CONSIDERATION OF ENFORCEMENT AND COST RECOVERY ISSUES FOR THE by U1kE0s5

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									   CONSIDERATION OF
 ENFORCEMENT AND COST
RECOVERY ISSUES FOR THE
  WASTE TIRE CLEANUP
    GRANT PROGRAM

                          1
 COST RECOVERY STATUTE – PURSUE
          IF “FEASIBLE”
• PRC §42847
   – “The Board shall seek recovery of its costs if
     that recovery is feasible.”

• While enforcement and cost recovery generally
  pursued, may not be feasible in certain cases under
  Grant Program, in that pursuit may impede Board
  from primary goal of removal of tires.

                                                      2
                BACKGROUND
• Board pursues enforcement to compel property
  owners to remove tires.

• Board first seeks penalties. Threat of penalties
  results in majority of sites being cleaned up by the
  property owners.

• Where owner fails to clean up site, and Board
  expends funds to remediate, cost recovery is
  pursued, which usually results in property lien.

• Enforcement has been pursued both against
  owners directly responsible for bringing tires on
  site, as well as owners not directly responsible but
  nevertheless “strictly liable” as present owners.
                                                     3
PURPOSE AND SCOPE OF GRANT PROGRAM
 • Acts in conjunction with Cleanup Program, where
   Board directly expends funds to contractors for
   remediations.

 • Where Board’s Cleanup Program focuses on
   cleanup of privately owned sites, Grant Program
   provides incentive for local agency to clean up
   sites not typically the subject of Board cleanups.

 • Substantial portion of grant funding awarded to
   local agencies to abate illegal sites located
   alongside public rights-of-ways, including an
   incidental number of tires which “spill over” from
   rights of ways onto neighboring private parcels.     4
PURPOSE AND SCOPE OF PROGRAM (Cont’d)
• Occasionally Grant Program utilized to remediate
  piles located wholly on private parcels, such as in
  cases where the Board Cleanup Program is not a
  feasible vehicle for remediation.

• Example: grant program serves purpose of
  securing local agency involvement at smaller sites
  where mobilization of Board contractors to remote
  areas impractical and/or unfeasible.

• Sites under 5,000 tires cost-prohibitive.
  Difficulties involve economies of scale. Grant
  Program thus encourages local agencies to apply
  for grants to clean up piles under 5,000 tires.
                                                        5
PROBLEM – ENFORCEMENT MAY HINDER
           REMEDIATION

• Agencies, however, reluctant to participate if
  enforcement issues protract process and make
  access more difficult, particularly where owner
  not directly responsible.

• Concern is enforcement may thus hinder
  remediation, in that: (a) Board not cleaning up
  site because cost-prohibitive; and (b) local agency
  not cleaning up site because they do not want to
  become mired in adversarial proceeding between
  owner and Board.
                                                        6
PROPOSED RESOLUTION OF PROBLEM

• For all cases, the private property owners must
  have signed a declaration under penalty of perjury
  that they did not personally bring the tires on site,
  did not profit from the placement of tires on site,
  nor did they direct, authorize, license, permit,
  lease (legally or illegally) or otherwise provide
  consent to another to bring the tires on site.

• In cases where such a declaration has been
  obtained, enforcement and cost recovery need not
  be pursued under the following circumstances:
                                                          7
PROPOSED RESOLUTION OF PROBLEM (Cont’d)
  1. The private site is located in a remote area and has less
     than 5,000 waste tires on site, and thus mobilization of
     Board contractors to the site under a Board-managed
     remediation would be impractical and/or unfeasible;

  2. The private site is located in a rural area with
     potentially overlapping multiple property owners with
     no discernable or otherwise readily ascertainable
     property boundaries, making it difficult to determine
     the specific liability of each owner; and/or

  3. Where the private site proposed to be remediated is
     incidental to a primary project involving the cleanup
     of illegal tire disposal sites located alongside roads
     and other public rights-of-ways (tires constitute “spill
     over” from right-of-way).                                   8
END OF PRESENTATION




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