This document was developed to provide answers to questions about the permit implementation regulations, which implement solid waste facility permitting requirements mandated by AB 1497 (Chapter 823, Statutes of 2003, Montanez), apply construction and demolition requirements to the regulation of other solid waste facilities as directed by CalRecycle, and clarify permit process requirements.
- Informational Meeting
- Public Notice
- Minor Change
- Applications for Solid Waste Facilities Permits and RFI Amendments
- Modified Permit
- Revised Permit
- Appeal Process
- Land Use Entitlements
- Additional Questions
Title 27, Sections 21563(d)(4); 21660.2
Question 1: Is the "Informational Meeting" the same as the AB 1497 "public hearing" (see PRC Section 44004(h)(1)(A)) in that it is conducted by the enforcement agency (EA) prior to the EA making its determination on the action to be taken by the EA on an accepted application package?
Answer 1: Yes; the informational meeting is the AB 1497 public hearing and is how the public hearing requirement is being implemented in the regulations. The public hearing as described in AB 1497 is an informational meeting where the public is provided an opportunity to hear about the proposed solid waste activities to be permitted and to comment on the preliminary determination being espoused by the EA. No decision is made at the meeting. In contrast, at a typical "public hearing" by a government agency, a decision is made at or after the hearing on the basis of the information presented at the hearing. 27 CCR, Section 21563(d)(4) which is the definition of informational meeting, specifically indicates that it is the same as the public meeting referred to in PRC 44004.
Question 2: Is the informational meeting the same as a hearing set for a California Environmental Quality Act (CEQA) document?
Answer 2: CEQA does not require any public hearings, although the CEQA Guidelines recommend public hearings on CEQA documents [14 CCR Section 15202]. Typically, however, a project that is subject to CEQA will be considered in a public hearing.
For the purpose of this question, CalRecycle staff assumes that the questioner means to ask whether an informational meeting intends the same functional purpose as a public hearing held by a public agency before approving a project, such as a land use entitlement. No. It is CalRecycle staff’s view that under PRC Subsection 44004(d)(4) there is no relationship between an informational meeting and a local public hearing or the local CEQA process other than indicating that the purpose of the informational meeting required by Section 44004(d)(4) is to make public the preliminary determination of the action to be taken by the EA on the application package. Thus, the EA should present its proposed determination to the public in the information meeting, along with its rationale for its determination and should allow for public comment on the determination and the project. It is important to note that this preliminary determination does include determining whether CEQA review is required prior to making the final determination. (Please note that, as described below, a public hearing on a project can be substituted for the informational meeting under certain circumstances.)
Question 3: Is the informational meeting required by PRC Section 44004(h)(1)(A) covered by the Brown Act [open meetings]?
Answer 3: Meetings conducted by a single person, such as an EA, are not subject to the Brown Act (covering local "legislative bodies" and their creations), as established by case law (Wilson v. SF Muni Ry, 29 Cal. App. 3d 870 (1973)), or the Bagley-Keene Open Meeting Act (covering "state bodies"), by statute (under section 11121 of the act, the term "state body" refers only to multi-member bodies).
Question 4: Will the EA be required to respond to the questions or issues raised by the people attending the informational meeting? If yes, will the EA have to respond to all attendees or just those within the area surrounding the subject property? In what format are the comments and responses required to be in and do they need to be forwarded to CalRecycle staff for comment as well?
Answer 4: An informational meeting provides the public an opportunity to hear about the proposed solid waste activities that may be permitted and to comment on the preliminary determination being espoused by the EA. No decision is made at the meeting. The EA is not required to respond to questions; however, CalRecycle staff believe that the EA should be responsive to questions and note issues raised by anyone attending the meeting. The EA is required pursuant to Section 21650(g)(5) to include with the proposed permit submitted to the CalRecycle any written public comments received on the pending application and a summary of comments received at the informational meeting and, where applicable, any steps taken by the EA relative to those comments.
