CIWMP Enforcement Part II: Failure to Implement

Enforcement

The preceding sections entitled "SRRE Implementation" and "HHWE Implementation" outline the criteria Board staff recommends using to determine the level of implementation. The following section outlines the enforcement processes recommended to be used by the Board.

• Steps Toward Compliance
• SB 1066 Extensions and Alternative Diversion Rates
• Statutory Relief Considerations
• Compliance Order and Schedule
• Penalty Structure
• Removal of Penalties
• Conclusion

Steps Toward Compliance

The Board’s biennial review process will be used to assess implementation of jurisdiction's SRREs and HHWEs. For example, for the 1999/2000 biennial review, Board staff will evaluate the program implementation and diversion rate information in jurisdictions' 1999 and 2000 annual reports. From this information, staff will determine jurisdictions' progress in implementing diversion programs selected in their SRREs (and HHWEs) and in meeting the 50 percent diversion requirement in 2000.  Staff will then present the results of that review and their recommendations to the Board at a regularly scheduled Board meeting.  To the extent possible, this hearing (i.e. Board meeting) will be held in the local or regional agency's jurisdiction (PRC section 41825).

If the Board finds, after the public hearing, that a jurisdiction has failed to adequately implement its SRRE and/or HHWE, and fits into Scenarios II or III, the the Board will issue an Order of Compliance, including a compliance schedule (PRC section 41825). The Board will follow the procedures for issuing compliance orders it adopted at the January 23-24, 2001, Board meeting. Jurisdictions within these two scenarios may alternatively petition the Board for a SB 1066 extension, or an alternative diversion rate, as discussed below.  Jurisdictions determined to be in Scenario IV will be issued an Order of Compliance, including a compliance schedule.  

The compliance order will identify the programs of the SRRE and/or HHWE which are not being implemented or attained by the jurisdiction, or identify areas of the SRRE and/or HHWE that require revision. Staff recommends that the Board set a specific schedule for the jurisdiction to act on these findings, to be determined on a case-by-case basis.  The Board will follow the requirements of PRC section 41825 regarding issuing a jurisdiction a compliance order for failure to adequately implement its SRRE and/or HHWE.

If the jurisdiction fails to meet the requirements of the compliance order, including cases where a jurisdiction failed to meet the diversion requirements due to the inability to count the excluded wastes (agricultural waste, inert solids, scrap metals and white goods), the Board will follow the requirements of PRC section 41850(b) in determining whether or not to impose a fine, or in determining the amount of a fine.  That section states that in determining the amount of any penalties imposed, including penalties imposed due to the exclusion of solid waste pursuant to PRC section 41781.2 which results in a reduction in the quantity of solid waste diverted by a city or county, the Board shall consider only those relevant circumstances which have prevented a city or county from meeting the diversion requirements. PRC section 41850 provides a non-exclusive list of potential circumstances the Board shall consider before assessing a fine, as noted in the "Statutory Relief Considerations" section of this document.

SB 1066 Extensions and Alternative Diversion Rates

Section 41820 authorizes the Board to grant one or more, single or multiyear time extensions to meeting the 50 percent diversion requirement for 2000, but no single extension will be for more than 3 years, or a total extension more than 5 years. In addition, no extension will be granted or effective after January 1, 2006. The Board will follow the specifications for granting extensions outlined in PRC section 41820. The Board may not grant an SB 1066 extension to any jurisdiction that does not have a Board-approved SRRE, HHWE, or NDFE.

Section 41785 authorizes the Board to establish an "alternative source reduction, recycling, and composting" requirement to the 50 percent diversion requirement of PRC Section 41780. As in SB1066 extensions, any single alternative diversion rate, or ADR, may not exceed 3 years, unless the Board grants another alternative requirement, and no ADR will be granted, or effective, after January 1, 2006. A jurisdiction petitioning the Board for an ADR that has not previously petitioned the Board for a SB1066 extension must provide information to the Board explaining why it has not requested an extension. The Board will follow the specifications for granting ADRs as outlined in PRC Section 41785. The Board may not grant an ADR to any jurisdiction that does not have a Board-approved SRRE, HHWE or NDFE.

Statutory Relief Considerations

The preceding criteria will be used to recommend to the Board whether a jurisdiction has implemented its SRRE or HHWE. Administrative civil penalties of up to $10,000 per day, per SRRE and HHWE, may be levied on jurisdictions failing to implement these elements. However, statute allows the Board to consider the following circumstances when determining the amount of the civil penalty.

