Regulations: Title 14, Natural Resources--Division 7, CIWMB

Chapter 5. Enforcement of Solid Waste Standards and Administration of Solid Waste Facility Permits; Loan Guarantees

Article 4. Enforcement by EA and Review by Board

Note:

Authority cited:
Sections 40502 and 43020 of the Public Resources Code.

Reference:
Sections 43209, 43216.5 and 45012 of the Public Resources Code.

Section 18302. Written Complaints of Alleged Violations.
(a) Any person having information alleging a facility or operation is being operated without a required permit or notification, in violation of one or more terms or conditions of a permit, in violation of the state minimum standards, or in violation of any related state solid waste laws or regulations, or that a permit was obtained wholly or partially by misrepresentation or nondisclosure of relevant facts, may file a complaint regarding such allegation in writing to the EA. The complaint shall include the following:

(1) The name, address and telephone number of the person making the complaint, however nothing in this chapter shall be construed to prevent the making of anonymous complaints by omitting the identity of the reporting party from the complaint;

(2) The identity and location, if known, of the facility or operation and the names and addresses, if known, of the persons responsible for the violation;

(3) The nature of the violation and/or the relevant misrepresented or non-disclosed facts; and

(4) All known facts relevant to the alleged violation or likely to be of assistance to the EA in investigating the complaint, including but not limited to information relating to witnesses and physical evidence.

(b) The person making the complaint may forward a copy to the board.

(c) Upon receipt of a complaint, the EA shall within fifteen days examine the complaint and determine whether its allegations, if true, would constitute a violation of a state minimum standard, permit term or condition or any related state solid waste law or regulation. The EA shall make its determination on the basis of the substance of the allegations rather than on the basis of the complaint's technical compliance with the Act or this chapter. Should the EA determine that the complaint fails to allege facts constituting a violation of a state minimum standard, permit term or condition or related state solid waste law or regulation, it shall so advise the reporting party in writing at the address given in the complaint if an address is given and place a copy in its files.

(d) The EA may decline to investigate a complaint if, in its judgment, investigation is unwarranted because the allegations are contrary to facts known to the EA. Should the EA decline to investigate on that ground, it shall so advise the complaining party in writing at the address given in the complaint if an address is given and place a copy in its files.

(e) Except as provided in subsection (c) or subsection (d) of this section, the EA shall commence an investigation of the facts alleged in the complaint.

(f) If an LEA has a complaint review and investigation initiation procedure that contains substantially the same basic requirements as this section, and accomplishes the intended purposes of this section within its board-approved EPP, it may follow that equivalent process in lieu of subsections (c), (d) and (e) of this section. Section 18302 is intended to insure that every person making a written complaint of an alleged unlawful condition at at solid waste facility or operation can assume that his or her complaint will receive appropriate attention.

(g) If the board receives a complaint in a jurisdiction where it is not the EA, the complaint shall be forwarded to the appropriate LEA within 5 days of its receipt, unless the LEA has received a copy from the complaining party.

Note:

Authority cited:
Sections 40502 and 43020 of the Public Resources Code.

Reference:
Sections 43209, 44012, 44015, and 45000-45024 of the Public Resources Code.

Section 18303. Investigations.
(a) The EA shall conduct investigations of allegations made to it as required by subsection (e) of Section 18302 or, if applicable, as required by its own equivalent complaint review and investigation initiation procedure as described in its board-approved EPP, and shall conduct investigations of all other disposal sites, facilities and operations where it has reason to believe violations exist. In addition, the EA shall conduct such periodic investigations as it deems necessary to insure compliance with all related state solid waste laws and regulations. In any investigation of possible violation of a health-related standard, the LEA, if it is not the local health department, shall consult as appropriate with the local health department concerning enforcement actions. If an investigation of possible violation of a health-related standard is conducted by the board, it shall obtain and consider the recommendation of the State Department of Health Services in addition to that of the local health department/health officer.

(b) Investigations by LEAs shall be conducted in accordance with the procedures in their board-approved EPPs. The procedures shall include the requirements found in subsection (c).