Question 5: Is an informational meeting always required?
Answer 5: No; in some cases, the EA may be able to substitute another recently-held public meeting for the informational meeting, if the operator does not object to the use of a substitute meeting. See Section 21660.2(d). The conditions under which a substitute meeting may be appropriate are set forth in Section 21660.4.
Title 27, Section 21570(f)
Question 1: Does CEQA need to be complete at the time an informational meeting is held?
Answer 1: No; the purpose of the informational meeting is to obtain community input on a proposed change in the design or operation of a solid waste facility before the EA decides, among other things, whether the change requires a permit revision and whether CEQA review must be done before it makes its decision. See PRC Section 44004(d) and (h)(1). Subsection 44004(d)(4) provides that the EA may "require review under Division 13 (commencing with Section 21000) [i.e., CEQA] before a decision is made." This indicates that the need to complete CEQA prior to deciding on the final action relative to the application could be the preliminary determination that is shared at the informational meeting.
Additionally, 27 CCR, Section 21570(f)(3) requires a complete and correct application package to include CEQA compliance information as follows: 1) Evidence that there has been compliance with CEQA or 2) Information on the status of the application's compliance with CEQA, including the proposed project description. Once there has been compliance with CEQA, evidence of compliance is required to be submitted to the EA.
27 CCR, Section 21650(g)(7) requires the EA to include in the submittal to CalRecycle, a finding that the proposed solid waste facilities permit is consistent with and is supported by existing CEQA analysis, or information regarding the progress toward CEQA compliance. Section 21685(b)(8) provides that CalRecycle shall not concur on a proposed permit unless the EA has provided a finding that the permit is consistent with CEQA or exempt from the requirements of CEQA.
This means, CEQA does not need to be complete when the application is accepted; however, it does need to be complete by the time CalRecycle concurs. Because the proposed regulations require informational meetings to be held no later than 30 days after the EA finds the application complete and correct (Section 21650(b)), within 60 days of receipt of the application (Section 21650(e)), and before the EA mails the permit package to CalRecycle, CEQA may not be complete at the time of the informational meeting and is not required to be complete for these meetings.
Title 27, Section 21650(g)
Question 1: Does the informational meeting requirement apply to all solid waste facilities or just landfills?
Answer 1: It applies to all solid waste facilities that are issued a full permit. The EA is required to notice and conduct an informational meeting for all new and revised full permit applications.
Question 2: Is the 60-day timeline for holding an informational meeting measured from the date of first receipt of an application or from the date the EA determines the application is complete and correct?
Answer 2: The 60-day timeline is measured from the date the EA receives the permit application. During those 60 days, the EA has 30 days to determine if the application is complete and correct [27 CCR Section 21650(b); see also 27 CCR Section 21570(f)]. If the application is complete and correct, the EA must conduct its preliminary evaluation leading to its proposed determination as to whether a permit revision is required, whether the proposed revision would comply with state law and whether CEQA analysis must be conducted before making such a decision [PRC Section 44004(d)]. The EA then has (at least) the remaining 30 days of the 60-day period to hold a public informational meeting on its tentative decision [PRC Section 44004(h)(1)(A)]. If the application is not complete and correct, the EA must reject it within 30 days and so notify the operator [27 CCR Sections 21650(b) & (d)] or accept the application as incomplete [27 CCR Section 21650(f)].
Question 3: If an application is deemed incomplete and the EA accepts the incomplete application, when must an informational meeting be scheduled?
Answer 3: By accepting an incomplete application the EA can allow up to 180 days for the applicant to provide a complete application. By regulation, when the EA accepts an incomplete application, the operator must waive the time limit set in PRC Section 44009 and has 180 days to submit a complete and correct application [27 CCR Section 21650(f)]. Once the application is determined to be complete, the permit processing timeframes are started at the point in the normal process where the EA files the complete and correct application. That triggers the requirement to hold the public informational meeting within 30 days from the determination that the package is complete and correct (Section 21580).
