Cal. HSC § 25404.1.1 — California Code / Code hsc / Division 20 / Chapter 6.11 / Section 25404.1.1
Section 25404.1.1
Status: in_force

(a) If a unified program agency determines that a person has committed, or is committing, a violation of any law, regulation, permit, information request, order, variance, or other requirement that the UPA is authorized to enforce or implement pursuant to this chapter, the UPA may issue an administrative enforcement order requiring that the violation be corrected and imposing an administrative penalty, in accordance with any of the following:

(1) Except as provided in paragraph (5), if the order is for a violation of Chapter 6.5 (commencing with Section 25100), the violator shall be subject to the applicable administrative penalties provided by that chapter.

(2) If the order is for a violation of Chapter 6.7 (commencing with Section 25280), the violator shall be subject to the applicable civil penalties provided in subdivisions (a), (b), (c), and (e) of Section 25299.

(3) If the order is for a violation of Article 1 (commencing with Section 25500) of Chapter 6.95, the violator shall be subject to a penalty that is consistent with the administrative penalties imposed pursuant to Section 25515.2.

(4) If the order is for a violation of Article 2 (commencing with Section 25531) of Chapter 6.95, the violator shall be subject to a penalty that is consistent with the administrative penalties imposed pursuant to Section 25540 or 25540.5.

(5) If the order is for a violation of Chapter 6.67 (commencing with Section 25270), the violator shall be liable for a penalty of not more than five thousand dollars ($5,000) for each day on which the violation continues. If the violator commits a second or subsequent violation, the violator may be liable for a penalty of not more than ten thousand dollars ($10,000) for each day on which the violation continues.

(6) If the order is for a violation of this chapter, the violator shall be liable for a civil or administrative penalty of not more than five thousand dollars ($5,000) for each day on which the violation continues.

(b) In establishing a penalty amount and ordering that a violation be corrected pursuant to this section, a UPA shall take into consideration the nature, circumstances, extent, and gravity of the violation, the violator’s past and present efforts to prevent, abate, or clean up conditions posing a threat to the public health or safety or the environment, the violator’s ability to pay the penalty, and the deterrent effect that imposing the penalty would have on both the violator and the regulated community.

(c) An order issued pursuant to this section shall be served by personal service or certified mail and shall inform the person served of the right to a hearing. If a UPA issues an order pursuant to this section, the order shall state whether the hearing procedure specified in paragraph (2) of subdivision (e) may be requested by the person receiving the order.

(d) A person served with an order pursuant to this section who has been unable to resolve a violation with a UPA, may within 15 days after service of the order, request a hearing pursuant to subdivision (e) by filing with the UPA a notice of defense. The notice shall be filed with the office that issued the order. A notice of defense shall be deemed filed within the 15-day period provided by this subdivision if it is postmarked within that 15-day period. If no notice of defense is filed within the time limits provided by this subdivision, the order shall become final.

(e) Except as provided in subparagraph (B) of paragraph (2), a person requesting a hearing on an order issued by a UPA under this section may select the hearing officer specified in either paragraph (1) or (2) in the notice of defense filed with the UPA pursuant to subdivision (d). If a notice of defense is filed, but no hearing officer is selected, the UPA may select the hearing officer. Within 90 days of receipt of the notice of defense by the UPA, the hearing shall be scheduled using one of the following:

(1) An administrative law judge of the Office of Administrative Hearings of the Department of General Services, who shall conduct the hearing in accordance with Chapter 4.5 (commencing with Section 11400) of Part 1 of Division 3 of Title 2 of the Government Code, and the UPA shall have all the authority granted to an agency by those provisions.

(2) (A) A hearing officer designated by the UPA, who shall conduct the hearing in accordance with Chapter 4.5 (commencing with Section 11400) of Part 1 of Division 3 of Title 2 of the Government Code, and the UPA shall have all the authority granted to an agency by those provisions. When a hearing is conducted by a UPA hearing officer pursuant to this paragraph, the UPA shall issue a decision within 60 days after the hearing is conducted. Each hearing officer designated by a UPA shall meet the requirements of Section 11425.30 of the Government Code and any other applicable restriction.

(B) A UPA, or a person requesting a hearing on an order issued by a UPA, may select the hearing process specified in this paragraph in a notice of defense filed pursuant to subdivision (d) only if the UPA has, as of the date the order is issued pursuant to subdivision (c), selected a designated hearing officer and established a program for conducting a hearing in accordance with this paragraph.

