Enforcement Assistance

Enchiridion

3. Enforcement/Compliance

3.1 Enforcement Philosophy
3.2 Violation Categories
3.3 Enforcement Options

3.3.1 Action Level A
3.3.2 Action Level B
3.3.3 Action Level C
3.3.4 Action Level D

3.4 Guidelines for Response to Noncompliance
3.5 Selection of Appropriate Enforcement Action
3.6 Notification of Other Agencies
3.7 Response to Complaints

3.7.1 Complaint Form
3.7.2 Written Complaints of Alleged Violations
3.7.3 Investigation Record

3.1 Enforcement Philosophy

With the protection of the public health and safety and the environment foremost, it is our philosophy to pursue compliance through all available means before taking a formal enforcement action. However, appropriate and timely response to instances of noncompliance with State Minimum Standards, SWFP terms and conditions, and enforcement actions is necessary to ensure protection of public health and safety and the environment. This section describes the procedures for responding to these instances of noncompliance. In the event of a temporary emergency, the requirements contained in 14 CCR, Chapter 3.0, Article 3.5 will be followed to allow a waiver from the terms and conditions of the SWFP.

3.2 Violation Categories

1. Operational violations, pursuant to:

• 14 CCR Division 7, Chapters 3, 3.1, and 3.5;
• 27 CCR Division 2, Chapter 3; and
• PRC, Division 30.

2. Emergency violations under item 1, which present an imminent threat to the public health and safety, or the environment and require immediate action pursuant to PRC, Division 30, Part 5;

3. Permit violations, pursuant to:

• PRC, Division 30, Part 4, Chapter 3;
• 14 CCR, Division 7, Chapter 5; and
• 27 CCR, Division 2, Chapter 4.

4. Closure and postclosure violations, pursuant to:

• PRC, Division 30, Part 4, Chapter 2, Articles 3 and 4, and Part 5; and
• 27 CCR, Division 2, Chapter 3, Subchapter 5, Article 2, and Chapter 4, Subchapter 4.

3.3 Enforcement Options

Enforcement actions should correspond to the following action level sequence unless circumstances warrant a more expeditious process. The action levels below are consistent with the CIWMB's Enforcement Policy provided in LEA Advisory No.38. 

3.3.1 Action Level A

Compliance Request: Request operator, by telephone or written correspondence, to correct and prevent recurrence. A memo of each telephone contact or a copy of the correspondence should be sent to the facility file.

Warning Notice: A notice mailed or issued at the time of inspection using the applicable inspection form (e.g., Disposal Site Inspection Report--CIWMB-52, Transfer/Processing Facility Inspection Report--CIWMB-53, etc.) identifying violations. This notice should include a compliance date and should be signed by the facility owner or operator.

Compliance Meeting: EA Section staff schedule a formal meeting with the operator and appropriate regulatory agencies to discuss specific violations and compliance methods. All parties to this meeting should agree on a specific schedule for corrective measures. It should be made clear that failure to comply with the corrective measures agreed to at this meeting may result in further enforcement action.

3.3.2 Action Level B

Notice of Violation: A written notice/letter sent to the owner/operator containing a summary of the violation(s) documented during an inspection. This notice requires a written response from the owner or operator, within an established time limit, summarizing the actions which have or will be taken to correct the reported violation(s).

90-Day Notice of Intent (NOI): Any facility, which has a repeat violation for the same standard(s) during two successive months, will be issued an NOI letter. The NOI will indicate which standards continue in violation and gives the owner/operator 90 days in which to correct the violation(s).

3.3.3 Action Level C

Notice and Order: This action is an order issued pursuant to PRC 45000, 45005, and/or 14 CCR 18304, requiring the owner/operator to take corrective action and/or cease and desist from an illegal activity and to clean up or abate any condition resulting from that activity. It is normally issued when corrective action(s) can be completed within 90 days.

Stipulated Order of Compliance and Agreement: This action is issued pursuant to 14 CCR 18304, to correct SWFP violations and directing action(s), which usually require more than 90 days to correct. This order constitutes a contract between the EA and the owner or operator. 

