Laws, Regulations & Annotations

Business Taxes Law Guide – Revision 2010
 

Hazardous Substances Tax Annotations

AMNESTY

Interest

A feepayer paid facility fees late and was assessed interest, but did not pay it. SB 922's amnesty provision applies to the interest because the liability on which the interest was based would not have been due under SB 922 if it had not been paid. 6/5/95.

Standardized Permit Facilities

A feepayer paid facility fees for fiscal years 1986–1987, 1987–1988 and 1988–1989. Under the amnesty provisions for standardized permit facilities (Health and Safety Code sections 25205.2(I) and 25205.12(d)), the feepayer would not be liable for facility fees for those years if it had not paid. However, since the fees were paid, the feepayer is entitled to an exemption from the facility fee for three subsequent years, but not to a refund. If the amounts due for the three future years exceed the amounts previously paid, the feepayer would not be required to pay the difference. If the amounts due for the three future years are less than the amounts previously paid, no refund would be available. 2/10/94.

Transportable Treatment Units

Beginning January 1, 1994, section 25200.2(b) of the Health and Safety Code, as enacted by SB 922, allows transportable treatment units (TTU's) to pay the same fee as facilities operating under the permit-by-rule (PBR) system, even if the TTU held a hazardous waste facility permit. The exemption from the facility fee for TTU's is retroactive, unless the fees were paid or billed prior to September 1, 1992. 8/12/94.

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CLASSIFICATION OF FEEPAYER OR WASTE

Bankruptcy

The generator fee does not apply to persons who generate less than five tons of hazardous waste in a year. If, in a given year, a person generates four tons prior to filing for bankruptcy and two tons after filing, the generator fee will be due. There is no change of ownership of the assets, and thus the generation of the waste before and after filing for bankruptcy is by the same person. 9/20/88.

Bulking

Bulking is a process in which containers of hazardous waste are opened and the contents placed in a larger container with the contents of other small containers. Nothing is added, and the waste is not subject to any other type of processing. If the wastestreams from the small containers are comprised of the same material, no treatment will be regarded as having taken place. However, if the combination of the wastestreams results in a change which meets the statutory definition of treatment, the person performing the bulking will be required to hold a facility permit or other authorization to operate. 2/14/94.

Decision by the Department of Toxic Substances Control (DTSC)

Where DTSC has decided to grant a feepayer a variance from the requirement to pay the generator fee, the Board does not have the authority do decide otherwise. 7/12/89.

Draining Transformers

Draining polychlorinated biphenyls (PCB's) from electrical transformers followed by flushing the transformers with diesel fuel constitutes treatment of the transformers. The facility at which this is done is a treatment facility, not a storage facility. The facility was also liable for the land disposal fee because it disposed of a new wastestream which was created when it treated the transformers. 4/1/94.

Effect of Permit on Fee Liability

Generally, prior to January 1, 1994, a person who held a permit for treatment of hazardous waste was liable for the fee even though no waste was treated during a particular period. 10/18/94.

Excavation

The person who excavates contaminated soil and manifests it for disposal is regarded as the generator of hazardous waste because excavation is the act which produces hazardous waste and which first causes hazardous waste to become subject to regulation. 4/12/94.

Gravity Separation

The separation of an oil and water mixture by gravity constitutes treatment of hazardous waste. 4/12/94.

Intent of Operator to Remove Waste from Site

The intent of the operator of a hazardous waste facility to remove the hazardous waste at some indefinite time in the future does not form a basis for classifying the facility as a storage facility if the present operation is actually disposal. 9/21/93.

Lack of Buildup In Pond or Sprayfield Indicates Treatment Rather Than Disposal

Liquid hazardous waste is pumped to an unlined treatment pond where it is subjected to biodegradation. Some liquid evaporates, but the concentration of the hazardous material remains fairly constant. This constitutes treatment rather than disposal. Subsequently, the liquid is pumped out of the pond and is sprayed onto an engineered sprayfield which contains a large amount of vegetation and which has a liner to prevent leakage. The level of hazardous material in the soil remains fairly constant. The sprayfield is also a treatment process. Liquid drains from the sprayfield into an unlined ditch. This final step constitutes disposal. 10/31/91.

Land Treatment

Section 25205.1(o)(1) of the Health and Safety Code, as enacted in SB 922, defines disposal to exclude land treatment. Since there was no prior legislative definition of land treatment, the section is regarded as a clarification of existing law rather than a change in law. 1/28/94.

