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HomeMy WebLinkAbout2022-16 - Authorizing Submittal to Calrecycle of a Notification of Intent to Comply, Seeking Administrative Penalty Relief Related to State Mandated Multi-Family Residential Organic Waste Diversion RequirementsRESOLUTION NO. 2022-16 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, AUTHORIZING SUBMITTAL TO CALRECYCLE OF A NOTIFICATION OF INTENT TO COMPLY, SEEKING ADMINISTRATIVE PENALTY RELIEF RELATED TO STATE MANDATED MULTI -FAMILY RESIDENTIAL ORGANIC WASTE DIVERSION REQUIREMENTS WHEREAS, CalRecycle, in consultation with the California Air Resources Board, has adopted regulatory requirements ("Regulations") consistent with the mandate of Senate Bill 1383 that are designed to achieve the organic waste reduction goals through a 50 percent reduction in the level of statewide disposal of organic waste from the 2014 level by 2020 and a 75 percent reduction in the level of the statewide disposal of organic waste from the 2014 level by 2025; WHEREAS, Senate Bill 619 codified in California Public Resources Code Section 42652.5 ("SB 619") created a mechanism referred to as a Notification of Intent to Comply whereby a local jurisdiction may secure administrative civil penalty relief from any continuing violations of the Regulations for the 2022 calendar year and be eligible for a broader and longer-term regulatory compliance path, including suspended administrative civil penalties, through a corrective action plan; WHEREAS, the City of Newport Beach ("City") is a local jurisdiction authorized to submit a Notification of Intent to Comply to CalRecycle in accordance with SB 619 provided the City adopts a resolution no later than March 1, 2022 that includes a description, with specificity, of the continuing violations; detailed explanation of the reasons, supported by documentation, why the local jurisdiction is unable to comply; description of the impacts of the COVID-19 pandemic on compliance; and description of the proposed actions the local jurisdiction will take to remedy the violations within the timelines established in Section 18996.2 of Title 14, Division 7, Chapter 12, of the California Code of Regulations with a proposed schedule for doing so; and WHEREAS, the City is meeting its obligations related to the diversion of municipal solid waste enumerated below, however, CalRecycle will initiate compliance assessments of multi -family organic waste diversion in the summer of 2022 and the City requires additional time to ensure full compliance with the multi- family organic waste diversion requirements without facing penalties by CalRecycle. Resolution No. 2022-16 Page 2 of 5 NOW, THEREFORE, the City Council of the City of Newport Beach resolves as follows: Section 1: The City Council hereby formally adopts the Notification of Intent to Comply attached hereto as Exhibit "A" and incorporated herein by reference. Section 2: In accordance with Public Resources Code Section 42652.5, the following facts and findings support the City's request for an extension: a) Description, with specificity, of the continuing violations: In 2019, prior to the effective date of Senate Bill 1383, the City adopted a new commercial solid waste franchise that met the diversion requirements in effect at the time. The City has taken a number of other steps, referenced in paragraph (b) below, to meet its SB 1383 requirements. However, with respect to the City's multi -family organics diversion requirements, there are approximately 100 multi -family properties in the City that have centralized dumpster service and are collected under the commercial non-exclusive franchise. Pursuant to SB 1383, these properties should have a food waste recycling program as of January 1, 2022. However, the City requires additional time to ensure that these multi -family properties and their respective commercial solid waste haulers are, in fact, adopting and implementing an organics recycling service. b) Detailed explanation of the reasons, supported by documentation, why the local jurisdiction is unable to comply: The City has met its obligations related to the diversion of municipal solid waste in a number of ways including, but not limited to, adopting a new commercial solid waste franchise in 2019 that ensures compliance with state diversion requirements; adopting code amendments that meet the requirements of Assembly Bills 341 and 1826, and Senate Bill 1383; and entering into a new residential solid waste collection agreement that ensures compliance with state diversion requirements. However, the non-exclusive commercial franchise agreement adopted by the City in 2019 does not include a scope item for multi -family food waste recycling such that the Tier 1 haulers are not explicitly required to provide these programs. Therefore, an amendment to the non-exclusive franchise to include multi -family organics recycling may be necessary. Alternatively, the City may ask the commercial solid waste haulers to provide this service via the change in legislation clause in the non-exclusive commercial solid waste franchise. Regardless of which path the City takes, the City requires additional time to achieve full compliance Resolution No. 2022-16 Page 3 of 5 with the diversion requirements without facing penalties from CalRecycle related to multi -family organics. c) Description of the impacts of the COVID-19 pandemic on compliance: The impacts