2007 California Health and Safety Code Article 4.5. State Regulation Of Existing Hazardous Waste Facilities

CA Codes (hsc:25146-25149.7)

25146.  The Legislature finds and declares that the number of
hazardous waste disposal facilities is decreasing in the face of
increasing demand, and that under present circumstances and law,
imbalance between supply and demand is likely to further increase in
the foreseeable future.  This problem is general in nature, and does
and will continue to exist in urban, suburban, and rural areas.



25146.5.  The Legislature further finds and declares that:
   (a) It is a matter of urgent public necessity and statewide
concern that the number of existing hazardous waste facilities be
retained to the extent feasible.
   (b) The availability of land suitable and capable of being
developed as hazardous waste disposal sites is decreasing.
   (c) Any decrease in the number of existing hazardous waste
facilities increases the distance that it is necessary to transport
hazardous waste in order to properly dispose of it.
   (d) An increase in the distance which it is necessary to travel in
order to properly dispose of hazardous waste encourages illegal
disposal.



25147.  Except as expressly provided in Section 25149, it is not the
intent of this article to preempt local land use regulation of
existing hazardous waste facilities.



25147.5.  The definitions contained in this article shall govern the
construction of only this article.



25148.  (a) Except as otherwise provided in subdivision (b),
"existing hazardous waste facility"  means a Class I disposal site,
as defined in Section 2510 of Title 23 of the California
Administrative Code on the effective date of this article, and which,
in addition, is either:
   (1) A facility operating as of May 1, 1981, pursuant to a valid
hazardous waste facility permit issued by the department pursuant to
Section 25200.
   (2) A facility operating as of May 1, 1981, pursuant to a grant of
interim status by the department pursuant to Section 25200.5.
   (b) An "existing hazardous waste facility" does not include a
facility which treats, disposes, stores, or recycles on the
production site only hazardous wastes produced by the owner or lessee
of such a facility.


25148.5.  "Solid waste" means all putrescible and nonputrescible
solid, semisolid, and liquid wastes, including garbage, trash,
refuse, paper, rubbish, ashes, industrial wastes, demolition and
construction wastes, abandoned vehicles and parts thereof, discarded
home and industrial appliances, manure, vegetable or animal solid and
semisolid wastes, and other discarded solid and semisolid wastes,
but shall not include hazardous waste as defined in Section 25117.



