California Assembly Bill AB408 Amended / Bill

 BILL NUMBER: AB 408AMENDED BILL TEXT AMENDED IN ASSEMBLY APRIL 12, 2011 INTRODUCED BY Assembly  Member   Wieckowski   Members   Wieckowski,   Logue,   and Miller  FEBRUARY 14, 2011 An act to amend  Section 25160.2 of the Health and Safety Code   Sections 13009.6, 25160.2, and 25503.5 of the Health and Safety Code, and to amend Section 13385 of the Water Code  , relating to  hazardous waste   the environment  , and declaring the urgency thereof, to take effect immediately. LEGISLATIVE COUNSEL'S DIGEST AB 408, as amended, Wieckowski. Hazardous  substances and materials: hazardous  waste transportation:  consolidated manifest.   water discharges.   (1) Existing law provides that the expense of a public agency's emergency response to the release, escape, or burning of hazardous substances is a charge against the person whose negligence caused the incident, if the incident necessitated an evacuation beyond the property of origin or results in the spread of hazardous substances or fire beyond the property of origin. Existing law defines "hazardous substance" for purposes of these provisions.   This bill would instead provide that these expenses are a charge against the person whose negligence caused the incident if the incident necessitated an evacuation from the building, structure, property, or public right-of-way where the incident originates, or the incident results in the spread of hazardous substances or fire beyond the building, structure, property, or public right-of-way where the incident originates. The bill would also revise the definition of "hazardous substance" for purposes of these provisions.   (1)   (   2)  Existing law requires any person generating hazardous waste that is transported, or submitted for transportation, for offsite handling, treatment, storage, disposal, or any combination thereof, to complete a manifest and establishes a procedure for a consolidated manifest, to be used by generators and transporters for certain types of hazardous waste. A generator using the consolidated manifesting procedure is required to meet specified requirements, including having an identification number. A violation of the hazardous waste control laws is a crime. This bill would allow the consolidating manifesting procedure to be used for the receipt, by a transporter, of one shipment of used oil from a generator whose identification number has been suspended, if certain requirements are met. The bill would provide that this exemption would become inoperative on and after January 1, 2014.  Since a violation of these requirements would be a crime, the bill would impose a state-mandated local program.   Since a violation of the bill's requirements would be a crime, the bill would impose a state-mandated local program.   (3) Existing law requires a business that handles a hazardous material to adopt a business plan for response to the release of hazardous materials, and to annually submit an inventory to the local administering agency if the business handles a specified amount of hazardous materials at any one time during the reporting year.   This bill would additionally require a business to adopt the plan or inventory for specified lesser or greater amounts of various classes of hazardous materials if the hazardous materials meet certain requirements. The administering agency would be required to make findings regarding the regulation of certain of these hazardous materials in consultation with the local fire chief. The bill would impose a state-mandated local program by imposing new duties upon administering agencies with regard to business plans.   (4) Under existing law, the State Water Resources Control Board and the California regional water quality control boards prescribe waste discharge requirements in accordance with the federal Clean Water Act and the Porter-Cologne Water Quality Control Act (state act). The state act, with certain exceptions, imposes a mandatory minimum penalty of $3,000 for each serious waste discharge violation, as defined, and for certain other described violations if those violations occur 4 or more times in any period of 6 consecutive months.   The state act authorizes the state board or a regional board, in lieu of assessing all or a portion of the mandatory minimum penalties against a publicly owned treatment works (POTW) that serves a small community, to elect to require that POTW spend an equivalent amount toward the completion of a compliance project. The state act defines a POTW that serves a small community to mean, in pertinent part, a POTW serving a community of 10,000 persons or fewer.   This bill would expand that definition to include a POTW serving a community of 20,000 persons or fewer.   (2)   (5)  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 specified  reason   reasons  .  (3)   (   6)  The bill would declare that it is to take effect immediately as an urgency statute. Vote: 2/3. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:  SECTION 1.   Section 13009.6 of the   Health and Safety Code   is amended to read:  13009.6. (a) (1) Those expenses of an emergency response necessary to protect the public from a real and imminent threat to health and safety by a public agency to confine, prevent, or mitigate the release, escape, or burning of hazardous substances described in subdivision (c) are a charge against any person whose negligence causes the incident, if either of the following occurs: (A) Evacuation  beyond   from  the  building, structure,  property  , or public right-of-way  where the incident originates is necessary to prevent loss of life or injury. (B) The incident results in the spread of hazardous substances or fire posing a real and imminent threat to public health and safety beyond the  building, structure,  property  of origin   , or public right-of-way where the incident originates  . (2) Expenses reimbursable to a public agency under this section are a debt of the person liable therefor, and shall be collectible in the same manner as in the case of an obligation under contract, express or implied. (3) The charge created against the person by this subdivision is also a charge against the person's employer if the negligence causing the incident occurs in the course of the person's employment. (4) The public agencies participating in an emergency response meeting the requirements of paragraph (1) of this subdivision may designate one or more of the participating agencies to bring an action to recover