of COVID-19 have been significant in Newport Beach. On March 4, 2020, Governor Gavin Newsom declared a State of Emergency to make additional resources available, formalize emergency actions already underway across multiple state agencies and departments, and help the state prepare for the broader spread of COVID-19. The City followed suit with a Proclamation of Local Emergency issued by the City Manager on March 15, 2020 and ratified on March 18, 2020 by the Newport Beach City Council authorizing certain actions to protect the health, safety, and welfare of the public while continuing to maintain the City's standard services. Specific to the collection and diversion of municipal solid waste, the City has committed a number of additional resources to addressing COVID-19 which detracted from City resources that would have otherwise been available to meet SB 1383 requirements. This includes, but is not limited to, working with solid waste haulers and CalRecycle to address the closure of numerous materials recovery facilities; addressing solid waste haulers failure to meet scheduled trash pick-ups; reviewing and responding to commercial solid waste franchise haulers requests for waivers of diversion and franchise fee requirements set forth in the City's non-exclusive commercial solid waste franchise agreement; and the secondary effects of a commercial solid waste hauler strike. That said, the City has largely met its SB 1383 requirements as enumerated in paragraph (b) above. d) A description of the proposed actions the local jurisdiction will take to remedy the violations within the timelines established in Section 18996.2 of Title 14 of the California Code of Regulations with a proposed schedule for doing so: As indicated in paragraph (b), an amendment to the non-exclusive franchise to include multi -family organics recycling may be necessary. Alternatively, the City may ask the commercial solid waste haulers to provide this service via the change in legislation clause in the non-exclusive commercial solid waste franchise agreement with the solid waste haulers. Regardless of which path the City takes, the City requires additional time to achieve full compliance with multi -family organics diversion requirements without being subject to fines. The City anticipates completion of the necessary steps to reach compliance in 2022. Resolution No. 2022-16 Page 4 of 5 Section 3: The City Council hereby authorizes the City Manager, or her designee, to submit the Notice of Intent to Comply with any supporting documentation to CalRecycle and further authorizes the City Manager, or her designee, to take any additional steps necessary for the City to receive approval from CalRecycle of an extension in the deadline and/or civil penalty relief related to multi -family organic waste diversion requirements. Section 4: The recitals provided in this resolution are true and correct and are incorporated into the substantive portion of this resolution. Section 5: If any section, subsection, sentence, clause or phrase of this resolution is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this resolution. The City Council hereby declares that it would have passed this resolution and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. Section 6: The City Council finds the adoption of this resolution is not subject to the California Environmental Quality Act ("CEQA") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. Resolution No. 2022-16 Page 5 of 5 Section 7: This resolution shall take effect immediately upon its adoption by the City Council, and the City Clerk shall certify the vote adopting this resolution. ADOPTED this 22nd day of February 2022. ATTEST: Leilani 1. :: City Clerk APPROVED AS TO FORM: TTORNEY'S OFFICE CITY /1,,,- frl Aaton C. Harp City Attorney Kevin Muldoon Mayor IK - ATTACHMENT(S): Exhibit A — Notification of Intent to Comply EXHIBIT A Notification of Intent to Comply CalRecycle is providing this optional form as a convenience to assist jurisdictions (counties, cities, a county and city, or special districts providing solid waste collection services) for purposes of submitting a notification of intent to comply to CalRecycle [see Public Resources Code (PRC) section 42652.5(c)]. A jurisdiction may submit a notification of intent to comply if it is facing continuing violations of the Short-lived Climate Pollutants: Organic Waste Reductions requirements in Title 14 California Code of Regulations (14 CCR). The written notification of intent to comply, adopted by resolution of the jurisdiction's governing body, shall be sent to CalRecycle no later than March 1, 2022, to NOIC(�i_)CaIRecycle. ca. gov. A jurisdiction shall, at minimum, include the following in its notification: 1. A description, with specificity, of the continuing violations. 2. A detailed explanation of the reasons, supported by documentation, why the local jurisdiction is unable to comply. 3. A description of the impacts of the COVID-19 pandemic on compliance. 4. A description of the proposed actions the local jurisdiction will take to remedy the violations within the timelines established in 14 CCR section 18996.2 with a proposed schedule for doing so. The proposed actions shall be tailored to remedy the violations in a timely manner. Upon approval by CalRecycle of a jurisdiction's notification and implementation of the intent to comply, a jurisdiction may be eligible for both of the following: 1. Administrative civil penalty relief for the 2022 calendar year pursuant to PRC section 42652.5(d). 