Neutralization Pit

The operation of a neutralization pit constitutes the operation of a hazardous waste treatment facility. The Board does not have statutory authority to issue a variance for the neutralization pit or to waive the facility fee, even if it finds that the Department of Toxic Substances Control should have issued a variance. 9/30/91.

Polychlorinated Biphenyls (PCB's)

PCB's are non-RCRA waste and the disposal fee rate for non-RCRA waste applies, unless the concentration of PCB's is sufficient to render the waste extremely hazardous. 8/27/90.

RCRA Waste Treated to be Non-RCRA or Non-Hazardous

Prior to January 1, 1998, RCRA waste which was generated during a cleanup or remedial action, and subsequently treated to be non-RCRA or non-hazardous at the disposal facility to which the waste was submitted, was subject to the disposal fee rates specified in Health and Safety Code section 25174.6(a)(1)(A), since the waste satisfied the requirements of section 25174.6(b)(2). [From January 1, 1998, through December 31, 2000, such waste was subject to the fees specified in section 25174.6(a)(1)(B).] 10/24/97. (M99–1). (Am 2003-1).

Residential Hazardous Waste

Generally, an individual who generates hazardous waste incidental to owning and maintaining a place of residence is subject to the generator fee even though the actual removal is performed by a contractor. However, no fee is due unless five tons of waste are generated within a calendar year. 1/5/90.

Rinsing Containers

Rinsing of containers which previously held hazardous substances constitutes treatment of hazardous waste inasmuch as the containers themselves constitute hazardous waste, unless the containers are excluded from classification as a waste by the Department of Toxic Substances Control's regulations. 8/27/93.

Storage of Waste During Closure

A facility was classified as a mini-storage facility during its closure period since it was originally permitted as a storage facility and no waste was stored while the closure activities took place. During the closure period, the feepayer was also engaged in a large cleanup operation at a different part of the site. Since the accumulation of waste in the cleanup area did not require another storage facility permit or a modification of the existing storage facility permit, the cleanup activities did not affect the classification of the facility. 9/12/95.

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CLOSURE

Settlement Negotiations

The fact that a feepayer is negotiating a settlement with the Department of Toxic Substances Control concerning the operation of its facility does not stay the collection of fees for later periods. 9/15/93. (Am 2003-1).

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DEFINITIONS

Disposal

Generally, the moving of contaminated soil to a different part of a site where it will be capped constitutes disposal. The moving of contaminated soil to roadways on a different part of a site where it will be aerated and then allowed to remain in place as resurfacing material is also disposal. 6/29/90.

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DETERMINATION, CLAIMS, AND STATUTE OF LIMITATIONS

Activity Fee

The Board billed a company for an activity fee, which was later reduced based on a subsequent decision by the DTSC and legislative changes. However, since the event which triggered the application of the fee occurred before the original determination was issued, the feepayer was required to pay interest on the reduced fee, beginning 30 days after the date of the original assessment. 4/04/96.

Activity Fee Determination

The Board issues billings for activity fees imposed by Health and Safety Code sections 25205.7 and 25205.8 [note: section 25205.8 was repealed operative July 1, 1998.] as notices of determination in order to provide the feepayer an opportunity to challenge the billing by filing a petition for redetermination, rather than having to pay the fee and file a claim for refund. Pursuant to Revenue and Taxation Code section 43152.10, the activity fees are due within 30 days of the date of assessment (the date of the notice of determination), and interest begins to accrue if the fees are not paid within that time, whether or not a petition for redetermination is filed. 9/21/90. (Am 2003-1).

DTSC Settlement Agreements

A settlement agreement between a feepayer and DTSC provided that the feepayer would apply for a variance from DTSC's closure requirements within one year of the signing of the agreement, and that the feepayer could void the agreement if DTSC denied the variance. The Board will not initiate any adjustment of the feepayer's liability in the Board's records until the agreement can no longer be voided by either the DTSC or the feepayer. All terms of a settlement agreement must be met before the original assessment or return payment can be adjusted to reflect the final agreement. 2/06/96.

Errors on Notice of Determination

A notice of determination was issued which contained an incorrect Environmental Protection Agency number and the headquarters address of the feepayer rather than the facility address. The notice of determination is valid and need not be canceled and reissued. The basic legal requirement is that the feepayer receive sufficient notice as to the facility to which the determination applies. The feepayer operated only one hazardous waste facility and was well aware of the basis for issuing the determination. 9/7/90.

