BILL NUMBER: SB 606 CHAPTERED 10/10/99 CHAPTER 745 FILED WITH SECRETARY OF STATE OCTOBER 10, 1999 APPROVED BY GOVERNOR OCTOBER 7, 1999 PASSED THE SENATE SEPTEMBER 8, 1999 PASSED THE ASSEMBLY SEPTEMBER 7, 1999 AMENDED IN ASSEMBLY SEPTEMBER 2, 1999 AMENDED IN ASSEMBLY AUGUST 16, 1999 AMENDED IN ASSEMBLY JULY 7, 1999 AMENDED IN SENATE MAY 11, 1999 AMENDED IN SENATE APRIL 14, 1999 AMENDED IN SENATE APRIL 5, 1999 INTRODUCED BY Senator O'Connell FEBRUARY 23, 1999 An act to amend Sections 25160, 25165, 25175, and 25250.8 of, and to add Section 25250.26 to, the Health and Safety Code, relating to hazardous waste. LEGISLATIVE COUNSEL'S DIGEST SB 606, O'Connell. Hazardous waste: transportation: recycling. (1) Existing law requires any person generating hazardous waste that is transported, or submitted for transportation, for offsite handling, treatment, storage, disposal, or any combination thereof, to complete a manifest prior to the time the waste is transported or offered for transportation and to submit the manifest to the Department of Toxic Substances Control. A generator is required to submit to the department, within 30 days from the date of transport, a legible copy of each manifest used. This bill would exempt the generator copy of the manifest from the requirement that it be submitted to the department for any waste transported in compliance with specified procedures, if the generator, transporter, and facility are all identified by the same EPA identification number on the hazardous waste manifest, except as specified. (2) Existing law allows used oil to be manifested for transportation under a modified manifesting procedure, which may be used only by a registered hazardous waste hauler and with the consent of the generator. This bill would revise that provision to apply to hazardous waste transporters and would additionally include, within that modified manifesting procedure, antifreeze, oil/water separation sludge, and parts cleaning solvent, pursuant to specified requirements. The bill would require a hazardous waste transporter that transports, or intends to transport, these hazardous wastes pursuant to this modified manifesting procedure, to include a specified statement in the transporter's application for registration. (3) Existing law requires the department to adopt a list of specified hazardous wastes that the department finds are economically and technologically feasible to recycle. The department is allowed to list a hazardous waste as recyclable only if it makes a specified determination. Existing law authorizes the department, whenever any waste on the list is disposed of by a person, to request, and the producer or disposer of that waste is required to supply the department with, a specified statement. Under existing law, if, after receipt of the statement, the department makes specified findings, the disposer of the hazardous waste is required to recycle the hazardous waste. A violation of the laws regulating hazardous waste is a crime. This bill would instead require the department to prepare and adopt, by regulation, a list, and on or before January 1, 2002, and when appropriate thereafter, to revise, by regulation, a list of wastes that are feasible to recycle either onsite or at an offsite commercial hazardous waste recycling facility in the state. The bill would authorize the department, whenever any hazardous waste on the list is transported offsite for disposal, to require the generator of that waste to supply the department with a formal, complete, and detailed statement justifying why the waste was not recycled. The bill would require the department to give priority to sending the request to specified generators. The bill would require the department, by July 1, 2000, to establish an advisory committee, consisting of representatives of specified businesses and organizations, to advise the department on the development of the regulations required or authorized by these recycling requirements and on the department's implementation of those requirements. The bill would require the department to establish a procedure, by January 1, 2002, to verify the disposal of a listed hazardous waste of and to adopt regulations, by January 1, 2002, to perform specified duties regarding the exchange of hazardous waste. The bill would require the department, if it finds the recycling of the hazardous waste to be feasible, to require the generator to recycle any of the hazardous waste to which the finding of the department applies and would also subject a generator who does not comply with such a notice to a specified fee. (4) Existing law defines "used oil" for purposes of the provisions regulating the handling of used oil and provides specified standards of purity for recycled oil, including a specified amount of total polychlorinated biphenyls (PCBs). Existing law requires any person who generates, receives, stores, transfers, transports, treats, or recycles used oil to comply with the hazardous waste control law, except as specified. A generator claiming used oil is exempt from regulation by the department is required to ensure that the used oil is tested and certified as being in compliance with specified standards before the used oil is transported from the generator location. A violation of the laws regulating used oil is a crime. This bill would require a generator of used oil that is not a used oil collection center or a household waste collection facility, which transfers used oil to a used oil recycling facility, to certify to the transporter that the used oil meets the definition of used oil and does not contain more than a specified concentration of PCBs. The bill would impose a specified amount of liability upon a generator