Article 8.6. Development Of Hazardous Waste Management Facilities On Indian Country of California Health And Safety Code >> Division 20. >> Chapter 6.5. >> Article 8.6.
As used in this article, unless the context clearly
indicates otherwise, the following definitions apply:
(a) "Indian country" has the same meaning as set forth in Section
1151 of Title 18 of the United States Code.
(b) "Tribe" means an Indian tribe, band, nation, or other
organized group or community, or a tribal agency authorized by a
tribe as defined herein, which is recognized as eligible for special
programs and services provided by the United States to Indians
because of their status as Indians and is identified on pages 52829
to 52835, inclusive, of Number 250 of Volume 53 (December 29, 1988)
of the Federal Register, as that list may be updated or amended from
time to time.
(c) "Hazardous waste" has the same meaning as set forth in
Sections 25117 and 25117.9.
(d) "Hazardous waste facility" has the same meaning as set forth
in Section 25117.1.
(e) "Operator" means a person who operates a hazardous waste
(f) "Owner" means a person who owns a hazardous waste facility.
(g) "Secretary" means the Secretary for Environmental Protection.
(h) "State" means the State of California and any agency or
(i) "Siting" means the physical suitability of a location proposed
for a hazardous waste facility.
(a) Upon receipt of a written request from any tribe
considering a proposal to construct each hazardous waste facility in
that tribe's Indian country within this state, the secretary shall
convene negotiations for purposes of reaching a cooperative agreement
pursuant to this article, which will define the respective rights,
duties, and obligations of the state and the tribe concerning the
approval, development, and operation of the facility. In convening
the negotiations, the secretary shall consult with the Department of
Toxic Substances Control, the State Water Resources Control Board,
the appropriate California regional water quality control board, the
State Air Resources Board, and the appropriate air pollution control
district or air quality management district.
(b) This article does not apply to any facility located on Indian
country within the state if it meets all of the following
(1) The facility is owned and operated solely by a tribe.
(2) All hazardous waste accepted by the facility is generated by
that particular tribe.
(3) The United States Environmental Protection Agency has approved
(a) The secretary may enter into any cooperative agreement
which meets the requirements of this article.
(b) Each cooperative agreement shall include, but shall not be
limited to, all requirements determined to be necessary to meet the
requirements of subdivision (e) to do all of the following:
(1) Protect water quality, as determined by the State Water
Resources Control Board or the appropriate California regional water
quality control board.
(2) Protect air quality, as determined by the State Air Resources
Board or the appropriate air pollution control officer.
(3) Provide for proper management of hazardous materials and
hazardous wastes, as determined necessary by the Department of Toxic
(4) In making these determinations, the state agencies shall
consider any applicable federal environmental and public health and
(c) A decision by the secretary whether to enter into a
cooperative agreement shall be based on a good faith determination
concerning whether a proposed cooperative agreement meets the
requirements of this article. The secretary shall take this action
within 130 days of a written request by the tribe that the secretary
approve a draft cooperative agreement. At least 60 days prior to
determining whether to enter into a cooperative agreement, the
secretary shall provide notice, and make available for public review
and comment, drafts of his or her proposed action and drafts of the
findings and determinations that are required by this section. The
secretary shall hold a public hearing in the affected area on the
proposed action within the time period for taking that action, as
specified in this section. Within 10 days after the close of the
public review and comment period, the agencies shall complete the
determinations required by this section and the secretary shall issue
a final decision.
(d) The findings and determinations of the secretary and relevant
agencies made pursuant to this section shall explain material
differences between state laws and regulations and the proposed
tribal or federal functionally equivalent provisions. The findings
and determinations do not need to explain each difference between the
state and tribal or federal requirements as long as they identify
and evaluate whether the material differences meet the requirements
of this article, including, but not limited to, providing at least as
much protection for public health and safety and the environment as
would the state requirements.
(e) Any cooperative agreement executed pursuant to this article
shall provide for regulation of the hazardous waste facility through
inclusion in the agreement of design, permitting, construction,
siting, operation, monitoring, inspection, closure, postclosure,
liability, enforcement, and other regulatory provisions applicable to
a hazardous waste facility, or which relate to any environmental
consequences that may be caused by facility construction or
operation, that are functionally equivalent to all of the following:
(1) Article 4 (commencing with Section 13260) of Chapter 4 of,
Chapter 5 (commencing with Section 13300) of, and Chapter 5.5
(commencing with Section 13370) of, Division 7 of the Water Code.
