The regulations described below (effective July 2002) codify an existing framework that indicates when and how CalRecycle may withdraw its approval of an LEA designation or certification, if the LEA is found not to be fulfilling its duties and responsibilities. Furthermore, the process for CalRecycle action over LEAs includes partial or full decertification, and withdrawal of an LEA designation approval. In addition, the regulations identify the process for a local governing body that elects to withdraw its current LEA designation. (Note: Text of regulation sections below are verbatim from the California Code of Regulations except for reference to the California Department of Resources Recycling and Recovery or CalRecycle, formed in 2010 from the the merger of the Integrated Waste Management Board and the Division of Recycling.)
The following section added definitions for “decertification” and “evaluation workplan”.
Section 18011. Definitions.
“Decertification” means an action by the California Department of Resources Recycling and Recovery which withdraws, partially or fully, prior certification(s) issued to the enforcement agency. This action modifies the enforcement agency’s authority within its jurisdiction.
“Evaluation workplan” means a type of corrective action specified by CalRecycle. The action requires the LEA to develop a schedule to address jurisdictional compliance issues identified during the LEA evaluation process. The evaluation workplan is subject to CalRecycle approval.
Q–How does a local governing body withdraw an LEA designation?
A–The following section was revised to provide specific guidance to local governing bodies for their withdrawal of an existing local agency designation. This is necessary to provide adequate time for CalRecycle to allocate budget, staff, and any other resources in order to assume enforcement agency duties and responsibilities on a local level. The language in the regulations also specifies that the withdrawal of a designation will not overturn any previous LEA action (enforcement, pending violations, orders of correction, requests for technical reports, or other enforcement agency efforts). Additionally, CalRecycle or any other enforcement agency selected by CalRecycle to assume enforcement duties for the affected jurisdiction would be empowered to enforce all orders issued by the previous LEA in conformance with state minimum standards.
Section 18056. Local Governing Body Withdrawal of LEA Designation.
(a) A designation of an LEA may be withdrawn by the local governing bodies that originally made the designation. Notice of the withdrawal shall be given to CalRecycle a minimum of 90 days in advance of the desired effective date of the withdrawal. This shall be done by a local governing body resolution or other official document in the same manner the designation was made. The notice of withdrawal shall specify whether a new local agency is to be designated, or whether the local governing body intends to have CalRecycle become the new enforcement agency. If the notice of withdrawal provides that a new local agency is to be designated, then the withdrawal of designation shall be expressly conditioned on board approval of the new designation. If the notice of withdrawal states that it is the local governing body’s intention for CalRecycle to become the new enforcement agency, then the withdrawal of designation shall not become effective until CalRecycle notifies the local governing body that it is prepared to assume responsibility as the enforcement agency. CalRecycle shall provide such notification on or before: (1) the end of the current fiscal year; or (2) 90 days after the notice of withdrawal is given to CalRecycle, whichever is later. CalRecycle shall then become the enforcement agency.
(b) All enforcement actions, pending violations, orders of corrections, requests for technical reports, or other enforcement agency efforts to achieve compliance with state requirements (including LEA enforcement actions and state minimum standards and permits) which were in effect under the departing LEA shall remain in effect under the jurisdiction of the new enforcement agency.
(c) Notice of designation of a new local agency shall be made in the manner specified in Section 18051.
Q–What are the grounds for CalRecycle actions over LEAs?
A–The following section describes grounds for CalRecycle actions over LEAs
Section 18085. Grounds for CalRecycle Actions Over LEAs.
An LEA’s failure to fulfill one or more of the following responsibilities and/or obligations under Public Resources Code Division 30, Part 4, Chapter 2 (the “Solid Waste Facilities Chapter of the Waste Management Act”) and/or these implementing regulations shall constitute sufficient ground(s) for any of CalRecycle actions set forth in 14 CCR 18086, including but not limited to:
(a) Failure of the LEA to comply with one or more of the Performance Standards referenced in Public Resources Code Section 43214 and/or its implementing regulation, 14 CCR 18081, including but not limited to:
(1) Failure of the LEA to maintain compliance with the certification requirements referenced in 14 CCR 18072-75, including but not limited to technical expertise, adequacy of staff resources, adequacy of budget resources, and training;
(2) Failure of the LEA to enforce facility compliance with one or more of the state minimum standards at solid waste facilities within the jurisdiction of the LEA, as referenced in Public Resources Code Section 43214(c);
(3) Failure of the LEA to maintain compliance with and/or implement one or more of the components of the LEA’s Enforcement Program Plan, as referenced in 14 CCR 18077; and
(4) Failure of the LEA to perform all applicable duties related to the California Environmental Quality Control Act.