[Notice & Orders and Stipulated Orders are to be reviewed and surnamed by the Legal Office and signed/issued by the Deputy Director. A copy of the issued enforcement order is to be sent to the owner and operator, via certified mail, within five business days of issuance. Orders (Word 6.0, 46 KB or Adobe Acrobat PDF, 53 KB) prepared by EA Section staff contain the information as required  by 14 CCR 18304(b).

Inventory of Solid Waste Facilities Which Violate State Minimum Standards (Inventory): If the owner or operator has not corrected a violation(s) within 90 days from the date the NOI was received, the EA Section will include the facility in the Inventory. Upon including a facility in the Inventory, EA Section staff will develop a compliance schedule pursuant to PRC 44106(a).

3.3.4 Action Level D

If an owner/operator fails to comply with the actions specified in an enforcement order, the EA Section will pursue implementation of the notices stated in the order, including, but not limited to:

• Contract for Corrective Action: If an owner/operator fails to take corrective action by the date specified in an enforcement order, the EA Section will recommend the CIWMB contract to have the corrective action completed by a third party {PRC 45000}.
• SWFP Suspension or Revocation: Subsequent to the failure of all other enforcement actions, the EA Section will pursue action through the hearing panel process to suspend or revoke the SWFP {PRC 44106(b), 44305, 44306, 14 CCR 18307}.
• Petition the Court: Through the Legal Office, petition the superior court to enjoin violations or impose upon the owner, operator, or both, civil penalties in an amount not to exceed $10,000 for each day of violation occurring after a specified date {PRC 45023}.
• Administrative Civil Penalties: If an owner/operator fails to attain compliance by the time schedule in an enforcement order, EA Section staff may request civil penalties be imposed administratively {PRC 45011}.
• State Attorney General Referral: A referral to the Attorney General to petition the court on our behalf.
• District Attorney Referral: A referral to a District Attorney to petition the court on our behalf.

3.4 Guidelines for Response to Noncompliance

Responses to instances of noncompliance should generally be initiated considering the following guidelines, unless the seriousness of a particular noncompliance warrants a more expeditious response.

Action Level A: After discovery of noncompliance.

Action Level B: Following determination of failure to comply with Action Level A.

Action Level C: Following determination of failure to comply with Action Level B.

Note: Several enforcement actions may be taken within Action Level C. Each action should carry with it a time frame for initiating action.

Action Level D: Following determination of failure to comply with Action Level C.

3.5 Selection of Appropriate Enforcement Action

The following criteria should be considered in selecting an appropriate enforcement action:

1. Degree of risk to public health and safety or the environment;
2. History of violations;
3. Degree of cooperation or recalcitrance exhibited by the owner/operator;
4. Culpability of the operator;
5. Financial resources of the owner/operator;
6. Whether the circumstances leading to the noncompliance have been corrected;
7. Whether the violations are likely to continue;
8. Whether the violation can be remediated;
9. Need to take immediate cleanup action; and
10. Any economic benefit realized by the owner/operator as a result of the noncompliance.

3.6 Notification of Other Agencies

Prior to issuing an enforcement order under Action Level C, the EA Section will send a written statement to the RWQCB, Air Pollution Control District/Air Quality Management District (APCD/AQMD), and DTSC explaining and justifying the enforcement order or a description of the violation(s) pursuant to the following schedule {PRC 45019}:

• At least 10 days before issuing an enforcement order which is not for an emergency;
• Within five days after issuing an enforcement order for an emergency; or
• Within 15 days after discovering a violation of a state law, regulation, or term or condition of a SWFP, for a solid waste disposal site which is likely to result in an enforcement action.

The statement will be sent to the respective agency when the enforcement action involves a violation(s) that may also be under their jurisdiction. In addition, the EA Section will consult with the appropriate local health agency concerning all actions that involve health standards. The consultation will include granting the health agency adequate notice and opportunity to conduct and report any evaluation that it reasonably deems appropriate {PRC 43307}.

3.7 Response to Complaints

It is the intent of the EA Section to acknowledge and investigate all public complaints (written or verbal) regarding the unlawful operation of a solid waste facility or operation. Toward this end, the EA Section will utilize a complaint tracking system to ensure that every person making a complaint of an unlawful condition at a solid waste facility or operation receives appropriate attention. Complaints regarding non-facility solid waste issues such as litter and indiscriminate (nuisance) dumping will be referred to the local health department, code enforcement, and/or public works department. If the local health department, code enforcement, or public works department recommend the EA Section handle the complaint, the EA Section will follow the procedures below and coordinate with the appropriate local agency when necessary to ensure that complaints are handled accordingly.

