Memorandum #05-09: PDF 5.9 MB Adoption of the Proposed Regulations Governing Temporary Permits to Operate Solid Waste Disposal Sites; Consideration of Business Impact Statement
Chair Giunchigliani declared the public hearing open.
The following is a verbatim transcription of the public hearing concerning Memorandum #05-09.
Dr. Sands: That is the adoption of the Proposed Regulations Governing Temporary Permits to Operate Solid Waste Disposal Sites and Consideration of Business Impact Statement. Mr. Dennis Campbell, our solid waste compliance manager as well as Craig Erskine, our solid waste supervisor will be presenting on this item and will be glad to answer any questions the Board might have.
Dennis Campbell: Good morning, Madam Chairman, members of the Board. Under Nevada Revised Statutes 444.553(2) requires anyone that’s operating a solid waste disposal site in Clark County to obtain a permit from the Solid Waste Management Authority. In the past, this has created some hardship in that some types of facilities have had to cease operations until they received their permit, and the permitting process could take a long period of time. So based on some concerns that we had from the regulated community, the solid waste & compliance section developed a set of regulations that you have before you to issued temporary permits to certain types of solid waste disposal facilities that would not impact public health, or safety or the environment. These regulations are consistent with the other solid waste management regulations that we have for Clark County; we follow the same format that we used in all our other regulations so they are consistent and we went out for public comment – we had four public workshops and we received over twenty pages of comments on these regulations. All of the comments were addressed both at the workshop, and once we compiled all the comments, each person who provided comments to us received a written response on how we were going to address their concerns or their comments. So based on that we, these permits would only be for six months – that would allow businesses to continue to operate, be subject to our inspections and to make sure they stay in compliance with the solid waste management laws and regulations, and then at the end of that six-month period we would hope that they would be coming before the Board of Health for a permanent permit to operate a disposal site. But in the meantime, it would allow them to continue to operate, pay their bills, and have income coming in so that we don’t force anybody out of business.
Chair Giunchigliani: So the six-month, you said, I hope…
Mr. Campbell: Well…
Chair Giunchigliani: What’s the standard that actually comes in…I would think they have to convert to a permanent…
Mr. Campbell: …within six months they would have to convert to a permanent permit and provide…in the case that there is extraneous circumstances, something happens, they do have the ability in these regulations to apply for a three-month extension so that they can continue to work through the permitting process.
Chair Giunchigliani: Do our non-profits then also, I think we have the blind center that does some recycling. Are they in compliance, or would this allow them to also now get in compliance?
Mr. Campbell: Currently the blind center is not a permitted facility…
Chair Giunchigliani: OK…
Mr. Campbell: …and so they need to come in and become permitted. Since they haven’t submitted an application they could come in for a temporary permit. At this point they’re one of the few, right now that we’re aware of, that could come in for a temporary permit while they work through the permitting process.
Chair Giunchigliani: Will we notify those types of groups that we know of that are not in compliance so that they either get on board or they don’t…
Mr. Campbell: As we find them we will be notifying them that they can get a temporary permit. Most of the ones that are in the permitting process now would not be eligible for these temporary permits, because they’ve already started down for land-use, business licensing, and all the other requirements that come in before we can issue a permit.
Chair Giunchigliani: And then the temporary would allow them to apply for any land-use or zoning permit from the local government that they apply?
Mr. Campbell: Land-use they would have to have prior to getting a temporary permit, and they would also have to apply for a temporary business license, and they would also have to provide us with financial assurance so then if they decide to go out of business before they get their permanent permit…
Chair Giunchigliani: Close it down correctly…
Mr. Campbell: …they can close it down.
Chair Giunchigliani: Questions from the Board? Tim?
Member Jones: Is there any estimated relative cost to just going straight ahead versus a temporary permit?
Mr. Campbell: We did a business impact…what would happen is if they went ahead for a permanent permit, they would have to shut down, because they can’t operate a solid waste disposal site without a permit. And what we’ve had happen in the past is we would go out with a cease & desist order, they’d have to stop operating; if they failed to stop operating then we’d go forward with a notice of violation and the penalties range from $500 to $5,000 per day per count. So the finance…if they go get a temporary permit, then we won’t have to go forward with a thing, and the way we set up the fee schedule is half the normal operating permit and half the normal plan review fee.
Member Jones: So somebody planning to start business now could make a decision to just wait to get a full permit or…
Mr. Campbell: They could.
