BILL NUMBER: AB 1647 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 16, 2012
INTRODUCED BY Assembly Member Gordon
FEBRUARY 13, 2012
An act to amend Section Sections 42825,
42835, 42843, 42845 , 42847.5, 42851, 42852, 42853, 42854,
and 42960 of , to add Section 42961.1 to, to
repeal Section 42844 of, to repeal and add Section 42961 of,
the Public Resources Code, relating to solid waste.
LEGISLATIVE COUNSEL'S DIGEST
AB 1647, as amended, Gordon. Solid waste: waste tires:
injunction. enforcement.
Existing law requires, upon the order of the Department of
Resources Recycling and Recovery, a person who stores, stockpiles, or
accumulates waste tires in violation of the provisions regulating
the storage, stockpiling, or accumulation of waste tires to clean up
those waste tires and abate the effects of the waste tires or take
other necessary remedial actions in the case of threatened pollution
or nuisance. Existing law requires the Attorney General, at the
request of the department, to petition the appropriate superior court
for the issuance of an injunction if the person fails to comply with
the cleanup or abatement order. Existing law authorizes, at the
request of the department, the district attorney or county counsel of
the county in which the violation occurred to petition the court for
the issuance of an injunction if the Attorney General fails to
petition the court within 45 days of the department's request to the
Attorney General.
This bill would shorten that time period to 30 days.
Existing law authorizes the department, subject in some cases to a
formal administrative adjudicative hearing, to revoke, suspend, or
deny a waste tire facility permit if the department makes specified
findings. Existing law authorizes the department, prior to any
hearing, to temporarily suspend a waste tire facility permit if the
department determines that the action is necessary to prevent or to
mitigate an imminent or substantial endangerment to the public health
or safety, or the environment and requires the department to set an
informal hearing before a neutral official. Existing law requires
that the temporary revocation or suspension remain in effect until
the hearing is completed and the department has made a final
determination on the merits. Existing law provides that the temporary
revocation or suspension is of no further effect if the department
fails to transmit the determination within 60 days of the completion
of the hearing.
This bill would, instead, authorize the department to revoke,
suspend, or deny a waste tire facility permit if the department makes
specified findings. The bill would require the department to notify
the applicant for, or the holder of, the permit of the revocation,
suspension, or denial and the effective date of the revocation,
suspension, or denial and serve a statement of issue on the applicant
for, or the holder of, the permit. The bill would require the
department to conduct an informal hearing before the Director of
Resources Recycling and Recovery. The bill would provide that the
revocation or suspension remain in effect until the hearing is
completed and the department has made a final determination on the
merits. The bill would provide that the revocation or suspension is
of no further effect if the department fails to transmit the
determination within 60 days of the submission of the case.
Existing law authorizes the department to issue and serve an
administrative complaint to a person on whom civil liability is
imposed for a violation of law regulating waste tire facilities.
Existing law requires the department to inform the person served that
a formal administrative hearing would be held within 60 days of
service unless the person waives his or her right to a hearing.
This bill would, instead, require the department to serve an
administrative accusation on the person. The bill would require the
department to schedule an informal administrative hearing before the
director within 15 days of receipt of a notice of defense to the
administrative accusation. The bill would require the director to
issue, within 60 days of the submission of the case, an order setting
the amount of civil penalty to be imposed, if any.
Existing law authorizes the department to revoke, suspend, or deny
a waste and used tire hauler registration if the department makes
specified findings. Existing law authorizes an applicant for the
registration to request a hearing if the application was denied.
