Post on 02-Jan-2016
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Agenda Review
Morning Session: Purpose of Workshop Roles and Responsibilities Steps in Permitting a Facility
Break for Lunch
2
Agenda Review
Afternoon Session: Board as Enforcement Agency and
Inspection Process Tools for Compliance Cease and Desist
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Reason for Workshop
Provide Board baseline information on solid waste facility permit, inspection and enforcement processes
Provide opportunity for dialogue with Board on questions and concerns relative to the processes
4
Reason for Workshop
Provide opportunity for policy discussions separate from specific facility actions.
Provide discussion of strategic plan goals and objectives relative to the processes.
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LEA/CIWMB Roles
AB 939 and AB 1220 LEA responsibilities
Process and issue permits Inspect facilities (monthly)Carry out enforcement actions
Other local solid waste duties
6
LEA/CIWMB Roles
CIWMB responsibilities Certify and evaluate LEAs Provide LEAs with technical support and training
Concur or object to issuance of permits
Inspect landfills (18 months), other facilities as needed to evaluate and assist LEAs
7
Steps In Permitting a Facility
• Local Approval Process• Overview of Permit Process• Application/LEA Process• Board Process• Board Action• LEA Issues Permit
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Solid Waste Facility Permits
PRC - part 4, chapter 3, article 1 - section 44001-44018 Permit required to operate a
solid waste facility Disposal site, transfer /processing facility, compost facility, transformation facility
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Solid Waste Facility Permits
Issued to the facility operator Design and operation only as
authorized in the permit Significant changes authorized
through permit revisions
10
Steps In Permitting a Facility
• Local Approval Process• Overview of Permit Process• Application/LEA Process• Board Process• Board Action• LEA Issues Permit
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Local Approval and CEQA
New or changing solid waste facilities may require:
Local approval by a city, county, JPA… New or revised special or conditional use
permits. General plan, IWMP amendment,
conformance finding, etc.
12
Local Approval and CEQA
New or changing solid waste facilities may require:
Public noticing Document availability Project approval
CEQA documentation Prepare and circulate for review and
comment
13
Local Approval and CEQA
New or changing solid waste facilities might not require:
Local approval, CEQA or public noticing No local CUP requirement or
revision New or revised solid waste facility
permits are required and can still trigger CEQA
14
When local approvals are required:
The LEA/CIWMB permit process will use review and documentation generated during local process
Local agency initiates CEQA process Address local siting, land use and planning issues May have early consultation for responsible
agencies Notice public and circulate for state agency review
Public noticing
Local Approval and CEQA
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Local Approval and CEQA
Board’s role as responsible agency Respond to requests for consultation on
CIWMB permitting and Board areas of expertise
Board staff reviews and comments on CEQA document adequacy for the Board’s use in permitting process
LEAD AGENCY
Prepare and Circulate NOEC
for ND
or NOP for DEIR
Prepare IS/ND or IS/NOC for DEIR
Prepare Response to Comments
or FEIR
Certify FEIR or Adopt ND
Approve Project
File NOD
CIWMB Responsible Agency
Prepare Suggestions for Type of
Document and CIWMB Information
Review CEQA Document
Prepare Comments
CIWMB Staff Review of Comments and/or Final CEQA
Document
CIWMB Staff Review SWFP Make Final CEQA Recommendation
Board CEQA Finding and SWFP Concurrence Decision
File NOD
LEA Responsible Agency
Prepare Suggestions for Type of
Document and LEA Information
Review CEQA Document
Prepare Comments
SWFP Application Received
LEA Staff
Review CEQA Document Prepare Proposed SWFP and Provide LEA CEQA Finding
LEA SWFP Approval and Issuance
File NOD
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Public OutreachNotices, Meetings, Hearings
Sample 3 years of permit actions
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Steps In Permitting a Facility
• Local Approval Process• Overview of Permit Process• Application/LEA Process• Board Process• Board Action• LEA Issues Permit
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Statutory and Regulatory Authority
PRC Section 44004 & 27 CCR 21620
No significant change unless authorized
Application 150 days prior to change
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Statutory and Regulatory Authority
LEA reviews application to determine: Change is allowed without revision Conformance with statute and regulation Disallow the change for not conforming Determine if CEQA review is required
prior to making decision
Overview of Permit Process
150 days
Operator Operator SubmitsApplication
LEALEADeterminesComplete& Correct
LEALEADraft Proposed Permit
BoardBoardDecision
LEALEADecides to IssuePermit
Amend RFI
New or New or Revised Revised PermitPermit
If LEA Determines
Permit Change is
Needed
5 Year Review
30 days 55 days 60 days 5 days
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Triggers for Permit Process
For a new permit New facility Moving from one tier to another tier Existing facility is “slotted” into a
permit tier Inspection reveal illegal facility
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Triggers for Permit Process
For a revision to a permit Operator anticipates a change in
design and operation Five year permit review Inspection reveals
unauthorized changes
Operator Anticipates
Change
Operator Submits Application
Illegal operation
Notice and Order (Cease & Desist)
Continue activityduring permit
process
RevisedPermit
Waiver
Stop Until Approved
Continue ActivityFor Limited Time
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Steps In Permitting a Facility