3.7.1 Complaint Form

When verbal complaints are received, EA Section staff will complete a Complaint Form: Adobe PDF (56 KB) or Word (468 KB). Investigation of verbal complaints will follow the "Written Complaints of Alleged Violations and Investigation Record" procedures described below. All completed complaint forms will be placed in the facility file.

3.7.2 Written Complaints of Alleged Violations

Any person having information alleging a solid waste facility or operation is being operated without a required SWFP or notification, in violation of one or more terms or conditions of the SWFP, in violation of state minimum standards or in violation of any related state solid waste laws or regulations, or that a SWFP was obtained wholly or partially by misrepresentation or nondisclosure of relevant facts, may file a complaint regarding such allegations in writing to the EA {14 CCR 18302}. The complaint shall include the following:

1. The name, address, and telephone number of the person making the complaint; however, nothing shall be construed to prevent the making of anonymous complaints by omitting the identity of the reporting party from the complaint;
2. The identity and location of the facility or operation and the names and addresses, if known, of the persons responsible for the violation;
3. The nature of the violation and/or the relevant misrepresentation or non-disclosed facts; and
4. All known facts relevant to the alleged violation or likely to be of assistance to the EA in investigating the complaint, including but not limited to, information relating to witnesses and physical evidence.

Upon receipt of a complaint, the EA Section will, within 15 days, examine the complaint and determine whether its allegations, if true, would constitute a violation of state minimum standards, SWFP terms or conditions, or any related state solid waste law or regulation. If the EA Section determines that the complaint fails to allege facts constituting a violation of state minimum standards, SWFP terms or conditions, or related state solid waste laws or regulations, it will notify the complainant in writing of this determination.  The EA Section may consult with the local health department to discuss and review the allegations.

The EA Section may decline to investigate a complaint if, in its judgment, an investigation is unwarranted because the allegations are contrary to facts known to the EA Section and/or local health department. Should the EA Section decline to investigate, it will notify the complainant in writing of this determination.

3.7.3 Investigation Record

In accordance with 14 CCR 18303, the EA Section will conduct investigations of allegations/complaints made to it as required by 14 CCR 18302(e). For investigation of possible violations of health-related standards, the EA Section will obtain and consider the recommendation of the local health department concerning enforcement actions. If the EA Section does not receive assistance from the local health department for health-related violations, the EA Section may contact the State Department of Health Services for assistance.

The EA Section will maintain a record of each investigation. The Investigation Record will include Person(s) Interviewed (Adobe PDF, 42 KB or Word, 450 KB) and Evidence Examined (Adobe PDF, 46 KB or Word, 453 KB) forms, as warranted. Completion of the forms will constitute the Investigation Record.  Investigation Records will be placed in the appropriate facility file and working file.

Keep in mind, some instances may not warrant the completion of the aforementioned forms because the complaint was resolved and documented in correspondence by and between the complainant, owner/operator, and/or EA Section staff. Copies of this correspondence will be maintained in the facility file.

Odor complaints at compostable material handling operations and facilities pose a unique situation when it comes to investigations for EA Section staff. Since the CIWMB is a long distance from some compostable material handling operations/facilities, it is difficult for EA Section staff to verify the odor complaint within a reasonable time. The allegations can be examined within the 15 days, but when it comes to verifying alleged odors, a quicker response is preferred. To help address this limitation, EA Section staff work closely with the local air quality management districts (AQMD)/air pollution control districts (APCD) and/or local health department to verify odor complaint(s). As a practice, if five verified complaints from five different complainants are received, EA Section staff will cite a violation for odor (14 CCR 17867(a)(2)) on the inspection report. This practice would be similar to the policy of most AQMD/APCD when addressing odor complaints.  The aforementioned Complaint Form and/or Investigation Record will be completed for each odor complaint, including any information from the AQMD/APCD or local health department.

