LEA Advisory #41—July 14, 1997

Emergency Waiver of Standards

To All Local Enforcement Agencies:

The purpose of this LEA Advisory is to provide guidance on the issuance of emergency waivers of standards as allowed under Title 14, California Code of Regulations (14 CCR), Division 7, Chapter 3, Article 3, Section 17210 et seq., Emergency Waiver of Standards. A copy of the regulations is included as Attachment A. (Please note that the attached regulations are an unofficial version of the regulations. The authoritative regulations are found in Barclays Official California Code of Regulations published by Barclays Law Publishers.)

Background

Immediately following a major disaster the cleanup effort and reconstruction often results in a need to handle more and different types of debris than existing solid waste facility permits allow. In the past, to assist in the recovery phase of a disaster, the California Integrated Waste Management Board (Board) has issued emergency regulations on a case-by-case (disaster-by-disaster) basis. These emergency regulations waived certain standards of a solid waste facility permit (e.g., origin of waste, maximum daily tonnage, hours of facility operation) to facilitate the cleanup effort.

The Emergency Waiver of Standards regulations became effective in September 1996 and take the place of the disaster-by-disaster emergency regulations. The permanent regulations were developed to enable enforcement agencies (EA) to respond quickly to solid waste facility operation issues and problems after a disaster.

What Is an Emergency Waiver of Standards?

An emergency waiver of standards is a waiver issued by an enforcement agency which grants a solid waste facility operator temporary relief from specific state minimum standards or specific terms or conditions of a solid waste facility permit. More specifically, an enforcement agency may approve and issue a waiver for the express purpose of enabling an operator of an existing permitted solid waste facility or locally approved temporary transfer or processing site to accept disaster debris and other nonhazardous wastes, in a manner not consistent with the terms and conditions of the relevant solid waste facility permit, during the recovery phase of a state of emergency or local emergency.

When May an Emergency Waiver of Standards Be Issued?

An emergency waiver of standards may only be issued when there has been a proclamation of a state of emergency or local emergency as those terms are defined in the regulations. The definitions of local emergency and state of emergency are included under 14 CCR 17210.1 (j) and (k), respectively. Generally, a state or local emergency is the duly proclaimed existence of conditions of disaster or extreme peril to the safety of persons and property. The proclamation must be made by the governor (state of emergency) or governing body (or duly designated official) of a county, city and county, or city (local emergency).

Furthermore, an emergency waiver may only be issued to an operator of an existing, permitted solid waste facility or locally approved temporary transfer or processing sites.

Which State Minimum Standards and Permit Conditions May Be Waived?

The waiver can apply only to specified state minimum solid waste standards or to specific terms or conditions of a solid waste facility permit which are related to the following: 

• Origin of waste;
• Rate of inflow for storage, transfer, processing, or disposal of waste;
• Type and moisture content of solid waste;
• Hours of facility operation; and
• Storage time before transfer, processing, or disposal of nonhazardous waste.

Significantly, the standards, terms, and/or conditions that may be waived are those related to the increased volume and type of waste that may be generated by a disaster and/or the recovery operations after a disaster. The intent of the waiver is to enable an operator to handle the increased volumes of waste without creating public health and safety or environmental problems. For this reason the waiver is limited in scope to the areas listed above, and all other state minimum standards and permit terms and conditions shall remain in effect.

In particular, the waiver of the daily cover requirement is not permitted within the emergency waiver of standards. However, under the authority granted to California under the Federal Subtitle D regulations, the Board (issuance has been delegated to the Deputy Director, Permitting and Enforcement Division), jointly with the EA, may approve a daily cover waiver (14 CCR 17258.21 [c]) if there are extreme seasonal climatic conditions that make complying with the daily cover requirement impractical. A separate advisory describing this waiver in more detail has been issued as LEA Advisory #40.

Please note that the emergency waiver is not intended to allow carte blanche operation of a solid waste facility with respect to state minimum standards and permit conditions. Therefore, an emergency waiver should only be granted when absolutely necessary and should only be issued for those particular standards or conditions necessary to enable a facility to handle disaster related debris. For example, during the January 1997 floods, few waivers were granted and many of those waivers were for only one condition (i.e., exceeding the daily tonnage listed in the permit).

How Long Does a Waiver Remain In Effect?

The effective period of a waiver, once granted by an EA, shall not exceed 120 days initially. The EA may extend the effective period of the waiver, as necessary, to assist in the recovery from an emergency. Each extension should not be longer than 120 days and should only extend as long as absolutely necessary.

Prior to the expiration date, a waiver may be modified, canceled, or revoked by an EA without advance notice should the EA determine that any of the following conditions occur: 

1. The use of a waiver will cause or contribute to a public health and safety or environmental problem;
2. The terms of the waiver are not being used expressly to handle the state of emergency or local emergency and are not in the best interest of the public health and safety;
3. The waiver is no longer necessary; or
4. The operator is not utilizing disaster debris diversion programs to the extent feasible.

