Consideration of Remediation Options for the Sonoma County Waste Tire Sites

Sonoma County Waste Tire Sites Since 1993 the California Integrated Waste Management Board (CIWMB) has investigated eight waste tire sites in Sonoma County where waste tires were placed in gullies and ravines for erosion control. Those sites are:

Silacci Waste Tire Site Approximately 175,000 waste tires are located in 2 piles at this site. The placement of the tires at this site was done at the recommendation of the Southern Sonoma Soil Conservation District (SSSCD) for erosion control. Enforcement Status: The Landowner was issued a Cleanup and Abatement Order (CAO) in 2000.

North American Universal Portfolio LTD Site (NAUP) This site, formerly known as the Hale Waste Tire Site is estimated to have over 211,000 waste tires in two piles. The placement of the tires at this site was done at the recommendation of the SSSCD for erosion control. Enforcement Status: The Landowner was issued a Cleanup and Abatement Order in 2000.

Flochinni Waste Tire Site Approximately 32,000 waste tires are located at this site which was referred to the CIWMB by the LEA. The placement of the tires at this site was done at the recommendation of the SSSCD for erosion control. Enforcement Status: The Landowner was issued a Cleanup and Abatement Order in 2000.

Beebe Family Ranch Approximately 402,000 waste tires may be located in one large pile at this site. The placement of the tires at this site was done at the recommendation of the SSSCD for erosion control. Enforcement Status: The Landowner was issued an LOV in 2000.

Infineon (Sears) Point Raceway This site may contains an estimated 20,000 waste tires in 10 different piles. The placement of the tires at this site was done at the recommendation of the SSSCD for erosion control. Enforcement Status: The Landowner was issued an LOV in 2000.

Ahlgrim Waste Tire Site Estimated to have 40,000 waste tires in two piles at this site. The property owner used a backhoe to bury the tires onsite sometime during The placement of the tires at this site was done at the recommendation of the SSSCD for erosion control. Enforcement Status: The Landowner was issued an Letter of Violation (LOV) in 1998.

Valley Ford Tire Site This site has a single pile estimated to have over 30,000 tires. No verification could be made since the landowner has refused to grant site access. This site is not within the jurisdiction of the SSSCD, so there is no recommendation from the SSSCD that the tires were placed for erosion control. Enforcement Status: No enforcement actions have been issued to this site.

Wilson Beebe Tire Site Site estimated to have 179,000 waste tires in four different piles. This site is not within the jurisdiction of the SSSCD, so there is no recommendation from the SSSCD that the tires were placed for erosion control. Enforcement Status: No enforcement actions have been issued to this site.

Three Site Groups Based on the different circumstances surrounding the Sonoma Sites, the sites were divided into 3 groups.

Group 1 Sites Sites are within the jurisdiction of the Southern Sonoma Soil Conservation District (SSSCD) The landowners assert that placement of tires for erosion control was at the recommendation of the SSSCD. Sites within this group include: Silacci Waste Tire Sites; North American Universal Waste Tire Sites; Flochinni Waste Tire Site; Beebe Family Ranch Waste Tire Site; and Sears Point Waste Tire Sites.

Group 2 Sites Sites are within the jurisdiction of the SSSCD This landowner asserts he placed his tires for erosion control at the recommendation of the SSSCD In response to enforcement actions, the property owner buried the tires without authorization. Landfilling tires (solid waste) without a solid waste facilities permit is considered a violation of solid waste law (Public Resources Code Chapter 3, Article 1, Section 44002(a) The Ahlgrim Waste Tire Site is the only Site in this Group

Group 3 Sites These sites were outside the jurisdiction of the SSSCD but may be within the jurisdiction of the Gold Ridge Resource Conservation District (GRRCD) in Sonoma County. Unclear whether the GRRCD made any recommendation to the property owners that the tires be used as an erosion control measure Sites within this group include: Valley Ford Waste Tire and Wilson Beebe Waste Tire Sites.

Remediation Options Staff is presenting five proposed remediation options in this agenda item All options incorporate the issuance (or reissuance) of a Clean-up & Abatement Order at all sites, to give the Board the authority to either enforce or negotiate a stipulated agreement

Remediation Options (Continued) Staff recommends that the Board consider the 5 remediation options for the Group 1 sites. Staff recommends that the Board pursue enforcement actions against the owner of the Ahlgrim Waste Tire Site (Group 2 site) for illegal disposal. The Board may consider the proposed remediation options for the Group 3 sites, or provide staff with additional direction on the sites.

Remediation Option 1 Issue Clean-up and Abatement Orders (CAO) to all sites; and pursue full Board enforcement process with Board managed remediation and full cost recovery. Under this option, the Board directs staff to continue enforcement action against the landowners. In the event the landowners are recalcitrant, staff would return to the Board seeking approval of a Board managed remediation project, and pursue cost recovery on all sites.

