Local Enforcement Agency Correspondence

Memorandum of Understanding Between Cal-OSHA and the CIWMB Regarding Worker Health and Safety Issues at Transfer/Processing Operations and Facilities

Date: September 29, 1998

To: All Local Enforcement Agencies

From: Elliot Block, Staff Counsel, California Integrated Waste Management Board

On September 23, 1998, the CIWMB adopted the proposed Transfer/Processing Operations and Facilities regulations. In the next few months, staff will be putting together the rulemaking file and submitting it to the Office of Administrative Law for review. It is anticipated that the regulations will be effective sometime in mid-December. As many of you know, the CIWMB has been developing a Memorandum of Understanding (MOU) with the Division of Occupational Safety and Health (DOSH), commonly referred to as "Cal-OSHA," regarding provisions in these regulations that created the potential for overlapping jurisdiction. At the September meeting, the Board also approved a version of the MOU designated as Alternative 1. Alternative 1 provides the basic agreement between the two state agencies and includes: 1) an agreement that the regulations, as revised, do not contain overlap; 2) a referral procedure in which DOSH agrees to review referrals from LEAs in the same time frame as formal employee complaints (3 working days for serious, 14 calendar days for non-serious) and notify LEAs of the outcome in writing; and, 3) a dispute resolution process.

The Board also considered Alternative 2. This version of the MOU includes the same provisions as Alternative 1, but would add some significant additional ones. The Board directed staff to continue discussions regarding the additional language and bring Alternative 2 back before them for consideration at a later date. Briefly, the additional provisions include: 1) language to make clear that the MOU does not impose additional obligations on an LEA who chooses not to participate; 2) a process for "enforcement assistance" which would allow an LEA that wants to take some initial action regarding worker health and safety to do so through the use of the monthly inspection report; 3) a provision for training by DOSH; and, 4) language clarifying that no additional LEA certification will be required before an LEA can utilize the enforcement assistance procedure. I t also includes Appendix C and Appendix D which detail the particular Title 14 and Title 8 standards that are subject to the MOU. The "enforcement assistance" procedure is designed to allow flexibility for LEAs who have indicated that they may want to try to resolve a situation without the need to make a referral to DOSH. It would still allow other LEAs to either not become involved or to simply make a referral without taking additional efforts to obtain compliance.

The MOU does not include a "formal" delegation of authority for LEAs. Since the Board declined to seek full delegation from DOSH for worker health and safety at transfer/processing facilities and operations, and not all LEAs wanted this delegation, DOSH wants to retain its ultimate authority to determine whether Title 8 has been violated, and to issue citations. In the absence of a full delegation from DOSH, there appears to be no additional benefit in requiring LEAs to individually sign on to the MOU for a formal delegation.

There are two issues that I have identified which remain to be discussed regarding Alternative 2 (some of you may be able to identify additional ones). First, looking at the provisions for the "enforcement assistance" on page 3 and 4 of Alternative 2, there is a disagreement over what kind of a notation should go on the inspection report. Operators would prefer that the word "violation" not be used. In addition, the use of this term may raise an issue regarding AB 59 appeals. Second, the process as outlined would have an LEA refer the matter to DOSH if a notation on the inspection report did not result in convincing the operator to comply. There has been some discussion about whether, in an appropriate case, an LEA should be able to use a Notice and Order as well. Perhaps with a long term compliance problem. Your input on these issues, and any others that you see would be appreciated.

If you have comments, please forward them to me at the address above, or to my e-mail (eblock@ciwmb.ca.gov) by October 14, 1998. We will have a meeting on October 15, 1998 to discuss these issues in person. The meeting will be at the CIWMB's Permitting and Enforcement Division Large Conference Room at 8950 Cal Center Drive starting at 10:00 A.M.

Thank you for cooperation.

Attachments:

MOU Alternative 1
MOU Alternative 2

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