BILL NUMBER: AB 1942 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 14, 2004
AMENDED IN ASSEMBLY APRIL 19, 2004
AMENDED IN ASSEMBLY APRIL 1, 2004
INTRODUCED BY Assembly Member Lowenthal
FEBRUARY 11, 2004
An act to amend Section 25200.15 Sections
25123.3, 25200, 25200.15, and 25245 of the Health and Safety
Code, relating to hazardous waste.
LEGISLATIVE COUNSEL'S DIGEST
AB 1942, as amended, Lowenthal. Hazardous waste facilities
permits : financial assurances .
(1) Existing law requires hazardous waste facilities to operate
under hazardous waste facilities permits issued by the Department of
Toxic Substances Control (department). Existing law defines the term
"storage facility" for purposes of the hazardous waste control laws
as excluding a transfer facility if the hazardous waste is held in
containers or tanks for a period of 6 days or less, or for a period
of 10 days or less if the transfer facility is located in an area
zoned industrial by the local planning authority.
The bill would instead exempt, from the definition of the term
"storage facility", a transfer facility where the waste is held in
containers or tanks for 10 days or less if the transfer facility is
located in an area zoned nonresidential by the local planning
authority.
(2) Existing law requires the department to issue a hazardous
waste facilities permit for a fixed term, which is prohibited from
exceeding 10 years for any land disposal facility, storage facility,
incinerator, or other treatment facility.
This bill would authorize the owner or operator of the facility to
submit an application for a hazardous waste facilities permit
renewal before the fixed term of the permit expires. The bill would
provide that if the department does not renew or approve the
application before the end of the permit's fixed term, the permit is
deemed extended until the renewal application is approved or denied
and the owner or operator has exhausted all applicable rights of
appeal. The bill would specify related matter with regard to the
permit renewal application and the submission of additional
information.
(3) Existing law allows the owner or operator of a permitted
hazardous waste facility to change facility structures or equipment
without modifying the facility's hazardous waste facilities permit,
if the change to the structure or equipment is not within a permitted
unit, or if the structure or equipment is not actively related to
the treatment, storage, or disposal of hazardous waste, or the
secondary containment of those hazardous wastes, as specified.
This bill would authorize the owner or operator of a permitted
facility to the extent consistent with the Federal Resource
Conservation and Recovery Act of 1976 (RCRA) and the regulations
adopted pursuant to RCRA, to change the facility structures or
equipment as a utilizing the
Class 1* permit modification , pursuant to
specified in the regulations adopted by the Department of Toxic
Substances Control, if the department determines that 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 or air pollution control district and if the
change 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.
(4) Existing law requires the department to adopt regulations that
specify the financial assurances to be provided by the owner or
operator of a hazardous waste facility that are necessary to respond
adequately to damage claims and to provide for the cost of closure
and subsequent maintenance. Existing law requires the financial
assurance to be a trust fund, surety bond, letter of credit,
insurance, or, if the facility manages hazardous waste that is not
regulated under RCRA, any other equivalent financial arrangement
acceptable to the department. A violation of the hazardous waste
control law, including a regulation adopted by the department, is a
crime.
This bill would instead require, if the facility is required to
obtain a permit under RCRA, the financial assurance required would be
a trust fund, surety bond, letter of credit, insurance or other
mechanism authorized under RCRA, and if the facility is not required
to obtain a permit under RCRA, the financial assurance could include
any other equivalent financial arrangement acceptable to the
department.
Since a violation of the regulations adopted by the department is
a crime, the bill would impose a state-mandated local program.
(5) 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.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 25123.3 of the Health and Safety Code is
amended to read:
25123.3. (a) For purposes of this section, the following terms
have the following meaning:
(1) "Liquid hazardous waste" means a hazardous waste that meets
the definition of free liquids, as specified in Section 66260.10 of
Title 22 of the California Code of Regulations, as that section read
on January 1, 1994.
(2) "Remediation waste staging" means the temporary accumulation
of non-RCRA contaminated soil that is generated and held onsite, and
that is accumulated for the purpose of onsite treatment pursuant to a
certified, authorized or permitted treatment method, such as a
transportable treatment unit, if all of the following requirements
are met:
(A) The hazardous waste being accumulated does not contain free
liquids.