Overview of Permit Process• Permit Review• RFI Amendment• Minor Changes to Permit• Tiers
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Permit reviewed every five years For permitted facilities (full, standardized, registration)
From LEA issuance date
Five Year Review of Permits
27
LEA review Existing or upcoming operation and design changes
Includes review of capacity and site life (for disposal sites)
LEA writes permit review report Direct operator on necessary action
Five Year Review of Permits
28
Five Year Review of Permits
LEA permit review report may direct: No change needed or allowed Operator to apply for an RFI
amendment
29
Five Year Review of Permits
Operator to apply for a revision to the permit Change affects the permit terms and
conditions Cease implementation of changes
Request for changes denied Change may not be consistent with standards Change requires approval
30
Steps In Permitting a Facility
Overview of Permit Process• Permit Review• RFI Amendment• Minor Changes to Permit• Tiers
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RFI Amendments
Operator submits application Approved by LEA
32
RFI Amendments
Full permit only For changes that
Do not conflict with permit terms and conditions
Are consistent with CEQA document Consistent with requirements (FA, closure, SMS,
etc.) If amendments do not meet criteria
Permit revision Amendments may be denied
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Steps In Permitting a Facility
Overview of Permit Process• Permit Review• RFI Amendment• Minor Changes to Permit• Tiers
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Minor Changes to the Permit
Currently Minor Changes Require a Full Permit Revision
No Method to Handle Minor Updates to a Permit
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Minor Changes to the Permit Permit Sections Needing Minor
Updates after the Five Year Review LEA Findings Section Document Section Adding Prohibitions LEA Monitoring Requirement
Potential LEA and Board Collaboration
36
Steps In Permitting a Facility
Overview of Permit Process• Permit Review• RFI Amendment• Minor Changes to Permit• Tiers
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Tier Permits—Why?
One-size doesn’t fit all (Risks range from low to high)Uneven application of permit requirementsPerceived over-regulationExisting permit structure did not aid achievement of diversion mandates
38
Tier Permits—When?
Framework:
March 1995Placement:
Compost
June 1995 Contaminated Soil
March 1996 Transfer/Processing1
October 1996 Nonhazardous Ash
September 1997 Transfer/Processing2
March 1999 Non-haz. in Class I
July 2000 Compostable Materials2
April 2003 Construction and Demolition
In Progress Tire Monofills
In Progress
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Tiered Structure
40
Tiered Structure
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Tiered Structure
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Tiered Structure
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Tiered Structure
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Steps In Permitting a Facility
• Local Approval Process• Overview of Permit Process• Application/LEA Process• Board Process• Board Action• LEA Issues Permit
45
Permit Application Package Review Process
Operator Submits Permit Application Package
LEA Reviews Permit Application Package and Submits Proposed
Permit Package
Board Staff Reviews Proposed Permit Package
Board Action (44009)
LEA Issues Permit
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Permit Application Package Review Process
Operator Submits Permit Application Package
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Operator Submits Application Package Full Permit (& Standardized) Section 21570
Application requirements - full permit
A) disposal sites - joint application package, financial assurances to CIWMB
B) other facilities - copies of application to RWQCB C) EA fee D) adequate detail
Evaluate environmental effects Conformance with standards
E) certified as true and accurate, additional information as required by EA
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Operator Submits Application Package Full Permit (& Standardized) Section 21570
F) complete and correct package must include
Application form RFI CEQA compliance information
Evidence of compliance or status of compliance Mitigation monitoring implementation schedule Conformance finding For disposal sites
Preliminary closure/Postclosure plans Financial assurance mechanism
Land use and/or conditional use permits
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Permit Application Package Review Process
Operator Submits Permit Application Package
LEA Reviews Permit Application Package and
Submits Proposed Permit Package
50
LEA Reviews Permit Application Package and Submits Proposed Full Permit Package
Section 21650–Stamp application with date received–Review for requirements of section 21570–Accept for filing or reject within 30 days of receipt–Upon request EA may accept incomplete package
•Applicant waives time limits
•Must be complete within 180 days
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LEA Reviews Permit Application Package and Submits Proposed Full Permit Package
Section 21650 No later than 55 days after application is
accepted for filing the EA must send the following to CIWMB
Copy of proposed permit Accepted application package Certification that package is complete and correct Compliance with RWQCB orders if applicable Written public comments Permit review report prepared within the last 5
years CEQA consistency or status of CEQA compliance
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LEA Reviews Permit Application Package and Submits Proposed Full Permit Package
Section 21650 Send copy of proposed permit to applicant No conditions pertaining solely to air, or
water issues
53
Steps In Permitting a Facility
• Local Approval Process• Overview of Permit Process• Application/LEA Process• Board Process• Board Action• LEA Issues Permit