This bill would additionally authorize a holder of the
registration to request a hearing upon the revocation or suspension
of the registration. The bill would require the department to notify
the applicant for, or the holder of, the registration of the
revocation, suspension, or denial and the effective date of the
revocation, suspension, or denial and serve an accusation on the
applicant for, or the holder of, the registration. The bill would
require the department to conduct an informal hearing before the
director. The bill would provide that the revocation or suspension
remain in effect until the hearing is completed and the department
has made a final determination on the merits. The bill would provides
that the revocation or suspension is of no further effect if the
department fails to transmit the determination within 60 days of the
submission of the case.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 42825 of the Public
Resources Code is amended to read:
42825. (a) Any A person who accepts
waste tires at a major waste tire facility that has not been issued
a permit or an authorization to operate from the board
department , or who knowingly directs,
transports, or abandons waste tires to or at a major waste tire
facility that has not been issued a permit or an authorization to
operate from the board department shall
, upon conviction, be punished by a fine of not
less than one thousand dollars ($1,000) or more than ten thousand
dollars ($10,000) for each day of violation, by imprisonment in the
county jail for not more than one year, or by both that fine and
imprisonment.
(b) For purposes of subdivision (a), "each day of violation" means
each day on which a violation continues. In any case where
in which a person has accepted waste tires at a
major waste tire facility, or knowingly directed or transported waste
tires to a major waste tire facility, that has not been issued a
permit, in violation of subdivision (a), each day that the waste
tires remain at the facility and the person has knowledge thereof is
a separate additional violation, unless the person has filed a report
with the board department disclosing
the violation and is in compliance with any order regarding the waste
tires issued by the board, a hearing officer, or a court of
competent jurisdiction department .
SEC. 2. Section 42835 of the Public
Resources Code is amended to read:
42835. (a) Any A person who accepts
waste tires at a minor waste tire facility that has not been issued
a permit or an authorization to operate from the board
department , or who knowingly directs,
transports, or abandons waste tires to or at a minor waste tire
facility that has not been issued a permit or an authorization to
operate from the board department shall
, upon conviction, be punished by a fine of not
less than five hundred dollars ($500) or more than five thousand
dollars ($5,000) for each day of violation, by imprisonment in the
county jail for not more than one year, or by both that fine and
imprisonment.
(b) For purposes of subdivision (a), "each day of violation" means
each day on which a violation continues. In any case where
in which a person has accepted waste tires at a
minor waste tire facility, or knowingly directed or transported waste
tires to a minor waste tire facility, that has not been issued a
permit, in violation of subdivision (a), each day that the waste
tires remain at the facility and the person has knowledge thereof is
a separate additional violation, unless the person has filed a report
with the board department disclosing
the violation and is in compliance with any order regarding the waste
tires issued by the board, a hearing officer, or a court of
competent jurisdiction department .
SEC. 3. Section 42843 of the Public
Resources Code is amended to read:
42843. (a) The board, after holding a hearing in
accordance with the procedures set forth in Sections 11503 to 11519,
inclusive, of the Government Code, department
may revoke, suspend, or deny a waste tire facility permit for a
period of up to three years, if the board
department determines any of the following:
(1) The permit was obtained by a material misrepresentation or
failure to disclose relevant factual information.
(2) The operator of the waste tire facility, during the previous
three years, has been issued a final order for, failed to comply
with, or has been convicted of, any of the following:
(A) One or more violations of this chapter or the regulations
adopted pursuant to this chapter.
(B) One or more violations of Chapter 19 (commencing with Section
42950) or the regulations adopted pursuant to that chapter.
(C) The terms or conditions of the operator's waste tire facility
permit.
(D) Any order, direction, or penalty issued by the board
department relating to the safe storage or
processing of waste tires.
(b) If the board department
determines that a violation specified in paragraph (2) of subdivision
(a) demonstrates a chronic, recurring pattern of noncompliance that
poses, or may pose, a significant risk to public health and safety or
the environment, or if the violation has not been corrected or
reasonable progress toward correction has not been achieved, the
board department may suspend, revoke,
or deny a waste tire facility permit, in accordance with the
procedure specified in subdivision (a), for a period of not more than
five years.
(c) If the board department
determines that a violation specified in paragraph (2) of subdivision
(a) has resulted in significant harm to human health or the
environment, the board department may
suspend, revoke, or deny a waste tire facility permit, in accordance
with the procedure specified in subdivision (a), for a period of five
years or greater.
