2. 1 Agenda Review Morning Session: Purpose of Workshop Roles and Responsibilities Steps in Permitting a Facility Break for Lunch

3. 2 Agenda Review Afternoon Session: Board as Enforcement Agency and Inspection Process Tools for Compliance Cease and Desist

4. 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

5. 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.

6. 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

7. 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

8. 7 Steps In Permitting a Facility Local Approval Process Overview of Permit Process Application/LEA Process Board Process Board Action LEA Issues Permit

9. 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

10. 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

11. 10 Steps In Permitting a Facility Local Approval Process Overview of Permit Process Application/LEA Process Board Process Board Action LEA Issues Permit

12. 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.

13. 12 Local Approval and CEQA New or changing solid waste facilities may require: Public noticing Document availability Project approval CEQA documentation Prepare and circulate for review and comment

14. 13 Local Approval and CEQA New or changing solid waste facilities might not require: Local approval, CEQA or public noticing No local CUP requirement or revision New or revised solid waste facility permits are required and can still trigger CEQA

15. 14 When local approvals are required: The LEA/CIWMB permit process will use review and documentation generated during local process Local agency initiates CEQA process Address local siting, land use and planning issues May have early consultation for responsible agencies Notice public and circulate for state agency review Public noticing Local Approval and CEQA

16. 15 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

17. 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

18. 17 Public Outreach Notices, Meetings, Hearings Sample 3 years of permit actions

19. 18 Steps In Permitting a Facility Local Approval Process Overview of Permit Process Application/LEA Process Board Process Board Action LEA Issues Permit

20. 19 Statutory and Regulatory Authority PRC Section 44004 & 27 CCR 21620 No significant change unless authorized Application 150 days prior to change

21. 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

22. Overview of Permit Process 150 days Operator Submits Application LEA Determines Complete & CorrectLEA Draft Proposed PermitBoard DecisionLEA Decides to Issue Permit Amend RFI New or Revised Permit If LEA Determines Permit Change is Needed 5 Year Review 30 days55 days60 days5 days 23

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

24. 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

25. Operator Anticipates Change Operator Submits Application Illegal operation Notice and Order (Cease & Desist) Continue activity during permit process Revised Permit Waiver Stop Until Approved Continue Activity For Limited Time 26

26. 25 Steps In Permitting a Facility Overview of Permit Process Permit Review RFI Amendment Minor Changes to Permit Tiers

27. 26 Permit reviewed every five years For permitted facilities (full, standardized, registration) From LEA issuance date Five Year Review of Permits

28. 27 LEA review Existing or upcoming operation and design changes Includes review of capacity and site life (for disposal sites) LEA writes permit review report Direct operator on necessary action Five Year Review of Permits

29. 28 Five Year Review of Permits LEA permit review report may direct: No change needed or allowed Operator to apply for an RFI amendment

30. 29 Five Year Review of Permits Operator to apply for a revision to the permit Change affects the permit terms and conditions Cease implementation of changes Request for changes denied Change may not be consistent with standards Change requires approval

31. 30 Steps In Permitting a Facility Overview of Permit Process Permit Review RFI Amendment Minor Changes to Permit Tiers

32. 31 RFI Amendments Operator submits application Approved by LEA

33. 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

34. 33 Steps In Permitting a Facility Overview of Permit Process Permit Review RFI Amendment Minor Changes to Permit Tiers

35. 34 Minor Changes to the Permit Currently Minor Changes Require a Full Permit Revision No Method to Handle Minor Updates to a Permit

36. 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

37. 36 Steps In Permitting a Facility Overview of Permit Process Permit Review RFI Amendment Minor Changes to Permit Tiers

38. 37 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

39. 38 Tier Permits—When? Framework: March 1995 Placement : CompostJune 1995 Contaminated SoilMarch 1996 Transfer/Processing 1 October 1996 Nonhazardous Ash September 1997 Transfer/Processing 2 March 1999 Non-haz. in Class IJuly 2000 Compostable Materials 2 April 2003 Construction and DemolitionIn Progress Tire MonofillsIn Progress

40. 39 Tiered Structure

41. 40 Tiered Structure

42. 41 Tiered Structure

43. 42 Tiered Structure

44. 43 Tiered Structure

45. 44 Steps In Permitting a Facility Local Approval Process Overview of Permit Process Application/LEA Process Board Process Board Action LEA Issues Permit

46. 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

47. 46 Permit Application Package Review Process Operator Submits Permit Application Package

