1 agenda review morning session: purpose of workshop roles and responsibilities steps in permitting...

1

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

3

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.

5

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

8

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

9

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



11

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


New or changing solid waste facilities may require:

Public noticing Document availability Project approval

CEQA documentation Prepare and circulate for review and

comment

13


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


15


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

18

17

Public OutreachNotices, Meetings, Hearings

Sample 3 years of permit actions

18



19

Statutory and Regulatory Authority

PRC Section 44004 & 27 CCR 21620

No significant change unless authorized

Application 150 days prior to change

20

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

23

22

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

23

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

26

25


Overview of Permit Process• Permit Review• RFI Amendment• Minor Changes to Permit• Tiers

26

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


28


LEA permit review report may direct: No change needed or allowed Operator to apply for an RFI

amendment

29


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



31

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

33



34

Minor Changes to the Permit

Currently Minor Changes Require a Full Permit Revision

No Method to Handle Minor Updates to a Permit

35

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



37

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

39

Tiered Structure

40

Tiered Structure

41

Tiered Structure

42

Tiered Structure

43

Tiered Structure

44



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

46



47

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

48

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

49



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

51


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

52


Section 21650 Send copy of proposed permit to applicant No conditions pertaining solely to air, or

water issues

53



54



LEA Reviews Application Package and Submits Proposed Permit Package


55

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

56

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

57

5. EA finding that CEQA supports the application package

6. Land Use / Conditional Use Permits, if applicable


58

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


59

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

60


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.

61

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)

62

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

63

Closure and Post Closure Maintenance Plans (C/PCM Plans)

64

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

65

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

66

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)

67

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

68

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

69

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

70

Financial Assurances Coverage Requirements Acceptable Mechanisms Flow Charts of Process Enforcement

71

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

73

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)

74

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

77

76

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?

79

78

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


The Board must consider environmental effects of project as shown in CEQA documents prior to reaching decision on project

[CCR 15096(f)]

84


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 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 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)]

89



LEA Reviews Application Package and Submits Proposed Permit Package



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


2. Financial assurances for operating liability are inadequate (PRC 43040)

3. Inadequate financial ability to provide for closure and postclosure (PRC 43600)

93

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)


94

6. Special requirements for transformation facility (PRC44150)

Reasons for objection to a permit must be transmitted to the EA.


95

If the Board does not concur or object within 60 days, the permit can be

issued on the 60th day.


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


97



LEA Reviews Permit Application Package and Submits Proposed Permit Package



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

http://www.ciwmb.ca.gov/permittoolbox/

http://www.ciwmb.ca.gov/permittoolbox/

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

http://www.ciwmb.ca.gov/leacentral/

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


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


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


132

Metal Pile


133

Used Oil Drop-off


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


Enforcement program plans

Emergency waiver

Stipulated agreement

138


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


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


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


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”

168

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))

169

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]

170

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]


171

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.


172

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


173

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

174

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.

175

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

176

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

177

Example: Illegal Disposal Site Option for LEA:

Cease and desist order to immediately cease operation entirely

178

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

179

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”

180

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

181

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

182

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

183

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

184

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

185

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

186

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

187

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))

188

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))

189

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

190

“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

191

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)

192

Additional Options for LEA Additional penalties and other

remedies available to LEAs under local ordinances

193

Next Steps - Enforcement: Legal Office work with P&E

Division to develop LEA guidance

Possible workshop with LEAs to solicit LEA comments and advice

194

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

1 agenda review morning session: purpose of workshop roles and responsibilities steps in permitting...

Documents

solid waste facilities

ceqalocal approval

commentlocal approval

compost facility

facility operatordesign

permit revisionssteps

ceqawhen local approvals

leaciwmb permit process