Enforcement Assistance

Enchiridion

5. Permitting

5.1 Permitting Philosophy
5.2 Permit Types/Regulatory Tiers

5.2.1 Full Permit

5.2.1.1 New
5.2.1.2 Revised
5.2.1.3 "Delegated Revision"

5.2.2 Standardized Permit
5.2.3 Registration Permit
5.2.4 Enforcement Agency Notification
5.2.5 Excluded

5.3 Responsible Parties
5.4 Permit Processing

5.4.1 New and Revised Full Permit
5.4.2 RFI Amendment
5.4.3 Permit Review
5.4.4 Change of Owner and/or Operator
5.4.5 Standardized Permit
5.4.6 Registration Permit
5.4.7 Enforcement Agency Notification
5.4.8 With State Minimum Standard Violations

5.5 Public Notice and Comment
5.6 Denial of Permit
5.7 Solid Waste Facility Permit Exemptions
5.8 Planning

5.1 Permitting Philosophy

It is the EA Section's philosophy that SWFPs be flexible inasmuch as the operator should be able to make minor changes in operation without having to revise the SWFP.

When issuing or revising any SWFP, the EA Section will ensure primary consideration is given to preventing environmental damage and that the long-term protection of the environment is the guiding criteria. To achieve these purposes, the EA Section may prohibit or condition the handling or disposal of solid waste to protect, rehabilitate, or enhance the environmental quality of the state or to mitigate adverse environmental impacts {PRC 44012}.

During the permitting process, EA Section staff use the forms and guidelines provided in the Permit Tool Box.

5.2 Permit Types/Regulatory Tiers

On March 1, 1995, the Office of Administrative Law approved the CIWMB’s regulatory tier regulations. The tiered regulations provide five levels (described below) for the placement of solid waste operations and facilities based on an activity's potential environmental and public health and safety concerns. Currently, regulations that incorporate the tiered structure have been approved for transfer/processing, composting, contaminated soil, and nonhazardous ash operations and facilities. New regulations incorporating the regulatory tier structure are being developed for “slotting” other types of operations and facilities.

5.2.1 Full Permit

5.2.1.1 New

New SWFPs are required for facilities which have never operated, facilities which previously did not require a SWFP (e.g., exempted or excluded facilities), or facilities which never previously obtained a SWFP.

5.2.1.2 Revised

A SWFP will be revised whenever an operator wishes to significantly change the design or operation of the facility. Such changes are more often than not "projects" under the CEQA and must comply accordingly.

5.2.1.3 "Delegated Revision"

A "delegated revision" incorporates changes in the SWFP that could not lead to physical changes in the environment. These changes include, but are not limited to: changes in the name, address, or telephone number of the operator; a change in the ownership of the land; a change of operator; or addition/deletion of language to clarify existing language. A "delegated revision" is a ministerial action and, therefore, does not require further CEQA analysis.

5.2.2 Standardized Permit

Facilities that are eligible for a Standardized Permit are required to meet specified requirements prescribed in regulations and are considered to pose less of a threat to the environment and public health and safety than facilities under a full permit. In addition, a less detailed application is required for facilities slotted in the standardized permit tier. The standardized permit imposes conditions that are applicable to all facilities eligible for such a permit which have been determined (through adoption by the CIWMB) to be sufficient to mitigate environmental and public health and safety impacts, regardless of the location.

5.2.3 Registration Permit

The Registration Permit tier is the lowest permit level of the tiered regulations. Facilities that are eligible for a registration permit are required to meet specified requirements prescribed in regulations and are considered to pose a minimal environmental threat and public health and safety concerns.

5.2.4 Enforcement Agency Notification

Operations that are not regulated as solid waste facilities per se, are eligible for the Enforcement Agency Notification tier and no SWFP is required. Although not required to obtain a SWFP, proponents of operations slotted in the notification tier are required to provide the EA Section with certain specified information prior to operating. Such operations are considered solid waste handling activities and are subject to inspection and applicable minimum standards.

5.2.5 Excluded

Operations in the Excluded tier do not constitute solid waste handling activities and are not subject to minimum standards as long as they remain within the operational parameters set in the regulations. The excluded tier is for operations that are subject to inspection as the EA deems necessary to ensure correct placement within the tier. No SWFP is required.