Facility Fee Determinations—Interest on Prepayment

The statute of limitations for issuing a notice of determination concerning a facility fee prepayment begins on the date that the annual fee was due at the end of the year. If a deficiency determination for a facility fee prepayment issues within three years from the due date of the prepayment, interest on the prepayment begins to accrue as of the due date of the prepayment. However, if the Board is relying on the statutory period which begins to run on the due date of the annual fee at the end of the year, interest begins to accrue as of that date. 5/17/95.

Facility Fee Statute of Limitations

The statute of limitations for issuing a notice of determination for the annual facility fee for a specific reporting period runs from the due date of the second installment or final payment of the fee for that reporting period (Revenue and Taxation Code section 43202). The requirement for installment payments does not render the fee a semi-annual fee. 11/6/93. (Am 2003-1). (Note: effective January 1, 1996, Revenue and Taxation Code section 43152.12 requires two prepayments, in addition to the final return.)

Interest Accrual

Interest begins to accrue on the date that payments are due as provided by statute, not on the date of the notice of determination. 10/25/94.

Relief from Interest

The assessment of interest on the underpayment of hazardous waste fees is mandatory. A feepayer's bankruptcy is not the type of disaster contemplated by the Legislature when it adopted Revenue and Taxation Code section 43158, which allows the Board to grant relief from interest when the failure to timely file a return is due to a disaster. 7/7/95.

Second Claim Based on New Grounds

A feepayer who discovers a new basis for filing a claim for refund (such as newly-enacted legislation or a recently decided court case), may file a claim for refund on that basis within 90 days from the date the Board rejects the feepayer's earlier claim for refund. The Board will rescind the earlier denial, and consider the new claim. 5/24/94.

Settlement Stipulation

A settlement agreement negotiated by the Attorney General on behalf of the Department of Health Services which is silent as to the matter of fees and penalties related to payment of fees, and to which the Board was not a party, does not preclude the Board from collecting such fees and penalties. 12/19/94.

Statute of Limitations for Facility Fee Determination

The statute of limitations for issuing a determination for the hazardous waste facility fee applies regardless of whether the Board sent a facility fee return to the facility operator. 12/13/95.

Statute of Limitations Not Tolled During Settlement Negotiations

The statute of limitations was not tolled while the feepayer engaged in negotiations with the Attorney General concerning an enforcement action taken by the Attorney General on behalf of the Department of Toxic Substances Control, even though the result of those negotiations included an agreement that the fee was not due. 3/4/92.

Tolling of the Statute of Limitations for Refund Claims

Since the law provides that the Board shall not accept, consider or approve a claim for refund if it is founded upon the grounds that the Director of the Department of Toxic Substances Control (DTSC) has improperly or erroneously determined that a substance is a hazardous waste (Revenue and Taxation Code section 43452(d)), the statute of limitations is tolled for refund claims and petitions for redetermination during the period in which a feepayer is pursuing an appeal through DTSC. However the feepayer must have acted in a timely manner in requesting DTSC to reconsider its position that the waste is hazardous. 6/26/92A.

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DUPLICATION OF FEES

Movement of Waste Previously Disposed Of

A feepayer operated a hazardous waste disposal facility. During closure activities, the contents of some surface impoundments and some contaminated sub-soils were removed and placed in a different hazardous waste disposal location at the same facility. The feepayer is not liable for the land disposal fee or superfund tax as a result of moving the hazardous waste, provided that the second disposal was made into an authorized hazardous waste disposal unit within the same hazardous waste facility and the facility owner or operator can demonstrate that disposal fees have already been paid. 3/4/93.

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ENVIRONMENTAL (CORPORATION) FEE

Banks

Under the California Constitution, banks are subject to a tax on net income in lieu of all other taxes. Since the environmental fee (Health and Safety Code section 25205.6) is regarded as a tax, banks are exempt from it. However, nonfinancial subsidiaries of banks are not exempt. 7/30/91.

City-Owned Corporations

City-owned corporations which are within a Standard Industry Classification Code which has been found by the Department of Toxic Substances Control to be involved with hazardous materials are subject to the fee. 12/20/91.

