25404. (a) For purposes of this chapter, the following terms shall
have the following meanings:
(1) (A) "Certified Unified Program Agency" or "CUPA" means the
agency certified by the secretary to implement the unified program
specified in this chapter within a jurisdiction.
(B) "Participating Agency" or "PA" means a state or local agency
that has a written agreement with the CUPA pursuant to subdivision
(d) of Section 25404.3, and is approved by the secretary, to
implement or enforce one or more of the unified program elements
specified in subdivision (c), in accordance with Sections 25404.1 and
25404.2.
(C) "Unified Program Agency" or "UPA" means the CUPA, or its
participating agencies to the extent each PA has been designated by
the CUPA, pursuant to a written agreement, to implement or enforce a
particular unified program element specified in subdivision (c). The
UPAs have the responsibility and authority to implement and enforce
the requirements listed in subdivision (c), and the regulations
adopted to implement the requirements listed in subdivision (c), to
the extent provided by Chapter 6.5 (commencing with Section 25100),
Chapter 6.67 (commencing with Section 25270), Chapter 6.7 (commencing
with Section 25280), Chapter 6.95 (commencing with Section 25500),
and Sections 25404.1 and 25404.2. After a CUPA has been certified by
the secretary, the unified program agencies and the state agencies
carrying out responsibilities under this chapter shall be the only
agencies authorized to enforce the requirements listed in subdivision
(c) within the jurisdiction of the CUPA.
(2) "Department" means the Department of Toxic Substances Control.
(3) "Minor violation" means the failure of a person to comply with
a requirement or condition of an applicable law, regulation, permit,
information request, order, variance, or other requirement, whether
procedural or substantive, of the unified program that the UPA is
authorized to implement or enforce pursuant to this chapter, and that
does not otherwise include any of the following:
(A) A violation that results in injury to persons or property, or
that presents a significant threat to human health or the
environment.
(B) A knowing, willful, or intentional violation.
(C) A violation that is a chronic violation, or that is committed
by a recalcitrant violator. In determining whether a violation is
chronic or a violator is recalcitrant, the UPA shall consider whether
there is evidence indicating that the violator has engaged in a
pattern of neglect or disregard with respect to applicable regulatory
requirements.
(D) A violation that results in an emergency response from a
public safety agency.
(E) A violation that enables the violator to benefit economically
from the noncompliance, either by reduced costs or competitive
advantage.
(F) A class I violation as provided in Section 25117.6.
(G) A class II violation committed by a chronic or a recalcitrant
violator, as provided in Section 25117.6.
(H) A violation that hinders the ability of the UPA to determine
compliance with any other applicable local, state, or federal rule,
regulation, information request, order, variance, permit, or other
requirement.
(4) "Secretary" means the Secretary for Environmental Protection.
(5) "Unified program facility" means all contiguous land and
structures, other appurtenances, and improvements on the land that
are subject to the requirements listed in subdivision (c).
(6) "Unified program facility permit" means a permit issued
pursuant to this chapter. For the purposes of this chapter, a unified
program facility permit encompasses the permitting requirements of
Section 25284, and permit or authorization requirements under a local
ordinance or regulation relating to the generation or handling of
hazardous waste or hazardous materials, but does not encompass the
permitting requirements of a local ordinance that incorporates
provisions of the Uniform Fire Code or the Uniform Building Code.
(b) The secretary shall adopt implementing regulations and
implement a unified hazardous waste and hazardous materials
management regulatory program, which shall be known as the unified
program, after holding an appropriate number of public hearings
throughout the state. The unified program shall be developed in close
consultation with the director, the Secretary of California
Emergency Management, the State Fire Marshal, the executive officers
and chairpersons of the State Water Resources Control Board and the
California regional water quality control boards, the local health
officers, local fire services, and other appropriate officers of
interested local agencies, and affected businesses and interested
members of the public, including environmental organizations.
(c) The unified program shall consolidate the administration of
the following requirements and, to the maximum extent feasible within
statutory constraints, shall ensure the coordination and consistency
of any regulations adopted pursuant to those requirements:
(1) (A) Except as provided in subparagraphs (B) and (C), the
requirements of Chapter 6.5 (commencing with Section 25100), and the
regulations adopted by the department pursuant thereto, are
applicable to all of the following:
(i) Hazardous waste generators, persons operating pursuant to a
permit-by-rule, conditional authorization, or conditional exemption,
pursuant to Chapter 6.5 (commencing with Section 25100) or the
regulations adopted by the department.
(ii) Persons managing perchlorate materials.
(iii) Persons subject to Article 10.1 (commencing with Section
25211) of Chapter 6.5.
(B) The unified program shall not include the requirements of
paragraph (3) of subdivision (c) of Section 25200.3, the requirements
of Sections 25200.10 and 25200.14, and the authority to issue an
order under Sections 25187 and 25187.1, with regard to those portions
of a unified program facility that are subject to one of the
following:
(i) A corrective action order issued by the department pursuant to
Section 25187.
(ii) An order issued by the department pursuant to Chapter 6.8
(commencing with Section 25300) or Chapter 6.85 (commencing with
Section 25396).
(iii) A remedial action plan approved pursuant to Chapter 6.8
(commencing with Section 25300) or Chapter 6.85 (commencing with
Section 25396).
(iv) A cleanup and abatement order issued by a California regional
water quality control board pursuant to Section 13304 of the Water
Code, to the extent that the cleanup and abatement order addresses
the requirements of the applicable section or sections listed in this
subparagraph.
(v) Corrective action required under subsection (u) of Section
6924 of Title 42 of the United States Code or subsection (h) of
Section 6928 of Title 42 of the United States Code.
(vi) An environmental assessment pursuant to Section 25200.14 or a
corrective action pursuant to Section 25200.10 or paragraph (3) of
subdivision (c) of Section 25200.3, that is being overseen by the
department.
(C) The unified program shall not include the requirements of
Chapter 6.5 (commencing with Section 25100), and the regulations
adopted by the department pursuant thereto, applicable to persons
operating transportable treatment units, except that any required
notice regarding transportable treatment units shall also be provided
to the CUPAs.
(2) The requirements of Chapter 6.67 (commencing with Section
25270) concerning aboveground storage tanks.
(3) (A) Except as provided in subparagraphs (B) and (C), the
requirements of Chapter 6.7 (commencing with Section 25280)
concerning underground storage tanks and the requirements of any
underground storage tank ordinance adopted by a city or county.
(B) The unified program shall not include the responsibilities
assigned to the State Water Resources Control Board pursuant to
Section 25297.1.
(C) The unified program shall not include the corrective action
requirements of Sections 25296.10 to 25296.40, inclusive.
(4) The requirements of Article 1 (commencing with Section 25500)
of Chapter 6.95 concerning hazardous material release response plans
and inventories.
(5) The requirements of Article 2 (commencing with Section 25531)
of Chapter 6.95, concerning the accidental release prevention
program.
(6) The requirements of subdivisions (b) and (c) of Section 80.103
of the Uniform Fire Code, as adopted by the State Fire Marshal
pursuant to Section 13143.9 concerning hazardous material management
plans and inventories.
(d) To the maximum extent feasible within statutory constraints,
the secretary shall consolidate, coordinate, and make consistent
these requirements of the unified program with other requirements
imposed by other federal, state, regional, or local agencies upon
facilities regulated by the unified program.
(e) (1) The secretary shall establish standards applicable to
CUPAs, participating agencies, state agencies, and businesses
specifying the data to be collected and submitted by unified program
agencies in administering the programs listed in subdivision (c).
Those standards shall incorporate any standard developed under
Section 25503.3.
(2) (A) No later than January 1, 2010, the secretary shall
establish a statewide information management system capable of
receiving all data collected by the unified program agencies and
reported by regulated businesses pursuant to this subdivision and
Section 25504.1, in a manner that is most cost efficient and
effective for both the regulated businesses and state and local
agencies. The secretary shall prescribe an XML or other compatible
Web-based format for the transfer of data from CUPAs and regulated
businesses and make all nonconfidential data available on the
Internet.
(B) The secretary shall establish milestones to measure the
implementation of the statewide information management system and
shall provide periodic status updates to interested parties.
(3) (A) (i) Except as provided in subparagraph (B), in addition to
any other funding that becomes available, the secretary shall
increase the oversight surcharge provided for in subdivision (b) of
Section 25404.5 by an amount necessary to meet the requirements of
this subdivision for a period of three years, to establish the
statewide information management system, consistent with paragraph
(2). The increase in the oversight surcharge shall not exceed
twenty-five dollars ($25) in any one year of the three-year period.
The secretary shall thereafter maintain the statewide information
management system, funded by the assessment the secretary is
authorized to impose pursuant to Section 25404.5.
(ii) No less than 75 percent of the additional funding raised
pursuant to clause (i) shall be provided to CUPAs and PAs through
grant funds or statewide contract services, in the amounts determined
by the secretary to assist these local agencies in meeting these
information management system requirements.
(B) A facility that is owned or operated by the federal government
and that is subject to the unified program shall pay the surcharge
required by this paragraph to the extent authorized by federal law.
(C) The secretary, or one or more of the boards, departments, or
offices within the California Environmental Protection Agency, shall
seek available federal funding for purposes of implementing this
subdivision.
(4) No later than three years after the statewide information
management system is established, each CUPA, PA, and regulated
business shall report program data electronically. The secretary
shall work with the CUPAs to develop a phased in schedule for the
electronic collection and submittal of information to be included in
the statewide information management system, giving first priority to
information relating to those chemicals determined by the secretary
to be of greatest concern. The secretary, in making this
determination shall consult with the CUPAs, the California Emergency
Management Agency, the State Fire Marshal, and the boards,
departments, and offices within the California Environmental
Protection Agency. The information initially included in the
statewide information management system shall include, but is not
limited to, the hazardous materials inventory information required to
be submitted pursuant to Section 25504.1 for perchlorate materials.
(5) The secretary, in collaboration with the CUPAs, shall provide
technical assistance to regulated businesses to comply with the
electronic reporting requirements and may expend funds identified in
clause (i) of subparagraph (A) of paragraph (3) for that purpose.
25404.1. (a) (1) All aspects of the unified program related to the
adoption and interpretation of statewide standards and requirements
shall be the responsibility of the state agency which is charged with
that responsibility under existing law. For underground storage
tanks, that agency shall be the State Water Resources Control Board.
The California regional water quality control boards shall have
responsibility for the issuance of variances pursuant to subdivision
(b) of Section 25299.4. The Department of Toxic Substances Control
shall have the sole responsibility for the issuances of variances
from the requirements of Chapter 6.5 (commencing with Section 25100)
and the regulations adopted pursuant thereto, for the determination
of whether or not a waste is hazardous or nonhazardous, for the
determination of whether or not a person is eligible to be deemed to
be operating pursuant to a permit-by-rule, conditional authorization,
or conditional exemption pursuant to Chapter 6.5 (commencing with
Section 25100) or the regulations adopted by the department, and for
the suspension and revocation of permits-by-rule, conditional
authorizations, and conditional exemptions.
(2) Except as provided in paragraphs (1) and (3), those aspects of
the unified program related to the application of statewide
standards to particular facilities, including the issuance of unified
program facility permits, the review of reports and plans,
environmental assessment, compliance and correction, and the
enforcement of those standards and requirements against particular
facilities, shall be the responsibility of the unified program
agencies.
(3) (A) Except in those jurisdictions for which the UPA has been
determined by the department, in accordance with regulations adopted
pursuant to subparagraph (C), to be qualified to implement the
environmental assessment and removal and remediation corrective
action aspects of the unified program, the department shall have sole
responsibility and authority under the unified program for all of
the following:
(i) Implementing and enforcing the requirements of paragraph (3)
of subdivision (c) of Section 25200.3 and Sections 25200.10 and
25200.14, and the regulations adopted by the department to implement
those sections. As a pilot program in up to 10 counties, pending the
adoption and implementation of regulations pursuant to subparagraph
(C), the department may delegate to the CUPA, through a delegation
agreement, responsibility and authority for implementing and
enforcing the requirements of Section 25200.14.
(ii) The issuance of orders under Section 25187 requiring removal
or remedial action.
(iii) The issuance of orders under Section 25187.1.
(B) Notwithstanding subparagraph (A), a UPA may issue an order
under Section 25187 specifying a schedule for compliance or
correction and imposing an administrative penalty for any violation
of the requirements of Chapter 6.5 (commencing with Section 25100)
listed in paragraph (1) of subdivision (c) of Section 25404, or the
requirements of any permit, rule, regulation, standard or requirement
issued or adopted pursuant to the requirements of Chapter 6.5
(commencing with Section 25100) listed in paragraph (1) of
subdivision (c) of Section 25404, if one of the following applies:
(i) The order does not require removal or remedial action.
(ii) The only removal or remedial actions required by the order
are those actions determined to be necessary to address an imminent
and substantial endangerment based upon a finding by the UPA pursuant
to subdivision (f) of Section 25187.
(C) The department shall adopt emergency regulations specifying
the criteria and procedures for implementing paragraph (3) of
subdivision (c) of Section 25200.3 and Sections 25200.10 and
25200.14, including criteria and procedures for determining whether
or not a unified program agency is qualified to implement the
environmental assessment and removal and remediation corrective
action portions of the unified program under paragraph (3) of
subdivision (c) of Section 25200.3 and Sections 25187, 25187.1,
25200.10, and 25200.14. The criteria for determining whether a
unified program agency is qualified shall, at a minimum, include
consideration of the following factors:
(i) Adequacy of the technical expertise possessed by the unified
program agency.
(ii) Adequacy of staff resources.
(iii) Adequacy of budget resources and funding mechanisms.
(iv) Training requirements.
(v) Past performance in implementing and enforcing requirements
related to environmental assessments, and removal and remediation
corrective actions.
(vi) Recordkeeping and accounting systems.
(D) The regulations adopted by the department pursuant to
subparagraph (C) shall include provisions to ensure coordinated and
consistent application of paragraph (3) of subdivision (c) of Section
25200.3 and Sections 25187, 25187.1, 25200.10, and 25200.14, when
both the department and the unified program agency are, or will be,
implementing and enforcing the requirements of one or more of these
sections at the same facility.
(E) For purposes of subparagraph (D), "facility" means the entire
site that is under the control of the owner or operator.
(F) If the department is designated as a unified program agency,
the department is deemed qualified to implement all of the following:
(i) The environmental assessment, removal and remedial action, and
corrective action aspects of the unified program.
(ii) Paragraph (3) of subdivision (c) of Section 25300.3, Sections
25200.10, 25200.14, 25187, and 25287.1, and the regulations adopted
by the department to implement those provisions.
(b) (1) On or before January 1, 1996, each county shall apply to
the secretary to be certified as a unified program agency to
implement the unified program within the unincorporated area of the
county and within each city in the county, in which area or city, as
of January 1, 1996, the city or other local agency has not applied to
be the certified unified program agency.
(2) (A) Any city or other local agency which, as of December 31,
1995, has been designated as an administering agency pursuant to
Section 25502, or which has assumed responsibility for the
implementation of Chapter 6.7 (commencing with Section 25280)
pursuant to Section 25283, may apply to the secretary to become the
certified unified program agency to implement the unified program
within the jurisdictional boundaries of the city or local agency.
(B) A city or other local agency which, as of December 31, 1995,
has not been designated as an administering agency pursuant to
Section 25502, or which has not assumed responsibility for the
implementation of Chapter 6.7 (commencing with Section 25280)
pursuant to Section 25283, may apply to the secretary to become the
certified unified program agency within the jurisdictional boundaries
of the city or local agency if it enters into an agreement with the
county to become the certified unified program agency within those
boundaries. A county shall not refuse to enter into an agreement
unless it specifies in writing its reasons for failing to enter into
the agreement. However, if the city does not enter into the agreement
with the county, within 30 days of receiving a county's reasons for
failing to enter into agreement, a city may request that the
secretary allow it to apply to be a certified unified program agency
and the secretary may, in his or her discretion, approve the request.
(3) A city, county, or other local agency may propose, in its
application for certification to the secretary, to allow other public
agencies to implement certain elements of the unified program, but
the secretary shall accept that proposal only if the secretary makes
the findings specified in subdivision (d) of Section 25404.3.
(4) If a city or other local agency which, as of December 31,
1995, has been designated as an administering agency pursuant to
Section 25502, or has assumed responsibility for the implementation
of Chapter 6.7 (commencing with Section 25280) pursuant to Section
25283, requests that the county propose in its application for
certification to the secretary that the city or local agency
implement, within the jurisdictional boundaries of the city or local
agency, those elements of the unified program which, as of December
31, 1995, the city or local agency has authority to administer, the
county shall grant that request. If such an agency is subsequently
removed or withdraws from the unified program, the agency shall not
act as an administering agency under Section 25502 or act as a local
agency pursuant to Chapter 6.7 (commencing with Section 25280),
except as provided in subdivision (c) of Section 25283.
25404.1.1. (a) If the unified program agency determines that a
person has committed, or is committing, a violation of any law,
regulation, permit, information request, order, variance, or other
requirement that the UPA is authorized to enforce or implement
pursuant to this chapter, the UPA may issue an administrative
enforcement order requiring that the violation be corrected and
imposing an administrative penalty, in accordance with the following:
(1) Except as provided in paragraph (5), if the order is for a
violation of Chapter 6.5 (commencing with Section 25100), the
violator shall be subject to the applicable administrative penalties
provided by that chapter.
(2) If the order is for a violation of Chapter 6.7 (commencing
with Section 25280), the violator shall be subject to the applicable
civil penalties provided in subdivisions (a), (b), (c), and (e) of
Section 25299.
(3) If the order is for a violation of Article 1 (commencing with
Section 25500) of Chapter 6.95, the violator shall be subject to a
penalty that is consistent with the administrative penalties imposed
pursuant to Section 25514.5.
(4) If the order is for a violation of Article 2 (commencing with
Section 25531) of Chapter 6.95, the violator shall be subject to a
penalty that is consistent with the administrative penalties imposed
pursuant to Section 25540 or 25540.5.
(5) If the order is for a violation of Section 25270.4.5, the
violator shall be liable for a penalty of not more than five thousand
dollars ($5,000) for each day on which the violation continues. If
the violator commits a second or subsequent violation, a penalty of
not more than ten thousand dollars ($10,000) for each day on which
the violation continues may be imposed.
(b) In establishing a penalty amount and ordering that the
violation be corrected pursuant to this section, the UPA 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
penalty, and the deterrent effect that the imposition of the penalty
would have on both the violator and the regulated community.