who submits a false certification. (5) Since a violation of the bill's requirement concerning recyclable hazardous waste and used oil would be a crime, the bill would impose a state-mandated local program by creating a new crime. (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 25160 of the Health and Safety Code is amended to read: 25160. (a) For purposes of this chapter, "manifest" means a shipping document originated and signed by a generator of hazardous waste that contains all of the information required by the department and that complies with all applicable federal and state regulations. (b) (1) Any person generating hazardous waste which is transported, or submitted for transportation, for offsite handling, treatment, storage, disposal, or any combination thereof, shall complete a manifest prior to the time the waste is transported or offered for transportation, and shall designate on that manifest the facility to which the waste is to be shipped for the handling, treatment, storage, disposal, or combination thereof. The manifest shall be completed, as required by the department. The generator shall provide the manifest to the person who will transport the hazardous waste, who is the driver, if the hazardous waste will be transported by vehicle, or the person designated by the railroad corporation or vessel operator, if the hazardous waste will be transported by rail or vessel. The generator shall use the standard California Uniform Hazardous Waste Manifest supplied by the department for all shipments of hazardous waste for which a manifest is required, except as provided in paragraph (2). A manifest shall only be used for the purposes specified in this chapter, including, but not limited to, identifying materials that the person completing the manifest reasonably believes are hazardous waste. Within 30 days from the date of transport, or submission for transport, of hazardous waste, each generator of that hazardous waste shall submit to the department a legible copy of each manifest used. The copy submitted to the department shall contain the signatures of the generator and the transporter. In lieu of submitting a copy of each manifest used, a generator may submit an electronic report to the department meeting the requirements of Section 25160.3. (2) Any person generating hazardous waste which is transported, or submitted for transportation, for offsite handling, treatment, storage, disposal, or any combination thereof, outside of the state, shall complete, whether or not the waste is determined to be hazardous by the importing country or state, a standard California Uniform Hazardous Waste Manifest, or the generator shall complete, in its own form of manifest, the manifest required by the receiving state and shall submit a copy of that manifest to the department within 30 days from the date of the transport, or submission for transport, of the hazardous waste. In lieu of submitting a copy of each manifest used, a generator may submit an electronic report to the department meeting the requirements of Section 25160.3. (3) Within 30 days from the date of transport, or submission for transport, of hazardous waste out of state, each generator of that hazardous waste shall submit to the department a legible copy of each manifest used. The copy submitted to the department shall contain the signatures of the generator, all transporters, excepting intermediate rail transporters, and the out-of-state facility operator. If within 35 days from the date of the initial shipment, or for exports by water to foreign countries, 60 days after the initial shipment, the generator has not received a copy of the manifest signed by all transporters and the facility operator, the generator shall contact the owner or operator of the designated facility to determine the status of the hazardous waste and to request that the owner or operator immediately provide a signed copy of the manifest to the generator. If within 45 days from the date of the initial shipment or, for exports by water to foreign countries, 90 days from the date of the initial shipment, the generator has not received a copy of the signed manifest from the facility owner or operator, the generator shall submit an exception report to the department. (4) For shipments of waste that do not require a manifest pursuant to Title 40 of the Code of Federal Regulations, the department, by regulation, may establish manifest requirements that differ from the requirements of this subdivision. The requirements for an alternative form of manifest shall ensure that the hazardous waste is transported by a registered hazardous waste transporter, that the hazardous waste is tracked, and that human health and safety and the environment are protected. (5) (A) Notwithstanding any other provision of this subdivision, except as provided in subparagraph (B), the generator copy of the manifest is not required to be submitted to the department for any waste transported in compliance with the modified manifest procedures that are not in conflict with this paragraph and that are set forth in Section 66263.42 of Title 22 of the California Code of Regulations, or as that regulation may be further amended, or in Section 25250.8, if the generator, transporter, and facility are all identified by the same EPA identification number on the hazardous waste manifest. Nothing in this paragraph affects the obligation of a facility operator to submit to the department a copy of a manifest pursuant to this section. (B) If the waste subject to subparagraph (A) is transported out of state, the generator shall either ensure that the facility operator submits to the department a copy of the manifest or the generator shall submit a copy