2. A corrective action plan pursuant to 14 CCR section 18996.2. a. CalRecycle may address through a corrective action plan any violations disclosed in a jurisdiction's notification that will take more than 180 days to correct. In this situation, the proposed actions and schedule in the jurisdiction's approved notification will be in effect until a corrective action plan is issued. CalRecycle will respond in writing to a jurisdiction within 45 business days of receiving its notification with an approval, disapproval, request for additional information, or timeline for a decision on approval or disapproval. CalRecycle will include details about why a jurisdiction did not meet the requirements for a Notification of Intent to Comply when disapproving the jurisdiction's notification. Please clearly print or type responses. Attach additional pages as necessary. Jurisdiction Name: City of Newport Beach County: Orange Person Completing the Form: First Name: Micah T Last Name: Martin Title: Deputy Public Works Director Mailing Address: 100 Civic Center Drive City: Newport Beach Zip Code: 92660 Email Address: mmartin@newportbeachca.gov Phone Number: 949-644-3059 1. Select using the check boxes below or write in the continuing violations for each applicable regulatory section. For each selection, please describe the specific violations related to the regulatory section. Example: ® (B) 14 CCR section 18984.1 Three -Container Organic Waste Collection Services i. Not implementing mandatory residential foodwaste collection for all residents. Note: City already provides mandatory greenwaste collection to all residents ii. Not implementing mandatory commercial organics collection for all businesses under 2 cubic yards. Note: City already provides mandatory commercial organics collection to all businesses 2 cubic yard or more. Disclaimer: The list of possible continuing violations below is not inclusive of all potential violations of the regulations. (A) 14 CCR section 18984 Combined Organic Waste Collection Services. This requirement is not included 'since the requirements are further specked in sections 18984.1-18984.11. ❑■ (B) 14 CCR section 18984.1 Three -Container Organic Waste Collection Services ❑ (C) 14 CCR section 18984.2 Two -Container Organic Waste Collection Services ❑ (D) 14 CCR section 18984.3 Unsegregated Single Container Collection Services ❑ (E) 14 CCR section 18984.4 Recordkeeping Requirements for Compliance with Organic Waste Collection Services ❑ (F) 14 CCR section 18984.5 Container Contamination Minimization ❑ (G) 14 CCR section 18984.6 Recordkeeping Requirements for Container Contamination Minimization ❑ (H) 14 CCR section 18984.7 Container Color Requirements ❑ (1) 14 CCR section 18984.8 Container Labeling Requirements ❑ (J) 14 CCR section 18984.11 Waivers Granted by a Jurisdiction ❑ (K) 14 CCR section 18985.1. Organic Waste Recovery Education and Outreach. ❑ (L) 14 CCR section 18985.2. Edible Food Recovery Education and Outreach ❑ (M) 14 CCR section 18985.3. Recordkeeping Requirements for a Jurisdiction's Compliance with Education and Outreach Requirements ❑ (N) 14 CCR section 18988.1. Jurisdiction Approval of Haulers and Self -Haulers ❑ (0) 14 CCR section 18988.3. Self -haulers of Organic Waste ❑ (P) 14 CCR section 18988.4. Recordkeeping Requirements for Compliance with Jurisdiction Hauler Program ❑ (Q) 14 CCR section 18989.1. CALGreen Building Codes ❑ (R) 14 CCR section 18989.2 Model Water Efficient Landscape Ordinance ❑ (S) 14 CCR section 18991.1. Jurisdiction Edible Food Recovery Program ❑ (T) 14 CCR section 18991.2. Recordkeeping Requirements for Jurisdiction Edible Food Recovery Program ❑ (U) 14 CCR section 18992.1. Organic Waste Recycling Capacity Planning ❑ (V) 14 CCR section 18992.2. Edible Food Recovery Capacity ❑ (W) 14 CCR section 18993.1. Recovered Organic Waste Product Procurement Target ❑ (X) 14 CCR section 18993.2. Recordkeeping Requirements for Recovered Organic Waste Procurement Target ❑ (Y) 14 CCR section 18993.3. Recycled Content Paper Procurement Requirements ❑ (Z) 14 CCR section 18993.4. Recordkeeping Requirements for Recycled Content Paper Procurement (AA) 14 CGI section 18994.2. Jurisdiction Annual Reporting (Vote: This requirement is not included since jurisdictions are still expected to report to CalRecycle. ❑(BB) 14 CCR section 18995.1. Jurisdiction Inspection Requirements Note: Section 18995.1(a)(1) should not be included because a jurisdiction should already be completing this action due to the requirements of PRC Chapter 12.9 (commencing with Section 42649.8) ❑ (CC) 14 CCR section 18995.2. Implementation Record and Recordkeeping Requirements (DD) 14 GCR section 18995.3. Jurisdiction Investigation of Complaints of Alleged Violations Note: This requirement is not included since jurisdictions are still expected to investigate complaints. ❑ (EE) 14 CCR section 18995.4. Enforcement by a Jurisdiction Use the check box(es) below to write in the continuing violations for any regulatory section(s) not reflected above and describe the specific violations related to the regulatory section. Example: © (1) (Type regulatory section number) (Type regulatory section title) i. Describe the specific violations related to the regulatory section ❑■ (1) 14 CCR secton 18984.1 Three -Container Organic Waste Collection Services. Not implementing multi -family organics recycling programs. ❑ (2) ❑ (3) ❑ (4) ❑ (5) 2. A detailed explanation of the reasons why the jurisdiction is unable to comply, supported by documentation, if applicable. See attached. �3. A description of the impacts of the COVID-19 pandemic on compliance. See attached. 