(2) Chapter 3 (commencing with Section 41700) of, Chapter 4
(commencing with Section 42300) of, and Chapter 5 (commencing with
Section 42700) of, Part 4 of, and Part 6 (commencing with Section
44300) of, Division 26.
(3) This chapter, Chapter 6.6 (commencing with Section 25249.5),
Chapter 6.8 (commencing with Section 25300), and Chapter 6.95
(commencing with Section 25500).
(4) All regulations adopted pursuant to the statutes specified in
(5) Any other provision of state environmental, public health, and
safety laws and regulations germane to the hazardous waste facility
proposed by the tribe.
(f) The tribal organizational structures or other means of
implementing the requirements specified in subdivision (e) are not
required to be the same as the state organizational structures or
means of implementing its system of regulation.
(g) Neither the approval of any cooperative agreement nor
amendments to the agreement, nor any determination of sufficiency
provided in Section 25198.5, shall constitute a "project" as defined
in Section 21065 of the Public Resources Code and shall not be
subject to review pursuant to the California Environmental Quality
Act (Division 13 (commencing with Section 21000) of the Public
(h) Each cooperative agreement shall provide for the incorporation
of the standards and requirements germane to the protection of the
environment, public health, and safety listed in subdivision (e), as
enacted, or as those provisions may be amended after January 1, 1992,
or after the effective date of any cooperative agreement, if those
standards and requirements meet both of the following requirements:
(1) The standards and requirements do not discriminate against a
tribe which has executed a cooperative agreement, or a lessee of the
tribe, and are applicable to, or not more stringent than, other rules
applicable to other similar or analogous facilities or operations
outside Indian country.
(2) Adequate notice and opportunity for comment on the
incorporation of new and amended standards or requirements are
provided to the tribe, facility owner, and operator to facilitate any
physical or operational changes in the facility in accordance with
(a) A tribe shall be eligible for technical assistance to
the extent feasible, from the agencies specified in subdivision (b)
of Section 25198.3, for the design, establishment, and implementation
of a permit system, cooperative monitoring programs, a tribal
enforcement system, and implementation of any other regulatory
(b) Each cooperative agreement shall provide for reasonable
compensation to relevant state agencies for costs and expenses
incurred by the state in connection with technical assistance
provided to the tribe for the regulatory activities provided in this
article, including, but not limited to, monitoring, enforcement,
permitting, review, and other activities described in this article,
and the reviews required by Section 25198.3, on a nondiscriminatory
basis when compared with similar services to similar projects outside
of Indian country.
(c) Each cooperative agreement shall provide for the sharing of
appropriate data and other information between any tribal regulatory
body, any federal agency, the owner or operator, and applicable state
agencies, including, but not limited to, all monitoring data
collected respecting the hazardous waste facility. The agreement
shall provide for confidentiality of privileged, proprietary, or
trade secret information.
(d) Each cooperative agreement shall include a dispute resolution
mechanism for addressing issues of contract interpretation arising
out of the cooperative agreement.
(e) The parties to a cooperative agreement executed pursuant to
this article may mutually agree to modifications of time periods for
actions which are required by this article, except the time periods
provided for public notice, review, and comment shall not be
eliminated or reduced.
(f) Each cooperative agreement shall require the relevant state
agencies to provide detailed comments regarding completeness within
30 days after receiving copies of applications filed for tribal and
applicable federal permits with respect to the deficiencies, if any,
of the application with respect to the state standards identified in
Section 25198.3. The failure of any of these state agencies to
provide those comments within that period shall be deemed a finding
of completeness of the respective applications.
(g) Each cooperative agreement shall provide for reasonable access
by state agency personnel to Indian country governed by a tribe
which has executed a cooperative agreement pursuant to this article
for purposes of assistance with permit application review,
inspection, and monitoring of operation of a hazardous waste
facility. The cooperative agreement shall also provide for reasonable
access for purposes of permit application review and inspection, to
the extent the state can provide that access, by tribal regulatory
authorities to transfer stations, or similar facilities, located
outside of Indian country and handling waste to be transferred to
(a) Each cooperative agreement shall require the public
agencies specified in subdivision (b) of Section 25198.3 to review
any draft tribal permit and any applicable federal permit to
determine whether it contains all conditions sufficient to do all of
(1) Meet the functionally equivalent standards provided in the
cooperative agreement, as required by subdivision (e) of Section
(2) Provide not less than the level of protection for public
health, safety, and the environment that would have been the case if
that state agency had issued the permit.
