Added by Stats. 1984, Ch. 1543, Sec. 2.
This article shall be known and may be cited as the Toxic Pits Cleanup Act of 1984.
Article 9.5 - Surface Impoundments
California Health and Safety Code — §§ 25208-25208.17
Sections (10)
Added by Stats. 1984, Ch. 1543, Sec. 2.
The Legislature finds and declares as follows:
(a)Discharges of liquid hazardous wastes or hazardous wastes containing free liquids into lined or unlined ponds, pits, and lagoons pose a serious threat to the quality of the waters of the state.
(b)Recent reports indicate that hazardous waste contamination from surface impoundments is migrating to domestic drinking water supplies and threatening the continued beneficial uses of the state’s ground and surface waters, air, and
environment.
(c)Under the federal Resource Conservation and Recovery Act of 1976 (42 U.S.C. Sec. 6901 et seq.), and under state regulations, the storage of hazardous wastes in existing ponds has not been required to meet the same requirements as new impoundments, such as double liners, leachate collection, and leak detection.
(d)Recent studies have found that synthetic liners, clay liners, and combinations, including clay and synthetic liners, impede, but do not eliminate, leachate from surface impoundments migrating into the surrounding environment.
(e)It is in the public interest to establish a continuing program for the purpose of preventing contamination from, and improper storage, treatment, and disposal of, liquid hazardous wastes or hazardous wastes containing free liquids in surface impoundments. It
is the intent of the Legislature, in enacting this article, to establish a program that will ensure that existing surface impoundments are either made safe or are closed, so that they do not contaminate the air or waters of the state, and so that the health, property, and resources of the people of the state are protected.
Added by Stats. 1984, Ch. 1543, Sec. 2.
For purposes of performing the functions and duties provided for in this article, and because of the urgency in protecting the public, the state board and regional boards may, during the 1984–85 fiscal year, contract for temporary services necessary to implement this article.
Amended by Stats. 2022, Ch. 258, Sec. 56. (AB 2327) Effective January 1, 2023. Operative January 1, 2024, pursuant to Sec. 130 of Stats. 2022, Ch. 258.
This article shall not be construed to limit or abridge the powers and duties granted to the department pursuant to this chapter or pursuant to Part 2 (commencing with Section 78000) of Division 45 or to the state board or any regional board pursuant to Division 7 (commencing with Section 13000) of the Water Code.
Added by Stats. 1984, Ch. 1543, Sec. 2.
Article 2 (commencing with Section 13320) of, Article 3 (commencing with Section 13330) of, and Article 4 (commencing with Section 13340) of, Chapter 5 of Division 7 of the Water Code applies to any action of, or failure to act by, a regional board pursuant to this article.
Amended by Stats. 1988, Ch. 885, Sec. 1.
(a)If the regional board determines that certain mining wastes have properties so that the wastes do not pollute or threaten to pollute the waters of the state when discharged into a surface impoundment which is in compliance with all applicable regulations adopted by the state board pursuant to Division 7 (commencing with Section 13000) of the Water Code, the regional board may exempt a surface impoundment into which these mining wastes are discharged from Sections 25208.4 and 25208.5, pursuant to subdivision (b).
(b)A person may apply to a regional board authorized pursuant to subdivision (a) for an exemption from Section 25208.4 or 25208.5, or from both sections, for a surface impoundment, into which mining wastes are discharged by filing an application with the regional board. If the surface impoundment was constructed before January 1, 1984, the person shall file the application with a regional board by January 1, 1986. Except as provided in subdivision (c), the initial application for exemption shall include a completed hydrogeological assessment report which contains the accurate data and documentation specified in Section 25208.8. A regional board may grant the applicant an exemption from Section 25208.4 or 25208.5, or both, if the regional board makes both of the following findings:
(1)The applicant for the exemption has fully complied with all the applicable regulations adopted by the state board for mining waste.
(2)The surface impoundment does not pollute or threaten to pollute the waters of the state.