48. 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

49. 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

50. 49 Permit Application Package Review Process Operator Submits Permit Application Package LEA Reviews Permit Application Package and Submits Proposed Permit Package

51. 50 LEA Reviews Permit Application Package and Submits Proposed Full Permit Package n 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

52. 51 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

53. 52 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

54. 53 Steps In Permitting a Facility Local Approval Process Overview of Permit Process Application/LEA Process Board Process Board Action LEA Issues Permit

55. 54 Permit Application Package Review Process Operator Submits Permit Application Package LEA Reviews Application Package and Submits Proposed Permit Package Board Staff Reviews Proposed Permit Package

56. 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

57. 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

58. 57 5. EA finding that CEQA supports the application package 6. Land Use / Conditional Use Permits, if applicable Board Staff Reviews Proposed Permit Package (Cont’d)

59. 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 Board Staff Reviews Proposed Permit Package (Cont’d)

60. 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

61. 60 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.

62. 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)

63. 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

64. 63 Closure and Post Closure Maintenance Plans (C/PCM Plans)

65. 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

66. 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

67. 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)

68. 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

69. 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

70. 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

71. 70 Financial Assurances Coverage Requirements Acceptable Mechanisms Flow Charts of Process Enforcement

72. 71 Coverage Requirements Solid Waste Landfills Closure and Postclosure Maintenance Operating Liability Corrective Action Major Waste Tire Facilities Closure Operating Liability

73. 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

74. 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)

75. 74 Acceptable Mechanisms Federal Certification Liability Coverage Operating Liability Insurance Self-Insurance & Risk Management (public only)

76. FAS Review in Conjunction With Plan Review 77

77. 76 Financial Assurance Review in Conjunction with Permit Review

78. Financial Assurances Reviews 79

79. 78 Enforcement for FA CIWMB can enforce financial assurance requirements

80. 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

81. 80 Enforcement for FA Penalties CIWMB may impose civil or administrative penalties

82. 81 Board CEQA Review

83. 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)]

84. 83 Board Authority and Responsibility Under Solid Waste and CEQA Statutes  The Board must consider environmental effects of project as shown in CEQA documents prior to reaching decision on project [CCR 15096(f)]

85. 84 Board Authority and Responsibility Under Solid Waste and CEQA Statutes  Board required to make CEQA findings for each significant effect of project [CCR 15096(h), 15091 and 15093]  Board files notice of determination [CCR 15096(i), 15075 or 15094]

86. 85 Board Authority and Responsibility Under Solid Waste and CEQA Statutes Board concurrence as a discretionary action when carrying out or approving a project [14 CCR 15002(i)] Board required to give major consideration to preventing environmental damage [14 CCR, section 15021]

87. 86 Board Authority and Responsibility Under Solid Waste and CEQA Statutes Board required to adopt objectives, criteria, and specific procedures for administration of CEQA [14 CCR, section 15022]

88. 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]

89. 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)]

90. 89 Permit Application Package Review Process Operator Submits Permit Application Package LEA Reviews Application Package and Submits Proposed Permit Package Board Staff Reviews Proposed Permit Package Board Action (44009)

91. 90 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.

92. 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)

93. 92 Board Action (PRC 44009) 2. Financial assurances for operating liability are inadequate (PRC 43040) 3. Inadequate financial ability to provide for closure and postclosure (PRC 43600)

94. 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) Board Action (PRC 44009)

95. 94 6. Special requirements for transformation facility (PRC44150) Reasons for objection to a permit must be transmitted to the EA. Board Action (PRC 44009)

96. 95 If the Board does not concur or object within 60 days, the permit can be issued on the 60th day. Board Action (PRC 44009)

97. 96 Exception - landfill operator not in compliance with an enforcement order from Regional Water Quality Control Board and all of the following conditions exist: 1.WDRs are pending review in a petition before State Water Board 2.Petition includes a request for a stay 3.Water Board has not taken action on the stay request Board Action (PRC 44009)

98. 97 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

99. 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

100. 99 LEA Issues Permit The EA issues permit after Board concurrence EA provides copy to permittee within 15 days of issuing permit

101. 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

102. 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 CentralLEA Central

103. 102 Discussion and Break Lunch Break

104. 103 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

105. 104 CIWMB As Enforcement Agency (EA) and Inspection Procedures

106. 105 When Does CIWMB Become the EA? No LEA designated and certified by CIWMB

107. 106 When Does CIWMB Become the EA? Local governing body withdraws designation, but does not designate another LEA CIWMB withdraws approval of designation and local governing body does not designate another LEA (e.g., LEA not fulfilling responsibilities)

108. 107 When Does CIWMB Become the EA? CIWMB assumes partial responsibility for specific duties (e.g., Enforcement, inspections). CIWMB is EA for cities of Berkeley, Paso Robles, and Stockton and counties of Santa Cruz and Stanislaus.