the expenses incurred by all of the designating agencies which are reimbursable under this section. (5) An action to recover expenses under this section may be joined with any civil action for penalties, fines, injunctive, or other relief brought against the responsible person or employer, or both, arising out of the same incident. (b) There shall be deducted from any amount otherwise recoverable under this section, the amount of any reimbursement for eligible costs received by a public agency pursuant to Chapter 6.8 (commencing with Section 25300) of Division 20. The amount so reimbursed may be recovered as provided in Section 25360. (c) As used in this section, "hazardous substance" means any hazardous substance listed in Section 25316  or subdivision (q) of Section 25501  of this code  ,  or in Section 6382 of the Labor Code. (d) As used in this section, "mitigate" includes actions by a public agency to monitor or model ambient levels of airborne hazardous substances for the purpose of determining or assisting in the determination of whether or not to evacuate areas around the property where the incident originates, or to determine or assist in the determination of which areas around the property where the incident originates should be evacuated.  SECTION 1.   SEC. 2.  Section 25160.2 of the Health and Safety Code is amended to read: 25160.2. (a) In lieu of the procedures prescribed by Sections 25160 and 25161, transporters and generators of hazardous waste meeting the conditions in this section may use the consolidated manifesting procedure set forth in subdivision (b) to consolidate shipments of waste streams identified in subdivision (c) collected from multiple generators onto a single consolidated manifest. (b) The following consolidated manifesting procedure may be used only for non-RCRA hazardous waste or for RCRA hazardous waste that is not required to be manifested pursuant to the federal act or the federal regulations adopted pursuant to the federal act and transported by a registered hazardous waste transporter, and used only with the consent of the generator: (1) A separate manifest shall be completed by each vehicle driver, with respect to each transport vehicle operated by that driver for each date. (2) The transporter shall complete both the generator's and the transporter's section of the manifest using the transporter's name, identification number, terminal address, and telephone number. The generator's and transporter's sections shall be completed prior to commencing each day's collections. The driver shall sign and date the generator's and transporter's sections of the manifest. (3) The transporter shall attach to the front of the manifest legible receipts for each quantity of hazardous waste that is received from a generator. The receipts shall be used to determine the total volume of hazardous waste in the vehicle. After the hazardous waste is delivered, the receipts shall be affixed to the transporter's copy of the manifest. The transporter shall leave a copy of the receipt with the generator of the hazardous waste. The generator shall retain each receipt for at least three years. This period of retention is extended automatically during the course of any unresolved enforcement action regarding the regulated activity or as requested by the department or a certified unified program agency. (4) All copies of each receipt shall contain all of the following information: (A) The name, address, identification number, contact person, and telephone number of the generator, and the signature of the generator or the generator's representative. (B) The date of the shipment. (C) The manifest number. (D) The volume or quantity of each waste stream received, its California and RCRA waste codes, the waste stream type listed in subdivision (c), and its proper shipping description, including the hazardous class and United Nations/North America (UN/NA) identification number, if applicable. (E) The name, address, and identification number of the authorized facility to which the hazardous waste will be transported. (F) The transporter's name, address, and identification number. (G) The driver's signature. (H) A statement, signed by the generator, certifying that the generator has established a program to reduce the volume or quantity and toxicity of the hazardous waste to the degree, as determined by the generator, to be economically practicable. (5) The transporter shall enter the total volume or quantity of each waste stream transported on the manifest at the change of each date, change of driver, or change of transport vehicle. The total volume or quantity shall be the cumulative amount of each waste stream collected from the generators listed on the individual receipts. In lieu of submitting a copy of each manifest used, a facility operator may submit an electronic report to the department meeting the requirements of Section 25160.3. (6) The transporter shall submit the generator copy of the manifest to the department within 30 days of each shipment. (7) The transporter shall retain a copy of the manifest and all receipts for each manifest at a location within the state for three years. This period of retention is extended automatically during the course of any unresolved enforcement action regarding the regulated activity or as requested by the department or a certified unified program agency. (8) The transporter shall submit all copies of the manifest to the designated facility. A representative of the designated facility that receives the hazardous waste shall sign and date the manifest, return two copies to the transporter, retain one copy, and send the original to the department within 30 days. (9) All other manifesting requirements of Sections 25160 and 25161 shall be complied with unless specifically exempted under this section. If an out-of-state receiving facility is not required to submit the signed manifest copy to the department, the consolidated transporter, acting as generator, shall submit a copy of the manifest signed by the receiving facility to the department pursuant to paragraph (3) of subdivision (b) of Section 25160. (10) Except as provided by subdivision (e), each generator using the consolidated manifesting procedure shall have an identification number, unless exempted from manifesting requirements by action of Section 25143.13 for generators of photographic waste less than 100 kilograms per calendar month. (c) The consolidated manifesting procedure set forth in subdivision (b) may be used only