(b) Failure of the LEA to fulfill one or more of its duties and/or responsibilities as referenced in Public Resources Code Section 43209 and/or its implementing regulations, including but not limited to:
(1) LEA Duties and Responsibilities for Permitting and Closure or Postclosure, as referenced in 14 CCR 18082;
(2) LEA Duties and Responsibilities for Inspections, as referenced in 14 CCR 18083; and
(3) LEA Duties and Responsibilities for Enforcement, as referenced in 14 CCR 18084.
(c) When public health and safety or the environment is threatened, CalRecycle shall, within 10 days of notifying the LEA, become the enforcement agency until another local agency is designated locally, approved and certified by CalRecycle pursuant to PRC Section 43214(c).
Q–What types of actions can CalRecycle take over LEAs?
A–The following section describes types of CalRecycle actions over LEAs.
Section 18086. Types of CalRecycle Actions Over LEAs.
If CalRecycle finds that an LEA is not fulfilling one or more of its responsibilities and/or obligations under Public Resources Code Division 30, Part 4, Chapter 2 (the “Solid Waste Facilities Chapter of the Waste Management Act”) and/or these implementing regulations, then CalRecycle, in accordance with Public Resources Code Sections 43215 and 43216.5, may take one or more of the following actions:
(a) Assume responsibility for specified LEA duties by partially or fully decertifying an LEA, either permanently or through a temporary suspension. Such an assumption of responsibility shall only extend to the LEA duties so specified by CalRecycle. CalRecycle may charge for operations pursuant to PRC 43212(a) while performing enforcement agency duties.
(b) Conduct more frequent inspections and evaluations within an LEA’s jurisdiction.
(c) Establish a schedule and probationary period for improved performance by an LEA, and/or call for the submission of an evaluation workplan.
(d) Withdrawal of CalRecycle’s approval of the local governing body’s designation of the LEA.
(e) Implement any other measures which may be determined by CalRecycle to be necessary to improve LEA compliance.
Q–What is the process for CalRecycle actions over LEAs?
A–The following section describes the process for CalRecycle actions over LEAs.
Section 18087. Process for CalRecycle Actions Over LEAs.
(a) Notice: Notice of the hearing shall be sent by first-class mail and deposited in the mail at least thirty (30) days prior to the hearing. The notice shall be sent to the LEA’s most current address as specified in the completed Form CIWMB 1000 “Notice of Designation of Local Agency” currently on file with CalRecycle. If written notice has been provided CalRecycle that the LEA is represented by an attorney in the proceeding, the notice of the hearing shall additionally be mailed to such attorney.
(b) Public Hearing: The hearing shall be open to the public. The Chair or other presiding officer may provide an opportunity during the hearing for nonevidentiary public comment relevant to the matter being heard by CalRecycle. The Chair or other presiding officer may impose reasonable limitations on the number of public speakers commenting, and on the nature and length of the comment period.
(c) Admission of Evidence: A party shall be afforded the opportunity to present evidence and testimony on all relevant issues. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of the evidence over objection in civil actions.
(d) Final Action by CalRecycle: CalRecycle’s decision will consider the severity of the deviation(s) as related to the potential negative impacts on public health, safety or the environment. CalRecycle will announce its decision at the conclusion of the hearing. A written decision will be prepared thereafter, which shall include a statement of the factual and legal basis of the decision. A copy of the written decision shall be sent to the LEA in the same manner as set forth in subsection (a), above, within ten (10) days of the conclusion of the hearing.
Q–What options does CalRecycle have when acting as the enforcement agency?
A–-In addition to the Public Resources Code, the following section describes options for CalRecycle when it acts as enforcement agency.
Section 18088. CalRecycle Acting as Enforcement Agency.
CalRecycle, when acting as the enforcement agency, may enter into agreements or contracts at its discretion with any certified local enforcement agency for the purpose of delegating its enforcement agency duties within any jurisdiction until a local agency is designated, approved and certified by CalRecycle.