5.3 Responsible Parties

Permits will be issued to both the operator and the property owner. The operator will have primary responsibility and the property owner secondary responsibility for compliance with the terms and conditions of the SWFP, if applicable.

5.4 Permit Processing

EA Section staff will be the lead in processing all applications for full permits, standardized permits, registration permits, RFI amendments, EA notifications, and exemptions from the requirement to obtain a SWFP.

5.4.1 New and Revised Full Permit

An application for a new or revised SWFP will be submitted to the EA Section on form CIWMB E177 (Excel 97, 38 KB or Adobe Acrobat PDF, 10 KB). EA Section staff may require the applicant, owner, or both to supply such additional information as it deems necessary{27 CCR 21570}. Upon its receipt, an application package for a new or revised SWFP will be processed pursuant to 27 CCR 21650. Once the applicant has provided the necessary information, EA Section staff will begin drafting a SWFP. While drafting the SWFP, EA Section staff will consult with other branches of the CIWMB, including:

• Permitting and Inspection Branch staff to ensure consistency in application of standards statewide, including environmental review;
• Financial Assurances Section staff, if the facility is a landfill, to determine if adequate financial assurances are available for the facility. EA Section staff will complete and submit a Financial Assurances Mechanism Review Request form (Adobe Acrobat PDF, 12 KB or Word 97, 25 KB); and
• Office of Local Assistance staff to certify the facility is in conformance with the planning requirements of PRC, Division 30. EA Section staff will complete and submit a Conformance Finding Request form (Word 97, 37 KB or Adobe Acrobat PDF, 5 KB) to the Office of Local Assistance.

No later than 55 days after a SWFP application package has been filed (accepted), EA Section staff will provide a copy of a proposed SWFP to the applicant, the RWQCB having jurisdiction over the facility, and any person so requesting in writing {27 CCR 21650}.

EA Section staff will then prepare an agenda item and present it to the CIWMB within 60 days from the date the proposed SWFP was provided to the applicant {PRC 44009}. EA Section staff will notify the applicant if the CIWMB objects to the issuance of the new or revised SWFP. If the CIWMB concurs in the issuance, the Deputy Director will issue the SWFP. Within 15 days of issuance of a new or revised SWFP, the EA Section will transmit a copy of the SWFP to the owner and operator {PRC 44014(c)}. A decision to issue or not issue the new or revised SWFP will be made by the CIWMB within 120 days from the time the application was filed unless waived by the applicant {PRC 44008}.

Permits that qualify as a "delegated revision" are forwarded to the Deputy Director for consideration, not the full board. EA Section staff will notify the applicant once the Deputy Director has approved or disapproved the "delegated revision". Within 15 days of an approval, EA Section staff will transmit a copy of the SWFP to the owner and operator {PRC 44014(c)}. Delegated revisions are processed the same as a new or revised SWFP application.

5.4.2 RFI Amendment

In accordance with 27 CCR 21665, EA Section staff will review Report of Facility Information (RFI) Amendments within 30 days of receipt. Upon review of the application for RFI Amendment (including form CIWMB E177), EA Section staff will determine if such amendments or lack thereof are the basis for changes in the SWFP. An RFI Amendment is acceptable (no SWFP revision necessary) if all of the following criteria are met:

1. The proposed change(s) is consistent with existing CEQA documentation;
2. The proposed change(s) is consistent with state minimum standards; and
3. The proposed change(s) does not conflict with the terms and conditions in the current SWFP.

Within five days of acceptance of an RFI Amendment, the owner/operator and RWQCB will be notified of EA Section staff's determination. Approval of the RFI Amendment will be provided in the form of a written notification signed by the Deputy Director.

5.4.3 Permit Review

In accordance with PRC 44015, all full SWFPs will be reviewed and, if necessary, revised at least once every five years. EA Section staff will notify the operator of the five-year permit review at least 180 days before it is due. Upon receipt of an application for permit review, EA Section staff will review the documents submitted (as required by 27 CCR 21640(b)), as well as the current SWFP and conditioning documents, and prepare a Permit Review Report (PRR) (Word 97, 743 KB or Adobe Acrobat PDF, 113 KB). The PRR will contain a list of the documents reviewed, list of the findings made, conclusions, and directives given to the operator. A copy of the PRR will be transmitted to the operator within 150 days of receipt of the application for permit review (27 CCR 21650). EA Section staff will follow the guidance provided in LEA Advisories No. 21 and No. 24 when conducting a five-year permit review.