Determining the Number of Employees Under the Environmental Fee

Once a person is hired as an employee, the employer has control over how that employee spends the hours of the workday, including whether or not to grant paid time off during those workday hours for vacation, illness, and holidays and whether or not the employee must work his or her assigned hours on a particular workday. Therefore, for the purposes of the Environmental Fee statute and calculation of the number of employees "employed [in California] for more than 500 hours," the term "employed" includes the hours for which an employee is paid by the corporation, even when the employee is absent due to vacation, illness, or holidays, for the duration of his or her employment. On the other hand, once the person is no longer employed by the corporation—i.e., is no longer "engage[d], suffer[ed], or permit[ted] to work," the employer no longer "has . . . control [or] determination of the hours of work" of the employee. Therefore, any hours included in the calculation of a terminated employee's severance pay or sick or vacation time cash out should not be included when calculating the number of hours a person was employed during a calendar year for purposes of determining the Environmental Fee owed by the corporation for that year. 3/21/06.

Federal Reserve Bank

Congress expressly exempted the Federal Reserve Bank from taxes, but waived the immunity of federal agencies from fees imposed by states with respect to hazardous wastes programs. The environmental fee is regarded as a tax, and the Federal Reserve Bank is therefore not subject to it. 11/24/92.

Identity of Employee

A property manager contracts with property owners to provide employees to maintain the properties. The property manager hires, discharges, pays, and supervises all employees and labor required for the operation and maintenance of the contracted properties. Even though there is a contract between the property manager and the property owner designating the property owner as the employer, the property manager and not the property owner is the employer under Health and Safety Code section 25205.6. 4/14/97.

Imposition of Fee on All Corporation SIC Codes

In order to impose liability for the fee, it is only necessary to show that the corporation has been assigned a Standard Industrial Classification (SIC) Code for an industry which the Department of Toxic Substances Control (DTSC) has determined is involved with hazardous materials (Health and Safety Code section 25205.6). It is immaterial that the specific corporation is not so involved. It is not the activity per se that triggers the imposition of the fee but rather the SIC Code assigned to the corporation. All technical decisions as to whether a material is hazardous are solely within the discretion of DTSC. 3/13/92.

Indian Reservations

In the absence of specific Congressional permission to subject Native Americans or their tribal corporations to the environmental fee, such tribal corporations are not subject to the fee. 7/3/92.

Instrumentality of State

A California non-profit corporation affiliated with a California State University, and as such, considered an instrumentality of the State by the Internal Revenue Service for federal income tax purposes, is nonetheless a separate and distinct California corporation for which there is no exemption from the environmental fee. 2/20/03.

Insurance Companies

The California Constitution exempts insurance companies from taxes other than the tax on gross premiums. The environmental fee is regarded as a tax; therefore insurance companies are exempt from it. 4/16/90.

deletionNonprofit Corporations

The environmental fee is imposed on every corporation regardless of nonprofit status if the corporation employs the requisite number of employees and is in a Standard Industrial Classification Code which the Department of Toxic Substances Control has determined is involved with hazardous materials (Health and Safety Code section 25205.6) 2/11/93.

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EXEMPTIONS

Banks and Financial Institutions

Banks and financial institutions are not subject to the various hazardous substances fees and taxes by virtue of section 23182 of the Revenue and Taxation Code, which provides for an in lieu tax to be imposed on those institutions. 4/29/88.

Banks and Financial Institutions—Banks Operating Nonbanking Businesses

The "in lieu" exemption provided to banks applies as well to bank-operated businesses and to activities which are performed by a bank but are unrelated to the banking function. However, if the activities are conducted by a separate entity, even one wholly-owned by the bank, those activities are not covered by the "in lieu" exemption. 11/3/89.

Banks and Financial Institutions—Factoring Companies

Factoring companies which pay the "in lieu" tax are financial institutions and thus exempt from the hazardous waste fees and taxes. 7/20/93.

Cleaning and Recycling of Underground Storage Tanks

The cleaning and recycling of underground storage tanks is an exempt activity (Health and Safety Code section 25205.12(c)). In addition, any storage of residue from the tanks incidental to such cleaning and recycling is also exempt. 7/11/94.

Fraternal Societies

Fraternal benefit societies organized in accordance with Chapter 10 of the Insurance Code are exempt from hazardous waste fees and taxes. 7/9/93.

Government Agency—Act of Nature

A state college was exempt from the hazardous waste land disposal fee and generator fee concerning the abatement of hazardous waste which directly resulted from an act of nature, such as an earthquake. However, the college was still subject to the fees on any hazardous wastes which were not directly caused by the act of nature or which were generated during routine operation and maintenance activities. 8/21/95.