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Permit Application Package Review Process
Operator Submits Permit Application Package
LEA Reviews Application Package and Submits Proposed Permit Package
Board Staff Reviews Proposed Permit Package
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Board Staff Reviews Proposed Full Permit Package
Evaluate application package for compliance with requirements (27 CCR 21685):
1. EA’s Five Year Permit Review Report
2. EA’s Proposed Permit
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Board Staff Reviews Proposed Permit Package (Cont’d)
3. Conformance Finding Determination (PRC 50001)
4. Complete and Correct Report of Facility Information, certified by the EA
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5. EA finding that CEQA supports the application package
6. Land Use / Conditional Use Permits, if applicable
Board Staff Reviews Proposed Permit Package (Cont’d)
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7. Documentation that the Preliminary or Final Closure/Post Closure Maintenance Plan has been deemed complete, if applicable
8. Documentation of Financial Assurances for Closure, if applicable
9. Documentation of Operating Liability
Board Staff Reviews Proposed Permit Package (Cont’d)
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Board staff conduct pre-permit inspection to verify compliance with State Minimum Standards
Verify finding: permit consistent with SMS
Board Staff Reviews Facility for Compliance
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Board Staff Reviews Proposed Permit Package (Cont’d)
XX-AA-XXXX Accept-
able Unaccept-
able To Be Deter-mined
Not Applic-
able
See Details in Agenda
Item
CIWMP Conformance (PRC 50001) X 1
Consistency With State Minimum Standards X 2
California Environmental Quality Act X 3
Closure/Post-Closure Maintenance Plan X 4
Funding for Closure/Post-Closure Maintenance X 5
Operating Liability X 5
Example from Agenda Item – This table from a sample agenda item summarizes the status of Board staff’s review of the proposed permit package at the time of publication.
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Board’s Finding of Conformance With PRC 50001
PRC requires a conformance finding prior to Board concurrence
Office of local assistance staff makes finding Proposed permit must conform to planning
document Location of new or expanded disposal facilities
must be be identified in countywide Siting element (CSE)
New or expanded nondisposal facility must be be identified in jurisdiction's Nondisposal facility element (NDFE)
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Board’s Finding of Conformance
Board decisions on appropriate method for making conformance findings Board meeting ~ September 19-20,
2000 Resolution 2000-330
Board meeting ~ August 20-21, 2002 Resolution 2002-413
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Closure and Post Closure Maintenance Plans (C/PCM Plans)
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Plan Types Closure
Describes closure activities (e.g., Final cover, drainage, monitoring systems, etc.)
Postclosure maintenance Describes inspection, maintenance,
and monitoring of landfill during PCM period
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Plan Level/Purpose/Due Dates Preliminary
Provide basis for cost estimate for C/PCM Conceptual With application for review, revision or new
SWFP Final
Provide cost estimate, plan, schedule for C/PCM Detailed descriptions of activities CEQA compliance required 2 years prior to anticipated closure date
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Review/approval Process
CIWMB coordinates review Recent regulatory change Feb 03
CIWMB/LEA/RWQCB review for: Completeness (30-day limit) Approvable (120-day limit, includes
30-day completeness time)
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Approval Levels
Complete - all areas are addressed although not necessarily adequately
Consistent w/SMS – all areas are addressed appropriately but not necessarily to an approvable level ( i.E., “In the ballpark”)
Approvable - all areas are addressed adequately
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Permit Action Complete plans
Needed for permit application New, revised, permit review
Consistent w/ SMS Recent regulatory change Feb 03 Needed for SWFP concurrence CIWMB only 60 day limit after plan deemed
complete
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Permit Includes C/PCM Recent regulatory change Feb 03 Final plans incorporated into SWFP
by regulation Permit revision not necessary at that
time SWFP revised to reflect closed LF
By time of certification of closure Ministerial action
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Financial Assurances Coverage Requirements Acceptable Mechanisms Flow Charts of Process Enforcement
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Coverage Requirements Solid Waste Landfills
Closure and Postclosure Maintenance
Operating Liability Corrective Action
Major Waste Tire Facilities Closure Operating Liability
72
Acceptable Mechanisms Cash Build-Up Funds
Trust Fund Enterprise Fund (public only)
Third Party Assurance Surety Bond Letter of Credit Closure, Postclosure Maintenance,
Corrective Action Insurance
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Acceptable Mechanisms Financial Tests
Financial Means Test & Guarantee (private only)
Local Government Means Test & Guarantee (public only)
Legal Contract Pledge of Revenue Agreement (public only)
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Acceptable Mechanisms Federal Certification Liability Coverage
Operating Liability Insurance Self-Insurance & Risk
Management (public only)
FAS Review in Conjunction With
Plan Review
YES NO YES NO
FAS review for financial assurance
demonstration
Plan review by CIWMB, LEA &
RWQCB for completeness
CIWMB, LEA & RWQCB receive plan and request FAS
review
CIWMB, LEA & RWQCB determine completeness (all
other aspects of plan also considered)
Plan approved (all other aspects of plan also
considered)
Mechanism?
