California Department of Resources Recycling and Recovery (CalRecycle) 

LEA Evaluations

CalRecycle's Guidance on the Evaluation Procedure: Revised September 2013

Introduction

Several internal and external LEA Evaluation Procedure Workgroup participants have identified the need to maintain an ongoing LEA issue management philosophy.

Goal: To this end, Division management and staff will strive to resolve issues as they arise. The LEA will be provided timely guidance, direction, assistance, training, answers, or any support deemed appropriate at the time of issue origin.

Beginning An LEA Evaluation

Mandatory Evaluation

  • Statute requires LEAs to be evaluated at least once every three years, or more frequently as determined by CalRecycle pursuant to PRC 43214(b).
  • The time frame begins the day after the last evaluation, and concludes with the initiation date for the current evaluation. The evaluation may include emerging issues.
  • Any ongoing issues that began before the conclusion of the last evaluation and remain unresolved will also be considered in the current evaluation.
  • Staff maintains a 3-6 month LEA evaluation schedule for workload and LEA planning purposes. The schedule will be tentative, approximate, and subject to change as needed.

Other Circumstances That Prompt an Evaluation

An evaluation may be triggered by:

  • CalRecycle management/staff for specific LEA statutory and/or regulatory duty performance issues pursuant to PRC 43219(c).
  • Conditions at a solid waste facility/disposal site that cause a threat to public health and safety or the environment.
  • CalRecycle-verified information provided by California Conference of Directors of Environmental Health, Enforcement Advisory Council, concerned public, other agencies (local, state, federal), or regulated industry.

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Data Gathering

The following describes the process that Evaluation staff, in conjunction with other Division staff, utilize to gather data for inclusion into the LEA Evaluation results.

Evaluation staff will:

  • Obtain Solid Waste Information System (SWIS) database reports related to the six statutory findings for the jurisdiction. The SWIS database provides a variety of standard/special reports. Various facility inspection, permit, closure, and enforcement data is easily obtained.
  • Review the data, noting obvious compliance issues relevant to the findings required by statute pursuant to PRC 43214(d)(1-6).
  • Provide the data, noting compliance issues to appropriate Division program staff for discussion and resolution or inclusion in the LEA evaluation results.
  • Ensure that the LEA maintains its certification pursuant to 14 CCR 18077.

Division Program staff will:

  • Provide "the latest" information on compliance issues with effort made to include updates provided by LEA staff.
  • Provide any known compliance issues which are either too recent to be reflected in the SWIS database, not captured by SWIS, or erroneous. These issues MUST fall within the evaluation timeframe as noted to the LEA.

After Division staff’s input, Evaluation staff will:

  • Assess Division staff input and identify LEA program implementation issues and LEA program strengths.

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Developing Evaluation Results

Pursuant to PRC 43214, evaluation staff find that an LEA is not fulfilling its duties if:

  1. The local enforcement agency has failed to exercise due diligence in the inspection of solid waste facilities and disposal sites;
  2. The local enforcement agency has intentionally misrepresented the results of inspections;
  3. The local enforcement agency has failed to prepare, or cause to be prepared, permits, permit revisions, or closure and postclosure maintenance plans;
  4. The local enforcement agency has approved permits, permit revisions, or closure and postclosure maintenance plans which are not consistent with Part 4 and Part 5 of the Public Resources Code;
  5. The local enforcement agency has failed to take appropriate enforcement actions; and
  6. The local enforcement agency has failed to comply with, or has taken actions that are inconsistent with, or unauthorized by statute or regulations.

The local enforcement agency is also assessed for compliance with certification requirements pursuant to 14 CCR 18081.

Based on the above-mentioned criteria, evaluation staff determines:

  • If no/minor program implementation issues exist, Evaluation staff prepares draft LEA evaluation results for appropriate Division staff review and comment.
  • If program implementation issues exist, the specific information will be compiled, documented on a site-by-site basis, and discussed with the LEA for verification. Evaluation data will be verified internally and revised as appropriate. Evaluation staff then prepares draft LEA evaluation results for appropriate Division staff review and comment.