(B) The hazardous waste is accumulated on an impermeable surface,
such as high density polyethylene (HDPE) of at least 20 mills that is
supported by a foundation, or high density polyethylene of at least
60 mills that is not supported by a foundation.
(C) The generator provides controls for windblown dispersion and
precipitation runoff and run-on and complies with any stormwater
permit requirements issued by a regional water quality control board.
(D) The generator has the accumulation site inspected weekly and
after storms to ensure that the controls for windblown dispersion and
precipitation runoff and run-on are functioning properly.
(E) The staging area is certified by a registered engineer for
compliance with the standards specified in subparagraphs (A) to (D),
inclusive.
(3) "Transfer facility" means any offsite facility that is related
to the transportation of hazardous waste, including, but not limited
to, loading docks, parking areas, storage areas, and other similar
areas where shipments of hazardous waste are held during the normal
course of transportation.
(b) "Storage facility" means a hazardous waste facility at which
the hazardous waste meets any of the following requirements:
(1) The hazardous waste is held for greater than 90 days at an
onsite facility. The department may establish criteria and
procedures to extend that 90-day period, consistent with the federal
act, and to prescribe the manner in which the hazardous waste may be
held if not otherwise prescribed by statute.
(2) The hazardous waste is held for any period of time at an
offsite facility which is not a transfer facility.
(3) (A) Except as provided in subparagraph (C), the hazardous
waste is held at a transfer facility for periods greater than six
days, or greater than 10 days for transfer facilities in areas zoned
industrial by the local planning authority.
(B) The department may adopt regulations which set forth
enforceable management standards that protect human health and the
environment and which apply to persons holding hazardous waste at a
transfer facility located in a commercial or residential area
pursuant to subparagraph (A). Any regulations adopted pursuant to
this subparagraph shall be considered by the Office of Administrative
Law to be necessary for the immediate preservation of the public
peace, health and safety, and general welfare, and may be adopted as
emergency regulations in accordance with Chapter 3.5 (commencing with
Section 11340) of Part 1 of Division 3 of Title 2 of the Government
Code.
(C) (i) The department may extend the period of time specified in
subparagraph (A) for hazardous waste that is generated as a result of
an emergency release and that is collected and temporarily stored by
emergency rescue personnel, as defined in Section 25501, or by a
response action contractor upon the request of emergency rescue
personnel or the response action contractor.
(ii) Notwithstanding any other provision of law, a transfer
facility that holds hazardous waste for periods greater than six
days, or greater than 10 days for transfer facilities in areas zoned
industrial by the local planning authority, pursuant to this
subparagraph shall not be classified as a storage facility.
(iii) For purposes of this subparagraph, "response action
contractor" means any person who enters into a contract with the
department to take removal or remedial action pursuant to Chapter 6.8
(commencing with Section 25300) in response to a release or
threatened release, including any subcontractors of the response
action contractor.
(4) (A) Except as provided in subparagraph (B), the hazardous
waste is held onsite for any period of time, unless the hazardous
waste is held in a container, tank, drip pad, or containment building
pursuant to regulations adopted by the department.
(B) Notwithstanding subparagraph (A), a generator that accumulates
hazardous waste generated and held onsite for 90 days or less for
offsite transportation is not a storage facility if all of the
following requirements are met:
(i) The waste is non-RCRA contaminated soil.
(ii) The hazardous waste being accumulated does not contain free
liquids.
(iii) The hazardous waste is accumulated on an impermeable
surface, such as high density polyethylene (HDPE) of at least 20
mills that is supported by a foundation, or high density polyethylene
of at least 60 mills that is not supported by a foundation.
(iv) The generator provides controls for windblown dispersion and
precipitation runoff and run-on and complies with any stormwater
permit requirements issued by a regional water quality control board.
(v) The generator has the accumulation site inspected weekly and
after storms to ensure that the controls for windblown dispersion and
precipitation runoff and run-on are functioning properly.
(vi) The generator, after final offsite transportation, inspects
the accumulation site for contamination and remediates as necessary.
(vii) The site is certified by a registered engineer for
compliance with the standards specified in clauses (i) to (vi),
inclusive.
(5) The hazardous waste is held at a transfer facility for any
period of time in a manner other than in a container or tank.
(6) (A) Except as provided in subparagraph (B), the hazardous
waste is held at a transfer facility for any period of time and
handling occurs.