Adequate?
FAS review financial assurance for
adequacy
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Financial Assurance Review in Conjunction with Permit Review
YES NO YES NO
Permit application received- LEA request FAS review
LEA submits permit to CIWMB
CIWMB review for concurrence
FAS review for adequacy of mechanism
LEA review for completeness and correctness
FAS review for adequacy of mechanism
Adequate?
Adequate?
Financial Assurances Reviews
YES NO
FAS staff receives financial assurance updates from
operator
FAS staff reviews data and determines adequacy of
financial assurance demonstration
Notify operator of determination
Adequate?
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Enforcement for FA
CIWMB can enforce financial assurance requirements
79
Enforcement for FA Types of Violations
Failure to provide a demonstration Failure to provide adequate
coverage Failure to update the demonstration
Types of Enforcement Action Notice of violation Notice and order Stipulated notice and order
80
Enforcement for FA Penalties
CIWMB may impose civil or administrative penalties
81
Board CEQA Review
82
Board Authority and Responsibility Under Solid Waste and CEQA Statutes
The Board votes to concur or object in the issuance of a new or a revised solid waste facility permit
The Board shall review CEQA documents prior to approval [CCR 15004(a)]
83
Board Authority and Responsibility Under Solid Waste and CEQA Statutes
The Board must consider environmental effects of project as shown in CEQA documents prior to reaching decision on project
[CCR 15096(f)]
84
Board Authority and Responsibility Under Solid Waste and CEQA Statutes
Board required to make CEQA findings for each significant effect of project [CCR 15096(h), 15091 and 15093]
Board files notice of determination [CCR 15096(i), 15075 or 15094]
85
Board Authority and Responsibility Under Solid Waste and CEQA Statutes
Board concurrence as a discretionary action when carrying out or approving a project [14 CCR 15002(i)]
Board required to give major consideration to preventing environmental damage [14 CCR, section 15021]
86
Board Authority and Responsibility Under Solid Waste and CEQA Statutes
Board required to adopt objectives, criteria, and specific procedures for administration of CEQA [14 CCR, section 15022]
87
Board Responsibility and Authority Under CEQA
Board may refuse to approve a project in order to avoid environmental impacts that are within its authority [CCR 15042]
Board authority and requirements as a responsible agency [CCR 15096]
88
Board Responsibility and Authority Under CEQA
Inadequate CEQA documention [CCR 15096 (e)]
Take issue to Court Waive objection to inadequate
documentation (do nothing) Prepare subsequent EIR [CCR
15162] Assume Lead Agency [15052(a)(3)]
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Permit Application Package Review Process
Operator Submits Permit Application Package
LEA Reviews Application Package and Submits Proposed Permit Package
Board Staff Reviews Proposed Permit Package
Board Action (44009)
90
Board Action
XX-AA-XXXX Accept-
able Unaccept-
able To Be Deter-mined
Not Applic-
able
See Details in Agenda
Item
CIWMP Conformance (PRC 50001) X 1
Consistency With State Minimum Standards X 2
California Environmental Quality Act X 3
Closure/Post-Closure Maintenance Plan X 4
Funding for Closure/Post-Closure Maintenance X 5
Operating Liability X 5
Example from Agenda Item – This table from a sample agenda item summarizes the status of Board staff’s review of the proposed permit package at the time of publication.