(c)If the regional board grants an exemption pursuant to subdivision (b), the regional board shall revise the waste discharge requirements prescribed pursuant to Section 13263 of the Water Code for that surface impoundment based upon a review of the report and shall include conditions in the waste discharge requirement to ensure that the waters of the state will not be polluted or threatened with pollution. Except as hereafter provided, if the regional board does not grant the exemption within two years of the date of application, the applicant shall comply with the requirements specified in either Section 25208.4 or 25208.5, or with both sections, whichever is applicable, within three years from the initial date of application. If the applicant submitted the hydrogeologic assessment
report on or before January 1, 1986, and the regional board determines that the report submitted contains insufficient information to allow the regional board to complete a reasoned evaluation and the applicant did not receive notice in writing of the deficiencies on or before January 1, 1988, the applicant may be granted up to a maximum of one year from the date of written notification of the deficiencies for the sole purpose of providing the information necessary to correct the deficiencies. Upon receipt of the additional information, the regional board shall complete the evaluation and may grant an exemption in accordance with this section within 60 days. If the regional board denies the exemption, the applicant shall comply with the requirements specified in either Section 25208.4 or 25208.5, or with both sections, whichever is applicable, within one year of the date of denial.
(d)An exemption granted pursuant to subdivision (b) shall
not be effective for more than five years. A regional board shall not renew the exemption unless the regional board makes the findings specified in subdivision (b).
(e)Applications for an exemption or renewal of an exemption shall be accompanied by the fee specified in the fee schedule adopted by the state board pursuant to Section 25208.3.
(f)If a regional board determines that a surface impoundment granted an exemption pursuant to subdivision (b) is polluting the waters of the state, the regional board shall take all of the actions specified in Section 25208.6.
Added by Stats. 1984, Ch. 1543, Sec. 2.
Not later than January 1, 1987, the state board shall provide the Legislature with a report containing information regarding the number of applications for exemption which are filed pursuant to Sections 25208.4 and 25208.5. The state board shall include in this report a preliminary workplan detailing plans for implementation of this article.
The time limits set forth in this article are predicated upon the assumption that there will be not more than 300 applications filed pursuant to subdivision (b) of Section 25208.4 and subdivision (c) of Section 25208.5. The time
limits set forth in this article assume that there are, on the average, three surface impoundments per facility.
It is the intent of the Legislature that if it determines that there are more than 300 applications filed with regional boards with on the average, more than three surface impoundments for each facility, the Legislature will adjust the time limits specified in Sections 25208.4 and 25208.5.
The Legislature hereby recognizes that if there are more than 300 applications filed by January 1, 1986, with the regional boards, the time limits should be adjusted to ensure a thorough analysis of each application.
Added by Stats. 1985, Ch. 1400, Sec. 1.
(a)Notwithstanding any other provision of this article, an in-ground sump, used by a pest control operator licensed under Section 11705 of the Food and Agricultural Code, or used by a local or state agency, which meets all of the specifications listed in subdivision (b) and complies with subdivision (c), is exempt from the requirements of subdivision (a) of Section 25208.4, Section 25208.5, and Section 25208.8 if, prior to installation, the plan for the in-ground system is submitted to the regional board and the regional board determines that the system complies with this section.
(b)For purposes of this article, an “in-ground sump” shall have the following specifications:
(1)It consists of two containment units. The primary container is constructed primarily of nonearthen materials, including, but not limited to, stainless steel or plastic, and is designed to prevent the migration of any constituents into the secondary container. The secondary container is constructed of impermeable materials and is designed to prevent the migration of any hazardous waste constituents into the ground surrounding the secondary container. The secondary container shall also be designed to prevent the intrusion of groundwater, rainwater, or any other surface runoff into the space beneath the primary container.
(2)It is designed to allow visual inspection of the space underlying the primary container each
operating day.
(3)The dimensions of the in-ground sump do not exceed six feet in depth, nor 75 square feet of surface area for each hazardous waste containment system.
(4)The in-ground sump is used for pest control operations.
(c)In order to qualify for the exemption, an in-ground sump shall be pumped empty of free liquid at least twice each operating day and these free liquids shall not be returned to the sump. The sump shall be visually inspected at least once each operating day. A record of all visual inspections shall be maintained by the pest control operator or local or state agency and shall be audited by the regional board at least annually.
(d)If at any time the regional board determines that the primary container of an in-ground
sump is leaking, the regional board shall immediately order the discharge to cease and shall either order installation of a new primary container as provided in paragraph (1) of subdivision (b) or revoke the exemption authorized by this section. Nothing in this section shall be construed to limit the regional board’s authority to take any action necessary to determine whether an in-ground sump poses any threat to the waters of the state.
Amended by Stats. 1997, Ch. 330, Sec. 1. Effective January 1, 1998.
