HomeMy WebLinkAboutMINUTES - 05121998 - D9 Ta: BOARD OF SUPERVISORS -+ Gutta pq
William B. Walker, M.D., Director -' costa
Department of Health Services
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DATE: May 1 , 1998
Set hearing date and determine hearing panel for City of Pittsbures
MWICT: Appeal of Environmental Health(LEA)decision re: Nickel Oxide
Catalyst disposal at Keller Canyon Landfill
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RECOMMENDATIONS:
(1)Determine whether the composition of the Solid Waste
Hearing Panel should be three members of the Board of Supervisors or
an independent bearing panel;and
(2)In accordance to Section 44310 of the Public Resources
Code, set July 22, 1998 as the hearing date for the appeal submitted
by the City of Pittsburg relative to the Feller Canyon Landfill.
FISCAL IMPACT: If the Board appoints an independent hearing
panel, Section 44308 of the Pubfic Resources Code states that
"Members of the hearing panel may receive per diem and necessary
expenses while conducting the hearing." If the Board elects to
appoint an independent hearing panel, the Department recommends that
County policy on per diem and necessary expenses be followed.
BACKGROUND/REASONS FOR RECOMMENDATIONS:
The Environmental Health Division, Department of Health
Services, was last certified and designated as the Local Enforcement
Agency(LEA)by the California Integrated Waste Management Board
(CIWMB)on July 16, 1992.
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The Board of Supervisors discussed the above matter and took the following
action: DETERMINED that the composition of the Solid Waste Hearing Panel
will be three members of the Board of Supervisors ; and SET 'July 22 , 1998 ,
as the hearing date for the appeal submitted by the City of Pittsburgfrom
the Environmental Health (LEA) decision regarding Nickel Oxide Catalyst
disposal >at Keller Canyon Landfill .
V Ti Of ti PINVOORf
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Ken Stuart-646-5225 AT"M MD May 12 , 1998
n a l t h Services PHIL•ATC+M0A.CLERK Of THE 0000 OF
i r o n m e n t a l Health WERVIWRs AND COUNTY Ap MISTRATOR
sr .DEPUTY
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Keller Canyon Landfill
Page 2
As LEA, the Division is responsible for
reviewing permit applications for compliance with regulatory
requirements, approving a permit and referring the permit to the
CIWMB for concurrence, and enforcing the regulatory requirements
imposed on the permitted facility by Section 43209 of the Public
Resources Code. If the LEA takes an enforcement action, Section 44307 of the
Public Resources Code specifies that the person subject to the action
has the right to request a hearing. The Section also states that,
"The enforcement agency shall also hold a hearing upon a petition to
the enforcement agency requesting the enforcement agency to review an
alleged failure of the agency to act as required by law or
regulation."
On April 28, 1998, the LEA received a petition from the City
of Pittsburg(copy attached)requesting a hearing, claiming that the
LEA failed to act as required by law in connection with the LEA's
decision not to require removal of three drums of nickel oxide
catalyst from the Keller Canyon Landfill.
Set date for Hearing:
Public Resources Code section 44310 requires that within 15
days of receipt of a request for a hearing,the LEA must provide
written notice of the date of such hearing. The LEA recommends that
the hearing be set for July 22, 1998, at 10:00 a.m., in the Chambers
of the Board of Supervisors. Other possible dates provided by the
Clerk of the Board include: July 29, August 5, 19 and 26, 1998.
Composition of Hearing Panel:
The hearing must be held before a hearing panel of either:
(1) Three members of the Board appointed by the Board; or
(2) An independent hearing panel of three persons appointed
by the Board chair. If an independent hearing panel is to be
appointed:
A. Not more than one member of the Board may be on
the panel.
B. Members shall be selected on the basis of their
legal, administrative or technical expertise in areas relating to
solid waste.
C. At least one member shall be a technical expert
with knowledge of solid waste management methods and technology.
D. At least one member shall be a representative of
the public at large.
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Kelley Canyon Landfill
Page 3
If the Board chooses to appoint an independent hearing panel,
the Public Resources Code does not specify the process. At the
Board's direction, the Department of Health Services will be
responsible for the solicitation of panel member candidates.
Responses from interested citizens could be submitted to the Health
Officer. The Health Officer can review the applicants'
qualifications, and submit the names of a specified number of
candidates to the Chair of the Board of Supervisors for selection and
appointment. If the Board elects to have an independent panel
appointed by the Chair, a later hearing date would be recommended.
The Department recommends that the Board determine at this
time whether the hearing panel is to be three members of the Board,
or an independent bearing panel.