for the following waste streams and in accordance with the conditions specified below for each waste stream: (1) Used oil and the contents of an oil/water separator, if the separator is a catch basin, clarifier, or similar collection device that is used to collect water containing residual amounts of one or more of the following: used oil, antifreeze, or other substances and contaminants associated with activities that generate used oil and antifreeze. (2) The wastes listed in subparagraph (A) may be manifested under the procedures specified in this section only if all of the requirements specified in subparagraphs (B) and (C) are satisfied. (A) Wastes eligible for consolidated manifesting: (i) Solids contaminated with used oil. (ii) Brake fluid. (iii) Antifreeze. (iv) Antifreeze sludge. (v) Parts cleaning solvents, including aqueous cleaning solvents. (vi) Hydroxide sludge contaminated solely with metals from a wastewater treatment process. (vii) "Paint-related" wastes, including paints, thinners, filters, and sludges. (viii) Spent photographic solutions. (ix) Dry cleaning solvents (including percholoroethylene, naphtha, and silicone based solvents). (x) Filters, lint, and sludges contaminated with dry cleaning solvent. (xi) Asbestos and asbestos-containing materials. (xii) Inks from the printing industry. (xiii) Chemicals and laboratory packs collected from K-12 schools. (xiv) Absorbents contaminated with other wastes listed in this section. (xv) Filters from dispensing pumps for diesel and gasoline fuels. (xvi) Any other waste, as specified in regulations adopted by the department. (B) The generator does not generate more than 1,000 kilograms per calendar month of hazardous waste and meets the conditions of paragraph (1) of subdivision (h) of Section 25123.3. For the purpose of calculating the 1,000 kilograms per calendar month limit described in this section, the generator may exclude the volume of used oil and the contents of the oil/water separator that is managed pursuant to paragraph (1) of subdivision (c). (C) (i) The generator enters into an agreement with the transporter in which the transporter agrees that the transporter will submit a confirmation to the generator that the hazardous waste was transported to an authorized hazardous waste treatment facility for appropriate treatment. The agreement may provide that the hazardous waste will first be transported to a storage or transfer facility in accordance with the applicable provisions of law. (ii) The treatment requirement specified in clause (i) does not apply to asbestos, asbestos-containing materials, and chemicals and laboratory packs collected from K-12 schools, or any other waste stream for which the department determines there is no reasonably available treatment methodology or facility. These wastes shall be transported to an authorized facility. (d) Transporters using the consolidated manifesting procedure set forth in this section shall submit quarterly reports to the department 30 days after the end of each quarter. The first quarterly report shall be submitted on October 31, 2002, covering the July to September 2002 period, and every three months thereafter. Except as otherwise specified in paragraph (1), the quarterly report shall be submitted in an electronic format provided by the department. The department shall make all of the information in the quarterly reports submitted pursuant to this subdivision available to the public, through its usual means of disclosure, except the department shall not disclose the association between any specific transporter and specific generator. The list of generators served by a transporter shall be deemed to be a trade secret and confidential business information for purposes of Section 25173 and Section 66260.2 of Title 22 of the California Code of Regulations. (1) Transporters that use the consolidated manifesting procedure for less than 1,000 tons per calendar year may apply to the department to continue submitting paper format reports. (2) For each transporter's name, terminal address, and identification number, the quarterly report shall include the following information for each generator for each consolidated manifest: (A) The name, address, and identification number, the contact persons's name, and the telephone number of each generator. (B) The date of the shipment. (C) The manifest number. (D) The volume or quantity of each waste stream received, its California and RCRA waste code, and the waste stream category listed in subdivision (c). (e) (1) Notwithstanding paragraph (10) of subdivision (a), the consolidated manifesting procedure may be used for the receipt, by a transporter, of one shipment of used oil from a generator whose identification number has been suspended for a violation of Section 25205.16, if all of the following requirements are met: (A) The transporter verifies that the identification number was suspended for a violation of Section 25205.16. (B) The generator notifies the department within 24 hours that the transporter accepted the shipment. (C) The transporter notifies the department within 24 hours that it accepted the shipment from the generator. (D) The generator complies with Section 25205.16 within 30 days from the date the transporter accepts the shipment. (2) This subdivision shall become inoperative on and after January 1, 2014.  SEC. 2.   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.   SEC. 3.   Section 25503.5 of the   Health and Safety Code   is amended to read:  25503.5. (a) (1) A business, except as provided in subdivisions (b), (c), and (d), shall establish and implement a business plan for emergency response to a release or threatened release of a hazardous material in accordance with the standards prescribed in the regulations adopted pursuant to Section 25503, if the business handles a hazardous material or a mixture containing a hazardous material that has a quantity at any one time during the reporting year that is any of the following: (A)  Equal   Except as provided in subparagraphs (C), (D), or (F)   , equal    to, or greater than, a total weight of 500 pounds or a total volume of 55 gallons. (B)  Equal   Except as provided in subparagraphs (E) or (F), equal  to, or greater than, 200 cubic feet at standard temperature and pressure, if the substance is compressed gas.  (C) The threshold planning quantity, under both of the following conditions:   (i) The hazardous material is an extremely hazardous substance, as defined in Section 355.61 of Title 40 of the Code of Federal Regulations.   (ii) The threshold planning quantity for that extremely hazardous substance listed in Appendices A and B of Part 355 (commencing with Section 355.1) of Subchapter J of Chapter I of Title 40 of the Code of Federal Regulations is less than 500 pounds.   (D) A total weight of 5,000 pounds, if the hazardous material is a solid or liquid substance that is classified as a hazard for purposes of Section 5194 of Title 8 of the California Code of Regulations solely as an irritant or sensitizer, unless the administering agency finds, and provides notice to the business handling the product, that the handling of lesser quantities of that hazardous material requires the submission of a business plan, or any portion thereof, in response to public health, safety, or environmental concerns.   (E) (i) A total of 1,000 cubic feet, if the hazardous material is a gas at standard temperature and pressure and is classified as a hazard for the purposes of Section 5194 of Title 8 of the California Code of Regulations solely as a compressed gas, unless the administering agency finds, and provides notice to the business handling the product, that the handling of lesser quantities of that hazardous material requires the submission of a business plan, or any portion thereof, in response to public health, safety, or environmental concerns.   (ii) The hazardous materials subject to this subparagraph include a gas for which the only health and physical hazards are simple asphyxiation and the release of pressure.   (iii) The hazardous materials subject to this subparagraph do not include gases in a cryogenic state.   (C)   (F)    If the substance is a radioactive material, it is handled in quantities for which an emergency plan is required to be adopted pursuant to Part 30 (commencing with Section 30.1), Part 40 (commencing with Section 40.1), or Part 70 (commencing with Section 70.1), of Chapter 1 of Title 10 of the Code of Federal Regulations, or pursuant to any regulations adopted by the state in accordance with those regulations. (2) In meeting the requirements of this subdivision, a business may, if it elects to do so, use the format adopted pursuant to Section 25503.4.  (3) The administering agency shall make the findings required by subparagraphs (D) and (E) of paragraph (1) in consultation with the local fire chief.  (b) (1) Oxygen, nitrogen, and nitrous oxide, ordinarily maintained by a physician, dentist, podiatrist, veterinarian, or pharmacist, at his or her office or place of business, stored at each office or place of business in quantities of not more than 1,000 cubic feet of each material at any one time, are exempt from this section and from Section 25505. The administering agency may require a one-time inventory of these materials for a fee not to exceed fifty dollars ($50) to pay for the costs incurred by the agency in processing the inventory forms. (2) (A) Lubricating oil is exempt from this section and Sections 25505 and 25509, for a single business facility, if the total volume of each type of lubricating oil handled at that facility does not exceed 55 gallons and the total volume of all types of lubricating oil handled at that facility does not exceed 275 gallons, at any one time. (B) For purposes of this paragraph, "lubricating oil" means any oil intended for use in an internal combustion crankcase, or the transmission, gearbox, differential, or hydraulic system of an automobile, bus, truck, vessel, airplane, heavy equipment, or other machinery powered by an internal combustion or electric powered engine. "Lubricating oil" does not include used oil, as defined in subdivision (a) of Section 25250.1. (c) (1) Hazardous material contained solely in a consumer product for direct distribution to, and use by, the general public is exempt from the business plan requirements of this  chapter   article  unless the administering agency has found, and has provided notice to the business handling the product, that the handling of certain quantities of the product requires the submission of a business plan, or any portion thereof, in response to public health, safety, or environmental concerns. (2) In addition to the authority specified in paragraph (4), the administering agency may, in exceptional circumstances, following notice and public hearing, exempt from the inventory provisions of this  chapter   article  any hazardous substance specified in subdivision  (p)   (q)  of Section 25501 if the administering agency finds that the hazardous substance would not pose a present or potential danger to the environment or to human health and safety if the hazardous substance was released into the environment. The administering agency shall specify in writing the basis for granting any exemption under this paragraph. The administering agency shall send a notice to the agency within five days from the effective date of any exemption granted pursuant to this paragraph. (3) The administering agency, upon application by a handler, may exempt the handler, under conditions that the administering agency determines to be proper, from any portion of the business plan, upon a written finding that the exemption would not pose a significant present or potential hazard to human health or safety or to the environment or affect the ability of the administering agency and emergency rescue personnel to effectively respond to the release of a hazardous material, and that there are unusual circumstances justifying the exemption. The administering agency shall specify in writing the basis for any exemption under this paragraph. (4) The administering agency, upon application by a handler, may exempt a hazardous material from the inventory provisions of this  chapter   article  upon proof that the material does not pose a significant present or potential hazard to human health and safety or to the environment if released into the workplace or environment. The administering agency shall specify in writing the basis for any exemption under this paragraph. (5) An administering agency shall exempt a business operating a farm for purposes of cultivating the soil or raising or harvesting any agricultural or horticultural commodity from filing the information in the business plan required by subdivisions (b) and (c) of Section 25504 if all of the following requirements are met: (A) The handler annually provides the inventory of information required by Section 25509 to the county agricultural commissioner before January 1 of each year. (B) Each