4. Provide a description of the proposed actions the jurisdiction will take to remedy the violations with a proposed schedule for completing each action. The proposed actions shall be tailored to remedy the violations in a timely manner. See optional format below. See attached. I hereby certify under penalty of perjury that the information provided herein is true and correct to the best of my knowledge. Signature Printed Name Title Date Description of the proposed actions with proposed schedules the jurisdiction will take to remedy the violations. The proposed actions shall be tailored to remedy the violations in a timely manner. Regulatory Requirement and Description Action Proposed Schedule TASK 1: Date to be completed: TASK 2: Date to be completed: TASK 3: Date to be completed: Regulatory Requirement and Description Action Proposed Schedule TASK 1: Date to be completed: TASK 2: Date to be completed: r 4PL ;mgi+f IP EXAMPLE Regulatory Requirement: (B.i.) 14 CCR section 18984.1 Three -Container Organic Waste Collection Services Description: Not implementing mandatory residential foodwaste collection for all residents. Note: City already provides mandatory greenwaste collection to all residents Action Proposed Schedule TASK 1: Purchase two additional collection trucks and modify Date to be completed: collection routes 4/7/2022 TASK 2: The city will work with its hauler to find a facility to Date to be completed: accept mixed organic waste. 4/14/2022 Regulatory Requirement: (B.ii.) 14 CCR section 18984.1 Three -Container Organic Waste Collection Services Description: Not implementing mandatory commercial organics collection for all businesses under 2 cubic yards. Note: City already provides mandatory commercial organics collection to all businesses 2 cubic yard or more. Action: I Proposed Schedule TASK 1: Purchase two additional collection trucks and modify Date to be completed: collection routes 4/21/2022 TASK 2: The city will work with its hauler to acquire and distribute Date to be completed: appropriate containers to all commercial accounts. The city will 4/28/2022 obtain monthly reports from the hauler to monitor full distribution of carts. City of Newport Beach - Notification of Intent to Comply ATTACHMENT 2. A detailed explanation of the reasons why the jurisdiction is unable to comply, supported by documentation, if applicable. The City will not be in compliance in relation to attaining 100% multi -family organics recycling participation. The City's non-exclusive commercial waste and recycling franchise was re -negotiated in 2019, so it does not include a scope of work for the non- exclusive commercial haulers to implement multi -family organic recycling programs in accordance with SB 1383. The City will require the haulers to implement the program in accordance with its Ordinance and/or its non-exclusive commercial franchise requiring haulers to implement programs that are required by legislation, or by an amendment to the non-exclusive commercial franchise. There are five commercial haulers in the City that service multi -family accounts with bin service. City staff time is currently focusing on the roll-out of the residential organics recycling program as prescribed by the City's new residential contract which will continue through March 31, 2022. With the residential organics recycling roll-out, half of the residents are impacted by a change of collection day. Residents are also impacted by a transitioning away from unlimited collection service with the new residential collection system, which has required extensive staff time to communicate and has led to issues of non -containerization. With the new residential collection system, residents will be limited to one main stream waste (MSW) cart, one organics cart and two recycling carts provided in the basic rate with additional charges for extra carts. The additional charges commence April 1, 2022. All these changes to residential service as well as the residential organics recycling program roll- out necessitate a great deal of staff time. Although the roll-out of the residential carts is scheduled to be completed by March 31, 2022, with the new charges for non - containerization and extra carts going into effect on April 1, 2022, staff time will continue to be focused for several months after these key dates on educating residents and assisting them in acclimating to all the changes and to the new program. Coordination with the five commercial haulers has been time -intensive for the programs implemented to date. Outreach, education, and assistance to the commercial haulers with multi -family accounts and to the multi -family property owners/managers will entail a great deal of additional staff time. Property `buy -in' will also be challenging since the City does not regulate the rates for the non-exclusive franchise haulers. Without rate regulations or the requirement that the hauler provide rate incentives, the haulers may charge more for food scraps recycling than they would for equivalent MSW service, which will likely lead to a considerable rate disincentive for implementing State -mandated organics recycling programs. Due to these factors, full implementation of the multi -family organics recycling program is expected by December 31, 2023. 