Attachments: Hearing Request from City of Pittsburg
Solid Waste Hearing Panel Descriptor
City of Pittsburg
Civic Canter P.O. Sox 1518 • Pittsburg,California 94565
Via Personal.Delivery
April 28, 1998
Kenneth Stuart, Director of Environmental Health
Environmental Health Division, Solid Waste Unit
Local Enforcement Agency
Contra Costa County
2120 Diamond Boulevard, Suite 200
Concord, California 94520
Re: Keller Canyon Landfall/Petition For Hearing
Dear Mr. Stuart:
The City of Pittsburg hereby petitions the enforcement agency to hold a
hearing to review its failure to act as required by law or regulation regarding the
agency's written decision dated April 14, 1998 to refuse to require the removal of
55 gallon drums of nickel reformer catalyst illegally disposed of at the Keller
Canyon Landfill. This material is a known carcinogen which according to
applicable law is a hazardous waste which may not be accepted for disposal at the
Keller Canyon Landfill. The City's request is made pursuant to Public Resources
Code § 44307, et seq.
The City objects to the LEA's decision to essentially do nothing
regarding the illegal disposal of hazardous wastes at the Keller Canyon Landfill.
The LEA has failed in its obligation to protect the health, safety and welfare of the
County's residents. Pittsburg's citizens were assured when the landfill was
approved by the County that measures would be taken to ensure that no hazardous
wastes were disposed of at the landfill In this case, not only were illegal hazardous
wastes accepted, but this fact was never discovered by the operator; it was the
generator of the waste that essentially "turned itself in" over three months later.
Cahfomia Heakhy Cities Project
National Center for Mic Productivity Exemplary Aumd - I993
City of New Horizons
''Ill.,...I.......I.............................................................................................................................................................................................
....................................................................................
Insufficient steps have been taken by the LEA to ensure that additional incidents of
illegal dumping of hazardous wastes do not reoccur at the landfill. Nor have any
satisfactory steps been taken by the LEA to investigate whether others have illegally
dumped hazardous wastes at the Keller Canyon Landfill in the past.
The City was also guaranteed during the County's approval process
that should any illegal disposal occur that the hazardous wastes would be removed.
The Franchise Agreement between the landfill operator and the County requires that
"in the event that unacceptable waste is deposited at the site, it shall be handled and
removed by Operator." (Franchise Agreement, Article 4, Performance of Operator,
Section 4.4, Unacceptable Waste, emphasis added.) The LEA has no right to
exempt or waive this requirement which is part of its solid waste facilities permit
(section on conditions, Requirement No. 2). Despite this clear pledge, the LEA has
instead disclaimed any authority to become involved in this critical issue.
The LEA has also impermissibly placed cost savings to the landfill
operator above the public health. The record discloses that both nickel catalyst
samples submitted, including one using the landfill's leachate, exceeded the
applicable State STLC limits. All parties agree that the nickel reformer catalyst
illegally disposed will only increase this existing exceedence.
Within 15 days from your date of receipt of this petition, please
provide the City with written notice of the date, time and place of the hearing on this
matter. In setting the hearing date, the City would request ample time to prepare its
written "statement of the issues that require a hearing," which by Code must be
filed at least 20 days prior to the hearing.
Very truly yours,
Jeffrey C. Kohn,
City Manager, City of Pittsburg
cc: Secretary, Contra Costa County Board of Supervisors
Members, Contra Costa County Board of Supervisors
SOLID WASTE HEARING PANEL
Lase: Conduct hearings acting as,or on behalf of,the enforcement agency on the issues
identified in the Public Resources Code, such as permit issuance, suspension,;revocation and
enforcement. The decision is final unless appealed to the California Integrated Waste
Management Board.
Enforcement Armen,Hearings,Hering Panel Appointments; mber Qualifications-Pavrnent
of Expenses: Section 44308 of the Public Resources Code states the following:
(a) "All hearings conducted pursuant to this chapter by the enforcement agency shall be
conducted by a hearing panel appointed pursuant to either of the following procedures:
(1)The governing body may appoint three of its members as the hearing panel.
(2) The chairperson of the governing body may appoint an independent hearing panel consisting
of three members.
(b)(1) If an independent hearing panel is appointed pursuant to paragraph(2)of subdivision(a),
not more than one member of the governing body shall serve on the hearing panel.
(2)Members of the independent hearing panel shall be selected for their legal, administrative, or
technical abilities in areas relating to solid waste management.
(3)At least one member of the independent hearing panel shall be a technical',expert with
knowledge of solid waste management methods and technology.
(4)At least one member of the independent hearing panel shall be a representative of the public
at large.