Question 4: Can the informational meeting be held by the EA after the application package is submitted to CalRecycle for concurrence?
Answer 4: No; the EA is required to submit the application package to CalRecycle no later than 60 days after accepting the application package as complete and correct and after conducting an informational meeting as required by Sections 21660.2 and 21660.3
Question 5: If an EA fails to conduct an informational meeting or meet the requirement of a substitute meeting, can the EA still submit the application package to CalRecycle for concurrence?
Answer 5: No; the EA is required to conduct the informational meeting or meet the substitute meeting requirements prior to submitting the application package to CalRecycle for concurrence and to include in the package a summary of comments received at the informational meeting and, where applicable, any steps taken by the EA relative to those comments. Per Section 21650(g) "No later than 60 days after the application package has been accepted as complete and correct and after conducting an informational meeting if required by Sections 21660.2 and 21660.3, the EA shall mail to the CIWMB the following:… "
Title 27, Section 21660.2
Question 1: Is the EA required to conduct informational meetings when processing standardized or registration permit applications?
Answer 1: No; the EA is required to conduct informational meetings for all new and revised full solid waste permit applications. The previous requirement in the Construction and Demolition and Inert Debris Regulations that the EA hold an informational public hearing on an application for a registration or a full solid waste facilities permit has been deleted. The requirement for informational meeting is contained in 27 CCR which describes the full permit process only. Standardized and registration permit processes are found in 14 CCR. All references to meeting requirements previously found in 14 CCR have been removed.
Question 2: Why is an informational meeting required since many projects are also subject to hearings during the CEQA process and the local land use approval process?
Answer 2: PRC 44004 requires meetings conducted by the EA. CalRecycle understands that not every solid waste facilities project will have gone through a CEQA process or the local land use approval process. Also, the CEQA process includes a public notice requirement, but does not require public hearings, however many lead agencies do conduct hearings as a part of their approval process. The informational meeting is to focus on the solid waste facility (SWF) permit and the EA process, providing the public greater transparency and increased opportunities for input in the EA’s decision-making.
Question 3: If the EA intends to combine the informational meeting with another public meeting, does the combined meeting need to be held in a location not more than 1 mile from the facility that is the subject of the meeting?
Answer 3: Yes; the combined meeting must meet the criteria for the informational meeting, which includes the meeting being held in a suitable location not more than 1 mile from the facility that is the subject of the meeting; if no suitable and available location exists within 1 mile, the EA may designate an alternative suitable location that is as close to the facility as reasonably practical. Section 21660.2(a) indicates "The informational meeting may be combined with another public meeting in which the EA participates that meets the criteria as specified in Sections 21660.2(b) and 21660.2(c)." It is in 21660.2(c)(1) that the one-mile criteria is described.
Question 4: If an operator submits an application for a revised permit and the Conditional Use Permit (CUP) still needs a hearing for the same issues, could the EA accept the application as incomplete and combine the informational meeting with the CUP hearing?
Answer 4: A complete and correct application package no longer includes a copy of land use entitlements (e.g., conditional use permit) for the facility, so the EA can accept an application as complete and correct regardless of the status of the conditional use permit (CUP). Depending on the timing of the CUP hearing, the EA could combine the informational meeting with the CUP hearing if the meeting is held within 60 days of the EA finding the application package complete and correct, the EA participates in the meeting, and the criteria specified in Sections 21660.2(b) and 21660.2(c) are met.
Question 5: I wasn't able to find anything in 27 CCR giving LEA authority to pass the costs for public notice distribution associated with permitting actions to the operator. However, PRC Section 44004(h)(1)(B), which is referenced throughout AB 1497 regulations in 27 CCR, states "The enforcement agency shall mail or deliver the notice required pursuant to ....... The enforcement agency may charge a fee to the requester in an amount that is reasonably related to the costs of providing this service.....".