(c) Any order issued pursuant to this section shall be served by
personal service or certified mail and shall inform the person served
of the right to a hearing. If the UPA issues an order pursuant to
this section, the order shall state whether the hearing procedure
specified in paragraph (2) of subdivision (e) may be requested by the
person receiving the order.
(d) Any person served with an order pursuant to this section who
has been unable to resolve any violation with the UPA, may within 15
days after service of the order, request a hearing pursuant to
subdivision (e) by filing with the UPA a notice of defense. The
notice shall be filed with the office that issued the order. A notice
of defense shall be deemed filed within the 15-day period provided
by this subdivision if it is postmarked within that 15-day period. If
no notice of defense is filed within the time limits provided by
this subdivision, the order shall become final.
(e) Except as provided in subparagraph (B) of paragraph (2), a
person requesting a hearing on an order issued by the UPA under this
section may select the hearing officer specified in either paragraph
(1) or (2) in the notice of defense filed with the UPA pursuant to
subdivision (d). If a notice of defense is filed but no hearing
officer is selected, the UPA may select the hearing officer. Within
90 days of receipt of the notice of defense by the UPA, the hearing
shall be scheduled using one of the following:
(1) An administrative law judge of the Office of Administrative
Hearings of the Department of General Services, who shall conduct the
hearing in accordance with Chapter 4.5 (commencing with Section
11400) of Part 1 of Division 3 of Title 2 of the Government Code, and
the UPA shall have all the authority granted to an agency by those
provisions.
(2) (A) A hearing officer designated by the UPA, who shall conduct
the hearing in accordance with Chapter 4.5 (commencing with Section
11400) of Part 1 of Division 3 of Title 2 of the Government Code, and
the UPA shall have all the authority granted to an agency by those
provisions. When a hearing is conducted by a UPA hearing officer
pursuant to this paragraph, the UPA shall issue a decision within 60
days after the hearing is conducted. Each hearing officer designated
by a UPA shall meet the requirements of Section 11425.30 of the
Government Code and any other applicable restriction.
(B) A UPA, or a person requesting a hearing on an order issued by
a UPA may select the hearing process specified in this paragraph in a
notice of defense filed pursuant to subdivision (d) only if the UPA
has, as of the date the order is issued pursuant to subdivision (c),
selected a designated hearing officer and established a program for
conducting a hearing in accordance with this paragraph.
(f) The hearing decision issued pursuant to paragraph (2) of
subdivision (e) shall be effective and final upon issuance by the
UPA. A copy of the decision shall be served by personal service or by
certified mail upon the party served with the order, or their
representative, if any.
(g) Any provision of an order issued under this section, except
the imposition of an administrative penalty, shall take effect upon
issuance by the UPA if the UPA finds that the violation or violations
of law associated with that provision may pose an imminent and
substantial endangerment to the public health or safety or the
environment. A request for a hearing shall not stay the effect of
that provision of the order pending a hearing decision. However, if
the UPA determines that any or all provisions of the order are so
related that the public health or safety or the environment can be
protected only by immediate compliance with the order as a whole, the
order as a whole, except the imposition of an administrative
penalty, shall take effect upon issuance by the UPA. A request for a
hearing shall not stay the effect of the order as a whole pending a
hearing decision.
(h) A decision issued pursuant to paragraph (2) of subdivision (e)
may be reviewed by a court pursuant to Section 11523 of the
Government Code. In all proceedings pursuant to this section, the
court shall uphold the decision of the UPA if the decision is based
upon substantial evidence in the record as a whole. The filing of a
petition for writ of mandate shall not stay any action required
pursuant to this chapter or the accrual of any penalties assessed
pursuant to this chapter. This subdivision does not prohibit the
court from granting any appropriate relief within its jurisdiction.
(i) All administrative penalties collected from actions brought by
a UPA pursuant to this section shall be paid to the UPA that imposed
the penalty, and shall be deposited into a special account that
shall be expended to fund the activities of the UPA in enforcing this
chapter.
(j) The UPA shall consult with the district attorney, county
counsel, or city attorney on the development of policies to be
followed in exercising the authority delegated pursuant to this
section as it relates to the authority of the UPA to issue orders.
(k) (1) A unified program agency may suspend or revoke any unified
program facility permit, or an element of a unified program facility
permit, for not paying the permit fee or a fine or penalty
associated with the permit in accordance with the procedures
specified in this subdivision.
(2) If a permittee does not comply with a written notice from the
unified program agency to the permittee to make the payments
specified in paragraph (1) by the required date provided in the
notice, the unified program agency may suspend or revoke the permit
or permit element. If the permit or permit element is suspended or
revoked, the permittee shall immediately discontinue operating that
facility or function of the facility to which the permit element
applies until the permit is reinstated or reissued.
(3) A permittee may request a hearing to appeal the suspension or
revocation of a permit or element of a permit pursuant to this
subdivision by requesting a hearing using the procedures provided in
subdivision (d).
(l) This section does not do any of the following:
(1) Otherwise affect the authority of a UPA to take any other
action authorized by any other provision of law, except the UPA shall
not require a person to pay a penalty pursuant to this section and
pursuant to a local ordinance for the same violation.
(2) Restrict the power of a city attorney, district attorney,
county counsel, or the Attorney General to bring, in the name of the
people of California, any criminal proceeding otherwise authorized by
law.
(3) Prevent the UPA from cooperating with, or participating in, a
proceeding specified in paragraph (2).
25404.1.2. (a) (1) An authorized representative of the UPA, who in
the course of conducting an inspection, detects a minor violation,
shall take an enforcement action as to the minor violation only in
accordance with this section.
(2) In any proceeding concerning an enforcement action taken
pursuant to this section, there shall be a rebuttable presumption
upholding the determination made by the UPA regarding whether the
violation is a minor violation.
(b) A notice to comply shall be the only means by which a UPA may
cite a minor violation, unless the person cited fails to correct the
violation or fails to submit the certification of correction within
the time period prescribed in the notice, in which case the UPA may
take any enforcement action, including imposing a penalty, as
authorized by this chapter.
(c) (1) A person who receives a notice to comply detailing a minor
violation shall have not more than 30 days from the date of the
notice to comply in which to correct any violation cited in the
notice to comply. Within five working days of correcting the
violation, the person cited or an authorized representative shall
sign the notice to comply, certifying that any violation has been
corrected, and return the notice to the UPA.
(2) A false certification that a violation has been corrected is
punishable as a misdemeanor.
(3) The effective date of the certification that any violation has
been corrected shall be the date that it is postmarked.
(d) If a notice to comply is issued, a single notice to comply
shall be issued for all minor violations noted during the inspection,
and the notice to comply shall list all of the minor violations and
the manner in which each of the minor violations may be brought into
compliance.
(e) If a person who receives a notice to comply pursuant to
subdivision (a) disagrees with one or more of the alleged violations
listed on the notice to comply, the person shall provide the UPA a
written notice of disagreement along with the returned signed notice
to comply. If the person disagrees with all of the alleged
violations, the written notice of disagreement shall be returned in
lieu of the signed certification of correction within 30 days of the
date of issuance of the notice to comply. If the issuing agency takes
administrative enforcement action on the basis of the disputed
violation, that action may be appealed in the same manner as any
other alleged violation under Section 25404.1.1.
(f) This section may not be construed as doing any of the
following:
(1) Preventing the reinspection of a facility to ensure compliance
with this chapter or to ensure that minor violations cited in a
notice to comply have been corrected and that the facility is in
compliance with those laws and regulations within the jurisdiction of
the UPA.
(2) Preventing the UPA from requiring a person to submit necessary
documentation needed to support the person's claim of compliance
pursuant to subdivision (c).
(3) Restricting the power of a city attorney, district attorney,
county counsel, or the Attorney General to bring, in the name of the
people of California, any criminal proceeding otherwise authorized by
law.
(4) Preventing the UPA from cooperating with, or participating in,
a proceeding specified in paragraph (3).
25404.1.3. (a) A unified program agency may apply to the clerk of
the appropriate court for a judgment to collect an administrative
penalty for an administrative order or decision that has become final
pursuant to subdivision (d) or (f) of Section 25404.1.1 and imposes
a penalty pursuant to Section 25401.1.1, if a petition for judicial
review of the final order or decision has not been filed within the
time limits prescribed in Section 11523 of the Government Code.
(b) The UPA's application to the court clerk shall include a
certified copy of the final administrative order or decision that
copy of the order or decision constitutes a sufficient showing to
warrant issuance of the judgment. The court clerk shall enter the
judgment immediately in conformity with the application. The judgment
has the same force and effect as, and is subject to all the
provisions of law relating to, a judgment in a civil action, and may
be enforced in the same manner as any other judgment of the court in
which it is entered.
25404.2. (a) The unified program agencies in each jurisdiction
shall do all of the following:
(1) (A) The certified unified program agency shall develop and
implement a procedure for issuing, to a unified program facility, a
unified program facility permit which would replace any permit
required by Section 25284 and any permit or authorization required
under any local ordinance or regulation relating to the generation or
handling of hazardous waste or hazardous materials, but which would
not replace a permit issued pursuant to a local ordinance which
incorporates provisions of the Uniform Fire Code and Uniform Building
Code.
(B) The unified program facility permit, and, if applicable, an
authorization to operate pursuant to a permit-by-rule, conditional
authorization, or conditional exemption, pursuant to Chapter 6.5
(commencing with Section 25100) or the regulations adopted by the
department, are the only grants of authorization required under the
unified program elements specified in subdivision (c) of Section
25404.
(C) The unified program agencies shall enforce the elements of a
unified program facility permit in the same manner as the permits
replaced by the unified program facility permit would be enforced.
(D) If a unified program facility is operating pursuant to the
applicable grants of authorization which would otherwise be included
in a unified program facility permit for the activities in which the
facility is engaged, the unified program agencies shall not require
that unified program facility to obtain a unified program facility
permit as a condition of operating pursuant to the unified program
elements specified in subdivision (c) of Section 25404 and any permit
or authorization required under any local ordinance or regulation
relating to the generation or handling of hazardous waste or
hazardous materials.
(E) This subparagraph applies to unified program facilities which
have existing, not yet expired, grants of authorization for some, but
not all, of the authorization requirements encompassed in the
unified program facility permit. When issuing a unified program
facility permit to such a unified program facility, the unified
program agency shall incorporate, by reference, into the unified
program facility permit any of the facility's existing, not yet
expired, grants of authorization.
(2) To the maximum extent feasible within statutory constraints,
the certified unified program agency, in conjunction with
participating agencies, shall consolidate, coordinate, and make
consistent any local or regional regulations, ordinances,
requirements, or guidance documents related to the implementation of
the provisions specified in subdivision (c) of Section 25404 or
pursuant to any regional or local ordinance or regulation pertaining
to hazardous waste or hazardous materials. This paragraph does not
affect the authority of a unified program agency with regard to the
preemption of the unified program agency's authority under state law.
(3) The certified unified program agency, in conjunction with
participating agencies, shall develop and implement a single, unified
inspection and enforcement program to ensure coordinated, efficient,
and effective enforcement of the provisions specified in subdivision
(c) of Section 25404, and any local ordinance or regulation
pertaining to the handling of hazardous waste or hazardous materials.
(4) The certified unified program agency, in conjunction with
participating agencies, shall coordinate, to the maximum extent
feasible, the single, unified inspection and enforcement program with
the inspection and enforcement program of other federal, state,
regional, and local agencies which affect facilities regulated by the
unified program. This paragraph does not prohibit the unified
program agencies, or any other agency, from conducting inspections,
or from undertaking any other enforcement-related activity, without
giving prior notice to the regulated entity, except where the prior
notice is otherwise required by law.
(b) An employee or authorized representative of a unified program
agency or a state agency acting pursuant to this chapter has the
authority specified in Section 25185, with respect to the premises of
a handler, and in Section 25185.5, with respect to real property
which is within 2,000 feet of the premises of a handler, except that
this authority shall include inspections concerning hazardous
material, in addition to hazardous waste.
(c) Each air quality management district or air pollution control
district, each publicly owned treatment works, and each office,
board, and department within the California Environmental Protection
Agency, shall coordinate, to the maximum extent feasible, those
aspects of its inspection and enforcement program which affect
facilities regulated by the unified program with the inspection and
enforcement programs of each certified unified program agency.
(d) The certified unified program agency, in conjunction with
participating agencies, may incorporate, as part of the unified
program within its jurisdiction, the implementation and enforcement
of laws which the unified program agencies are authorized to
implement and enforce, other than those specified in subdivision (c)
of Section 25404, if that incorporation will not impair the ability
of the unified program agencies to fully implement the requirements
of subdivision (a).
(e) (1) The withdrawal of an application for a unified program
facility permit after it has been filed with the unified program
agency shall not, unless the unified program agency consents in
writing to the withdrawal, deprive the unified program agencies of
their authority to institute or continue a proceeding against the
applicant for the denial of the unified program facility permit upon
any ground provided by law, and such a withdrawal shall not affect
the authority of the unified program agencies to institute or
continue a proceeding against the applicant pertaining to any
violation of the requirements specified in subdivision (c) of Section
25404 or of any local ordinance or regulation relating to the
generation or handling of hazardous waste or hazardous materials.
(2) The suspension, expiration, or forfeiture by operation of law
of a unified program facility permit, or its suspension, forfeiture,
or cancellation by the unified program agency or by order of a court,
or its surrender or attempted or actual transfer without the written
consent of the unified program agency shall not affect the authority
of the unified program agencies to institute or continue a
disciplinary proceeding against the holder of a unified program
facility permit upon any ground, or otherwise taking an action
against the holder of a unified program facility permit on these
grounds.
25404.3. (a) The secretary shall, within a reasonable time after
submission of a complete application for certification pursuant to
Section 25404.2, and regulations adopted pursuant to that section,
but not to exceed 180 days, review the application, and, after
holding a public hearing, determine if the application should be
approved. Before disapproving an application for certification, the
secretary shall submit to the applicant agency a notification of the
secretary's intent to disapprove the application, in which the
secretary shall specify the reasons why the applicant agency does not
have the capability or the resources to fully implement and enforce
the unified program in a manner that is consistent with the
regulations implementing the unified program adopted by the secretary
pursuant to this chapter. The secretary shall provide the applicant
agency with a reasonable time to respond to the reasons specified in
the notification and to correct deficiencies in its application. The
applicant agency may request a second public hearing, at which the
secretary shall hear the applicant agency's response to the reasons
specified in the notification.
(b) In determining whether an applicant agency should be
certified, or designated as certified, the secretary, after receiving
comments from the director, the Secretary of Emergency Management,
the State Fire Marshal, and the Executive Officers and Chairpersons
of the State Water Resources Control Board and the California
regional water quality control boards, shall consider at least all of
the following factors:
(1) Adequacy of the technical expertise possessed by each unified
program agency that will be implementing each element of the unified
program, including, but not limited to, whether the agency
responsible for implementing and enforcing the requirements of
Chapter 6.5 (commencing with Section 25100) satisfies the
requirements of Section 15260 of Title 27 of the California Code of
Regulations.
(2) Adequacy of staff resources.
(3) Adequacy of budget resources and funding mechanisms.
(4) Training requirements.
(5) Past performance in implementing and enforcing requirements
related to the handling of hazardous materials and hazardous waste.
(6) Recordkeeping and cost accounting systems.
(7) Compliance with the criteria in Section 15170 of Title 27 of
the California Code of Regulations.
(c) (1) In making the determination of whether or not to certify a
particular applicant agency as a certified unified program agency,
the secretary shall consider the applications of every other
applicant agency applying to be a certified unified program agency
within the same county, in order to determine the impact of each
certification decision on the county. If the secretary identifies
that there may be adverse impacts on the county if any particular
agency in a county is certified, the secretary shall work
cooperatively with each affected agency to address the secretary's
concerns.
(2) The secretary shall not certify an agency to be a certified
unified program agency unless the secretary finds both of the
following:
(A) The unified program will be implemented in a coordinated and
consistent manner throughout the entire county in which the applicant
agency is located.
(B) The administration of the unified program throughout the
entire county in which the applicant agency is located will be less
fragmented between jurisdictions, as compared to before January 1,
1994, with regard to the administration of the provisions specified
in subdivision (c) of Section 25404.
(d) (1) The secretary shall not certify an applicant agency that
proposes to allow participating agencies to implement certain
elements of the unified program unless the secretary makes all of the
following findings:
(A) The applicant agency has adequate authority, and has in place
adequate systems, protocols, and agreements, to ensure that the
actions of the other agencies proposed to implement certain elements
of the unified program are fully coordinated and consistent with each
other and with those of the applicant agency, and to ensure full
compliance with the regulations implementing the unified program
adopted by the secretary pursuant to this chapter.
(B) An agreement between the applicant and other agencies proposed
to implement any elements of the unified program contains procedures
for removing any agencies proposed and engaged to implement any
element of the unified program. The procedures in the agreement shall
include, at a minimum, provisions for providing notice, stating
causes, taking public comment, making appeals, and resolving
disputes.
(C) The other agencies proposed to implement certain elements of
the unified program have the capability and resources to implement
those elements, taking into account the factors designated in
subdivision (b).
(D) All other agencies proposed to implement certain elements of
the unified program shall maintain an agreement with the applicant
agency that ensures that the requirements of Section 25404.2 will be
fully implemented.
(E) If the applicant agency proposes that any agency other than
itself will be responsible for implementing aspects of the single fee
system imposed pursuant to Section 25404.5, the applicant agency
maintains an agreement with that agency that ensures that the fee
system is implemented in a fully consistent and coordinated manner,
and that ensures that each participating agency receives the amount
that it determines to constitute its necessary and reasonable costs
of implementing the element or elements of the unified program that
it is responsible for implementing.
(2) After the secretary has certified an applicant agency pursuant
to this subdivision, that agency shall obtain the approval of the
secretary before removing and replacing a participating agency that
is implementing an element of the unified program.
(3) Any state agency, including, but not limited to, the State
Department of Health Services, acting as a participating agency, may
contract with a unified program agency to implement or enforce the
unified program.
(e) Until a city's or county's application for certification to
implement the unified program is acted upon by the secretary, the
roles, responsibilities, and authority for implementing the programs
identified in subdivision (c) of Section 25404 that existed in that
city or county pursuant to statutory authorization as of December 31,
1993, shall remain in effect.
(f) (1) Except as provided in subparagraph (C) of paragraph (2) or
in Section 25404.8, if no local agency has been certified by January
1, 1997, to implement the unified program within a city, the
secretary shall designate either the county in which the city is
located or another agency pursuant to subparagraph (A) of paragraph
(2) as the unified program agency.