Government Agency—Burden of Proof

While a government agency is exempt from land disposal and generator fees with respect to removal of hazardous waste which was generated by others (Health and Safety Code section 25174.7(a)), it has the burden of showing that the agency or the city for which it is acting was not responsible for generating the waste. 6/1/93.

Government Agency—Consent Decree with EPA

A feepayer who conducts remedial action as a result of a consent decree with the U.S. Environmental Protection Agency (EPA) does not thereby become an agent of the EPA and does not qualify for the exemption from the land disposal fee and generator fee for a government agency cleaning up a release of waste caused by another person (Health and Safety Code section 25174.7(a)). 1/24/95.

Government Agency—County Airport Cleanup

The County operated an airport for use by the public, and as part of that service, provided a concrete wash pad for the convenience of cropdusters that used the airport. The cropdusters used the wash pad when rinsing their airplanes, including the inside of tanks that previously contained dilute pesticide solutions. Runoff containing unknown pesticide concentrations flowed into the unlined earthen collection pond for evaporation. At a later time, this activity was discontinued and contaminated soil was removed from the pond site and submitted for disposal. The County is exempt from hazardous waste fees under section 25174.7(a)(1) since it was members of the public, and not the County, that caused the release of hazardous waste when they rinsed their airplanes and pesticide tanks. 6/30/98. (Am. M99–1).

Government Agency—Demolition of Buildings by Redevelopment Agency

A redevelopment agency acquired buildings in which asbestos had been used in construction. The agency intended to demolish the buildings. Local agencies are exempt from generator fees with respect to hazardous wastes which result from the removal or remediation by the agency of a release of hazardous waste by another person. In this case there was no release of waste, hazardous or otherwise, until the agency began the demolition of the buildings. Accordingly, the agency did not qualify for the exemption on its generation of waste from the demolition of the buildings. 11/27/89.

Government Agency—Generator Fee and Disposal Fee

When a government agency or its contractor removes or remedies a release of hazardous waste in the state caused by another, neither the disposal fee nor the generator fee applies. The exemption from payment of fees applies irrespective of who the generator is or who owns the property on which the contaminated soil is located. 11/04/96.

Government Agency—Gravel Containing Asbestos

Hazardous waste fees were due concerning hazardous waste generated and disposed of when a school district removed asbestos-containing gravel that had been used for a running track and as road base. There is no exemption for asbestos-containing waste materials which are in a form similar to that in which asbestos naturally occurs. 8/1/90.

Government Agency—Publicly Owned Utilities

Publicly owned utilities such as municipal water or electrical districts are government agencies for purposes of the hazardous waste fee exemption in Health and Safety Code section 25174.7(a)(1). 7/28/95.

Government Agency—Sewer Line Cleanup

A company discharged lead waste into the municipal sewer system in violation of the city's ordinances and a pretreatment plan submitted by the company. The city was exempt from the land disposal fee and generator fee concerning hazardous waste generated while the city endeavored to bring the company into compliance with its discharge requirement and while the city and the company cleaned out the contaminated sewer lines. 12/10/93.

Government Agency—Special Masters

A special master appointed by the federal court to operate a corporation is not acting as an agent of the federal government. Any fees that would normally be due from the corporation would also be during the operation of the corporation by the special master. 5/19/95.

Used Oil—Bilge Water

Beginning January 1, 1995, bilge water does not come within the definition of "used oil" and is therefore no longer exempt from the generator fee as used oil removed from a motor vehicle. 3/7/95.

Used Oil—Exemption Applies to Locomotives

The exemption from the generator fee for used oil removed from a motor vehicle applies to oil removed from the crankcases of locomotives. 9/20/91.

Used Oil—Exemption Applies to Vessels

The exemption from the generator fee for used oil removed from a motor vehicle applies to oil removed from vessels. 5/14/90.

Used Oil—Off-Road Equipment

For purposes of the exemption from the generator fee for used oil removed from a motor vehicle, the term "motor vehicle" includes off-road equipment which is self-propelled, whether or not the equipment moves or is permitted to move on public highways. 2/3/94.

Used Oil—Removed from a Barge

The exemption from the generator fee for used oil removed from a motor vehicle does not apply to used oil removed from a barge. 6/9/94.

