Senate Bill No. 1458

Introduced by Committee on Environmental Quality (Senators Hill (Chair), Corbett, Fuller, Gaines, Hancock, Jackson, Leno, and Pavley)

February 24, 2014

An act to amend Sections 25123.3 and 25196 of, to add Sections 25150.65 and 25227 to, and to repeal Section 25150.6 of, the Health and Safety Code, relating to hazardous wastes and substances.

LEGISLATIVE COUNSEL’S DIGEST

SB 1458, as introduced, Committee on Environmental Quality. Hazardous waste: substances: land use: response actions.

(1) Existing law establishes various standards for management and control of hazardous waste, and authorizes the Department of Toxic Substances Control to exempt, by regulations adopted until January 1, 2008, a hazardous waste management activity from certain statutory requirements related to hazardous waste management if specified conditions for exemption are met. A violation of the hazardous waste control laws is a crime.

This bill would repeal the provisions that authorized, until January 1, 2008, the department to exempt hazardous waste management activities from those standards but would provide that those exceptions adopted prior to that date shall remain valid, unless repealed.

(2) Chapter 39 of the Statutes of 2012, effective June 27, 2012, authorizes a person to apply to the department for a written variance from a land use restriction imposed by the department on a hazardous waste property if certain requirements are met, including providing a statement containing specified information supporting the grant of a variance, and repealed a provision that prohibited certain uses of land that is hazardous waste property without a specific variance approved in writing by the department for the land use and land in question.

This bill would enact a prohibition similar to the one repealed against taking certain specified actions on land that is subject to a recorded land use restriction, unless a person obtains a specific approval in writing from the department for the land use on the land in question. The bill would make conforming changes with regard to this requirement. Since a violation of the bill’s prohibition would be crime, the bill would impose a state-mandated local program by creating a new crime.

(3) 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: 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 begin delete which end delete begin insert that end insert is not a transfer facility.

(3) (A) Except as provided in subparagraph (B), the waste is
held at a transfer facility and any one of the following apply:

(i) The transfer facility is located in an area zoned residential
by the local planning authority.

(ii) The transfer facility commences initial operations on or after
January 1, 2005, at a site located within 500 feet of a structure
identified in begin delete subparagraphs (A) to (E), inclusive, of paragraph (1) end delete
begin insert paragraphs (1) to (5), inclusive, end insert of subdivision begin delete (b) end delete begin insert (c) end insert of Section
begin delete 25232 end delete begin insert 25227 end insert .

(iii) The hazardous waste is held for a period greater than six
days at a transfer facility located in an area that is not zoned
industrial or agricultural by the local planning authority.

(iv) The hazardous waste is held for a period greater than 10
days at a transfer facility located in an area zoned industrial or
agricultural by the local planning authority.

(v) The hazardous waste is held for a period greater than six
days at a transfer facility that commenced initial operations before
January 1, 2005, is located in an area zoned agricultural by the
local planning authority, and is located within 500 feet of a
structure identified in begin delete subparagraphs (A) to (E), inclusive, of
paragraph (1) end delete begin insert paragraphs (1) to (5), inclusive, end insert of subdivision begin delete (b) end delete
begin insert (c) end insert of Section begin delete 25232 end delete begin insert 25227 end insert .

(B) (i) Notwithstanding subparagraph (A), a transfer facility
located in an area that is not zoned residential by the local planning
authority is not a storage facility, if the only hazardous waste held
at the transfer facility is hazardous waste that is generated as a
result of an emergency release and that hazardous waste 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, and the holding of that hazardous waste is approved
by the department.

(ii) 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 at any
location for any period of time in a manner other than in a
container.

(6) The hazardous waste is held at a transfer facility at any
location for any period of time and handling occurs. For purposes
of this paragraph, “handling” does not include the transfer of
packaged 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 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 begin delete any end delete begin insert a end insert 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.

(i) The department may adopt regulations that set forth
additional restrictions and enforceable management standards that
protect human health and the environment and that apply to persons
holding hazardous waste at a transfer facility. A regulation adopted
pursuant to this subdivision 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 an emergency regulation in accordance with
Chapter 3.5 (commencing with Section 11340) of Part 1 of Division
3 of Title 2 of the Government Code.

