Untitled California Attorney General Opinion

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 97-705
of :
: November 21, 1997
DANIEL E. LUNGREN :
Attorney General :
:
ANTHONY M. SUMMERS :
Deputy Attorney General :
:
______________________________________________________________________
TOM J. BORDONARO, JR., MEMBER OF THE CALIFORNIA ASSEMBLY, has
requested an opinion on the following question:
Are the operations of a composting facility subject to the waste discharge requirements of
the Porter-Cologne Water Quality Act as administered by a Regional Water Quality Control Board?
CONCLUSION
The operations of a composting facility are subject to the waste discharge requirements of
the Porter-Cologne Water Quality Act as administered by a Regional Water Quality Control Board; however,
the board may waive such requirements if the particular circumstances so warrant.
ANALYSIS
The Legislature has enacted a comprehensive statutory scheme, known as the
Porter-Cologne Water Quality Act (Wat. Code, §§ 13000-14958; "Act"), Footnote No. 1 to protect "the quality
of all the waters of the state" (§ 13000). The Act is administered by the State Water Quality Control Board
(§§ 13100-13176; "State Water Board") and by a Regional Water Quality Control Board (§§ 13200-13284;
"Regional Water Board") in each of the regions of the state. The question presented for resolution is whether
the operations of a composting facility are subject to the Act's discharge requirements as administered by a
Regional Water Board. We conclude that they are.
In addressing the issues presented, we first note that compost is the product resulting from
the controlled biological decomposition of organic wastes which have been separated from other solid
wastes. (Pub. Resources Code, § 40116.) We are informed, for example, that at one such facility, the
manufacturing process is carried out by having agricultural material placed in windrows 250 feet long, 8 to
12 feet wide, and 5 feet high. Approximately 50 windrows occupy 20 acres of land, with the material being
placed directly on compacted soil. The material is mechanically turned during the composting process to
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placed directly on compacted soil. The material is mechanically turned during the composting process to
provide aeration and maintain appropriate internal temperatures in order to control pathogenic organisms.
The final product is used as a soil amendment in agricultural operations and domestic gardening.
We also preliminarily note that a composting facility is subject to the permit requirements of
an entirely separate statutory scheme, the California Integrated Waste Management Act of 1989 (Pub.
Resources Code, §§ 40000-49650), administered by the California Integrated Waste Management Board
(Pub. Resources Code, §§ 40400-40510; "Waste Management Board"). A person intending to operate a solid
waste facility must first obtain a permit, either from a local enforcement agency or from the Waste
Management Board (Pub. Resources Code, § 44001); permits issued by the former are subject to review by
the latter. (Pub. Resources Code, § 44009.) A solid waste facility includes a composting facility (Pub.
Resources Code, § 40194), and "solid waste" includes material which may be composted (Pub. Resources
Code, § 40191).
Although the issuance of solid waste facility permits comes under the administrative
purview of the Waste Management Board, the Legislature has declared that such permitting authority does
not limit or affect the powers and duties of a Regional Water Board or the State Water Board. (Pub.
Resources Code, § 40055.) The issuance of a permit by the Waste Management Board does not eliminate the
requirement of obtaining a permit from a Regional Water Board for the same activities. (Pub. Resources
Code, § 44009, subds. (b), (c).) The Legislature has attempted to ameliorate possible conflicts arising from
such dual exercise of jurisdiction. Public Resources Code section 43101 provides in part:
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(c) It is . . . the intent of the Legislature, in enacting this chapter, and in making the
necessary revisions to this division and Division 7 (commencing with Section 13000) of the
Water Code by the act enacting this chapter, to accomplish all of the following:
"(1) . . . the [integrated waste management] board, the state water board, and the
regional water boards shall retain their appropriate statutory authority over solid waste
disposal facilities and sites. A clear and concise division of authority shall be maintained in both
statute and regulation to remove all areas of overlap, duplication, and conflict between the board
and the state water board and regional water boards, or between the board and any other state
agency, as appropriate.
"(2) The state water board and regional water boards shall be the sole agencies
regulating the disposal and classification of solid waste for the purpose of protecting the waters
of the state . . , and the [integrated waste management] board and the certified local enforcement
agencies shall regulate all other aspects of solid waste disposal within the scope of their
appropriate regulatory authority.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(d) It is the intent of the Legislature, in enacting this chapter, and in making the
necessary revisions to this division and Division 7 (commencing with Section 13000) of the
Water Code, to ensure that the state minimum standards for environmental protection at solid
waste disposal facilities are not reduced." (Italics added.)