(2) (A) Except as provided in subparagraph (C), if no local agency
has been certified by January 1, 2001, to implement the unified
program within the unincorporated or an incorporated area of a
county, the secretary shall determine how the unified program shall
be implemented in the unincorporated area of the county, and in any
city in which there is no agency certified to implement the unified
program. In such an instance, the secretary shall work in
consultation with the county and cities to determine which state or
local agency or combination of state and local agencies should
implement the unified program, and shall determine which state or
local agency shall be designated as the certified unified program
agency.
(B) The secretary shall determine the method by which the unified
program shall be implemented throughout the county and may select any
combination of the following implementation methods:
(i) The certification of a state or local agency as a certified
unified program agency.
(ii) The certification of an agency from another county as the
certified unified program agency.
(iii) The certification of a joint powers agency as the certified
unified program agency.
(C) Notwithstanding paragraph (1) and subparagraphs (A) and (B),
if the Cities of Sunnyvale, Anaheim, and Santa Ana prevail in
litigation filed in 1997 against the secretary, and, to the extent
the secretary determines that these three cities meet the
requirements for certification, the secretary may certify these
cities as certified unified program agencies.
(g) (1) If a certified unified program agency wishes to withdraw
from its obligations to implement the unified program and is a city
or a joint powers agency implementing the unified program within a
city, the agency may withdraw after providing 180 days' notice to the
secretary and to the county within which the city is located, or to
the joint powers agency with which the county has an agreement to
implement the unified program.
(2) Whenever a certified unified program agency withdraws from its
obligations to implement the unified program, or the secretary
withdraws an agency's certification pursuant to Section 25404.4, the
successor certified unified program agency shall be determined in
accordance with subdivision (f).
25404.3.1. A city or other local agency, which, as of December 31,
1999, has been designated as an administering agency pursuant to
Section 25502, or has assumed responsibility for the implementation
of Chapter 6.7 (commencing with Section 25280) pursuant to Section
25283, and that wishes to administer the unified program or an
element of the unified program identified in subdivision (c) of
Section 25404, shall request the secretary to include the agency in
the implementation structure established by paragraph (2) of
subdivision (f) of Section 25404.3. The secretary may grant the
request for as long as the agency remains qualified to implement the
unified program or an element of the program.
25404.4. (a) (1) The secretary shall periodically review the
ability of each certified unified program agency to carry out this
chapter. In conducting this review, the secretary shall review both
the elements of each CUPA's enforcement program and the efficacy of
the program in ensuring compliance with the unified program's
requirements. If a certified unified program agency fails to meet its
obligations to adequately implement the unified program, the
secretary may withdraw the certified unified program agency's
certification, or may enter into a program improvement agreement with
the certified unified program agency to make the necessary
improvements. A certified unified program agency with which the
secretary has entered into a program improvement agreement may
continue to implement the unified program while the program
improvement agreement is in effect and the certified unified program
agency is in compliance with the agreement. If the secretary finds
that a CUPA has not met the enforcement performance standards adopted
pursuant to Section 25404.6 and the secretary enters into a program
improvement agreement with the CUPA, the agreement shall make the
improvement of enforcement the highest priority.
(2) Before withdrawing a certified unified program agency's
certification, the secretary shall submit to the certified unified
program agency a notification of the secretary's intent to withdraw
certification, in which the secretary shall specify the reasons why
the certified unified program agency has failed to meet its
obligations to adequately implement the unified program. The
secretary shall provide the certified unified program agency with a
reasonable time to respond to the reasons specified in the
notification and to correct the deficiencies specified in the
notification. The certified unified program agency may request a
public hearing, at which the secretary shall hear the agency's
response to the reasons specified in the notification.
(b) (1) If the secretary finds that a certified unified program
agency has failed to adequately enforce the requirements of the
unified program with respect to a particular facility, the secretary
may direct the appropriate state agency to take any necessary actions
and to issue necessary orders to the facility.
(2) If the secretary finds that the failure to adequately enforce
the requirements of the unified program may result in an imminent and
substantial endangerment to the environment or to the public health
and safety, the secretary shall direct the appropriate state agency
to take any necessary actions and to issue the necessary orders to
the facility.
(3) This chapter does not prevent any appropriate state agency
from issuing an order or taking any other action pursuant to state
law.
25404.5. (a) (1) Each certified unified program agency shall
institute a single fee system, which shall replace the fees levied
pursuant to Sections 25201.14 and 25205.14, except for transportable
treatment units permitted under Section 25200.2, and which shall also
replace any fees levied by a local agency pursuant to Sections
25143.10, 25287, 25513, and 25535.5, or any other fee levied by a
local agency specifically to fund the implementation of the
provisions specified in subdivision (c) of Section 25404. The single
fee system shall additionally include the fee established pursuant to
Section 25270.6. Notwithstanding Sections 25143.10, 25201.14, 25287,
25513, and 25535.5, a person who complies with the certified unified
program agency's "single fee system" fee shall not be required to
pay any fee levied pursuant to those sections, except for
transportable treatment units permitted under Section 25200.2.
(2) (A) The governing body of the local certified unified program
agency shall establish the amount to be paid by each person regulated
by the unified program under the single fee system at a level
sufficient to pay the necessary and reasonable costs incurred by the
certified unified program agency and by any participating agency
pursuant to the requirements of subparagraph (E) of paragraph (1) of
subdivision (d) of Section 25404.3.
(B) The secretary shall establish the amount to be paid when the
unified program agency is a state agency.
(3) The fee system may also be designed to recover the necessary
and reasonable costs incurred by the certified unified program
agency, or a participating agency pursuant to the requirements of
subparagraph (E) of paragraph (1) of subdivision (d) of Section
25404.3, in administering provisions other than those specified in
subdivision (c) of Section 25404, if the implementation and
enforcement of those provisions has been incorporated as part of the
unified program by the certified unified program agency pursuant to
subdivision (b) of Section 25404.2, and if the single fee system
replaces any fees levied as of January 1, 1994, to fund the
implementation of those additional provisions.
(4) The amount to be paid by a person regulated by the unified
program may be adjusted to account for the differing costs of
administering the unified program with respect to that person's
regulated activities.
(b) (1) Except as provided in subdivision (d), the single fee
system instituted by each certified unified program agency shall
include an assessment on each person regulated by the unified program
of a surcharge, the amount of which shall be determined by the
secretary annually, to cover the necessary and reasonable costs of
the state agencies in carrying out their responsibilities under this
chapter. The secretary may adjust the amount of the surcharge to be
collected by different certified unified program agencies to reflect
the different costs incurred by the state agencies in supervising the
implementation of the unified program in different jurisdictions,
and in supervising the implementation of the unified program in those
jurisdictions for which the secretary has waived the assessment of
the surcharge pursuant to subdivision (d). The certified unified
program agency may itemize the amount of the surcharge on any bill,
invoice, or return that the agency sends to a person regulated by the
unified program. Each certified unified program agency shall
transmit all surcharge revenues collected to the secretary on a
quarterly basis. The surcharge shall be deposited in the Unified
Program Account, which is hereby created in the General Fund and
which may be expended, upon appropriation by the Legislature, by
state agencies for the purposes of implementing this chapter.
(2) On or before January 10, 2001, the secretary shall report to
the Legislature on whether the number of persons subject to
regulation by the unified program in any county is insufficient to
support the reasonable and necessary cost of operating the unified
program using only the revenues from the fee. The secretary's report
shall consider whether the surcharge required by subdivision (a)
should include an assessment to be used to supplement the funding of
unified program agencies that have a limited number of entities
regulated under the unified program.
(c) Each certified unified program agency and the secretary shall,
before the institution of the single fee system and the assessment
of the surcharge, implement a fee accountability program designed to
encourage more efficient and cost-effective operation of the program
for which the single fee and surcharge are assessed. The fee
accountability programs shall include those elements of the
requirements of the plan adopted pursuant to former Section 25206, as
it read on January 1, 1995, that the secretary determines are
appropriate.
(d) The secretary may waive the requirement for a county to assess
a surcharge pursuant to subdivision (b), if both of the following
conditions apply:
(1) The county meets all of the following conditions:
(A) The county submits an application to the secretary for
certification on or before January 1, 1996, that incorporates all of
the requirements of this chapter, and includes the county's request
for a waiver of the surcharge, and contains documentation that
demonstrates, to the satisfaction of the secretary, both of the
following:
(i) That the assessment of the surcharge will impose a significant
economic burden on most businesses within the county.
(ii) That the combined dollar amount of the surcharge and the
single fee system to be assessed by the county pursuant to
subdivision (a) exceeds the combined dollar amount of all existing
fees that are replaced by the single fee system for most businesses
within the county.
(B) The application for certification, including the information
required by subparagraph (A), is determined by the secretary to be
complete, on or before April 30, 1996. The secretary, for good cause,
may grant an extension of that deadline of up to 90 days.
(C) The county is certified by the secretary on or before December
31, 1996.
(D) On or before January 1, 1994, the county completed the
consolidation of the administration of the hazardous waste generator
program, the hazardous materials release response plans and
inventories program, and the underground storage tank program,
referenced in paragraphs (1), (3), and (4) of subdivision (c) of
Section 25404, into a single program within the county's
jurisdiction.
(E) The county demonstrates that it will consolidate the
administration of all programs specified in subdivision (c) of
Section 25404, and that it will also consolidate the administration
of at least one additional program that regulates hazardous waste,
hazardous substances, or hazardous materials, as specified in
subdivision (d) of Section 25404.2, other than the programs specified
in subdivision (c) of Section 25404, into a single program to be
administered by a single agency in the county's jurisdiction at the
time that the county's certification by the secretary becomes
effective.
(2) The secretary makes all of the following findings:
(A) The county meets all of the criteria specified in paragraph
(1).
(B) The assessment of the surcharge would impose a significant
economic burden on most businesses within the county.
(C) The combined dollar amount of the surcharge and the single fee
system to be assessed by the county pursuant to subdivision (a)
would exceed the combined dollar amount of all existing fees that are
replaced by the single fee system for most businesses within the
county.
(D) The waiver of the surcharge for those counties applying for
and qualifying for a waiver, and the resulting increase in the
surcharge for other counties, would not, when considered
cumulatively, impose a significant economic burden on businesses in
any other county that does not apply for, or does not meet the
criteria for, a waiver of the surcharge.
(e) The secretary shall review all of the requests for a waiver of
the surcharge made pursuant to subdivision (d) simultaneously, so as
to adequately assess the cumulative impact of granting the requested
waivers on businesses in those counties that have not applied, or do
not qualify, for a waiver, and shall grant or deny all requests for
a waiver of the surcharge within 30 days from the date that the
secretary certifies all counties applying, and qualifying, for a
waiver. If the secretary finds that the grant of a waiver of the
surcharge for all counties applying and qualifying for the waiver
will impose a significant economic burden on businesses in one or
more other counties, the secretary shall take either of the following
actions:
(1) Deny all of the applications for a waiver of the surcharge.
(2) Approve only a portion of the waiver requests for counties
meeting the criteria set forth in subdivision (d), to the extent that
the approved waivers, when taken as a whole, meet the condition
specified in subparagraph (D) of paragraph (2) of subdivision (d). In
determining which of the counties' waiver requests to grant, the
secretary shall consider all of the following factors:
(A) The relative degree to which the assessment of the surcharge
will impose a significant economic burden on most businesses within
each county applying and qualifying for a waiver.
(B) The relative degree to which the combined dollar amount of the
surcharge and the single fee system to be assessed, pursuant to
subdivision (a), by each county applying and qualifying for a waiver
exceeds the combined dollar amount of all existing fees that are
replaced by the single fee system for most businesses within the
county.
(C) The relative extent to which each county applying and
qualifying for a waiver has incorporated, or will incorporate, upon
certification, additional programs pursuant to subdivision (d) of
Section 25404.2, into the unified program within the county's
jurisdiction.
(f) The secretary may, at any time, terminate a county's waiver of
the surcharge granted pursuant to subdivisions (d) and (e) if the
secretary determines that the criteria specified in subdivision (d)
for the grant of a waiver are no longer met.
25404.6. (a) The secretary may immediately implement those aspects
of the unified program which do not require statutory changes. If the
secretary determines that statutory changes are needed to fully
implement the program, the secretary shall recommend those changes to
the Legislature on or before March 1, 1995, so that the changes, if
approved by the Legislature, can be implemented as part of the
program by January 1, 1996.
(b) The secretary shall work in close consultation with the
Environmental Protection Agency, and shall implement this chapter
only to the e
25404. (a) For purposes of this chapter, the following terms shall
have the following meanings:
(1) (A) "Certified Unified Program Agency" or "CUPA" means the
agency certified by the secretary to implement the unified program
specified in this chapter within a jurisdiction.
(B) "Participating Agency" or "PA" means a state or local agency
that has a written agreement with the CUPA pursuant to subdivision
(d) of Section 25404.3, and is approved by the secretary, to
implement or enforce one or more of the unified program elements
specified in subdivision (c), in accordance with Sections 25404.1 and
25404.2.
(C) "Unified Program Agency" or "UPA" means the CUPA, or its
participating agencies to the extent each PA has been designated by
the CUPA, pursuant to a written agreement, to implement or enforce a
particular unified program element specified in subdivision (c). The
UPAs have the responsibility and authority to implement and enforce
the requirements listed in subdivision (c), and the regulations
adopted to implement the requirements listed in subdivision (c), to
the extent provided by Chapter 6.5 (commencing with Section 25100),
Chapter 6.67 (commencing with Section 25270), Chapter 6.7 (commencing
with Section 25280), Chapter 6.95 (commencing with Section 25500),
and Sections 25404.1 and 25404.2. After a CUPA has been certified by
the secretary, the unified program agencies and the state agencies
carrying out responsibilities under this chapter shall be the only
agencies authorized to enforce the requirements listed in subdivision
(c) within the jurisdiction of the CUPA.
(2) "Department" means the Department of Toxic Substances Control.
(3) "Minor violation" means the failure of a person to comply with
a requirement or condition of an applicable law, regulation, permit,
information request, order, variance, or other requirement, whether
procedural or substantive, of the unified program that the UPA is
authorized to implement or enforce pursuant to this chapter, and that
does not otherwise include any of the following:
(A) A violation that results in injury to persons or property, or
that presents a significant threat to human health or the
environment.
(B) A knowing, willful, or intentional violation.
(C) A violation that is a chronic violation, or that is committed
by a recalcitrant violator. In determining whether a violation is
chronic or a violator is recalcitrant, the UPA shall consider whether
there is evidence indicating that the violator has engaged in a
pattern of neglect or disregard with respect to applicable regulatory
requirements.
(D) A violation that results in an emergency response from a
public safety agency.
(E) A violation that enables the violator to benefit economically
from the noncompliance, either by reduced costs or competitive
advantage.
(F) A class I violation as provided in Section 25117.6.
(G) A class II violation committed by a chronic or a recalcitrant
violator, as provided in Section 25117.6.
(H) A violation that hinders the ability of the UPA to determine
compliance with any other applicable local, state, or federal rule,
regulation, information request, order, variance, permit, or other
requirement.
(4) "Secretary" means the Secretary for Environmental Protection.
(5) "Unified program facility" means all contiguous land and
structures, other appurtenances, and improvements on the land that
are subject to the requirements listed in subdivision (c).
(6) "Unified program facility permit" means a permit issued
pursuant to this chapter. For the purposes of this chapter, a unified
program facility permit encompasses the permitting requirements of
Section 25284, and permit or authorization requirements under a local
ordinance or regulation relating to the generation or handling of
hazardous waste or hazardous materials, but does not encompass the
permitting requirements of a local ordinance that incorporates
provisions of the Uniform Fire Code or the Uniform Building Code.
(b) The secretary shall adopt implementing regulations and
implement a unified hazardous waste and hazardous materials
management regulatory program, which shall be known as the unified
program, after holding an appropriate number of public hearings
throughout the state. The unified program shall be developed in close
consultation with the director, the Secretary of California
Emergency Management, the State Fire Marshal, the executive officers
and chairpersons of the State Water Resources Control Board and the
California regional water quality control boards, the local health
officers, local fire services, and other appropriate officers of
interested local agencies, and affected businesses and interested
members of the public, including environmental organizations.
(c) The unified program shall consolidate the administration of
the following requirements and, to the maximum extent feasible within
statutory constraints, shall ensure the coordination and consistency
of any regulations adopted pursuant to those requirements:
(1) (A) Except as provided in subparagraphs (B) and (C), the
requirements of Chapter 6.5 (commencing with Section 25100), and the
regulations adopted by the department pursuant thereto, are
applicable to all of the following:
(i) Hazardous waste generators, persons operating pursuant to a
permit-by-rule, conditional authorization, or conditional exemption,
pursuant to Chapter 6.5 (commencing with Section 25100) or the
regulations adopted by the department.
(ii) Persons managing perchlorate materials.
(iii) Persons subject to Article 10.1 (commencing with Section
25211) of Chapter 6.5.
(B) The unified program shall not include the requirements of
paragraph (3) of subdivision (c) of Section 25200.3, the requirements
of Sections 25200.10 and 25200.14, and the authority to issue an
order under Sections 25187 and 25187.1, with regard to those portions
of a unified program facility that are subject to one of the
following:
(i) A corrective action order issued by the department pursuant to
Section 25187.
(ii) An order issued by the department pursuant to Chapter 6.8
(commencing with Section 25300) or Chapter 6.85 (commencing with
Section 25396).
(iii) A remedial action plan approved pursuant to Chapter 6.8
(commencing with Section 25300) or Chapter 6.85 (commencing with
Section 25396).
(iv) A cleanup and abatement order issued by a California regional
water quality control board pursuant to Section 13304 of the Water
Code, to the extent that the cleanup and abatement order addresses
the requirements of the applicable section or sections listed in this
subparagraph.
(v) Corrective action required under subsection (u) of Section
6924 of Title 42 of the United States Code or subsection (h) of
Section 6928 of Title 42 of the United States Code.
(vi) An environmental assessment pursuant to Section 25200.14 or a
corrective action pursuant to Section 25200.10 or paragraph (3) of
subdivision (c) of Section 25200.3, that is being overseen by the
department.
(C) The unified program shall not include the requirements of
Chapter 6.5 (commencing with Section 25100), and the regulations
adopted by the department pursuant thereto, applicable to persons
operating transportable treatment units, except that any required
notice regarding transportable treatment units shall also be provided
to the CUPAs.
(2) The requirements of Chapter 6.67 (commencing with Section
25270) concerning aboveground storage tanks.
(3) (A) Except as provided in subparagraphs (B) and (C), the
requirements of Chapter 6.7 (commencing with Section 25280)
concerning underground storage tanks and the requirements of any
underground storage tank ordinance adopted by a city or county.