Waste Transported Offsite for Recycling

Waste materials which are recycled and used onsite and are not transferred offsite are not hazardous wastes under section 25205.5 of the Health and Safety Code. However, hazardous waste transported offsite is subject to the generator fee whether or not some or all of the waste will be recycled. 4/6/95. (Am 2003-1). (Note: subsection (e) has been renumbered.)

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HAZARDOUS MATERIAL IDENTIFICATION

Asbestos

Asbestos which is contained in buildings which are to be demolished is not waste while the buildings are standing and is not hazardous unless it is friable. Demolition serves to make the asbestos both waste and hazardous and thus subject to fees. 8/25/89.

Classification of Substance as Hazardous Waste

The Department of Toxic Substances Control has the sole authority to decide whether or not a substance is a hazardous waste. 1/24/92.

Containers and Packing Materials

Any containers or packing materials which come into direct contact with hazardous waste and which are treated or disposed of with the hazardous waste are also regarded as hazardous waste. 11/5/93.

Materials Previously Classified by DTSC as Non-Hazardous

The Board does not have the authority to reverse a conclusion of the Department of Toxic Substances Control (DTSC) with respect to the toxicity of a material. However, if DTSC has concluded that a particular material is not hazardous, the Board will consider the material to be non-hazardous in subsequent cases. 12/31/91.

Mixtures

If a waste material is hazardous, any mixture containing the material is regarded as hazardous. It is immaterial that the workplace in which the hazardous waste is generated meets worker safety standards. 1/6/93.

Oil and Water Mixture

A mixture of oil and water which results from pumping well water which coincidentally passes through an oil bearing strata, and which is hazardous pursuant to criteria developed by the Department of Toxic Substances Control, is a hazardous waste regardless of the fact that the water is pumped for agricultural purposes. 11/6/90.

Waste

The authority of the Department of Toxic Substances Control to determine what is hazardous waste includes the authority to decide what is waste. 9/8/92.

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OVERSIGHT AND APPLICATION FEES

Variance From Application Fees

The Department of Toxic Substances Control has the authority to grant variances from application fees. 11/13/90.

Withdrawal or Denial of Permit Application

A fee is imposed with respect to any application for a new hazardous waste facility permit (Health and Safety Code section 25205.7). The fee is non-refundable even if the application is withdrawn or denied. No exception is made for applications for sites on which operations were never initiated. 8/30/93.

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RECYCLING

Contaminated Soil

If contaminated soil is recycled, whether after treatment such as aeration or not, and is reused on site, the amount of such waste is not included in determining whether a generator fee is due. 5/10/90.

Oil/Water Separation

A feepayer operated an oil and water separation process. It returned the oil reclaimed in the process to storage tanks where it was combined with fuel to be sold. This operation does not qualify as recycling, since the reclaimed oil is not used at the feepayer's facility, nor is it used or reused as an ingredient in an industrial process to make a product. 4/12/94.

Spent Solvents from Printed Circuit Board Manufacture

A manufacturer of printed circuit boards sends spent solvents through a recycling and cleaning process via pipeline and tanks. The recycled solvent is then used again in the manufacturing process. The spent solvent would normally be considered a hazardous waste, but in this situation it is recyclable material which is used at the site at which it was generated. If the solvent is covered by RCRA, it would not qualify for exemption from generator fees under section 25143.2 of the Health and Safety Code because it is cleaned before being reused. However, the solvent is exempt under section 25205.5(d) because it is recycled and used on site. 8/25/89. (Am 2003-1). (Note: subdivision (d) has been renumbered.)

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RESPONSIBLE PARTY

Carrier Liability

An ocean common carrier transported a cargo of bricks to Europe. The bricks contained heavy metals. The consignee refused to accept the bricks, and the bricks were eventually ordered to be removed from the country by environmental authorities. The bricks were carried back to California by the carrier, and the carrier disposed of them as hazardous waste, listing itself as the generator on the manifests. The consignor of the bricks refused to accept the bricks on their return to California. The carrier is considered the generator of the waste because it first caused the bricks to become subject to regulation. 8/1/90.

Change of Ownership

The only situation in which a change of ownership would cause imposition of a second facility fee occurs when a facility is transferred and then operated in such a manner that a new facility permit or significant permit modification is required. 2/28/90.

Excavation of Contaminated Soil

The excavation of contaminated soil is the first act which causes hazardous waste to become subject to regulation. The contaminated soil itself is not waste until it is excavated. Accordingly the person performing the excavation or contracting for the excavation is liable for the generator fee regardless of who caused the soil to become contaminated. 7/1/93.