25149.  (a) Notwithstanding any other provision of law, except as
provided in Section 25149.5 or 25181 of this code or Section 731 of
the Code of Civil Procedure, no city or county, whether chartered or
general law, or district may enact, issue, enforce, suspend, revoke,
or modify any ordinance, regulation, law, license, or permit relating
to an existing hazardous waste facility so as to prohibit or
unreasonably regulate the disposal, treatment, or recovery of
resources from hazardous waste or a mix of hazardous and solid wastes
at that facility, unless, after public notice and hearing, the
director determines that the operation of the facility may present an
imminent and substantial endangerment to health and the environment.
  However, nothing in this section authorizes an operator of that
facility to violate any term or condition of a local land use permit
or any other provision of law not in conflict with this section.
   (b) The director shall, pursuant to subdivision (c), conduct the
hearing specified in subdivision (a) to determine whether the
operation of an existing hazardous waste facility may present an
imminent and substantial endangerment to health and the environment
whenever any of the following occurs:
   (1) A state or federal public agency requires any person to
evacuate a residence or requires the evacuation of a school, place of
employment, commercial establishment, or other facility to which the
public has access, because of the release of a hazardous substance
from the facility.
   (2) For more than five days in any month, the air emissions from
the facility result in the violation of an emission standard for a
hazardous air pollutant established pursuant to Section 7412 of Title
42 of the United States Code or the threshold exposure level for a
toxic air contaminant, as defined in Section 39655.
   (3) A state or federal public agency requires that the use of a
source of drinking water be discontinued because of the contamination
of the source by a release of hazardous waste, hazardous substances,
or leachate from the facility.
   (4) A state agency, or the board of supervisors of the county in
which the facility is located, upon recommendation of its local
health officer, makes a finding that the public health has been
affected by a release of hazardous wastes from the facility.  The
finding shall be based on statistically significant data developed in
a health effects study conducted according to a study design, and
using a methodology, that are developed after considering the
suggestions on study design and methodology made by interested
parties and that are approved by the Epidemiological Studies Section
in the Epidemiology and Toxicology Branch of the State Department of
Health Services before beginning the study.
   (5) The owner or operator of the facility is in violation of an
order issued pursuant to Section 25187 that requires one or both of
the following:
   (A) The correction of a violation or condition that has resulted,
or threatens to result, in an unauthorized release of hazardous waste
or a constituent of hazardous waste from the facility into either
the onsite or offsite environment.
   (B) The cleanup of a release of hazardous waste or a constituent
of hazardous waste, the abatement of the effects of the release, and
any other necessary remedial action.
   (6) The facility is in violation of an order issued pursuant to
Article 1 (commencing with Section 13300) of, or Article 2
(commencing with Section 13320) of, Chapter 5 of Division 7 of the
Water Code or in violation of a temporary restraining order,
preliminary injunction, or permanent injunction issued pursuant to
Article 4 (commencing with Section 13340) of Chapter 5 of Division 7
of the Water Code.
   (c) Whenever the director determines that a hearing is required,
as specified in subdivision (b), the director shall immediately
request the Office of Administrative Hearings to assign an
administrative law judge to conduct the hearing, pursuant to this
subdivision.
   (1) After an administrative law judge is assigned by the Office of
Administrative Hearings, the director shall transmit to the
administrative law judge and to the operator of the existing
hazardous waste facility, all relevant documents, information, and
data that were the basis for the director's determination.  The
director shall also prepare a notice specifying the time and place of
the hearing.  The notice shall also include a clear statement of the
reasons for conducting the hearing, a description of the facts,
data, circumstances, or occurrences that are the cause for conducting
the hearing, and the issues to be addressed at the hearing.  The
hearing shall be held as close to the location of the existing
hazardous waste facility as is practicable and shall commence no
later than 30 days following the director's request to the Office of
Administrative Hearings to assign an administrative law judge to the
case.
   (2) The hearing specified in paragraph (1) shall be conducted in
accordance with Article 8 (commencing with Section 11435.05) of
Chapter 4.5 of Part 1 of Division 3 of Title 2 of, and Sections 11511
to 11515, inclusive, of, the Government Code.  The administrative
law judge's proposed decision shall be transmitted to the director
within 30 days after the case is submitted.
   (3) The director may adopt the proposed decision of the
administrative law judge in its entirety or may decide the case upon
the record, as provided in Section 11517 of the Government Code.  The
director's decision shall be in writing and shall contain findings
of fact and a determination of the issues presented.  The decision is
subject to judicial review in accordance with Section 11523 of the
Government Code.



25149.1.  (a) No city, county, or city and county, whether general
law or chartered, which has issued a conditional use permit for a
hazardous waste facility shall thereafter adopt an ordinance, rule,
or regulation, or issue or amend any permit, which adoption,
issuance, or amendment imposes additional restrictions on the types
of hazardous waste which previously have been authorized to be
accepted for disposal, treatment, or storage under the terms and
conditions of any previously issued conditional use permit for that
facility.
   (b) This section does not apply to a modification or revocation of
a use permit which is necessary to enforce the terms and conditions
of the use permit, or to abate a nuisance, or to prevent an immediate
threat to the public health or safety.  Modification or revocation
of an existing use permit may only occur after the city, county, or
city and county orders the facility operator to abate the nuisance or
correct the threat to the public health or safety, the facility
operator has been afforded adequate opportunity to abate the nuisance
or correct the threat to the public health or safety, and the
facility operator has failed to comply with the enforcement or
abatement order.
   (c) This section does not apply to an existing hazardous waste
facility, as defined in Section 25148.