3. A description of the impacts of the COVID-19 pandemic on compliance. For the past three years, the City has been re -negotiating its residential waste and recycling contract with CR&R to incorporate residential mandates in accordance with State laws, with the new contract going into effect on January 15, 2022. In addition, the City passed a new Ordinance to comply with State laws. City staff time was impacted by the pandemic and the available staff time focused on these time-consuming issues. City staff time continues to be impacted by the pandemic and is currently focusing on the roll-out of the residential organics recycling program as prescribed by the City's new residential contract which will continue through March 31, 2022. In addition, staff time is focused on the residential collection day changes, as well as containerization and extra cart issues which will result in extra charges for residents on April 1, 2022. The addition of the multi -family organics recycling program to the multi -family sector increases the staff time and resources needed to complete this mandate at a time when staff time and resources are still being impacted by the pandemic. Full implementation of the multi- family organics recycling program is expected by December 31, 2023. 4. Provide a description of the proposed actions the jurisdiction will take to remedy the violations with a proposed schedule for completing each action. The proposed actions shall be tailored to remedy the violations in a timely manner. Regulatory Requirement and Description: Full implementation of multi -family organics recycling program Action: Task 1 — Date to be completed: April 30, 2022 Public Works City staff, in conjunction with the City Attorney's Office, and the City Council Waste and Recycling Subcommittee, will determine if an amendment to the non-exclusive commercial waste and recycling franchise is required for implementation of the multi -family organics recycling program. Task 2 — Date to be completed: December 31, 2022 If it is determined that an amendment to the non-exclusive waste and recycling franchise is required. Staff will begin negotiating this amendment with an anticipated date of December 31, 2022 for completion. If it is determined that the best course of action would be for the City to use its Ordinance and current non-exclusive commercial waste and recycling franchise to require haulers to implement multi -family organics recycling programs, the City will send a letter to all haulers regarding the clause in the non-exclusive commercial waste and recycling franchise requiring the haulers to implement programs that are required by legislation by May 31, 2022. The letter will inform the haulers that the multi -family organics recycling program falls under this provision, therefore they must implement the multi -family organics recycling programs to be in compliance with the commercial franchise. The City will then conduct outreach to the multi -family properties by June 30, 2022, to let them know they are required to implement an organics recycling program, and that they should contact their hauler to implement the program. The letter will also inform the properties that the City's ordinance requires multi -family properties to have organics recycling programs and non-compliance will result in penalties. Task 3 — Date to be completed: December 31, 2023 The City will provide a timeline to the commercial haulers for implementation and enforcement. After extensive outreach to the non-compliant account by the hauler, the hauler may refer non-compliant accounts to the City for enforcement action, if needed. City personnel and the City's consultant will assist with designing and implementing the programs as well as with preparing for enforcement efforts. On-going efforts will continue by City staff to obtain hauler compliance with implementation of the multi- family organics recycling programs according to the timeline. City staff and the City's consultant will provide on-going outreach and technical assistance to non-compliant accounts. Task 4 — Date to be completed: December 31, 2023 If non-compliance continues to occur after outreach and assistance is provided to non- compliant haulers and/or non-compliant accounts, the City will begin enforcement in accordance with its Ordinance. This enforcement will begin as non-compliance occurs with full implementation of the multi -family organics recycling program is expected by December 31, 2023. STATE OF CALIFORNIA } COUNTY OF ORANGE } ss. CITY OF NEWPORT BEACH } I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the whole number of members of the City Council is seven; the foregoing resolution, being Resolution No. 2022-16 was duly introduced before and adopted by the City Council of said City at a regular meeting of said Council held on the 22nd day of February, 2022; and the same was so passed and adopted by the following vote, to wit: AYES: Mayor Kevin Muldoon, Mayor Pro Tem Noah Blom, Council Member Brad Avery, Council Member Joy Brenner, Council Member Diane Dixon, Council Member Duffy Duffield NAYS: None ABSENT: Council Member Will O'Neill IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 231d day of February, 2022. c Leilani I. Brown City Clerk Newport Beach, California LWA cue 0 Vk