• Disasters or acts of nature, such as the Northridge, Ferndale, and Loma Prieta earthquakes, the Oakland Hills and Malibu fires, or the mudslides that are common to California, which result in short-term increases in the amount of wastes sent to landfills, and short-to-long-term redirection of city and county personnel who must respond to the health and safety issues resulting from the acts of nature.
• Budgetary conditions within a jurisdiction which could not be remedied by the imposition or adjustment of solid waste fees. Examples include: high unemployment, a limited tax base, or existing solid waste contracts that cannot be altered.
• Work stoppages that directly prevent a jurisdiction from implementing its source reduction and recycling element. This may include unanticipated industry closures, closure of privately-owned composting or materials recovery facilities, strikes by city or county labor unions, or work stoppages in private industries that provide support and/or materials to a jurisdiction through a public-private partnership.
• The extent to which a jurisdiction has implemented additional source reduction, recycling, and composting activities to comply with the diversion requirements. This would include the implementation of programs not initially selected in the SRRE, but chosen to make up for an unanticipated diversion shortfall in a selected program or to adjust to meet changes in the composition of the jurisdiction’s waste stream.
• The extent to which a jurisdiction is meeting the diversion requirements.
• Whether the jurisdiction has requested and been granted an extension to the diversion requirements of PRC section 41780, pursuant to section 41820, or an alternative requirement to section 41780 pursuant to section 41785.
• The extent to which a jurisdiction has made good faith efforts to implement its SRRE or HHWE. "Good faith effort" is shown when a city, county, or regional agency has made all reasonable and feasible efforts to implement those programs or activities identified in its SRRE or HHWE, or alternative programs or activities that achieve the same or similar results. A jurisdiction will be required to demonstrate to the Board its good faith efforts. The Board will determine the adequacy of the effort, as described by the city, county, or regional agency.

Compliance Order and Schedule

Jurisdictions that are issued compliance orders by the Board will work with Board staff to develop compliance schedules for implementing the order.  Board staff will monitor the progress of the jurisdiction throughout the compliance period. In determining the appropriate compliance schedule, staff recommends that the Board consider the following:

1. Existing budgetary and/or personnel constraints or other compelling issues within the jurisdiction (for example, time required to solicit proposals, conduct bid processes, establish pilot programs, generate funding).
2. Alternative programs the jurisdiction may undertake to meet the diversion requirements and/or SRRE implementation requirements.
3. Local regulatory or zoning conditions that would prohibit or postpone compliance.
4. Impacts of the compliance schedule to public health and the environment.

Staff recommends that the Board include specific requirements in the compliance schedule to ensure compliance is attained, including, but not limited to, the following:

1. A date by which the jurisdiction will achieve compliance with the requirements set forth by the Board.
2. A specific monitoring schedule for the Board to assess progress toward compliance.

Time frames for monitoring a jurisdiction’s performance may include periodic (e.g., quarterly) progress reports of the jurisdiction’s efforts to attain compliance.

Penalty Structure

The Board may impose fines only after a jurisdiction fails to adhere to the compliance order and schedule requirements. Fines would be levied according to the cause of failure to adequately implement a SRRE and/or HHWE, as listed below. Staff will recommend to the Board an appropriate level of penalty, based on an analysis of the above-mentioned criteria.

1. "Serious" failure includes jurisdictions that fail to implement their SRRE or HHWE without reason or justification. The fine recommended for this type of violation would be no less than $5,000 and up to the maximum $10,000 per day.
2. "Moderate" failure includes jurisdictions that fail to implement their SRRE or HHWE due to mitigating circumstances that have no bearing on natural disasters, budgetary constraints, and work stoppages. Mitigating circumstances would be determined on a case-by-case basis by the Board. The fine recommended for this type of violation would be $1,000 to $5,000 per day.
3. "Minor" failure includes jurisdictions that have implemented some or all programs, but have failed to meet the diversion requirements to some extent. Fines will be based on information provided by jurisdictions as outlined in the above criteria for implementation, and on statutory relief considerations. Fines, if determined to be appropriate, will be decided by the Board on a case-by-case basis and would range from $1 to up to $1,000 per day.

Not withstanding the above penalty structure, if a jurisdiction demonstrates that it has made a good faith effort to implement its SRRE, including achieving the diversion requirements, the Board, on a case-by-case basis, shall not impose any penalties.

Removal of Penalties

Jurisdictions may only be fined after failing to adhere to the compliance order and schedule. Fines will continue until a jurisdiction has implemented the programs as outlined in the compliance order.

Conclusion

Board staff has prepared this report that explains the method and criteria staff recommends using to determine whether local jurisdiction SRREs and HHWEs have been adequately implemented.  It also proposes a process that the Board and local jurisdictions would use to achieve compliance with implementation requirements, and the structure of penalties that may be imposed on jurisdictions that fail to adequately implement their SRREs and HHWEs.

As approved by the Board on August 14, 2001.

Last updated: December 28, 2007