building in which hazardous materials subject to this  chapter   article  are stored is posted with signs, in accordance with regulations that the agency shall adopt, that provide notice of the storage of any of the following: (i) Pesticides. (ii) Petroleum fuels and oil. (iii) Types of fertilizers. (C) Each county agricultural commissioner forwards the inventory to the administering agency within 30 days from the date of receipt of the inventory. (6) The administering agency shall exempt a business operating an unstaffed remote facility located in an isolated sparsely populated area from the hazardous materials business plan and inventory requirements of this article if the facility is not otherwise subject to the requirements of applicable federal law, and all of the following requirements are met: (A) The types and quantities of materials onsite are limited to one or more of the following: (i) Five hundred standard cubic feet of compressed inert gases (asphyxiation and pressure hazards only). (ii) Five hundred gallons of combustible liquid used as a fuel source. (iii) Two hundred gallons of corrosive liquids used as electrolytes in closed containers. (iv) Five hundred gallons of lubricating and hydraulic fluids. (v) One thousand two hundred gallons of flammable gas used as a fuel source. (B) The facility is secured and not accessible to the public. (C) Warning signs are posted and maintained for hazardous materials pursuant to the California Fire Code. (D) A one-time notification and inventory are provided to the administering agency along with a processing fee in lieu of the existing fee. The fee shall not exceed the actual cost of processing the notification and inventory, including a verification inspection, if necessary. (E) If the information contained in the initial notification or inventory changes and the time period of the change is longer than 30 days, the notification or inventory shall be resubmitted within 30 days to the administering agency to reflect the change, along with a processing fee, in lieu of the existing fee, that does not exceed the actual cost of processing the amended notification or inventory, including a verification inspection, if necessary. (F) The administering agency shall forward a copy of the notification and inventory to those agencies that share responsibility for emergency response. (G) The administering agency may require an unstaffed remote facility to submit a hazardous materials business plan and inventory in accordance with this article if the agency finds that special circumstances exist such that development and maintenance of the business plan and inventory are necessary to protect public health and safety and the environment. (d)  Onpremise   On-premise  use, storage, or both, of propane in an amount not to exceed 300 gallons that is for the sole purpose of heating the employee working areas within that business is exempt from this section, unless the administering agency finds, and provides notice to the business handling the propane, that the handling of the on-premise propane requires the submission of a business plan, or any portion thereof, in response to public health, safety, or environmental concerns. (e) The administering agency shall provide all information obtained from completed inventory forms, upon request, to emergency rescue personnel on a 24-hour basis. (f) The administering agency shall adopt procedures to provide for public input when approving any applications submitted pursuant to paragraph (3) or (4) of subdivision (c).  SEC. 4.   Section 13385 of the   Water Code   is amended to read:  13385. (a) A person who violates any of the following  shall be   is  liable civilly in accordance with this section: (1) Section 13375 or 13376. (2) A waste discharge requirement or dredged or fill material permit issued pursuant to this chapter or any water quality certification issued pursuant to Section 13160. (3) A requirement established pursuant to Section 13383. (4) An order or prohibition issued pursuant to Section 13243 or Article 1 (commencing with Section 13300) of Chapter 5, if the activity subject to the order or prohibition is subject to regulation under this chapter. (5) A requirement of Section 301, 302, 306, 307, 308, 318, 401, or 405 of the  federal  Clean Water Act  (33 U.S.C. Sec. 1311, 1312, 1316, 1317, 1318, 1341, or 1342)  , as amended. (6) A requirement imposed in a pretreatment program approved pursuant to waste discharge requirements issued under Section 13377 or approved pursuant to a permit issued by the administrator. (b)  (1)    Civil liability may be imposed by the superior court in an amount not to exceed the sum of both of the following:  (1)   (A)  Twenty-five thousand dollars ($25,000) for each day in which the violation occurs.  (2) Where   (B)     If  there is a discharge, any portion of which is not susceptible to cleanup or is not cleaned up, and the volume discharged but not cleaned up exceeds 1,000 gallons, an additional liability not to exceed twenty-five dollars ($25) multiplied by the number of gallons by which the volume discharged but not cleaned up exceeds 1,000 gallons.  The   (2)     The  Attorney General, upon request of a regional board or the state board, shall petition the superior court to impose the liability. (c) Civil liability may be imposed administratively by the state board or a regional board pursuant to Article 2.5 (commencing with Section 13323) of Chapter 5 in an amount not to exceed the sum of both of the following: (1) Ten thousand dollars ($10,000) for each day in which the violation occurs. (2)  Where   If  there is a discharge, any portion of which is not susceptible to cleanup or is not cleaned up, and the volume discharged but not cleaned up exceeds 1,000 gallons, an additional liability not to exceed ten dollars ($10) multiplied by the number of gallons by which the volume discharged but not cleaned up exceeds 1,000 gallons. (d) For purposes of subdivisions (b) and (c), "discharge" includes any discharge to navigable waters of the United States, any introduction of pollutants into a publicly owned treatment works, or any use or disposal of sewage sludge. (e) In determining the amount of any liability imposed under this section, the regional board, the state board, or the superior court, as the case may be, shall take into account the nature, circumstances, extent, and gravity of the violation or violations, whether the discharge is susceptible to cleanup or abatement, the degree of toxicity of the