Answer 5: Pursuant to 27 CCR, Section 21660.2(a), the EA may require the operator of a facility that is the subject of an informational meeting to pay all costs incurred by the EA in connection with the meeting.
Title 27, Section 21660.4
Question 1: May the EA substitute the required informational meeting with a previously held public meeting on the same project that the EA attended but where the EA chose not to answer questions on the project at the meeting?
Answer 1: No; if the previously held public meeting met all the other requirements for a substitute meeting as specified in Section 21660.4, but the EA refused to answer questions, then the meeting would not meet the requirement that the EA be available to answer questions regarding solid waste facilities permitting specifications. Section 21660.4 indicates in part that the EA must have been involved in the previously held meeting to the degree of being present, recognized by the presider of the meeting, and available to answer questions regarding solid waste facilities permitting specifications from the public, other entities, or officials in attendance at the meeting. Refusing to answer questions on the permitting specifications from the public, other entities or officials at the meeting would be contrary to this requirement.
Question 2: Regarding the use of a substitute meeting in place of an informational meeting, there do not appear to be any noticing requirements for the substitute meeting itself regarding the involvement of the EA at the substitute meeting. For example, if the Department of Regional Planning (DRP) noticed a public hearing for approval of a CUP and the notice didn't say anything about the EA being present at the hearing, but at the hearing DRP recognized the EA and the EA was available to answer questions about SWF permitting specifications from the attendees, would this meet the requirements of a substitute meeting pursuant to 21660.4? Is there an assumption/requirement that all government agencies notice public hearings/meetings in accordance with Government Code Section 65091 or does the EA have to double-check how the noticing is made for the substitute meeting? Does the EA's availability to answer questions mean only during the substitute meeting itself or can the availability include after the substitute meeting has been adjourned?
Answer 2: The EA may substitute a previously held meeting in place of conducting an informational meeting if specified criteria are met, including the EA being involved in the previously held meeting to the degree of being present, recognized by the presider of the meeting, and available to answer questions at the meeting. The criteria do not include the notice for the previously held meeting referencing the EA’s involvement at the meeting. So, in the example of the EA not being referenced in the notice for the previously held meeting by DPR, but being recognized by DPR at the meeting and being available to answer questions at the meeting, the answer is "yes," the meeting would meet the requirements of Section 21660.4, provided it was held on the same project, within one year prior to the date the EA accepted the application as complete and correct, and the applicant did not object to the EA using the substituted meeting. The EA is not required to double-check how the noticing was made for the substitute public meeting since the government agency conducting the previously held public meeting is already required to publicly notice the meeting. However, there are additional notice requirements that apply to the EA when a substitute meeting is used. See Section 21660.4(a) and (b). The EA is only required to be available to answer questions at the meeting, if they want to answer questions after the meeting has adjourned that is up to them.
Question 3: I am the LEA. I have a transfer facility requesting a revision of its permit. It is owned and operated by a local municipality under our jurisdiction. The local municipality is the Lead Agency on CEQA. They have submitted a Mitigated Negative Declaration to the various agencies as well as us, and we have sent them our comments. The municipality has not held a public hearing on the proposed Mitigated Negative Declaration, but plans to do so. We have not received an application for revision of the permit. Would the public hearing that the municipality holds for CEQA satisfy our obligation to hold an informational meeting?
Answer 3: No; the subject of the informational meeting is the EA's preliminary determination relative to a permit revision application (see PRC 44004(d)). If an application has not been received, the EA would not be able to make a preliminary determination, and would not be able to discuss with the public the basis for its preliminary determination, so holding an informational meeting would not be of full benefit to the community. An informational meeting prior to submittal of an application does not follow the steps outlined in Section 21650(a) thru (e). The EA should consider fully participating in the CEQA process, including commenting on the draft document and attending hearings conducted by the Lead Agency. The EA could consider making clear in their comments and testimony provided at the hearings that the EA will hold a public informational meeting (pursuant to PRC Section 44004(h)(1)(A)) upon receipt of a permit revision application. That being said, once the application is received, the EA may be able to substitute the CEQA hearing in place of conducting an informational meeting if the criteria specified in Section 21660.4 are met: 1) the previously held public meeting is on the same project as described in the solid waste facilities permit application package and associated CEQA documents; 2) the public meeting took place within one year prior to the date the EA accepted the application as complete and correct; 3) the applicant does not object; and 4) the EA was involved in the previously held meeting to the degree of being present, recognized by the presider of the meeting, and available to answer questions.
