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HomeMy WebLinkAbout1994/08/09 Item 15 Item Meeting Date /..5' COUNCIL AGENDA STATEMENT 8/9/94 SUBMITTED BY: REPORT Update Consideration Enforcement certification Deputy city Manager KremPI;;~ ~ ~ Principal Manageme~)~SSis~~nt Snyder~ City ManagerJi ~~4/5ths Vote: Yes_ No-.JL) lJ ~ Council Referral #2899 of Solid Waste Issues of City's options for Agency (LEA) Designation and Local and TITLE: REVIEWED BY: Under AB939, cities are required to designate a certified LEA to handle all of the solid waste permitting and enforcement needs within the cities' boundaries. The City of Chula vista's currently designated LEA is the County Department of Health Services (DHS). The city now has a potential interest in building a solid waste transfer station within the City limits for the purpose of sending waste to a landfill other than those in the nearby County-owned system. This report explains the city's options with regard to changing the current designation, discussing them in terms of pros, cons and estimated costs. RECOMMENDATION: Direct staff to: 1) prepare and issue a Request For Proposals (RFP) for ~ "c" (transfer and processing stations, materials recovery facilities, and composting facilities) permitting and enforcement services from a qualified LEA, and 2) report back within 60 days with specific recommendations to include: a) evaluation of proposals and viability of executing a contract with another LEA, b) withdrawal notice for the current designation, and c) status report on the future schedule for being able to pursue LEA certification based on the transfer station should the City so desire. BOARD/COMMISSION RECOMMENDATION: Not applicable. DISCUSSION: Backqround The permitting and enforcement requirements overseen by an LEA as outlined in AB939 range from active and inactive landfill sites to transfer stations, vehicle inspection at hauler sites and inspection of solid waste storage facilities. If a city has a solid waste facility within its jurisdiction and establishes a specially dedicated and qualified staff, equipment and work plan, it can apply for LEA certification. Otherwise, the city must designate another jurisdiction that has LEA certification. As indicated above, Chula vista designated the County DHS. Each city If.,/ Page 2, Item Meeting Date 8/9/94 If and county have been required since 1991 to have desiqnated a certified LEA to be the enforcement agency for that particular jurisdiction. General Information About LEAs Attachment A is a list of common questions regarding LEA designations and certifications. This ~s a list especially tailored to Chula vista's situation and based on an original set of questions prepared by the California Integrated Waste Management Board (Waste Board) for statewide distribution in 1991. Where appropriate, it lists applicable legal references and addresses basic questions about definitions, options, and requirements such as: o What is an LEA? o Why is it necessary to have an LEA? o How is an LEA "designated"? o How does the City change its current designation? o What is "certification"? o Can Chula vista designate itself and become certified as an LEA? o What is meant by "jurisdiction"? o Can Chula vista contract with a neighboring LEA for services? o Are there any other local options for LEA formation? WhY Consider Chanqinq the LEA Desiqnation? As outlined in Attachment A, the City has a right to withdraw its current designation at any time but must then designate an acceptable replacement. The primary question that is being raised at this time is whether the City should pursue certification and self-designation. This is a timely question because the City plans to have a more active role in solid waste management responsibilities and is moving ahead on a course of action which could sever the city's ties to the County solid waste system within 18 to 24 months. It is clear under the law, and appears validated by contacts with customers of the County LEA outside the County Solid Waste Division, that the County DHS functions in the LEA role as an arm of the State. However, the city may prefer to strengthen 'the perception that the LEA services the City receives are completely independent and autonomous from the County. Assuming the City wants to disassociate from the County, the designation should probably be changed. The City'S options for LEA services include self-designation, contracting with another LEA, or choosing the State to act as the city's LEA. The pros and cons are discussed below. 