Laws, Regulations & Annotations

Business Taxes Law Guide – Revision 2013
 

Hazardous Substances Tax Annotations

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.

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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.

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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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