Question 4: Does the previously held meeting that is being substituted for an informational meeting need to meet the same location requirements as an informational meeting?
Answer 4: No; the purpose of the substitute meeting process is to avoid duplicative public meetings. CalRecycle believes that the laws applicable to the substitute meeting will adequately address location requirements. Nonetheless, CalRecycle desires that the citizens and businesses close to the solid waste facility in question have the ability to participate in these meetings. The EA may undertake additional noticing measures to inform affected residents and businesses. Section 21660.4(b)(4).
Title 27, Section 21665(b)
Question 1: If the application package is changed after the informational meeting has been conducted, would the EA be required to conduct a second informational meeting?
Answer 1: If the EA determines that the amendments to the application package meet the criteria in Section 21655, then the package must be deemed a new package and is subject to new noticing and meeting requirements. If the EA finds that the amendments to the package do not meet those criteria, then new noticing and an informational meeting are not required. The EA may wish to consider if the amendments to the package require additional terms and conditions to the permit to protect public health, safety when determining the significance of the amendments.
Title 27, Section 21660
Question 1: What action can CalRecycle staff take if an EA fails to provide required public notice as required under Section 21660?
Answer 1: Through EA evaluation, pursuant to PRC Sections 43214, 43215, and 43216.5, CalRecycle is required to develop performance standards for evaluating EAs and to review each EA and its implementation of the permit, inspection, and enforcement program; to conduct inspection and performance reviews; and to take action to correct EA performance issues after finding the EA is not fulfilling one or more of its responsibilities. Per 14 CCR, Section 18082(a) the LEA shall implement the permit process in accordance with the requirements, including initiating all the required notices as provided in Section 18082 (a)(1)(E).
Title 27, Section 21660.3
Question 1: 27 CCR Section 21660.3(b)(2)(B) refers to Government Code Section 65091(a)-(c) for posting the notice of a modified solid waste facility permit (SWFP). However, Government Code §65091(a)-(c) frequently refers to distribution/posting of the notice "at least 10 days prior to the hearing". For a modified SWFP, the LEA is not required to hold an informational meeting. What is the deadline by which the modified SWFP public notice has to be distributed/posted? 27 CCR Section 21660.3(b)(2)(B) states the LEA to post the notice "after finding the permit application complete and correct and within 60 days of receipt of the application...." but does not give a clear deadline.
Answer 1: For a modified permit, pursuant to 27 CCR, Section 21660.3(b)(2)(A), the EA should distribute/post the notice within 60 days of receiving the application and after finding the permit application complete and correct. The EA makes a determination on the application being complete and correct within 30 days of its receipt. Soon after that, but before the next 30 days are up, the EA should distribute/post the public notice.
Question 2: At what point in the 60 days should the EA’s preliminary determination on a modified or revised permit application go to CalRecycle staff for comment?
Answer 2: Section 21660.3(b) requires the EA to notice CalRecycle of its preliminary determination on a modified or revised permit application after finding the permit application complete and correct and within 60 days of receipt of the application by the EA. In addition, for revised permits, the notice should be sent to CalRecycle staff at least 10 days prior to the date of the informational meeting to allow sufficient time for CalRecycle staff to provide comments, if it decides to do so.
Question 3: Will CalRecycle staff’s comment on the EA’s preliminary determination for a revised permit be provided before or after the public informational meeting is held?
