1. SUMMARY OF INFORMAL COMMENTS Temporary Waiver of Terms Regulations May 2006

2. Scope: Expand the scope of the regulations to include the ability to waive state minimum standards (i.e., operational requirements) during a “temporary emergency.” Response: Staff is not suggesting regulation text changes to address this comment. The scope of these regulations has always been limited to permit terms and conditions, as opposed to state minimum standards.

3. Definition of Temporary Emergency (Section 17211.1(b)): Specify a time period to define “temporary.” Response: Staff is not suggesting regulation text changes to address this comment. The time period for a temporary emergency is described in section 17211.2. Specify that certain situations (e.g. sudden closure a neighboring facility) are included in the definition of a “temporary emergency.” Note: Stakeholders presented several other situations (some real, some hypothetical) as examples of situations that they felt should be considered temporary emergencies. Response: The situations were helpful during the discussions to help illustrate how the regulations would be implemented; however, staff is not suggesting that specific situations be listed in the regulation text. Rather, staff will consider including specific examples in the Statement of Reasons that accompanies the text.

4. Definition of Temporary Emergency (continued): Remove “collection or disposal labor strike” from the list of situations that are not included in the definition of “temporary emergency.” Response: Staff is seeking P&E Committee direction on whether to change regulation text to address this comment. It is possible that a collection or disposal labor strike could create a condition(s) that threatens public health, safety, or the environment. Insert the word “reasonably” before the term “foreseeable future events.” Response: Staff changed regulation text to address this comment.

5. Board Review of Stipulated Agreements (17211.9(b)): There needs to be a way for LEAs to "appeal" an action by the Executive Director to "… condition, limit, suspend, or terminate an operator's use of a stipulated agreement…" Response: Staff is seeking P&E Committee direction on whether to change regulation text to address this comment. The ability to appeal would provide due process to an LEA that disagrees with an Executive Director action. Alternately, due process could also be attained by requiring the Executive Director to consult with the LEA prior to taking an action. Delegation to any employees is very broad and should only be delegated to the Deputy Director. Response: Staff is not suggesting regulation text changes to address this comment. The discretion to delegate lies properly with the Executive Director. To date, the Executive Director has not exercised his authority to delegate.

6. Temporary Waiver of Terms Draft Text (5/8/06) 17211.1 Definitions In addition to the definitions set forth in Section 17210.1 of Article 3, of this Chapter, the following definitions apply to this Article 3.5: (a) "Stipulated agreement" means an enforceable document written by the EA, pursuant to Division 30, Public Resources Code, Section 45011(a), that provides a temporary waiver of specified terms and conditions of a solid waste facilities permit issued to an operator pursuant to this Division. This document The stipulated agreement is subject to appeal through the appeal process set out in Division 30, Public Resources Code, Parts 5 and 6. (b) "Temporary Emergency" means a temporary, unforeseeable circumstance, which results in a situation where it is necessary, in order to protect the public health and safety and the environment as determined by the EA, to waive specified terms and conditions of a solid waste facilities permit. This “Temporary emergency” does not include a collection or disposal labor strike or, competitive market changes or a failure, on the part of the operator, EA or a local government agency, to plan for reasonably foreseeable future events.

7. 17211.4 Issuing a Stipulated Agreement (a) The EA may issue a stipulated agreement upon making the following determinations: (1) A temporary emergency exists. (2) The operator requesting a stipulated agreement holds a valid solid waste facilities permit for the facility. (23) The operator is in compliance and has demonstrated good faith in maintaining compliance with state minimum standards and the terms and conditions of the existing solid waste facilities permit. (4) It is necessary to waive specified terms and conditions of a solid waste facilities permit in order to protect the public health and safety and the environment. (35) Operation under the stipulated agreement will not pose a threat to public health and safety or the environment.

8. 17211.4 Issuing a Stipulated Agreement (46) Any restrictions, conditions, or terms contained in the stipulated agreement have been agreed upon by the EA and the operator. (57) A stipulated agreement may not be used for a recurring temporary emergency addressed by a previous stipulated agreement. (b) Within 5 working days of receipt of the operator's request for a stipulated agreement, the EA shall notify the operator in writing whether or not the request for a stipulated agreement has been granted. If the proposed stipulated agreement is not granted, the EA’s notification shall contain reasons for the denial. The solid waste facility operator may again request the stipulated agreement at a later date or submit necessary documentation to receive the stipulated agreement. (c) If a stipulated agreement is not requested or a request is denied, the EA may address the changes required to address the temporary emergency through the processes and mechanisms included in Chapter 5, Article 4.

9. 17211.7 Reporting Requirements for an Enforcement Agency (a) The EA shall transmit a copy of the stipulated agreement request and stipulated agreement to the Board within 5 working days of it being granted. (b) The EA shall transmit a copy of the stipulated agreement request and verification of denial to the Board within 5 working days of the stipulated agreement denial. (1) The transmitted stipulated agreement will be accompanied by supporting written documentation of the information by which the LEA made the determinations required in Section 17211.4(a) (c) The EA shall transmit a copy of verification of an extension of a stipulated agreement to the Board within 5 working days of it being granted. (d) The EA shall submit a copy of the operator's written reports to the Board within 5 working days of the receipt of the reports. (e) The EA shall provide an oral report to the Board during the next regularly scheduled meeting after an extension of a stipulated agreement. (f) Within 24 hours following the EA's issuance of a stipulated agreement, the EA shall submit a notice for publication in a daily newspaper of general circulation in the community in which the solid waste facility is located and shall submit a notice to the Board to be posted in the Board's web page.

10. 17211.9 Board Review of Stipulated Agreements (a) Once a stipulated agreement is issued and provided pursuant to Section 17211.7(a), the Executive Director, or designee, of the Board shall review all EA approvals. The Executive Director, or designee, may, after consulting with the EA, condition, limit, suspend, or terminate an operator's use of a stipulated agreement, if it is determined he or she finds that implementation of the use of the agreement would cause harm to as issued is not consistent with Section 17211.4 and/or may adversely affect public health and safety, or the environment. (b) The Executive Director, or designee, shall report to the Board at the next regularly scheduled meeting any issuance of a stipulated agreement, denial of a stipulated agreement, extension of a stipulated agreement, or any other action taken by the an EA pursuant to this Article and shall report any action taken by the Executive Director to condition, limit, suspend or terminate a stipulated agreement, including the basis on which the Executive Director took such action. (c) The Executive Director may delegate his or her duties under this section to any employee of the Board.