(a)A person may apply to the regional board for an exemption from subdivision (c) of Section 25208.4 for a surface impoundment into which restricted hazardous wastes that do not contain cyanide wastes or polychlorinated biphenyls (PCBs) in concentrations specified in paragraphs (1) and (4) of subdivision (a) of Section 25122.7 are discharged for the purpose of onsite temporary storage and treatment by filing an application with the regional board. If the surface impoundment was constructed before January 1, 1984, the person shall file
the application with a regional board by March 1, 1986. The initial application for exemption shall include a completed hydrogeological assessment report that contains the accurate data and documentation specified in Section 25208.8. A regional board may grant the applicant an exemption from subdivision (c) of Section 25208.4 if the regional board makes all of the following findings:
(1)No extremely hazardous wastes are currently being discharged into the surface impoundment, and either one of the following applies:
(A)The records of the person applying for the exemption indicate that no extremely hazardous wastes have been discharged into the surface impoundment.
(B)Extremely hazardous wastes are not present in the surface impoundment, in the vadose zone, or in the waters of the state.
(2)The surface impoundment is used for the purpose of temporary storage and noncontinuous batch treatment, all hazardous wastes are removed after each batch treatment within 30 days from the date of discharge into the impoundment, and the surface impoundment is visually inspected prior to each use, tested for integrity at least annually, and is in compliance with subdivision (a) of Section 25208.7. A report of this test shall be filed with the regional board.
(3)The surface impoundment is in compliance with Section 25208.5 and a report has been filed pursuant to Section 25208.8.
(b)For purposes of this section, “treatment” means any method of neutralization and precipitation of metals from an acidic solution that changes the physical or chemical characteristics of the restricted hazardous waste so as to render
it less harmful to the quality of the waters of the state, safer to handle, or easier to contain or manage.
(c)An exemption granted pursuant to subdivision (a) shall be effective for not more than five years. A regional board shall not renew the exemption unless the regional board makes the findings specified in subdivision (a).
(d)Applications for an exemption or renewal of an exemption shall be accompanied by the fee specified in the fee schedule adopted by the state board pursuant to Section 25208.3.
(e)If a regional board determines that a surface impoundment granted an exemption pursuant to subdivision (a) is polluting, or threatening to pollute, the waters of the state, the regional board shall take all of the actions specified in Section 25208.6.
(f)The exemption authorized by this section shall be available only for surface impoundments used for the temporary storage and treatment of boiler cleaning wastes at fossil-fueled powerplants owned or operated by a public utility subject to the jurisdiction of the Public Utilities Commission used to generate electricity for sale to the public, except that a public utility that has secured an exemption under this section may transfer that exemption to a subsequent owner of the fossil-fueled powerplant, regardless of whether the subsequent owner is a public utility subject to the jurisdiction of the Public Utilities Commission or sells the electricity generated to the public, if all of the conditions of subdivision (i) are met. If the exemption is transferred, all the requirements of this section shall apply to the subsequent owner. A subsequent owner may, in turn, transfer the exemption to another subsequent owner if all the conditions of subdivision (i) are met at the time of that
transfer.
(g)For purposes of this section, any surface impoundment located within one-half mile up gradient of a potential source of drinking water shall comply with the requirements for double liners, leachate collection systems, and groundwater monitoring specified in subdivision (a) of Section 25208.5, and shall not be granted an exemption pursuant to subdivision (c) of Section 25208.5.
(h)For purposes of this section, any surface impoundment not located within one-half mile up gradient of a potential source of drinking water shall be equipped with double liners, a leachate collection system, and groundwater monitoring. The leachate collection system and groundwater monitoring required by this subdivision shall be consistent with the requirements specified in subdivision (a) of Section 25208.5. The requirements for double liners in this section may be satisfied by double
liners made of synthetic or other materials with a permeability of not more than 1 x 10-7 centimeters per second. If a substantial breach of the top liner in any surface impoundment covered by this subdivision is detected through inspection, testing, or otherwise, the integrity of the top liner shall be restored prior to the next subsequent use of the impoundment.
(i)A subsequent owner of a fossil-fueled powerplant seeking to obtain a transfer of an exemption granted under this section shall apply for that exemption transfer to the regional board. The application may be granted by the regional board only if the regional board finds that all of the following conditions have been met:
(1)The subsequent owner, at the time of the transfer, will be in compliance with all requirements of this section.