(B) Notwithstanding subparagraph (A), and to the extent consistent
with the federal act, a transfer facility is not a storage facility
if the hazardous waste is held in containers or tanks at a transfer
facility for a period of six days or less, or 10
days or less for transfer facilities in areas zoned
industrial nonresidential by the local planning
authority, and no handling occurs, other than the transfer of
packages or containerized hazardous waste from one vehicle to
another.
(c) The time period for calculating the 90-day period for purposes
of paragraph (1) of subdivision (b), or the 180-day or 270-day
period for purposes of subdivision (h), begins when the facility has
accumulated 100 kilograms of hazardous waste or one kilogram of
extremely hazardous waste or acutely hazardous waste. However, if
the facility generates more than 100 kilograms of hazardous waste or
one kilogram of extremely hazardous waste or acutely hazardous waste
during any calendar month, the time period begins when any amount of
hazardous waste first begins to accumulate in that month.
(d) Notwithstanding paragraph (1) of subdivision (b), a generator
of hazardous waste that accumulates waste onsite is not a storage
facility if all of the following requirements are met:
(1) The generator accumulates a maximum of 55 gallons of hazardous
waste, one quart of acutely hazardous waste, or one quart of
extremely hazardous waste at an initial accumulation point that is at
or near the area where the waste is generated and that is under the
control of the operator of the process generating the waste.
(2) The generator accumulates the waste in containers other than
tanks.
(3) The generator does not hold the hazardous waste onsite without
a hazardous waste facilities permit or other grant of authorization
for a period of time longer than the shorter of the following time
periods:
(A) One year from the initial date of accumulation.
(B) Ninety days, or if subdivision (h) is applicable, 180 or 270
days, from the date that the quantity limitation specified in
paragraph (1) is reached.
(4) The generator labels any container used for the accumulation
of hazardous waste with the initial date of accumulation and with the
words "hazardous waste" or other words that identify the contents of
the container.
(5) Within three days of reaching any applicable quantity
limitation specified in paragraph (1), the generator labels the
container holding the accumulated hazardous waste with the date the
quantity limitation was reached and either transports the waste
offsite or holds the waste onsite and complies with either the
regulations adopted by the department establishing requirements for
generators subject to the time limit specified in paragraph (1) of
subdivision (b) or the requirements specified in paragraph (1) of
subdivision (h), whichever requirements are applicable.
(6) The generator complies with regulations adopted by the
department pertaining to the use and management of containers and any
other regulations adopted by the department to implement this
subdivision.
(e) (1) Notwithstanding paragraphs (1) and (4) of subdivision (b),
hazardous waste held for remediation waste staging shall not be
considered to be held at a hazardous waste storage facility if the
total accumulation period is one year or less from the date of the
initial placing of hazardous waste by the generator at the staging
site for onsite remediation, except that the department may grant one
six-month extension, upon a showing of reasonable cause by the
generator.
(2) (A) The generator shall submit a notification of plans to
store and treat hazardous waste onsite pursuant to paragraph (2) of
subdivision (a), in person or by certified mail, with return receipt
requested, to the department and to one of the following:
(i) The CUPA, if the generator is under the jurisdiction of a
CUPA.
(ii) If the generator is not under the jurisdiction of a CUPA, the
notification shall be submitted to the officer or
agency authorized, pursuant to subdivision (f) of Section 25404.3,
to implement and enforce the requirements of this chapter listed in
paragraph (1) of subdivision (c) of Section 25404.
(B) If, after the notification pursuant to subparagraph (A), or
during the initial year or the six-month extension granted by the
department, the generator determines that treatment cannot be
accomplished for all, or part of, the hazardous waste accumulated in
a remediation waste staging area, the generator shall immediately
notify the department and the appropriate local agency, pursuant to
subparagraph (A), that the treatment has been discontinued. The
generator shall then handle and dispose of the hazardous waste in
accordance with paragraph (4) of subdivision (b).
(C) A generator shall not hold hazardous waste for remediation
waste staging unless the generator can show, through laboratory
testing, bench scale testing, or other documentation, that soil held
for remediation waste staging is potentially treatable. Any fines
and penalties imposed for a violation of this subparagraph may be
imposed beginning with the 91st day that the hazardous waste was
initially accumulated.
(3) Once an onsite treatment operation is completed on hazardous
waste held pursuant to paragraph (1), the generator shall inspect the
staging area for contamination and remediate as necessary.