15",2 Page 3, Item Meeting Date 8/9/94 if certification and Self-Desiqnation The prospect of Chula vista becoming a certified LEA at this time and then self-designating would provide the city with the most amount of control over the regulation of the transfer station and other solid waste facilities within the city limits. However, this option has the following challenges: o Timing-- city could not receive Tvpe "C" certification (for transfer stations, materials recovery facilities and composting facilities-- see page 2 of Attachment A) until the city has conducted environmental review and approved a C.U.P. for the transfer station, probably 6 to 9 months from now. o Commitment-- LEA certification and self-designation would be appropriate if the commitment is made to construct the transfer station, a decision which possibly would be made at a date later than the 6 to 9 months needed for the C.U.P. If no transfer station is constructed, LEA certification is unnecessary. o Resources-- The requirements include qualified staff (minimum of one full staff year Registered Environmental Health specialist, per Title 14 California Code of Regulations 18072) and adequate budgetary resources are very specific, such as vehicle, health and safety protection equipment, monitoring and testing materials, training, in addition to technical expertise to prepare acceptable work plans and reports and independent legal counsel for enforcement actions, if necessary. o Cost-- An estimate of $80,000 for first year costs for salary ($50,000) and benefits ($15,000), vehicle, safety equipment and monitoring material costs ($15,000), as well as additional unknown costs for technical consulting and independent legal counsel; these costs could be paid through the user (tip) fees at the transfer station once it was operating but would require upfront funding initially. o pOlicy-- A decision to pursue Tvpe "A" certification for landfill permitting and enforcement (instead of Tvpe "C"- for transfer stations) in order to completely take back DHS services currently being given at the otay Landfill would trigger a need for resolution of the city's differences of opinion with the County with regard to the landfill's C.U.P. status. The otay Landfill physically rests within two jurisdictions and the State expects agreements about jurisdictional authority to avoid conflicts over permitting and enforcement. This is an untested situation and it is unclear what position the State might take on the City's re-designation request if the city and the County were not able to reach agreement. 15" J Page 4, Item Meeting Date 8/9/94 If Contractina with Another LEA Another option is for the city to contract with a jurisdiction other than the County DHS that is already a certified LEA. This option would allow the City to move away from the County relationship more quickly and easily than pursuing self- designation. It also would have much less cumbersome ongoing responsibilities than self-designation. These are some of the currently known factors to consider about contracting: o Timing-- A change in designation to a qualified LEA requires a minimum of 90 days withdrawal notice to the state. During this time the contract can be prepared between the City and the selected LEA, and the selected LEA can prepare 'and submit the required workplan changes to the state, redefining its role to include oversight of Chula vista. o Resources-- The contract LEA would have the responsibility for hiring and maintaining adequate resources to meet the workload needs. o Cost-- Early estimates indicate contract LEA services may cost from $.15 to $.20 per ton of material processed through the transfer station. On an estimated 175,000 tons per year planned for the City's transfer station, the cost could be $25,000 to $35,000 a year. This is a preliminary estimate and refined costs could be obtained through an RFP process. Desianatinq the state This option is not considered desirable because it results in a lack of local control. It is not recommended for any further consideration unless Council so directs. Conclusions At this time, the staff recommendation is to put the certification and self-designation strategy "on hold" until more information is known about the viability of contracting with another LEA, the transfer station development timetable, and future decisions with regard to construction. The City has the right to pursue certification and self-designation at a later date. If, however, it is the Council's desire to pursue a strategy of certification at this time, it is strongly recommended that the certification be limited to a Type "c" level and that efforts be made to gain concurrence from the County DHS regarding the City's desire to exclude from the territorial limits being used for the LEA certification that portion of the Otay Landfill within the city limi ts. 15--7' page 5, Item Meeting Date 8/9/94 1/ The preferred recommendation is to determine the viability and potential cost of contracting with another LEA by issuing an RFP. It is estimated that the RFP can be prepared, issued and the results evaluated within 45 to 60 days. The RFP process would be a relatively simple request for information such as an outline of available services, credentials and Waste Board certification, rate structure, ability to handle a long-distance client relationship, references, etc. It is envisioned that the RFP could be handled by existing City staff and the City's solid waste consultant using time and funds available under the current contract. The issue will be brought back to Council for further action