STATUTORY ISSUES RE: ENFORCEMENT & PERMITTING

STATUTORY ISSUES RE:ENFORCEMENT & PERMITTING Agenda Item G P&E Committee February 6, 2006

Questions Re: Enforcement • History • BSA 2000 Audit • Board adopted regs for closure plans, temporary emergencies, and long-term gas violations • Legislature adopted AB 1497 re: appeal process • CIWMB/LEA working group re: barriers • Issue paper at 2005 LEA Conference • Recent criticisms by Cal/EPA

Criticisms Warranted? • Criticisms re: CIWMB & LEA enforcement • Relatively few enforcement actions, few collected penalties • Not necessarily surprising • Not hazardous waste facilities • However, handle large volumes and operations change daily • Hence need for frequent monitoring, oversight • True relatively few actions and penalties, but also high compliance

Compliance • Spectrum of efforts by Board and LEAs encompasses compliance & enforcement • Compliance approach • Work with LEAs to prevent problems • Work with LEAs and operators to bring facilities into compliance • Provide sufficient training (December 2005 action by Board to enhance training)

Enforcement • If LEA needs to take enforcement actions: • Types of actions prescribed in statute and regulation • Each LEA has Enforcement Program Plan • CIWMB training and assistance • CIWMB tracks enforcement actions

Enforcement Barriers • Insufficient enforcement tools • Limited ability to address illegal disposal • Limited CIWMB ability to take direct action • Appeal process

Insufficient Enforcement Tools • No authority to impose criminal penalties • Violations of solid waste laws are not crimes • Limited ability to impose administrative civil penalties • AB 1497 removed cap, but can only impose penalty after operator fails to achieve compliance schedule

Insufficient Tools (cont’d) • Potential changes • Establish criminal penalties for any violation of IWMA, regulations, permits • Provide that penalties apply to original violation • Broaden civil applicability • Authorize administrative enforcement orders with penalties for “minor” violations

Inability to Take Action Against Illegal Disposal • Current authority focuses on owners & operators of solid waste facilities • Limited ability to take action against non-compliers “outside” of system • Potential changes: • Amend IWMA to prohibit illegal disposal • Expand civil enforcement authority to include other entities

CIWMB Inability ToTake Direct Action • If CIWMB believes LEA enforcement lacking, it has limited ability to immediately affect • Can consider taking over situations under 14 CCR 18350, but has to determine “imminent threat” and that LEA failed to take appropriate actions • Long-term: LEA evaluation process • Potential changes (controversial) • Authorize Board to take enforcement actions • Allow Board to assist at CIA sites without request

Appeal Process • Due process: Operators can appeal enforcement orders to local hearing panel or officer and then to CIWMB • AB 2159 sped up process of getting to first hearing of appeal, but automatic “stay” still in effect during appeal in most cases • Local hearing panel process costly, time-consuming, may be superfluous since final arbiter is CIWMB subject to courts

Appeal Process (cont’d) • Possible changes: • Eliminate stay (controversial) • Eliminate hearing panel and provide for appeals directly to Board

Permitting Issues • Board unable to reject incomplete or incorrect permit applications • Lack of flexibility in “60-day clock” depending on when application received and even when information is incomplete • Sequencing of permits (AB 1220)

Permitting (cont’d) • Potential changes: • Allow Board to reject applications • Extend clock to 90 days under limited circumstances • Revisit sequencing of permits allowed under AB 1220

STATUTORY ISSUES RE: ENFORCEMENT & PERMITTING