California Department of Resources Recycling and Recovery (CalRecycle) 

Enforcement Advisory Council Meeting

Attachment to Resolution from Enforcement Advisory Council Meeting—June 22, 2000

November 13, 2000

To: Mark de Bie
Permitting & Enforcement Division

From: Michael L. Bledsoe, Legal Office
California Integrated Waste Management Board

Subject: Deering's Publication of PRC Section 44002

You have inquired whether the Legal Office concurs with the publisher's comments regarding the purported repeal of Public Resources Code Section 44002 as stated in Deering's Supplement for the year 2000. In a word, "No".

There appears to be a difference of opinion between the two dominant publishers of California codes. The Deering's Supplement 2000 (published by Bancroft-Whitney) states that Section 44002 was repealed in its entirety by its own terms on 1/1/99. The West's Supplement 2000 (published by West Group) indicates that only subdivision (b) of Section 44002 became "inoperative" as of 1/1/99.

Our understanding coincides with the interpretation in West's. This interpretation is supported by a review of Chapter 1038, Statutes of 1996, (AB 626) which took effect as an urgency measure on September 29, 1996, as published by Bancroft-Whitney (Advance Legislative Service to Deering's California Codes Annotated, 1996, pp. 5878-5893 ("1996 Advance Legislative Service")). Chapter 1038 amended Section 44002 to provide in subdivision (a) that a solid waste facilities permit is required for a solid waste facility and that an enforcement agency must issue a cease and desist order to any facility operating without the required solid waste facilities permit. Subdivision (a) took effect 10/16/96. Chapter 1038 added subdivision (b) to Section 44002 which provided that the enforcement agency could stay the issuance of a cease and desist order in certain circumstances (facility in the process of changing ownership and use and is obtaining a new or revised permit). Chapter 103 specified that subdivision (b) would become inoperative 1/1/99. The word "subdivision" refers to only a portion of a statute, not the entire. statute. See People v. Farell, 2000 WL 1234625 (8/31/00). Hence, enforcement agencies' authority to stay cease and desist orders expired on 1/1/99.

This interpretation is consistent with the Legislature's intent in adopting Chapter 1038, as stated in the Legislative Counsel's Digest (1996 Advance Legislative Service, p 5879). The Legislative Counsel notes that existing law requires solid waste facilities to have solid waste facilities permits and that if a facility does not have a permit the enforcement agency must issue a cease and desist order to force the facility to cease operating. The Legislative Counsel goes on to state that [t]his bill would, until January 1, 1999, authorize the enforcement agency to stay the issuance of a cease and desist order...," on certain conditions. This language clearly refers to the limited period during which an enforcement agency would have the authority to stay the issuance of a cease and desist order. There is no legislative intent to repeal the fundamental requirement set out in subdivision (a) that all solid waste facilities must have solid waste facilities permit.

Memo from Julie Nauman | EAC Archive

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Last updated: February 7, 2005
Enforcement Advisory Council (EAC) http://www.calrecycle.ca.gov/LEA/EACouncil/
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