Enforcement Options for Addressing Permit Terms and Conditions
What is a notice and order? A notice and order is one of the enforcement tools available to LEAs.
Notice and Order (Title 14--18304 et seq)
- Change implemented by operator without permit revision.
- Local enforcement agency (LEA) determined that the operator is in violation of permit.
- LEA sets terms.
- Meet requirements of 18304.
Stipulated Notice and Order
- Same as notice and order.
- EA and operator agree to terms as indicated by signatures.
- Could be enforced as a “contract agreement.”
Types of Orders
- Compliance Order
- Corrective Action Order
- Cease and Desist Order
What Notices Can Do
- Corrective action by LEA.
- Impose administrative civil penalties.
- Conditionally impose administrative civil penalties.
- Petition for superior court injunction.
- Impose civil penalties.
- Suspend or revoke permit.
Notice and Order Must Include
- From and to
- Site description
- Violation description
- Violation of statues, regulations, or terms and conditions
- Schedule of compliance
- Notice of right to appeal
- Date and signature
Must Be Accompanied by Declaration
Notice and Order Process
- Served to owner and operator:
- Within 5 days of issuance.
- Mailed or posted.
- Sent to CalRecycle within 5 days of issuance.
Order Is Final
- 15 days after receipt
- After any request hearing and appeals
Notice to CalRecycle--5 Days After Action Taken to Enforce Order
Notice to CalRecycle--30 Days After Final Compliance Deadline or Expiration
- Compliance with order.
- Completed, extended, enforced.
- Justification of determination.
Stipulated Agreement (Title 14--17211 et seq)
- Only for a temporary emergency resulting from unforeseeable circumstances.
- Everything is in place except for revised permit.
- Current compliance with the permit.
- Requested by operator.
- Agreement that there is a temporary emergency.
- Agreement on terms.
- 90 days, but can be extended.
Stipulated Agreement Process
- Request from operator.
- Description of temporary emergency; why unforeseeable.
- Requested changes.
- Terms and conditions to be addressed.
- Commencement date.
- Actions to be taken so agreement is not needed.
- Evidence of compliance with the following: applicable land use entitlements, other permits, federal, State, and local laws and regulations, CEQA.
- Issue within 10 days of request.
- Notice CalRecycle within 5 days of issuance/newspaper notice 24 hours
- CalRecycle Executive Director review:
- Condition, limit, suspend, revoke, terminate if causes harm to public health and the environment.
Stipulated Agreement Must Include
- Terms and conditions subject to agreement.
- Changes required to address temporary emergency.
- Terms of the agreement including commencement date and termination date.
- Action taken by operator to revise permit or modify operations.
- Action LEA will take.
- Operator and LEA signatures.
Emergency Waiver (Title 14--17210 et seq)
- In response to proclaimed State or local emergency.
- Waiver from certain terms and conditions during recovery phase.
- 120-day limit; can be extended
- Operator must request: List of terms and conditions to be waived
- Remaining capacity, diversion programs, temporary transfer stations.
- LEA must find:
- Valid permit.
- No threat to public health and the environment.
- Maximum diversion.
- Send to operator within 7 days.
- Send to CalRecycle within 15 days.
- CalRecycle Executive Director review:
- Condition, limit, suspend, revoke, terminate if causes harm to public health and the environment or no diversion.
Cease and DesistIntroduction
What is a “cease and desist order” and when should it be used? “Cease and desist” means “stop what you are doing and don’t do it again.” The cease and desist order is one of the many enforcement tools available to LEAs.LEA Discretion
- The LEA has a duty to enforce provisions of State solid waste laws and regulations within its jurisdiction.
- Generally, the LEA has discretion respecting the use of the enforcement tools
available to them:
- except when facility operates without a solid waste facility permit (SWFP).
- The LEA’s exercise of its discretion is subject to CalRecycle oversight including:
- LEA evaluation.
- CalRecycle taking enforcement action itself if LEA fails to take “appropriate enforcement action.”
Exception to LEA Discretion
- Legislative mandate: when a person operates a solid waste facility without a SWFP, the LEA shall immediately issue a cease and desist order directing owner or operator to obtain a SWFP in order to resume operation of the facility. (PRC section 44002(a)(1); 14 CCR section 18304.3(a))
Two Statutes Govern the Issuance of Cease and Desist Orders
- PRC section 44002(a)(1)—“No person shall operate a solid waste facility without a solid waste facilities permit if that facility is required to have a permit pursuant to this division. If the enforcement agency determines that a person is so operating a solid waste facility, the enforcement agency shall immediately issue a cease and desist order pursuant to section 45005 ordering the facility to immediately cease operations, and directing the owner or operator of the facility to obtain a solid waste facilities permit in order to resume operation of the facility.” [Emphasis added]
- Operating solid waste facility without a solid waste facilities permit is governed by section 44002
- Section 44002 is specific and clear—if a person is operating a SWF without a permit, the EA shall “immediately issue a cease and desist order … ordering the facility to immediately cease operations.” [Emphasis added]
- These statutes require different responses to particular violations:
- Immediate cessation when operating a solid waste facility without a permit.
