BILL NUMBER: AB 1647 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 2, 2012
AMENDED IN ASSEMBLY APRIL 16, 2012
INTRODUCED BY Assembly Member Gordon
FEBRUARY 13, 2012
An act to amend 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, and 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:
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 , after holding
a hearing pursuant to specified informal hearing procedures,
the department makes specified findings. The bill would require the
department to , pursuant to these procedures, 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 a violation,
serve a statement of issue issues
on the applicant for, or the holder of, the permit . The
bill would require the department to conduct an informal
and, upon receipt of a notice of defense, schedule a
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: 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) 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 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
department shall 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 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 department
disclosing the violation and is in compliance with any order
regarding the waste tires issued by the department.
SEC. 2. Section 42835 of the Public Resources Code is amended to
read:
42835. (a) 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 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
department shall 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 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 department
disclosing the violation and is in compliance with any order
regarding the waste tires issued by the department.
SEC. 3. Section 42843 of the Public Resources Code is amended to
read:
42843. (a) The department , after holding a hearing in
accordance with the procedures set forth in this chapter, may
revoke, suspend, or deny a waste tire facility permit for a period of
up to three years, if the 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 department
relating to the safe storage or processing of waste tires.
(b) If the 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 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 department determines that a violation specified in
paragraph (2) of subdivision (a) has resulted in significant harm to
human health or the environment, the 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 longer .
(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 a violation as described in paragraph (1) or
(2) of subdivision (a) 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 within 60 days of the scheduling date .
(f) The revocation or suspension shall remain in effect until the
hearing is completed and the director has issued a decision.
(g)
( f) 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.
SEC. 5. SEC. 4. 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. SEC. 5. Section 42847.5 of
the Public Resources Code is amended to read:
42847.5. (a) Any costs or damages incurred by the 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 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 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
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 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 department should not place a lien as proposed. The neutral
official shall 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
department's intention to file a lien, and the basis for the
decision.
(c) The 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 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
department's waste tire stabilization and abatement program shall be
deposited in the California Tire Recycling Management Fund
established under Section 42885.
SEC. 7. SEC. 6. Section 42851 of the
Public Resources Code is amended to read:
42851. (a) The department may serve an administrative accusation
to a person on whom civil liability may be imposed pursuant to this
chapter. The accusation shall allege the acts or failures to act that
constitute a basis for liability and the amount of the proposed
civil liability. The 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.
(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 within 60 days of the scheduling date ,
unless the party waives the right to a hearing.
(c) If the party waives the right to a hearing, the department
shall issue an order setting liability in the amount proposed in the
accusation unless the department and the party have entered into a
settlement agreement, in which case the 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
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 order setting the amount of
civil penalty to be imposed, if any.
SEC. 8. SEC. 7. Section 42852 of the
Public Resources Code is amended to read:
42852. 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
requirements specified in Chapter 5 (commencing with Section 11500)
of Part 1 of Division 3 of Title 2 of the Government Code. In making
a determination, the 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.
SEC. 9. SEC. 8. 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
accusation and upon other persons who appeared at the hearing and
requested a copy.
SEC. 10. SEC. 9. 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 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 director in a judicial 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 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. SEC. 10. Section 42960 of
the Public Resources Code is amended to read:
42960. (a) The department may suspend, revoke, or deny a waste
and used tire hauler registration for a period of up to three years,
by 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 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 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 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 department determines that the hauler's operations pose a
significant threat to public health and safety.
SEC. 12. SEC. 11. Section 42961 of
the Public Resources Code is repealed.
SEC. 13. SEC. 12. 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 registrations 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
within 60 days after that scheduling date .
(c) The A revocation or suspension
issued pursuant to Section 42960 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. SEC. 13. 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 requirement specified in
Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of
Title 2 of the Government Code.