91
Board Action (PRC 44009)
Concur or object to permit within 60 days for a full permit (or within 30 days for a standardized permit)
Reasons the Board may object:
1. Permit is not consistent with State Minimum Standards (PRC 44010)
92
Board Action (PRC 44009)
2. Financial assurances for operating liability are inadequate (PRC 43040)
3. Inadequate financial ability to provide for closure and postclosure (PRC 43600)
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4. The EA has not provided the Board and the applicant with a copy of the proposed permit, at Least 65 days in advance of issuance. (PRC 44007)
5. The permit is inconsistent with standards adopted by the Board (PRC44010)
Board Action (PRC 44009)
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6. Special requirements for transformation facility (PRC44150)
Reasons for objection to a permit must be transmitted to the EA.
Board Action (PRC 44009)
95
If the Board does not concur or object within 60 days, the permit can be
issued on the 60th day.
Board Action (PRC 44009)
96
Exception - landfill operator not in compliance with an enforcement order from Regional Water Quality Control Board and all of the following conditions exist:
1. WDRs are pending review in a petition before State Water Board
2. Petition includes a request for a stay
3. Water Board has not taken action on the stay request
Board Action (PRC 44009)
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Permit Application Package Review Process
Operator Submits Permit Application Package
LEA Reviews Permit Application Package and Submits Proposed Permit Package
Board Staff Reviews Proposed Permit Package
Board Action (44009)
LEA Issues Permit
98
LEA Issues Permit
• Copy of proposed permit to CIWMB at least 65 days prior to issuance (LEA/EA)
• Permit issued 120 days from date application deemed complete
99
LEA Issues Permit
•The EA issues permit after Board concurrence
• EA provides copy to permittee within 15 days of issuing permit
100
Permit Process Resources
Permit Toolbox
• http://www.ciwmb.ca.gov/permittoolbox/
• Provides processes and resources for each permit tier
• Links to regulations and forms for each type of permit or type of facility
101
Permit Process Resources
•Guidance for other permit tasks and findings
•Easy to find other tools and resources in the Permit Toolbox or in LEA Central
102
Discussion and Break
Lunch Break
103
Workshop Afternoon Session
Board as EA and Inspection ProcessTools for Compliance• Enforcement program plans• Emergency waiver (Audit response)• Stipulated agreement (Audit response)• Notice and orders• Enforcement by Board• Inventory Cease and Desist
104
CIWMB As Enforcement Agency (EA) and Inspection Procedures
105
When Does CIWMB Become the EA?
No LEA designated and certified by CIWMB
106
When Does CIWMB Become the EA?
Local governing body withdraws designation, but does not designate another LEA
CIWMB withdraws approval of designation and local governing body does not designate another LEA (e.g., LEA not fulfilling responsibilities)
107
When Does CIWMB Become the EA?
CIWMB assumes partial responsibility for specific duties (e.g., Enforcement, inspections).
CIWMB is EA for cities of Berkeley, Paso Robles, and Stockton and counties of Santa Cruz and Stanislaus.
108
Responsibilities
As EA, CIWMB assumes powers and authorities provided to certified LEAs, including:
Conduct inspections (at the required frequencies)
Process SWFPs
109
Responsibilities
Perform permit reviews Take appropriate enforcement
actions Perform site assessments Oversee corrective actions
110
EA Program
Implementation (e.g., Inspections, permitting, enforcement, etc.) Of EA program detailed in enchiridion (similar to LEA’s EPP)
Enter into memorandum of agreement with jurisdiction when CIWMB becomes EA
111
EA Program
Currently charge $125.58 per hour plus travel and per diem
LEAs funded from tipping fees, hourly rate, and/or a flat annual fee
112
Inspection Frequency Requirements
CIWMB 18 months for landfills Pre-permit inspections for
other facilities
113
Inspection Frequency Requirements
LEA/EA Monthly for facilities (full,
standardized, registration tiers), inactive and illegal sites
Quarterly for operations (EA notification tier), closed sites, exempt sites
114
Inspection Procedures
Pre-inspection procedures. Review governing documents/files.
Inspections are unannounced.
115
Inspection Procedures
Inspection procedures. Upon arrival, check-in with site
personnel. Health and safety gear. Conduct inspection, including records
review, landfill gas monitoring, etc. Exit interview, discuss observations
with the operator.
