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Agenda Review. Morning Session: Purpose of Workshop Roles and Responsibilities Steps in Permitting a Facility Break for Lunch. Agenda Review. Afternoon Session: Board as Enforcement Agency and Inspection Process Tools for Compliance Cease and Desist. Reason for Workshop.

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Presentation Transcript
agenda review
Agenda Review

Morning Session:

  • Purpose of Workshop
  • Roles and Responsibilities
  • Steps in Permitting a Facility

Break for Lunch

agenda review1
Agenda Review

Afternoon Session:

  • Board as Enforcement Agency and Inspection Process
  • Tools for Compliance
  • Cease and Desist
reason for workshop
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
reason for workshop1
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.
lea ciwmb roles
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
lea ciwmb roles1
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
steps in permitting a facility
Steps In Permitting a Facility
  • Local Approval Process
  • Overview of Permit Process
  • Application/LEA Process
  • Board Process
  • Board Action
  • LEA Issues Permit
solid waste facility permits
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
solid waste facility permits1
Solid Waste Facility Permits
  • Issued to the facility operator
  • Design and operation only as authorized in the permit
  • Significant changes authorized through permit revisions
steps in permitting a facility1
Steps In Permitting a Facility
  • Local Approval Process
  • Overview of Permit Process
  • Application/LEA Process
  • Board Process
  • Board Action
  • LEA Issues Permit
local approval and ceqa
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.
local approval and ceqa1
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
local approval and ceqa2
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
local approval and ceqa3
Local Approval and CEQA

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 ceqa4
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
slide16

LEAD AGENCY

CIWMB Responsible Agency

LEA Responsible Agency

Prepare and Circulate NOEC for ND

or NOP for DEIR

Prepare Suggestions for Type of Document and LEA Information

Prepare Suggestions for Type of Document and CIWMB Information

Prepare IS/ND or IS/NOC for DEIR

Review CEQA Document

Prepare Comments

Review CEQA Document

Prepare Comments

Prepare Response to Comments

or FEIR

SWFP Application Received

CIWMB Staff Review of Comments and/or Final CEQA Document

CIWMB Staff Review SWFP Make Final CEQA Recommendation

Certify FEIR or Adopt ND

LEA Staff

Review CEQA Document Prepare Proposed SWFP and Provide LEA CEQA Finding

Approve Project

Board CEQA Finding and SWFP Concurrence Decision

LEA SWFP Approval and Issuance

File NOD

File NOD

File NOD

18

slide17

Public Outreach

    • Notices, Meetings, Hearings
    • Sample 3 years of permit actions
steps in permitting a facility2
Steps In Permitting a Facility
  • Local Approval Process
  • Overview of Permit Process
  • Application/LEA Process
  • Board Process
  • Board Action
  • LEA Issues Permit
statutory and regulatory authority
Statutory and Regulatory Authority

PRC Section 44004 & 27 CCR 21620

No significant change unless authorized

Application 150 days prior to change

statutory and regulatory authority1
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
Overview of Permit Process

150 days

30 days

55 days

60 days

5 days

New or Revised Permit

LEA

Determines

Complete

& Correct

LEA

Draft

Proposed

Permit

Board

Decision

LEA

Decides

to Issue

Permit

Operator

Submits

Application

If LEA

Determines

Permit

Change is

Needed

Amend

RFI

5 Year Review

23

triggers for permit process
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
triggers for permit process1
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
slide24

Operator

Anticipates

Change

  • Operator Submits Application

Revised

Permit

Continue activity

during permit process

Waiver

Continue Activity

For Limited Time

Notice and Order

(Cease & Desist)

Illegal operation

Stop Until

Approved

26

steps in permitting a facility3
Steps In Permitting a Facility

Overview of Permit Process

  • Permit Review
  • RFI Amendment
  • Minor Changes to Permit
  • Tiers
five year review of permits
Permit reviewed every five years

For permitted facilities (full, standardized, registration)

From LEA issuance date

Five Year Review of Permits
five year review of permits1
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
five year review of permits2
Five Year Review of Permits

LEA permit review report may direct:

  • No change needed or allowed
  • Operator to apply for an RFI amendment
five year review of permits3
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
steps in permitting a facility4
Steps In Permitting a Facility

