Local Enforcement Agency Correspondence

AB 2159

Date: October 28, 2004

To: All Local Enforcement Agencies

This all-LEA e-mail was sent on behalf of Howard Levenson, Deputy Director of the Permitting and Enforcement Division of the California Integrated Waste Management Board.

On September 10, 2004, Governor Schwarzenegger signed AB 2159 (Chapter 448, Statutes of 2004) into law. The bill amends Public Resources Code sections 44002, 44015, 44300, 44305, 44307-44310, 45005, 45017, 45030, 45032, 45033 and 45041, and adds sections 45002 and 45022.5. These sections relate to enforcement actions, including the stay of an enforcement action upon a request for a hearing, and the conduct of hearings and appeals.

The purpose of this message is to notify you of the major provisions of the bill and provide you with interim guidance on implementing those provisions. Board staff will provide additional guidance, as necessary, prior to the effective date of the law.

The provisions of the bill become effective January 1, 2005.

With respect to AB 2159's changes in the procedures applicable to hearings and appeals, how will the new law affect appeals that are already somewhere in the notice/hearing process on January 1, 2005? Following the general rule that statutory changes in procedures apply to actions taken after the statute's effective date, even if they arise from facts preceding the effective date, the new law will apply on January 1, 2005 to all hearings and appeals, regardless of when they were commenced. Thus, for example, if a hearing is held on January 20, 2005 (although the operator's request for a hearing was filed during 2004), the hearing may be held before a hearing panel or a hearing officer, as provided in section 44308, and shall be heard under the administrative hearing rules set out in Government Code 11445.10 et seq., as provided in section 44310. Likewise, to the extent they can be applied without undue prejudice to an applicant, the new timelines for appeals specified in section 44310 and 45030 will apply to matters pending on January 1, 2005. LEAs and parties to hearings commenced before January 1, 2005 should discuss this issue with their counsel to determine how the new laws will affect pending matters.

To assist with your comprehensive review of the new requirements the attached document (Word 2003, 50 KB) compares chaptered bill text to existing statutory language.

In summary, AB 2159 will:

Stay of Cease and Desist Orders

• Provide that a request for a hearing does not stay the effect of a cease and desist order issued under section 44002 for operating a solid waste facility without a permit, if the owner/operator has not applied for a permit prior to the issuance of the cease and desist order and has not been denied a permit for the activity. The automatic stay still applies to all other enforcement orders and determinations made by the enforcement agency, except in the case of a finding of imminent and substantial threat to public health and safety or the environment. See Sections 44002, 45017.

Conduct of Hearings

• Allow a hearing by an enforcement agency to be conducted by a hearing officer appointed by the governing body of an enforcement agency. Prior to an appointment, the governing body must adopt: 1) procedures for making an appointment, and 2) qualifications that the hearing officer is required to meet. See Sections 44300, 44305 and 44308.
• Specify the procedures for the conduct of hearings. Hearings shall be held under the informal hearing procedures set out in the Administrative Procedures Act, Government Code Sections 11445.10 et seq. See Section 44310.
• Revise the provisions for the conduct of hearings to require a written filing and a statement of the issues and require the enforcement agency to comply with a specified time schedule regarding the conduct of the hearing. In particular, the length of time it takes to get a dispute to the hearing panel or hearing officer has been substantially reduced. See Section 44310.

  Graphics of new local hearing timelines:

  • Based on request by person subject to an action (Adobe PDF, 32 KB)

• Based on request by person alleging enforcement agency failed to act (Adobe PDF, 38 KB)

• Revise the procedures for appealing the decision of the hearing panel or hearing officer to the board and require the board to hear an appeal within 60 days after the board receives a request for the appeal. See Section 45030. Board hearings on AB 59 appeals will also be held under the informal hearing procedures set out in the Administrative Procedures Act, Government Code Sections 11445.10 et seq. See Section 45030.

Graphics of new board appeal timelines:

• Based on written decision (Adobe PDF, 28 KB) of hearing panel or hearing officer
• Based on no local decision (Adobe PDF, 35 KB)

Activities That Do Not Require a Permit

• Require an enforcement agency to maintain a record of, and take any action that the enforcement agency is authorized to take regarding, a complaint, referral, or inspection relating to the operation of a solid waste facility, solid waste disposal site, or solid waste handling activity, including, but not limited to, those activities that do not require a solid waste facilities permit, within its jurisdiction. See Section 45022.5.

Please feel free to contact Robert Holmes of my staff at (916) 341-6376 with questions about AB 2159 and its implementation.

Howard Levenson, Ph.D.
Deputy Director, Permitting & Enforcement
CIWMB, MS #16
P.O. Box 4025
Sacramento, CA 95812-4025
Phone: 916-341-6360
E-mail: Howard.Levenson@calrecycle.ca.gov