25199.11
. (a) An appeal board convened by the Governor or the
Governor's designee to hear an appeal pursuant to subdivision (b) or
(c) of Section 25199.9 shall follow the procedures and requirements
specified in this section.
(b) Within 30 days after the Governor or the Governor's designee
determines that an appeal board should be convened pursuant to
subdivision (b) of Section 25199.9, or paragraph (3) of subdivision
(c) of Section 25199.9, the appeal board shall be convened. Within 15
days after the appeal board has been convened, a public hearing
shall be held in the city or county where the specified hazardous
waste facility project is located. At the hearing, the proponent, and
the local agency whose land use decision is being appealed, shall
present arguments and evidence to the appeal board concerning whether
or not the appeal should be accepted.
(c) Within 15 days after the date of the public hearing specified
in subdivision (b), the appeal board shall decide whether or not to
accept the appeal. The appeal board may accept an appeal only by an
affirmative vote of four members of the appeal board. The appeal
board shall make its decision based upon the arguments and evidence
presented at the hearing. The appeal board's decision shall be in
writing, shall be signed by the members who voted in favor of the
decision, and shall state the reasons for accepting or rejecting the
appeal. The appeal board may accept the appeal if the arguments and
evidence presented at the hearing tend to show that, when the local
agency's reasons for disapproving the application for a land use
decision are weighed against statewide, regional, or county hazardous
waste management policies, goals, and objectives, there are
compelling reasons to review the disapproval of the application.
(d) If the appeal board accepts the appeal, within 30 days after
this acceptance, the appeal board shall conduct an informal workshop
on the subject of the appeal in the city or county where the
specified hazardous waste facility project is proposed to be located.
Within 45 days following acceptance of the appeal, the appeal board
shall also hold a public hearing in the community to hear the
arguments and evidence for the purpose of making a tentative decision
on the appeal. In issuing a decision pursuant to the hearing, the
appeal board shall adopt a rebuttable presumption that the land use
decision of the local agency disapproving the application is
supported by substantial reasons and that, when these reasons are
weighed against statewide, regional, or county hazardous waste
management policies, goals, and objectives, the reasons for reversing
the local agency's action are not compelling. In all matters related
to the appeal, including, but not limited to, matters related to the
findings required by subdivision (f), the burden of proof shall be
with the proponent to rebut this presumption and to establish that
there are compelling reasons to reverse the local agency's land use
decision.
(e) Within 45 days after the public hearing, the appeal board
shall, by an affirmative vote of at least four members, issue a
written decision on the appeal. If the appeal board agrees with the
land use decision of the local agency, the appeal board shall state
its reasons for this position. If the appeal board agrees with the
proponent's appeal, the appeal board shall issue a tentative decision
stating that the local agency's land use decision should be
reversed.
(f) The appeal board shall not reverse the local agency's land use
decision unless the appeal board makes all of the following
findings:
(1) That the significant environmental impacts of the specified
hazardous waste facility project will be adequately mitigated.
(2) That the specified hazardous waste facility project was
consistent with the applicable city or county general plan when the
local agency accepted, as complete, the proponent's application for a
land use decision. For the purpose of this finding, a project is
consistent with the applicable city or county general plan if the
appeal board makes one of the following determinations:
(A) The appeal board may determine that a specified hazardous
waste facility project that is not a land disposal facility project
is consistent with the general plan if the appeal board makes all of
the following findings:
(i) The project is proposed to be located in an area zoned and
designated in the applicable general plan for industrial use and
substantially developed with other industrial facilities which
produce, treat, or dispose of hazardous waste onsite and which are
served by the same transportation routes as the proposed facility. In
addition, the land uses authorized in the applicable general plan
and zoning ordinances in the vicinity of the project are compatible
with the project.
(ii) There is no clear and express provision in the general plan
which states that such a specified hazardous waste facility project
is inconsistent with the general plan, or, if there is such a
provision, the provision was adopted after January 1, 1983.
(iii) The specified hazardous waste project is consistent, as
determined by the appeal board, with the general plan.
(B) The appeal board may determine that a specified hazardous
waste facility project is consistent with the applicable city or
county general plan if the project is a land disposal facility
project, and if all of the following apply:
(i) There is no clear and express provision in the general plan
that states that such a specified hazardous waste facility project is
inconsistent with the general plan, or, if there is such a
provision, the provision was adopted after January 1, 1983.
(ii) The project is consistent, as determined by the appeal board,
with the general plan.
(3) That the specified hazardous waste facility is consistent with
the county hazardous waste management plan, if such a plan has been
adopted by the county, and approved by the department, pursuant to
Article 3.5 (commencing with Section 25135).
(4) That alternative locations for the specified hazardous waste
facility project, as identified in the environmental impact report
for the project and in the county hazardous waste management plan, if
one has been approved by the department, have been adequately
considered by the appeal board in determining the appropriateness of
the location chosen for the project.
(5) That reversing the local agency's land use decision is
consistent with statewide, regional, and county hazardous waste
management policies, goals, and objectives. In making this finding,
the appeal board shall consider all of the following factors:
(A) Whether or not a need for the specified hazardous waste
facility project has been demonstrated.
(B) Whether or not the specified hazardous waste facility project
is of a type, and in a location, that conforms to statewide,
regional, or local hazardous waste management policies.
(C) Whether or not the specified hazardous waste facility will be
operated using the best feasible hazardous waste management
technologies.
(g) The local agency whose land use decision is being appealed may
reconsider the action and approve the application for the land use
decision, consistent with the appeal board's tentative decision,
within 60 days after the appeal board issues its tentative decision.
If the local agency does not approve the application for the land use
decision consistent with the tentative decision within 60 days after
the decision is issued, the appeal board shall, by an affirmative
vote of at least four members, issue a final decision. If the final
decision reverses the local agency's land use decision, the appeal
board shall then require the local agency to approve the application
for the land use decision and if the local agency does not approve
the application for the land use decision, the Attorney General shall
bring an action to require the local agency to approve the
application for the land use decision for the specified hazardous
waste facility project.