(B) The unified program shall not include the responsibilities
assigned to the State Water Resources Control Board pursuant to
Section 25297.1.
(C) The unified program shall not include the corrective action
requirements of Sections 25296.10 to 25296.40, inclusive.
(4) The requirements of Article 1 (commencing with Section 25500)
of Chapter 6.95 concerning hazardous material release response plans
and inventories.
(5) The requirements of Article 2 (commencing with Section 25531)
of Chapter 6.95, concerning the accidental release prevention
program.
(6) The requirements of subdivisions (b) and (c) of Section 80.103
of the Uniform Fire Code, as adopted by the State Fire Marshal
pursuant to Section 13143.9 concerning hazardous material management
plans and inventories.
(d) To the maximum extent feasible within statutory constraints,
the secretary shall consolidate, coordinate, and make consistent
these requirements of the unified program with other requirements
imposed by other federal, state, regional, or local agencies upon
facilities regulated by the unified program.
(e) (1) The secretary shall establish standards applicable to
CUPAs, participating agencies, state agencies, and businesses
specifying the data to be collected and submitted by unified program
agencies in administering the programs listed in subdivision (c).
Those standards shall incorporate any standard developed under
Section 25503.3.
(2) (A) No later than January 1, 2010, the secretary shall
establish a statewide information management system capable of
receiving all data collected by the unified program agencies and
reported by regulated businesses pursuant to this subdivision and
Section 25504.1, in a manner that is most cost efficient and
effective for both the regulated businesses and state and local
agencies. The secretary shall prescribe an XML or other compatible
Web-based format for the transfer of data from CUPAs and regulated
businesses and make all nonconfidential data available on the
Internet.
(B) The secretary shall establish milestones to measure the
implementation of the statewide information management system and
shall provide periodic status updates to interested parties.
(3) (A) (i) Except as provided in subparagraph (B), in addition to
any other funding that becomes available, the secretary shall
increase the oversight surcharge provided for in subdivision (b) of
Section 25404.5 by an amount necessary to meet the requirements of
this subdivision for a period of three years, to establish the
statewide information management system, consistent with paragraph
(2). The increase in the oversight surcharge shall not exceed
twenty-five dollars ($25) in any one year of the three-year period.
The secretary shall thereafter maintain the statewide information
management system, funded by the assessment the secretary is
authorized to impose pursuant to Section 25404.5.
(ii) No less than 75 percent of the additional funding raised
pursuant to clause (i) shall be provided to CUPAs and PAs through
grant funds or statewide contract services, in the amounts determined
by the secretary to assist these local agencies in meeting these
information management system requirements.
(B) A facility that is owned or operated by the federal government
and that is subject to the unified program shall pay the surcharge
required by this paragraph to the extent authorized by federal law.
(C) The secretary, or one or more of the boards, departments, or
offices within the California Environmental Protection Agency, shall
seek available federal funding for purposes of implementing this
subdivision.
(4) No later than three years after the statewide information
management system is established, each CUPA, PA, and regulated
business shall report program data electronically. The secretary
shall work with the CUPAs to develop a phased in schedule for the
electronic collection and submittal of information to be included in
the statewide information management system, giving first priority to
information relating to those chemicals determined by the secretary
to be of greatest concern. The secretary, in making this
determination shall consult with the CUPAs, the California Emergency
Management Agency, the State Fire Marshal, and the boards,
departments, and offices within the California Environmental
Protection Agency. The information initially included in the
statewide information management system shall include, but is not
limited to, the hazardous materials inventory information required to
be submitted pursuant to Section 25504.1 for perchlorate materials.
(5) The secretary, in collaboration with the CUPAs, shall provide
technical assistance to regulated businesses to comply with the
electronic reporting requirements and may expend funds identified in
clause (i) of subparagraph (A) of paragraph (3) for that purpose.
25404.1. (a) (1) All aspects of the unified program related to the
adoption and interpretation of statewide standards and requirements
shall be the responsibility of the state agency which is charged with
that responsibility under existing law. For underground storage
tanks, that agency shall be the State Water Resources Control Board.
The California regional water quality control boards shall have
responsibility for the issuance of variances pursuant to subdivision
(b) of Section 25299.4. The Department of Toxic Substances Control
shall have the sole responsibility for the issuances of variances
from the requirements of Chapter 6.5 (commencing with Section 25100)
and the regulations adopted pursuant thereto, for the determination
of whether or not a waste is hazardous or nonhazardous, for the
determination of whether or not a person is eligible to be deemed to
be operating pursuant to a permit-by-rule, conditional authorization,
or conditional exemption pursuant to Chapter 6.5 (commencing with
Section 25100) or the regulations adopted by the department, and for
the suspension and revocation of permits-by-rule, conditional
authorizations, and conditional exemptions.
(2) Except as provided in paragraphs (1) and (3), those aspects of
the unified program related to the application of statewide
standards to particular facilities, including the issuance of unified
program facility permits, the review of reports and plans,
environmental assessment, compliance and correction, and the
enforcement of those standards and requirements against particular
facilities, shall be the responsibility of the unified program
agencies.
(3) (A) Except in those jurisdictions for which the UPA has been
determined by the department, in accordance with regulations adopted
pursuant to subparagraph (C), to be qualified to implement the
environmental assessment and removal and remediation corrective
action aspects of the unified program, the department shall have sole
responsibility and authority under the unified program for all of
the following:
(i) Implementing and enforcing the requirements of paragraph (3)
of subdivision (c) of Section 25200.3 and Sections 25200.10 and
25200.14, and the regulations adopted by the department to implement
those sections. As a pilot program in up to 10 counties, pending the
adoption and implementation of regulations pursuant to subparagraph
(C), the department may delegate to the CUPA, through a delegation
agreement, responsibility and authority for implementing and
enforcing the requirements of Section 25200.14.
(ii) The issuance of orders under Section 25187 requiring removal
or remedial action.
(iii) The issuance of orders under Section 25187.1.
(B) Notwithstanding subparagraph (A), a UPA may issue an order
under Section 25187 specifying a schedule for compliance or
correction and imposing an administrative penalty for any violation
of the requirements of Chapter 6.5 (commencing with Section 25100)
listed in paragraph (1) of subdivision (c) of Section 25404, or the
requirements of any permit, rule, regulation, standard or requirement
issued or adopted pursuant to the requirements of Chapter 6.5
(commencing with Section 25100) listed in paragraph (1) of
subdivision (c) of Section 25404, if one of the following applies:
(i) The order does not require removal or remedial action.
(ii) The only removal or remedial actions required by the order
are those actions determined to be necessary to address an imminent
and substantial endangerment based upon a finding by the UPA pursuant
to subdivision (f) of Section 25187.
(C) The department shall adopt emergency regulations specifying
the criteria and procedures for implementing paragraph (3) of
subdivision (c) of Section 25200.3 and Sections 25200.10 and
25200.14, including criteria and procedures for determining whether
or not a unified program agency is qualified to implement the
environmental assessment and removal and remediation corrective
action portions of the unified program under paragraph (3) of
subdivision (c) of Section 25200.3 and Sections 25187, 25187.1,
25200.10, and 25200.14. The criteria for determining whether a
unified program agency is qualified shall, at a minimum, include
consideration of the following factors:
(i) Adequacy of the technical expertise possessed by the unified
program agency.
(ii) Adequacy of staff resources.
(iii) Adequacy of budget resources and funding mechanisms.
(iv) Training requirements.
(v) Past performance in implementing and enforcing requirements
related to environmental assessments, and removal and remediation
corrective actions.
(vi) Recordkeeping and accounting systems.
(D) The regulations adopted by the department pursuant to
subparagraph (C) shall include provisions to ensure coordinated and
consistent application of paragraph (3) of subdivision (c) of Section
25200.3 and Sections 25187, 25187.1, 25200.10, and 25200.14, when
both the department and the unified program agency are, or will be,
implementing and enforcing the requirements of one or more of these
sections at the same facility.
(E) For purposes of subparagraph (D), "facility" means the entire
site that is under the control of the owner or operator.
(F) If the department is designated as a unified program agency,
the department is deemed qualified to implement all of the following:
(i) The environmental assessment, removal and remedial action, and
corrective action aspects of the unified program.
(ii) Paragraph (3) of subdivision (c) of Section 25300.3, Sections
25200.10, 25200.14, 25187, and 25287.1, and the regulations adopted
by the department to implement those provisions.
(b) (1) On or before January 1, 1996, each county shall apply to
the secretary to be certified as a unified program agency to
implement the unified program within the unincorporated area of the
county and within each city in the county, in which area or city, as
of January 1, 1996, the city or other local agency has not applied to
be the certified unified program agency.
(2) (A) Any city or other local agency which, as of December 31,
1995, has been designated as an administering agency pursuant to
Section 25502, or which has assumed responsibility for the
implementation of Chapter 6.7 (commencing with Section 25280)
pursuant to Section 25283, may apply to the secretary to become the
certified unified program agency to implement the unified program
within the jurisdictional boundaries of the city or local agency.
(B) A city or other local agency which, as of December 31, 1995,
has not been designated as an administering agency pursuant to
Section 25502, or which has not assumed responsibility for the
implementation of Chapter 6.7 (commencing with Section 25280)
pursuant to Section 25283, may apply to the secretary to become the
certified unified program agency within the jurisdictional boundaries
of the city or local agency if it enters into an agreement with the
county to become the certified unified program agency within those
boundaries. A county shall not refuse to enter into an agreement
unless it specifies in writing its reasons for failing to enter into
the agreement. However, if the city does not enter into the agreement
with the county, within 30 days of receiving a county's reasons for
failing to enter into agreement, a city may request that the
secretary allow it to apply to be a certified unified program agency
and the secretary may, in his or her discretion, approve the request.
(3) A city, county, or other local agency may propose, in its
application for certification to the secretary, to allow other public
agencies to implement certain elements of the unified program, but
the secretary shall accept that proposal only if the secretary makes
the findings specified in subdivision (d) of Section 25404.3.
(4) If a city or other local agency which, as of December 31,
1995, has been designated as an administering agency pursuant to
Section 25502, or has assumed responsibility for the implementation
of Chapter 6.7 (commencing with Section 25280) pursuant to Section
25283, requests that the county propose in its application for
certification to the secretary that the city or local agency
implement, within the jurisdictional boundaries of the city or local
agency, those elements of the unified program which, as of December
31, 1995, the city or local agency has authority to administer, the
county shall grant that request. If such an agency is subsequently
removed or withdraws from the unified program, the agency shall not
act as an administering agency under Section 25502 or act as a local
agency pursuant to Chapter 6.7 (commencing with Section 25280),
except as provided in subdivision (c) of Section 25283.
25404.1.1. (a) If the unified program agency determines that a
person has committed, or is committing, a violation of any law,
regulation, permit, information request, order, variance, or other
requirement that the UPA is authorized to enforce or implement
pursuant to this chapter, the UPA may issue an administrative
enforcement order requiring that the violation be corrected and
imposing an administrative penalty, in accordance with the following:
(1) Except as provided in paragraph (5), if the order is for a
violation of Chapter 6.5 (commencing with Section 25100), the
violator shall be subject to the applicable administrative penalties
provided by that chapter.
(2) If the order is for a violation of Chapter 6.7 (commencing
with Section 25280), the violator shall be subject to the applicable
civil penalties provided in subdivisions (a), (b), (c), and (e) of
Section 25299.
(3) If the order is for a violation of Article 1 (commencing with
Section 25500) of Chapter 6.95, the violator shall be subject to a
penalty that is consistent with the administrative penalties imposed
pursuant to Section 25514.5.
(4) If the order is for a violation of Article 2 (commencing with
Section 25531) of Chapter 6.95, the violator shall be subject to a
penalty that is consistent with the administrative penalties imposed
pursuant to Section 25540 or 25540.5.
(5) If the order is for a violation of Section 25270.4.5, the
violator shall be liable for a penalty of not more than five thousand
dollars ($5,000) for each day on which the violation continues. If
the violator commits a second or subsequent violation, a penalty of
not more than ten thousand dollars ($10,000) for each day on which
the violation continues may be imposed.
(b) In establishing a penalty amount and ordering that the
violation be corrected pursuant to this section, the UPA 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
penalty, and the deterrent effect that the imposition of the penalty
would have on both the violator and the regulated community.
(c) Any order issued pursuant to this section shall be served by
personal service or certified mail and shall inform the person served
of the right to a hearing. If the UPA issues an order pursuant to
this section, the order shall state whether the hearing procedure
specified in paragraph (2) of subdivision (e) may be requested by the
person receiving the order.
(d) Any person served with an order pursuant to this section who
has been unable to resolve any violation with the UPA, may within 15
days after service of the order, request a hearing pursuant to
subdivision (e) by filing with the UPA a notice of defense. The
notice shall be filed with the office that issued the order. A notice
of defense shall be deemed filed within the 15-day period provided
by this subdivision if it is postmarked within that 15-day period. If
no notice of defense is filed within the time limits provided by
this subdivision, the order shall become final.
(e) Except as provided in subparagraph (B) of paragraph (2), a
person requesting a hearing on an order issued by the UPA under this
section may select the hearing officer specified in either paragraph
(1) or (2) in the notice of defense filed with the UPA pursuant to
subdivision (d). If a notice of defense is filed but no hearing
officer is selected, the UPA may select the hearing officer. Within
90 days of receipt of the notice of defense by the UPA, the hearing
shall be scheduled using one of the following:
(1) An administrative law judge of the Office of Administrative
Hearings of the Department of General Services, who shall conduct the
hearing in accordance with Chapter 4.5 (commencing with Section
11400) of Part 1 of Division 3 of Title 2 of the Government Code, and
the UPA shall have all the authority granted to an agency by those
provisions.
(2) (A) A hearing officer designated by the UPA, who shall conduct
the hearing in accordance with Chapter 4.5 (commencing with Section
11400) of Part 1 of Division 3 of Title 2 of the Government Code, and
the UPA shall have all the authority granted to an agency by those
provisions. When a hearing is conducted by a UPA hearing officer
pursuant to this paragraph, the UPA shall issue a decision within 60
days after the hearing is conducted. Each hearing officer designated
by a UPA shall meet the requirements of Section 11425.30 of the
Government Code and any other applicable restriction.
(B) A UPA, or a person requesting a hearing on an order issued by
a UPA may select the hearing process specified in this paragraph in a
notice of defense filed pursuant to subdivision (d) only if the UPA
has, as of the date the order is issued pursuant to subdivision (c),
selected a designated hearing officer and established a program for
conducting a hearing in accordance with this paragraph.
(f) The hearing decision issued pursuant to paragraph (2) of
subdivision (e) shall be effective and final upon issuance by the
UPA. A copy of the decision shall be served by personal service or by
certified mail upon the party served with the order, or their
representative, if any.
(g) Any provision of an order issued under this section, except
the imposition of an administrative penalty, shall take effect upon
issuance by the UPA if the UPA finds that the violation or violations
of law associated with that provision may pose an imminent and
substantial endangerment to the public health or safety or the
environment. A request for a hearing shall not stay the effect of
that provision of the order pending a hearing decision. However, if
the UPA determines that any or all provisions of the order are so
related that the public health or safety or the environment can be
protected only by immediate compliance with the order as a whole, the
order as a whole, except the imposition of an administrative
penalty, shall take effect upon issuance by the UPA. A request for a
hearing shall not stay the effect of the order as a whole pending a
hearing decision.
(h) A decision issued pursuant to paragraph (2) of subdivision (e)
may be reviewed by a court pursuant to Section 11523 of the
Government Code. In all proceedings pursuant to this section, the
court shall uphold the decision of the UPA if the decision is based
upon substantial evidence in the record as a whole. The filing of a
petition for writ of mandate shall not stay any action required
pursuant to this chapter or the accrual of any penalties assessed
pursuant to this chapter. This subdivision does not prohibit the
court from granting any appropriate relief within its jurisdiction.
(i) All administrative penalties collected from actions brought by
a UPA pursuant to this section shall be paid to the UPA that imposed
the penalty, and shall be deposited into a special account that
shall be expended to fund the activities of the UPA in enforcing this
chapter.
(j) The UPA shall consult with the district attorney, county
counsel, or city attorney on the development of policies to be
followed in exercising the authority delegated pursuant to this
section as it relates to the authority of the UPA to issue orders.
(k) (1) A unified program agency may suspend or revoke any unified
program facility permit, or an element of a unified program facility
permit, for not paying the permit fee or a fine or penalty
associated with the permit in accordance with the procedures
specified in this subdivision.
(2) If a permittee does not comply with a written notice from the
unified program agency to the permittee to make the payments
specified in paragraph (1) by the required date provided in the
notice, the unified program agency may suspend or revoke the permit
or permit element. If the permit or permit element is suspended or
revoked, the permittee shall immediately discontinue operating that
facility or function of the facility to which the permit element
applies until the permit is reinstated or reissued.
(3) A permittee may request a hearing to appeal the suspension or
revocation of a permit or element of a permit pursuant to this
subdivision by requesting a hearing using the procedures provided in
subdivision (d).
(l) This section does not do any of the following:
(1) Otherwise affect the authority of a UPA to take any other
action authorized by any other provision of law, except the UPA shall
not require a person to pay a penalty pursuant to this section and
pursuant to a local ordinance for the same violation.
(2) Restrict the power of a city attorney, district attorney,
county counsel, or the Attorney General to bring, in the name of the
people of California, any criminal proceeding otherwise authorized by
law.
(3) Prevent the UPA from cooperating with, or participating in, a
proceeding specified in paragraph (2).
25404.1.2. (a) (1) An authorized representative of the UPA, who in
the course of conducting an inspection, detects a minor violation,
shall take an enforcement action as to the minor violation only in
accordance with this section.
(2) In any proceeding concerning an enforcement action taken
pursuant to this section, there shall be a rebuttable presumption
upholding the determination made by the UPA regarding whether the
violation is a minor violation.
(b) A notice to comply shall be the only means by which a UPA may
cite a minor violation, unless the person cited fails to correct the
violation or fails to submit the certification of correction within
the time period prescribed in the notice, in which case the UPA may
take any enforcement action, including imposing a penalty, as
authorized by this chapter.
(c) (1) A person who receives a notice to comply detailing a minor
violation shall have not more than 30 days from the date of the
notice to comply in which to correct any violation cited in the
notice to comply. Within five working days of correcting the
violation, the person cited or an authorized representative shall
sign the notice to comply, certifying that any violation has been
corrected, and return the notice to the UPA.