after evaluation of the proposals. An RFP process will enhance the city's decision-making position in this somewhat complex and untested area. It is also recommended that the city reserve judgement on issuing a notice of withdrawal of the current LEA designation until the proposal results are available and a definitive course of action is determined. Finally, proceeding in the manner recommended by staff will not impact the overall transfer station planning and process currently underway with Sexton. FISCAL IMPACT: There is no new City cost as a result of the action recommended in this report to issue an RFP. Although the purpose of the staff recommendation is to produce accurate costs for LEA services which the city will require at a transfer station, it is estimated that annual costs paid to an LEA and charged through the tip fees could be approximately: o $80,000 for city certification and self-designation o $25,000 - $35,000 for contracted services with another LEA It is also noted that the fees for LEA services to be paid by Sexton during the transfer station development phase are included in the negotiated contract amount based on the expected "contract services" level ($25,000 - $35,000), independent of which LEA is the recipient. /5-...> //5-{, Attachment A COMMON QUESTIONS REGARDING LEA DESIGNATIONS AND CERTIFICATIONS u!.!! t3l$#n;;~l\~ An LEA is defined as a local enforcement agency with certification(s) from the California Integrated Waste Management Board. As an operatina bodY. it is totallY separate from the local aovernina bodY. An LEA is a comprehensive solid waste management agency which performs enforcement, inspection, and permitting duties for handling permitted, closed, abandoned, exempt, illegal, and inactive solid waste facilities. An LEA is solely responsible for carrying out solid waste management in its jurisdictions as defined in the California Code of Regulations (CCR) and Division 30 of the Public Resources Code (PRC). Upon certification by the Waste Board, an LEA is considered an agent of the State. Reference: 14 CCR 18011(a) (14) (15), PRC 40150 & 40195 Uoo~i~~i!1!s~ili!~Foo~e~~lti~nl!~~ It has been important for the pUblic's health to have an agency ensuring that minimum standards for solid waste handling and disposal are met. In 1989, The California Integrated Waste Management Act (AB939) required that local jurisdictions designate a sinale LEA to make those decisions. This was a change from the prior law under which a city was able to designate itself as a co-LEA and take responsibility for non-health-related matters such as litter control, and typically the local health department acted as the LEA for all health-related issues. The main intent in the change in law was to avoid potential conflicts among two agencies with certain enforcement authority within the same jurisdiction. H.9K~i!ff!i~~~!~ji~~ff~~!1!~!~~ A local agency is desianated as an enforcement agency by any one of a number of procedures. The procedure which is most appropriate to Chula vista is that the City Council may designate the enforcement agency for the city. In accordance with State regulations, the City designated the County Department of Health Services to serve as the City'S LEA on 1/14/92. That designation will remain in force until such time as the city takes proper steps to make a different designation of a qualified LEA to act on the City'S behalf, and that new designation is approved by the Waste Board. I;::' ? 2 The process for designation requires the completion of several specific documents which are forwarded to the Waste Board as a Designation Information Package (DIP). If the DIP is properly completed and accepted, both the city and the LEA are notified. The designated LEA must then prepare and submit to the Waste Board an Enforcement Program Plan (EPP). The EPP is the certification request for the LEA. If the EPP is complete and accepted, the Waste Board can be expected to review and approve it if it is determined that the designated LEA meets the certification requirements for the certification(s) requested. Reference: 14 CCR 18011(a) (13), 18051, 18054, 18076, 18077 & Article 2.1 R9W!~g~~~tli~Rffi~Yip~~p9:~........WF~SP;P;~P~~~~.~.~P~~WBR~ While no approval of the Waste Board is necessary to withdraw the current designation for the City's LEA (DHS) , the Board must approve the new designation. Notice of the withdrawal is to be given to the state a minimum of 90 days from the effective date of the withdrawal. The regulations also give certain conditions under which the state will become the LEA if the City withdraws its current designation and fails to follow-up in a timely manner with designation of a certified, acceptable new LEA. Reference: 14 CCR 18056. Klj~!lii~ .....~lp.j;~!