to the department that contains the signatures of the generator, all transporters, excepting intermediate rail transporters, and the out-of-state facility operator pursuant to paragraph (3). (c) (1) The department shall determine the form and manner in which a manifest shall be completed and the information that the manifest shall contain. The information requested on the manifest shall serve as the data dictionary for purposes of the developing of an electronic reporting format pursuant to Section 71062 of the Public Resources Code. The form of each manifest and the information requested on each manifest shall be the same for all hazardous wastes, regardless of whether the hazardous wastes are also regulated pursuant to the federal act or by regulations adopted by the United States Department of Transportation. However, the form of the manifest and the information required shall be consistent with federal regulations. (2) Pursuant to federal regulations, the department may require information on the manifest in addition to the information required by federal regulations. (d) (1) Any person who transports hazardous waste in a vehicle shall have a manifest in his or her possession while transporting the hazardous waste. The manifest shall be shown upon demand to any representative of the department, any officer of the California Highway Patrol, any local health officer, or any local public officer designated by the director. If the hazardous waste is transported by rail or vessel, the railroad corporation or vessel operator shall comply with Subchapter C (commencing with Section 171.1) of Chapter 1 of Subtitle B of Title 49 of the Code of Federal Regulations and shall also enter on the shipping papers any information concerning the hazardous waste which the department may require. (2) Any person who transports any waste, as defined by Section 25124, and who is provided with a manifest for that waste shall, while transporting that waste, comply with all requirements of this chapter, and the regulations adopted pursuant thereto, concerning the transportation of hazardous waste. (3) Any person who transports hazardous waste shall transfer a copy of the manifest to the facility operator at the time of delivery, or to the person who will subsequently transport the hazardous waste in a vehicle. Any person who transports hazardous waste and then transfers custody of that hazardous waste to a person who will subsequently transport that waste by rail or vessel shall transfer a copy of the manifest to the person designated by the railroad corporation or vessel operator, as specified by Subchapter C (commencing with Section 171.1) of Chapter 1 of Subtitle B of Title 49 of the Code of Federal Regulations. (4) Any person transporting hazardous waste by motor vehicle, rail, or water shall certify to the department, at the time of initial registration and at the time of renewal of that registration pursuant to this article, that the transporter is familiar with the requirements of this section, the department regulations, and federal laws and regulations governing the use of manifests. (e) (1) Any facility operator in the state who receives hazardous waste for handling, treatment, storage, disposal, or any combination thereof, which was transported with a manifest pursuant to this section, shall submit a copy of the manifest to the department within 30 days from the date of receipt of the hazardous waste. The copy submitted to the department shall contain the signatures of the generator, all transporters, excepting intermediate rail transporters, and the facility operator. In instances where the generator or transporter is not required by the generator's state or federal law to sign the manifest, the facility operator shall require the generator and all transporters, excepting intermediate rail transporters, to sign the manifest before receiving the waste at any facility in this state. In lieu of submitting a copy of each manifest used, a facility operator may submit an electronic report to the department meeting the requirements of Section 25160.3. (2) Any treatment, storage, or disposal facility receiving hazardous waste generated outside this state may only accept the hazardous waste for treatment, storage, disposal, or any combination thereof, if the hazardous waste is accompanied by a completed standard California Uniform Hazardous Waste Manifest. (3) A facility operator may accept hazardous waste generated offsite that is not accompanied by a properly completed and signed standard California Uniform Hazardous Waste Manifest if the facility operator meets both of the following conditions: (A) The facility operator is authorized to accept the hazardous waste pursuant to a hazardous waste facilities permit or other grant of authorization from the department. (B) The facility operator is in compliance with the regulations adopted by the department specifying the conditions and procedures applicable to the receipt of hazardous waste under these circumstances. (4) This subdivision applies only to shipments of hazardous waste for which a manifest is required pursuant to this section and the regulations adopted pursuant to this section. (f) A generator, transporter, or facility operator may comply with the requirements of Sections 66262.40, 66263.22, 66264.71, and 66265.71 of Title 22 of the California Code of Regulations by storing manifest information electronically. A generator, transporter, or facility operator who stores manifest information electronically shall use the standardized electronic format and protocol for the exchange of electronic data established by the Secretary for Environmental Protection pursuant to Part 2 (commencing with Section 71050) of