)

end delete

begin insert (d) end insert  Any misrepresentation or omission of a significant fact or
other required information in the application for the permit,
registration, or certificate, or in information subsequently reported
to the department or to a local officer or agency authorized to
enforce this chapter pursuant to subdivision (a) of Section 25180.

begin delete

(5) (A )

end delete

begin insert (e) end insert begin insert   end insert begin insert (1) end insert  Activities resulting in any federal or state conviction
that are significantly related to the fitness of the applicant or holder
of the permit, registration, or certificate to perform the applicant’s
duties or activities under the permit, registration, or certificate.

begin delete

(B)

end delete

begin insert (2) end insert  For the purposes of this paragraph, “conviction” means a
plea or verdict of guilty or a conviction following a plea of nolo
contendere.

begin delete

(C)

end delete

begin insert (3) end insert  An action that the department may take pursuant to this
paragraph relating to the denial, suspension, or revocation of a
permit, registration, or certificate may be based upon a conviction
for which any of the following has occurred:

begin delete

(i)

end delete

begin insert (A) end insert  The time for appeal has elapsed.

begin delete

(ii)

end delete

begin insert (B) end insert  The judgment of conviction has been affirmed on appeal.

begin delete

(iii)

end delete

begin insert (C) end insert  Any order granting probation is made suspending the
imposition of sentence, notwithstanding a subsequent order
pursuant to Section 1203.4 of the Penal Code permitting that person
to withdraw the person’s plea of guilty, and to enter a plea of not
guilty, or setting aside the verdict of guilty, or dismissing the
accusation, information, or indictment.

begin delete

(6)

end delete

begin insert (f) end insert  Activities resulting in the revocation or suspension of a
license, permit, registration, or certificate held by the applicant or
holder of the permit, registration, or certificate or, if the applicant
or holder of the permit, registration, or certificate is a business
concern, by any trustee, officer, director, partner, or any person
holding more than 5 percent of the equity in, or debt liability of
that business concern relating to, the generation, transportation,
treatment, storage, recycling, disposal, or handling of a hazardous
waste, as defined in Section 25117, a hazardous substance, as
defined in Section 25316, or a hazardous material, as defined in
Section 353 of the Vehicle Code.

begin delete

(b) (1) (A) For the purposes of this subdivision, “violation”
and “noncompliance” mean only the following:

(i) A violation or noncompliance that creates a significant threat
of immediate and acute exposure to hazardous waste or hazardous
waste constituents at a facility or offsite from a facility and that
threat makes it reasonably necessary to take action to prevent,
reduce, or mitigate that exposure.

(ii) A violation or noncompliance that includes, or results in,
any of the following:

(I) Fire, explosion, or uncontrolled chemical reaction.

(II) Serious or acute injury or illness.

(III) Violation of any order issued by the department to the
applicant or holder of the permit.

(IV) Federal or state felony conviction for violations of this
chapter or its equivalent in the federal act or any requirement or
regulation adopted pursuant to that authority relating to the
generation, transportation, treatment, storage, recycling, disposal,
or handling of hazardous waste, as described in paragraph (6) of
subdivision (a).

(B) “Violation” and “noncompliance” shall not include a minor
violation as defined in Section 25117.6.

(2) Except as provided in paragraph (3), the department shall
consider three or more violations of, or noncompliance with, a
requirement specified in paragraph (1) or (2) of subdivision (a)
for which a person or entity has been found liable or has been
convicted, with respect to a single facility within a five-year period,
as compelling cause to deny, suspend, or revoke the permit,
registration, or certificate.

(3) This subdivision does not apply to a third violation or
noncompliance if the department finds that extraordinary
circumstances exist, including that a denial, suspension, or
revocation would endanger the public health or safety or the
environment.

(4) This subdivision does not limit or modify the department’s
authority to deny, suspend, or revoke any permit, registration, or
certificate pursuant to subdivision (a) or any other law.

end delete

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 25186.05 is added to the end insert begin insert Health and Safety
Code end insert begin insert , to read: end insert

begin insert

begin insert 25186.05. end insert   

(a) For the purposes of this section, “violation”
and “noncompliance” mean only the following:

(1) A violation or noncompliance that creates a significant
threat of acute or chronic exposure to hazardous waste or
hazardous waste constituents within the boundaries of a hazardous
waste facility or offsite from a facility, and that threat makes it
reasonably necessary to take action to prevent, reduce, or mitigate
that exposure.

(2) A violation of, or noncompliance with, any order issued by
the department to the applicant or holder of the permit.

(3) A federal or state felony conviction for a violation of this
chapter or its equivalent in the federal act, or of any requirement
or regulation adopted pursuant to that authority relating to the
generation, transportation, treatment, storage, recycling, disposal,
or handling of hazardous waste, as described in subdivision (h)
of Section 25186.