Evaluation staff modifies the draft by incorporating and/or responding to Division staff comments.

Presenting Evaluation Results

Evaluation staff provides the LEA with the draft LEA evaluation results and requests the LEA to contact evaluation staff for an exit interview. At the exit interview, the LEA is provided an opportunity to comment on the results and discuss new developments concerning the evaluation. Evaluation staff modifies the results, as appropriate, in order to correct any discrepancies in factual information.

  • Evaluation staff finalizes the evaluation results based on discussion during the exit interview and provides the LEA with evaluation results.
  • If no/minor program implementation issues were identified, this concludes the process. However, if the LEA is found not to be fulfilling its duties, the process continues with the following section.

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LEA Program Corrective Action 

When staff finds the LEA not to be fulfilling its responsibilities, the first step to correcting the LEA performance issues (pursuant to PRC 43214, 43215, 43216.5) is for CalRecycle staff to provide the particular reasons for finding the LEA not to be fulfilling its responsibilities in the evaluation results.

  • If there is no immediate threat to public health and safety or the environment, and the LEA agrees with the findings, staff instructs the agency to develop a corrective action plan (evaluation workplan) for submittal to CalRecycle for approval within 30 days. Division staff assess the plan for its ability to address the findings identified in the evaluation results. Once Division staff agree that the plan adequately addresses the issues identified in the evaluation, it is approved, the LEA is notified, and workplan implementation and monitoring begins. Division staff assigned to the jurisdiction typically monitor the LEA’s progress on evaluation workplans at three, six, and nine-month intervals. Monitoring frequency may increase due to workplan requirements. CalRecycle staff informs the LEA of their compliance with the workplan requirements at each interval. Division staff provides assistance whenever possible to ensure the LEA’s success in meeting its workplan. Evaluation staff provides the LEA with the ability to modify workplan due dates for unforeseen circumstances beyond the LEA’s control.
  • If the LEA fails to provide an evaluation workplan, CalRecycle considers withdrawal of its LEA designation approval.
  • If the LEA disagrees with the findings, an administrative conference* will be held. If an administrative conference fails to resolve the issues, Evaluation staff prepares a report for Deputy Director decision.

Administrative steps leading to CalRecycle Action: The primary evaluation follow-up activity consists of monitoring LEA workplan progress at regular intervals. When a workplan is not met, staff convenes an administrative conference. The attendees attempt to reach a consensus that resolves issues. The attendees include: Branch Chief, LEA Evaluation Program Manager and Supervisor, or their designees, and other technical staff, as needed. An administrative conference can result in preparation/revision of a workplan, or administrative conference agreement.

CalRecycle Action: If administrative remedies to improve LEA performance fail, CalRecycle may exercise one or more of the following statutory actions pursuant to PRC 43216.5 and 43214:

  • CalRecycle may establish a schedule and probationary period for improved LEA performance (PRC 43216.5). This period allows due process for the LEA to accomplish performance objectives without direct CalRecycle intervention on a local level.
  • CalRecycle may assume partial responsibility for specified LEA duties pursuant to PRC 43216.5. Under this option, CalRecycle considers partial de-certification, full de-certification, or withdrawal of designation approval. This action would result in direct CalRecycle involvement on a local level. CalRecycle may assume local enforcement agency responsibility on a site/facility basis, on one or more certified LEA duties, or on all LEA certification duties. Full de-certification and withdrawal of designation approval results in CalRecycle becoming the enforcement agency for the jurisdiction. Statute allows CalRecycle to recover its expenses when acting in any of these capacities.
  • CalRecycle may conduct more frequent inspections and evaluations pursuant to PRC 43216.5.
  • CalRecycle may implement any other measures which it determines to be necessary to improve LEA compliance pursuant to PRC 43216.5.
  • CalRecycle may take any actions it determines to be necessary to ensure LEAs fulfill their obligations  pursuant to PRC 43216.5.
  • If the lack of LEA performance has contributed to significant non-compliance with state minimum standards at solid waste facilities, CalRecycle shall withdraw its approval of designation pursuant to PRC 43214(c).

