Section 66271.57 - Requirements for a Facility Assigned to an "Unacceptable" Compliance Tier(a) For a facility that is assigned to an "unacceptable" compliance tier based on its Facility VSP Score: (1) The Department shall, subject to subsections (b) through (f), initiate a process to deny, suspend, or revoke a permit pursuant to chapter 20 or 21 of this division for a facility after the facility's "unacceptable" compliance tier assignment becomes final in accordance with subsection (b) or subsection (f)(1).(2) Following the initiation of a process pursuant to subsection (a)(1) to deny, suspend, or revoke a permit, the Department may grant a permit or permit modification or otherwise resolve a pending permit action against a facility that has been assigned to an "unacceptable" compliance tier only if the Department makes the written findings required in subsection (g), in addition to any other findings required by law for its decision.(b) An owner or operator of a facility assigned to an "unacceptable" compliance tier may challenge the "unacceptable" compliance tier assignment in accordance with the procedures set forth in this section. If an owner or operator of a facility assigned to an "unacceptable" compliance tier does not challenge the facility's compliance tier assignment in accordance with the procedures set forth in this section, the facility's "unacceptable" compliance tier assignment will become final sixty (60) days after the Department's written notice to the facility of its compliance tier assignment.(c) Within sixty (60) days of the Department's written notice that the Department assigned a facility to an "unacceptable" compliance tier based on its Facility VSP Score, the owner or operator may challenge that assignment. If the "unacceptable" compliance tier assignment is based on a provisional inspection violation score disputed by the owner or operator pursuant to section 66271.53(c), then the time frame for the owner or operator to challenge the facility's compliance tier assignment commences when the dispute resolution official issues its written decision pursuant to section 66271.53(c)(4).(d) In order to challenge an "unacceptable" compliance tier assignment, an owner or operator must demonstrate, in writing, all of the following:(1) The owner or operator is able to operate the facility in compliance with the terms and conditions of its permit, applicable orders, stipulations, agreements, settlement documents, judgments, decrees, grants of authorization, and other documents establishing requirements upon operations at the facility; hazardous waste laws and regulations; and any other applicable environmental laws and regulations;(2) The facility, as constructed, can be operated in compliance with the terms and conditions of its permit, applicable orders, stipulations, agreements, settlement documents, judgments, decrees, grants of authorization, and other documents establishing requirements upon operations at the facility; hazardous waste laws and regulations; and any other applicable environmental laws and regulations;(3) The owner's or operator's continued operation of the facility is unlikely to adversely affect human health, safety, or the environment;(4) The facility's compliance with financial assurance or liability coverage requirements for closure, post-closure, or corrective action, pursuant to article 8, chapter 14 and article 8, chapter 15 of this division, as applicable; and(5) At least one audit report required pursuant to this article demonstrates both of the following: (A) an ongoing pattern of compliance with applicable hazardous waste management requirements; and(B) full implementation of actions to correct deficiencies and address findings of prior audits.(e) Within sixty (60) days of receipt of the owner's or operator's written challenge pursuant to this section, the Department shall send out a written notice regarding the time and location of a public meeting regarding the facility's "unacceptable" compliance tier assignment. At the public meeting, the Department will present the grounds for assigning the facility an "unacceptable" compliance tier, the owner or operator may present its opposition, and the public shall have an opportunity to submit comments.(f) Within sixty (60) days of the date of the public meeting, the Department shall issue a written decision regarding the owner's or operator's challenge to the facility's "unacceptable" compliance tier assignment. The Department's decision shall be based upon its consideration of the Department's evidence to support the Facility VSP Score and assignment to the "unacceptable" compliance tier; evidence presented by the owner or operator in its written challenge filed pursuant to subsection (d) and at the public meeting held pursuant to subsection (e); and any other relevant evidence presented at the public meeting held pursuant to subsection (e).(1) If the Department upholds the facility's "unacceptable" compliance tier assignment, the Department's written decision will constitute the facility's final "unacceptable" compliance tier assignment. The Department's written decision will also notify the owner or operator regarding the Department's decision to initiate the process to deny, suspend, or revoke the facility's permit.(2) If the Department makes a determination that changes the facility's compliance tier assignment to "conditionally acceptable," then the facility is subject to the provisions of section 66271.56.(g) The Department may grant a permit or permit modification or otherwise resolve a pending permit action for a facility that is assigned to an "unacceptable" compliance tier if the Department makes written findings based on substantial evidence that grant of the permit or permit modification or other resolution of a pending permit action will not pose a threat to public health or safety or the environment and that both of the following conditions are met: (1) The owner or operator has implemented enforceable improvements to its facility operations or hazardous waste management processes or equipment that will prevent future violations; and(2) There are substantial and overriding benefits to the people of the State of California resulting from the continued operation of the facility.(h) If the Department grants a permit or permit modification or otherwise resolves a pending permit action for a facility pursuant to subsection (g), the Department shall require all of the following, in addition to any other requirements deemed necessary by the Department to protect human health or safety or the environment: (1) The permit term shall not exceed five (5) years;(2) The permit must include enhanced compliance provisions, including, but not limited to, compliance audits consistent with section 66271.56(a). The permit shall specify the dates for submittal of audit reports by the owner or operator; and(3) The permit must include mitigation measures for all potential harm associated with noncompliant activities or events, including enforceable and measurable actions to eliminate or reduce impacts associated with noncompliance and to alleviate adverse conditions caused by the facility's noncompliance, or to which noncompliance may have contributed.(i) The Department shall order a facility that received a final "unacceptable" compliance tier assignment to take any action determined by the Department as necessary to ensure the facility's compliance with its permit, and any applicable orders, stipulations, agreements, settlements, judgments, decrees, grants of authorization, or other documents establishing requirements upon operations at the facility, as well as hazardous waste laws and regulations and any other applicable environmental laws and regulations, including, but not limited to: (1) complying with section 66271.56;(2) conducting additional and enhanced training as necessary to improve facility operations and compliance;(3) implementing facility improvements related to the causes of the facility's noncompliance with its permit and applicable orders, stipulations, agreements, settlements, judgments, decrees, grants of authorization, or other documents establishing requirements upon operations at the facility, as well as hazardous waste laws, and regulations. Facility improvements may include, but are not limited to, repairing, replacing, or augmenting hazardous waste management units, equipment, devices, or secondary containment;(4) restricting or ceasing the operation of a hazardous waste management unit that is the basis of the facility's violations;(5) conducting public participation and community engagement activities, including, but not limited to, public information meetings with the surrounding community and distribution of fact sheets or community updates, addressing the facility's compliance issues and return to compliance; and(6) increasing or expanding facility monitoring, recordkeeping, and/or reporting.Cal. Code Regs. Tit. 22, § 66271.57
1. New section filed 10-24-2018; operative 1-1-2019 (Register 2018, No. 43). Note: Authority cited: Sections 25150, 25200.21, 58004 and 58012, Health and Safety Code. Reference: Sections 25110.8.5, 25186 and 25186.05, Health and Safety Code.
1. New section filed 10-24-2018; operative 1/1/2019 (Register 2018, No. 43).