discharge, and, with respect to the violator, the ability to pay, the effect on its ability to continue its business, any voluntary cleanup efforts undertaken, any prior history of violations, the degree of culpability, economic benefit or savings, if any, resulting from the violation, and other matters that justice may require. At a minimum, liability shall be assessed at a level that recovers the economic benefits, if any, derived from the acts that constitute the violation. (f) (1) Except as provided in paragraph (2), for the purposes of this section, a single operational upset that leads to simultaneous violations of more than one pollutant parameter shall be treated as a single violation. (2) (A) For the purposes of subdivisions (h) and (i), a single operational upset in a wastewater treatment unit that treats wastewater using a biological treatment process shall be treated as a single violation, even if the operational upset results in violations of more than one effluent limitation and the violations continue for a period of more than one day, if all of the following apply: (i) The discharger demonstrates all of the following: (I) The upset was not caused by wastewater treatment operator error and was not due to discharger negligence. (II) But for the operational upset of the biological treatment process, the violations would not have occurred nor would they have continued for more than one day. (III) The discharger carried out all reasonable and immediately feasible actions to reduce noncompliance with the applicable effluent limitations. (ii) The discharger is implementing an approved pretreatment program, if so required by federal or state law. (B) Subparagraph (A) only applies to violations that occur during a period for which the regional board has determined that violations are unavoidable, but in no case may that period exceed 30 days. (g) Remedies under this section are in addition to, and do not supersede or limit, any other remedies, civil or criminal, except that no liability shall be recoverable under Section 13261, 13265, 13268, or 13350 for violations for which liability is recovered under this section. (h) (1) Notwithstanding any other provision of this division, and except as provided in subdivisions (j), (k), and (  l  ), a mandatory minimum penalty of three thousand dollars ($3,000) shall be assessed for each serious violation. (2) For the purposes of this section, a "serious violation" means any waste discharge that violates the effluent limitations contained in the applicable waste discharge requirements for a Group II pollutant, as specified in Appendix A to Section 123.45 of Title 40 of the Code of Federal Regulations, by 20 percent or more or for a Group I pollutant, as specified in Appendix A to Section 123.45 of Title 40 of the Code of Federal Regulations, by 40 percent or more. (i) (1) Notwithstanding any other provision of this division, and except as provided in subdivisions (j), (k), and (  l  ), a mandatory minimum penalty of three thousand dollars ($3,000) shall be assessed for each violation  whenever   if  the person does any of the following four or more times in any period of six consecutive months, except that the requirement to assess the mandatory minimum penalty shall not be applicable to the first three violations: (A) Violates a waste discharge requirement effluent limitation. (B) Fails to file a report pursuant to Section 13260. (C) Files an incomplete report pursuant to Section 13260. (D) Violates a toxicity effluent limitation contained in the applicable waste discharge requirements where the waste discharge requirements do not contain pollutant-specific effluent limitations for toxic pollutants. (2) For the purposes of this section, a "period of six consecutive months" means the period commencing on the date that one of the violations described in this subdivision occurs and ending 180 days after that date. (j) Subdivisions (h) and (i) do not apply to any of the following: (1) A violation caused by one or any combination of the following: (A) An act of war. (B) An unanticipated, grave natural disaster or other natural phenomenon of an exceptional, inevitable, and irresistible character, the effects of which could not have been prevented or avoided by the exercise of due care or foresight. (C) An intentional act of a third party, the effects of which could not have been prevented or avoided by the exercise of due care or foresight. (D) (i) The operation of a new or reconstructed wastewater treatment unit during a defined period of adjusting or testing, not to exceed 90 days for a wastewater treatment unit that relies on a biological treatment process and not to exceed 30 days for any other wastewater treatment unit, if all of the following requirements are met: (I) The discharger has submitted to the regional board, at least 30 days in advance of the operation, an operations plan that describes the actions the discharger will take during the period of adjusting and testing, including steps to prevent violations and identifies the shortest reasonable time required for the period of adjusting and testing, not to exceed 90 days for a wastewater treatment unit that relies on a biological treatment process and not to exceed 30 days for any other wastewater treatment unit. (II) The regional board has not objected in writing to the operations plan. (III) The discharger demonstrates that the violations resulted from the operation of the new or reconstructed wastewater treatment unit and that the violations could not have reasonably been avoided. (IV) The discharger demonstrates compliance with the operations plan. (V) In the case of a reconstructed wastewater treatment unit, the unit relies on a biological treatment process that is required to be out of operation for at least 14 days in order to perform the reconstruction, or the unit is required to be out of operation for at least 14 days and, at the time of the reconstruction, the cost of reconstructing the unit exceeds 50 percent of the cost of replacing the wastewater treatment unit. (ii) For the purposes of this section, "wastewater treatment unit" means a component of a wastewater treatment plant that performs a designated treatment function. (2) (A) Except as provided in subparagraph (B), a violation of an effluent limitation where the waste discharge is in compliance with either a cease and desist order issued pursuant to Section 13301 or a time schedule order issued pursuant to Section 13300, if all of the following requirements