Overview of Permit Process

  • Permit Review
  • RFI Amendment
  • Minor Changes to Permit
  • Tiers
rfi amendments
RFI Amendments
  • Operator submits application
  • Approved by LEA
rfi amendments1
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
steps in permitting a facility5
Steps In Permitting a Facility

Overview of Permit Process

  • Permit Review
  • RFI Amendment
  • Minor Changes to Permit
  • Tiers
minor changes to the permit
Minor Changes to the Permit
  • Currently Minor Changes Require a Full Permit Revision
  • No Method to Handle Minor Updates to a Permit
minor changes to the permit1
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
steps in permitting a facility6
Steps In Permitting a Facility

Overview of Permit Process

  • Permit Review
  • RFI Amendment
  • Minor Changes to Permit
  • Tiers
tier permits why
Tier Permits—Why?
  • One-size doesn’t fit all (Risks range from

low to high)

  • Uneven application of permit

requirements

  • Perceived over-regulation
  • Existing permit structure did not aid

achievement of diversion mandates

tier permits when
Tier Permits—When?
  • Framework: March 1995
  • Placement:

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

steps in permitting a facility7
Steps In Permitting a Facility
  • Local Approval Process
  • Overview of Permit Process
  • Application/LEA Process
  • Board Process
  • Board Action
  • LEA Issues Permit
permit application package review process
Permit Application Package Review Process

LEA Issues Permit

Board Action (44009)

Board Staff Reviews Proposed Permit Package

LEA Reviews Permit Application Package and Submits Proposed Permit Package

Operator Submits Permit Application Package

permit application package review process1
Permit Application Package Review Process

Operator Submits Permit Application Package

operator submits application package full permit standardized section 21570
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
operator submits application package full permit standardized section 215701
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
permit application package review process2
Permit Application Package Review Process

LEA Reviews Permit Application Package andSubmits Proposed Permit Package

Operator Submits Permit Application Package

lea reviews permit application package and submits proposed full permit package
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
lea reviews permit application package and submits proposed full permit package1
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
lea reviews permit application package and submits proposed full permit package2
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
steps in permitting a facility8
Steps In Permitting a Facility
  • Local Approval Process
  • Overview of Permit Process
  • Application/LEA Process
  • Board Process
  • Board Action
  • LEA Issues Permit
permit application package review process3
Permit Application Package Review Process

Board Staff Reviews Proposed Permit Package

LEA Reviews Application Package and Submits Proposed Permit Package

Operator Submits Permit Application Package

slide55

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

slide56

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

slide57

Board Staff Reviews Proposed Permit Package (Cont’d)

  • 5. EA finding that CEQA supports the application package
  • 6. Land Use / Conditional Use Permits, if applicable
slide58

Board Staff Reviews Proposed Permit Package (Cont’d)

  • 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
slide59

Board Staff Reviews Facility for Compliance

  • Board staff conduct pre-permit inspection to verify compliance with State Minimum Standards
  • Verify finding: permit consistent with SMS
slide60

Board Staff Reviews Proposed Permit Package (Cont’d)

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.

board s finding of conformance with prc 50001
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)
board s finding of conformance
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
plan types
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
plan level purpose due dates
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
review approval process
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)
approval levels
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
permit action
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
permit includes c pcm
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
financial assurances
Financial Assurances
  • Coverage Requirements
  • Acceptable Mechanisms
  • Flow Charts of Process
  • Enforcement
coverage requirements
Coverage Requirements
  • Solid Waste Landfills
    • Closure and Postclosure Maintenance
    • Operating Liability
    • Corrective Action
  • Major Waste Tire Facilities
    • Closure
    • Operating Liability
acceptable mechanisms
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
acceptable mechanisms1
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)

acceptable mechanisms2
Acceptable Mechanisms
  • Federal Certification
  • Liability Coverage
    • Operating Liability Insurance
    • Self-Insurance & Risk Management