Division 34 of the Public Resources Code and the stored information shall include all the information required to be retained by the department, including all signatures required by this section. (g) The department shall make available for review, by any interested party, information regarding the department's progress in adopting revised regulations relating to hazardous waste manifests, including specific requirements for milk run operations set forth in Section 66263.42 of Title 22 of the California Code of Regulations. (h) The department shall make available for review, by any interested party, the department's plans for revising and enhancing its system for tracking hazardous waste for the purposes of protecting human health and the environment, enforcing laws, collecting revenue, and generating necessary reports. SEC. 2. Section 25165 of the Health and Safety Code is amended to read: 25165. (a) A hazardous waste transporter's application for original and renewal registration shall be on a form provided by the department. Any application for an original or renewal registration received on or after January 1, 2000, from a transporter that transports, or intends to transport, used oil, antifreeze, oil/water separation sludge or parts cleaning solvent pursuant to the modified manifesting procedure specified in subdivision (b) of Section 25250.8, shall include a statement by the transporter notifying the department of that transportation. (b) Any application for registration under this section shall be filed with the department. SEC. 3. Section 25175 of the Health and Safety Code is amended to read: 25175. (a) (1) The department shall prepare and adopt, by regulation, a list, and on or before January 1, 2002, and when appropriate thereafter, shall revise, by regulation, that list, of specified hazardous wastes that the department finds are economically and technologically feasible to recycle either onsite or at an offsite commercial hazardous waste recycling facility in the state, taking into consideration various factors that shall include, but are not limited to, the quantities of, concentrations of, and potential contaminants in, these hazardous wastes, the number and location of recycling facilities, and the proximity of these facilities to hazardous waste generators. (2) Whenever any hazardous waste on the list adopted or revised pursuant to paragraph (1) is transported offsite for disposal, the department may request, in writing, by certified mail with return receipt requested, and the generator of that waste shall supply the department with a formal, complete, and detailed statement justifying why the waste was not recycled, in writing, by certified mail with return receipt requested, within 30 calendar days of receipt of the department's request. This statement shall include the generator's assessment of the economic and technological feasibility of recycling the wastes and may include, but is not required to be limited to, the generator's good faith determination that sending the hazardous waste to any recycling facility where it is feasible to recycle that hazardous waste would constitute an unacceptable environmental or business risk. This determination by the generator shall be based upon an environmental audit or other reasonably diligent investigation of the environmental and other relevant business practices of the recycling facility or facilities where it would otherwise be feasible to recycle the waste. If the request is made of any entity listed in Section 25118 other than an individual, the statement shall be issued by the responsible management of that entity. The department shall keep confidential any trade secrets contained in that statement. (3) On or before January 1, 2002, the department shall establish a procedure for the department to independently verify whether any hazardous waste identified in the list adopted pursuant to paragraph (1) is disposed of, rather than recycled. The department shall, on or before January 1, 2002, prepare and adopt those regulations that the department finds necessary to ensure that it can fully perform its duties pursuant to subdivisions (k) and (l) of Section 25170 to encourage the exchange of hazardous waste and to establish and maintain an information clearinghouse of hazardous wastes that may be recyclable. (4) On or before July 1, 2000, the department shall establish an advisory committee to advise the department on the development of the regulations required or authorized by this section and on the department's implementation of this section. The advisory committee shall consist of representatives of generators, hazardous waste facility operators, environmental organizations, the Legislature, and other interested parties. (5) In determining to which generators the department will send the request specified in paragraph (2), the department shall give priority to notifying generators transporting offsite for disposal more than 1000 pounds per year of the type of hazardous waste that would be the subject of the request, to the extent this prioritization is feasible within the information management capabilities of the department. (b) (1) If, after the department receives a statement from a generator pursuant to paragraph (2) of subdivision (a), the department finds the recycling of a hazardous waste to be economically and technologically feasible, the department shall inform the generator, in writing, by certified mail, return receipt requested, that 30 days after the date the generator receives notice of the department's finding, any of the generators' hazardous waste transported offsite to which the department's finding applies shall, after that date, be recycled. The department may