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

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

2. 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.

3. 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.

4. 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.

5. PURPOSE AND SCOPE OF PROGRAM (Cont’d) • Occasionally Grant Program utilized toremediate 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.

6. 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.

7. 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:

8. 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).

9. END OF PRESENTATION