Article 5. Administration of California Health And Safety Code >> Division 104. >> Part 3. >> Chapter 4. >> Article 5.

The department may adopt regulations regarding hazardous substances as it determines are necessary to adequately enforce and administer this chapter. Any violation of the regulations shall be deemed to be a violation of this chapter.

Whenever in the judgment of the department the action will promote the objectives of this chapter by avoiding or resolving uncertainty as to its application, the department may by regulation declare to be a hazardous substance, for the purpose of this chapter, any substance or mixture of substances that it finds meet the requirements of Section 108125.

If the department finds that the requirements of Section 108200 are not adequate for the protection of the public health and safety in view of the special hazard presented by any particular hazardous substance, it may by regulation establish reasonable variations or additional label requirements as it finds necessary for the protection of the public health and safety; and any hazardous substance intended, or packaged in a form suitable, for use in the household or by children, that fails to bear a label in accordance with regulations shall be deemed to be a misbranded hazardous substance.

The regulations shall be adopted by the department in the manner prescribed by Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code. The regulations shall conform as nearly as practicable with regulations promulgated by the United States Department of Health, Education, and Welfare, Food and Drug Administration.

To the extent that the requirements of this chapter are identical with the federal act, all regulations and any amendments to regulations adopted pursuant to the federal act that are in effect on the effective date of this section or that are adopted on or after the date are the hazardous substances regulations of this state.

A federal regulation adopted pursuant to this chapter takes effect in this state 30 days after it becomes effective as a federal regulation. Any person who will be adversely affected by adoption of a federal regulation in this state may, within the 30 days prior to its becoming effective in this state, file with the state department, in writing, objections and a request for a hearing. The timely filing of substantial objections to a regulation that has become effective under the federal act, stays the adoption of the regulation in this state.

If substantial objections are made to a federal regulation within 30 days prior to its becoming effective in this state or to a proposed regulation within 30 days after it is published, the state department, after notice, shall conduct a public hearing to receive evidence on issues raised by the objections. Any interested person or his or her representatives shall be heard. The state department shall act upon objections by order and shall mail the order to objectors by certified mail as soon after the hearing as practicable. The order shall be based on evidence contained in the record of the hearing. If the order concerns a federal regulation, the state department may adopt, rescind, or modify it. If the order concerns a proposed regulation, the state department may withdraw it or set an effective date for the regulation as published or as modified by the order. The effective date shall be at least 60 days after publication of the order.

If the department finds that, because of the size of the package involved or because of the minor hazard presented by the substance contained therein, or for other good and sufficient reasons, full compliance with the labeling requirements otherwise applicable under this chapter is impracticable or is not necessary for the adequate protection of the public health and safety, the department may exempt the substance from these requirements to the extent it determines to be consistent with adequate protection of the public health and safety.

The department may exempt from the requirements established by, or pursuant to, this chapter any container of a hazardous substance with respect to which it finds that adequate requirements satisfying the purposes of this chapter have been established by, or pursuant to, any other law enacted by the Legislature.

The department may appoint agents as it may deem necessary.

The department or its duly authorized agent shall have free access to all reasonable hours to any factory, warehouse, or establishment in which hazardous substances are manufactured, processed, packed, or held for introduction into commerce, or to enter any vehicle being used to transport or hold hazardous substances, in commerce, for either of the following purposes:
  (a) Inspecting the factory, warehouse, establishment, or vehicle to determine if any of the provisions of this chapter are being violated.
  (b) To secure samples or specimens of any hazardous substances. If the agent obtains any sample, prior to leaving the premises, he or she shall give to the owner, operator, or agent in charge a receipt describing the samples obtained. If an analysis is made of the sample, a copy of the results of the analysis shall be furnished promptly to the owner, operator, or agent in charge.

Whenever a duly authorized agent of the department finds, or has probable cause to believe, that any hazardous substance is so misbranded as to be dangerous or fraudulent or is a banned hazardous substance, he or she shall affix to the article a tag or other appropriate marking, giving notice that the article is, or is suspected of being, misbranded and has been detained or quarantined, and warning all persons not to remove or dispose of the article by sale or otherwise until permission for removal or disposal is given by the department or the court.

Whenever the findings of the department show, after investigation and examination, that any hazardous substance found in the possession of any person is misbranded, or banned, the hazardous substance may be seized and quarantined.

A hazardous substance found to be misbranded, or to be a banned hazardous substance may, by order of a court or judge, or in the absence of the order, with the written consent of the owner thereof, be seized or destroyed.

When a misbranded hazardous substance or a banned hazardous substance is detained or quarantined under this article, the department shall commence proceedings in the name of the people of the State of California against the article in the superior court of the county or city and county in which the article is detained or quarantined by petitioning the court for a judgment to forfeit, condemn, and destroy the article. Upon the filing of the petition, the clerk of the court shall fix a time and place for the hearing thereof, and cause notices thereof to be prepared notifying all persons who may claim an interest in the article of the time and place of the hearing. A copy of the petition and notice shall be posted for 14 days in at least three public places in the city or city and county where the court is held, and in a conspicuous place where the article is detained or quarantined. A copy of the petition and notice shall also be served upon each person in possession of the article and on each owner or claimant whose name and address is known. The service may be made by personal service or by registered mail by mailing a copy of the notice and petition by registered mail to the last known address of the person. At any time prior to the date of the hearing any person in possession of the article, or owner thereof or claimant thereto, may file an answer that may include a prayer for a judgment of release of the article or relief in accordance with Sections 108400 and 108405. At the time set for the hearing, the court shall commence to hear and determine the proceeding, but may, for good cause shown, continue the hearing to a day certain; provided, the court shall finally determine all the issues presented by the petition.

If the court finds that a detained or quarantined article is misbranded, after entry of the decree the article shall be destroyed at the expense of the claimant thereof, under the supervision of the agent of the department. All court costs and fees, and storage and other proper expenses, shall be taxed against the claimant of the article or his or her agent.

If the misbranding can be corrected by proper labeling or processing of the article, after entry of the decree and after costs, fees, and expenses have been paid and a good and sufficient bond, conditioned that the article shall be so labeled or processed, has been executed, the court may by order direct that the article be delivered to the claimant thereof for the labeling or processing under the supervision of an agent of the department. The expense of the supervision shall be paid by the claimant.

The bond shall be returned to the claimant of the article on representation to the court by the department that the article is no longer in violation of this chapter, and that the expenses of the supervision have been paid.

The department shall cause to be published from time to time reports summarizing any judgments, decrees, or court orders that have been rendered under this chapter, including the nature of the charge and the disposition thereof. The department shall also cause to be disseminated information regarding hazardous substances in situations involving, in the opinion of the department, imminent danger to health. Nothing in this section shall be construed to prohibit the department from collecting, reporting, and illustrating the results of the investigations of the department.

In addition to the remedies heretofore provided, the department is hereby authorized to bring an action in superior court and the court shall have jurisdiction upon hearing and for cause shown, to grant a temporary or permanent injunction restraining any person from violating any provision of this chapter. Any proceeding under this section shall conform to the requirements of Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, except that the department shall not be required to allege facts necessary to show or tending to show lack of adequate remedy at law or to show or tending to show irreparable damage or loss.

If any provision of this chapter is declared unconstitutional, or the applicability thereof to any person or circumstance is held invalid, the constitutionality of the remainder of the chapter and the applicability thereof to other persons and circumstances shall not be affected thereby.