(5) A member of an independent hearing panel shall serve for a term of two years, and may not
serve more than two consecutive terms.
(6)If a member of an independent hearing panel does not complete the member's term,the
chairperson of the governing body shall appoint a replacement to serve out the remainder of the
unexpired term.
(c)Members of the hearing panel may receive per diem and necessary expenses while
conducting the hearing."
Set ction of Panel Members: If the Board chooses to appoint an independent hearing panel,the
Public Resources Code does not specify the process. The Department of Health Services is
willing to be responsible for the solicitation of panel member candidates. Responses from
interested citizens could be submitted to the Health Officer. The Health Officer can review the
applicants' qualifications, and submit the names of a specified number of candidates to the Chair
of the Board of Supervisors for selection and appointment.
PUBLIC RESOURCES CCM)
§44308 SOLID WASTE FACILITIES
§ 44308. Appointment of hearing panel §
(a) All hearings conducted pursuant to this chapter by the enforcement T
agency shall be conducted by a hearing panel appointed pursuant to A
either of the following procedures: f(
(1) The governing body may appoint three of its members as the hear-
ing panel. d
(2) The chairperson of the governing body may appoint an independent
hearing panel consisting of three members. it
(b) (1) If an independent hearing panel is appointed pursuant to
paragraph (2) of subdivision (a), not more than one member of the f
governing body shall serve on the hearing panel.
(2) Members of the independent hearing panel shall be selected for their l
legal, administrative, or technical abilities in areas relating to solid
waste management. f
(3) At least one member of the independent hearing panel shall be a
technical expert with knowledge of solid waste management methods
and technology. i
(4) At least one member of the independent hearing panel shall be a {
representative of the public at large.
f (5) A member of an independent hearing panel shall servefor a term
4 of two years, and may not serve more than two consecutive terms.
i (6) If a member of an independent hearing panel does not complete the
member's term, the chairperson of the governing body shall appoint a
replacement to serve out the remainder of the unexpired term.
(c) Members of the hearing panel may receive per diem and necessary
expenses while conducting the hearing.
Added Stats 1995 ch 952 §32 (AB 59), effective October 16, 1995.
Historical Derivation:
i (a)Former Pub Res C§44800,as added Stats 1989 ch 1095 §22,amended Stats 1990 ch 1355
§40, Stats 1991 ch 717 §31.
(b) Former Pub Res C §44801, as added Stats 1989 ch 1095 §22.
Cross References
Solid waste facilities: Pub Res C §§43000 et seq.
§ 44309. Conduct of hearing by panel
All hearings conducted by the board pursuant to this chapter, acting
as, or on behalf of, the enforcement agency, shall be conducted by a
hearing panel of three board members selected by the chairperson of
the board.
Added Stats 1995 ch 952 §32 (AB 59),effective October 16, 1995.
Historical Derivation:
Former Pub Res C §44801, as added Stats 1989 ch 1095 §22.
Cross References
Solid waste facilities: Pub Res C §§43000 et seq.
660
PLJ LICRESOURCES CODE
i#
§44308 SOLID WASTE FACILITIES
§44308. Appointment of hearing panel §
(a) All hearings conducted pursuant to this chapter by the enforcement T
agency shall be conducted by a hearing panel appointed pursuant to A
either of the following procedures: fc
(1) The governing body may appoint three of its members as the hear- (a
ing panel. ht
(2) The chairperson of the governing body may appoint an independent di
hearing panel consisting of three members. ix
(b) (1) If an independent hearing panel is appointed pursuant to G
paragraph (2) of subdivision (a), not more than one member of the rb
governing body shall serve on the hearing panel fi
(2) Members of the independent hearing panel shall be selected for their h
legal, administrative, or technical abilities in areas relating to solid V
waste management, p
(3) At least one member of the independent hearing panel shall be a
technical expert with knowledge of solid waste management methods
and technology.
(4) At least one member of the independent hearing panel shall be a r.
representative of the public at large.
(5) A member of an independent hearing panel shall serve for a term $
of two years, and may not serve more than two consecutive terms.
(6) If a member of an independent hearing panel does not complete the r
members term, the chairperson of the governing body shall appoint a r
replacement to serve out the remainder of the unexpired term. `
(c) Members of the hearing panel may receive per diem and,necessary `
expenses while conducting the hearing.
Added Stats 1995 ch 952 §32 (AB 59),effective October 16, 1995.
Historical Derivation:
(a)Former Pub Res C§44800,as added Stats 1989 ch 1095 §22,amended Stats 1990 ch 1355
§40, Stats 1991 ch 717 §31.