116
Inspections State Minimum Standards Cover 3
Major Areas at Solid Waste Facility/operation :
1. Access Road/gatehouse/offices 2. Working Face/tipping Floor 3. Site Perimeter
117
Inspections
Other Areas Checked Include:1. Recycling/salvaging 2. Special Waste Storage3. Other Ancillary Operations
Entrance Signs
120
Gatehouse/Scale
121
Daily Cover
122
Active Face/Daily Cover Ops
Compaction - Daily cover operations123
Daily Cover at End of Day
124
Active Face/Daily Cover Ops 2
Use of ADC, tarps and C&D125
Gas Monitoring & Control
126
Gas Monitoring at Perimeter Probes
127
Gas Recovery System
128
Leachate Control
129
Site Perimeter
130
Diversion Activities
Chipping and Grinding131
Recycling Center/Salvaging
Diversion Activities
132
Metal Pile
Diversion Activities
133
Used Oil Drop-off
Diversion Activities
134
133
Inspection Reports
LEA/EA documents violations/areas of concern on inspection report form (e.g, landfill, transfer/processing station, etc).
LEA/EA sends inspection report to operator within 30 days. LEA/EA may provide copy of inspection report at exit interview.
LEA sends copy of inspection report to CIWMB in 30 days.
134
Inspection Reports
CIWMB staff transmit copy of State inspection report to LEA and operator within 30 days for 18 month or pre-permit inspection.
CIWMB staff update SWIS III database for both State and LEA inspections.
Inspection Report Prep. And Exit Interview W/ Operator
137
136
Tools for Compliance
137
Tools for Compliance
Enforcement program plans
Emergency waiver
Stipulated agreement
138
Tools for Compliance
Notice and orders
Enforcement by Board
Inventory
139
Enforcement Program Plan (EPP)
Board-approved EPP contains designation and certification requirements for each LEA
Each EPP includes a procedure manual for investigations, inspections, compliance assurance and enforcement
140
Emergency Waiver (Title 14--17210 Et seq)
In response to proclaimed state or local emergency
Waiver from certain permit terms conditions and/or state minimum standards during emergency recovery phase
141
Emergency Waiver (Title 14--17210 Et seq)
Operator requests waiver from LEA
120 day limit, can be extended
Diversion component
142
Emergency Waiver (Cont.)
LEA determines
Valid solid waste permit
No threat to public health and the environment
Maximum diversion identified
Reporting requirements for operator and LEA
143
Emergency Waiver (Cont.)
Executive director (ED) reviews waiver requests
Condition, limit, suspend, revoke, terminate if causes harm to PH&E or no reasonable diversion
ED reports to Board any granting of waivers
144
Stipulated Agreement (Title 14--17211 Et seq)
Allows LEA to authorize temporary waiver from terms and conditions of a permit for limited time
Only for temporary emergency resulting from unforeseeable circumstances
90 days, but can be extended
145
Stipulated Agreement Process (Con’t)
Operator requests and provides LEA with:
Description of temporary emergency, why unforeseeable
Terms and conditions to be addressed
146
Stipulated Agreement Process (Con’t)
Commencement date
Actions to be taken so agreement is no longer needed – includes timeline
Evidence of compliance with the following: applicable land use entitlements, other permits, federal, state and local laws and regulations, CEQA
147
Stipulated Agreement Process (Con’t)
LEA and operator reporting requirements
LEA can condition, limit, suspend, revoke, terminate if causes harm to public health and the environment
Executive director (ED) reviews all LEA approvals and can
Condition, limit, suspend, revoke, terminate if causes harm to PH&E or no reasonable diversion
148
Stipulated Agreement Process (Con’t)
ED reports to Board any granting of stipulated agreements
149
Notice and Order (Title 14--18304 Et seq)
Notice and orders issued by LEAs as deemed appropriate or when required by statute
Reasons for issuing N & Os
Violations of statutes or regulations
Violations of terms and conditions of a permit
Potential threat to public health or safety
150
Types of Orders
Compliance order Stipulated notice and order
Corrective action order Cease and desist order
151
Types of Notices
Corrective action by LEA Impose administrative civil penalties
Conditionally impose administrative civil penalties
152
Types of Notices
Petition for superior court injunction
Suspend or revoke permit Imposition of civil penalties
153
Civil Penalties
LEAs may include administrative and/or judicial civil penalties in notice and orders they issue
154
Civil Penalties (Con’t) Administrative civil penalties
Must issue time schedule first
Penalty may not exceed $5000 per day and $15000 in any calendar year
May not issue penalty for first 3 “minor violations” (no PHSE impact, procedural only)
155
Civil Penalties (Con’t)
Procedures
Notify governing body of its intent to impose a penalty
Consider the gravity of violation
Consider alternatives to penalty
156
Civil Penalties (Con’t)
Judicial civil penalties
Operators who violate terms and conditions of permit, operate without a permit, or violate any CIWMB standards are subject to judicial civil penalties
Not to exceed $10,000 per day
157
Statutory Barriers to Civil Penalties
Civil penalties too low to act as credible deterrent Consistent with other Cal/EPA agencies Commensurate with violation
Criminal penalties for illegal and abandoned sites
Clarify Board’s enforcement authority on CIA sites
158
Statutory Barriers to Civil Penalties (Con’t)
Extend enforcement authority to prior owners or operators
Enhanced site access authority Clearly prohibit illegal disposal Time limits
appeals to local hearing panel challenging decision of Board
159
Legislation to Streamline the Current Process for Imposing Civil Penalties.
