California Assembly Bill AB1647 Amended / Bill

 BILL NUMBER: AB 1647AMENDED 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.