(public only)

enforcement for fa
Enforcement for FA
  • CIWMB can enforce financial assurance requirements
enforcement for fa1
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
enforcement for fa2
Enforcement for FA
  • Penalties
    • CIWMB may impose civil or administrative penalties
board authority and responsibility under solid waste and ceqa statutes
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)]

board authority and responsibility under solid waste and ceqa statutes1
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)]

board authority and responsibility under solid waste and ceqa statutes2
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]

board authority and responsibility under solid waste and ceqa statutes3
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]

board authority and responsibility under solid waste and ceqa statutes4
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]

board responsibility and authority under ceqa
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]

board responsibility and authority under ceqa1
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)]

permit application package review process4
Permit Application Package Review Process

Board Action (44009)

Board Staff Reviews Proposed Permit Package

LEA Reviews Application Package and Submits Proposed Permit Package

Operator Submits Permit Application Package

slide90

Board Action

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.

board action prc 44009
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)
board action prc 440091
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)
slide93

Board Action (PRC 44009)

  • 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)
slide94

Board Action (PRC 44009)

    • 6. Special requirements for transformation facility (PRC44150)
  • Reasons for objection to a permit must be transmitted to the EA.
slide95

Board Action (PRC 44009)

If the Board does not concur or object within 60 days, the permit can be issued on the 60th day.

slide96

Board Action (PRC 44009)

  • Exception - landfill operator not in compliance with an enforcement order from Regional Water Quality Control Board and all of the following conditions exist:
      • WDRs are pending review in a petition before State Water Board
      • Petition includes a request for a stay
      • Water Board has not taken action on the stay request
permit application package review process5
Permit Application Package Review Process

LEA Issues Permit

Board Action (44009)

Board Staff Reviews Proposed Permit Package

LEA Reviews Permit Application Package and Submits Proposed Permit Package

Operator Submits Permit Application Package

slide98

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
slide99

LEA Issues Permit

  • The EA issues permit after Board concurrence
  • EA provides copy to permittee within 15 days of issuing permit
slide100

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
slide101

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
workshop afternoon session
Workshop Afternoon Session

Board as EA and Inspection Process

Tools for Compliance

  • Enforcement program plans
  • Emergency waiver (Audit response)
  • Stipulated agreement (Audit response)
  • Notice and orders
  • Enforcement by Board
  • Inventory

Cease and Desist

when does ciwmb become the ea
When Does CIWMB Become the EA?
  • No LEA designated and certified by CIWMB
when does ciwmb become the ea1
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)
when does ciwmb become the ea2
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.
responsibilities
Responsibilities

As EA, CIWMB assumes powers and authorities provided to certified LEAs, including:

  • Conduct inspections (at the required frequencies)
  • Process SWFPs
responsibilities1
Responsibilities
  • Perform permit reviews
  • Take appropriate enforcement actions
  • Perform site assessments
  • Oversee corrective actions
ea program
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
ea program1
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
inspection frequency requirements
Inspection Frequency Requirements
  • CIWMB
    • 18 months for landfills
    • Pre-permit inspections for other facilities
inspection frequency requirements1
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
inspection procedures
Inspection Procedures
  • Pre-inspection procedures.
    • Review governing documents/files.
    • Inspections are unannounced.
inspection procedures1
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.
inspections
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
inspections1
Inspections
  • Other Areas Checked Include:
  • Recycling/salvaging
  • Special Waste Storage
  • Other Ancillary Operations
active face daily cover ops
Active Face/Daily Cover Ops