(d) The department shall notify the applicant for, or the holder
of, the permit of the revocation, suspension, or denial of the permit
and the effective date of the revocation, suspension, or denial and,
at the same time, shall serve, by personal service or certified
mail, the person with a statement of issues.
(e) Upon receipt by the department of a notice of defense to the
statement of issues from the applicant for, or the holder of, the
permit, the department shall, within 15 days, schedule a hearing
before the director. The hearing shall be held as soon as possible.
(f) The revocation or suspension shall remain in effect until the
hearing is completed and the director has issued a decision.
(g) After conducting the hearing, the director shall, within 60
days after the case is submitted, issue a decision, including an
order setting forth the issuance, suspension, revocation, or denial
of the permit. If the decision is not issued within this period, the
revocation or suspension shall be of no further effect.
SEC. 4. Section 42844 of the Public
Resources Code is repealed.
42844. (a) The board may temporarily suspend any permit issued
pursuant to this chapter prior to any hearing if the board determines
that the action is necessary to prevent or mitigate an imminent or
substantial endangerment to the public health or safety or the
environment.
(b) The board shall notify the holder of the permit of the
temporary suspension and the effective date thereof and, at the same
time, shall serve the person with an accusation.
(c) Upon receipt by the board of a notice of defense to the
accusation from the holder of the permit, the board 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.
(d) The temporary suspension shall remain in effect until the
hearing is completed and the board 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.
SECTION 1. SEC. 5. Section 42845 of
the Public Resources Code is amended to read:
42845. (a) A person who stores, stockpiles, or accumulates waste
tires at a location for which a waste tire facility permit is
required pursuant to this chapter, or in violation of the terms and
conditions of the permit, the provisions of this chapter, or the
regulations adopted under this chapter, shall, upon order of the
department, clean up those waste tires or abate the effects of the
waste tires, or, in the case of threatened pollution or nuisance,
take other necessary remedial action.
(b) (1) Upon failure of a person to comply with the cleanup or
abatement order, the Attorney General, at the request of the
department, shall petition the superior court for that county for the
issuance of an injunction requiring the person to comply with that
order. In a suit, the court shall have jurisdiction to grant a
prohibitory or mandatory injunction, either preliminary or permanent,
as the facts may warrant.
(2) If the Attorney General declines, or is unable, to petition
the appropriate superior court for issuance of an injunction within
30 days from the department's request, pursuant to paragraph (1), the
district attorney or county counsel of that county may, at the
department's request, petition the superior court for issuance of the
injunction specified in paragraph (1).
SEC. 6. Section 42847.5 of the Public
Resources Code is amended to read:
42847.5. (a) Any costs or damages incurred by the board
department under this article constitute a lien
upon the real property owned by any responsible party that is subject
to the remedial action. The lien shall attach regardless of whether
the responsible party is insolvent. A lien imposed under this section
shall arise at the time costs are first incurred by the
board department with respect to a remedial
action at the site.
(b) A lien established under this section shall be subject to the
notice and hearing procedures required by due process of the law.
Prior to imposing the lien, the board
department shall send the property owner via certified mail a
"Notice of Intent to Place A Lien" letter. This letter shall provide
that the owner, within 14 calendar days from the date of receipt of
the letter, may object to the imposition of the lien either in
writing or through an informal proceeding before a neutral official.
This neutral official shall be the board's executive
director or his or her designee, who may not have had any
prior involvement with the site. The issue before the neutral
official shall be whether the board
department has a reasonable basis for its determination that
the statutory elements for lien placement under this section are
satisfied. During this proceeding the property owner may present
information or submit documents, or both, to establish that the
board department should not place a
lien as proposed. The neutral official shall assure
ensure that a record of the proceeding is made,
and shall issue a written decision. The decision shall state whether
the property owner has established any issue of fact or law to alter
the board's department's intention to
file a lien, and the basis for the decision.
(c) The board department may not be
considered a responsible party for a remediated site merely because a
lien is imposed under this section.