5.4.4 Change of Owner and/or Operator

Owners and/or operators of a facility with a full SWFP who plan to sell, encumber, transfer or convey the ownership or operation of the facility is required to notify the EA and CIWMB at least 45 days prior to the anticipated transfer. The anticipated owner and/or operator is required to provide specific information in the notification to determine if they will be able to operate the facility within the terms and conditions of the SWFP and RFI. The notification will be reviewed by EA Section staff within 30 days of receipt. If a landfill, EA Section staff will submit a Financial Assurance Mechanism Review Request (Adobe Acrobat PDF, 12 KB or Word 97, 25 KB) to the Financial Assurance Section for their review. 

If the anticipated owner/operator has provided the required information, EA Section staff will forward a revised page 1 of the SWFP (with the transfer date), which reflects the new owner and/or operator, along with a cover letter to the Deputy Director for consideration and approval. A copy of the cover letter and changed SWFP will be sent to the owner/operator within 15 days from notifying the owner/operator that their submittal was complete. EA Section staff will follow the guidance provided in LEA Advisory No. 47 when transferring a SWFP to a new owner and/or operator. To assist anticipated owners and/or operators in providing the information necessary to meet the notification requirements, a copy of the 45-Day Owner or Operator Transfer Notice (Excel 97,  47 KB or Adobe Acrobat PDF, 11 KB)will be forwarded to the owner and/or operator for their use.

5.4.5 Standardized Permit

Any operator proposing to operate a solid waste facility eligible for a standardized permit is required to file an application for a Standardized Permit to the EA Section on form CIWMB-92 (Word 97, 27 KB or Adobe Acrobat PDF, 13 KB). Upon its receipt, the application will be processed in accordance with 14 CCR 18105.2. Within 30 days of receipt, the EA Section will determine if the application is complete.

Within 15 days of acceptance of an application, the EA Section will evaluate the information in the application to determine if the facility will be able to operate in compliance with the applicable minimum standards and permit terms and conditions and prepare a proposed standardized permit. A copy of the proposed standardized permit will be forwarded to the applicant and any person so requesting in writing. Unlike the full permit which has site-specific terms and conditions, the terms and conditions for all standardized permits will be the same for a given type of facility.

Within 30 days from the date the proposed permit is provided to the applicant, EA Section staff will prepare an agenda item and present it to the CIWMB for consideration. If the CIWMB concurs in the issuance, the Deputy Director will issue the permit. This provides a maximum of 75 days to review and issue or deny a standardized permit.

If a change in operation and/or operator is proposed for a facility that is operating under a standardized permit, a new standardized permit application will be required. Every standardized permit will be reviewed at least once every five years from the date of issuance or reissuance. EA Section staff will notify the operator 60 days before the permit is due for review. A standardized permit will be void 30 days after cessation of operations.

5.4.6 Registration Permit

Any person proposing to operate a solid waste facility eligible for a registration permit will file an application for a Registration Permit to the EA Section on form CIWMB-83 (Word 97, 19 KB or Adobe Acrobat PDF, 18 KB). Upon its receipt, the application will be processed in accordance with 14 CCR 18104.2. Within 30 days of receipt, the application will be reviewed to determine if it meets the requirements of 14 CCR 18104.1.

When the application is accepted for filing, the EA Section will forward the Registration Permit (and Director’s Office Action Request) to the Executive Director for consideration and approval. A copy of the accepted application, issued permit (signed by the Deputy Director) and cover letter will be forwarded to the operator within five days from the day the application was accepted for filing. This provides a maximum of 35 days to review and issue or deny a registration permit.

If a change in operation and/or operator is proposed for a facility that is operating under a registration permit, a new registration permit application will be required. Every registration permit will be reviewed at least once every five years from the date of issuance or reissuance. EA Section staff will notify the operator 60 days before the permit is due for review. A registration permit will be void 30 days after cessation of operations.

