LEA Advisory #31—July 30, 1996

Advisory Enforceability and Update

To All Local Enforcement Agencies:

The purpose of this advisory is to clarify the intent of the advisories issued by the CIWMB and to indicate which advisories are no longer in effect or which require revision.

Intent of the Advisories

The intent of the advisories is to provide guidance to the LEAs in performing their duties. Guidance, for this purpose, was defined as providing explanation of the Board's regulations and statutes, and recommendations on how an LEA might satisfy program goals and objectives.

It is the Board's responsibility to provide training, technical assistance, and guidance to the LEAs (PRC §43217) and the Advisories are one way in which the Board delivers this assistance. The advisories were never intended to impose substantive requirements on LEAs.

Are the Advisories Enforceable?

Advisories are not enforceable in the same manner as regulations because they have not been adopted through the formal rulemaking process. Thus, operators can not be cited for not following the guidance provided in an Advisory. Likewise, in no instance does it state within an Advisory that an LEA is required to follow the guidance. The Board will not take action against an LEA for not following guidance provided in the Advisories. This includes Advisories which were approved as Board policy.

During the LEA evaluation process, Board staff recommended that the Advisories be included in the LEA's Enforcement Program Plan (EPP). In those instances, inclusion of the Advisories was intended to provide guidance for issues which the LEA has either not included in the EPP, or to reinforce the information already provided in the EPP. The LEA is not required to include Advisories in the EPP, especially if the LEA has in place superior procedures than those suggested in an Advisory. However, if an LEA has chosen to follow an approach different from the suggested Advisory guidance which is not effective at resolving an issue, the LEA should be prepared to articulate their reasoning for implementing their approach during the LEA evaluation process.

Advisory Update

Review of the Advisories also revealed the need to update several which are no longer in effect either due to the promulgation of new regulations or conflicts with changes in existing regulation. The changes are as follows:

Advisory #1, Asbestos Containing Waste Disposal

Informs LEAs of agencies' (CIWMB, DTSC, LEA) responsibilities for asbestos disposal as described in an MOU with DTSC.

Update: A new MOU has been signed by the CIWMB and DTSC but has not been re-issued as an advisory. This Advisory will be revised. In the meantime contact your Enforcement Branch representative for issues concerning asbestos containing waste.

Advisory #4, Permitting of Fuel Contaminated Soils Treatment/Processing Facilities

The guidance recommends LEAs delay acceptance of permit applications for the described facilities until they have been considered for slotting within the tiered permitting structure.

Update: Regulations for the permitting of these facilities became effective April 24, 1996. This Advisory is no longer applicable guidance and can be removed from LEA reference files.

Advisory #12 Permitting of Non-Traditional Facilities

This Advisory recommends that LEAs not accept applications for solid waste facility permits for the operation of "non-traditional facilities".  It also lists examples of non-traditional facilities.

Update: The original Advisory only addressed the operation of non-traditional facilities. Certain waste handling activities have and will be classified as "operations". This Advisory will be revised to encompass operations as well as facilities. Additionally, "contaminated soils remediation" should be removed from the example list as these activities have been slotted. Please contact your Permits Branch staff contact if you have any questions in the interim.

Advisory #14 Revised Policy and Procedures for Maintaining the Inventory of Solid Waste Facilities Which Violate State Minimum Standards

The policy for the Inventory process came under scrutiny during a legal challenge brought by the Natural Resources Defense Council.

Update: A letter was sent to all LEAs dated April 5, 1996 which states that Advisory #14 is no longer in effect. Please refer to this letter and the Inventory Implementation handout which was distributed at the May 1996 Roundtables until further notice regarding implementation of the Inventory process.

Advisory #18 Permitting and Enforcement at Composting Facilities

This Advisory provides guidance for oversight of composting facilities until they are slotted in the tiered permitting structure.

Update: The tiered permitting structure is now in effect, therefore this Advisory is no longer applicable guidance and can be removed from LEA reference files.

Advisory #19 (Revised) Approval of Alternative Daily Cover Demonstration Projects Using Green Material and Other Waste Derived Materials

The approval process, if followed, allows LEA discretionary approval for the described projects. This Advisory also makes mention of the allowance of green waste, when used as ADC, to count as diversion for purposes of meeting AB 939.

Update: A recent court decision has invalidated the use of ADC as diversion. That decision is currently on appeal. In the interim, this Advisory is still valid but may need to undergo another revision if this decision is upheld.

Advisory #27 Permitting Action for Inactive Landfills

This Advisory indicates a permit is required to reflect closure prior to the completion of closure activities. AB 59 has since passed, and provides that the Closure/Postclosure Maintenance Plan may stand as the enforceable document.

Update: This Advisory is being revised. Please call your Permits Branch staff contact if you have any questions.

Advisory #28 Prevent or Substantially Impair Policy for Solid Waste Facilities During the Gap Period

This Advisory provides direction on the LEA's role in providing "prevent or substantially impair" information to the Board when a permit is processed.

Update: Public Resources Code section 44009 was amended with the passage of AB 2009 which removed the requirement that the Board determine if issuance of a permit would "prevent or substantially impair" achievement of waste diversion goals. This Advisory is no longer applicable and can be removed from LEA reference files.

Future Advisories

All future advisories will include a statement to reflect their nonenforceability, that the advisories do not take precedence over statute or regulation. Additionally, staff will periodically review the issued Advisories to determine if any updates are in order to keep the Advisories current and will provide the this information to the LEAs.

Sincerely,

Original signed by:

Acting Deputy Director
Permitting and Enforcement Division

Publication #232-96-007

The intent of the advisories is to provide guidance to Local Enforcement Agencies (LEA) in performing their duties. Guidance, for this purpose, is defined as providing explanation of the Board’s regulations and statutes.

Unless included by reference in the LEA's Enforcement Program Plan (EPP), advisories are not enforceable in the same manner as regulations because they have not been adopted through the formal rulemaking process (see Government Code sections 11340.5 and 11342.6). Advisories do not take precedence over statute or regulation.

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