are met: (i) The cease and desist order or time schedule order is issued after January 1, 1995, but not later than July 1, 2000, specifies the actions that the discharger is required to take in order to correct the violations that would otherwise be subject to subdivisions (h) and (i), and the date by which compliance is required to be achieved and, if the final date by which compliance is required to be achieved is later than one year from the effective date of the cease and desist order or time schedule order, specifies the interim requirements by which progress  towards   toward  compliance will be measured and the date by which the discharger will be in compliance with each interim requirement. (ii) The discharger has prepared and is implementing in a timely and proper manner, or is required by the regional board to prepare and implement, a pollution prevention plan that meets the requirements of Section 13263.3. (iii) The discharger demonstrates that it has carried out all reasonable and immediately feasible actions to reduce noncompliance with the waste discharge requirements applicable to the waste discharge and the executive officer of the regional board concurs with the demonstration. (B) Subdivisions (h) and (i) shall become applicable to a waste discharge on the date the waste discharge requirements applicable to the waste discharge are revised and reissued pursuant to Section 13380, unless the regional board does all of the following on or before that date: (i) Modifies the requirements of the cease and desist order or time schedule order as may be necessary to make it fully consistent with the reissued waste discharge requirements. (ii) Establishes in the modified cease and desist order or time schedule order a date by which full compliance with the reissued waste discharge requirements shall be achieved. For the purposes of this subdivision, the regional board may not establish this date later than five years from the date the waste discharge requirements were required to be reviewed pursuant to Section 13380. If the reissued waste discharge requirements do not add new effluent limitations or do not include effluent limitations that are more stringent than those in the original waste discharge requirements, the date shall be the same as the final date for compliance in the original cease and desist order or time schedule order or five years from the date that the waste discharge requirements were required to be reviewed pursuant to Section 13380, whichever is earlier. (iii) Determines that the pollution prevention plan required by clause (ii) of subparagraph (A) is in compliance with the requirements of Section 13263.3 and that the discharger is implementing the pollution prevention plan in a timely and proper manner. (3) A violation of an effluent limitation where the waste discharge is in compliance with either a cease and desist order issued pursuant to Section 13301 or a time schedule order issued pursuant to Section 13300 or 13308, if all of the following requirements are met: (A) The cease and desist order or time schedule order is issued on or after July 1, 2000, and specifies the actions that the discharger is required to take in order to correct the violations that would otherwise be subject to subdivisions (h) and (i). (B) The regional board finds that, for one of the following reasons, the discharger is not able to consistently comply with one or more of the effluent limitations established in the waste discharge requirements applicable to the waste discharge: (i) The effluent limitation is a new, more stringent, or modified regulatory requirement that has become applicable to the waste discharge after the effective date of the waste discharge requirements and after July 1, 2000, new or modified control measures are necessary in order to comply with the effluent limitation, and the new or modified control measures cannot be designed, installed, and put into operation within 30 calendar days. (ii) New methods for detecting or measuring a pollutant in the waste discharge demonstrate that new or modified control measures are necessary in order to comply with the effluent limitation and the new or modified control measures cannot be designed, installed, and put into operation within 30 calendar days. (iii) Unanticipated changes in the quality of the municipal or industrial water supply available to the discharger are the cause of unavoidable changes in the composition of the waste discharge, the changes in the composition of the waste discharge are the cause of the inability to comply with the effluent limitation, no alternative water supply is reasonably available to the discharger, and new or modified measures to control the composition of the waste discharge cannot be designed, installed, and put into operation within 30 calendar days. (iv) The discharger is a publicly owned treatment works located in Orange County that is unable to meet effluent limitations for biological oxygen demand, suspended solids, or both, because the publicly owned treatment works meets all of the following criteria: (I) Was previously operating under modified secondary treatment requirements pursuant to Section 301(h) of the  federal  Clean Water Act (33 U.S.C. Sec. 1311(h)). (II) Did vote on July 17, 2002, not to apply for a renewal of the modified secondary treatment requirements. (III) Is in the process of upgrading its treatment facilities to meet the secondary treatment standards required by Section 301(b)(1) (B) of the  federal  Clean Water Act (33 U.S.C. Sec. 1311(b) (1)(B)). (C) (i) The regional board establishes a time schedule for bringing the waste discharge into compliance with the effluent limitation that is as short as possible, taking into account the technological, operational, and economic factors that affect the design, development, and implementation of the control measures that are necessary to comply with the effluent limitation. Except as provided in clause (ii), for the purposes of this subdivision, the time schedule shall not exceed five years in length. (ii) (I) For purposes of the upgrade described in subclause (III) of clause (iv) of subparagraph (B), the time schedule shall not exceed 10 years in length. (II) Following a public hearing, and upon a showing that the discharger is making diligent progress toward bringing the waste discharge into compliance with the effluent limitation, the regional board may extend the time schedule for an additional period not exceeding five years in length, if