establish procedures for rescinding or modifying any finding made by the department pursuant to this paragraph if there is a pertinent change in circumstances related to that finding. (2) Notwithstanding paragraph (1), the department shall not find the recycling of a hazardous waste to be economically and technologically feasible if a generator includes a good faith determination in the statement submitted pursuant to paragraph (2) of subdivision (a) that sending its hazardous waste to any recycling facility where it is otherwise feasible to recycle the hazardous waste constitutes an unacceptable environmental or business risk. (c) A generator who does not recycle a hazardous waste after the generator receives a notice of the departments' findings pursuant to subdivision (b) that the hazardous waste is economically and technologically feasible to recycle is subject to five times the disposal fee that would otherwise apply to the disposal of that hazardous waste pursuant to Section 25174.1. (d) For purposes of this section, "recycle" and "recycling" shall have the same meaning as set forth in subdivision (a) of Section 25121.1. SEC. 4. Section 25250.8 of the Health and Safety Code is amended to read: 25250.8. Used oil, antifreeze, oil/water separation sludge, and parts cleaning solvent, including, but not limited to, an aqueous solution, shall be manifested under either one of the following procedures: (a) The procedures prescribed by Sections 25160 and 25161. (b) The following modified manifesting procedure, which may be used only for non-RCRA waste or for RCRA waste that is not required to be manifested pursuant to the federal act or the federal regulations adopted pursuant to the federal act and transported by a registered hazardous waste transporter, and used only with the consent of the generator: (1) A separate manifest shall be completed by each vehicle driver, with respect to each transport vehicle operated by that driver for each date. (2) The transporter shall complete both the generator's and the transporter's section of the manifest using the transporter's name, Environmental Protection Agency identification number, terminal address, and phone number. The transporter's section shall be completed prior to commencing each day's used oil, antifreeze, oil/water separation sludge, and parts cleaning solvent collections. The driver shall sign and date the generator's and transporter's sections of the manifest. (3) The transporter shall attach to the front of the manifest legible receipts for each quantity of used oil, antifreeze, oil/water separation sludge, or parts cleaning solvent that is received from a generator. The receipts shall be used to determine the total volume of used oil, antifreeze, oil/water separation sludge, or parts cleaning solvent in the vehicle. After the used oil, antifreeze, oil/water separation sludge, or parts cleaning solvent is delivered, the receipts shall be affixed to the transporter's copy of the manifest. The transporter shall leave a copy of the receipt with the generator of the used oil, antifreeze, oil/water separation sludge, or parts cleaning solvent. The generator shall retain each receipt for at least three years. (4) All copies of each receipt shall contain all of the following information: (A) The name, address, Environmental Protection Agency identification number, and telephone number of the generator, and the signature of the generator or the generator's representative. (B) The date of the shipment. (C) The state manifest number. (D) The volume of each waste stream received and its proper shipping description, including the hazardous class and identification number, if applicable. (E) The name and the address of the permitted facility to which the used oil, antifreeze, oil/water separation sludge, or parts cleaning solvent will be transported. (F) The transporter's name, address, and Environmental Protection Agency identification number. (G) The driver's signature. (H) The receipts for antifreeze, oil/water separation sludge, or parts cleaning solvent shall include a statement, signed by the generator, certifying that the generator has established a program to reduce the volume or quantity and toxicity of the hazardous waste to the degree, determined by the generator, to be economically practicable. (5) The transporter shall enter the total volume of each waste stream transported on the manifest at the change of each date, change of driver, change of transport vehicle, and upon the last delivery of used oil, antifreeze, oil/water separation sludge, or parts cleaning solvent to the receiving facility. The total volume shall be the cumulative amount of each waste stream collected from the generators listed on the individual receipts. (6) The transporter shall submit the generator copy of the manifest to the department within 30 days of each shipment. (7) The transporter shall retain a copy of the manifest and all receipts for each manifest at a location within the state for three years. (8) The transporter shall submit all copies of the manifest to the designated facility. A representative of the designated facility that receives the used oil, antifreeze, oil/water separation sludge, or parts cleaning solvent shall sign and date the manifest, return two copies to the hauler, retain one copy, and send the original to the department within 30 days. (9) All other manifesting requirements of Sections 25160 and 25161 shall be complied with unless specifically exempted under this subdivision. (10) Antifreeze, oil/water separation sludge, and parts cleaning solvents may be manifested under the procedures specified in this subdivision only if all of the following requirements are satisfied: (A) The waste is