(c) The EA shall maintain a record of each investigation. The record shall include but not be limited to the following:

(1) The names of all persons interviewed and the date and location of each interview;

(2) A description of all documentary and other physical evidence examined;

(3) The dates, times, and locations of all inspections of the facility;

(4) A list of correspondence, including any written reports by the permittee;

(5) Any other evidence leading to resolve the issues.

(6) A summary of the findings and conclusions of each completed investigation.

(d) The summary of the findings and conclusions of each completed investigation shall be included in the next periodic inspection report, as applicable.

Note:

Authority cited:
Sections 40502 and 43020 of the Public Resources Code.

Reference:
Sections 44100 and 44101 of the Public Resources Code.

Section 18304. Notices and Orders.
(a) The EA as it deems appropriate or when required by statute, shall issue a notice and order pursuant to subsection (b) and section 18304.1 if, in the course of an investigation or at any other time, the EA determines that any facility, disposal site, operation or person(s):

(1) Is in violation of Division 30 of the Public Resources Code;

(2) Is in violation of any regulations adopted pursuant to Division 30;

(3) Is in violation of any terms or conditions of the solid waste facility permit under which the facility or disposal site is operating;

(4) Causes or threatens to cause condition of hazard or pollution; or

(5) Poses a potential threat to public health and safety or the environment.

(b) The notice and order shall contain the following information:

(1) The identity of the EA.

(2) The name or names of each person or entity to whom it is directed.

(3) A description of the facility, operation or site where the violation was documented with a specific description of the location of the violation.

(4) A description of the violation.

(5) The statutes, regulations, or permit terms and conditions the EA has determined are being violated.

(6) A schedule, as described in section 18304.1(a), by which the operator is to take specified action(s).

(7) The penalty for not complying within the specified schedule, as described in section 18304.1(b).

(8) A notice informing the owner/operator of their right to appeal the notice and order to the hearing panel or hearing officer under PRC 44307.

(9) The date of issuance and signature of an authorized officer or employee of the EA.

(c) The notice and order shall be accompanied by a declaration or affidavit under penalty of perjury of an employee or officer of the EA stating that the allegations contained in the notice and order are based either on personal knowledge or information and belief. If the basis of the allegations is the personal knowledge of the declarant or affiant, the declaration or affidavit shall state generally how such knowledge was obtained, including the date of any inspection. If the basis of the allegations is information and belief, the declaration or affidavit shall state generally the source of the information; however, in no case shall the identity of an informant be required to be revealed.

(d) Within five business days of issuance of the notice and order, it shall be served on the owner and operator of the site, facility or operation, or person as applicable, in the following manner:

(1) If the site or facility has been issued a permit, or if an application for the site or facility is pending, or if the EA has received a Notification for the operation, by certified mail, return receipt requested, to the address last given by the owner and operator or by personal service if certified mail attempts are unsuccessful; or

(2) If no permit has been issued and no application is pending, or no Notification has been filed, by posting a copy at no less than one conspicuous place at the site or facility. Additional copies shall be mailed to addresses of the owner and operator if known to the EA.

Enforcement: For efficient administration, a single notice and order form will be used to initiate any of the various enforcement actions provided by the Act. However, it should be noted that certain enforcement actions are available only for certain types of violations.

Note:

Authority cited:
Sections 40502 and 43020 of the Public Resources Code.

Reference:
Sections 45000-45024 of the Public Resources Code.

Section 18304.1. Types of Notices and Orders; Enforcement Thereof.
The EA shall include in a notice and order at least one of the orders listed in subsection (a), and shall include the applicable notices listed in subsection (b):

(a) Orders

(1) Corrective Action Order
An order requiring the owner or operator of a facility, disposal site or operation to take specified action by a specified date to abate a nuisance, or to protect public health and safety or the environment. Example: Typical circumstances under which this order may be issued: Conditions at the facility, disposal site or operation are creating a nuisance or posing a threat to human health and safety or the environment.