Member Jones: …they could make the decision to get a temporary permit. What would be the cost of this?
Mr. Campbell: If they went forward with a full permit…
Member Jones: They do the temp then they do a full, how much more would they pay to operate their business?
Mr. Campbell: Once they get their permanent permit, they would have to pay the full amount for costs of plan review, the plan review application fee, which varies with types of facilities and then their annual operating permit. So it could be probably, well we’re proposing with temporary permits be half the fee for both plan review and for the operating permit. And then if they went forward, they would have to pay the full amount for the permanent permit.
Member Jones: And ultimately if they were going to go into an ongoing business, you’d pay 150% of the cost and fees.
Mr. Campbell: Correct.
Member Jones: Thank you.
Chair Giunchigliani: How many extensions are they permitted?
Mr. Campbell: One.
Chair Giunchigliani: One.
Mr. Campbell: Only one for extraordinary circumstances.
Chair Giunchigliani: And do you define that somehow?
Mr. Campbell: Extraordinary could be almost anything, but what we’re looking at is if they get held up with their going forward with the permits from other jurisdictions…
Chair Giunchigliani: They’re in the works, so they can verify that?
Mr. Campbell: Right. If they can bring us the information and say we’re having problems getting permits, building permits, whatever it is, or approvals through the City of Las Vegas, Clark County, whatever it is, then we can consider extending it out for another period of time.
Chair Giunchigliani: Questions? Bubba?
Member Smith: Thank you, Madam Chair. So I might understand, that when we find these that are in violation, that are operating without the permit from the Southern Nevada, that we continue to let them operate during the time that they’re applying for the temporary, because there’s a number of things that they have to achieve before then can even get the temporary.
Mr. Campbell: For example, for a temporary permit what we’re looking at is getting those permits issues within, I think it’s 45 days, because we have to have some time to review their operation and there has to be a period of public notice like all other permits that we issue for solid waste disposal sites. We would probably be working with them on that part of it; what we don’t want to see, and what we have seen, is we’ve had some recycling centers that have been operating without permits and once we found them, we had to stop them, issue a cease & desist order and they had to stop operating or they were in violation.
Member Smith: So with this change, during that 45 days that we’re working with them, they stay in operation?
Mr. Campbell: Because we know they’re going to be applying for the temporary permit, we can allow them to do that as they’re working.
Member Smith: So really they have not only the six months, but that 45 days that we’re working with them that they’re operating with a permit?
Mr. Campbell: Basically the six months, we would consider from a compliance standpoint, the minute they submit their application, that’s when the six months starts. Because a lot of the materials we’re going to be asking for the temporary permit can rollover to in applying for the permanent permit as well.
Member Smith: Do we have something in place where, I assume that when we find these people that are out of compliance, that don’t have a permit, that they also don’t have a business license, because most jurisdictions have some kind of stipulation in place where we’re only giving approval of a business license if they already got permission from the Southern Nevada Department of Health, and it says that they have to have, be in the process of getting the business license.
Mr. Campbell: Right, that’s correct.
Member Smith: But some jurisdictions, you know, if they come to us and say, you know, we’re operating without a permit, but would like to get a business license. Some jurisdictions may not want to have solid waste business there. So is there something in place, or is it up to the jurisdictions, I just want to know if it’s up to the jurisdictions to say we need to contact you and say, no we denied that business license.
Mr. Campbell: We work with business licensing and if they deny a business license or land use, we can’t move forward with our permit. So, and we have found recycling centers that are operating without business licenses. We had one over the weekend that we caught and we’re actually in the process right now of issuing a cease & desist order and a notice of violation because they’re operating a recycling center without land use, without business licensing, without permit from the Solid Waste Management Authority, so those kinds of things…If we go forward and get contacted, we’re getting these applications if, if we get a thing from one of the jurisdictions that we’re not going to issue land use or we’re not going to issue a business license, we can’t go forward with our permit.
Member Smith: So there are certain parameters that would shut them down, cease & desist…they don’t have land use, they don’t have…
Mr. Campbell: That’s correct.
Member Smith: …they’re operating outside the parameters you’ve set forward, and they’re in violation already you would go ahead and shut them down until they at least achieved some of those items and then they can apply for the temporary. So there actually is circumstances where they can be shut down.
Mr. Campbell: Yes, there is.
Member Smith: Thank you.
Chair Giunchigliani: And is there a notification to the local government when you do find them without a permit and so forth?
Craig Erskine: Yes.