(d) A lien imposed under this section shall continue until the
liability for the costs or damages incurred under this article, or a
judgment against the responsible party, is satisfied. However, if it
is determined by a court that the judgment against the responsible
party will not be satisfied, the board
department may exercise its rights under the lien.
(e) A lien imposed under this section shall have the force and
effect of, and the priority of, a judgment lien upon its recordation
in the county in which the property subject to the lien is located.
The lien shall contain a legal description of the real property that
is subject to, or affected by, the remedial action, the assessor's
parcel number, and the name of the owner of record, as shown on the
latest equalized assessment roll.
(f) All funds recovered under this section on behalf of the
board's department's waste tire
stabilization and abatement program shall be deposited in the
California Tire Recycling Management Fund established under Section
42885.
SEC. 7. Section 42851 of the Public
Resources Code is amended to read:
42851. (a) The board department may
issue a complaint serve an administrative
accusation to any a person on
whom civil liability may be imposed pursuant to this article
chapter . The complaint
accusation shall allege the acts or failures to act that
constitute a basis for liability and the amount of the proposed civil
liability. The complaint accusation
shall be served by personal service or certified mail and shall
inform the party so served that a hearing shall be conducted within
60 days after the party has been served , unless the party
waives the right to a hearing .
(b) Upon receipt by the department of a notice of defense to the
accusation, the department shall, within 15 days, schedule a hearing
before the director. The hearing shall be held as soon as possible,
unless the party waives the right to a hearing.
(b)
(c) If the party waives the right to a hearing, the
board department shall issue an order
setting liability in the amount proposed in the complaint
accusation unless the board
department and the party have entered into a settlement
agreement, in which case the board department
shall issue an order setting liability in the amount specified
in the settlement agreement. If the party has waived the right to a
hearing or if the board department and
the party have entered into a settlement agreement, the order shall
not be subject to review by any court or agency.
(d) After conducting the hearing, the director shall, within 60
days after the case is submitted, issue a decision, including an
ordering setting the amount of civil penalty to be imposed, if any.
SEC. 8. Section 42852 of the Public
Resources Code is amended to read:
42852. (a) Any
A hearing required under this section
chapter shall be conducted by an
independent hearing officer according to the procedures specified in
Sections 11507 to 11517, inclusive, of the Government Code, except as
otherwise specified in this section the director in
accordance with the informal hearing requirements specified in
Chapter 4.5 (commencing with Section 11400) of Part 1 of Division 3
of Title 2 of the Government Code and shall not be required to be
conducted in accordance with the formal hearing requirements
specified in Chapter 5 (c ommencing with Section 11500) of
Part 1 of Division 3 of Title 2 of the Government Code . In
making a determination, the hearing officer
director shall take into consideration the nature,
circumstances, extent, and gravity of the violation, the violator's
past and present efforts to prevent, abate, or clean up conditions
posing a threat to the public health or safety or the environment,
the violator's ability to pay the proposed civil penalty, and the
prophylactic effect that imposition of the proposed penalty will have
on both the violator and on the regulated community as a whole.
(b) After conducting any hearing required under this section, the
hearing officer shall, within 30 days after the case is submitted,
issue a decision, including an order setting the amount of civil
penalty to be imposed, if any.
SEC. 9. Section 42853 of the Public
Resources Code is amended to read:
42853. Orders setting civil liability issued under this section
shall become effective and final upon issuance thereof, and payment
shall be made within 30 days of issuance , unless otherwise
ordered by the director . Copies of these orders shall be
served by personal service or by certified mail upon the party served
with the complaint accusation and upon
other persons who appeared at the hearing and requested a copy.
SEC. 10. Section 42854 of the Public
Resources Code is amended to read:
42854. (a) Within 30 days after service of a copy of a decision
issued by the hearing officer, any director,
a person so served may file with the superior court a petition
for writ of mandate for review of the decision. Any person who fails
to file the petition within the 30-day period may not challenge the
reasonableness or validity of a decision or order of the
hearing officer director in any
a judicial proceedings
proceeding brought to enforce the decision or order or for
other remedies.