(2) Cease and Desist Order
An order requiring the owner or operator of a facility, disposal site or operation to cease and desist any improper action, as specified in PRC section 45005, by a specified date. Example: Typical circumstances under which this order may be issued: Facility, disposal site or operation is in violation of Division 30 of the Public Resources Code, any regulations adopted pursuant to Division 30, or cause or threatens to cause a condition of hazard, pollution or nuisance.

(3) Compliance Order
Upon any of the grounds specified in PRC section 45011(a)(1), an order establishing a time schedule according to which the owner or operator of the facility, disposal site or operation shall correct any violations and/or abate a potential or actual threat to public health and safety or the environment. Example: Typical circumstances under which this order may be issued: Facility, disposal site or operation is in violation of Division 30 of the Public Resources Code, any regulations adopted pursuant to Division 30, any corrective action or cease or desist order, or poses a potential threat to public health and safety or the environment. A compliance order must be issued pursuant to PRC section 45011 as a prelude to the assessment of administrative civil penalties.

(b) Notices

(1) Notice informing the owner and operator that failure to comply by a specified date in a final corrective action order may result in the EA contracting for corrective action.

Enforcement: As more fully described in PRC section 45000, if the owner or operator fails to take corrective action as specified in a final order by the specified date, the EA or the board may either take corrective action itself or contract for corrective action to be completed by an outside party. Corrective actions taken by the EA, the board, or an outside party will be at the expense of the owner, operator or both and are recoverable pursuant to PRC section 45000.

(2) Notice informing the owner or operator that the EA may take action to impose administrative civil penalties upon failure to comply with applicable deadlines in a final compliance order.

Enforcement: Pursuant to PRC section 45011, if the owner or operator fails to achieve compliance by applicable deadlines in the order, the EA may impose penalties through written notification to the owner or operator. The notification shall include the amount of the penalty and the due date for payment, which in no case should be later than 30 days after the date the order becomes final.

(3) Notice informing the owner or operator that the EA is conditionally imposing administrative civil penalties in a specified amount per day with a specified start date for penalty accrual, upon failure to comply with applicable deadlines in a final compliance order.

Enforcement: If the owner or operator fails to achieve compliance by applicable deadlines in the order issued pursuant to PRC section 45011, the EA shall notify the owner or operator in writing of the amount of the penalty and the due date for payment, which in no case should be later than 30 days after the date the order becomes final.

(4) Notice informing the owner or operator that failure to comply by the deadline in a final order may result in the EA petitioning the superior court to enjoin the violations, and that continued violation after the granting of an injunction may be punishable as contempt of court.

Enforcement: If the owner or operator fails to comply by the deadline in a final order, the notice may be enforced by filing an appropriate petition in superior court.

(5) Notice informing the owner or operator that upon failure to comply with a deadline in a final order, the EA may bring an action in the superior court to impose upon the owner or operator civil penalties.

Enforcement: If the owner or operator fails to comply by the deadline in a final order, the notice may be enforced by filing an appropriate petition in superior court pursuant to PRC sections 45023 and 45024.

(6) Notice informing the owner or operator that the EA, subject to the applicable requirements of PRC sections 44305 and 44306, may take action to suspend or revoke the permit for the facility upon failure to comply with applicable deadlines in a final order.

Enforcement: If the owner or operator fails to comply by the deadline in a final order, the notice may be enforced by revoking or suspending the permit for the facility pursuant to PRC sections 44305 and 44306.

Note:

Section 18304.2. Final Orders.
An order becomes final when either:

(a) A notice and order has been requested by the operator and/or owner to be reviewed by the local hearing panel or hearing officer, and the hearing process has been completed pursuant to PRC sections 44307 & 44310, and any subsequent appeals to the board or Superior Court have been resolved pursuant to PRC sections 45030-45042, or;

(b) Within 15 days of receipt if no review was requested by the operator.