25149.3.  (a) Upon the request of any interested person, the
department shall examine and determine whether or not the use of any
property for any one of the purposes set forth in paragraph (1) of
subdivision (b) of Section 25232 constitutes a significant existing
or potential hazard to present or future health or safety because of
the proximity of the property to an existing hazardous waste facility
as defined in this article.  If the department determines that a
significant existing or potential hazard to present or future public
health or safety exists on the property, it shall give notice and
hold a public hearing.  If a significant disposal of hazardous waste
has occurred on that property or if the property is within 2,000 feet
of a significant disposal of hazardous waste, the department shall
hold this public hearing pursuant to Article 11 (commencing with
Section 25220) and the director may make a designation of that
property pursuant to that article.  If the department determines that
there is no significant existing or potential hazard to present or
future public health or safety on the property, it shall so notify
the person who requested the determination and the local
jurisdiction.
   (b) All costs incurred by the department pursuant to this section,
including the costs of any hearing, shall be borne by the person
making the request.  The authority conferred on the department,
pursuant to this section, shall be in addition to its authority with
respect to the regulation of hazardous waste property and border zone
property.  A special account administered by the department shall be
established for each request made to the department for the
examination and determination specified in subdivision (a).  The
department shall provide the requesting person an estimate of the
amount of money which would be necessary to accomplish the
examination, determination, and any subsequent hearing by the
department pursuant to that request.  The estimated amount, which
shall be paid to the department before the department undertakes any
activity pursuant to subdivision  (a), shall be deposited in the
special account.  Expenditures from this special account shall not be
made in excess of the total amount of money in that special account
at any time.  Expenditures in excess of the initial deposit may be
made only when additional money is received from the requesting
person and deposited into the account.
   Notwithstanding any other provision of law, the department may
enter into contracts for any action taken, or to be taken, pursuant
to subdivision (a).  These contracts do not require approval by the
Department of General Services pursuant to Article 1 (commencing with
Section 14780) of Chapter 6 of Part 5.5 of Division 3 of Title 2 of
the Government Code.
   (c) A local jurisdiction shall not take any action with respect to
the uses of land for any of those purposes, including, but not
limited to, a general plan amendment, zoning change, or the
imposition of conditions on the use of property, which land is
subject to an existing zoning classification which permits the uses
set forth in paragraph (1) of subdivision (b) of Section 25232 for
which an examination and determination has been requested pursuant to
subdivision (a), solely on the basis of a health hazard due to the
property's proximity to an existing hazardous waste facility, unless
the department has made a determination, pursuant to subdivision (a),
that those uses of the property constitute a significant existing or
potential hazard to present or future public health or safety.
   (d) No application for a building permit or for the use of
property which is the subject of a request pursuant to subdivision
(a) shall be acted upon pending a determination by the department,
unless the permit or use is not for a purpose set forth in paragraph
(1) of subdivision (b) of Section 25232.
   The department shall act upon the request within 90 days.
   (e) This section does not apply to any land or property which is
more than one mile from a significant disposal of hazardous waste
within an existing hazardous waste facility, as defined in this
article.



25149.5.  (a) A general law city or county may impose and enforce,
for revenue purposes, a license tax on the operation of an existing
hazardous waste facility; provided that, the license tax imposed
shall not exceed 10 percent of the annual gross receipts of the
existing hazardous waste disposal facility.
   (b) A state agency shall not include the expenditure of revenues
received by a city or county pursuant to this section in calculating
the level of financial support that a city or county is required to
maintain under any other provision of law, including, but not limited
to, Section 77204 of the Government Code and Section 16990 of the
Welfare and Institutions Code.  However, this subdivision does not
apply to subdivision (c) of Section 2105 of the Streets and Highways
Code.


25149.6.  A city, county, or city and county in which an existing
hazardous waste facility is located may at any time recommend to the
director any new or additional permit or interim status conditions as
the local agency deems necessary to protect against hazards within
its boundaries to the public health, domestic livestock, wildlife, or
the environment.



25149.7.  No provision of this article, or any ruling by the
department or director, shall be construed as a limitation on the
right of any person to maintain a civil action to enjoin or abate a
nuisance pursuant to Section 731 of the Code of Civil Procedure.