Option 1 Advantages Essentially eliminate the threat of tire fires and the potential spread of diseases transmitted by mosquitoes, including the deadly West Nile Virus, by removing the exposed tires. Follows the Board’s enforcement process as described in Section V of this item, under “Legal Authority and Legal Issues”. Board would not incur liability or expense for the construction or environmental compliance of future erosion control projects.

Option 1 Disadvantages Board would likely need to pursue site access which would increase the cost and delay the project. Board would need to address concerns raised by other regulatory agencies which would significantly increase the cost and delay the remediation projects up to a year or more. All projects must comply with the California Environmental Quality Act (CEQA). This could increase the cost and significantly delay the projects.

Remediation Option 2 Issue CAOs to all sites; and negotiate with landowners regarding a Board managed remediation limited to tire removal and pursue cost recovery Under this option, the Board would direct staff to conduct a Board managed remediation project to remove all exposed tires. Landowners would be responsible for erosion control on their properties.

Remediation Option 2 (continued) Cost recovery would be negotiated based on the following factors. 1.The landowners obtain all permits and/or other authorizations required by any other public agency; 2.The Board’s involvement at the properties would be limited to waste tire removal only; 3.The landowners satisfy all mitigation measures required by any public agency as a result of the waste tire removal (including but not limited to erosion control, slope stability and/or wildlife protection).

Remediation Option 2 (continued) 4.The Board’s responsibilities would be limited to the remediation of the tires, and would not be responsible for any future issues associated with any mitigation measures; 5.The landowners provide documentation of any funds and resources that they have expended to date on tire removal, stabilization and/or abatement measures; and 6.The landowners agree to satisfy their negotiated cost recovery obligations

Option 2 Advantages Essentially eliminate the threat of tire fires and the potential spread of diseases transmitted by mosquitoes, including the deadly West Nile Virus, by removing the exposed tires. Board would not incur liability or expense for the construction or environmental compliance of future erosion control projects. Voluntary Site Access likely granted by landowners

Option 2 Disadvantages This option may seen as precedence on how the Board will deal with the other yet-to-be identified illegal waste tire sites in Sonoma County as well as other Counties where property owners may claim to have used waste tires as an erosion control measure.

Remediation Option 3 Issue CAOs to all sites; and negotiate with landowners regarding a Board managed remediation limited to tire removal, a landowner managed erosion control with Board grant funds, and pursue cost recovery. This option is essentially the same as Option 2 except it proposes that the Board award grant funds for a demonstration project in which tires will be used in an erosion control project. The conditions for cost recovery are the same as in Option 2

Option 3 Advantages Advantages would be the same as Option 2

Option 3 Disadvantages All sites may not qualify to receive a grant to construct a demonstration project. The following issues would need to be addressed 1.Whether the proposed erosion control project associated with these sites would qualify as a “demonstration” project for Board purposes; 2.Which if any of the sites would be appropriate for such a project: and, 3.If more than one site is appropriate, the Board must determine which site(s) to authorize as the project site.

Remediation Option 4 Issue Cleanup and Abatement Orders to all sites; and negotiate with landowners to allow them to implement their own erosion control project, which includes the burial of some whole tires, without Board involvement. Under this option, the landowners would submit proposed erosion control projects to the Board and other appropriate regulatory agencies for approval. The project would be implemented by the landowners at no cost to the Board.

Option 4 Advantages Essentially eliminate the threat of tire fires and the potential spread of diseases transmitted by mosquitoes, including the deadly West Nile Virus, by removing the exposed tires. Board would not incur liability or expense for the construction or environmental compliance of future erosion control projects.

Option 4 Disadvantages This option requires the burial of whole tires, which constitutes the “land filling” of solid waste without a permit, in violation of current tire law, PRC, Chapter 3, Article 1, Section 44002(a). Solid waste regulations would need to be revised in order for the Board to consider this option.

Remediation Option 5 Issue Clean-up and Abatement Orders to all sites; and negotiate with landowners regarding a Board managed remediation (including mitigation measures, such as conventional erosion control, required by other public agencies) and cost recovery. This option is essentially the same as option 1 except that the Board would not pursue cost recovery from the landowners.

Option 5 Advantages Advantages would be the same as option 1.

Option 5 Disadvantages This option may seen as precedence on how the Board will deal with the other yet-to-be identified illegal waste tire sites in Sonoma County as well as other Counties where property owners may allege to have used waste tires as an erosion control measure.

Costs Associated with Remediation Options As a result of site investigations conducted at the Sonoma sites, the Board’s contractor prepared: –An estimate of the number of tires at each of the sites –A preliminary cost estimate for Board-managed remediation projects that includes minimal site restoration –A cost estimate for the implementation of conventional erosion control measures. –A cost estimate for the implementation of the RCD proposed erosion control measures using tires.