SEC. 2.  

Section 25150.6 of the Health and Safety Code is
repealed.

begin delete

25150.6.  

(a) Except as provided in subdivisions (e) and (f),
the department, by regulation, may exempt a hazardous waste
management activity from one or more of the requirements of this
chapter, if the department does all of the following:

(1) Prepares an analysis of the hazardous waste management
activity to which the exemption will apply pursuant to subdivision
(b). The department shall first prepare the analysis as a preliminary
analysis and make it available to the public at the same time that
the department gives notice, pursuant to Section 11346.4 of the
Government Code, that it proposes to adopt a regulation exempting
the hazardous waste management activity from one or more of the
requirements of this chapter. The department shall include, in the
notice, a reference that the department has prepared a preliminary
analysis and a statement concerning where a copy of the
preliminary analysis can be obtained. The information in the
preliminary analysis shall be updated and the department shall
make the analysis available to the public as a final analysis not
less than 10 working days prior to the date that the regulation is
adopted.

(2) Demonstrates that one of the conclusions required by
subdivision (c) is valid.

(3) Imposes, as may be necessary, conditions and limitations
on the exemption that ensure that the exempted activity will not
pose a significant potential hazard to human health or safety or to
the environment.

(b) Before the department gives notice of a proposal to adopt a
regulation exempting a hazardous waste management activity from
one or more of the requirements of this chapter pursuant to
subdivision (a), and before the department adopts the regulation,
the department shall evaluate the hazardous waste management
activity and prepare, as required by paragraph (1) of subdivision
(a), an analysis that addresses all of the following aspects of the
activity, to the extent that the requirement or requirements from
which the activity will be exempted can affect these aspects of the
activity:

(1) The types of hazardous waste streams and the estimated
amounts of hazardous waste that are managed as part of the activity
and the hazards to human health or safety or to the environment
posed by reasonably foreseeable mismanagement of those
hazardous wastes and their hazardous constituents. The estimate
of the amounts of hazardous waste that are managed as part of the
activity shall be based upon information reasonably available to
the department.

(2) The complexity of the activity, and the amount and
complexity of operator training, equipment installation and
maintenance, and monitoring that are required to ensure that the
activity is conducted in a manner that safely and effectively
manages the particular hazardous waste stream.

(3) The chemical or physical hazards that are associated with
the activity and the degree to which those hazards are similar to,
or differ from, the chemical or physical hazards that are associated
with the production processes that are carried out in the facilities
that produce the hazardous waste that is managed as part of the
activity.

(4) The types of accidents that might reasonably be foreseen to
occur during the management of particular types of hazardous
waste streams as part of the activity, the likely consequences of
those accidents, and the actual reasonably available accident history
associated with the activity.

(5) The types of locations at which the activity may be carried
out, an estimate of the number of these locations, and the types of
hazards that may be posed by proximity to the land uses described
in subdivision (b) of Section 25232. The estimate of the number
of locations at which the activity may be carried out shall be based
upon information reasonably available to the department.

(c) The department shall not give notice proposing the adoption
of, and the department may not adopt, a regulation pursuant to
subdivision (a) unless it first demonstrates, using the information
developed in the analysis prepared pursuant to subdivision (b),
that one of the following is valid:

(1) The requirement from which the activity is exempted is not
significant or important in either of the following:

(A) Preventing or mitigating potential hazards to human health
or safety or to the environment posed by the activity.

(B) Ensuring that the activity is conducted in compliance with
other applicable requirements of this chapter and the regulations
adopted pursuant to this chapter.

(2) A requirement is imposed and enforced by another public
agency that provides protection of human health and safety and
the environment that is as effective as, and equivalent to, the
protection provided by the requirement, or requirements, from
which the activity is being exempted.

(3) Conditions or limitations imposed on the exemption will
provide protection of human health and safety and the environment
equivalent to the requirement, or requirements, from which the
activity is exempted.

(4) Conditions or limitations imposed on the exemption
accomplish the same regulatory purpose as the requirement, or
requirements, from which the activity is being exempted but at
less cost or greater administrative convenience and without
increasing potential risks to human health or safety or to the
environment.

