This guidance has been developed to help local enforcement agencies (LEAs) with the process associated with notice of a plan to sell, encumber, or convey a solid waste facility ownership and/or operation to a new owner or operator, and/or change the address of a solid waste facility owner and/or operator.
Background
Public Resources Code (PRC) section 44005 and Title 27, California Code of Regulations (CCR), sections 21630, 21670, and 21686, specify notification requirements to sell, encumber, transfer or convey the solid waste facility permit to a new owner and/or operator and to change the address of an owner and/or operator.
Definitions: Owner and/or Operator
The definition for an operator and an owner can be found in 27 CCR 20164, and PRC Sections 40162 and 40160.
Per 27 CCR 20164, an operator means the landowner or other person who through a lease, franchise agreement, or other arrangement with the landowner becomes legally responsible to the State for the following requirements for a solid waste facility or disposal site:
- Obtaining a solid waste facility permit;
- Complying with all applicable federal, state and local requirements;
- The physical operation of the facility or site; and,
- Closing the site and maintaining during the postclosure maintenance period.
Per PRC 40162, an owner means a person who holds the fee title to, or a leasehold or other possessory interest in, real property that is presently in use as a solid waste facility or disposal site.
Per PRC 40160, an operator means a person who operates a solid waste facility or operates a disposal sited.
Notice1 Requirements:
Per 27 CCR 21630, owners and/or operators of a solid waste facility who plan to sell, encumber, transfer or convey the ownership or operation of the facility to a new owner or operator must notify the LEA and the California Department of Resources Recycling and Recovery (CalRecycle) 45 days prior to the anticipated transfer.
The current owner or operator is required to submit specific information to the LEA and CalRecycle, including the name(s), address(es), where the notice can be sent, and phone number(s) of the new owner/operator;
The anticipated (soon to be new) owner or operator needs to provide the following to the LEA and CalRecycle:
- Documentation that they meet the financial assurance and operating liability requirements;
- A signed affidavit certifying that they have read the governing permit and conditioning documents and will operate in accordance with the terms and conditions of the existing solid waste facility permit and conditioning documents and that all new information submitted is correct;
- Amendments to the Report of Facility Information (RFI) that reflect the change in owner/operator, and/or address.
It should be noted that all information provided pursuant to this guidance and PRC section 44005 shall not be a matter of public record and shall be considered confidential until such time as the owners have encumbered, sold, transferred or conveyed the property.
Per 14 CCR 18104.6, regarding change in owner, an operator shall notify the LEA in writing if a person who owns property on which the solid waste facility is located is encumbering, selling, transferring, or conveying the property or part thereof; or allowing the property or part thereof to be encumbered, sold, transferred, or conveyed. The operator shall notify the LEA at least 15 days prior to such action by the owner, or within seven days of receiving notice of such action by the owner, whichever comes first. The LEA shall transmit a copy of the notification to CalRecycle within five days of receipt.
Scenarios that could trigger a need to notice the LEA and CalRecycle regarding a planned change in owner and/or operator can include, but is not limited to, the following:
A sale or purchase of a company that leads to a transfer or conveyance of ownership or operator responsibilities for the solid waste facility or for the real property presently in use as solid waste facility.
A merger of companies that leads to a transfer or conveyance of ownership or operator responsibilities for the SWF or disposal site or for the real property that is presently in use as a solid waste facility or disposal site.
A new lease agreement between the current land owner and a new operator.
A 45-Day Owner/Operator Transfer Notice form (Page 1 of 2, PDF) is available for the owner/operator to submit the change(s) to the LEA. If used, the form would contain the information required by PRC section 44005 and in regulation. This form is not required by regulation, therefore the owner/operator may choose to use or not to use the form.
For a change of address only, every applicant for a solid waste facility permit, every operator of a solid waste facility, and every owner of property on which a facility is located shall notify the LEA and CalRecycle of each change of address. Notice shall be given within seven days after the change is effective and shall be given on a form specified by CalRecycle. The form or method specified by CalRecycle is the same as that required by 27 CCR 21620 (a)(1)(F); however, CalRecycle requires that it be provided within seven days rather than 30 days.
A 7-Day Owner/Operator Notice form (Page 2 of 2, PDF) is available for the owner/operator to submit a change of address. This form is not required by regulation, therefore the owner/operator may choose to use or not to use the form.
LEA Processing Requirements
Per 27 CCR 21670 the LEA shall review the submitted notification documentation and any available records to determine if the current and anticipated owners/operators have provided the required information and that the facility is and will be able to operate within the terms and conditions of their permit and RFI. Part of this determination for landfills only will include a confirmation that the anticipated owner/operator can comply with financial assurance requirements. The LEA will need to obtain written confirmation from CalRecycle that the new owner/operator has complied with PRC 43040 and 43600 (operating liability and closure/postclosure assurance).
Once the anticipated owner/operator has satisfied all of the requirements, and the LEA has obtained written confirmation from CalRecycle regarding compliance with PRC 43040 and 43600, the LEA shall notify the owner and operator and CalRecycle of their determination within 30 days of receipt of the complete notification.
Upon notifying the operator and CalRecycle that the notification is complete, the LEA has 15 days (45 days after receipt of a complete notification) to send the owner and operator and CalRecycle a copy of the changed permit that reflects the changes in the name of the owner/operator and/or facility name. This section does not authorize the LEA to change any other aspect of the solid waste facility permit without concurrence by CalRecycle, including the issuance date or permit review date. Many solid waste facility permits include not just the names of the owner/operator and the facility name, but also the address of the owners/operator. It is acceptable to provide the new address associated with the new owner/operator names; however, no other changes in the permit shall be made at this time without the owner/operator submitting an application for revision or modification.
An acceptable way of filing this change with CalRecycle is by adding a box to the cover page of the permit titled “Owner/Operator Transfer Date (pursuant to PRC 44005)” with the new date of transfer. The changed permit cover page, with new owner/operator listed, must be attached to the original permit. Solid waste facilities permit cover pages are available in (Word) or (PDF).
If the LEA determines that the owner/operator has not provided adequate documentation or if the LEA has reason to believe that the new owner or operator will be operating outside the terms and conditions of the governing solid waste facility permit, then the LEA shall inform the operator and CalRecycle in writing within 30 days of receipt of the notification. The LEA shall provide the basis for the owner/operator notification being determined inadequate.
CalRecycle Requirements (27 CCR 21686)
Per 27 CCR 21686, CalRecycle shall within 20 days of receipt of the notification, filed pursuant to 27 CCR 21630, provide written determination of the adequacy of the financial assurances and operating liability demonstrations. This provides the LEA an additional 10 days to make the other findings required before noticing the owner and operator of its determination.
1The use of the term notice or notification is not to be confused with the use of notification in the tiered permitting regulations.
For more information contact: LEA Support Services, PermitTrainingAssistance@calrecycle.ca.gov