While the necessity for a waiver may be for longer than 120 days, depending on the disaster (emergency), the waiver should be revoked as soon as it is no longer necessary or appropriate.

How Does an EA Issue an Emergency Waiver?

Following are the procedures for issuance of a waiver.

Operator Request

An operator may apply for a waiver after a disaster or emergency situation is declared. To obtain a waiver, a solid waste facility operator shall submit a written request to the EA. The request shall include, but not be limited to, the following information:

1. A listing of the permit terms and conditions and state minimum standards to be waived in order to facilitate recovery and disposal of disaster debris;
2. A statement of the remaining disposal capacity of the solid waste disposal site;
3. A description of all facility-related diversion programs and onsite recycling facilities; and
4. A listing of locally approved temporary transfer or processing sites to be used to store disaster debris for future reuse or recycling.

Examples of operator requests and EA approvals are included as Attachment B.

EA Issuance

The EA may grant a waiver upon making the following findings:  

1. The operator applying for the waiver holds a valid solid waste facility permit (or is legally operating a locally-approved temporary transfer or processing site);
2. The waiver will not pose a threat to public health and safety or the environment;
3. The operator identifies and implements, to the extent feasible, diversion programs to maximize diversion through reuse, recycling, or composting of disaster-related waste; and
4. The EA's jurisdiction is covered by the proclamation of the governor, governing body, or duly designated official. 

The EA must notify the operator within seven (7) days of receipt of the waiver request whether the waiver has been granted or denied. If denied the EA shall include the reasons for the denial in the notification. The operator may reapply for a waiver at a later date or submit necessary supplemental documentation to receive a waiver immediately, if appropriate.

Board staff are available for consultation and assistance when reviewing operators' requests for waivers. General questions on the issuance of emergency waivers should be directed to the Permitting and Enforcement Division Disaster Response Coordinator (Michael B. Wochnick) at (916) 341-6318. Site specific concerns should be discussed with the appropriate Enforcement Branch contact.

Board Review

The Board's Deputy Director, Permitting and Enforcement Division reviews all EA waiver approvals. Moreover, the waivers may be conditioned, limited, suspended, or terminated by the Deputy Director if (1) the use of the waiver would cause harm to public health and safety or the environment, (2) the operator has not utilized reasonably available waste diversion programs as identified in the waiver documentation, or (3) the waiver was issued for standards and/or conditions not permitted under the regulations.

A determination under condition no. 2 above is a judgment call. For example, a waiver would likely be disallowed if an operator made no effort to divert readily recyclable materials even though diversion facilities are already in place, especially since temporary storage sites can be used to store surplus materials until they can be processed.

What Are the Reporting Requirements?

Following are the reporting requirements under the waiver regulations:

Operator

The operator shall submit a written report to the EA (and to the local agency responsible for compiling disposal information from haulers and operators, which is usually the county unless a regional agreement is in force) every 90 days from the effective date of a waiver until either (1) the termination of the waiver or (2) there is no longer any discernible disaster related waste being processed or stored at the facility, whichever is later.

The written report shall include the following information:  

1. The daily amount of disaster debris received, diverted, and disposed at the facility;
2. The jurisdiction of origin for the disaster debris received at the facility;
3. The increase in tonnage of waste received during the waiver period; and
4. The facilities used to process the disaster debris. 

Enforcement Agency

The EA shall submit a copy to the Board of all approved waivers within 15 days of issuance and all operator's written reports within 30 days of receipt and should notify the Board of termination of the waiver.

Board

The Executive Director (or designee) shall report to the Board at a regularly scheduled meeting any granting of a waiver.

Are There Any Other Disaster Related Duties of the EA?

In the event of a state of emergency or local emergency, the EA is also required to provide to local government a list of solid waste facilities, which have been granted a waiver. The list shall include the site capacity for acceptance of waste, daily tonnage limits, hours of operation, and onsite recycling and diversion for disaster-related waste. Usually, this information should be provided to the local emergency services office.

Furthermore, the EA is required to survey solid waste facilities and determine the diversion programs available and to make this information available to local government and the public.

Should you have any questions or comments concerning this advisory, please contact Michael B. Wochnick of my staff at (916) 341-6318.

Sincerely,

Original signed by:

Deputy Director
Permitting and Enforcement Division

Attachments

Attachment A: 4 CCR Section 17210--Emergency Waiver of Standards

Attachment B: Examples of operator requests and EA approvals of emergency waiver of standards

• Emergency Waiver of Standards Mariposa County Landfill, Facility No. 22-AA-0001
• Request for an Emergency Waiver of Standards, American Avenue Disposal Site, Facility No. 10-AA-0009
• Emergency of Waiver of Standards, American Avenue Disposal Site, Facility No. 10-AA-0009

Publication #232-97-014

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.