Landlord Liability

If a landlord cleans up contamination caused by a tenant, the landlord is liable for any fees or taxes imposed as a result of the clean-up activities unless there is an applicable exemption. 9/29/89.

No Proration of Facility Fee

A person purchased a facility covered by a hazardous waste facility permit and continued to operate the facility for the remainder of the reporting period. The statute provides that each operator is liable for the fee for each reporting period or any portion thereof (Health and Safety Code section 25205.2). The statute does not provide for any proration of the fee, and thus the total amount of the fee may be collected from either or both the buyer and/or the seller. 7/2/93.

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UNITED STATES

American Red Cross

The American Red Cross is an instrumentality of the United States Government and is not subject to the environmental fee. 7/23/93. (M99–1).

Amtrak

Amtrak is liable for California's hazardous waste fees to the same extent the federal government is liable for those fees. 1/5/90.

California National Guard

The California National Guard is a state organization, and is liable for fees under the hazardous waste laws unless and until any specific unit is called into federal service. 9/29/89.

Contractor Operating on Federal Property

A person contracted with the United States Government to demilitarize napalm and constructed a facility on federal land for this purpose. The person applied for and was issued a hazardous waste treatment facility permit. The person, not the United States Government, was the operator of the facility and was liable for the facility fee. 1/11/94.

Disposal of Waste Submitted by the U.S.

Prior to January 1, 1996, the incidence of the land disposal fee falls on the operator of the disposal facility, unless the manifests for the waste include Board registration numbers. Absent a Board registration number, the operator is liable for the fee even if the waste was generated by an agency or instrumentality of the federal government. 10/2/89.

Federal Reserve Bank

The Federal Reserve Bank is exempt from the environmental fee because the fee is in effect a tax and thus cannot be applied to federal corporations. 11/24/92.

Immunity of Federal Entities

Federal entities are not subject to the superfund tax for any period or to the land disposal fee from September 29, 1989 to September 22, 1992. Federal entities are not subject to the hazardous waste fees for periods prior to January 1, 1991. Federal entities are not subject to interest or penalties imposed by the Hazardous Substances Tax Law, and prior to October 6, 1992, they were not subject to the penalties imposed by the law. Those fees which are deposited into the Hazardous Waste Control Account are used by the Department of Toxic Substances Control and other agencies to regulate the management of hazardous waste and are fees for which federal agencies are liable. Those fees which are deposited into the Hazardous Substance Account are used to clean up sites contaminated with hazardous waste and are in effect taxes from which federal entities are immune. 11/24/92.

Indian Reservations

Tribal corporations which operate on Indian reservations are not subject to the environmental fee. 7/3/92.

National Banks

National banks are not subject to the various hazardous waste fees by virtue of the provisions of section 23182 of the Revenue and Taxation Code, which provides for an in lieu tax to be imposed on those institutions. 1/5/90.

Penalties

Federal law was changed effective October 6, 1992 to permit the application of penalties imposed for the late payment of hazardous waste fees by federal agencies and instrumentalities. 8/19/93.

Special Masters

A special master appointed by a federal court to operate a corporation is not acting as an agent of the federal government. Any fees that would normally be due from the corporation would also be due during the operation of the corporation by the special master. 5/19/95.

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VARIANCES

Generator Fee

A variance exempts a feepayer from the facility fee only. The feepayer may still be held liable for the generator fee since it is not paying a facility fee. 10/17/90.

No Partial Exemption

There is no provision for exemption for partial fiscal years based on the issuance of a variance. 12/2/93.

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WASTE MANIFESTED AS HAZARDOUS

Manifest Lacking a Board Account Number

Prior to January 1, 1996, if hazardous waste was transported to a hazardous waste disposal site on a manifest which did not list a Board registration number, the disposal site operator was liable for the disposal fee unless it could be shown that the generator of the waste paid the fee directly to the Board. 12/4/89.

Weight of Hazardous Material

Absent evidence to the contrary, the generator's certification on a hazardous waste manifest as to the weight of material shipped cannot be contested by the generator. 5/18/94.