(3) Implement all feasible mitigation measures. For purposes of
this paragraph, "feasible" has the same meaning as in Sections 21001,
21002.1, and 21004 of the Public Resources Code, and any regulations
adopted pursuant to those sections.
(b) Each cooperative agreement shall provide that the tribal or
federal permits issued for the hazardous waste facility meet the
requirements of this section.
(c) The failure of a party to a cooperative agreement to meet the
requirements of this section shall be determined to be an actionable
breach of the cooperative agreement.
(d) The election by a party to a cooperative agreement to pursue a
contractual remedy shall not limit the ability of a party to assert
its respective claims of jurisdiction or sovereign immunity.
(e) Entering into a cooperative agreement shall not be a basis for
denying any remedy to which a party is otherwise entitled.
(f) Within 10 days of issuance of a final federal permit or tribal
permit, a copy of that permit shall be provided to the California
Environmental Protection Agency and the tribe having jurisdiction
over the facility.
(a) Nothing in this article shall limit or expand, or be
construed to limit or expand, the jurisdiction of any state agency
specified in subdivision (b) of Section 25198.3 or any tribal agency
with respect to any hazardous waste facility located in Indian
country, including, but not limited to, the enforcement powers and
procedures available to the state or any tribe with respect to those
facilities to the extent not preempted by federal law, including, but
not limited to, powers and procedures contained in state or tribal
statutes or regulations.
(b) The cooperative agreement shall provide that the state may
exercise its enforcement powers over any hazardous waste facility
project on Indian country where a cooperative agreement has been
executed, subject to all of the following requirements:
(1) A violation or threatened violation of any standard or
requirement set forth in Section 25198.3, or its functional
equivalent in the cooperative agreement, or any condition set forth
in a cooperative agreement or permit for the facility, has occurred
or is occurring. For purposes of this paragraph, "threatened
violation" means a condition creating a substantial probability of
harm, when the probability and potential extent of harm make it
reasonably necessary to take immediate action to prevent, reduce, or
mitigate damages to persons, property, or natural resources.
(2) The violation or violations have been brought to the attention
of the tribe and to the owner and operator of the hazardous waste
facility, through written notice from the appropriate agency. The
notice shall identify the specific violation or violations which are
occurring or have occurred and a specific corrective or enforcement
action or range of actions, including sufficient penalties. The
notice shall include a specific and reasonable timeframe in which to
take appropriate corrective or enforcement action.
(3) The tribe, after receiving the notice, has failed to take the
action or actions, or to take other reasonable action to abate or
correct the violation or violations, in a reasonable time.
(c) The functionally equivalent provisions of tribal or federal
permits, as determined sufficient pursuant to Section 25198.3,
together with any cooperative agreement approved pursuant to this
article, shall collectively be deemed to constitute permits issued
under state law for all purposes of enforcing state law.
(d) Notwithstanding subdivision (b), each of the public agencies
specified in subdivision (b) of Section 25198.3 may immediately
exercise its enforcement powers over any hazardous waste facility
project on Indian country where a cooperative agreement has been
executed, if, in the judgment of the public agency, immediate state
action is required to avoid an imminent and substantial threat to
public health and safety or to the environment. The state shall
notify the tribe prior to taking any action pursuant to this
(a) The cooperative agreement shall provide that the state
or tribe may bring an appropriate civil action in a court of
competent jurisdiction to enforce the terms of the cooperative
agreement as a contract, and shall not limit the availability to
either party of any remedy at law or in equity otherwise available
under California law.
(b) The cooperative agreement shall require that the tribe waive
its sovereign immunity from any action brought by the state in any
court otherwise having jurisdiction over the subject matter, and that
the state shall waive its sovereign immunity from any action brought
by the tribe, in any court otherwise having jurisdiction over the
subject matter, to enforce the terms of the cooperative agreement.
A cooperative agreement executed pursuant to this article
shall be executed for the express benefit of the citizens of this
Any person may commence a civil action on the person's own
behalf against any of the public agencies specified in subdivision
(b) of Section 25198.3, or against the secretary, who is alleged to
have approved or certified the sufficiency of any cooperative
agreement or permit in violation of this article. No action may be
commenced under this section more than 60 days after the agency or
secretary has approved or certified the sufficiency of any
cooperative agreement or permit under this article.