Mr. Campbell: Yes. My compliance staff, we have one section that deals with commercial operations and permitted disposal facilities and they do get a hold of code enforcement, business licensing and the other…
Chair Giunchigliani: Whatever might be appropriate?
Mr. Campbell: Yeah, whatever might be appropriate.
Chair Giunchigliani: Thank you. Linda, you had a question.
Member Strickland: Yeah, when you find these facilities operating without a permit, besides the cease and desist, do you fine them, monetarily fine them?
Mr. Campbell: Yeah, if we, when we move forward with a notice of violation, we take them through our hearing officer process first. And there is a penalty associated with it, through the NRS. Penalties range from $500 to $5,000 per day per count. So if we were to go on a facility and we’ve caught them three or four times operating without a permit, we normally start our penalties at $900 per count. And then based on what we find and when we take it before the hearing officer, the hearing officer can do one of four things: he can dismiss it, he could go with what the health district recommends for a penalty, he can increase it, or he can decrease it to the minimum. And it’s up to our hearing officer when we present our case what the administrative penalty will be assessed at.
Member Strickland: And I’m assuming that they pursue collection of that prior to issuing a permit?
Mr. Campbell: If a hearing officer issues a hearing officer order, the penalty has to be made in full, well whatever the penalty is, prior to getting that permit issued. We won’t allow it to move forward without them complying with the hearing officer order.
Chair Giunchigliani: Good question. Thank you. Susan.
Member Crowley: I have actually two, one question, and the first is just a comment. The rules are needed, we know that and the method that we’re applying here is consistent with the way the state handles permitting and in that you can get a temporary permit which will support you while you’re getting that permanent permit, but there’s one exception and that’s the extension is a six-month extension rather than a three-month extension, giving you better flexibility in being able to respond to whatever it was that caused the extension request. I’d ask us to consider, as a Board, that if we’re going to adopt these rules today that we consider that. It just gives our staff better flexibility to accommodate something that would cause us to provide the extension in the first place. The second is, I’d really like to hear from anybody in the public hearing before I decide whether or not I can vote positively on these rules, only because it seemed as if the thread going through every public workshop that we had was that they had problems with the language, in that it wasn’t clear enough and it was succinct to the purpose. Now, having said that I still want to compliment you on getting done what we got done as a first draft, but I want to hear from the public about whether or not the language that we see today has corrected those problematic phrases. In some cases, I’m sure we were able to; in some cases we might not have been able to, but I’d like to hear from the public about whether or not we’ve actually accommodated their concerns. And if we haven’t been able to and it’s for a reason, but I’d like to hear from the public first.
Chair Giunchigliani: Thank you. We’ll come back. Susan, restate your first one, about the extension.
Member Crowley: The permit itself, the temporary permit is a six-month duration and you explained that we can offer an extension for cause for three months. I’d like to consider that to be six months rather than three months.
Chair Giunchigliani: Thank you. Tim?
Member Jones: Are there some known operations right now that have no permit and what will be the actions with those operations once they become?
Mr. Campbell: We have some non-profit facilities that do not have a permit to operate. They are operating recycling centers. Under this one, since they haven’t applied for a permanent permit, they could apply for a temporary permit under these regulations, and hopefully we’ll get them moving towards getting a permanent permit. We do have some others, and we find them in normal course of business, and we’ve been contacted about some other potential recycling operations coming in to the county and in those cases, and the thing I failed to mention is this would only apply to like recycling centers, materials recovery facilities that can handle construction and demolition waste only, and construction and demolition waste short-term bin storage facilities. Things like landfills, composting plants, transfer stations, those kinds are not eligible for this because of the potential impact to the environment, public safety and public health. So it’s limited to…
Member Jones: Do we have any problem in working with the non-profits to say we’re look the other way for a while versus somebody who’s in the for-profit business and tell them that they’d better get a move on?
Mr. Campbell: We have a list that we’ve been working down and really trying to get them, bringing them in to us, and we just haven’t got to that portion of our list at the moment.
Member Jones: How many of those do you think exist?
Mr. Erskine: Unpermitted?
Member Jones: Unpermitted.
Mr. Erskine: Probably a half dozen.
Member Jones: Including the non-profits?
Mr. Erskine: Including the non-profits, yes sir.
Chair Giunchigliani: Thank you. Jim?
