LEA Advisory #53—August 12, 1998

Impact of AB 1220 on Solid Waste Facility Permit Conditions

To All Local Enforcement Agencies:

The purpose of this advisory is to offer guidance on the enforceability of solid waste facility permit (SWFP) conditions as they relate to AB 1220, appropriate SWFP conditions, and procedures for the removal of conditions in SWFPs that conflict with AB 1220. This advisory only applies to the "LEA Conditions" and "Self Monitoring" sections of the SWFP.

Before the enactment of AB1220, the SWFP was viewed as an "umbrella permit" or a permit that was incorporated and dependent upon many other agencies' permits and standards. AB1220 redefined the SWFP to be an independent permit where approval is not contingent on other permits (other than local land use permits, when applicable). Many of the SWFP conditions that were written prior to implementation of AB1220 are no longer under the jurisdiction of the California Integrated Waste Management Board/LEA.

The Board's authority was clarified by AB1220 to eliminate overlapping requirements that were also under the authority of the State Air Resources Board (ARB) for the prevention of air pollution or of the State Water Resources Control Board (WRCB) for the prevention of water pollution [30 PRC 43101]. Therefore, most permit conditions that involve air and water quality issues are no longer under the authority of the Board/LEA and should be handled as described below. A notable exception is odor control at mixed solid waste compost facilities, which is under the jurisdiction of the LEA. SB 675 (Chapter 788, Statutes of 1997) extended the mandate that requires air districts to refer odor complaints regarding compost operations to the LEA.

Enforcement

The LEA shall evaluate SWFP conditions as part of the five-year permit review to determine whether the authority to enforce them still exists under the Public Resources Code. A permit condition clearly under the sole authority of the ARB or WRCB is null and void and cannot be enforced by the Board/LEA. There is no statutory basis to cite for violations of these conditions on an inspection report.

Although some conditions may not be enforceable through a SWFP, they may be enforced by the government agency that developed the permit they are contained in. For example, the county's planning department may enforce provisions of a conditional use permit. A Regional Water Quality Control Board (RWQCB) can enforce waste discharge requirements. It is still appropriate to refer violations not under the jurisdiction of the Board/LEA to the appropriate State and local agencies. Keep in mind that the Board/LEA does have the authority to enforce certain public health and safety conditions related to air or water pollution (e.g., public contact with leachate, and odors at compost facilities). Permitting and

Inspection Branch staff can assist in making a determination on whether a given permit condition remains under the authority of the Board/LEA.

Permit Conditions

30 PRC 44014(b) states "The permit shall contain all terms and conditions which the enforcement agency determines to be appropriate for the operation of the facility." However, AB 1220 limits the authority of the LEA to include conditions related to air or water pollution. The following guidance, developed by the Permit Change Partnership, may be helpful in determining what conditions should be placed in a SWFP:

• Has clear backing of statutory authority.
• Avoids regulatory duplication and minimizes overlap to the greatest extent possible.
• Allows compliance to be easily measured.
• Is written so as not to be too subjective or subject to misinterpretation.
• Controls the adverse environmental impact with the least regulatory burden possible.

• Lacks statutory authority or authority is ambiguous and contestable.
• Duplicates requirements of other agencies and needlessly overlaps other agencies' authority.
• Has no clear way to determine compliance.
• Requires additional information or expertise to interpret or can be easily misunderstood.
• Places unnecessary controls or reporting burdens on operator with little benefit toward compliance.

Removal of SWFP Conditions That Conflict With AB 1220

Existing SWFPs should be revised to remove conditions that are no longer under the authority of the Board/LEA. If these are the only changes to the SWFP this can be done at the convenience of the operator and LEA, but should be accomplished no later than the next five-year permit review. Inappropriate conditions can most likely be removed from an existing SWFP through a delegated revision that does not require public hearings in front of the Board. A SWFP currently being drafted should only contain conditions under the authority of the Board/LEA, unless based on a mitigation measure where the authority can be cited. The guidance contained in this advisory should be followed in making a determination on whether a given condition should be removed from an existing SWFP or included in a new SWFP.

The following are examples of conditions that should be removed from a SWFP:

• Degradation of waters connected to this site shall be promptly remediated in the manner specified by the RWQCB.
• The operator shall comply with all rules of the local Air Quality Management District (AQMD), including odor and fugitive dust controls (PM₁₀ control, air SWAT compliance, and AQMD equipment permits).

The following are examples of appropriate conditions:

• The operator shall minimize dust to prevent obscured visibility for personnel and the public.
• Leachate shall be prevented from migrating to areas accessed by the public.

Note that while the above conditions may also impact air and water pollution, the LEA has the authority to enforce standards and conditions that prevent safety hazards due to obscured visibility from dust and prevent public contact with leachate.

CEQA Mitigation Measures

As a responsible agency, the LEA may be asked to help develop mitigation measures for those areas that are under their jurisdiction. When developing mitigation measures, the LEA should consider whether it would have jurisdiction over the measure and whether it would be appropriate to be incorporated as a SWFP condition. Those measures that the LEA writes, where the authority comes from the local Health Department and not the Board/LEA, should be enforced through other local health permits, if necessary. Mitigation measures that are outside of the statutory authority of the Board/LEA should only be incorporated as SWFP conditions if the authority can be cited (e.g., under local ordinances). However, it is appropriate to incorporate mitigation measures that are under the authority of the Board/LEA.

If you have any questions or need additional information, please contact your Permitting and Inspection Branch representative.

Sincerely,

Original signed by:

Julie Nauman, Acting Deputy Director
Permitting and Enforcement Division

Publication #231-98-014

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.