(f) Notwithstanding any other provision of this chapter,
remediation waste staging and the holding of non-RCRA contaminated
soil for offsite transportation in accordance with paragraph (4) of
subdivision (b) shall not be considered to be disposal or land
disposal of hazardous waste.
(g) A generator who holds hazardous waste for remediation waste
staging pursuant to paragraph (2) of subdivision (a) or who holds
hazardous waste onsite for offsite transportation pursuant to
paragraph (4) of subdivision (b) shall maintain records onsite that
demonstrate compliance with this section related to storing hazardous
waste for remediation waste staging or related to holding hazardous
waste onsite for offsite transportation, as applicable. The records
maintained pursuant to this subdivision shall be available for review
by any public agency authorized pursuant to Section 25180 or 25185.
(h) (1) Notwithstanding paragraph (1) of subdivision (b), a
generator of less than 1,000 kilograms of hazardous waste in any
calendar month who accumulates hazardous waste onsite for 180 days or
less, or 270 days or less if the generator transports the generator'
s own waste, or offers the generator's waste for transportation, over
a distance of 200 miles or more, for offsite treatment, storage, or
disposal, is not a storage facility if all of the following apply:
(A) The quantity of hazardous waste accumulated onsite never
exceeds 6,000 kilograms.
(B) The generator complies with the requirements of subdivisions
(d), (e), and (f) of Section 262.34 of Title 40 of the Code of
Federal Regulations.
(C) The generator does not hold acutely hazardous waste or
extremely hazardous waste in an amount greater than one kilogram for
a time period longer than that specified in paragraph (1) of
subdivision (b).
(2) A generator meeting the requirements of paragraph (1) who does
not receive a copy of the manifest with the handwritten signature of
the owner or operator of the facility to which the generator's waste
is submitted, within 60 days from the date that the hazardous waste
was accepted by the initial transporter, shall submit to the
department a legible copy of the manifest, with some indication that
the generator has not received confirmation of delivery.
SEC. 2. Section 25200 of the Health and Safety Code is amended to
read:
25200. (a) The department shall issue hazardous waste facilities
permits to use and operate one or more hazardous waste management
units at a facility which that in the
judgment of the department meet the building standards published in
the State Building Standards Code relating to hazardous waste
facilities and the other standards and requirements adopted pursuant
to this chapter. The department shall impose conditions on each
hazardous waste facilities permit specifying the types of hazardous
wastes which that may be accepted for
transfer, storage, treatment, or disposal. The department may impose
any other conditions on a hazardous waste facilities permit that are
consistent with the intent of this chapter.
(b) The department may impose, as a condition of a hazardous waste
facilities permit, a requirement that the owner or operator of a
hazardous waste facility which that
receives hazardous waste from more than one producer comply with any
order of the director which that
prohibits the facility operator from refusing to accept a hazardous
waste based on geographical origin which that
is authorized to be accepted and may be accepted by the
facility without extraordinary hazard.
(c) (1) (A) Any hazardous waste facilities permit
issued by the department shall be for a fixed term, which shall not
exceed 10 years for any land disposal facility, storage facility,
incinerator, or other treatment facility. The
(B) Before the fixed term of a permit expires, the owner or
operator of a facility intending to extend the term of the facility's
permit shall submit a complete Part A application for a permit
renewal. At any time following the submittal of the Part A
application, the owner or operator of a facility shall submit a
complete Part B application, or any portion thereof, as well as any
other relevant information, as and when requested by the department.
When a complete Part A renewal application, and any other requested
information, has been submitted before the end of the permit's fixed
term, the permit is deemed extended until the renewal application is
approved or denied and the owner or operator has exhausted all
applicable rights of appeal.
(C) For purposes of subparagraph (B) the department shall deem a
permit renewal application to be complete if it indicates an
intention to renew and describes any proposed modifications in
sufficient detail to allow the department and the public to
prioritize the relative importance of the permit renewal application.
The department may require an applicant to submit any additional
information it deems necessary at the time the initial permit renewal
application is submitted or when the department commences its full
processing and review of the renewal application.