(b) “Violation” and “noncompliance” shall not include a minor
violation as defined in Section 25117.6.

(c) (1) Except as provided in paragraph (2), the department
shall consider three or more incidents of violation of, or
noncompliance with, a requirement specified in subdivision (a) or
(b) of Section 25186 for which a person or entity has been found
liable or has been convicted, with respect to a single facility within
a five-year period, as compelling cause to deny, suspend, or revoke
the permit, registration, or certificate.

(2) This subdivision does not apply to a third violation or
noncompliance if the department finds that extraordinary
circumstances exist, including that a denial, suspension, or
revocation would endanger the public health or safety or the
environment.

(3) This subdivision does not limit or modify the department’s
authority to deny, suspend, or revoke any permit, registration, or
certificate pursuant to subdivision (a) of 25186 or any other law.

end insert

begin insert

begin insert SEC. 3. end insert   

end insert

begin insert Section 25186.1 of the end insert begin insert Health and Safety Code end insert begin insert is
amended to read: end insert

25186.1.  

(a) Except as specified in Section 25186.2,
proceedings for the suspension or revocation of a permit,
registration, or certificate under this chapter shall be conducted in
accordance with Chapter 5 (commencing with Section 11500) of
Part 1 of Division 3 of Title 2 of the Government Code, and the
department shall have all the powers granted by those provisions.
In the event of a conflict between this chapter and Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title
2 of the Government Code, the provisions of the Government Code
shall prevail.

(b) (1) Proceedings to determine whether to grant, issue,
modify, or deny a permit, registration, or certificate shall be
conducted in accordance with the regulations adopted by the
department.

begin insert

(2) Within 30 days after a final permit decision has been issued,
a person who filed comments on that draft permit or participated
in the public hearing may petition the secretary to review the
permit decision.

end insert begin insert

(3) On an appeal pursuant to paragraph (2), the secretary may
sustain, reverse, or modify the decision of the department consistent
with procedures, including notice procedures, adopted by
regulation by the California Environmental Protection Agency,
based on either of the following:

end insert begin insert

(A) A finding of fact or a conclusion of law that is clearly
erroneous.

end insert begin insert

(B) An important policy consideration that the secretary, in his
or her discretion, should review.

end insert begin delete

(2)  The

end delete

begin insert (c) end insert begin insert   end insert begin insert A end insert petition for judicial review of a final decision of the
department to grant, issue, modify, or deny a permit, registration,
or begin delete certificate end delete begin insert certificate, or of the secretary’s final decision to
sustain, reverse, or modify the decision of the department on appeal
pursuant to paragraph (2) of subdivision (b), end insert shall not be filed
later than 90 days after the date that the notice of the final decision
is served.

begin delete SEC. 2. end delete
begin insert SEC. 4. end insert   

Section 25186.2 of the Health and Safety Code is
amended to read:

25186.2.  

The department may temporarily suspend any permit,
registration, or certificate issued pursuant to this chapter prior to
any hearing if the department determines that conditions may
present an imminent and substantial endangerment to the public
health or safety or the environment. In making this determination,
the department may rely on any information, including, but not
limited to, an actual, threatened, or potential harm to the public
health or safety, or the environment, a release or threat of a release,
or a human health or ecological risk assessment. The department
shall notify the holder of the permit, registration, or certificate of
the temporary suspension and the effective date thereof and at the
same time shall serve the person with an accusation. Upon receipt
by the department of a notice of defense to the accusation from
the holder of the permit, registration, or certificate, the department
shall, within 15 days, set the matter for a hearing, which shall be
held as soon as possible, but not later than 30 days after receipt of
the notice. The temporary suspension shall remain in effect until
the hearing is completed and the department has made a final
determination on the merits, which shall be made within 60 days
after the completion of the hearing. If the determination is not
transmitted within this period, the temporary suspension shall be
of no further effect.

begin delete SEC. 3. end delete
begin insert SEC. 5. end insert   

Section 25189.4 is added to the Health and Safety
Code, to read:

25189.4.  

(a) In addition to any penalty imposed under any
other law, a person who is subject to the imposition of civil or
criminal penalties pursuant to the provisions specified in
subdivision (b) shall also be subject to an additional civil penalty
of not less than five thousand dollars ($5,000) or more than fifty
thousand dollars ($50,000) for each day of each violation, if the
person has been found liable for, or has been convicted of, two or
more previous violations subject to the penalties specified in
subdivision (b) and those violations or convictions occurred within
any consecutive 60 months.

(b) The additional liability specified in subdivision (a) shall
apply to a penalty imposed pursuant to, or a conviction under,
paragraph (2) of subdivision (g) of Section 25187.8, or Section
25189, 25189.2, 25189.3, 25189.5, 25189.6, or 25189.7.