either a non-RCRA hazardous waste, or it is a RCRA hazardous waste that is not required to be manifested pursuant to the federal act or the federal regulations adopted pursuant to the federal act. (B) The generator enters into an agreement with the transporter in which the transporter agrees that the transporter will submit a confirmation to the generator that the hazardous waste was transported to an authorized hazardous waste treatment facility for appropriate treatment. The agreement may provide that the hazardous waste will first be transported to a storage or transfer facility in accordance with the applicable provisions of law. (C) The generator meets one of the following conditions: (i) The antifreeze, oil/water separation sludge, or parts cleaning solvent is accepted from a generator who has generated used oil that was transported pursuant to the modified manifesting procedure specified in this subdivision in the same 90-day period in which the transporter accepts the antifreeze, oil/water separation sludge, or parts cleaning solvent. Parts cleaning solvent accepted pursuant to this clause shall not be generated from any activity that is physically and operationally separate and distinct from the activity that generated the used oil that was transported pursuant to the modified manifesting procedure specified in this subdivision. (ii) If the waste is parts cleaning solvent and the generator has not generated used oil that was transported in the same 90-day period in which the transporter accepts the antifreeze, oil/water separation sludge, or parts cleaning solvent, the parts cleaning solvent is accepted from a generator who does not generate more than 1,000 kilograms per month of non-RCRA hazardous waste. For purposes of this clause, any non-RCRA hazardous waste that is generated from an activity that is physically and operationally separate and distinct from an activity that generates the parts cleaning solvent shall not be considered in calculating the amount of non-RCRA hazardous waste generated by the generator, if none of the waste generated from a physically and operationally separate and distinct activity is accepted pursuant to the modified manifesting procedure specified in this subdivision. (D) If the waste is oil/water separation sludge, the transporter shall comply with both of the following requirements: (i) The transporter shall not accept more than 500 gallons of oil/water separation sludge from any generator in any 30-day period. (ii) The oil/water separation sludge is generated from a catch basin, clarifier, or similar collection device that is used to collect water containing residual used oil and antifreeze and incidental amounts of other substances and contaminants associated with activities that generate used oil and antifreeze. (c) The department may adopt, by regulation, a requirement that transporters using the modified manifesting procedures specified in subdivision (b), or pursuant to Section 66263.42 of Title 22 of the California Code of Regulations, submit a report to the department not more than once every 3 months, summarizing the information required to be contained in the receipts required pursuant to paragraph (4) of subdivision (b). SEC. 5. Section 25250.26 is added to the Health and Safety Code, to read: 25250.26. (a) Every generator of used oil, other than the owner or operator of a used oil collection center, as defined in Section 48622 of the Public Resources Code, or a household hazardous waste collection facility, as defined in Section 25218.1, that transfers used oil to a recycling facility, shall submit a certification to the transporter that the used oil transferred meets the definition of used oil pursuant to subdivision (a) of Section 25250.1. The certification shall specifically state that the used oil does not contain polychlorinated biphenyls (PCBs) at a concentration of 5 ppm, or greater, in accordance with clause (iv) of subparagraph (B) of paragraph (1) of subdivision (a) of Section 25250.1. This subdivision shall not be construed to affect the methods that a generator is authorized to use to determine whether its waste constitutes used oil or hazardous waste pursuant to Section 66262.11 of Title 22 of the California Code of Regulations or under any other regulation or provision of law. (b) (1) Any generator that falsely certifies pursuant to subdivision (a) that the used oil transferred to a used oil recycling facility does not contain PCBs at a concentration of 5 ppm or greater shall be liable for damages equal to three times the amount of any costs incurred by any transporter, facility owner or operator, or any other person adversely affected by the false certification, in a civil action that may be brought by the adversely affected party. (2) In an action pursuant to this subdivision against a generator whose used oil was commingled with used oil generated by other generators prior to being delivered to the facility, the plaintiff shall demonstrate, by clear and convincing evidence, that the generator generated used oil containing PCBs at a concentration of 5ppm or greater. (c) For the purposes of this section, the calculation of damages shall include any consequential damages caused by mixing the incorrectly certified PCB-contaminated used oil with other used oil. (d) Nothing in this section shall affect the right of the department or any other enforcement agency to institute an administrative, civil, or criminal action against a generator that has made a false certification. (e) Any plaintiff seeking damages pursuant to this section shall give written notice to the director upon filing an action pursuant to this section. SEC. 5. 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.