(2) A false certification that a violation has been corrected is
punishable as a misdemeanor.
(3) The effective date of the certification that any violation has
been corrected shall be the date that it is postmarked.
(d) If a notice to comply is issued, a single notice to comply
shall be issued for all minor violations noted during the inspection,
and the notice to comply shall list all of the minor violations and
the manner in which each of the minor violations may be brought into
compliance.
(e) If a person who receives a notice to comply pursuant to
subdivision (a) disagrees with one or more of the alleged violations
listed on the notice to comply, the person shall provide the UPA a
written notice of disagreement along with the returned signed notice
to comply. If the person disagrees with all of the alleged
violations, the written notice of disagreement shall be returned in
lieu of the signed certification of correction within 30 days of the
date of issuance of the notice to comply. If the issuing agency takes
administrative enforcement action on the basis of the disputed
violation, that action may be appealed in the same manner as any
other alleged violation under Section 25404.1.1.
(f) This section may not be construed as doing any of the
following:
(1) Preventing the reinspection of a facility to ensure compliance
with this chapter or to ensure that minor violations cited in a
notice to comply have been corrected and that the facility is in
compliance with those laws and regulations within the jurisdiction of
the UPA.
(2) Preventing the UPA from requiring a person to submit necessary
documentation needed to support the person's claim of compliance
pursuant to subdivision (c).
(3) Restricting the power of a city attorney, district attorney,
county counsel, or the Attorney General to bring, in the name of the
people of California, any criminal proceeding otherwise authorized by
law.
(4) Preventing the UPA from cooperating with, or participating in,
a proceeding specified in paragraph (3).
25404.1.3. (a) A unified program agency may apply to the clerk of
the appropriate court for a judgment to collect an administrative
penalty for an administrative order or decision that has become final
pursuant to subdivision (d) or (f) of Section 25404.1.1 and imposes
a penalty pursuant to Section 25401.1.1, if a petition for judicial
review of the final order or decision has not been filed within the
time limits prescribed in Section 11523 of the Government Code.
(b) The UPA's application to the court clerk shall include a
certified copy of the final administrative order or decision that
copy of the order or decision constitutes a sufficient showing to
warrant issuance of the judgment. The court clerk shall enter the
judgment immediately in conformity with the application. The judgment
has the same force and effect as, and is subject to all the
provisions of law relating to, a judgment in a civil action, and may
be enforced in the same manner as any other judgment of the court in
which it is entered.
25404.2. (a) The unified program agencies in each jurisdiction
shall do all of the following:
(1) (A) The certified unified program agency shall develop and
implement a procedure for issuing, to a unified program facility, a
unified program facility permit which would replace any permit
required by Section 25284 and any permit or authorization required
under any local ordinance or regulation relating to the generation or
handling of hazardous waste or hazardous materials, but which would
not replace a permit issued pursuant to a local ordinance which
incorporates provisions of the Uniform Fire Code and Uniform Building
Code.
(B) The unified program facility permit, and, if applicable, an
authorization to operate pursuant to a permit-by-rule, conditional
authorization, or conditional exemption, pursuant to Chapter 6.5
(commencing with Section 25100) or the regulations adopted by the
department, are the only grants of authorization required under the
unified program elements specified in subdivision (c) of Section
25404.
(C) The unified program agencies shall enforce the elements of a
unified program facility permit in the same manner as the permits
replaced by the unified program facility permit would be enforced.
(D) If a unified program facility is operating pursuant to the
applicable grants of authorization which would otherwise be included
in a unified program facility permit for the activities in which the
facility is engaged, the unified program agencies shall not require
that unified program facility to obtain a unified program facility
permit as a condition of operating pursuant to the unified program
elements specified in subdivision (c) of Section 25404 and any permit
or authorization required under any local ordinance or regulation
relating to the generation or handling of hazardous waste or
hazardous materials.
(E) This subparagraph applies to unified program facilities which
have existing, not yet expired, grants of authorization for some, but
not all, of the authorization requirements encompassed in the
unified program facility permit. When issuing a unified program
facility permit to such a unified program facility, the unified
program agency shall incorporate, by reference, into the unified
program facility permit any of the facility's existing, not yet
expired, grants of authorization.
(2) To the maximum extent feasible within statutory constraints,
the certified unified program agency, in conjunction with
participating agencies, shall consolidate, coordinate, and make
consistent any local or regional regulations, ordinances,
requirements, or guidance documents related to the implementation of
the provisions specified in subdivision (c) of Section 25404 or
pursuant to any regional or local ordinance or regulation pertaining
to hazardous waste or hazardous materials. This paragraph does not
affect the authority of a unified program agency with regard to the
preemption of the unified program agency's authority under state law.
(3) The certified unified program agency, in conjunction with
participating agencies, shall develop and implement a single, unified
inspection and enforcement program to ensure coordinated, efficient,
and effective enforcement of the provisions specified in subdivision
(c) of Section 25404, and any local ordinance or regulation
pertaining to the handling of hazardous waste or hazardous materials.
(4) The certified unified program agency, in conjunction with
participating agencies, shall coordinate, to the maximum extent
feasible, the single, unified inspection and enforcement program with
the inspection and enforcement program of other federal, state,
regional, and local agencies which affect facilities regulated by the
unified program. This paragraph does not prohibit the unified
program agencies, or any other agency, from conducting inspections,
or from undertaking any other enforcement-related activity, without
giving prior notice to the regulated entity, except where the prior
notice is otherwise required by law.
(b) An employee or authorized representative of a unified program
agency or a state agency acting pursuant to this chapter has the
authority specified in Section 25185, with respect to the premises of
a handler, and in Section 25185.5, with respect to real property
which is within 2,000 feet of the premises of a handler, except that
this authority shall include inspections concerning hazardous
material, in addition to hazardous waste.
(c) Each air quality management district or air pollution control
district, each publicly owned treatment works, and each office,
board, and department within the California Environmental Protection
Agency, shall coordinate, to the maximum extent feasible, those
aspects of its inspection and enforcement program which affect
facilities regulated by the unified program with the inspection and
enforcement programs of each certified unified program agency.
(d) The certified unified program agency, in conjunction with
participating agencies, may incorporate, as part of the unified
program within its jurisdiction, the implementation and enforcement
of laws which the unified program agencies are authorized to
implement and enforce, other than those specified in subdivision (c)
of Section 25404, if that incorporation will not impair the ability
of the unified program agencies to fully implement the requirements
of subdivision (a).
(e) (1) The withdrawal of an application for a unified program
facility permit after it has been filed with the unified program
agency shall not, unless the unified program agency consents in
writing to the withdrawal, deprive the unified program agencies of
their authority to institute or continue a proceeding against the
applicant for the denial of the unified program facility permit upon
any ground provided by law, and such a withdrawal shall not affect
the authority of the unified program agencies to institute or
continue a proceeding against the applicant pertaining to any
violation of the requirements specified in subdivision (c) of Section
25404 or of any local ordinance or regulation relating to the
generation or handling of hazardous waste or hazardous materials.
(2) The suspension, expiration, or forfeiture by operation of law
of a unified program facility permit, or its suspension, forfeiture,
or cancellation by the unified program agency or by order of a court,
or its surrender or attempted or actual transfer without the written
consent of the unified program agency shall not affect the authority
of the unified program agencies to institute or continue a
disciplinary proceeding against the holder of a unified program
facility permit upon any ground, or otherwise taking an action
against the holder of a unified program facility permit on these
grounds.
25404.3. (a) The secretary shall, within a reasonable time after
submission of a complete application for certification pursuant to
Section 25404.2, and regulations adopted pursuant to that section,
but not to exceed 180 days, review the application, and, after
holding a public hearing, determine if the application should be
approved. Before disapproving an application for certification, the
secretary shall submit to the applicant agency a notification of the
secretary's intent to disapprove the application, in which the
secretary shall specify the reasons why the applicant agency does not
have the capability or the resources to fully implement and enforce
the unified program in a manner that is consistent with the
regulations implementing the unified program adopted by the secretary
pursuant to this chapter. The secretary shall provide the applicant
agency with a reasonable time to respond to the reasons specified in
the notification and to correct deficiencies in its application. The
applicant agency may request a second public hearing, at which the
secretary shall hear the applicant agency's response to the reasons
specified in the notification.
(b) In determining whether an applicant agency should be
certified, or designated as certified, the secretary, after receiving
comments from the director, the Secretary of Emergency Management,
the State Fire Marshal, and the Executive Officers and Chairpersons
of the State Water Resources Control Board and the California
regional water quality control boards, shall consider at least all of
the following factors:
(1) Adequacy of the technical expertise possessed by each unified
program agency that will be implementing each element of the unified
program, including, but not limited to, whether the agency
responsible for implementing and enforcing the requirements of
Chapter 6.5 (commencing with Section 25100) satisfies the
requirements of Section 15260 of Title 27 of the California Code of
Regulations.
(2) Adequacy of staff resources.
(3) Adequacy of budget resources and funding mechanisms.
(4) Training requirements.
(5) Past performance in implementing and enforcing requirements
related to the handling of hazardous materials and hazardous waste.
(6) Recordkeeping and cost accounting systems.
(7) Compliance with the criteria in Section 15170 of Title 27 of
the California Code of Regulations.
(c) (1) In making the determination of whether or not to certify a
particular applicant agency as a certified unified program agency,
the secretary shall consider the applications of every other
applicant agency applying to be a certified unified program agency
within the same county, in order to determine the impact of each
certification decision on the county. If the secretary identifies
that there may be adverse impacts on the county if any particular
agency in a county is certified, the secretary shall work
cooperatively with each affected agency to address the secretary's
concerns.
(2) The secretary shall not certify an agency to be a certified
unified program agency unless the secretary finds both of the
following:
(A) The unified program will be implemented in a coordinated and
consistent manner throughout the entire county in which the applicant
agency is located.
(B) The administration of the unified program throughout the
entire county in which the applicant agency is located will be less
fragmented between jurisdictions, as compared to before January 1,
1994, with regard to the administration of the provisions specified
in subdivision (c) of Section 25404.
(d) (1) The secretary shall not certify an applicant agency that
proposes to allow participating agencies to implement certain
elements of the unified program unless the secretary makes all of the
following findings:
(A) The applicant agency has adequate authority, and has in place
adequate systems, protocols, and agreements, to ensure that the
actions of the other agencies proposed to implement certain elements
of the unified program are fully coordinated and consistent with each
other and with those of the applicant agency, and to ensure full
compliance with the regulations implementing the unified program
adopted by the secretary pursuant to this chapter.
(B) An agreement between the applicant and other agencies proposed
to implement any elements of the unified program contains procedures
for removing any agencies proposed and engaged to implement any
element of the unified program. The procedures in the agreement shall
include, at a minimum, provisions for providing notice, stating
causes, taking public comment, making appeals, and resolving
disputes.
(C) The other agencies proposed to implement certain elements of
the unified program have the capability and resources to implement
those elements, taking into account the factors designated in
subdivision (b).
(D) All other agencies proposed to implement certain elements of
the unified program shall maintain an agreement with the applicant
agency that ensures that the requirements of Section 25404.2 will be
fully implemented.
(E) If the applicant agency proposes that any agency other than
itself will be responsible for implementing aspects of the single fee
system imposed pursuant to Section 25404.5, the applicant agency
maintains an agreement with that agency that ensures that the fee
system is implemented in a fully consistent and coordinated manner,
and that ensures that each participating agency receives the amount
that it determines to constitute its necessary and reasonable costs
of implementing the element or elements of the unified program that
it is responsible for implementing.
(2) After the secretary has certified an applicant agency pursuant
to this subdivision, that agency shall obtain the approval of the
secretary before removing and replacing a participating agency that
is implementing an element of the unified program.
(3) Any state agency, including, but not limited to, the State
Department of Health Services, acting as a participating agency, may
contract with a unified program agency to implement or enforce the
unified program.
(e) Until a city's or county's application for certification to
implement the unified program is acted upon by the secretary, the
roles, responsibilities, and authority for implementing the programs
identified in subdivision (c) of Section 25404 that existed in that
city or county pursuant to statutory authorization as of December 31,
1993, shall remain in effect.
(f) (1) Except as provided in subparagraph (C) of paragraph (2) or
in Section 25404.8, if no local agency has been certified by January
1, 1997, to implement the unified program within a city, the
secretary shall designate either the county in which the city is
located or another agency pursuant to subparagraph (A) of paragraph
(2) as the unified program agency.
(2) (A) Except as provided in subparagraph (C), if no local agency
has been certified by January 1, 2001, to implement the unified
program within the unincorporated or an incorporated area of a
county, the secretary shall determine how the unified program shall
be implemented in the unincorporated area of the county, and in any
city in which there is no agency certified to implement the unified
program. In such an instance, the secretary shall work in
consultation with the county and cities to determine which state or
local agency or combination of state and local agencies should
implement the unified program, and shall determine which state or
local agency shall be designated as the certified unified program
agency.
(B) The secretary shall determine the method by which the unified
program shall be implemented throughout the county and may select any
combination of the following implementation methods:
(i) The certification of a state or local agency as a certified
unified program agency.
(ii) The certification of an agency from another county as the
certified unified program agency.
(iii) The certification of a joint powers agency as the certified
unified program agency.
(C) Notwithstanding paragraph (1) and subparagraphs (A) and (B),
if the Cities of Sunnyvale, Anaheim, and Santa Ana prevail in
litigation filed in 1997 against the secretary, and, to the extent
the secretary determines that these three cities meet the
requirements for certification, the secretary may certify these
cities as certified unified program agencies.
(g) (1) If a certified unified program agency wishes to withdraw
from its obligations to implement the unified program and is a city
or a joint powers agency implementing the unified program within a
city, the agency may withdraw after providing 180 days' notice to the
secretary and to the county within which the city is located, or to
the joint powers agency with which the county has an agreement to
implement the unified program.
(2) Whenever a certified unified program agency withdraws from its
obligations to implement the unified program, or the secretary
withdraws an agency's certification pursuant to Section 25404.4, the
successor certified unified program agency shall be determined in
accordance with subdivision (f).
25404.3.1. A city or other local agency, which, as of December 31,
1999, has been designated as an administering agency pursuant to
Section 25502, or has assumed responsibility for the implementation
of Chapter 6.7 (commencing with Section 25280) pursuant to Section
25283, and that wishes to administer the unified program or an
element of the unified program identified in subdivision (c) of
Section 25404, shall request the secretary to include the agency in
the implementation structure established by paragraph (2) of
subdivision (f) of Section 25404.3. The secretary may grant the
request for as long as the agency remains qualified to implement the
unified program or an element of the program.
25404.4. (a) (1) The secretary shall periodically review the
ability of each certified unified program agency to carry out this
chapter. In conducting this review, the secretary shall review both
the elements of each CUPA's enforcement program and the efficacy of
the program in ensuring compliance with the unified program's
requirements. If a certified unified program agency fails to meet its
obligations to adequately implement the unified program, the
secretary may withdraw the certified unified program agency's
certification, or may enter into a program improvement agreement with
the certified unified program agency to make the necessary
improvements. A certified unified program agency with which the
secretary has entered into a program improvement agreement may
continue to implement the unified program while the program
improvement agreement is in effect and the certified unified program
agency is in compliance with the agreement. If the secretary finds
that a CUPA has not met the enforcement performance standards adopted
pursuant to Section 25404.6 and the secretary enters into a program
improvement agreement with the CUPA, the agreement shall make the
improvement of enforcement the highest priority.
(2) Before withdrawing a certified unified program agency's
certification, the secretary shall submit to the certified unified
program agency a notification of the secretary's intent to withdraw
certification, in which the secretary shall specify the reasons why
the certified unified program agency has failed to meet its
obligations to adequately implement the unified program. The
secretary shall provide the certified unified program agency with a
reasonable time to respond to the reasons specified in the
notification and to correct the deficiencies specified in the
notification. The certified unified program agency may request a
public hearing, at which the secretary shall hear the agency's
response to the reasons specified in the notification.
(b) (1) If the secretary finds that a certified unified program
agency has failed to adequately enforce the requirements of the
unified program with respect to a particular facility, the secretary
may direct the appropriate state agency to take any necessary actions
and to issue necessary orders to the facility.
(2) If the secretary finds that the failure to adequately enforce
the requirements of the unified program may result in an imminent and
substantial endangerment to the environment or to the public health
and safety, the secretary shall direct the appropriate state agency
to take any necessary actions and to issue the necessary orders to
the facility.
(3) This chapter does not prevent any appropriate state agency
from issuing an order or taking any other action pursuant to state
law.
25404.5. (a) (1) Each certified unified program agency shall
institute a single fee system, which shall replace the fees levied
pursuant to Sections 25201.14 and 25205.14, except for transportable
treatment units permitted under Section 25200.2, and which shall also
replace any fees levied by a local agency pursuant to Sections
25143.10, 25287, 25513, and 25535.5, or any other fee levied by a
local agency specifically to fund the implementation of the
provisions specified in subdivision (c) of Section 25404. The single
fee system shall additionally include the fee established pursuant to
Section 25270.6. Notwithstanding Sections 25143.10, 25201.14, 25287,
25513, and 25535.5, a person who complies with the certified unified
program agency's "single fee system" fee shall not be required to
pay any fee levied pursuant to those sections, except for
transportable treatment units permitted under Section 25200.2.
(2) (A) The governing body of the local certified unified program
agency shall establish the amount to be paid by each person regulated
by the unified program under the single fee system at a level
sufficient to pay the necessary and reasonable costs incurred by the
certified unified program agency and by any participating agency
pursuant to the requirements of subparagraph (E) of paragraph (1) of
subdivision (d) of Section 25404.3.
(B) The secretary shall establish the amount to be paid when the
unified program agency is a state agency.
(3) The fee system may also be designed to recover the necessary
and reasonable costs incurred by the certified unified program
agency, or a participating agency pursuant to the requirements of
subparagraph (E) of paragraph (1) of subdivision (d) of Section
25404.3, in administering provisions other than those specified in
subdivision (c) of Section 25404, if the implementation and
enforcement of those provisions has been incorporated as part of the
unified program by the certified unified program agency pursuant to
subdivision (b) of Section 25404.2, and if the single fee system
replaces any fees levied as of January 1, 1994, to fund the
implementation of those additional provisions.
(4) The amount to be paid by a person regulated by the unified
program may be adjusted to account for the differing costs of
administering the unified program with respect to that person's
regulated activities.