Member Christensen: Is the non-profits, are they out of compliance because of ignorance or are they out of compliance because sometimes are they not for profit. Having run one that was regulated by the Board of Health, strained my budget at the time. And is there a provision for, perhaps not for profit hardships where they could have sliding scales or something? Some of them do good work, well-intentioned, just bad on the performance.
Mr. Campbell: Two of the non-profits that have come to mind have been told they need to come in and apply for permits. Why they haven’t we don’t know yet. Maybe we have not been approached, that I’m aware of, about reducing their operating permit or anything like that, but it might be something we could consider.
Member Eliason: Glenn. Glenn can’t sit there.
Glenn Savage: We’ve had a couple of the non-profits that have called. They would like the Board to someday consider a non-profit status that would be exempt from some of the fees, but would work with getting a permit and we work with them on their operational plans to make sure they’re environmentally compliant. Opportunity Village is one, the blind center is the second group. So, I imagine we’ll probably be back before the Board at some time asking for that kind of discussion.
Member Christensen: Yeah, having been in that position, I was regulated and said you had to do x,y, and z and then said OK, how do you do that? Well I can’t tell you that. No, you need to help me out through the process.
Chair Giunchigliani: So that’s a good discussion. Linda, then Bob.
Member Strickland: Yeah, I just wanted to point out I think that’s important that we look at the non-profit status so that we can avoid allegations of selected enforcement of our provisions here because if we’re more actively pursuing the for-profit versus the not for profit, even though our heart may be for the non-profit, you’ve got to make it equal.
Chair Giunchigliani: Good point. Bob?
Member Eliason: I was going to ask Glenn after the meeting, but now as you stood up there…So, Betty Lane, Alto, Nellis, all of those have come into compliance or tried to come into compliance, all the ones you found out there?
Mr. Savage: We have some that have come in and received permits; and we have some that are still out there without permits. We have some that are working with the local jurisdictions that are building buildings, and others that are still fighting us. So we have a wide variety of issues and status…
Member Eliason: I have a hotbed for you out there.
Mr. Savage: Pardon?
Member Eliason: I remember that was a hotbed for you guys out there in that area.
Chair Giunchigliani: In fact we had a meeting yesterday with Commissioner Collins’ district on Betty Lane and I think the gentleman is here, because we’re trying to work out…it’s a compost plant and I was saying that that would not work for the temporary but I think they wanted to try to do whatever they could to comply. So maybe when we have further public discussion we could take that into consideration because those that want to comply, yes; but those that, I know Commissioner Collins put a restriction on they have do this and they have eighteen months to do x,y and z and I think that they want to comply with that, but there are a bunch of others out there that don’t. And they need to respect the other ones that are in business doing it right. What’s the purpose of doing it right if you don’t really get enforced with anything.
Mr. Savage: And what we’ve tried to do is try to separate out the complex facilities versus less, I mean there are a number of recycling facilities…the group this morning, it’s in a building, they can go through and get the proper business licenses and use permits, and zoning and fire approvals…those are simple but sometimes working through that process might take a while. So those are the ones we thought we could work with, move things along. But if you’re getting into more of a complex situation, a landfill, composting where they’re adding things and trying to sort and separate, more complex issues, we have to do a further plan review. And frankly the jurisdictions are very interested in those facilities and making a decision about whether or not they belong in their jurisdiction or not. So…
Chair Giunchigliani: Right.
Mr. Savage: And Susan, I believe your comment about public providing information…We have Mr. Hawley here today. He might be willing to comment. He was one of the…he did give us a lot of comments that are noted in the packet today.
Chair Giunchigliani: Thank you. Any further questions for these two gentlemen? We may bring you back up, but let me go to the Public Hearing component now. Is there anyone who wishes to testify on the proposed regulations? Good morning.
Earl Hawley: You’re well aware from the conversation that had just transpired this is a major problem.
Chair Giunchigliani: Could you please state your name for the record? Sorry.