109. 108 Responsibilities As EA, CIWMB assumes powers and authorities provided to certified LEAs, including: Conduct inspections (at the required frequencies) Process SWFPs

110. 109 Responsibilities Perform permit reviews Take appropriate enforcement actions Perform site assessments Oversee corrective actions

111. 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

112. 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

113. 112 Inspection Frequency Requirements CIWMB 18 months for landfills Pre-permit inspections for other facilities

114. 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

115. 114 Inspection Procedures Pre-inspection procedures. Review governing documents/files. Inspections are unannounced.

116. 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.

117. 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

118. 117 Inspections Other Areas Checked Include: 1. Recycling/salvaging 2. Special Waste Storage 3. Other Ancillary Operations

119. Entrance Signs 120

120. Gatehouse/Scale 121

121. Daily Cover 122

122. Active Face/Daily Cover Ops Compaction - Daily cover operations 123

123. Daily Cover at End of Day 124

124. Active Face/Daily Cover Ops 2 Use of ADC, tarps and C&D 125

125. Gas Monitoring & Control 126

126. Gas Monitoring at Perimeter Probes 127

127. Gas Recovery System 128

128. Leachate Control 129

129. Site Perimeter 130

130. Diversion Activities Chipping and Grinding 131

131. Recycling Center/Salvaging Diversion Activities 132

132. Metal Pile Diversion Activities 133

133. Used Oil Drop-off Diversion Activities 134

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.

135. 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.

136. Inspection Report Prep. And Exit Interview W/ Operator 137

137. 136 Tools for Compliance

138. 137 Tools for Compliance Enforcement program plans Emergency waiver Stipulated agreement

139. 138 Tools for Compliance Notice and orders Enforcement by Board Inventory

140. 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

141. 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

142. 141 Emergency Waiver (Title 14--17210 Et seq)  Operator requests waiver from LEA  120 day limit, can be extended  Diversion component

143. 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

144. 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

145. 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

146. 145 Stipulated Agreement Process (Con’t)  Operator requests and provides LEA with:  Description of temporary emergency, why unforeseeable  Terms and conditions to be addressed

147. 146 Stipulated Agreement Process (Con’t)  Commencement date  Actions to be taken so agreement is no longer needed – includes timeline  Evidence of compliance with the following: applicable land use entitlements, other permits, federal, state and local laws and regulations, CEQA

148. 147 Stipulated Agreement Process (Con’t)  LEA and operator reporting requirements  LEA can condition, limit, suspend, revoke, terminate if causes harm to public health and the environment  Executive director (ED) reviews all LEA approvals and can  Condition, limit, suspend, revoke, terminate if causes harm to PH&E or no reasonable diversion

149. 148 Stipulated Agreement Process (Con’t)  ED reports to Board any granting of stipulated agreements

150. 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

151. 150 Types of Orders  Compliance order  Stipulated notice and order  Corrective action order  Cease and desist order

152. 151 Types of Notices  Corrective action by LEA  Impose administrative civil penalties  Conditionally impose administrative civil penalties

153. 152 Types of Notices  Petition for superior court injunction  Suspend or revoke permit  Imposition of civil penalties

154. 153 Civil Penalties  LEAs may include administrative and/or judicial civil penalties in notice and orders they issue

155. 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)

156. 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

157. 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

158. 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

159. 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

160. 159 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

161. 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.

162. 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

163. 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

164. 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.

165. 164 Cease and Desist

166. 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.

167. 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

168. 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”

169. 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))

170. 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]

171. 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] Two Statutes Govern the Issuance of Cease and Desist Orders:

172. 171  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. Two Statutes Govern the Issuance of Cease and Desist Orders:

173. 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 Two Statutes Govern the Issuance of Cease and Desist Orders:

174. 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

175. 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.

176. 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

177. 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

178. 177 Example: Illegal Disposal Site Option for LEA: Cease and desist order to immediately cease operation entirely

179. 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

180. 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”

181. 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

182. 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

183. 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

184. 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

185. 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

186. 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

187. 186 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 General Observation about Enforcement Orders

188. 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))

189. 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))

190. 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

191. 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

192. 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)

193. 192 Additional Options for LEA Additional penalties and other remedies available to LEAs under local ordinances

194. 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

195. 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