Local Enforcement Agency Correspondence

Conformance Findings Guidance

August 2002 Board Decision

Public Resources Code (PRC) Section 50001 requires a conformance finding in the solid waste facility permitting process. The Board determined at its August 2002 Board meeting that a “plain English” interpretation of that section would also apply to nondisposal solid waste facilities as follows:

1. Nondisposal facilities that are located at a permitted landfill and would require a permit if located elsewhere, and
2. Nondisposal facilities that are already included in the landfill’s solid waste facility permit.

This means that in order for the permit (that includes the nondisposal facility) to be in conformance with the applicable planning document, such facilities must be separately identified in the host jurisdiction’s Nondisposal Facility Element (NDFE) or must be separately identified in the appropriate County’s Countywide Siting Element (CSE).

Included in the Board’s decision was a narrow exception for potential permitting changes to existing nondisposal activities sited at landfills that may occur as a result of the Board’s proposed compostable material, and construction, demolition and inerts regulations. In certain cases, the conformance finding step of the permitting process will not be necessary, and hence, the host jurisdiction’s NDFE will not have to be amended to add the facility, if all of the following conditions are met:

• A proposed solid waste facility permit includes an existing nondisposal activity; and
• The non-disposal activity is located on-site at a disposal facility that is identified in the applicable Countywide Siting Element; and
• The non-disposal activity would require a permit if it were located elsewhere; and
• The non-disposal activity would require that permit only as a result of a revision to the Board’s regulations, and not as a result of a change in the activity (e.g., increase in size, materials handled, etc.); and
• The existing nondisposal activity was described within the disposal facility’s RFI by August 20, 2002 (i.e., date of this Board decision).

Application of this Decision:

• An existing construction/demolition and inert activity, or chipping and grinding activity sited at a landfill that will need to be permitted (whether registration, standardized, or full) as a result of the Board’s proposed C & D regulations or composting regulations, will not have to be separately identified in the host jurisdiction’s NDFE (or CSE).
• When the applicable permit is revised, or new permit issued, for that facility to be in compliance with the new regulations, a conformance finding will not be necessary.
• If the activity falls in the notification or excluded tier as a result of the new regulations, and after August 20, 2002, the activity/facility expands or changes in a way that would require it to obtain either a registration, standardized, or full permit, the permit would then need to go through the conformance finding process and hence, the facility would then need to be identified in the host jurisdiction’s NDFE for the permit to be in conformance.

How will Office of Local Assistance (OLA) and Permitting and Inspection (P & I) staff implement this decision?

As a result of this decision, OLA staff will be working with P & I staff to:

1. Identify the existing C & D facilities, and chipping & grinding and/or compostable material activities sited at landfills that currently do not have their own permits, or are not identified separately in a landfill permit;
2. Work with the LEAs to establish the baseline quantities these activities and/or facilities currently handle, so P & I staff can identify which permitting tier the activity or facility will need to be categorized under, i.e., either:

• Notification Tier: does not require a permit, and therefore, no conformance finding step is necessary, and hence the NDFE will not need to be amended (although the jurisdiction could add it to the NDFE if they wanted to); or
• Registration, Standardized, and Full Tiers: the LEA and Board will need to confirm that the operator has included a conformance finding statement that the facility is identified in the NDFE, unless the facility meets the “exception” criteria noted above.

Once a facility’s baseline “quantity handled” is identified, the facility will then be classified (by P & I Division) as either falling under the notification, registration, standardized, or full permitting tier. However, for those facilities that fall in the notification tier, if in the future the facility increases its tonnage handled and has to move up to a permitting tier, the facility will then have to have its permit go through the conformance finding process, and the facility will then need to be identified in the NDFE. If, however, the facility or activity is already identified in a CSE, then that identification will be sufficient for the facility’s permit to be found to be in conformance, and a NDFE amendment will not be necessary.

Example Scenarios:

1) Landfill X in Y County currently hosts a compostable material chipping and grinding activity that does not currently have its own permit, and is not identified in the landfill’s permit. The Local Enforcement Agency (LEA) determines the activity handles less than the threshold amount/day that distinguishes a “facility” from an “operation” according to the proposed composting regulations. This quantity of material handled by such an activity would make it fall into the notification tier, and hence would not require a permit. Because the activity is defined as an operation, a conformance finding is not necessary, and therefore, the host jurisdiction’s NDFE would not need to be amended because of the new regulations.

However, if in the future this activity increases its tonnage handled so that it changes from being in the notification tier to a permitting tier, (i.e., changes from an operation to a facility) a conformance finding would need to be made at that time. If the activity were not identified in the host jurisdiction’s NDFE (or alternatively, in the applicable CSE), then the host jurisdiction’s NDFE would need to be amended for the permit to be found in conformance.

2) XX landfill in YY County hosts a compostable material chipping and grinding activity that does not currently have its own permit, and is not identified in the landfill’s permitting documents before August 20, 2002. As a result of the new composting regulations, the LEA determines the activity handles over the threshold amount/day that distinguishes a facility from an operation, making it a “facility” that falls into the registration tier, and hence would require a permit by the LEA (or it would need to be included in the landfill’s permit). However, because this facility would be “grandfathered” by the Board’s decision, a conformance finding would not need to be made when the permit was issued, and the host jurisdiction’s NDFE would not need to be amended because of the change in regulations.

If in the future the facility expands and has to move up to a standardized or full permit, a conformance finding would not need to be made for the permit revision, and the host jurisdiction’s NDFE would not need to be amended, because the facility was previously “grandfathered” at the registration permit tier.

3) AA landfill in BB County currently hosts a chipping and grinding activity that does not currently have its own permit, and is not identified in the landfill’s permitting documents before August 20, 2002. As a result of the new composting regulations, the LEA determines the activity handles over the threshold amount/day that defines a large facility, making it fall into the full permit tier, and hence would require a permit by the LEA (or it would need to be included in the landfill’s permit), which in turn would need to be concurred in by the Board. However, because this facility would be “grandfathered” by the Board’s decision, a conformance finding would not need to be made when the permit was issued, and the host jurisdiction’s NDFE would not need to be amended because of the change in regulations.

In this scenario, if in the future the facility expands, because it was already issued a full permit and was “grandfathered” by this decision, a conformance finding would NOT have to be made for the permit revision, and the facility would NOT have to be identified in the host jurisdiction’s NDFE for the permit to be in conformance; hence the host jurisdiction’s NDFE would not need to be amended.

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