Report 2003-113 Summary - December 2003
California Integrated Waste Management Board:
Its New Regulations Establish Rules for Oversight of Construction and Demolition Debris Sites, but Good Communication and Enforcement Are Also Needed to Help Prevent Threats to Public Health and Safety
Our review of the California Integrated Waste Management Board (board) and local agencies' oversight of solid waste facilities found:
- The board had not finalized regulations for construction and demolition debris sites when a large fire broke out at the Archie Crippen Excavation Site (Crippen Site), which accepted construction and demolition waste in Fresno.
- The board's interim directions did not provide the local enforcement agencies (LEAs) with clear guidance on how to handle construction and demolition debris sites.
- Representatives of several agencies visiting the Crippen Site before the fire failed to cite and remediate conditions that ultimately made the fire difficult to suppress, raising concerns about public health.
- The board does not track "excluded" solid waste sites because regulations do not require it to do so.
- The board does not complete a review of each LEA every three years, as required by law.
- Through legal challenges to enforcement actions, solid waste facility operators can delay correction of identified problems.
RESULTS IN BRIEF
Through its oversight of the State's 240 solid waste landfill sites and facilities, the California Integrated Waste Management Board (board) helps protect the environment and public health and safety. The board certifies and works with local enforcement agencies (LEAs) to manage programs that oversee the reduction and proper handling of an estimated 66 million tons of solid waste each year in California. The board establishes regulations for handling many types of solid waste, and the LEAs enforce the regulations at the solid waste sites in their geographical areas.
However, when the board had not yet established regulations for one type of waste—construction and demolition debris—its interim directions for LEAs were not sufficiently clear, potentially putting public health and safety at risk. Thus, when a fire broke out in January 2003 at the Archie Crippen Excavation Site (Crippen Site), a site receiving construction and demolition waste in Fresno, firefighters faced large piles of waste material without adequate fire access lanes. The debris pile that caught fire covered five continuous acres and was over 40 feet high, creating smoke that threatened the health and safety of local residents. One month later, the combined efforts of local, state, and federal emergency response agencies finally contained the fire, which cost $6 million to suppress and clean up.
State law requires anyone who proposes to operate a solid waste facility, which includes a facility that processes and handles construction and demolition waste, to apply for a solid waste facility permit. Before August 2003 the board had not finalized regulations for construction and demolition debris sites. Pending final regulations, the board advised LEAs to follow its LEA Advisory #12 (advisory), but some questions exist about the advice. The board points to the advisory's statement that the advisory does not "preclude LEAs from accepting applications for a solid waste facilities permit," whereas the Fresno LEA followed other language in the advisory that "strongly encouraged [LEAs] not to accept applications for a solid waste facilities permit for materials and handling methods which are under evaluation." As a result, the Fresno LEA did not require a solid waste facility permit for the Crippen Site. Instead, the site operated under a conditional use permit from the city of Fresno and was subject to much less monitoring than required under a solid waste facility permit, which would have required the LEA to periodically inspect the site to ensure the operators' compliance with statutes, regulations, and the terms of their permits.
If the Crippen Site had obtained a solid waste facility permit, as regulations now require, periodic monitoring visits and enforcement actions would likely have prevented the accumulation of such a large debris pile and also required adequate emergency access. However, the city of Fresno Code Enforcement Division, the city of Fresno Fire Department, the Fresno LEA, and the board had visited the Crippen Site and observed the size of the debris pile. Because of questions about the board's interim directions for dealing with waste types that regulations did not yet cover, lack of communication between certain agencies that observed conditions at the Crippen Site, and the failure to cite those conditions, the problems at the Crippen Site were not remediated. The first phase of final regulations for construction and demolition debris sites and inert debris sites took effect August 2003.
The board's Solid Waste Information System database, which has detailed information on the LEAs' oversight of each facility with a solid waste facility permit and sites in the enforcement agency notification regulatory tier in the State, does not regularly record information about all waste sites in the excluded regulatory tier, which are not required to have solid waste facility permits. Further, not all LEAs track the existence of excluded sites. Operators of some sites are not required to notify their LEAs of their intent to operate nor are such operators required to submit an application for a solid waste facility permit. Such sites are covered in state law but are in the excluded tier of the regulations. If these sites grow or begin to receive other types of waste, they may require permits, but operators may decide not to inform the board or LEA. Potentially, such sites could pose a risk to public health and the environment without the board even knowing they exist.
The board not only establishes regulations but also certifies LEAs and monitors their operations to ensure that LEAs require solid waste facilities in their jurisdictions to comply with legal and regulatory requirements. The scope of the board's reviews is appropriate, addressing six compliance issues established in law, as well as ensuring that LEAs continue to comply with the terms of their certifications. However, the board does not complete a review of each LEA every three years, as required by law.
Even if regulations existed for all types of solid waste activities and the board and LEAs adequately monitored all facilities and initiated enforcement actions to correct identified problems, not every identified problem at solid waste facilities would be promptly corrected. Facility operators can successfully challenge LEAs' findings on an appeal, as well as in court, and may delay implementing corrective action or assessment of penalties.
To help protect public health and safety and the environment, the board should do the following:
- To ensure that sites are adequately monitored, the board should clarify the intent of the advisory for the currently known or newly identified nontraditional sites for which regulations are not yet in place.
- To meet the goals of the California Integrated Waste Management Act of 1989 (Waste Act) and improve regulation of solid waste, the board should complete and implement as promptly as possible its work on the second phase of regulations for construction and demolition debris sites, covering the disposal of the waste materials.
- When it determines that an LEA has inappropriately classified a site—for example, treating a composting site as a construction and demolition debris site—the board should work with the LEA to correct the classification.
- To ensure the enforcement community is aware of excluded operations that could potentially grow into a public health, safety, or environmental concern, the board should require, pursuant to the Public Resources Code, Section 43209(c), LEAs to compile and track information on operations in the excluded tier. To track this information, each LEA should work with its related cities and counties to develop a system to communicate information to the LEA about existing and proposed operations in the excluded tier with the potential to grow and cause problems for public health, safety, and the environment. For example, cities and counties might forward to LEAs information about requests for conditional use permits, revisions to current conditional use permits, or requests for new business licenses. We are not suggesting that the LEA track all operations in the excluded tier—for example, backyard composting or disposal bins located at construction sites. In addition, the board should require LEAs to periodically monitor operations in the excluded tier to ensure they still meet the requirements for this tier. Finally, in its triennial assessments of each LEA, the board should review the LEA's compliance with these requirements regarding excluded sites.
- To comply with existing law, the board should complete evaluations of LEAs within the three-year cycle. If that is not feasible, the board should propose a change in law that would allow a prioritization system to ensure that it at least evaluates LEAs with a history of problems every three years.
The Legislature may wish to consider amending the current provisions of the Waste Act that allow a stay of an enforcement order upon the request for a hearing, and to streamline or otherwise modify the appeal process to make it more effective and timely and enhance the ability to enforce the Waste Act.
The board, the county and city of Fresno, and the county and city of Sacramento generally agree with our recommendations and have indicated that they are either considering or already taking steps to address our recommendations. In addition, these entities have provided additional perspective and context for the report.