- Cease “improper action” upon order of LEA when disposing solid waste in an unauthorized manner or when operating a solid waste facility in violation of SWFP, the Integrated Waste Management Act (IWMA), or any regulation, without a SWFP, or in a manner that causes or threatens hazard, pollution, or nuisance.
- Apply these statutes and regulations in two different scenarios:
- Operating a solid waste facility without a solid waste facilities permit.
- Permitted facility violating its permit or State minimum standards (SMS).
Operating Solid Waste Facility Without a Solid Waste Facilities Permit
- Governed by section 44002
- Section 44002 is specific and clear—if a person is operating a solid waste facility (SWF) without a permit, the EA shall “immediately issue a cease and desist order ordering the facility to immediately cease operations.” [Emphasis added]
- Cease and desist order is mandatory.
Section 44002 Requires
- LEA must issue the order as soon as it learns of the unpermitted facility.
- Order must direct the facility to cease immediately those operations for which a SWFP is required.
- LEA may not allow the facility to get a SWFP within a specified period while it continues to operate. Section 44002 specifically prohibits that.
- The only options available to the operator of an unpermitted facility are to cease operations entirely until it can obtain a SWFP or to cease those aspects of its operations which trigger the permit requirements.
Example: Recycling Center Consistently Exceeding 10 Percent Residual Limitation
- Options for LEA:
- Cease and desist order to immediately cease operation entirely.
- Cease and desist order to immediately cease those parts of operation which cause excess residual.
Example: Illegal Disposal Site
- Option for LEA:
- Cease and desist order to immediately cease operation entirely.
Permitted Facility Violating State Minimum Standard or Term or Condition of Its SWFP
- Governed by section 45005
- Cease and desist order is optional at discretion of LEA.
- Cease and desist order is one of several enforcement tools available to LEA.
- Application of section 45005 is more complex than 44002.
- No hard and fast rules; each case will be decided on its own facts by LEA using its own best judgment.
- Keep in mind CalRecycle’s oversight role and requirement for “appropriate enforcement action.”
- How should LEA exercise its discretion?
- Biggest problem area in use of cease and desist orders under section 45005—when to allow operator time to correct a violation.
- Two scenarios:
- Time to correct violation is necessary.
- Correction should be immediate.
Time to Correct Violation Is Necessary
- LEA may allow operator time to correct violation only when necessary:
- That is, when it will take operator a period of time to accomplish a necessary task to correct a violation.
- Appropriate for LEA to order operator to cease the improper action within a reasonable period of time.
- For example: installation of gas control system, development and implementation of training for employees, correction of litter problem, find adequate source of daily cover, develop and undertake cleaning program to eliminate odor problem, or vector problem.
LEA Discretion Should Not Be Abused
- LEA must still take “appropriate enforcement action” which requires
“timely progress toward compliance” (14 CCR 18084(d)(1)).
- What is “timely progress”?
- What is “reasonable”?
- How long is “too long”?
- Answers—within sound discretion of LEA first and CalRecycle discretion second, based on circumstances of the specific case.
Correction of Violation Should Be Immediate
- When it is reasonably possible to correct violation immediately?
- When immediate correction is necessary to protect public health, safety, or the environment.
- For example: exceeding tonnage limits set in SWFP, accepting waste materials prohibited by SWFP, operating beyond permitted hours, accepting hazardous wastes, failure to apply daily cover, allowing unsafe practices that endanger employees or the public.
General Observation About Enforcement Orders
- Generally inappropriate to allow operator to revise permit as sole remedy
for a violation:
- Not “appropriate enforcement action.”
- Is not enforcement at all.
- LEAs have duty to enforce IWMA, SMS, terms and conditions of permits (PRC section 43209(a); Title 14, s.18084(a)).
- Many enforcement tools available.
Protection for Operator From Overzealous LEA
- Appeal enforcement action to hearing panel.
- Request for hearing stays effect of enforcement order.
- Exception: “an imminent and substantial threat to the public health and safety or to the environment” (PRC section 45017(a)(2),(3)).
Additional Options for LEA
- Impose administrative civil penalties along with compliance schedule:
- May not exceed $5,000 per day per violation, (PRC section 45011(a)(1))
- Take corrective action if operator fails to comply with compliance schedule and seek reimbursement via civil cost recovery action (PRC section 45000(a), (d))
- “Corrective action order” is not defined; LEA has discretion to apply:
- Creativity possible—e.g., require operator to carry out public outreach to abate nuisance, to increase recycling efforts, etc.
- Seek judicial civil penalties:
- Up to $10,000 per day per violation (PRC section 45023).
- Commence proceedings to suspend or revoke permit (PRC sections 44305, 44306).
- Additional penalties and other remedies available to LEAs under local ordinances.