(b) (1) Except as provided in subdivision (d), the single fee
system instituted by each certified unified program agency shall
include an assessment on each person regulated by the unified program
of a surcharge, the amount of which shall be determined by the
secretary annually, to cover the necessary and reasonable costs of
the state agencies in carrying out their responsibilities under this
chapter. The secretary may adjust the amount of the surcharge to be
collected by different certified unified program agencies to reflect
the different costs incurred by the state agencies in supervising the
implementation of the unified program in different jurisdictions,
and in supervising the implementation of the unified program in those
jurisdictions for which the secretary has waived the assessment of
the surcharge pursuant to subdivision (d). The certified unified
program agency may itemize the amount of the surcharge on any bill,
invoice, or return that the agency sends to a person regulated by the
unified program. Each certified unified program agency shall
transmit all surcharge revenues collected to the secretary on a
quarterly basis. The surcharge shall be deposited in the Unified
Program Account, which is hereby created in the General Fund and
which may be expended, upon appropriation by the Legislature, by
state agencies for the purposes of implementing this chapter.
(2) On or before January 10, 2001, the secretary shall report to
the Legislature on whether the number of persons subject to
regulation by the unified program in any county is insufficient to
support the reasonable and necessary cost of operating the unified
program using only the revenues from the fee. The secretary's report
shall consider whether the surcharge required by subdivision (a)
should include an assessment to be used to supplement the funding of
unified program agencies that have a limited number of entities
regulated under the unified program.
(c) Each certified unified program agency and the secretary shall,
before the institution of the single fee system and the assessment
of the surcharge, implement a fee accountability program designed to
encourage more efficient and cost-effective operation of the program
for which the single fee and surcharge are assessed. The fee
accountability programs shall include those elements of the
requirements of the plan adopted pursuant to former Section 25206, as
it read on January 1, 1995, that the secretary determines are
appropriate.
(d) The secretary may waive the requirement for a county to assess
a surcharge pursuant to subdivision (b), if both of the following
conditions apply:
(1) The county meets all of the following conditions:
(A) The county submits an application to the secretary for
certification on or before January 1, 1996, that incorporates all of
the requirements of this chapter, and includes the county's request
for a waiver of the surcharge, and contains documentation that
demonstrates, to the satisfaction of the secretary, both of the
following:
(i) That the assessment of the surcharge will impose a significant
economic burden on most businesses within the county.
(ii) That the combined dollar amount of the surcharge and the
single fee system to be assessed by the county pursuant to
subdivision (a) exceeds the combined dollar amount of all existing
fees that are replaced by the single fee system for most businesses
within the county.
(B) The application for certification, including the information
required by subparagraph (A), is determined by the secretary to be
complete, on or before April 30, 1996. The secretary, for good cause,
may grant an extension of that deadline of up to 90 days.
(C) The county is certified by the secretary on or before December
31, 1996.
(D) On or before January 1, 1994, the county completed the
consolidation of the administration of the hazardous waste generator
program, the hazardous materials release response plans and
inventories program, and the underground storage tank program,
referenced in paragraphs (1), (3), and (4) of subdivision (c) of
Section 25404, into a single program within the county's
jurisdiction.
(E) The county demonstrates that it will consolidate the
administration of all programs specified in subdivision (c) of
Section 25404, and that it will also consolidate the administration
of at least one additional program that regulates hazardous waste,
hazardous substances, or hazardous materials, as specified in
subdivision (d) of Section 25404.2, other than the programs specified
in subdivision (c) of Section 25404, into a single program to be
administered by a single agency in the county's jurisdiction at the
time that the county's certification by the secretary becomes
effective.
(2) The secretary makes all of the following findings:
(A) The county meets all of the criteria specified in paragraph
(1).
(B) The assessment of the surcharge would impose a significant
economic burden on most businesses within the county.
(C) The combined dollar amount of the surcharge and the single fee
system to be assessed by the county pursuant to subdivision (a)
would exceed the combined dollar amount of all existing fees that are
replaced by the single fee system for most businesses within the
county.
(D) The waiver of the surcharge for those counties applying for
and qualifying for a waiver, and the resulting increase in the
surcharge for other counties, would not, when considered
cumulatively, impose a significant economic burden on businesses in
any other county that does not apply for, or does not meet the
criteria for, a waiver of the surcharge.
(e) The secretary shall review all of the requests for a waiver of
the surcharge made pursuant to subdivision (d) simultaneously, so as
to adequately assess the cumulative impact of granting the requested
waivers on businesses in those counties that have not applied, or do
not qualify, for a waiver, and shall grant or deny all requests for
a waiver of the surcharge within 30 days from the date that the
secretary certifies all counties applying, and qualifying, for a
waiver. If the secretary finds that the grant of a waiver of the
surcharge for all counties applying and qualifying for the waiver
will impose a significant economic burden on businesses in one or
more other counties, the secretary shall take either of the following
actions:
(1) Deny all of the applications for a waiver of the surcharge.
(2) Approve only a portion of the waiver requests for counties
meeting the criteria set forth in subdivision (d), to the extent that
the approved waivers, when taken as a whole, meet the condition
specified in subparagraph (D) of paragraph (2) of subdivision (d). In
determining which of the counties' waiver requests to grant, the
secretary shall consider all of the following factors:
(A) The relative degree to which the assessment of the surcharge
will impose a significant economic burden on most businesses within
each county applying and qualifying for a waiver.
(B) The relative degree to which the combined dollar amount of the
surcharge and the single fee system to be assessed, pursuant to
subdivision (a), by each county applying and qualifying for a waiver
exceeds the combined dollar amount of all existing fees that are
replaced by the single fee system for most businesses within the
county.
(C) The relative extent to which each county applying and
qualifying for a waiver has incorporated, or will incorporate, upon
certification, additional programs pursuant to subdivision (d) of
Section 25404.2, into the unified program within the county's
jurisdiction.
(f) The secretary may, at any time, terminate a county's waiver of
the surcharge granted pursuant to subdivisions (d) and (e) if the
secretary determines that the criteria specified in subdivision (d)
for the grant of a waiver are no longer met.
25404.6. (a) The secretary may immediately implement those aspects
of the unified program which do not require statutory changes. If the
secretary determines that statutory changes are needed to fully
implement the program, the secretary shall recommend those changes to
the Legislature on or before March 1, 1995, so that the changes, if
approved by the Legislature, can be implemented as part of the
program by January 1, 1996.
(b) The secretary shall work in close consultation with the
Environmental Protection Agency, and shall implement this chapter
only to the e
25404. (a) For purposes of this chapter, the following terms shall
have the following meanings:
(1) (A) "Certified Unified Program Agency" or "CUPA" means the
agency certified by the secretary to implement the unified program
specified in this chapter within a jurisdiction.
(B) "Participating Agency" or "PA" means a state or local agency
that has a written agreement with the CUPA pursuant to subdivision
(d) of Section 25404.3, and is approved by the secretary, to
implement or enforce one or more of the unified program elements
specified in subdivision (c), in accordance with Sections 25404.1 and
25404.2.
(C) "Unified Program Agency" or "UPA" means the CUPA, or its
participating agencies to the extent each PA has been designated by
the CUPA, pursuant to a written agreement, to implement or enforce a
particular unified program element specified in subdivision (c). The
UPAs have the responsibility and authority to implement and enforce
the requirements listed in subdivision (c), and the regulations
adopted to implement the requirements listed in subdivision (c), to
the extent provided by Chapter 6.5 (commencing with Section 25100),
Chapter 6.67 (commencing with Section 25270), Chapter 6.7 (commencing
with Section 25280), Chapter 6.95 (commencing with Section 25500),
and Sections 25404.1 and 25404.2. After a CUPA has been certified by
the secretary, the unified program agencies and the state agencies
carrying out responsibilities under this chapter shall be the only
agencies authorized to enforce the requirements listed in subdivision
(c) within the jurisdiction of the CUPA.
(2) "Department" means the Department of Toxic Substances Control.
(3) "Minor violation" means the failure of a person to comply with
a requirement or condition of an applicable law, regulation, permit,
information request, order, variance, or other requirement, whether
procedural or substantive, of the unified program that the UPA is
authorized to implement or enforce pursuant to this chapter, and that
does not otherwise include any of the following:
(A) A violation that results in injury to persons or property, or
that presents a significant threat to human health or the
environment.
(B) A knowing, willful, or intentional violation.
(C) A violation that is a chronic violation, or that is committed
by a recalcitrant violator. In determining whether a violation is
chronic or a violator is recalcitrant, the UPA shall consider whether
there is evidence indicating that the violator has engaged in a
pattern of neglect or disregard with respect to applicable regulatory
requirements.
(D) A violation that results in an emergency response from a
public safety agency.
(E) A violation that enables the violator to benefit economically
from the noncompliance, either by reduced costs or competitive
advantage.
(F) A class I violation as provided in Section 25117.6.
(G) A class II violation committed by a chronic or a recalcitrant
violator, as provided in Section 25117.6.
(H) A violation that hinders the ability of the UPA to determine
compliance with any other applicable local, state, or federal rule,
regulation, information request, order, variance, permit, or other
requirement.
(4) "Secretary" means the Secretary for Environmental Protection.
(5) "Unified program facility" means all contiguous land and
structures, other appurtenances, and improvements on the land that
are subject to the requirements listed in subdivision (c).
(6) "Unified program facility permit" means a permit issued
pursuant to this chapter. For the purposes of this chapter, a unified
program facility permit encompasses the permitting requirements of
Section 25284, and permit or authorization requirements under a local
ordinance or regulation relating to the generation or handling of
hazardous waste or hazardous materials, but does not encompass the
permitting requirements of a local ordinance that incorporates
provisions of the Uniform Fire Code or the Uniform Building Code.
(b) The secretary shall adopt implementing regulations and
implement a unified hazardous waste and hazardous materials
management regulatory program, which shall be known as the unified
program, after holding an appropriate number of public hearings
throughout the state. The unified program shall be developed in close
consultation with the director, the Secretary of California
Emergency Management, the State Fire Marshal, the executive officers
and chairpersons of the State Water Resources Control Board and the
California regional water quality control boards, the local health
officers, local fire services, and other appropriate officers of
interested local agencies, and affected businesses and interested
members of the public, including environmental organizations.
(c) The unified program shall consolidate the administration of
the following requirements and, to the maximum extent feasible within
statutory constraints, shall ensure the coordination and consistency
of any regulations adopted pursuant to those requirements:
(1) (A) Except as provided in subparagraphs (B) and (C), the
requirements of Chapter 6.5 (commencing with Section 25100), and the
regulations adopted by the department pursuant thereto, are
applicable to all of the following:
(i) Hazardous waste generators, persons operating pursuant to a
permit-by-rule, conditional authorization, or conditional exemption,
pursuant to Chapter 6.5 (commencing with Section 25100) or the
regulations adopted by the department.
(ii) Persons managing perchlorate materials.
(iii) Persons subject to Article 10.1 (commencing with Section
25211) of Chapter 6.5.
(B) The unified program shall not include the requirements of
paragraph (3) of subdivision (c) of Section 25200.3, the requirements
of Sections 25200.10 and 25200.14, and the authority to issue an
order under Sections 25187 and 25187.1, with regard to those portions
of a unified program facility that are subject to one of the
following:
(i) A corrective action order issued by the department pursuant to
Section 25187.
(ii) An order issued by the department pursuant to Chapter 6.8
(commencing with Section 25300) or Chapter 6.85 (commencing with
Section 25396).
(iii) A remedial action plan approved pursuant to Chapter 6.8
(commencing with Section 25300) or Chapter 6.85 (commencing with
Section 25396).
(iv) A cleanup and abatement order issued by a California regional
water quality control board pursuant to Section 13304 of the Water
Code, to the extent that the cleanup and abatement order addresses
the requirements of the applicable section or sections listed in this
subparagraph.
(v) Corrective action required under subsection (u) of Section
6924 of Title 42 of the United States Code or subsection (h) of
Section 6928 of Title 42 of the United States Code.
(vi) An environmental assessment pursuant to Section 25200.14 or a
corrective action pursuant to Section 25200.10 or paragraph (3) of
subdivision (c) of Section 25200.3, that is being overseen by the
department.
(C) The unified program shall not include the requirements of
Chapter 6.5 (commencing with Section 25100), and the regulations
adopted by the department pursuant thereto, applicable to persons
operating transportable treatment units, except that any required
notice regarding transportable treatment units shall also be provided
to the CUPAs.
(2) The requirements of Chapter 6.67 (commencing with Section
25270) concerning aboveground storage tanks.
(3) (A) Except as provided in subparagraphs (B) and (C), the
requirements of Chapter 6.7 (commencing with Section 25280)
concerning underground storage tanks and the requirements of any
underground storage tank ordinance adopted by a city or county.
(B) The unified program shall not include the responsibilities
assigned to the State Water Resources Control Board pursuant to
Section 25297.1.
(C) The unified program shall not include the corrective action
requirements of Sections 25296.10 to 25296.40, inclusive.
(4) The requirements of Article 1 (commencing with Section 25500)
of Chapter 6.95 concerning hazardous material release response plans
and inventories.
(5) The requirements of Article 2 (commencing with Section 25531)
of Chapter 6.95, concerning the accidental release prevention
program.
(6) The requirements of subdivisions (b) and (c) of Section 80.103
of the Uniform Fire Code, as adopted by the State Fire Marshal
pursuant to Section 13143.9 concerning hazardous material management
plans and inventories.
(d) To the maximum extent feasible within statutory constraints,
the secretary shall consolidate, coordinate, and make consistent
these requirements of the unified program with other requirements
imposed by other federal, state, regional, or local agencies upon
facilities regulated by the unified program.
(e) (1) The secretary shall establish standards applicable to
CUPAs, participating agencies, state agencies, and businesses
specifying the data to be collected and submitted by unified program
agencies in administering the programs listed in subdivision (c).
Those standards shall incorporate any standard developed under
Section 25503.3.
(2) (A) No later than January 1, 2010, the secretary shall
establish a statewide information management system capable of
receiving all data collected by the unified program agencies and
reported by regulated businesses pursuant to this subdivision and
Section 25504.1, in a manner that is most cost efficient and
effective for both the regulated businesses and state and local
agencies. The secretary shall prescribe an XML or other compatible
Web-based format for the transfer of data from CUPAs and regulated
businesses and make all nonconfidential data available on the
Internet.
(B) The secretary shall establish milestones to measure the
implementation of the statewide information management system and
shall provide periodic status updates to interested parties.
(3) (A) (i) Except as provided in subparagraph (B), in addition to
any other funding that becomes available, the secretary shall
increase the oversight surcharge provided for in subdivision (b) of
Section 25404.5 by an amount necessary to meet the requirements of
this subdivision for a period of three years, to establish the
statewide information management system, consistent with paragraph
(2). The increase in the oversight surcharge shall not exceed
twenty-five dollars ($25) in any one year of the three-year period.
The secretary shall thereafter maintain the statewide information
management system, funded by the assessment the secretary is
authorized to impose pursuant to Section 25404.5.
(ii) No less than 75 percent of the additional funding raised
pursuant to clause (i) shall be provided to CUPAs and PAs through
grant funds or statewide contract services, in the amounts determined
by the secretary to assist these local agencies in meeting these
information management system requirements.
(B) A facility that is owned or operated by the federal government
and that is subject to the unified program shall pay the surcharge
required by this paragraph to the extent authorized by federal law.
(C) The secretary, or one or more of the boards, departments, or
offices within the California Environmental Protection Agency, shall
seek available federal funding for purposes of implementing this
subdivision.
(4) No later than three years after the statewide information
management system is established, each CUPA, PA, and regulated
business shall report program data electronically. The secretary
shall work with the CUPAs to develop a phased in schedule for the
electronic collection and submittal of information to be included in
the statewide information management system, giving first priority to
information relating to those chemicals determined by the secretary
to be of greatest concern. The secretary, in making this
determination shall consult with the CUPAs, the California Emergency
Management Agency, the State Fire Marshal, and the boards,
departments, and offices within the California Environmental
Protection Agency. The information initially included in the
statewide information management system shall include, but is not
limited to, the hazardous materials inventory information required to
be submitted pursuant to Section 25504.1 for perchlorate materials.
(5) The secretary, in collaboration with the CUPAs, shall provide
technical assistance to regulated businesses to comply with the
electronic reporting requirements and may expend funds identified in
clause (i) of subparagraph (A) of paragraph (3) for that purpose.
25404.1. (a) (1) All aspects of the unified program related to the
adoption and interpretation of statewide standards and requirements
shall be the responsibility of the state agency which is charged with
that responsibility under existing law. For underground storage
tanks, that agency shall be the State Water Resources Control Board.
The California regional water quality control boards shall have
responsibility for the issuance of variances pursuant to subdivision
(b) of Section 25299.4. The Department of Toxic Substances Control
shall have the sole responsibility for the issuances of variances
from the requirements of Chapter 6.5 (commencing with Section 25100)
and the regulations adopted pursuant thereto, for the determination
of whether or not a waste is hazardous or nonhazardous, for the
determination of whether or not a person is eligible to be deemed to
be operating pursuant to a permit-by-rule, conditional authorization,
or conditional exemption pursuant to Chapter 6.5 (commencing with
Section 25100) or the regulations adopted by the department, and for
the suspension and revocation of permits-by-rule, conditional
authorizations, and conditional exemptions.
(2) Except as provided in paragraphs (1) and (3), those aspects of
the unified program related to the application of statewide
standards to particular facilities, including the issuance of unified
program facility permits, the review of reports and plans,
environmental assessment, compliance and correction, and the
enforcement of those standards and requirements against particular
facilities, shall be the responsibility of the unified program
agencies.
(3) (A) Except in those jurisdictions for which the UPA has been
determined by the department, in accordance with regulations adopted
pursuant to subparagraph (C), to be qualified to implement the
environmental assessment and removal and remediation corrective
action aspects of the unified program, the department shall have sole
responsibility and authority under the unified program for all of
the following:
(i) Implementing and enforcing the requirements of paragraph (3)
of subdivision (c) of Section 25200.3 and Sections 25200.10 and
25200.14, and the regulations adopted by the department to implement
those sections. As a pilot program in up to 10 counties, pending the
adoption and implementation of regulations pursuant to subparagraph
(C), the department may delegate to the CUPA, through a delegation
agreement, responsibility and authority for implementing and
enforcing the requirements of Section 25200.14.
(ii) The issuance of orders under Section 25187 requiring removal
or remedial action.
(iii) The issuance of orders under Section 25187.1.
