Enforcement Advisory Council Meeting: January 25, 2007

Resolution 2007-03

January 25, 2007

Subject: Enforcement Advisory Council Resolution 2007-03-Providing Formal Comments Regarding Proposed Revisions to the “Temporary Waiver of Terms” Regulations

Dear Mr. Levenson:

The EAC appreciated the opportunity to provide comment and dialogue with Board representatives and staff during the informal review period regarding the referenced regulations. It is understood that the Board desires to tighten the use of temporary waivers by creating the new language. However, the EAC continues to have concern regarding a few issues for which it is requested additional consideration be given.

1. Section 17211.1 (b): The Initial Statement of Reasons states, “The CIWMB does not believe it is appropriate to attempt to list, in regulation, circumstances that would always constitute a temporary emergency…” However, in the definitions it has listed circumstances that always would not constitute a temporary emergency, including “a collection or disposal labor strike.” If a strike should go on for an extended period, the potential for a public health hazard may develop in the form of harborage for vectors (flies, rodents, mosquitoes). Under such circumstances a temporary waiver of the hours of operation at a disposal facility extending the time to allow working individuals a chance to dispose their waste, or waiving the maximum tonnage limit to expedite clean-up by an outside company or when a strike ends may be in appropriate. Please consider removing “a collection or disposal labor strike” from the definition or add a clarifying condition “except in the event of a public health hazard”.
2. Section 17211.9 (a): An appeal process, such as an administrative appeal before the Board Chair or a letter to the Chair, should be developed should an LEA wish to appeal the decision of the Executive Director. An appeal should stay the decision of the Executive Director until such time as the appeal is resolved.
3. Section 17211.9 (c): The EAC acknowledges that it is not uncommon for staff to prepare documents that an administrator ultimately signs. However, because of the nature of the decision being made, the EAC requests review of the circumstances and ultimate decision regarding stipulated agreements for Temporary Waivers be restricted to the Executive Director or Deputy Director.
4. A stipulated agreement is an instrument entered into by the EA and operator. However, at times, circumstances beyond the control of both the EA and operator may occur such as a criminal investigation by law enforcement at a site. Such an event may be of short duration and as such may be reasonably addressed as a special occurrence. However, there may be times when law enforcement takes control of a site or portions of a site for extended periods, such as when searching for a body. Portions of the site may be excavated and remain uncovered for an extended period pursuant to the direction of the law enforcement agency. It would be helpful for the Board to provide guidance to LEAs regarding preparation of a stipulated agreement or other document to address conditions beyond the control of the operator.
5. The EAC acknowledges the need for planners, LEAs and operators to plan for and to take appropriate actions to address ‘reasonably foreseeable events’ through the environmental review process, land use documents and/or solid waste facility permits. However, in reality there are times when events occur, which at the time of planning and permitting were unforeseen, that may necessitate the need for a temporary waiver. For example, businesses come and go. A chipper/grinder may go out of business overnight resulting in those feedstock materials being redirected to another facility, putting an unexpected burden on the operation receiving the materials. The new materials may cause permit limits to be exceeded. A temporary waiver would be a better option than to turn the hauler away and possibly find the materials dumped along a roadside.

The EAC would like to thank the Board for their consideration of the above issues.

Should you have any questions, please contact me at (209) 381-1082.

Sincerely,

Original Signed by

Robert Wiechert, Chair
Enforcement Advisory Counsel

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