(b) Except as otherwise provided in this section, Section 1094.5
of the Code of Civil Procedure governs any proceedings conducted
pursuant to this subdivision. In all proceedings pursuant to this
subdivision, the court shall uphold the decision of the
hearing officer director if the decision is
based upon substantial evidence in the whole record.
(c) The filing of a petition for writ of mandate does not stay any
corrective action required pursuant to this chapter or the accrual
of any penalties assessed pursuant to this chapter.
(d) This section does not prohibit the court from granting any
appropriate relief within its jurisdiction.
SEC. 11. Section 42960 of the Public
Resources Code is amended to read:
42960. (a) The board department may
suspend, revoke, or deny a waste and used tire hauler registration
for a period of up to three years, by filing an accusation
in accordance with the procedures of Sections 11505 to 11519,
inclusive, of the Government Code serving a statement
of issue in accordance with Section 42961 , if the
applicant for, or holder of , the registration does
any of the following:
(1) Commits more than three violations of, or fails to comply with
any requirements of, this chapter or Chapter 16 (commencing with
Section 42800), or the regulations adopted pursuant to those
provisions, within a one year period.
(2) Commits, aids, or abets any violation of this chapter or
Chapter 16 (commencing with Section 42800), or the regulations
adopted pursuant to those provisions, or permits an agent to do so,
and the board department determines
that the violation poses an immediate threat of harm to public safety
or to the environment.
(3) Commits, aids, or abets a failure to comply with this chapter
or Chapter 16 (commencing with Section 42800), or the regulations
adopted pursuant to those provisions, or permits an agent to do so,
and the board department determines
that the failure to comply shows a repeating or recurring occurrence
or that the failure to comply may pose a threat to public health or
safety or the environment.
(4) Commits any misrepresentation or omission of a significant
fact or other required information in the application for a waste and
used tire hauler registration or commits any misrepresentation or
omission of fact on any manifest more than three times in one year.
(b) The board department may
suspend, revoke, or deny a waste and used tire hauler registration
for a period of three years to five years, or may suspend, revoke, or
deny a waste and used tire hauler registration permanently, in
accordance with the procedures specified in subdivision (a), under
any of the following circumstances:
(1) The hauler's registration has been previously revoked or
denied for any violation specified in subdivision (a).
(2) The hauler has been previously fined pursuant to this chapter
or Chapter 16 (commencing with Section 42800).
(3) The board department determines
that the hauler's operations pose a significant threat to public
health and safety.
SEC. 12. Section 42961 of the Public
Resources Code is repealed.
42961. If the board denies an application for registration, the
applicant may request a hearing by the board.
SEC. 13. Section 42961 is added to the
Public Resources Code , to read:
42961. (a) The department shall notify the applicant for, or
holder of, the registration of the revocation, suspension, or denial
of the permit and the effective date of the suspension and revocation
and, at the same time, shall serve the person with a statement of
issues.
(b) Upon a request for a hearing by the department from the
applicant for, or the holder of, the registration, the department
shall, within 15 days, schedule a hearing before the director. The
hearing shall be held as soon as possible.
(c) The revocation or suspension shall remain in effect until the
hearing is completed and the department's director has issued a
decision.
(d) After conducting the hearing, the director shall, within 60
days after the case is submitted, issue a decision, including an
order setting for the issuance, suspension, revocation, or denial of
the permit. If the decision is not transmitted within this period,
the revocation or suspension shall be of no further effect.
SEC. 14. Section 42961.1 is added to the
Public Resources Code , to read:
42961.1. A hearing required under this chapter shall be conducted
by the director in accordance with the informal hearing requirements
specified in Chapter 4.5 (commencing with Section 11400) of Part 1
of Division 3 of Title 2 of the Government Code, and shall not be
required to be conducted in accordance with the formal hearing
required specified in Chapter 5 (commencing with Section 11500) of
Part 1 of Division 3 of Title 2 of the Government Code.