Note:

Section 18304.3. Mandated Enforcement Action.
An EA shall take the following actions for specific violations or situations:
(a) Issue a cease and desist order to cease operations immediately if the EA determines that a solid waste facility is operating without a permit or that an operation is operating without the proper notification;

(b) If a facility is included on the Inventory of Solid Waste Facilities Which Violate State Minimum Standards pursuant to PRC section 44104, the EA is required to develop a compliance schedule which ensures that diligent progress is made by the operator to bring the facility into compliance pursuant to PRC section 44106. The compliance schedule may be incorporated into a notice and order.

Note:

Section 18304.4. Notice of Compliance Status.
Whenever the LEA issues a notice and order pursuant to sections 18304 and 18304.1 or develops a compliance schedule, the LEA shall, 30 days after the final compliance deadline or expiration date in the order or schedule, provide notification of the compliance status with the order or schedule to the board. The notice of compliance status may be included as part of an LEA's periodic inspection report and shall include a determination as to whether the operator is in compliance with the notice and order or schedule and whether the notice and order or schedule has been completed, extended or enforced, as the LEA deems applicable and appropriate, along with the justification and reasoning for the determination.

Note:

Section 18304.5. Notification of Enforcement.
Upon the taking of any action described in a notice as authorized by section 18304.1, the LEA shall within five business days advise the board of the action in writing and include a copy of any court documents that have been filed.

Note:

Authority cited:
Sections 40502 and 43020 of the Public Resources Code.

Reference:
Sections 45000-45024 of the Public Resources Code.

Section 18306. Emergency Actions.
(a) If the EA or the board determines that a violation exists that poses an imminent threat to public health and safety or the environment, the EA or the board may clean up, abate, or otherwise remedy the violations immediately upon failure of the owner and operator to take corrective actions by the deadline in a corrective action order issued pursuant to sections 18304 and 18304.1. An owner's or operator's request to review the EA's or board's action by a hearing panel or hearing officer pursuant to PRC section 44307, and any subsequent appeals, does not stay the effect of the order or prevent the EA or board from taking or contracting for corrective action.

(b) If any action is taken pursuant to subsection (a) of this section, the EA or the board shall give notice in the manner specified in section 18304(d) to the owner and operator as soon as practicable, but in no case later than five business days after taking the action. A copy of the notice shall be transmitted to the board within five business days of issuance.

(c) The EA or the board may bring an action in the superior or municipal court to recover the costs of emergency remedial measures. Upon the bringing of such an action, the EA shall advise the board of the action in writing accompanied by a copy of the complaint within five business days. When the board brings its own action in superior or municipal court, it shall notify the appropriate EA of the action in writing, accompanied by a copy of the complaint within five business days.

Note:

Authority cited:
Sections 40502 and 43020 of the Public Resources Code.

Reference:
Section 45000-45024 of the Public Resources Code.

Section 18307. Actions to Suspend or Revoke a Permit.
(a) If the EA determines that there is cause for suspension or revocation of a permit pursuant to PRC sections 44305 or 44306 respectively, and the EA has previously notified the operator in writing of the violation or other condition which is cause for suspension or revocation, the EA may issue to the operator, via certified mail with return receipt requested or by personal service if certified mail attempts are unsuccessful, a Notice of Intent to Suspend (NIS) or a Notice of Intent to Revoke (NIR) the permit. The NIS or NIR shall inform the operator of the EA's intent to suspend or revoke the permit and of the operator's right to request the matter to be heard in front of the hearing panel or hearing officer pursuant to PRC section 44310. If the operator does not request a hearing within 15 days of receipt of the NIS or NIR, the EA may take action to suspend or revoke the permit without a hearing or it may hold a hearing prior to taking such action.

(b) The EA may, in its discretion, precede the issuance of the NIS or NIR filing by service of an appropriate notice and order in the manner specified in section 18304, or it may include the NIS or NIR within a notice and order as long as the EA has previously notified the operator in writing of the violation or other condition which is cause for suspension or revocation.

(c) Within five business days of issuing a NIS or NIR, the EA shall notify the board by providing it with a copy of the NIS or NIR.

(d) If, after an NIS or NIR has been issued, the proceeding to suspend or revoke a permit is terminated in any manner other than by decision of the hearing panel or hearing officer, the LEA shall so advise the board in writing.

Note:

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