(2)The hydrogeological assessment report, as required by subdivision (a), is on file.
(3)The surface impoundment has been inspected and tested for integrity within the six months prior to the date of the proposed transfer.
(4)The subsequent owner has obtained a transfer of the hazardous waste facilities permit applicable to the surface impoundment and has demonstrated compliance with the financial assurance and liability insurance requirements specified in Article 8 (commencing with Section 66264.140) of Chapter 14 of Division 4.5 of Title 22 of the California Code of Regulations, or any successor regulation.
(5)The application for transfer of the exemption is accompanied by a fee sufficient to cover the costs of processing the application, as
determined by the regional board.
Amended by Stats. 2006, Ch. 538, Sec. 383. Effective January 1, 2007.
(a)Except as provided in subdivision (g), a person specified in subdivision (h) is exempt from filing the report required by Section 25208.7 if the surface impoundment has been closed, or will be closed before January 1, 1988, in accordance with Subchapter 15 (commencing with Section 2510) of Chapter 3 of Title 23 of the California Code of Regulations, and it has only been used for the discharge of economic poisons, as defined in Section 12753 of the Food and Agricultural Code, and if the person submits an application for exemption to
the regional board on or before February 1, 1987, pursuant to subdivision (b) and an initial hydrogeological site assessment report to the regional board on or before July 1, 1987. A qualified person shall be responsible for the preparation of the hydrogeological site assessment report and shall certify its completeness and accuracy.
(b)A person seeking exemption from Section 25208.7 shall file an application for exemption with the regional board on or before February 1, 1987, together with an initial filing fee of three thousand dollars ($3,000). The application shall include the names of persons who own or operate each surface impoundment for which the exemption is sought and the location of each surface impoundment for which an exemption is sought.
(c)Notwithstanding Section 25208.3, each person filing an application for exemption pursuant to subdivision (b) shall pay only
the application fee provided in subdivision (b) and any additional fees assessed by the state board to recover the actual costs incurred by the state board and regional boards to administer this section. The person is not liable for fees assessed pursuant to Section 25208.3, except that, if the person is required to comply with Section 25208.7 or 25208.6, the fees assessed under this section shall include the costs of the regional board and state board to administer those sections.
(d)If a person fails to pay the initial filing fee by February 1, 1987, or fails to pay any subsequent additional assessment pursuant to subdivision (c), the person shall be liable for a penalty of not more than 100 percent of the fees due and unpaid, but in an amount sufficient to deter future noncompliance, as based upon that person’s past history of noncompliance and ability to pay, and upon additional expenses incurred by the regional board and state board as a
result of this noncompliance.
(e)Notwithstanding Section 25208.3, after the regional board has made a determination pursuant to subdivision (g), a final payment or refund of fees specified in subdivision (c) shall be made so that the total fees paid by the person shall be sufficient to cover the actual costs of the state board and the regional board in administering this section.
(f)The hydrogeological site assessment report shall contain, for each surface impoundment, all of the following information:
(1)A description of the surface impoundment, including its physical characteristics, its age, the presence or absence of a liner, a description of the liner, the liner’s compatibility with the hazardous wastes discharged to the impoundment, and the design specifications of the impoundment.
(2)A description of the volume and concentration of hazardous waste constituents placed in the surface impoundment, based on a representative chemical analysis of the specific hazardous waste type and accounting for variance in hazardous waste constituents over time.
(3)An analysis of surface and groundwater on, under, and within one mile of the surface impoundment to provide a reliable indication of whether or not hazardous constituents or leachate is leaking or has been released from the surface impoundment.
(4)A chemical characterization of soil-pore liquid in areas that are likely to be affected by hazardous constituents or leachate released from the surface impoundment, as compared to geologically similar areas near the surface impoundment that have not been affected by releases from the surface impoundment.
This characterization shall include both of the following:
(A)A description of the composition of the vadose zone beneath the surface impoundment. This description shall include a chemical and hydrogeological characterization of both the consolidated and unconsolidated geologic materials underlying the surface impoundment, and an analysis for pollutants, including those constituents discharged into the surface impoundment. This description shall also include soil moisture readings from a representative number of points around the surface impoundment’s perimeter and at the maximum depth of the surface impoundment. If the regional board determines that the use of suction type soil sampling devices is infeasible due to climate, soil hydraulics, or soil texture, the regional board may authorize the use of alternative devices. The initial report shall contain all data in tabular form so that data, constituents, and concentrations are readily
discernible.