(b) Former Pub Res C§44801,as added Stats 1989 ch 1095 §22.
Cross References:
Solid waste facilities: Pub Res C §§43000 et seq.
§ 44309. Conduct of hearing by panel
All hearings conducted by the board pursuant to this chapter, acting
as, or on behalf of, the enforcement agency, shall be conducted by a
hearing panel of three board members selected by the chairperson of
the board.
Added Stats 1995 ch 952 §32 (AB 59),effective October 16, 1995.
Historical Derivation:
Former Pub Res C §44801, as added Stats 1989 ch 1095 §22.
Cross References:
Solid waste facilities: Pub Res C §§43000 et seq.
660
PERMITS AND INSPECTIONS §44502
§ 44320. Request for hearing; Notice; Provisions governing procedure;
Time period to issue decision
All hearings conducted pursuant to this chapter shall be based on the
following procedures:
(a) (1) The hearing shall be initiated by the filing of a request for a
hearing by the person subject to the action within 15 days from the
date that person is notified, in writing, of the enforcement agency's
intent to act in the manner specified.
(2) The enforcement agency shall, within 15 days from the date of
receipt of a request for a hearing, provide written notice to the person
filing the request notifying the person of the date, time, and place of the
hearing, and requiring the person to provide the enforcement agency
with a statement of the issues that require a hearing, at least 20 days
prior to the date of the hearing.
(3) if that person fails to request a hearing or to timely file a statement
of issues, the enforcement agency may take the proposed action without
a hearing or may, at its discretion, proceed with a hearing before tak-
ing the proposed action. .,t(.
(b) The hearing shall be held on the merits of the issues presented, in
accordance with the procedures specified in Sections 11507 to 11.517,
inclusive, of the Government Code.
(c) Within 30 days from the date of the hearing, the hearing panel shall
issue its decision. The decision shall become effective as provided in r'
Section 45017.
Added Stats 1995 ch 952 §32 (AB 59),effective October 16, 1995.
Historical Derivation:
Former Pub Res C §44814, as added Stats 1989 ch 1095 §22.
Cross References:
Solid waste facilities: Pub Res C §§43000 et seq.
§ 44500. [Section repealed 1995.)
Added Stats 1989 ch 1095 §22. Repealed Stats 1995 ch 952 §31 (AB 59), effective October
16, 1995. See Pub Res C§44306. i
§ 44502. [Section repealed 1995.] f?
Added Stats 1989 ch 1095 §22. Repealed Stats 1995 ch 952 §31 (AB 59), effective October j
16, 1995. The repealed section related to filing of accusation.
r
§ 44502. [,Section repealed 1995.]
Added Stats 1989 ch 1095 §22. Repealed Stats 1995 ch 952 § 31 (AB 59), effective October
16, 1995. The repealed section related to service of accusation.
661
Health Services Department
ontre' 1 ENVIRONMENTAL HEALTH DIVISION
Costa
v 2120 Diamond Blvd., Suite 210
Co l Concord, California 94520
510 646-5225
May 14, 1998 RECEIVED
MAY 15 7998
Jeffre'Kohn Ci Manager CLERK BOARD CF: viii lr
CONTRA COSTA-60,
City of Pittsburg
2020 Railroad Avenue
P.O. Box 1518
Pittsburg, CA 94565
Re: Notice of July 22, 1998 Hearing-- Statement of Issues
Dear Mr. Kolin:
The hearing on your April 28, 1998 petition alleging that the Contra Costa County Health Services
Department,Environmental Health Division(EA)failed to act as required by law or regulation has
been scheduled for hearing before a hearing panel on July 22,1998 at 10:00 a.m. in the Chambers
of the Contra Costa County Board of Supervisors, 651 Pine Street, Martinez, California.
Please be advised that pursuant to Public Resources Code,Section 44310,a statement of issues must
be received by the EA at 2120 Diamond Boulevard, Suite 200, Concord, CA 94520 no later than
July 2, 1998 (twenty days prior to the hearing date). The statement of issues should identify each
law and regulation in question and set forth how the EA failed to act as required by such law or
regulation. We recommend that the statement of issues be timely filed and be sufficiently
particularized to avoid any argument the EA should not hold a hearing.
Sincerely,
4enneth Stuart, M.S.E.H., R.E.H.S.
Director of Environmental Health
cc: Members, Board of Supervisors
William B. Walker, M.D., Health Services Director
Phil Batchelor, County Administrator
Lillian Fujii, Deputy Counsel
Clerk of the Board of Supervisors
Attn: Jeanne Maglo, Chief Clerk.
A3738(9/97)