(B) Notwithstanding subparagraph (A), a UPA may issue an order
under Section 25187 specifying a schedule for compliance or
correction and imposing an administrative penalty for any violation
of the requirements of Chapter 6.5 (commencing with Section 25100)
listed in paragraph (1) of subdivision (c) of Section 25404, or the
requirements of any permit, rule, regulation, standard or requirement
issued or adopted pursuant to the requirements of Chapter 6.5
(commencing with Section 25100) listed in paragraph (1) of
subdivision (c) of Section 25404, if one of the following applies:
(i) The order does not require removal or remedial action.
(ii) The only removal or remedial actions required by the order
are those actions determined to be necessary to address an imminent
and substantial endangerment based upon a finding by the UPA pursuant
to subdivision (f) of Section 25187.
(C) The department shall adopt emergency regulations specifying
the criteria and procedures for implementing paragraph (3) of
subdivision (c) of Section 25200.3 and Sections 25200.10 and
25200.14, including criteria and procedures for determining whether
or not a unified program agency is qualified to implement the
environmental assessment and removal and remediation corrective
action portions of the unified program under paragraph (3) of
subdivision (c) of Section 25200.3 and Sections 25187, 25187.1,
25200.10, and 25200.14. The criteria for determining whether a
unified program agency is qualified shall, at a minimum, include
consideration of the following factors:
(i) Adequacy of the technical expertise possessed by the unified
program agency.
(ii) Adequacy of staff resources.
(iii) Adequacy of budget resources and funding mechanisms.
(iv) Training requirements.
(v) Past performance in implementing and enforcing requirements
related to environmental assessments, and removal and remediation
corrective actions.
(vi) Recordkeeping and accounting systems.
(D) The regulations adopted by the department pursuant to
subparagraph (C) shall include provisions to ensure coordinated and
consistent application of paragraph (3) of subdivision (c) of Section
25200.3 and Sections 25187, 25187.1, 25200.10, and 25200.14, when
both the department and the unified program agency are, or will be,
implementing and enforcing the requirements of one or more of these
sections at the same facility.
(E) For purposes of subparagraph (D), "facility" means the entire
site that is under the control of the owner or operator.
(F) If the department is designated as a unified program agency,
the department is deemed qualified to implement all of the following:
(i) The environmental assessment, removal and remedial action, and
corrective action aspects of the unified program.
(ii) Paragraph (3) of subdivision (c) of Section 25300.3, Sections
25200.10, 25200.14, 25187, and 25287.1, and the regulations adopted
by the department to implement those provisions.
(b) (1) On or before January 1, 1996, each county shall apply to
the secretary to be certified as a unified program agency to
implement the unified program within the unincorporated area of the
county and within each city in the county, in which area or city, as
of January 1, 1996, the city or other local agency has not applied to
be the certified unified program agency.
(2) (A) Any city or other local agency which, as of December 31,
1995, has been designated as an administering agency pursuant to
Section 25502, or which has assumed responsibility for the
implementation of Chapter 6.7 (commencing with Section 25280)
pursuant to Section 25283, may apply to the secretary to become the
certified unified program agency to implement the unified program
within the jurisdictional boundaries of the city or local agency.
(B) A city or other local agency which, as of December 31, 1995,
has not been designated as an administering agency pursuant to
Section 25502, or which has not assumed responsibility for the
implementation of Chapter 6.7 (commencing with Section 25280)
pursuant to Section 25283, may apply to the secretary to become the
certified unified program agency within the jurisdictional boundaries
of the city or local agency if it enters into an agreement with the
county to become the certified unified program agency within those
boundaries. A county shall not refuse to enter into an agreement
unless it specifies in writing its reasons for failing to enter into
the agreement. However, if the city does not enter into the agreement
with the county, within 30 days of receiving a county's reasons for
failing to enter into agreement, a city may request that the
secretary allow it to apply to be a certified unified program agency
and the secretary may, in his or her discretion, approve the request.
(3) A city, county, or other local agency may propose, in its
application for certification to the secretary, to allow other public
agencies to implement certain elements of the unified program, but
the secretary shall accept that proposal only if the secretary makes
the findings specified in subdivision (d) of Section 25404.3.
(4) If a city or other local agency which, as of December 31,
1995, has been designated as an administering agency pursuant to
Section 25502, or has assumed responsibility for the implementation
of Chapter 6.7 (commencing with Section 25280) pursuant to Section
25283, requests that the county propose in its application for
certification to the secretary that the city or local agency
implement, within the jurisdictional boundaries of the city or local
agency, those elements of the unified program which, as of December
31, 1995, the city or local agency has authority to administer, the
county shall grant that request. If such an agency is subsequently
removed or withdraws from the unified program, the agency shall not
act as an administering agency under Section 25502 or act as a local
agency pursuant to Chapter 6.7 (commencing with Section 25280),
except as provided in subdivision (c) of Section 25283.
25404.1.1. (a) If the unified program agency determines that a
person has committed, or is committing, a violation of any law,
regulation, permit, information request, order, variance, or other
requirement that the UPA is authorized to enforce or implement
pursuant to this chapter, the UPA may issue an administrative
enforcement order requiring that the violation be corrected and
imposing an administrative penalty, in accordance with the following:
(1) Except as provided in paragraph (5), if the order is for a
violation of Chapter 6.5 (commencing with Section 25100), the
violator shall be subject to the applicable administrative penalties
provided by that chapter.
(2) If the order is for a violation of Chapter 6.7 (commencing
with Section 25280), the violator shall be subject to the applicable
civil penalties provided in subdivisions (a), (b), (c), and (e) of
Section 25299.
(3) If the order is for a violation of Article 1 (commencing with
Section 25500) of Chapter 6.95, the violator shall be subject to a
penalty that is consistent with the administrative penalties imposed
pursuant to Section 25514.5.
(4) If the order is for a violation of Article 2 (commencing with
Section 25531) of Chapter 6.95, the violator shall be subject to a
penalty that is consistent with the administrative penalties imposed
pursuant to Section 25540 or 25540.5.
(5) If the order is for a violation of Section 25270.4.5, the
violator shall be liable for a penalty of not more than five thousand
dollars ($5,000) for each day on which the violation continues. If
the violator commits a second or subsequent violation, a penalty of
not more than ten thousand dollars ($10,000) for each day on which
the violation continues may be imposed.
(b) In establishing a penalty amount and ordering that the
violation be corrected pursuant to this section, the UPA 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
penalty, and the deterrent effect that the imposition of the penalty
would have on both the violator and the regulated community.
(c) Any order issued pursuant to this section shall be served by
personal service or certified mail and shall inform the person served
of the right to a hearing. If the UPA issues an order pursuant to
this section, the order shall state whether the hearing procedure
specified in paragraph (2) of subdivision (e) may be requested by the
person receiving the order.
(d) Any person served with an order pursuant to this section who
has been unable to resolve any violation with the UPA, may within 15
days after service of the order, request a hearing pursuant to
subdivision (e) by filing with the UPA a notice of defense. The
notice shall be filed with the office that issued the order. A notice
of defense shall be deemed filed within the 15-day period provided
by this subdivision if it is postmarked within that 15-day period. If
no notice of defense is filed within the time limits provided by
this subdivision, the order shall become final.
(e) Except as provided in subparagraph (B) of paragraph (2), a
person requesting a hearing on an order issued by the UPA under this
section may select the hearing officer specified in either paragraph
(1) or (2) in the notice of defense filed with the UPA pursuant to
subdivision (d). If a notice of defense is filed but no hearing
officer is selected, the UPA may select the hearing officer. Within
90 days of receipt of the notice of defense by the UPA, the hearing
shall be scheduled using one of the following:
(1) An administrative law judge of the Office of Administrative
Hearings of the Department of General Services, who shall conduct the
hearing in accordance with Chapter 4.5 (commencing with Section
11400) of Part 1 of Division 3 of Title 2 of the Government Code, and
the UPA shall have all the authority granted to an agency by those
provisions.
(2) (A) A hearing officer designated by the UPA, who shall conduct
the hearing in accordance with Chapter 4.5 (commencing with Section
11400) of Part 1 of Division 3 of Title 2 of the Government Code, and
the UPA shall have all the authority granted to an agency by those
provisions. When a hearing is conducted by a UPA hearing officer
pursuant to this paragraph, the UPA shall issue a decision within 60
days after the hearing is conducted. Each hearing officer designated
by a UPA shall meet the requirements of Section 11425.30 of the
Government Code and any other applicable restriction.
(B) A UPA, or a person requesting a hearing on an order issued by
a UPA may select the hearing process specified in this paragraph in a
notice of defense filed pursuant to subdivision (d) only if the UPA
has, as of the date the order is issued pursuant to subdivision (c),
selected a designated hearing officer and established a program for
conducting a hearing in accordance with this paragraph.
(f) The hearing decision issued pursuant to paragraph (2) of
subdivision (e) shall be effective and final upon issuance by the
UPA. A copy of the decision shall be served by personal service or by
certified mail upon the party served with the order, or their
representative, if any.
(g) Any provision of an order issued under this section, except
the imposition of an administrative penalty, shall take effect upon
issuance by the UPA if the UPA finds that the violation or violations
of law associated with that provision may pose an imminent and
substantial endangerment to the public health or safety or the
environment. A request for a hearing shall not stay the effect of
that provision of the order pending a hearing decision. However, if
the UPA determines that any or all provisions of the order are so
related that the public health or safety or the environment can be
protected only by immediate compliance with the order as a whole, the
order as a whole, except the imposition of an administrative
penalty, shall take effect upon issuance by the UPA. A request for a
hearing shall not stay the effect of the order as a whole pending a
hearing decision.
(h) A decision issued pursuant to paragraph (2) of subdivision (e)
may be reviewed by a court pursuant to Section 11523 of the
Government Code. In all proceedings pursuant to this section, the
court shall uphold the decision of the UPA if the decision is based
upon substantial evidence in the record as a whole. The filing of a
petition for writ of mandate shall not stay any action required
pursuant to this chapter or the accrual of any penalties assessed
pursuant to this chapter. This subdivision does not prohibit the
court from granting any appropriate relief within its jurisdiction.
(i) All administrative penalties collected from actions brought by
a UPA pursuant to this section shall be paid to the UPA that imposed
the penalty, and shall be deposited into a special account that
shall be expended to fund the activities of the UPA in enforcing this
chapter.
(j) The UPA shall consult with the district attorney, county
counsel, or city attorney on the development of policies to be
followed in exercising the authority delegated pursuant to this
section as it relates to the authority of the UPA to issue orders.
(k) (1) A unified program agency may suspend or revoke any unified
program facility permit, or an element of a unified program facility
permit, for not paying the permit fee or a fine or penalty
associated with the permit in accordance with the procedures
specified in this subdivision.
(2) If a permittee does not comply with a written notice from the
unified program agency to the permittee to make the payments
specified in paragraph (1) by the required date provided in the
notice, the unified program agency may suspend or revoke the permit
or permit element. If the permit or permit element is suspended or
revoked, the permittee shall immediately discontinue operating that
facility or function of the facility to which the permit element
applies until the permit is reinstated or reissued.
(3) A permittee may request a hearing to appeal the suspension or
revocation of a permit or element of a permit pursuant to this
subdivision by requesting a hearing using the procedures provided in
subdivision (d).
(l) This section does not do any of the following:
(1) Otherwise affect the authority of a UPA to take any other
action authorized by any other provision of law, except the UPA shall
not require a person to pay a penalty pursuant to this section and
pursuant to a local ordinance for the same violation.
(2) Restrict the power of a city attorney, district attorney,
county counsel, or the Attorney General to bring, in the name of the
people of California, any criminal proceeding otherwise authorized by
law.
(3) Prevent the UPA from cooperating with, or participating in, a
proceeding specified in paragraph (2).
25404.1.2. (a) (1) An authorized representative of the UPA, who in
the course of conducting an inspection, detects a minor violation,
shall take an enforcement action as to the minor violation only in
accordance with this section.
(2) In any proceeding concerning an enforcement action taken
pursuant to this section, there shall be a rebuttable presumption
upholding the determination made by the UPA regarding whether the
violation is a minor violation.
(b) A notice to comply shall be the only means by which a UPA may
cite a minor violation, unless the person cited fails to correct the
violation or fails to submit the certification of correction within
the time period prescribed in the notice, in which case the UPA may
take any enforcement action, including imposing a penalty, as
authorized by this chapter.
(c) (1) A person who receives a notice to comply detailing a minor
violation shall have not more than 30 days from the date of the
notice to comply in which to correct any violation cited in the
notice to comply. Within five working days of correcting the
violation, the person cited or an authorized representative shall
sign the notice to comply, certifying that any violation has been
corrected, and return the notice to the UPA.
(2) A false certification that a violation has been corrected is
punishable as a misdemeanor.
(3) The effective date of the certification that any violation has
been corrected shall be the date that it is postmarked.
(d) If a notice to comply is issued, a single notice to comply
shall be issued for all minor violations noted during the inspection,
and the notice to comply shall list all of the minor violations and
the manner in which each of the minor violations may be brought into
compliance.
(e) If a person who receives a notice to comply pursuant to
subdivision (a) disagrees with one or more of the alleged violations
listed on the notice to comply, the person shall provide the UPA a
written notice of disagreement along with the returned signed notice
to comply. If the person disagrees with all of the alleged
violations, the written notice of disagreement shall be returned in
lieu of the signed certification of correction within 30 days of the
date of issuance of the notice to comply. If the issuing agency takes
administrative enforcement action on the basis of the disputed
violation, that action may be appealed in the same manner as any
other alleged violation under Section 25404.1.1.
(f) This section may not be construed as doing any of the
following:
(1) Preventing the reinspection of a facility to ensure compliance
with this chapter or to ensure that minor violations cited in a
notice to comply have been corrected and that the facility is in
compliance with those laws and regulations within the jurisdiction of
the UPA.
(2) Preventing the UPA from requiring a person to submit necessary
documentation needed to support the person's claim of compliance
pursuant to subdivision (c).
(3) Restricting the power of a city attorney, district attorney,
county counsel, or the Attorney General to bring, in the name of the
people of California, any criminal proceeding otherwise authorized by
law.
(4) Preventing the UPA from cooperating with, or participating in,
a proceeding specified in paragraph (3).
25404.1.3. (a) A unified program agency may apply to the clerk of
the appropriate court for a judgment to collect an administrative
penalty for an administrative order or decision that has become final
pursuant to subdivision (d) or (f) of Section 25404.1.1 and imposes
a penalty pursuant to Section 25401.1.1, if a petition for judicial
review of the final order or decision has not been filed within the
time limits prescribed in Section 11523 of the Government Code.
(b) The UPA's application to the court clerk shall include a
certified copy of the final administrative order or decision that
copy of the order or decision constitutes a sufficient showing to
warrant issuance of the judgment. The court clerk shall enter the
judgment immediately in conformity with the application. The judgment
has the same force and effect as, and is subject to all the
provisions of law relating to, a judgment in a civil action, and may
be enforced in the same manner as any other judgment of the court in
which it is entered.
25404.2. (a) The unified program agencies in each jurisdiction
shall do all of the following:
(1) (A) The certified unified program agency shall develop and
implement a procedure for issuing, to a unified program facility, a
unified program facility permit which would replace any permit
required by Section 25284 and any permit or authorization required
under any local ordinance or regulation relating to the generation or
handling of hazardous waste or hazardous materials, but which would
not replace a permit issued pursuant to a local ordinance which
incorporates provisions of the Uniform Fire Code and Uniform Building
Code.
(B) The unified program facility permit, and, if applicable, an
authorization to operate pursuant to a permit-by-rule, conditional
authorization, or conditional exemption, pursuant to Chapter 6.5
(commencing with Section 25100) or the regulations adopted by the
department, are the only grants of authorization required under the
unified program elements specified in subdivision (c) of Section
25404.
(C) The unified program agencies shall enforce the elements of a
unified program facility permit in the same manner as the permits
replaced by the unified program facility permit would be enforced.
(D) If a unified program facility is operating pursuant to the
applicable grants of authorization which would otherwise be included
in a unified program facility permit for the activities in which the
facility is engaged, the unified program agencies shall not require
that unified program facility to obtain a unified program facility
permit as a condition of operating pursuant to the unified program
elements specified in subdivision (c) of Section 25404 and any permit
or authorization required under any local ordinance or regulation
relating to the generation or handling of hazardous waste or
hazardous materials.
(E) This subparagraph applies to unified program facilities which
have existing, not yet expired, grants of authorization for some, but
not all, of the authorization requirements encompassed in the
unified program facility permit. When issuing a unified program
facility permit to such a unified program facility, the unified
program agency shall incorporate, by reference, into the unified
program facility permit any of the facility's existing, not yet
expired, grants of authorization.
(2) To the maximum extent feasible within statutory constraints,
the certified unified program agency, in conjunction with
participating agencies, shall consolidate, coordinate, and make
consistent any local or regional regulations, ordinances,
requirements, or guidance documents related to the implementation of
the provisions specified in subdivision (c) of Section 25404 or
pursuant to any regional or local ordinance or regulation pertaining
to hazardous waste or hazardous materials. This paragraph does not
affect the authority of a unified program agency with regard to the
preemption of the unified program agency's authority under state law.
(3) The certified unified program agency, in conjunction with
participating agencies, shall develop and implement a single, unified
inspection and enforcement program to ensure coordinated, efficient,
and effective enforcement of the provisions specified in subdivision
(c) of Section 25404, and any local ordinance or regulation
pertaining to the handling of hazardous waste or hazardous materials.
(4) The certified unified program agency, in conjunction with
participating agencies, shall coordinate, to the maximum extent
feasible, the single, unified inspection and enforcement program with
the inspection and enforcement program of other federal, state,
regional, and local agencies which affect facilities regulated by the
unified program. This paragraph does not prohibit the unified
program agencies, or any other agency, from conducting inspections,
or from undertaking any other enforcement-related activity, without
giving prior notice to the regulated entity, except where the prior
notice is otherwise required by law.
(b) An employee or authorized representative of a unified program
agency or a state agency acting pursuant to this chapter has the
authority specified in Section 25185, with respect to the premises of
a handler, and in Section 25185.5, with respect to real property
which is within 2,000 feet of the premises of a handler, except that
this authority shall include inspections concerning hazardous
material, in addition to hazardous waste.
(c) Each air quality management district or air pollution control
district, each publicly owned treatment works, and each office,
board, and department within the California Environmental Protection
Agency, shall coordinate, to the maximum extent feasible, those
aspects of its inspection and enforcement program which affect
facilities regulated by the unified program with the inspection and
enforcement programs of each certified unified program agency.
(d) The certified unified program agency, in conjunction with
participating agencies, may incorporate, as part of the unified
program within its jurisdiction, the implementation and enforcement
of laws which the unified program agencies are authorized to
implement and enforce, other than those specified in subdivision (c)
of Section 25404, if that incorporation will not impair the ability
of the unified program agencies to fully implement the requirements
of subdivision (a).