5.4.7 Enforcement Agency Notification

Any person proposing to engage in solid waste handling pursuant to an Enforcement Agency Notification shall notify the EA, in writing, of its intent to operate prior to commencing operations. To assist operators in providing the information necessary to meet the notification requirements, a copy of the Enforcement Agency Notification Form (Excel 97, 51 KB or Adobe Acrobat PDF, 5 KB) will be forwarded to the operator for their use. Since there is no approval granted, the EA Section will review the notification to ensure that it provides the required information. The EA Section will send a letter to the owner/operator, which indicates whether or not the required information has been provided.

5.4.8 With State Minimum Standard Violations

When presenting a proposed SWFP to the full board, EA Section staff must identify that specific findings have been or can be made, including the finding that the design and operation of the facility is consistent with state minimum standards. Furthermore, PRC 44009 indicates that the CIWMB may object to the provisions of a SWFP if it determines that the SWFP is not consistent with state minimum standards.

In July 1994, the EA Section prepared and presented an agenda item to the Permitting and Enforcement Committee and the CIWMB to establish written policy and procedure when the CIWMB, serving as the EA, takes action on a proposed SWFP when state minimum standard violations exist. The CIWMB adopted the procedure as policy.

The CIWMB members will follow the process illustrated in the flowchart when determining concurrence in or objection to a proposed SWFP.

Below is a summary of the assumptions and components of the flowchart:

• The policy is evoked only if a facility is not in full compliance with state minimum standards at the time of EA Section staff's presentation of the proposed SWFP;
• The policy is only for those instances where the CIWMB is serving as the solid waste enforcement agency;
• SWFP application was deemed complete and the 120 day clock has started for processing a SWFP;
• CIWMB is considering action on a SWFP when a state minimum standard violation exists; 
• Flowchart does not reflect SWFP violations;
• Flowchart does not apply when immediate threat exists;
• State Minimum Standard is long-term (e.g., leachate, gas control, violations which could take longer than 90 days to correct);
• Operator demonstrating "good faith" effort as recommended by P&E Division Branch Managers to the Division's Deputy Director;
• Enforcement Order is prepared, as deemed appropriate, to achieve compliance by specified date; and
• Potential penalties for noncompliance:

• Cease and desist order
• Revoke, suspend SWFP
• Civil penalties

In short, if the owner/operator is demonstrating a good faith effort to correct the violation(s), EA Section staff would recommend the CIWMB concur in the issuance of the proposed SWFP. The determination of good faith effort will be discussed between the P&E Division Branch Managers to evaluate the owner/operator's efforts to bring the facility into compliance with state minimum standards. The outcome of these discussions will result in a recommendation to the division's Deputy Director. If it is determined that an owner/operator is not making a good faith effort to correct state minimum standard violation(s), the aforementioned penalties may be pursued until the violation(s) is corrected. Lack of a good faith effort will be based on the owner/operator's efforts to meet time frames outlined in an enforcement order.

5.5 Public Notice and Comment

The EA Section will maintain a current list of all pending SWFP applications and will mail written notice of an application to every person who has submitted a written request of such notice {27 CCR 21660}. Although a written request may not be received, consideration will be given to provide notice of receipt of the application and/or applicable CIWMB meeting by at least one of the following procedures {14 CCR 15072, 15087}:

1. Publication at least one time by the CIWMB in a newspaper of general circulation in the area affected by the proposed project;
2. Posting of notice by the CIWMB on and off the site in the area where the project is to be located; and/or
3. Direct mailing to owners of property contiguous to the parcel or parcels on which the project is located as those owners are shown on the latest equalized assessment roll.

The SWIS III database will be utilized to track pending SWFP applications.  Written public comments on an application will placed in the facility file and a copy will be retained by the EA Section {27 CCR 21660}.

5.6 Denial of Permit

After holding a public hearing, an EA may deny a SWFP, in accordance with 30 PRC 44300. See Section 11 for grounds to deny a SWFP and hearing panel procedures.

5.7  SWFP Exemptions

The procedure for processing a request for an exemption from the requirement to obtain a SWFP is as follows:

1. Application for exemption is made to the EA Section on form CIWMB E177 (Excel 97, 38 KB or Adobe Acrobat PDF, 10 KB). 
2. Determine completeness of the application. The application must include:

1. A full description of the planned activity;
2. The identification of the exemptible classification;
3. The volumes and nature of waste to be handled; and
4. The rationale for determining that the nature of the solid waste will pose no significant threat to health and safety and the environment.