With the relationship between these statutory schemes in mind, we return to the question
whether the operations of a composting facility are exempt from the Act's waste discharge requirements as
administered by a Regional Water Board. Generally, every person discharging waste (other than into a
community sewer system) that could affect the quality of the waters of the state must file a report of waste
discharge with the appropriate Regional Water Board. (§ 13260, subd. (a).) The Regional Water Board is
ibl f ibi t di h i t (§ 13263 ) Whil t d d t
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responsible for prescribing waste discharge requirements. (§ 13263.) While compost, as an end product,
typically is an innocuous, indeed beneficial, organic material, the manufacturing process of creating compost
is nonetheless a method of handling and treating solid waste. Footnote No. 2 We are informed that
decomposable organic wastes may contain chemicals which could acidify affected waters or mobilize
metallic pollutants from wastes or from the environment. Certain organic wastes contain high levels of
nitrogen compounds that could raise levels of nitrates in surface or ground waters. Salts and microorganisms,
including pathogens, may be released into the soil. In sum, the composting process presents the possibility
that leachates Footnote No. 3 may migrate into the waters of the state. While compost, once created, may not
pose a threat to the waters of the state, the biological processes involved in its creation may do so.
The sole basis for the claim that the operations of the composting facility in question are
exempt from the requirements of the Act is the exemption language contained in an administrative regulation,
California Code of Regulations, title 27, section 20090, subdivision (h), which excludes from a Regional
Water Board's jurisdiction:
"Recycling or other use of materials salvaged from waste, or produced by waste
treatment, such as scrap metal, compost, and recycled chemicals, provided that discharges of
residual wastes from recycling or treatment operations to land shall be according to applicable
provisions of this division."
We reject the suggestion that the manufacturing operations of a composting facility fall under the exemption
language of this regulation. "Recycling," as that term is used in the regulation, refers not to the manufacturing
process of creating compost; rather, it refers to the use of compost as a final product. Under the plain wording
of the regulation, the compost must first be "salvaged from waste, or produced by waste treatment" before it
can be subject to "[r]ecycling or other use."
"Generally, the same rules of construction and interpretation that apply to statutes
govern the construction and interpretation of an administrative agency's rules and regulations."
(Industrial Indemnity Co. v. City any County of San Francisco (1990) 218 Cal. App. 3d 999,
1008.) Accordingly, regulations are to be interpreted by "giving to the language its usual,
ordinary import and according significance, if possible, to every word, phrase and sentence in
pursuance of the legislative purpose." (Dyna-Med, Inc. v. Fair Employment & Housing Com.
(1987) 43 Cal. 3d 1379, 1386-1387.) Here, the regulation exempts only the "use of materials
salvaged from waste, or produced by waste treatment," with recycling representing one such type
of use of a final product ("recycling or other use"). Footnote No. 4
Moreover, the regulation expressly requires that "discharges of residual wastes from
recycling or treatment operations to land shall be according to applicable provisions of this division." It is
this aspect of the composting process that the State Water Board and a Regional Water Board must regulate
pursuant to the Act's provisions, monitoring and controlling the amount of leachates that might migrate into
the waters of the state during the compost manufacturing process.
Although the operations of a composting facility are not exempt from the Act's waste
discharge requirements, a Regional Water Board has the authority to waive such requirements "as to a
specific discharge or a specific type of discharge where the waiver is not against the public interest."
(§ 13269, subd. (a); see also Cal. Code Regs., tit. 27, § 20200, subd. (a)(1).) If the particular circumstances so
warrant, the operators of a composting facility may obtain a waiver of the Act's requirements.
We conclude in answer to the question presented that the operations of a composting facility
are subject to the waste discharge requirements of the Act as administered by a Regional Water Board;
however, the Regional Water Board may waive such requirements if the particular circumstances so warrant.
*****
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Footnote No. 1
All references hereafter to the Water Code are by section number only.
Footnote No. 2
"Treatment" is any method, technique, or process designed to change the physical, chemical, or biological characteristics of
waste so as to render it less harmful to the quality of the waters of the state. (Cal. Code Regs., tit. 27, § 20164.)
Footnote No. 3
A "leachate" is any liquid formed by the drainage of liquids from waste or by the percolation or flow of liquid through
waste, and includes any constituents extracted from the waste and dissolved or suspended in the fluid. (Cal. Code Regs., tit.
27, § 20164.)
Footnote No. 4
We recognize that the term "recycling" may have different meanings in different contexts. (See Pub. Resources Code, §
40180.)
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