Cost Estimates for Board-Managed Remediation and Conventional Erosion Control Group 1 Sites Site NameTire Count Board-Managed Remediation with Minimal Site Restoration Conventional Erosion Control Method (No Waste Tires) Silacci175,000$335,000$33,000 North American211,000$410,000$41,000 Flochinni32,000$110,000$10,000 Beebe Family Ranch402,000$810,000$82,000 Sears Point20,000$400,000$61,000 SUBTOTAL:840,000$2,065,000$227,000

Cost Estimates for Board-Managed Remediation and Conventional Erosion Control Group 2 and 3 Sites * Site access not granted by landowner

Total Cost Estimates for Board-Managed Remediation and Conventional Erosion Control for all Sites

Cost Estimates for RCD Erosion Control Method Using Waste Tires as Fill Material For Group 1 Sites

Cost Estimates for RCD Erosion Control Method Using Waste Tires as Fill Material For Group 2 and 3 Sites

Total Cost Estimates for RCD Erosion Control Method Using Waste Tires as Fill Material For All Sites

Estimated Board Costs (Group 1 Sites)

Cost Estimate Considerations These cost estimate figures should be considered preliminary for discussion purposes only and do not include the costs associated with obtaining regulatory permits. It should also be noted that the landowners, RCD and Sonoma County LEA have reportedly spent an estimated $1.2 million since 1992 on stabilization and abatement measures at six of the known sites within the RCD boundaries.

IMPORTANT ISSUES TO CONSIDER There are legal, regulatory and general site issues to consider when evaluating the proposed Remediation options.

Legal Issues Board’s Tire Enforcement Process Liability of Property Owner (Strict Liability) Owners Acting Under “Color of Authority”

Board’s Tire Enforcement Process Any person who stores, stockpiles, accumulates, or discards over 500 waste tires is required to obtain a Waste Tire Facility Permit. If the operator or landowner chooses not to obtain a permit, they must submit a plan describing how they will reduce or remove the tires from the site. If the plan is not submitted, a Clean Up and Abatement Order (CAO) setting deadlines and penalties will be issued. Operating a waste tire storage facility without a waste tire facility permit is a misdemeanor, punishable with a fine up to $10,000 per day of the violation and/or up to one year imprisonment in county jail.

Liability of Property Owner (Strict Liability) The Integrated Waste Management Act sets civil liability against parties who accumulate waste tires on land that they own, regardless of how the tires initially arrived on site. Specifically, PRC Sec states that “[a]ny person who stores, stockpiles, or accumulates waste tires at a location for which a waste tire facility permit is required … shall, upon order of the board, clean up those waste tires….” This requirement applies to the “owner” of the property, defined as the “person who owns, in whole or in part … the land on which a waste tire facility is located.” (PRC Sec ).

Liability of Property Owner (Strict Liability) (continued) Environmental regulations such as the subject Waste Management Act are essentially an alternative method for the Legislature to exercise its power to declare certain activities “nuisances per se” (i.e., unlawful regardless of the circumstances), and to impose “strict liability” upon the violator. “Strict liability” means the persons conducting the unlawful activity is responsible for performing whatever corrective action is necessary, regardless of whether they initially engaged in the activity in good faith. Thus it makes no difference whether: (a) the tires were brought on site before or after our laws came into effect; (b) the owner was involved with bringing the tires on site; or (c) the person bringing the tires on site had good intentions.

Liability of Property Owner (Strict Liability) (continued) One common element in most prior waste tire cases has been that the landowners knew or should have known that there could be legal consequences in accumulating “waste” tires on their property. Even before the enactment of our laws, general law held that the accumulation of waste on a property may be actionable as a “nuisance.” Thus owners allowing waste tires on site have long been “accepting the risk” that their accumulation of “waste” might be subject to enforcement.

Owners Acting Under “Color of Authority” The Sonoma County sites present unique circumstances in that the waste tires were brought on site at the “recommendation” of the SCD. Thus in contrast to the cases where the owners “accepted the risk” that their accumulation of “waste” could be deemed a “nuisance” by a Court – here the owners assert that they were acting under a “color of authority.”

Owners Acting Under “Color of Authority” (continued) This raises the following questions: –What was the authority of the SCD during the period the tires were brought on site? –In what manner did the SCD sanction the use of waste tires as erosion control? –To what extent did the tires brought on site serve as erosion control?