Urgency Step (can be applied at any time given conditions): If CalRecycle finds that conditions at solid waste facilities threaten public health and safety or the environment, CalRecycle shall, within 10 days of notifying the LEA, become the enforcement agency until another local agency is designated and certified pursuant to PRC 43214(c). Staff prepares a report recommending this option when the statutory conditions apply.

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Final Evaluation Results Example

The following example of final evaluation results is provided by CalRecycle to the LEA.

(Name) Jurisdiction LEA Evaluation Results

Month, day, year

Authority

Statute requires CalRecycle to find an LEA not to be fulfilling its responsibilities, if CalRecycle, in conducting the LEA performance review, makes one or more of the following findings pursuant to PRC 43214 (d):

  1. The local enforcement agency has failed to exercise due diligence in the inspection of solid waste facilities and disposal sites;
  2. The local enforcement agency has intentionally misrepresented the results of inspections;
  3. The local enforcement agency has failed to prepare, or cause to be prepared, permits, permit revisions, or closure and postclosure maintenance plans;
  4. The local enforcement agency has approved permits, permit revisions, or closure and postclosure maintenance plans which are not consistent with Part 4 and Part 5 of the Public Resources Code;
  5. The local enforcement agency has failed to take appropriate enforcement actions; and
  6. The enforcement agency has failed to comply with, or has taken actions that are inconsistent with, or unauthorized by statute or regulations.

Activity

The Activity section identifies the specific LEA jurisdiction undergoing the performance evaluation. It states that CalRecycle evaluated the agency’s programs for effective implementation and enforcement of statutory and regulatory requirements at solid waste facilities, operations, and disposal sites in its jurisdiction through the evaluation end date.

Summary

The summary identifies the LEA and the jurisdiction being evaluated. It mentions whether the LEA is or is not fulfilling its responsibilities in accordance with the six statutory findings (listed above). The details will be specified in the following analysis. A status is also provided in the Summary for the LEA’s permitting, inspection, enforcement, and closure/postclosure activities.

Analysis

The Analysis outlines the LEA’s data, some of which may lead to one or more finding(s), on a site-specific basis. The Analysis will help define and focus the LEA’s efforts and, if necessary, assist in the development of an evaluation workplan.