This information must be provided in sufficient detail to support making the findings required by 27 CCR 21565 (i.e., information containing applicable sections of a RFI {27 CCR 21656.5}). If not, staff will notify the applicant of the deficiencies.

3. Determine if the facility falls within an exemptable classification listed under 27 CCR 21565(b). If not, staff will notify the applicant that the facility is not eligible for an exemption.
4. Prepare a SWFP exemption package and present the item to the CIWMB for consideration. The package will include:

1. A project description;
2. Staff comments;
3. A draft issuance letter, if applicable; and
4. A draft resolution, if applicable.

5. Organize a public hearing for the purpose of receiving testimony in support of or in opposition to the proposed project. Staff will prepare a notification of the public hearing and arrange to have it published in a local newspaper. Two copies of a proof of publication should be obtained; one for the staff working file and one for the facility file. While there are no laws or regulations which prescribe the manner in which a hearing for a SWFP exemption must be noticed, staff should make every attempt to follow the local government procedures used for projects of this nature. For example, many local governments publish one notice to satisfy both local planning noticing requirements and CEQA noticing requirements. For local planning purposes, notice must be given at least 10 days prior to a hearing {GC 65090-65095}. 

For CEQA purposes, public notice timelines are dependent upon the environmental document prepared for the project. A notice that an EIR has been prepared and is available for review begins a minimum 45 day review period when a state agency is the Lead Agency or a Responsible Agency {14 CCR 15087}. A notice that the Lead Agency proposes to adopt a Negative Declaration for the project begins a minimum 30 day period when it is submitted for state agency review {14 CCR 15072, 15073}. Public hearings are typically scheduled to conclude the review period.

As a rule, notices should include the date, time, and place of the hearing, the identity of the hearing body or officer, a general explanation of the matter to be considered, and a general description, in text or by diagram, of the location of the real property that is the subject of the hearing {GC 65094}. Notices should be given by at least one of the following procedures {14 CCR 15072, 15087}:

1. Publication at least one time by the public agency in a newspaper of general circulation in the area affected by the proposed project;
2. Posting of notice by the public agency on and off the site in the area where the project is to be located; and/or
3. Direct mailing to owners of property contiguous to the parcel or parcels on which the project is located as those owners are shown on the latest equalized assessment roll.

6. The CIWMB holds a public hearing. After the public hearing, the CIWMB determines whether the following findings can be made:

• The exemption is not against the public interest;
• The quantity of waste is insignificant; and
• The nature of the solid waste poses no significant threat to health and safety or the environment.

If these findings are not made, EA Section staff will notify the applicant that a SWFP must be obtained to operate the facility. As with all proposed SWFPs, if the applicant deems the terms and conditions of the proposed SWFP inappropriate, the applicant may request a hearing before a hearing panel. Any action taken by a hearing panel may be appealed to the CIWMB.

7. When the CIWMB issues an exemption, a resolution (including any necessary limits, reporting requirements, time frames, etc., imposed on the project as a condition of granting the exemption) is signed by the Executive Director. The Deputy Director of the Permitting and Enforcement Division signs the issuance letter. A copy of the resolution along with an issuance letter will be transmitted to the applicant.

[Note: Under the committee structure, the CIWMB previously delegated authority to the Permitting and Enforcement Committee to make determinations concerning SWFP exemptions granted pursuant to 27 CCR 21565.]

5.8 Planning

In accordance with PRC 50001, the location of disposal and transformation facilities must be identified in the Countywide Siting Element (CSE) and the location of nondisposal facilities must be identified in the Nondisposal Facility Element (NDFE). If a facility is not identified in the CSE or NDFE, then an amendment to the respective planning document must be filed and approved before the SWFP can be found to be in conformance. The conformance finding is required for solid waste facilities only and is not required for solid waste operations.

There are no exceptions for "exempted facilities" (i.e., all facilities must comply with these statutes). PRC 50002 authorizes the CIWMB to specify classifications of solid waste facilities that are exempt from the requirements of PRC 50000, 50000.5, and 50000.1, however, it must be done through regulation.

As part of the permitting process, EA Section staff will submit a complete Conformance Finding Request form (Word 97, 37 KB or Adobe Acrobat PDF, 5 KB) along with a copy of the draft SWFP to the Office of Local Assistance in order for them to determine if the facility is in conformance with the respective planning document. 

Last updated: April 18, 2008