Authority of Soil Conservation Districts The SCD is but one of many Soil Conservation Districts that operated under legislative authority in California and many other states throughout the period in issue (1940s - early ‘80s). The California Legislature declared that the purpose of these districts was to “secur[e] the adoption in this State of conservation practices … best adapted to save the basic resources, soil … of the State…. [including] the prevention and control of soil erosion, and erosion stabilization. (PRC §9001) Moreover, these districts – including the SCD involved here- were specifically empowered by the Legislature to “provide technical assistance to private landowners … to support practices that minimize soil and related resource degradation” (PRC §9412), and to “disseminate information relating to soil … conservation and erosion stabilization.” (PRC §9411)

SCD’s Sanctioning of Use of Tires as Erosion Control The RCD has asserted that the SCD did indeed sanction the use of waste tires as erosion control by “recommending” the practice to a number of landowners. The landowners assert that this recommendation makes their situation unique, in that there are two legislative mandates at issue from two periods of time that seemingly conflict: –On the one hand, the use of waste tires as erosion control in the past was undertaken at the recommendation of the SCD - the very entity that the Legislature specifically declared should weigh in on soil conservation measures on behalf of the State. –On the other hand, the Legislature has more recently proffered a competing state interest in limiting waste tires at a site without a storage permit.

SCD’s Sanctioning of Use of Tires as Erosion Control (continued) The landowners assert that in balancing these legislative mandates, the Board should give credence to the earlier determination by the SCD that essentially deemed the utilization of waste tires as erosion control a “beneficial reuse” of the tires. This concept of “beneficial reuse” has now been incorporated by the Board into the pending tire monofill regulations, but only with respect to proposed prospective uses of waste tires (Pending 14 CCR §17346(f)). Once the Board finds that a proposed reuse of waste tires is “beneficial,” those tires would no longer be considered as “waste.” Similarly, the landowners claim here that since the SCD recommended the reuse of the subject tires for erosion control (consistent with its legislative mandate at the time), those tires should not now be considered “waste,” and the Board should give credence to these factors in determining liability and cost recovery issues.

Accumulation of Waste Tires on Site Went Beyond Amount Needed for Erosion Control As previously addressed, due to the size and location of the existing waste-tire piles at these sites, there is little dispute that many of the waste tires are in excess of the amount needed for erosion control. Even if consideration were to be afforded to the landowner’s theory that they should not be held liable for the costs associated with tires used as SCD-sanctioned erosion control, these excess tires appear to fall outside such a position. Thus if the Board remediates it will at some point need to address cost recovery, to the extent such recovery is “feasible.” (PRC §42847) In light of these factors, one of the issues before this Board today is whether the landowner’s “color of authority” argument should be factored into the cost recovery process. The Board can consider this matter now, or allow the Court to decide the issue at a later time.

Regulatory Issues Potential Environmental Impacts of Remediation Project Impact of Regulatory Issues on Performing Remediation Project CEQA

Potential Environmental Impacts of Remediation Project A number of other regulatory agencies have raised concerns that a remediation project involving removal of the tires could have adverse environmental impacts. For example, the RWQCB has testified that they are concerned that there is the potential for increased sedimentation load to the watershed where the tire piles are located, which would result in adverse impacts to fish and wildlife. This impact may need to be mitigated through an NPDES permit.

Potential Environmental Impacts of Remediation Project (Continued) However, it is important to note the erosion problems in the Sonoma area are not isolated to the locations of the existing tire piles and that to date, the RWQCB has not required the landowners to submit an application for an NPDES permit. Two endangered species have been identified in Sonoma County, the red-legged frog and the tiger salamander. Thus it may be necessary to coordinate with other agencies (i.e., Department of Fish and Game and the U.S. Fish and Wildlife Service.)

Impact of Regulatory Issues on Performing Remediation Project Compliance with regulatory issues may impede the Board’s ability to remove the tires. The property owners are responsible for the condition of their land. Even where the Board conducts the cleanup project, it has no statutory or regulatory obligation to ensure that any erosion control project is constructed.

CEQA Typically, CEQA requirements for Board- managed remediation projects have been met through a Notice of Exemption filed by the Board as lead agency A lead agency will need to be responsible for assuring CEQA compliance for any erosion control projects. At this point, the lead agency for the erosion control projects has not been determined.

IMPORTANT GENERAL ISSUES Standing water in the tire piles provide a good breading ground for mosquitoes. As a result there is a now West Nile Virus threat

IMPORTANT GENERAL ISSUES (Continued) Tire Fires We have had three major tires fires in California.

Recommended Option Staff recommends that the Board select Option 2, Issue CAOs to all sites; and negotiate with landowners regarding a Board managed remediation limited to tire removal and pursue cost recovery for the Group 1 sites only. Staff recommends that the Board pursue enforcement actions against the owner of the Ahlgrim Waste Tire Site (Group 2 site). Staff would seek direction from the Board for how to proceed on the Group 3 sites.