(2) The department shall review each hazardous waste
facilities permit for a land disposal facility five years after the
date of issuance or reissuance, and shall modify the permit, as
necessary, to assure that the facility continues to comply with the
currently applicable requirements of this chapter and the regulations
adopted pursuant to this chapter. This
(3) This subdivision does not prohibit the department from
reviewing and , modifying or
revoking a permit at any time during its term. When
(d) (1) When reviewing any application for a permit renewal,
the department shall consider improvements in the state of control
and measurement technology as well as changes in applicable
regulations. Each
(2) Each permit issued or renewed under this
section shall contain the terms and conditions which
that the department determines necessary to
protect human health and the environment.
(d)
(e) On the date the department is granted final
authorization by the Environmental Protection Agency pursuant to
Section 6926 of Title 42 of the United States Code, any
Any permit issued pursuant to the federal act by the
Environmental Protection Agency in the state for which no state
hazardous waste facilities permit has been issued shall be deemed to
be a state permit enforceable by the department until a state permit
is issued. In addition to complying with the terms and conditions
specified in a federal permit deemed to be a state permit pursuant to
this section, an owner or operator who holds that permit shall
comply with the requirements of this chapter and the regulations
adopted by the department to implement this chapter.
SEC. 3. 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
may change facility structures or equipment without modifying the
facility's hazardous waste facilities permit, if any of the following
apply:
(1) The change to the structure 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 the structure 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) The 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 as a
utilizing the Class 1* permit modification,
pursuant to specified in the
regulations adopted by the department, if the department determines
that both 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 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.
(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.
(C) The owner or operator has submitted sufficient information for
the department to make the determinations required by subparagraphs
(A) and (B) and to comply with the requirements of Division 13
(commencing with Section 21000) of the Public Resources Code, the
California Environmental Quality Act.
(3) For purposes of this section, a "Class 1* permit modification"
means a change to a facility structure or equipment that is
classified as a Class 1* modification pursuant to Chapter 20
(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 66270.10) 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 (commencing with Section 66270.10)
of Division 4.5 of Title 22 of the California Code of Regulations.
(c) 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. 4. Section 25245 of the Health and Safety Code is amended to
read:
25245. (a) The department shall adopt, and revise when
appropriate, standards and regulations which shall do both of the
following:
(1) Specify the financial assurances to be provided by the owner
or operator of a hazardous waste facility that are necessary to
respond adequately to damage claims arising out of the operation of
that type of facility and to provide for the cost of closure and
subsequent maintenance of the facility, including, but not limited
to, the monitoring of groundwater and other aspects of the
environment after closure. The If the
facility is required to obtain a permit under the federal act, the
financial assurance shall be a trust fund, surety bond, letter
of credit, insurance, or , for facilities which manage
solely non-RCRA hazardous waste, any other mechanism
authorized under the federal act and the regulations adopted pursuant
to the federal act. If the facility is not required to obtain a
permit under the federal act, the financial assurance may include any
other equivalent financial arrangement acceptable to the
department.
(2) Provide that every hazardous waste facility can be closed and
maintained for at least 30 years subsequent to its closure in a
manner that protects human health and the environment and minimizes
or eliminates the escape of hazardous waste constituents, leachate,
contaminated rainfall, and waste decomposition products to ground and
surface waters and to the atmosphere.
(b) In adopting regulations pursuant to subdivision (a), to carry
out the purposes of this chapter, the department may specify policy
or other contractual terms, conditions, or defenses which are
necessary or are unacceptable in establishing evidence of financial
responsibility.
(1) If an owner or operator is in bankruptcy, reorganization, or
other arrangement pursuant to Title 11 of the United States Code, or
where, with reasonable diligence, jurisdiction in any state or
federal court cannot be obtained over an owner or operator likely to
be solvent at the time of judgment, any claim arising from conduct
for which this section requires evidence of financial responsibility
may be asserted directly against the guarantor who provided the
evidence of financial responsibility.
(2) The total liability of any guarantor is limited to the
aggregate amount which the guarantor has provided as evidence of
financial responsibility to the owner or operator under this chapter.
(3) This subdivision does not limit any other state or federal
statutory, contractual, or common law liability of a guarantor to the
owner or operator, including, but not limited to, the liability of
the guarantor for bad faith in either negotiating or in failing to
negotiate the settlement of any claim.
(4) This subdivision does not diminish the liability of any person
under Section 107 or 111 of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42 U.S.C. Secs.
9607 and 9611).
(5) For purposes of this subdivision, "guarantor" means any
person, other than the owner or operator, who provides evidence of
financial responsibility for an owner or operator under this section.
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.