4. INSPECTIONS

4.1 Inspection Procedures
4.2 Inspection Frequencies
4.3 Duration and Timing of Inspections

4.1 Inspection Procedures

Guidance for the inspection of solid waste facilities and operations and the enforcement of state minimum standards for the handling and disposal of solid waste is provided to CIWMB staff and EAs through LEA Advisories. EA Section staff will take guidance from applicable LEA Advisories when conducting inspections unless otherwise specified below. EA Section staff will regularly consult with staff of the Permitting and Inspection (P&I) Branch to determine consistency in application of standards statewide.

4.2 Inspection Frequencies

• Weekly, for sites operating on performance standards pursuant to 27 CCR 20695;
• Monthly, for all active and inactive facilities, and for illegal facilities and facilities pending abatement by enforcement action(s);
• At the frequency required by the state minimum standards for each type of operation regulated under the enforcement agency Notification tier;
• Quarterly, for closed sites for the duration of the postclosure maintenance period pursuant to 27 CCR 21180;
• Weekly, or at an accepted alternative frequency, for sites with an approved Alternative Daily Cover proposal;
• As necessary upon receipt of an application for a new SWFP, revision, or review {PRC 44100(a)(b)};
• Upon receipt of a complaint or emergency notification which cannot be resolved off-site; and
• Quarterly, for abandoned sites, and facilities exempted pursuant to 27 CCR 21565.

Alternative inspection frequencies may be performed where such action will not result in an adverse impact on public health and safety or the environment. Operations eligible for an Enforcement Agency Notification will be inspected at a frequency, which verifies that the operation is being conducted in a manner that qualifies for the notification tier.

Inspection frequencies for closed, illegal, or abandoned sites may be reduced as a result of the Site Investigation Process. Reduced inspection frequencies will be determined in consultation with the RCTA Branch. The consultation will include a comparison of reduced inspection frequencies previously approved for similar types of sites. A memorandum will be prepared supporting the reduced inspection frequency and a copy placed in the facility file.

4.3 Duration and Timing of Inspections

The time spent conducting an inspection will consist of the time necessary to adequately assess applicable standards. More time will be spent at facilities or operations with numerous or continuing violations. Regularly scheduled inspections will usually not be conducted over an entire operating day. Inspections are unannounced.

For inspections of active, inactive, and illegal facilities and facilities pending abatement by enforcement action, the standards assessed will include, at a minimum, those standards contained on the Disposal Site Inspection Report (Excel 97, Adobe Acrobat PDF, 9 KB), Transfer/Processing Facility Inspection Report (Excel 97, 64 KB or Adobe Acrobat PDF, 9 KB), or Composting Operation & Facility Inspection Report (Excel 97, 71 KB or Adobe Acrobat PDF, 53 KB), forms CIWMB-52, CIWMB-53, and CIWMB-93 respectively.

For inspections of closed or abandoned sites not subject to 27 CCR, Division 2, Chapter 3, Subchapter 5, Article 2, the standards assessed will include, at a minimum, those standards contained on the Closed Site Inspection Report, form CIWMB-55 (Excel 97, 65 KB or Adobe Acrobat PDF, 9 KB).

For inspections of closed or abandoned sites subject to 27 CCR, Division 2, Chapter 3, Subchapter 5, Article 2, the standards assessed will include, at a minimum, those standards contained on the Closed Facility Inspection Report, form CIWMB-56 (Excel 97, 67 KB or Adobe Acrobat PDF, 10 KB).

For inspections of transfer operations, the standards assessed will include those standards contained on the Transfer Operation Inspection Report, form CIWMB-73 (Excel 97, 62 KB or Adobe Acrobat PDF, 9 KB).

For inspections of nonhazardous petroleum contaminated soil operations and facilities, the standards assessed will include those standards contained on the Nonhazardous Petroleum Contaminated Soil Operation and Facility Inspection Report, form CIWMB-76 (Excel 97, 21 KB or Adobe Acrobat PDF, 9 KB).

For inspections of exempted facilities, the standards assessed will include, at a minimum, those standards put forward as conditions for granting the exemption.

As new types of facilities and operations are slotted in the appropriate regulatory tier, EA Section staff will inspect the facility or operation for those standards included on the accompanying inspection forms.  

Whenever possible, all subsequent inspections will be conducted on different days of the week and different hours of the day than the previous inspection.

Last updated: April 18, 2008