  1. Diligence in Inspections (14 CCR 18083)
    1. Active/Inactive Sites.
      • Determine if the LEA diligently inspected active/inactive facilities, operations, and disposal sites pursuant to regulatory requirements. The sites that are not inspected accordingly are identified explicitly.
      • In addition, evaluation staff discusses other inspection issues that are related to these sites.
    1. Closed/Closing and/or Exempt Sites.
      • Determine if the LEA diligently inspected closed/closing/exempt sites pursuant to regulatory requirements. CalRecycle explicitly identifies sites that are not inspected accordingly.
      • Discuss any other inspection issues that are related to these sites. With the direction of CIA staff, CalRecycle makes a determination if the LEA needs to pursue the Site Identification Process (SIP) to alter inspection frequencies.
  1. Inspection Results (14 CCR 18083).
    • Describe any circumstance(s) in which the LEA intentionally misrepresented the results of inspections.
  1. Permits and Closure Plans (14 CCR 18082)
    • Permit Processing pursuant to 27 CCR 21650 and applicable tiered permit processing requirements
      • Identify sites, include SWIS number and describe status or permit needs.
      • Describe LEA accomplishments to date and extenuating circumstances regarding lack of permit action taken by LEA if applicable.
    • Processing Report of Facility Information Amendments (for full Solid Waste Facility Permits only) pursuant to 27 CCR 21665
      • Identify sites that have RFI amendments on file.
      • Describe LEA accomplishments in processing amendments or circumstances explaining why amendments were not processed. Describe improper approvals or lack of determinations if applicable.
    • Five-Year Permit Review pursuant to 27 CCR 21675
      • Identify facilities, include SWIS number, for which the LEA has completed the five-year permit review and describe finding (i.e., significant change).
      • Describe LEA accomplishments in completing Permit Review Reports (PRR) or include circumstances explaining why PRRs were not completed as required.
    • Closure and Postclosure Maintenance Plan Review and Approvals
      • Describe LEA accomplishments in approving or denying closure plans pursuant to 27 CCR 21860, requiring revisions to closure plans, and meeting timeframes, or referral to CalRecycle pursuant to 14 CCR 18072, if applicable.
      • Identify sites requiring closure plans and EA’s role in causing plan to be prepared.
      • Identify ongoing approvals of amendments/revisions and appropriate actions taken by LEA pursuant to 27 CCR 21870, if applicable. Note closure plan implementation concerns not maintained by LEA pursuant to 27 CCR 21870, if applicable.
      • If needed, describes circumstances explaining why plan reviews or approvals were not conducted.
    • Participation in California Environmental Quality Act as Lead or Responsible agency
      • Identify CEQA projects which require LEA input, if applicable, and describe LEA accomplishments or indicate areas where improvement is needed pursuant to 27 CCR 21650(f)(7).
  1. Approval of Inconsistent Permits/Closure Plans
    • Describe any circumstances in which the LEA approved inconsistent permits/closure plans.
  1. Enforcement (14 CCR 18084)
    • Indicate the site name and SWIS number for the site(s) that were issued enforcement orders by the LEA.
    • Include the general scope and status of the enforcement order (state minimum standard, permit, closure/postclosure).
    • Indicate if compliance dates have lapsed and explain any extenuating circumstances.
    • Describe LEA enforcement accomplishments to date.
  1. Failure to comply with, or actions inconsistent with statute or regulations.
    • Describe actions by the LEA that were inconsistent with statute or regulations.
  1. Designation/Certification Maintenance (14 CCR 18081)
    • Determine if the Enforcement Program Plan (EPP) updates and current conditions reveal that the LEA’s designation continues to be valid. Ensure that staffing and the agency’s budget remain consistent with the time-task analysis and that the agency maintains non-conflict of interest with the operating unit. Review the components of the EPP pursuant to 14 CCR 18077, to determine if updates are needed.

Conclusion

Based upon the above analysis and findings, and pursuant to PRC 43214, this document constitutes notification that the jurisdiction (name) Department (name), Division (name if any) as LEA:

  1. is/is not exercising due diligence in the inspection of solid waste facilities and disposal sites;
  2. has/has not intentionally misrepresented the results of inspections;
  3. has/has not failed to prepare, or cause to be prepared, permits, permit revisions, or closure and postclosure maintenance plans;
  4. has/has not approved permits, permit revisions, or closure and postclosure maintenance plans which are not consistent with Part 4 and Part 5 of the Public Resources Code;
  5. has/has not failed to take appropriate enforcement actions; and
  6. has/has not failed to comply with, or has taken actions that are inconsistent with, or unauthorized by statute or regulations.

Either (1) commend the local enforcement agency for implementing a program that successfully applies solid waste statute and regulations or (2) describe the program implementation issues /findings and the circumstances that they appear to stem from. In addition, describe LEA accomplishments during the evaluation period. Also, include any new developments that are relevant to program implementation issues.

* Note: An administrative conference is held to resolve any conflicts arising from a LEA evaluation or subsequent evaluation workplan monitoring. Attendees include the Branch Chief, LEA Evaluation program manager and supervisor, or their designees, and other technical staff, as needed. External attendees will be LEA management/authorized representative, possibly a local governing body representative or designee, or representatives from the California Conference of Directors of Environmental Health and/or the Enforcement Advisory Council.

Last updated: September 25, 2013
LEA Evaluations, http://www.calrecycle.ca.gov/LEA/Evaluation/
Diana Cozadd: Diana.Cozadd@calrecycle.ca.gov (916) 341-6377