(B)A determination of the chemical characteristics of the soil made by collecting a soil sample upgradient from the impoundment or from an area that has not been affected by seepage from the surface impoundment and that is in a hydrogeologic environment similar to the surface impoundment. The determinations shall be analyzed for the same pollutants analyzed pursuant to subparagraph (A).
(5)A description of current groundwater and vadose zone monitoring being conducted at the surface impoundment for leak detection, including detailed plans and equipment specifications and a technical report that provides the rationale for the spatial distribution of groundwater and vadose zone monitoring points for the design of monitoring facilities, and for the selection of monitoring equipment. This description shall include:
(A)A map showing the location of monitoring facilities with respect to each surface impoundment.
(B)Drawings and design data showing construction details of groundwater monitoring facilities, including all of the following:
(i)Casing and hole diameter.
(ii) Casing materials.
(iii) Depth of each monitoring well.
(iv) Size and position of perforations.
(v)Method for joining sections of casing.
(vi) Nature and gradation of filter material.
(vii) Depth and composition of annular
seals.
(viii) Method and length of time of development.
(ix) Method of drilling.
(C) Specifications, drawings, and data for the location and installation of vadose zone monitoring equipment.
(D) Discussion of sampling frequency and methods and analytical protocols used.
(E) Justification of indicator parameters used.
(6)Documentation demonstrating that the monitoring system and methods used at the facility can detect any seepage before the hazardous waste constituents enter the waters of the state. This documentation shall include, but is not limited to, substantiation of each of the following:
(A)The monitoring facilities are located close enough to the surface impoundment to identify lateral and vertical migration of any constituents discharged to the impoundment.
(B)The groundwater monitoring wells are not located within the influence of any adjacent pumping water wells that might impair their effectiveness.
(C)The groundwater monitoring wells are screened only in the zone of groundwater to be monitored.
(D)The casing material in the groundwater monitoring wells does not interfere with, or react to, the potential contaminants of major concern at the impoundment.
(E)The casing diameter allows an adequate amount of water to be removed during sampling and allows full
development of each well.
(F)The annular seal of each groundwater monitoring well prevents pollutants from migrating down the well.
(G)The water samples are collected after at least five well volumes have been removed from the well and that the samples are collected, preserved, transported, handled, analyzed, and reported in accordance with guidelines for collection and analysis of groundwater samples that provide for preservation of unstable indicator parameters and prevent physical or chemical changes that could interfere with detection of indicator parameters. If the wells are low-yield wells, in that the wells are incapable of yielding three well volumes during a 24-hour period, the methods of water sample collection shall ensure that a representative sample is obtained from the well.
(H)The hazardous waste
constituents selected for analysis are specific to the facility, taking into account the chemical composition of hazardous wastes previously placed in the surface impoundment.
(I)The frequency of monitoring is sufficient to give timely warning of any leakage or release of hazardous constituents or leachate so that remedial action can be taken prior to any adverse changes in the quality of the groundwater.
(7)A written statement from the qualified person preparing the report indicating whether any hazardous constituents or leachate has migrated into the vadose zone, water-bearing strata, or waters of the state in concentrations that pollute or threaten to pollute the waters of the state.
(8)A written statement from the qualified person preparing the report indicating whether any migration of hazardous constituents
or leachate into the vadose zone, water-bearing strata, or waters of the state is likely or not likely to occur within five years, and any evidence supporting that statement.
(g)The regional board shall complete a thorough analysis of each hydrogeological site assessment report submitted pursuant to subdivision (b) within one year after submittal. If the regional board determines that a hazardous waste constituent from the surface impoundment is polluting or threatening to pollute, as defined in subdivision (l) of Section 13050 of the Water Code, both of the following shall occur:
(1)The regional board shall issue a cease and desist order or a cleanup and abatement order that prohibits any discharge into the surface impoundment and requires compliance with Section 25208.6.
(2)The person shall file a report
pursuant to Section 25208.7 within nine months after the regional board makes the determination pursuant to subdivision (g). In making any determination under this subdivision, the regional board shall state the factual basis for the determinations.
(h)For purposes of this section, “person” means only the following:
(1)Pest control operators and businesses licensed pursuant to Section 11701 of the Food and Agricultural Code.
(2)Local governmental vector control agencies who have entered into a cooperative agreement with the department pursuant to Section 116180.