(e) (1) The withdrawal of an application for a unified program
facility permit after it has been filed with the unified program
agency shall not, unless the unified program agency consents in
writing to the withdrawal, deprive the unified program agencies of
their authority to institute or continue a proceeding against the
applicant for the denial of the unified program facility permit upon
any ground provided by law, and such a withdrawal shall not affect
the authority of the unified program agencies to institute or
continue a proceeding against the applicant pertaining to any
violation of the requirements specified in subdivision (c) of Section
25404 or of any local ordinance or regulation relating to the
generation or handling of hazardous waste or hazardous materials.
(2) The suspension, expiration, or forfeiture by operation of law
of a unified program facility permit, or its suspension, forfeiture,
or cancellation by the unified program agency or by order of a court,
or its surrender or attempted or actual transfer without the written
consent of the unified program agency shall not affect the authority
of the unified program agencies to institute or continue a
disciplinary proceeding against the holder of a unified program
facility permit upon any ground, or otherwise taking an action
against the holder of a unified program facility permit on these
grounds.
25404.3. (a) The secretary shall, within a reasonable time after
submission of a complete application for certification pursuant to
Section 25404.2, and regulations adopted pursuant to that section,
but not to exceed 180 days, review the application, and, after
holding a public hearing, determine if the application should be
approved. Before disapproving an application for certification, the
secretary shall submit to the applicant agency a notification of the
secretary's intent to disapprove the application, in which the
secretary shall specify the reasons why the applicant agency does not
have the capability or the resources to fully implement and enforce
the unified program in a manner that is consistent with the
regulations implementing the unified program adopted by the secretary
pursuant to this chapter. The secretary shall provide the applicant
agency with a reasonable time to respond to the reasons specified in
the notification and to correct deficiencies in its application. The
applicant agency may request a second public hearing, at which the
secretary shall hear the applicant agency's response to the reasons
specified in the notification.
(b) In determining whether an applicant agency should be
certified, or designated as certified, the secretary, after receiving
comments from the director, the Secretary of Emergency Management,
the State Fire Marshal, and the Executive Officers and Chairpersons
of the State Water Resources Control Board and the California
regional water quality control boards, shall consider at least all of
the following factors:
(1) Adequacy of the technical expertise possessed by each unified
program agency that will be implementing each element of the unified
program, including, but not limited to, whether the agency
responsible for implementing and enforcing the requirements of
Chapter 6.5 (commencing with Section 25100) satisfies the
requirements of Section 15260 of Title 27 of the California Code of
Regulations.
(2) Adequacy of staff resources.
(3) Adequacy of budget resources and funding mechanisms.
(4) Training requirements.
(5) Past performance in implementing and enforcing requirements
related to the handling of hazardous materials and hazardous waste.
(6) Recordkeeping and cost accounting systems.
(7) Compliance with the criteria in Section 15170 of Title 27 of
the California Code of Regulations.
(c) (1) In making the determination of whether or not to certify a
particular applicant agency as a certified unified program agency,
the secretary shall consider the applications of every other
applicant agency applying to be a certified unified program agency
within the same county, in order to determine the impact of each
certification decision on the county. If the secretary identifies
that there may be adverse impacts on the county if any particular
agency in a county is certified, the secretary shall work
cooperatively with each affected agency to address the secretary's
concerns.
(2) The secretary shall not certify an agency to be a certified
unified program agency unless the secretary finds both of the
following:
(A) The unified program will be implemented in a coordinated and
consistent manner throughout the entire county in which the applicant
agency is located.
(B) The administration of the unified program throughout the
entire county in which the applicant agency is located will be less
fragmented between jurisdictions, as compared to before January 1,
1994, with regard to the administration of the provisions specified
in subdivision (c) of Section 25404.
(d) (1) The secretary shall not certify an applicant agency that
proposes to allow participating agencies to implement certain
elements of the unified program unless the secretary makes all of the
following findings:
(A) The applicant agency has adequate authority, and has in place
adequate systems, protocols, and agreements, to ensure that the
actions of the other agencies proposed to implement certain elements
of the unified program are fully coordinated and consistent with each
other and with those of the applicant agency, and to ensure full
compliance with the regulations implementing the unified program
adopted by the secretary pursuant to this chapter.
(B) An agreement between the applicant and other agencies proposed
to implement any elements of the unified program contains procedures
for removing any agencies proposed and engaged to implement any
element of the unified program. The procedures in the agreement shall
include, at a minimum, provisions for providing notice, stating
causes, taking public comment, making appeals, and resolving
disputes.
(C) The other agencies proposed to implement certain elements of
the unified program have the capability and resources to implement
those elements, taking into account the factors designated in
subdivision (b).
(D) All other agencies proposed to implement certain elements of
the unified program shall maintain an agreement with the applicant
agency that ensures that the requirements of Section 25404.2 will be
fully implemented.
(E) If the applicant agency proposes that any agency other than
itself will be responsible for implementing aspects of the single fee
system imposed pursuant to Section 25404.5, the applicant agency
maintains an agreement with that agency that ensures that the fee
system is implemented in a fully consistent and coordinated manner,
and that ensures that each participating agency receives the amount
that it determines to constitute its necessary and reasonable costs
of implementing the element or elements of the unified program that
it is responsible for implementing.
(2) After the secretary has certified an applicant agency pursuant
to this subdivision, that agency shall obtain the approval of the
secretary before removing and replacing a participating agency that
is implementing an element of the unified program.
(3) Any state agency, including, but not limited to, the State
Department of Health Services, acting as a participating agency, may
contract with a unified program agency to implement or enforce the
unified program.
(e) Until a city's or county's application for certification to
implement the unified program is acted upon by the secretary, the
roles, responsibilities, and authority for implementing the programs
identified in subdivision (c) of Section 25404 that existed in that
city or county pursuant to statutory authorization as of December 31,
1993, shall remain in effect.
(f) (1) Except as provided in subparagraph (C) of paragraph (2) or
in Section 25404.8, if no local agency has been certified by January
1, 1997, to implement the unified program within a city, the
secretary shall designate either the county in which the city is
located or another agency pursuant to subparagraph (A) of paragraph
(2) as the unified program agency.
(2) (A) Except as provided in subparagraph (C), if no local agency
has been certified by January 1, 2001, to implement the unified
program within the unincorporated or an incorporated area of a
county, the secretary shall determine how the unified program shall
be implemented in the unincorporated area of the county, and in any
city in which there is no agency certified to implement the unified
program. In such an instance, the secretary shall work in
consultation with the county and cities to determine which state or
local agency or combination of state and local agencies should
implement the unified program, and shall determine which state or
local agency shall be designated as the certified unified program
agency.
(B) The secretary shall determine the method by which the unified
program shall be implemented throughout the county and may select any
combination of the following implementation methods:
(i) The certification of a state or local agency as a certified
unified program agency.
(ii) The certification of an agency from another county as the
certified unified program agency.
(iii) The certification of a joint powers agency as the certified
unified program agency.
(C) Notwithstanding paragraph (1) and subparagraphs (A) and (B),
if the Cities of Sunnyvale, Anaheim, and Santa Ana prevail in
litigation filed in 1997 against the secretary, and, to the extent
the secretary determines that these three cities meet the
requirements for certification, the secretary may certify these
cities as certified unified program agencies.
(g) (1) If a certified unified program agency wishes to withdraw
from its obligations to implement the unified program and is a city
or a joint powers agency implementing the unified program within a
city, the agency may withdraw after providing 180 days' notice to the
secretary and to the county within which the city is located, or to
the joint powers agency with which the county has an agreement to
implement the unified program.
(2) Whenever a certified unified program agency withdraws from its
obligations to implement the unified program, or the secretary
withdraws an agency's certification pursuant to Section 25404.4, the
successor certified unified program agency shall be determined in
accordance with subdivision (f).
25404.3.1. A city or other local agency, which, as of December 31,
1999, has been designated as an administering agency pursuant to
Section 25502, or has assumed responsibility for the implementation
of Chapter 6.7 (commencing with Section 25280) pursuant to Section
25283, and that wishes to administer the unified program or an
element of the unified program identified in subdivision (c) of
Section 25404, shall request the secretary to include the agency in
the implementation structure established by paragraph (2) of
subdivision (f) of Section 25404.3. The secretary may grant the
request for as long as the agency remains qualified to implement the
unified program or an element of the program.
25404.4. (a) (1) The secretary shall periodically review the
ability of each certified unified program agency to carry out this
chapter. In conducting this review, the secretary shall review both
the elements of each CUPA's enforcement program and the efficacy of
the program in ensuring compliance with the unified program's
requirements. If a certified unified program agency fails to meet its
obligations to adequately implement the unified program, the
secretary may withdraw the certified unified program agency's
certification, or may enter into a program improvement agreement with
the certified unified program agency to make the necessary
improvements. A certified unified program agency with which the
secretary has entered into a program improvement agreement may
continue to implement the unified program while the program
improvement agreement is in effect and the certified unified program
agency is in compliance with the agreement. If the secretary finds
that a CUPA has not met the enforcement performance standards adopted
pursuant to Section 25404.6 and the secretary enters into a program
improvement agreement with the CUPA, the agreement shall make the
improvement of enforcement the highest priority.
(2) Before withdrawing a certified unified program agency's
certification, the secretary shall submit to the certified unified
program agency a notification of the secretary's intent to withdraw
certification, in which the secretary shall specify the reasons why
the certified unified program agency has failed to meet its
obligations to adequately implement the unified program. The
secretary shall provide the certified unified program agency with a
reasonable time to respond to the reasons specified in the
notification and to correct the deficiencies specified in the
notification. The certified unified program agency may request a
public hearing, at which the secretary shall hear the agency's
response to the reasons specified in the notification.
(b) (1) If the secretary finds that a certified unified program
agency has failed to adequately enforce the requirements of the
unified program with respect to a particular facility, the secretary
may direct the appropriate state agency to take any necessary actions
and to issue necessary orders to the facility.
(2) If the secretary finds that the failure to adequately enforce
the requirements of the unified program may result in an imminent and
substantial endangerment to the environment or to the public health
and safety, the secretary shall direct the appropriate state agency
to take any necessary actions and to issue the necessary orders to
the facility.
(3) This chapter does not prevent any appropriate state agency
from issuing an order or taking any other action pursuant to state
law.
25404.5. (a) (1) Each certified unified program agency shall
institute a single fee system, which shall replace the fees levied
pursuant to Sections 25201.14 and 25205.14, except for transportable
treatment units permitted under Section 25200.2, and which shall also
replace any fees levied by a local agency pursuant to Sections
25143.10, 25287, 25513, and 25535.5, or any other fee levied by a
local agency specifically to fund the implementation of the
provisions specified in subdivision (c) of Section 25404. The single
fee system shall additionally include the fee established pursuant to
Section 25270.6. Notwithstanding Sections 25143.10, 25201.14, 25287,
25513, and 25535.5, a person who complies with the certified unified
program agency's "single fee system" fee shall not be required to
pay any fee levied pursuant to those sections, except for
transportable treatment units permitted under Section 25200.2.
(2) (A) The governing body of the local certified unified program
agency shall establish the amount to be paid by each person regulated
by the unified program under the single fee system at a level
sufficient to pay the necessary and reasonable costs incurred by the
certified unified program agency and by any participating agency
pursuant to the requirements of subparagraph (E) of paragraph (1) of
subdivision (d) of Section 25404.3.
(B) The secretary shall establish the amount to be paid when the
unified program agency is a state agency.
(3) The fee system may also be designed to recover the necessary
and reasonable costs incurred by the certified unified program
agency, or a participating agency pursuant to the requirements of
subparagraph (E) of paragraph (1) of subdivision (d) of Section
25404.3, in administering provisions other than those specified in
subdivision (c) of Section 25404, if the implementation and
enforcement of those provisions has been incorporated as part of the
unified program by the certified unified program agency pursuant to
subdivision (b) of Section 25404.2, and if the single fee system
replaces any fees levied as of January 1, 1994, to fund the
implementation of those additional provisions.
(4) The amount to be paid by a person regulated by the unified
program may be adjusted to account for the differing costs of
administering the unified program with respect to that person's
regulated activities.
(b) (1) Except as provided in subdivision (d), the single fee
system instituted by each certified unified program agency shall
include an assessment on each person regulated by the unified program
of a surcharge, the amount of which shall be determined by the
secretary annually, to cover the necessary and reasonable costs of
the state agencies in carrying out their responsibilities under this
chapter. The secretary may adjust the amount of the surcharge to be
collected by different certified unified program agencies to reflect
the different costs incurred by the state agencies in supervising the
implementation of the unified program in different jurisdictions,
and in supervising the implementation of the unified program in those
jurisdictions for which the secretary has waived the assessment of
the surcharge pursuant to subdivision (d). The certified unified
program agency may itemize the amount of the surcharge on any bill,
invoice, or return that the agency sends to a person regulated by the
unified program. Each certified unified program agency shall
transmit all surcharge revenues collected to the secretary on a
quarterly basis. The surcharge shall be deposited in the Unified
Program Account, which is hereby created in the General Fund and
which may be expended, upon appropriation by the Legislature, by
state agencies for the purposes of implementing this chapter.
(2) On or before January 10, 2001, the secretary shall report to
the Legislature on whether the number of persons subject to
regulation by the unified program in any county is insufficient to
support the reasonable and necessary cost of operating the unified
program using only the revenues from the fee. The secretary's report
shall consider whether the surcharge required by subdivision (a)
should include an assessment to be used to supplement the funding of
unified program agencies that have a limited number of entities
regulated under the unified program.
(c) Each certified unified program agency and the secretary shall,
before the institution of the single fee system and the assessment
of the surcharge, implement a fee accountability program designed to
encourage more efficient and cost-effective operation of the program
for which the single fee and surcharge are assessed. The fee
accountability programs shall include those elements of the
requirements of the plan adopted pursuant to former Section 25206, as
it read on January 1, 1995, that the secretary determines are
appropriate.
(d) The secretary may waive the requirement for a county to assess
a surcharge pursuant to subdivision (b), if both of the following
conditions apply:
(1) The county meets all of the following conditions:
(A) The county submits an application to the secretary for
certification on or before January 1, 1996, that incorporates all of
the requirements of this chapter, and includes the county's request
for a waiver of the surcharge, and contains documentation that
demonstrates, to the satisfaction of the secretary, both of the
following:
(i) That the assessment of the surcharge will impose a significant
economic burden on most businesses within the county.
(ii) That the combined dollar amount of the surcharge and the
single fee system to be assessed by the county pursuant to
subdivision (a) exceeds the combined dollar amount of all existing
fees that are replaced by the single fee system for most businesses
within the county.
(B) The application for certification, including the information
required by subparagraph (A), is determined by the secretary to be
complete, on or before April 30, 1996. The secretary, for good cause,
may grant an extension of that deadline of up to 90 days.
(C) The county is certified by the secretary on or before December
31, 1996.
(D) On or before January 1, 1994, the county completed the
consolidation of the administration of the hazardous waste generator
program, the hazardous materials release response plans and
inventories program, and the underground storage tank program,
referenced in paragraphs (1), (3), and (4) of subdivision (c) of
Section 25404, into a single program within the county's
jurisdiction.
(E) The county demonstrates that it will consolidate the
administration of all programs specified in subdivision (c) of
Section 25404, and that it will also consolidate the administration
of at least one additional program that regulates hazardous waste,
hazardous substances, or hazardous materials, as specified in
subdivision (d) of Section 25404.2, other than the programs specified
in subdivision (c) of Section 25404, into a single program to be
administered by a single agency in the county's jurisdiction at the
time that the county's certification by the secretary becomes
effective.
(2) The secretary makes all of the following findings:
(A) The county meets all of the criteria specified in paragraph
(1).
(B) The assessment of the surcharge would impose a significant
economic burden on most businesses within the county.
(C) The combined dollar amount of the surcharge and the single fee
system to be assessed by the county pursuant to subdivision (a)
would exceed the combined dollar amount of all existing fees that are
replaced by the single fee system for most businesses within the
county.
(D) The waiver of the surcharge for those counties applying for
and qualifying for a waiver, and the resulting increase in the
surcharge for other counties, would not, when considered
cumulatively, impose a significant economic burden on businesses in
any other county that does not apply for, or does not meet the
criteria for, a waiver of the surcharge.
(e) The secretary shall review all of the requests for a waiver of
the surcharge made pursuant to subdivision (d) simultaneously, so as
to adequately assess the cumulative impact of granting the requested
waivers on businesses in those counties that have not applied, or do
not qualify, for a waiver, and shall grant or deny all requests for
a waiver of the surcharge within 30 days from the date that the
secretary certifies all counties applying, and qualifying, for a
waiver. If the secretary finds that the grant of a waiver of the
surcharge for all counties applying and qualifying for the waiver
will impose a significant economic burden on businesses in one or
more other counties, the secretary shall take either of the following
actions:
(1) Deny all of the applications for a waiver of the surcharge.
(2) Approve only a portion of the waiver requests for counties
meeting the criteria set forth in subdivision (d), to the extent that
the approved waivers, when taken as a whole, meet the condition
specified in subparagraph (D) of paragraph (2) of subdivision (d). In
determining which of the counties' waiver requests to grant, the
secretary shall consider all of the following factors:
(A) The relative degree to which the assessment of the surcharge
will impose a significant economic burden on most businesses within
each county applying and qualifying for a waiver.
(B) The relative degree to which the combined dollar amount of the
surcharge and the single fee system to be assessed, pursuant to
subdivision (a), by each county applying and qualifying for a waiver
exceeds the combined dollar amount of all existing fees that are
replaced by the single fee system for most businesses within the
county.
(C) The relative extent to which each county applying and
qualifying for a waiver has incorporated, or will incorporate, upon
certification, additional programs pursuant to subdivision (d) of
Section 25404.2, into the unified program within the county's
jurisdiction.
(f) The secretary may, at any time, terminate a county's waiver of
the surcharge granted pursuant to subdivisions (d) and (e) if the
secretary determines that the criteria specified in subdivision (d)
for the grant of a waiver are no longer met.
25404.6. (a) The secretary may immediately implement those aspects
of the unified program which do not require statutory changes. If the
secretary determines that statutory changes are needed to fully
implement the program, the secretary shall recommend those changes to
the Legislature on or before March 1, 1995, so that the changes, if
approved by the Legislature, can be implemented as part of the
program by January 1, 1996.
(b) The secretary shall work in close consultation with the
Environmental Protection Agency, and shall implement this chapter
only to the e