Compaction - Daily cover operations

123

active face daily cover ops 2
Active Face/Daily Cover Ops 2

Use of ADC, tarps and C&D

125

diversion activities
Diversion Activities

Chipping and Grinding

131

diversion activities1
Diversion Activities

Recycling Center/Salvaging

132

diversion activities3
Diversion Activities

Used Oil Drop-off

134

inspection reports
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.
inspection reports1
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.
tools for compliance1
Tools for Compliance
  • Enforcement program plans
  • Emergency waiver
  • Stipulated agreement
tools for compliance2
Tools for Compliance
  • Notice and orders
  • Enforcement by Board
  • Inventory
enforcement program plan epp
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
emergency waiver title 14 17210 et seq
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
emergency waiver title 14 17210 et seq1
Emergency Waiver (Title 14--17210 Et seq)
  • Operator requests waiver from LEA
  • 120 day limit, can be extended
  • Diversion component
emergency waiver cont
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
emergency waiver cont1
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
stipulated agreement title 14 17211 et seq
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
stipulated agreement process con t
Stipulated Agreement Process (Con’t)
  • Operator requests and provides LEA with:
    • Description of temporary emergency, why unforeseeable
    • Terms and conditions to be addressed
stipulated agreement process con t1
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
stipulated agreement process con t2
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
stipulated agreement process con t3
Stipulated Agreement Process (Con’t)
  • ED reports to Board any granting of stipulated agreements
notice and order title 14 18304 et seq
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
types of orders
Types of Orders
  • Compliance order
    • Stipulated notice and order
  • Corrective action order
  • Cease and desist order
types of notices
Types of Notices
  • Corrective action by LEA
  • Impose administrative civil penalties
  • Conditionally impose administrative civil penalties
types of notices1
Types of Notices
  • Petition for superior court injunction
  • Suspend or revoke permit
  • Imposition of civil penalties
civil penalties
Civil Penalties
  • LEAs may include administrative and/or judicial civil penalties in notice and orders they issue
civil penalties con t
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)
civil penalties con t1
Civil Penalties (Con’t)

Procedures

  • Notify governing body of its intent to impose a penalty
  • Consider the gravity of violation
  • Consider alternatives to penalty
civil penalties con t2
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
statutory barriers to civil penalties
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
statutory barriers to civil penalties con t
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
legislation to streamline the current process for imposing civil penalties
Legislation to Streamline the Current Process for Imposing Civil Penalties.

Actions taken:

May 2001 – Board discussion on current processes for civil penalties

June 2001 - Board directed staff to pursue legislative changes (2001-176)

To date: staff continues to pursue legislative remedies

enforcement by the board prc 45012 title 14 section 18350
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.
enforcement by the board prc 45012 title 14 section 183501
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
enforcement by the board prc 45012 title 14 section 183502
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
inventory of solid waste facilities
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.
introduction cease desist
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.
lea discretion
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
lea discretion1
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”
exception to lea discretion
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))
two statutes govern the issuance of cease and desist orders
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]
slide170

Two Statutes Govern the Issuance of Cease and Desist Orders:

  • 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 nuisanceshall, upon order of the enforcement agency, cease and desist any improper action.” [emphasis added]
slide171

Two Statutes Govern the Issuance of Cease and Desist Orders:

  • These statutes require different responses to particular violations:
    • Immediate cessation when operating a solid waste facility without a permit
    • Cease “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.
slide172

Two Statutes Govern the Issuance of Cease and Desist Orders:

  • 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
operating solid waste facility without a solid waste facilities permit
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
section 44002 requires
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.
to emphasize
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
example recycling center consistently exceeding 10 residual limitation
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
example illegal disposal site
Example: Illegal Disposal Site
  • Option for LEA:
    • Cease and desist order to immediately cease operation entirely
permitted facility violating state minimum standard or term or condition of its swfp
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
permitted facility violating state minimum standard or term or condition of its swfp1
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”
suggested guidance
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
time to correct violation is necessary
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
time to correct violation is necessary1
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
lea discretion should not be abused
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
correction of violation should be immediate
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
correction of violation should be immediate1
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
slide186

General Observation about Enforcement Orders

  • Generally inappropriate to allow operator to revise permit as sole remedy for a violation
    • Not “appropriate enforcement action”:
      • Is not enforcement at all
      • LEAs have duty to enforce IWMA, SMS, terms and conditions of permits (PRC s. 43209(a); Title 14, s.18084(a))
      • Many enforcement tools available
protection for operator from overzealous lea
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))

additional options for lea
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))
slide189

Additional Options for LEA

  • Take corrective action if operator fails to comply with compliance schedule and seek reimbursement via civil cost recovery action (PRC 45000(a), (d))
slide190

Additional Options for LEA

  • “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 lea1
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)
additional options for lea2
Additional Options for LEA
  • Additional penalties and other remedies available to LEAs under local ordinances
next steps enforcement
Next Steps - Enforcement:
  • Legal Office work with P&E Division to develop LEA guidance
  • Possible workshop with LEAs to solicit LEA comments and advice
closing remarks next steps
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