Mr. Hawley: It’s Earl Hawley from Nevada Construction Clean-Up. I’m an attorney. At the very first workshop, I suggested to staff that they should consult with us very early on, us being members working in the solid waste field. And as time was short then, and there’s been a pretty good discourse between myself and staff, but the opportunities in conjunction with other business activities are such that we’ve not been able to give a lot of time to this problem. We do see major problems, and I’ve told staff about some of those problems. But as we’ve had the opportunity to think about what it is that they’re proposing to do, we’ve come up with some more ideas, more in-depth. Now staff has indicated that they’re looking a major re-write of the regulations and that this is a format, in part, to that re-write. The program essentially as it exists today is one that is functioned based upon the fines and hearing officer program. We would make a proposal for a totally different financial operation that would not base itself upon the fine program. And as an attorney, I question whether or not that’s a viable constitutional concept. There are so many other problems that we have thought about that could cause problems and to some degree we have thought that in time, we could resolve all these problems. The staff, number one, is having troubles finding qualified people to go out there and control some of the problems we have in the waste field. People don’t realize, the public in general, don’t realize what is or isn’t waste. And here’s a major problem that the enforcement section has out there trying to just clean up a lot of the early problems that have developed when we didn’t have an enforcement program. But they still exist. There has been a time when my client and myself have come to the solid waste department and said look, here’s the number of illegal operating companies, one of which was quite large. It is just recently, in the last couple months, that since it has operated for a substantial period of time, a staff member of that company once said to me: well, hell the laws in Clark County don’t mean anything. You can’t have that. And I have suggested to staff that the six-month period is a problem as we see it because as we try to process through permits we’re finding much longer periods of time involved than six months or even nine months here. And staff has got problems trying to cover the problem out there – it’s much bigger than it might appear. And I feel sorry for them. And I would try to help them and I think that it can be done from the industry point of view. I would suggest that if you wanted to do a pilot program with this that that is all it is – that’s it’s a pilot program. But I don’t think it’s going to cover what it is you’re looking for. Now I’ve detailed some things in writing and orally to staff and they have responded appropriately and I still think that when they see our side of the contract. In workshops…the workshops do not provide enough time. That’s reaction. We don’t get enough time to get perspective out to staff to let them see what the other side of the operation is to control the problems. We’re interested in controlling it – we think it benefits the whole of society. But, as it exists now we don’t think this program is going to work well. Thank you.
Chair Giunchigliani: And if I might, Mr. Hawley, we have a couple questions. Susan?
Mr. Hawley: Yes, ma’am.
Member Crowley: This is actually a question for staff. Once the workshops were done and we revised our language as we thought appropriate, how much time did the regulated community have to look at those revised regulations before they’re sitting before us? I mean, have they been out there…
Mr. Hawley: We ran a period of about nine months in the workshop.
Mr. Campbell: As soon as we completed our last workshop, we immediately sat down and put all the comments together and responded to them, so it’s at least three weeks prior to bringing them before the hearing. We did it right over Christmas vacation in that period of time and got them right out right after the first.
Member Crowley: I see that we responded to comments in that we explained to them what we intended to do, but the language that was changed, the language that would reflecting those responses that we made, how long has that language been out there so that the public can look at that and see whether or not it responded to their comments or if they continue to have concerns. That’s why I’m asking.
Mr. Campbell: As soon as we got the comments we made changes, and what’s in this draft is in response to the comments that we got. If we made language changes, and then we notified everyone that we did make those changes to them, whether or not they had actually seen the draft regulations, because we posted it on the Internet and said here’s where it is and here’s the changes that we made. So we did get it out to them as quickly as we possibly could so they could take a look at.
Member Crowley: And that’s probably true, but how long have they had to look at it? Has it been that full three-week period?
Mr. Campbell: It’s been that full three-week period.
Member Crowley: So they’ve been able to look at the revised language for the full three-weeks?
Mr. Campbell: Yes.
Chair Giunchigliani: Mr. Hawley, if I might? I think…Linda, do you have a question for him or for staff?
Member Strickland: It’s actually probably more for staff.
Chair Giunchigliani: I do have one for Mr. Hawley, if I might. So your client, for example, came yesterday to the County and we dealt with a land-use issue. But they were a compost, if I recall.
Mr. Hawley: No…
Chair Giunchigliani: OK, that’s…
Mr. Hawley: You’re using yesterday’s activity…
Chair Giunchigliani: Right…
Mr. Hawley: I’m Nevada…
Chair Giunchigliani: Oh, you’re the other one…
Mr. Hawley: I’m Construction Clean-Up…
Chair Giunchigliani: OK.
Mr. Hawley: …not Nevada Forest Product.
Chair Giunchigliani: OK, thank you. Alright, so I get it. I guess I was thinking about that.
Mr. Hawley: I might, I think my retainer for Nevada Forest Products would reach this far, if you want.
Chair Giunchigliani: I think they were actually going to get with staff and Commissioner Collins’ staff was going to work with Dennis or somebody about how they properly came into compliance as the compost so they can continue, but I don’t know the status of that so you’ll probably get a call from somebody in the next day. Thank you, that was my question, so I confused those two. Thank you.