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ANNOTATIONS PUBLISHED

Annotation Heading/TitleEdition
Instrumentality of State 2/20/03 2003–3
Determining the Number of Employees Under the Environmental Fee 3/21/06 2007–1

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ANNOTATIONS DELETED

Annotation Heading/TitleEdition
Activity Fee and Oversight Fee—Statute of Limitations 11/07/94 2003–1
Aqueous Waste 12/13/91 2003–1
Arbitration Agreement 12/06/94 2003–1
Board Cannot Issue Variance 9/30/91 2003–1
Cancellation of Interim Status Document (ISD) Followed by Reinstatement 3/21/94 2003–1
Certification that Material is Hazardous 12/10/91 2003–1
Cessation of Operations Does Not End Liability for Fees 9/27/91 2003–1
Cessation of Operations May Justify a Reduction of Fees During the Closure Period 6/11/92 2003–1
Change from Fiscal Year to Calendar Year 7/21/92 2003–1
Change from Storage Facility Operation to Generator Status 2/04/92 2003–1
Cost Effectiveness of Oversight Does Not Affect Fees 3/15/94 2003–1
Discontinuance of Storage Prior to 1994 5/09/95 2003–1
Disposal Fees 12/09/92 2003–1
Disposal Fee Liability on Non-Generator 3/30/95 2003–1
Effective Date for Application Fees 8/23/90 2003–1
Exemption from Standardized Permit Fee for Prior Fees Paid 7/05/95 2003–1
Facilities that Cease Operations and Are Certified Closed in 1993 2/03/95 2003–1
Facility Fee Offset Against Generator Fee Liability 5/22/95 2003–1
Facility Operators May Also Be Liable for Generator Fee Surcharge 1/16/91 2003–1
Failure to Carry Out Closure Plan 9/21/93 2003–1
Federal Environmental Protection Agency (EPA) Orders 3/18/91 2003–1
Fee Paid to City 4/08/92 2003–1
Government Agency—County Airport Cleanup 6/16/92 M99–1
Hazardous Classification Made by Transporter 3/18/94 2003–1
Hazardous Waste Manifest Establishes that Material is Hazardous 10/26/92 2003–1
Imported non-RCA Waste 2/02/96 2003–1
Imported Waste 2/22/94 2003–1
Incorrect Classification 8/23/94 2003–1
Interest and Penalties—Standardized Permit Facilities 4/26/95 2003–1
Lessee and Lessor 3/13/92A 2010–1
Limited Liability Companies 8/13/97 2010–1
Mining Waste 12/18/91 2003–1
Notice of Levy 6/17/96 2003–1
Offsets After Enactment of SB 922 4/26/95 2003–1
Offset with Outlawed Periods 3/29/96 2003–1
Offshore Generation of Waste 1/12/94 2003–1
Operation Not in Accord with Permit 7/02/93 2003–1
Out-of-State Disposal of Non-RCRA Waste 7/23/93 2003–1
Oversight Fee Limitation Period 11/07/94 2003–1
Partial Fiscal Year Operation 3/21/94 2003–1
Prior Cleanup Order or Agreement Unnecessary 10/28/93 2003–1
Quantity of Waste 9/07/93 2003–1
Recipient of Material Shipped on Hazardous Waste Manifests 2/24/95 2003–1
Retroactivity of Section 25205.1(o) of the Health and Safety Code 3/21/94 2003–1
SB 922—Billings and Refunds 1/13/94 2003–1
SB 922—Claims for Refund 3/19/94 2003–1
SB 922—Local Generator Fees 1/13/94 2003–1
SB 922—Timeliness of Claims for Refund 9/12/95 2003–1
Size of Facility Based on Total Amount of Waste Treated 4/05/94 2003–1
Staff Recommendation 1/05/94 2003–1
Standardized Permit Facilities 2/10/94 2003–1
State v. Federal Jurisdiction 4/12/94 2003–1
Statute of Limitations—Activity Fee and Oversight Fee 11/07/94 2003–1
Storage of Hazardous Waste Generated by a Former Owner 2/11/92 2003–1
Tiered Permitting Notification Fee Not Covered by Amnesty Provisions of SB 922 11/01/94 2003–1
Tiered Permitting and Standardized Permits 2003–1
Transfer Stations 10/12/94 2003–1
Transportable Treatment Units (TTU) 8/12/94 2003–1
Transportable Treatment Units (TTU's) 10/23/90 2003–1
Used Oil Recycling 5/30/89 2003–1
Used Oil—Retroactivity of Exemption for Used Oil 2/11/93 2003–1
Voluntary Payments 1/09/95 2003–1
Waste Generated Only in First Six Months of 1988 3/27/91 2003–1