Answer 3: CalRecycle staff will attempt to provide the EA with comments prior to or at the informational meeting, or prior to the need for the EA to make a formal determination regarding the permit application.
Question 4: What influence do comments by CalRecycle staff have on the EA’s preliminary determination for a modified or revised permit application?
Answer 4: CalRecycle staff’s comments will indicate staff's view of what an appropriate determination would be, if its view is different than that provided by the EA. The EA must weigh the degree of influence that this warrants in light of presenting the proposed permit to CalRecycle for concurrence.
Question 5: If CIWMB staff disagree with the EA’s preliminary determination for a modified or revised permit application, who has final authority to make the determination?
Answer 5: The EA has authority to make its own determination. However, the determination, as with all actions or inactions by EAs, is subject to CalRecycle review upon consideration of concurrence in the issuance of the permit. PRC 43214(d)(6) gives CalRecycle broad authority to monitor actions of the EA and determine whether those actions are consistent with the PRC and regulations. Therefore, an inappropriate or inconsistent determination by an EA may result in CalRecycle requesting an evaluation of the EA based on the finding. CalRecycle staff will continue to work alongside EAs to make every attempt to avoid these situations.
Question 6: If the disagreement on the EA’s preliminary determination for a modified or revised permit application is with CalRecycle staff, what recourse does the EA have to appeal the decision of CalRecycle staff, since this is long before any documents are presented in a public hearing?
Answer 6: Disagreements will be subject to further review and discussion between the EA and CalRecycle staff. If a mutual resolution cannot be established at this level, the Waste Compliance and Mitigation Program Director or CalRecycle Executive Director could become involved to help the parties resolve disagreements and reach consensus. Such a process would be entirely informal and at the discretion of the Program Director and Executive Director. However, if the EA were ultimately found to not have completed the process as required by statute or regulation, CalRecycle could request an evaluation of the EA’s performance of those duties.
Question 7: Does the notice for a new permit of an EA-conducted informational meeting need to include the EA’s preliminary determination?
Answer 7: No; the purpose of the provision in PRC Section 44004(d) that the EA determine whether a revised solid waste facilities permit is required applies to changes in the design or operation of a solid waste facility, not to new facilities. A new facility requires a new permit. A change in the design or operation of an existing solid waste facility may or may not require a change in the facility’s permit. Section 21660.3(a)(6) indicates that the EA must include in the informational meeting notice the preliminary determination pursuant to Section 21665 as it applies to modified and revised permits only. The notice for new permits need not include this reference.
Title 27, Section 21620(a)(1)
Question 1: One of the criteria used in determining whether a change is minor or not is whether the change conflicts with the design and operation of the facility as provided in the current report of facility information (RFI). Why is the word "current RFI" used and not "approved RFI"?
Answer 1: The current RFI is the approved RFI, not to be confused with a proposed RFI that has not yet been approved. Use of the word "current" makes clear that it is the RFI that is currently in place and has been approved, in contrast to an RFI document that may be in the process of review and approval.
Question 2: What if an EA notices during an inspection that the operator’s sign at the facility does not comply with what is in the RFI; is this considered a minor change?
Answer 2: No; the change in signage would be a violation of the RFI and would not be a minor change since it conflicts with the description as provided in the current RFI. An RFI amendment would be needed, or the sign would need to be modified to match the RFI description.
Question 3: Does CalRecycle have authority to address EA actions relative to minor changes made at a facility?
Answer 3: No, not directly; if it is found that the EA did not follow the regulations regarding a minor change, then CalRecycle staff can address whatever issues may result from not following the regulations through the EA evaluation process. For example, if the EA failed to note that a requested change was in conflict with the RFI, the conflict between the change in operations and the RFI may be identified by CalRecycle staff. If the EA does not address the conflict through appropriate enforcement actions then the EA could be subject to the process outlined in 14 CCR, Section 18350.