Actions taken:May 2001 – Board discussion on
current processes for civil penaltiesJune 2001 - Board directed staff to
pursue legislative changes (2001-176)
To date: staff continues to pursue legislative remedies
160
Enforcement by the Board(PRC 45012, Title 14-section 18350)
Board can take enforcement action itself and may investigate the designation and/or certification of the LEA.
If imminent threat to public health or environment-immediate enforcement can be taken by the Board.
161
Enforcement by the Board(PRC 45012, Title 14-Section 18350)
Prior to Board taking action it must comply with several procedural steps
Request LEA to increase its enforcement
Offer technical assistance
Issue notice of intent to take action (NIA) to LEA and operator
Hold public hearing on the NIA
162
Enforcement by the Board(PRC 45012, Title 14-section 18350)
If Board takes direct enforcement, can do same thing as LEA, use all tools including civil penalties
163
Inventory of Solid Waste Facilities
List of facilities that have violated state minimum standards.
Discussed semi-annually at Board meetings and published on CIWMB web-site.
Three step process for inclusion on the inventory.
LEA required to develop a compliance schedule if facility is listed on inventory.
164
Cease and Desist
165
Introduction: Cease & Desist Issue: what is a “cease and desist
order” and when should it be used?
“Cease and desist” means “stop what you are doing and don’t do it again.”
Cease and desist order one of many enforcement tools available to LEAs.
166
LEA Discretion LEA has duty to enforce provisions
of state solid waste laws and regulations within its jurisdiction
Generally, LEA has discretion respecting the use of the enforcement tools available to them Except when facility operates without
SWFP
167
LEA Discretion LEA’s exercise of its discretion is
subject to Board oversight including: LEA evaluation Board taking enforcement action
itself if LEA fails to take “appropriate enforcement action”
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Exception to LEA Discretion Legislative mandate: when a person
operates solid waste facility without a SWFP, LEA shall immediately issue cease and desist order directing owner or operator to obtain a SWFP in order to resume operation of the facility. (PRC § 44002(a)(1); 14 CCR § 18304.3(a))
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Two Statutes Govern the Issuance of Cease and Desist Orders:
PRC § 44002(a)(1) – “No person shall operate a solid waste facility without a solid waste facilities permit if that facility is required to have a permit pursuant to this division. If the enforcement agency determines that a person is so operating a solid waste facility, the enforcement agency shall immediately issue a cease and desist order pursuant to section 45005 ordering the facility to immediately cease operations, and directing the owner or operator of the facility to obtain a solid waste facilities permit in order to resume operation of the facility.” [Emphasis added]
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PRC § 45005 – “Any person who is operating, or proposes to operate, a solid waste facility, or who is disposing of solid waste in an unauthorized manner, or who owns a solid waste facility and causes or permits the operator to operate the facility (1) in violation of a solid waste facilities permit or in violation of this division, or any regulation adopted pursuant to this division, or (2) without a solid waste facilities permit, or (3) in a manner that causes or threatens to cause a condition of hazard, pollution, or nuisance shall, upon order of the enforcement agency, cease and desist any improper action.” [emphasis added]
Two Statutes Govern the Issuance of Cease and Desist Orders:
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These statutes require different responses to particular violations:
Immediate cessation when operating a solid waste facility without a permitCease “improper action” upon order of LEA when disposing solid waste in an unauthorized manner or when operating a solid waste facility in violation of SWFP, the IWMA or any regulation, without a SWFP, or in a manner that causes or threatens hazard, pollution or nuisance.
Two Statutes Govern the Issuance of Cease and Desist Orders:
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Apply these statutes and regulations in two different scenarios:
Operating a solid waste facility without a solid waste facilities permit
Permitted facility violating its permit or State Minimum Standards
Two Statutes Govern the Issuance of Cease and Desist Orders:
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Operating Solid Waste Facility Without a Solid Waste Facilities
Permit Governed by section 44002 Section 44002 is specific and clear –
if a person is operating a SWF without a permit, the EA shall “immediately issue a cease and desist order … ordering the facility to immediately cease operations.” [Emphasis added]
Cease and desist order is mandatory
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Section 44002 Requires: LEA must issue the order as soon as it
learns of the unpermitted facility. Order must direct the facility to cease
immediately those operations for which SWFP is required.