(d) A regulation adopted pursuant to this section shall not be
deemed to meet the standard of necessity, pursuant to Section
11349.1 of the Government Code, unless the department has
complied with subdivisions (b) and (c).

(e) The department shall not exempt a hazardous waste
management activity from a requirement of this chapter or the
regulations adopted by the department if the requirement is also a
requirement for that activity under the federal act.

(f) (1) On and after January 1, 2002, the department may, by
regulation, exempt a hazardous waste management activity from
one or more of the requirements of this chapter pursuant to this
section only if the regulations govern the management of one of
the hazardous wastes listed in subparagraphs (A) to (E), inclusive,
of paragraph (2), the regulations identify the hazardous waste as
a universal waste, and the regulations amend the standards for
universal waste management set forth in Chapter 23 (commencing
with Section 66273.1) of Division 4.5 of Title 22 of the California
Code of Regulations.

(2) The regulations that the department may adopt pursuant to
paragraph (1) shall govern only the following types of hazardous
waste:

(A) Electronic hazardous wastes, as the department may describe
in the regulations adopted pursuant to this subdivision.

(B) Hazardous waste batteries.

(C) Hazardous wastes containing mercury.

(D) Hazardous waste lamps.

(E) Lead-based painted debris that is a hazardous waste.

(g) The authority of the department to adopt regulations pursuant
to this section shall remain in effect only until January 1, 2008,
unless a later enacted statute, which is enacted before January 1,
2008, deletes or extends that date. This subdivision does not
invalidate any regulation adopted pursuant to this section prior to
the expiration of the department’s authority.

end delete

SEC. 3.  

Section 25150.65 is added to the Health and Safety
Code, to read:

25150.65.  

Any regulation that was adopted prior to January 1,
2008, pursuant to former Section 25150.6, exempting a hazardous
waste management activity from one or more of the requirements
of this chapter, shall remain valid unless repealed.

SEC. 4.  

Section 25196 of the Health and Safety Code is
amended to read:

25196.  

begin delete Any end delete begin insert A end insert person who knowingly violates a provision of
subdivision (a) of begin insert former end insert Section 25221 begin delete or subdivision (a) or (b)
of end delete begin insert as that section read on January 1, 2012, and who violated that
provision prior to the effective date of Chapter 39 of the Statutes
of 2012, or who knowingly violates end insert Section begin delete 25232 end delete begin insert 25227, end insert shall be
subject to a civil penalty not to exceed 25 percent of the fair market
value of the land and improvements, 25 percent of the sale price
of the land and improvements, or fifty thousand dollars ($50,000),
whichever has been established and is greatest.

SEC. 5.  

Section 25227 is added to the Health and Safety Code,
to read:

25227.  

A person shall not engage in any of the following on
land that is subject to a recorded land use restriction pursuant to
former Section 25229, 25230, or 25398.7, as those sections read
on January 1, 2012, or pursuant to Section 25202.5, 25221, or
25355.5, unless the person obtains a specific approval in writing
from the department for the land use on the land in question:

(a) A new use of the land, other than the use, modification, or
expansion of an existing industrial or manufacturing facility or
complex on land that is owned by, or held for the beneficial use
of, the facility or complex on or before January 1, 1981.

(b) Subdivision of the land, as that term is used in Division 2
(commencing with Section 66410) of Title 7 of the Government
Code, except that this subdivision does not prevent the division of
a parcel of land so as to divide that portion of the parcel that
contains hazardous materials, as defined in subdivision (d) of
Section 25260, from other portions of that parcel.

(c) Construction or placement of a building or structure on the
land that is intended for use as any of the following, or the new
use of an existing structure for the purpose of serving as any of
the following:

(1) (A) Except as provided in paragraph (B), a residence,
including a mobilehome or factory built housing constructed or
installed for use as permanently occupied human habitation.

(B) The addition of rooms or living space to an existing
single-family dwelling or other minor repairs or improvements to
residential property that do not change the use of the property,
increase the population density, or impair the effectiveness of a
response action, shall not constitute construction or placement of
a building or structure for the purposes of subparagraph (A).

(2) A hospital for humans.

(3) A school for persons under 21 years of age.

(4) A day care center for children.

(5) A permanently occupied human habitation, other than those
used for industrial purposes.

SEC. 6.  

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.