Question 4: Is it okay for an operator to implement a minor change without EA review and approval, if the operator has a minor change that is included on the list but does not meet the criteria?
Answer 4: No; for the operator to implement a minor change, the change must meet all of the criteria set forth in Section 21620(a) (1) (A-D).
Question 5: What is the function of the minor change list?
Answer 5: It serves as a list of changes that qualify as minor changes if they also meet all of the criteria set forth in Section 21620(a) (1) (A-D).
Question 6: Regulation Section 21620(a)(1)(E), the minor change list, includes typographical errors under (i) Correction of typographical errors in any document/documentation submitted by the owner or operator. Can owners and operators fix any typographical errors as a minor change?
Answer 6: Yes; operators and/or owners can change typographical errors and this can be considered a minor change if it meets all of the criteria set forth in Section 21620(a) (1) (A-D), and the change does not require that the permit be corrected, too. The EA should evaluate if the change is just a typographical error and not a change in the permit that would result in a change in design or operation that has not been reviewed and approved.
Question 7: Can the operator appeal the EA’s determination that a change does not qualify as a minor change?
Answer 7: Yes; the operator can appeal the EA’s action under PRC Section 44307 and request that the EA hold a hearing, which would be conducted by either a hearing officer or hearing panel.
Question 8: The regulations only require the operator to notify the EA of minor changes; how will CalRecycle staff know about the changes when conducting a State inspection?
Answer 8: During an inspection, CalRecycle staff will be able to note any minor changes that have been made. CalRecycle staff will need to confer with the operator and the EA to determine if the observed changes at the site had been processed as minor changes.
Applications for Solid Waste Facilities Permits and RFI Amendments
Title 27, Sections 21570; 21620(a)
Question 1: When submitting an application package to the EA for a solid waste facilities permit or an RFI amendment, does the operator also need to send a copy of the application form to the director of the local planning agency?
Answer 1: Yes, as specified in Section 21570(a) and (b) for permit applications and in Section 21620(a)(2) (which references Section 21570) for RFI amendments.
Question 2: Does the application package submitted by the operator for a solid waste facilities permit or an RFI amendment need to include a list of all public hearings and other meetings open to the public that have been held or copies of notices distributed?
Answer 2: Yes, pursuant to Section 21570(f)(11).
Question 3: If the EA rejects (i.e., disapproves) some or all of the amendments to the RFI and requires the operator to submit an application for a modified or revised permit, does CalRecycle staff have authority to overrule the EA’s action?
Answer 3: CalRecycle staff have authority to correct an erroneous EA action only through an EA evaluation. Pursuant to PRC Sections 43214, 43215, and 43216.5, CalRecycle is required to develop performance standards for evaluating EAs and to review each EA and its implementation of the permit, inspection, and enforcement program; to conduct inspection and performance reviews; and to take action to correct EA performance issues after finding the EA is not fulfilling one or more of its responsibilities.
Title 27, Section 21570
Question 1: When applying for a modified permit, the operator is required to submit an application form (CIWMB E-1-77) (Excel | PDF). However, the application form currently does not list "modified permit" as an option. What is the operator to do until the application form is updated?
Answer 1: Updating the application form (CIWMB E-1-77), which is located in the Appendices of 27 CCR, will require the regulations to be amended in a separate new rulemaking. In the meantime, applicants may change the CIWMB E-1-77 form before submitting it to the EA by crossing out "Revision" under Part 1 C and writing in "Modification"
Title 27, Section 21675
Question 1: Does the "Permit Review Due Date" (Box 10 in the 1st page of SWFP) change to 5 years from the date of completing the SWFP modification process, or stays the same as shown in the existing SWFP prior to modification? For example, if a facility's existing SWFP (prior to modification) shows "Permit Review Due Date" of April 2009, and the SWFP is later modified by the LEA in July 2007. Does the "Permit Review Due Date" in the modified SWFP have to be July 2012 (which would be 5 years from the date the modified SWFP is issued), or does it have to stay as April 2009?