LEA may not allow the facility to get a SWFP within a specified period while it continues to operate. Section 44002 specifically prohibits that.
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To Emphasize: The only options available to
operator of an unpermitted facility are to cease operations entirely until it can obtain SWFP or to cease those aspects of its operations which trigger the permit requirements
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Example: Recycling Center Consistently Exceeding 10%
Residual Limitation Options for LEA:
Cease and desist order to immediately cease operation entirely
Cease and desist order to immediately cease those parts of operation which cause excess residual
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Example: Illegal Disposal Site Option for LEA:
Cease and desist order to immediately cease operation entirely
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Permitted Facility Violating State Minimum Standard or Term or
Condition of Its SWFP
Governed by Section 45005 Cease and desist order is optional,
at discretion of LEA Cease and desist order is one of
several enforcement tools available to LEA
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Permitted Facility Violating State Minimum Standard or Term or
Condition of Its SWFP
Application of Section 45005 is more complex than 44002
No hard and fast rules; each case will be decided on its own facts by LEA using its own best judgment
Keep in mind Board’s oversight role and requirement for “appropriate enforcement action”
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Suggested Guidance How should LEA exercise its
discretion? Biggest problem area in use of
cease and desist orders under Section 45005 – when to allow operator time to correct a violation
Two scenarios: Time to correct violation is necessary Correction should be immediate
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Time to Correct Violation Is Necessary
LEA may allow operator time to correct violation only when necessary That is, when it will take operator
a period of time to accomplish a necessary task to correct a violation
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Time to Correct Violation Is Necessary
Appropriate for LEA to order operator to cease the improper action within a reasonable period of time
For example: installation of gas control system, development and implementation of training for employees, correction of litter problem, find adequate source of daily cover, develop and undertake cleaning program to eliminate odor problem or vector problem
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LEA Discretion Should Not Be Abused LEA must still take “appropriate
enforcement action” which requires “timely progress toward compliance” (14 CCR 18084(d)(1)) What is “timely progress”? What is “reasonable”? How long is “too long”? Answers -- within sound discretion of LEA first
and Board discretion second, based on circumstances of the specific case
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Correction of Violation Should Be Immediate
When it is reasonably possible to correct violation immediately
When immediate correction is necessary to protect public health, safety or the environment
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Correction of Violation Should Be Immediate
For example: exceeding tonnage limits set in SWFP, accepting waste materials prohibited by SWFP, operating beyond permitted hours, accepting hazardous wastes, failure to apply daily cover, allowing unsafe practices that endanger employees or the public
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Generally inappropriate to allow operator to revise permit as sole remedy for a violation
Not “appropriate enforcement action”:Is not enforcement at allLEAs have duty to enforce IWMA, SMS, terms and conditions of permits (PRC s. 43209(a); Title 14, s.18084(a))Many enforcement tools available
General Observation about Enforcement Orders
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Protection for Operator From Overzealous LEA Appeal enforcement action to
hearing panel Request for hearing stays effect of
enforcement order Exception: “an imminent and
substantial threat to the public health and safety or to the environment” (PRC § 45017(a)(2),(3))
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Additional Options for LEA Impose administrative civil
penalties along with compliance schedule May not exceed $5,000 per day
per violation, not exceeding $15,000 per year (PRC 45011(a)(1))
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Take corrective action if operator fails to comply with compliance schedule and seek reimbursement via civil cost recovery action (PRC 45000(a), (d))
Additional Options for LEA
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“Corrective action order” is not defined; LEA has discretion to apply
Creativity possible – e.g., require operator to carry out public outreach to abate nuisance, to increase recycling efforts, etc.
Additional Options for LEA
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Additional Options for LEA Seek judicial civil penalties
Up to $10,000 per day per violation (PRC 45023)
Commence proceedings to suspend or revoke permit (PRC 44305, 44306)
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Additional Options for LEA Additional penalties and other
remedies available to LEAs under local ordinances
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Next Steps - Enforcement: Legal Office work with P&E
Division to develop LEA guidance
Possible workshop with LEAs to solicit LEA comments and advice
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Closing Remarks – Next Steps Bring Issues/Options to Board
for Direction Continued Work in Partnership
to Improve Processes Research Other Barriers to
Processes Including AB59 Process