~1ip!!;,;1is#M? In addition to the fact that the City must designate an LEA to act on its behalf (even if it designates itself), the designated LEA must be certified by the Waste Board in one or more types of certification which are based on facility type. The first three types of certification require permittinq. inspection and enforcement of requlations at the following: Tvpe "A": solid waste disposal sites, i.e. landfills; Tvpe "B": solid waste transformation facilities, i.e. waste-to-energy plants; and Tvpe "C": transfer and processing stations, materials recovery facilities, and composting facilities. The last type of certification (Tvpe "D") requires inspection and enforcement of litter. odor and nuisance requlations at solid waste landfills. /5'-y 3 Reference: PRC section 43200, et seq., 14 CCR 18071, and Articles 2.1 & 2.2. i:lanp);!B~~!Y:!!~~e5~~~~~~~ffi~~5!!!n~8~gB!\\5g5E~~!~5~!~.!a~j;I~ A local jurisdiction must designate an LEA. It can also become certified (and then designate itself) if it has a solid waste facility within its jurisdictional boundaries, and is willing to meet the State's strict regulatory requirements regarding staffing, technical expertise, etc. The type of certification requested is determined by the type of solid waste facility upon which the certification request is based. Although the otay Landfill is partly within the city limits, applying for a Tvpe "A" certification at the "landfill level" would be expected to require the city to resolve its jurisdictional issues with the county prior to getting approval from the Waste Board. In addition, since this is the most complex level of certification, the City's commitment to this certification would be the most difficult and the most costly. However, the planned transfer station could be used as a basis for application for certification of the Tvpe "c" level at the point that the environmental review is complete and the Conditional Use Permit has been issued on the pro;ect. certification at this point would give the City's LEA responsibility for all transfer and processing stations, materials recovery facilities and composting facilities within Chula vista. It is noted, however, that, in order to pursue this type of certification, the City may have to report that portion of the otay Landfill within the city limits as an exception to Chula vista's territorial jurisdiction for these purposes. This action, if acceptable to the Waste Board, would create a situation whereby the County Health Department would continue to be the LEA for the landfill activities within Chula vista and the City would be the LEA for all the previously described transfer and processing station activities. Chula vista's situation is untested with regard to LEA designation and certification. Based on preliminary discussions with Waste Board staff, the approach outlined above is likely to require some degree of concurrence by the County's DHS. The Waste Board is willing to assist the city in addressing the issue. There is also the possibility that, ultimately, the Waste Board may not approve a plan which has two LEA's operating in Chula vista because it is not consistent with the original intent of the 1989 change in law. /.>-- '7 4 Wl1g'liiffi!'!m~~R~~![~HEffi~}1iq~ffigp.[!.~. For the purposes of LEA designation and certification, a jurisdiction is defined in the DIP by the designating local governing body, the Chula vista city Council. The interest currently expressed by the city council indicates that the jurisdiction is likely to be Chula vista's territorial boundaries, perhaps with the exclusion of that portion of the otay Landfill which is within the city limits. However, if the City were so interested, the jurisdiction could be more than one city (Chula Vista) or a joint powers jurisdiction. ~ing~H~~.'M~~~iAgP.~E~g~Mi~fii~~i@j1!9Nip.~:B~~~gF~~mriiA~~g Yes, the city can designate an LEA to perform its regulatory functions. In fact, the city has currently designated the County Department of Health Services and the services are paid through the tipping fee at the County's landfills. However, the LEA designation does not require that the designation be tied to the City's geographic location. The City could choose to designate another certified LEA within the state, paying for services by contract. The cost of the services would be paid by the transfer station developer (and/or operator) and would be charged through the user (tip) fees at the transfer station. If another LEA is designated, that agency must then submit a modification of its current Enforcement Program Plan (EPP) to the Waste Board to reflect the additional territory, Le. Chula vista, for its jurisdiction and any items necessary to complete the additional workload such as staffing, budget, etc. The modified EPP must be approved by the Waste Board with respect to the proposed changes and the additional designation. It is noted, however, that a contract with another LEA for transfer station services only (Tvpe "C" certification) may also require some degree of concurrence with the County DHS as was discussed on page 3 of this attachment under the topic of "Can Chula vista designate itself and become certified as an LEA?" Reference: 14 CCR 18050. ~F:R~~tt~~~*9~fi~tt~Be~~9PR~9P.~~9~~~~~9~~~~Bn~ The City could designate the Waste Board as its LEA and pay for the state's services under contract. Jf"'/~