(f) A hearing decision issued pursuant to paragraph (2) of subdivision (e) shall be effective and final upon issuance by the UPA. A copy of the decision shall be served by personal service or by certified mail upon the party served with the order, or their representative, if any.

(g) A provision of an order issued under this section, except the imposition of an administrative penalty, shall take effect upon issuance of the order by a UPA if the UPA finds that the violation or violations associated with that provision may pose an imminent and substantial endangerment to the public health or safety or the environment. A request for a hearing shall not stay the effect of that provision of the order pending a hearing decision. However, if the UPA determines that any or all provisions of the order are so related that the public health or safety or the environment can be protected only by immediate compliance with the order as a whole, the order as a whole, except the imposition of an administrative penalty, shall take effect upon issuance by the UPA. A request for a hearing shall not stay the effect of the order as a whole pending a hearing decision.

(h) A hearing decision issued pursuant to paragraph (2) of subdivision (e) may be reviewed by a court pursuant to Section 11523 of the Government Code. In all proceedings pursuant to this section, the court shall uphold the decision of the UPA if the decision is based upon substantial evidence in the record as a whole. The filing of a petition for writ of mandate shall not stay any action required pursuant to this chapter or the accrual of any penalties assessed pursuant to this chapter. This subdivision does not prohibit the court from granting any appropriate relief within its jurisdiction.

(i) All administrative penalties collected from actions brought by a UPA pursuant to this section shall be paid to the UPA that imposed the penalty, and shall be deposited into a special account that shall be expended to fund the activities of the UPA in enforcing this chapter.

(j) The UPA shall consult with the district attorney, county counsel, or city attorney on the development of policies to be followed in exercising the authority delegated pursuant to this section as it relates to the authority of the UPA to issue orders.

(k) (1) A unified program facility shall pay a permit fee established by the UPA and any fine or penalty associated with the permit.

(2) A unified program agency may withhold, suspend, or revoke any unified program facility permit, or an element of a unified program facility permit as outlined, for all of the following reasons:

(A) Failing to pay a permit fee.

(B) Failing to pay a fine or penalty associated with a permit.

(C) Failing to comply with an order or written notice issued pursuant to subparagraph (A) of paragraph (1) of subdivision (e) of Section 25510.

(3) (A) If a unified program facility does not comply with a written notice from the unified program agency to the permittee to make the payments specified in paragraph (1) by the required date provided in the notice, the UPA may withhold issuance of, suspend, or revoke the permit or permit element.

(B) If the unified program facility does not have a valid unified program facility permit or if the permit or permit element is suspended or revoked, the unified program facility shall immediately discontinue operating the facility, as applicable, or function of the facility to which the permit or permit element applies until the UPA issues, reinstates, or reissues the permit or permit element.

(C) Subparagraph (B) does not apply to the owner or operator of a facility who submits a timely application for a unified program facility permit, or for a renewal of a permit, and the facility is in compliance with the requirements of this chapter, but has not yet received the permit or renewed permit from the UPA. A submittal of facility information to the California Environmental Protection Agency’s California Environmental Reporting System (CERS) constitutes a submittal of a unified program facility permit or permit renewal application for purposes of this subparagraph.

(D) Subparagraphs (A) and (B) do not apply to the United States Department of Defense or the United States Coast Guard only if nonpayment of the permit fee or fine or penalty associated with the permit is due to payment delays due to federal appropriations or federal payment process issues and the required payment will happen once the federal payment delay issue is resolved.

(4) A unified program facility may request a hearing to appeal the withholding of the issuance of, or the suspension or revocation of, a permit or permit element pursuant to this subdivision by requesting a hearing using the procedures provided in subdivision (d).

(l) This section does not do any of the following:

(1) Otherwise affect the authority of a UPA to take any other action authorized by any other law, except the UPA shall not require a person to pay a penalty pursuant to this section and pursuant to a local ordinance for the same violation.

(2) Restrict the power of a city attorney, district attorney, county counsel, or the Attorney General to bring, in the name of the people of California, any criminal proceeding otherwise authorized by law.

(3) Prevent the UPA from cooperating with, or participating in, a proceeding specified in paragraph (2).