Relief for California Local Jurisdictions Unable to Meet Deadline to Implement Organic Waste Diversion Regulations
Governor Signs SB 619 Into Law
Local jurisdictions (cities, counties and special districts) that fail to adopt enforceable mechanisms to divert organic waste from landfills in accordance with SB 1383 regulations before Jan. 1, 2022 will now be able to seek relief from administrative civil penalties, because Gov. Newsom signed SB 619 yesterday.
What Violations Result in Penalties?
Under the SB 1383 regulations, if a local jurisdiction fails to adopt enforceable mechanisms (ordinances, franchise agreements, etc.) to implement the SB 1383 regulations by Jan. 1, 2022, the California Department of Resources Recycling and Recovery (CalRecycle) can impose administrative civil penalties against the jurisdiction. Penalties vary based on the severity of the violation. Violations that substantially deviate from the SB 1383 regulations are considered to be major and will result in penalties between $7,500 and $10,000 per violation per day.
Major violations may include violations that are knowing, willful or intentional, or chronic violations. Specific major violations by a jurisdiction include:
- Failure to have any ordinance or similar enforceable mechanism for organic waste disposal reduction and edible food recovery
- Failure to have a provision in a contract, agreement or other authorization that requires a hauler to comply with SB 1383 regulations
- Failure to have an edible food recovery program
- Failure to have the required SB 1383 implementation records
- Implementation or enforcement of any ordinance, policy, procedure, condition or initiative prohibited by SB 1383 regulations
- Failure to submit reports to CalRecycle regarding its implementation and compliance with SB 1383 regulations
How to Qualify for Relief from Penalties
In order to qualify for relief from penalties for minor, moderate and major violations as defined in 14 CCR § 18997.3 for the 2022 calendar year, a local jurisdiction must submit a notification of its intent to comply with the SB 1383 regulations to CalRecycle before March 1, 2022.
How to Submit a Notification of Intent to Comply
To submit a notification of intent to comply, the local jurisdiction’s governing body must adopt a resolution adopting the notification of intent to comply in writing and file it with CalRecycle by March 1, 2022. The local jurisdiction must include:
- A description, with specificity, of the continuing violations;
- A detailed explanation of the reasons, along with supporting documentation, why the local jurisdiction is unable to comply with the SB 1383 regulations;
- A description of how the COVID-19 pandemic impacted compliance; and
- A description of the proposed actions the local jurisdiction will take to comply within the proposed timeline.
CalRecycle must, within 45 business days of receiving a notification, approve it, disapprove it (with a justification), request additional information or commit to a particular timeline for a final decision on approval or disapproval.
If CalRecycle approves a particular notification and the submitting jurisdiction implements its proposed actions, administrative civil penalties will be waived and not accrue during 2022. If the local jurisdiction fails to correct its violations or comply with an approved notification of intent to comply, CalRecycle may revoke its approval and impose administrative civil penalties for violations occurring in 2022 retroactive to the original date of violation. Penalties will continue to accrue on Jan. 1, 2023 if violations that commenced during 2022 have not abated. However, upon complete compliance with the terms of such a corrective action plan, CalRecycle must waive those administrative civil penalties.
While a local jurisdiction’s failure to adopt enforceable mechanisms to comply with SB 1383 regulations by Jan. 1, 2022 will incur penalties, local jurisdictions can seek relief by submitting a notification of intent to comply by March 1, 2022. SB 619 gives jurisdictions more time to adopt their ordinances and approve their franchise agreements to locally implement the SB 1383 regulations before fines may be imposed. However, this still requires the local jurisdiction to work towards adopting the enforceable mechanisms, or else CalRecycle can demand retroactive payment of penalties for non-performance.
For more information about the SB 1383 regulations, read BB&K’s detailed summary here.
Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts, facts specific to your situation or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information herein.