Answer 1: Pursuant to 27 CCR Section 21675, all full solid waste facilities permits are required to be reviewed and if necessary modified or revised from the date of last issuance at least once every five years. The date of issuance for a permit modification or revision would be the determining factor for the next five-year review, which would be July 2012 in your example. For a permit modification or revision, the EA undertakes a thorough review of the design and/or operation of a facility, including all of the governing documents, in determining whether a proposed change requires a permit modification or revision. The review undertaken by the EA is essentially a permit review and the EA would be correct in specifying a permit review due date five years down the road from the issuance of the modified or revised permit.
Title 27, Section 21685
Question 1: Are modified permits only submitted to CalRecycle’s Executive Director (ED) for concurrence?
Answer 1: Yes; once an EA submits a modified permit package to CalRecycle staff, it will be processed and forwarded to the Executive Director for action. The ED will concur or object to the modified permit after considering the issues in PRC Section 44009.
Question 2: If the ED is considering a modified permit proposed by an EA, can the ED, prior to acting on the permit, bring the permit to the Board for their information and guidance?
Answer 2: Yes.
Title 27, Section 21620(a)(4)
Question 1: If the operator is proposing to operate an additional day per week or month more than what is permitted, would this be considered a significant change under Section 21620(a)(4)(C), requiring a revised permit, since adding a day would be an increase in the permitted hours of operation?
Answer 1: Yes. Pursuant to Section 21620(a)(4) an increase in permitted hours of operation requires the permit to be revised. Increasing the number of days a facility operates will increase the hours of operation, so a permit revision is required.
Question 2: If the operator is proposing to decrease the facility’s permitted acreage, would this be considered a significant change and require a revised permit?
Answer 2: No, only increases in permitted acreage are always considered a significant change.. See Section 21620(a)(4)(B). Notwithstanding, if the EA determines that further restrictions, prohibitions, mitigations, terms, conditions, or other measures are needed in the permit to adequately protect public health, public safety, ensure compliance with State minimum standards, and to protect the environment, then the proposed change would require a permit revision and not a modification.
Title 27, Sections 21660.1(a), 21660.3(a), and 21660.4(a)
Question 1: Is there an appeal process for the public regarding the EA’s approval of an RFI amendment, or the EA’s issuance or denial of a modified, revised or new full permit?
Answer 1: Yes; there continues to be the ability for appeal under PRC Section 44307 to challenge the EA’s approval of the RFI amendment and the EA’s issuance or denial of a modified, revised, or new permit. Pursuant to PRC Section 44307, a hearing can be requested not only by the applicant that is subject to an enforcement action or to permit conditions it feels are inappropriate, but also by any person who believes that the EA has not acted in accordance with the law or CalRecycle regulations. Because the notice for an RFI amendment would be distributed after the EA has already approved the amendment, the notice must announce that the EA’s approval is subject to a PRC Section 44307 appeal (Section 21660.1(a)(6)). The notices for new, revised, or modified permits specify a PRC 44307 appeal is available when the EA issues or denies the permit (Section 21660.3(a)(10)).
Local Land Use Entitlements
Title 27, Section 21570(f)
Question 1: Is it correct to say that since the regulations removed the requirement to include a copy of land use entitlements for the facility in the application package, EAs will no longer be looking at them?
Answer 1: No; pursuant to the note included in Section 21650, the time for the EA to consider local land use entitlements is when it is drafting permit terms and conditions. That is when the EA considers the content of other entitlements, permits, and approvals when processing a SWFP. This approach allows the EA to take into consideration other permits and approvals when writing permit terms and conditions. Nothing in the regulations prevents or hinders a local jurisdiction from carrying out its responsibility relative to enforcing local land use requirements. Operators are still bound to comply with local land use permit conditions, which are enforced by local agencies that are charged with that responsibility.
Please address additional questions to your Permitting and LEA Support Division staff contact.