the discharger demonstrates that the additional time is necessary to comply with the effluent limitation. This subclause does not apply to a time schedule described in subclause (I). (iii) If the time schedule exceeds one year from the effective date of the order, the schedule shall include interim requirements and the dates for their achievement. The interim requirements shall include both of the following: (I) Effluent limitations for the pollutant or pollutants of concern. (II) Actions and milestones leading to compliance with the effluent limitation. (D) The discharger has prepared and is implementing in a timely and proper manner, or is required by the regional board to prepare and implement, a pollution prevention plan pursuant to Section 13263.3. (k) (1) In lieu of assessing all or a portion of the mandatory minimum penalties pursuant to subdivisions (h) and (i) against a publicly owned treatment works serving a small community, the state board or the regional board may elect to require the publicly owned treatment works to spend an equivalent amount  towards   toward  the completion of a compliance project proposed by the publicly owned treatment works, if the state board or the regional board finds all of the following: (A) The compliance project designed to correct the violations within five years. (B) The compliance project is in accordance with the enforcement policy of the state board, excluding any provision in the policy that is inconsistent with this section. (C) The publicly owned treatment works has prepared a financing plan to complete the compliance project. (2) For the purposes of this subdivision, "a publicly owned treatment works serving a small community" means a publicly owned treatment works serving a population of  10,000   20,000  persons or fewer or a rural county, with a financial hardship as determined by the state board after considering such factors as median income of the residents, rate of unemployment, or low population density in the service area of the publicly owned treatment works. (l) (1) In lieu of assessing penalties pursuant to subdivision (h) or (i), the state board or the regional board, with the concurrence of the discharger, may direct a portion of the penalty amount to be expended on a supplemental environmental project in accordance with the enforcement policy of the state board. If the penalty amount exceeds fifteen thousand dollars ($15,000), the portion of the penalty amount that may be directed to be expended on a supplemental environmental project may not exceed fifteen thousand dollars ($15,000) plus 50 percent of the penalty amount that exceeds fifteen thousand dollars ($15,000). (2) For the purposes of this section, a "supplemental environmental project" means an environmentally beneficial project that a person agrees to undertake, with the approval of the regional board, that would not be undertaken in the absence of an enforcement action under this section. (3) This subdivision applies to the imposition of penalties pursuant to subdivision (h) or (i) on or after January 1, 2003, without regard to the date on which the violation occurs. (m) The Attorney General, upon request of a regional board or the state board, shall petition the appropriate court to collect any liability or penalty imposed pursuant to this section. Any person who fails to pay on a timely basis any liability or penalty imposed under this section shall be required to pay, in addition to that liability or penalty, interest, attorney's fees, costs for collection proceedings, and a quarterly nonpayment penalty for each quarter during which the failure to pay persists. The nonpayment penalty shall be in an amount equal to 20 percent of the aggregate amount of the person's penalty and nonpayment penalties that are unpaid as of the beginning of the quarter. (n) (1) Subject to paragraph (2), funds collected pursuant to this section shall be deposited in the State Water Pollution Cleanup and Abatement Account. (2) (A) Notwithstanding any other provision of law, moneys collected for a violation of a water quality certification in accordance with paragraph (2) of subdivision (a) or for a violation of Section 401 of the  federal  Clean Water Act (33 U.S.C. Sec. 1341) in accordance with paragraph (5) of subdivision (a) shall be deposited in the Waste Discharge Permit Fund and separately accounted for in that fund. (B) The funds described in subparagraph (A) shall be expended by the state board, upon appropriation by the Legislature, to assist regional boards, and other public agencies with authority to clean up waste or abate the effects of the waste, in cleaning up or abating the effects of the waste on waters of the state or for the purposes authorized in Section 13443. (o) The state board shall continuously report and update information on its Internet Web site, but at a minimum, annually on or before January 1, regarding its enforcement activities. The information shall include all of the following: (1) A compilation of the number of violations of waste discharge requirements in the previous calendar year, including stormwater enforcement violations. (2) A record of the formal and informal compliance and enforcement actions taken for each violation, including stormwater enforcement actions. (3) An analysis of the effectiveness of current enforcement policies, including mandatory minimum penalties. (p) The amendments made to subdivisions (f), (h), (i), and (j) during the second year of the 2001-02 Regular Session apply only to violations that occur on or after January 1, 2003.  SEC. 5.   No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because a local agency or school district has the authority to levy service charges, fees, or assessments sufficient to pay for the program or level of service mandated by this act, within the meaning of Section 17556 of the Government Code, or because the costs may be incurred by a local agency or school district 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.   SEC. 3.   SEC. 6.  This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect. The facts constituting the necessity are: In order to ensure that the hazardous waste laws and regulations are fully complied with as soon as possible,  and to make other changes relating to emergency response, the handling of   hazardous materials, and the enforcement of waste discharge requirements,  thereby protecting the public health and safety and the environment, it is necessary that this act take effect immediately.