Member Jones: I just have one question.
Chair Giunchigliani: Tim has a question.
Member Jones: I guess I’m just not clearly understanding, what are maybe the one or two points that you, from the industry side, find that are lacking in this proposal?
Mr. Hawley: Well, I indicated earlier I would have found the whole of the program on a totally different economic basis. And I think that it will make the solid waste section much, much stronger; it will provide them, I think, with more money, a consistent flow of money that they can rely upon, and I think that by supporting that aspect of the solid waste department it will clean up a lot of these standard little problems that we have out there. One of the, like I’ve indicated, the public doesn’t really know and there needs to be more of an education program to let people know, hey, that tire is waste; that plastic bottle is waste – you just can’t leave it lying around.
Member Jones: That funding would come through permit fees rather than fines, would be your?
Mr. Hawley: In part, yes.
Member Jones: And who would pay those permit fees?
Mr. Hawley: The people who are asking for the opportunity to enter into the business.
Member Jones: And so it sounds almost like…
Mr. Hawley: And it would have an annual increase in monies, or the operators could…you’ll have an annual flow from the operators.
Member Jones: The clean operators would be paying the fees and the dirty operators would not be paying fines in that kind of a…
Mr. Hawley: No, it is not, when it’s worked out, and I won’t take the time here, but when it’s worked out it doesn’t really run that way. The little guy with one truck who’ll be able to do what the wants to do. This fellow out there with the big fleet of trucks, they’ll be able to function also. But we got to get the clean-it-up aspect across to the public much better in order to start getting the accumulation of the waste materials that are out there and going into recycling.
Chair Giunchigliani: Linda?
Member Strickland: Yes, actually this is a question for Mr. Hawley. You previously made reference to an issue that the language in the proposed document may be unconstitutional. I think you made some reference to the language. My question is, is your disagreement with the language a personal preference or is it truly a concern that it may be unconstitutional or in some way a violation of law or public policy? That’s the first question. I’m going to compound my question to you with the second part. If you truly feel it’s unconstitutional have you had some discussion with our Board Legal Counsel relative to the possible rewording of the language?
Mr. Hawley: It isn’t so much a rewording of the language, if I can take your second question first. It’s more, my position is more one of scope and as they are endeavoring to do what they’re doing, they’re picking out language from other activities that the solid waste department participates in, to some degree. And in my opinion, that language does not fit well, particularly where we lack, it doesn’t fit well, as far as I’m concerned, in so far as being able to see the whole picture that they’re trying to achieve because they’ve not said what the major rewrite is to it. And that’s really not our business, unless they choose to disclose it. Internally, they need all the help they can get because it’s a major problem. If you look at that list of fines, it comes down before the hearing officer every hearing officer session. It’s very, very large. And they’re missing a lot of people. They’ve got a major problem and they need help. I think it needs to be re-scoped. And your question on the legal end of it, unfortunately, I’ve litigated with the department a couple of times and we’ve got a piece of litigation right now that’s in the wind up stage. I made my remarks expressing my legal opinion – I do believe that it’s a major legal situation when somebody’s prepared to take it on. I have even recently had a situation where I interviewed people and filed Amicus curiae motion through court in somebody else’s place because I believed there was a major, major legal problem and it’s manifesting itself, to some degree, in this particular case that’s on appeal with the District Court. And it’s not just a personal thing – I’m expressing a legal opinion when I tell you I think there’s a major constitutional problem here.
Chair Giunchigliani: Bob?
Member Eliason: Maybe it’s for Glenn or something, but a thought came to my mind as I sit here. You know these landscaping sale places that sell the mulch, they have the sprinkler sitting up on top of the mulch piles leeching back into the ground? Are we talking about the same thing, trying to get these back into compliance, will this ever fall under somewhere where they have to…it’s a recycling center but yet the mulches and stuff, the contamination going back into the ground water, is that an issue or is that a whole new problem or a whole new thought?
Mr. Campbell: Are you referring to a composting plant?
Member Eliason: Well, it’s already composted. The reason, the one that we caught that we have issues about where they have the water sitting on top, the sprinkler sitting on top the composting pile and leeching back into the ground water up there…
Chair Giunchigliani: Then it’s not done being composted if they’re still watering it.
Mr. Campbell: If they’re still watering it, they’re still processing so it would come under the heading of a composting plant, which they would need to be permitted through the Solid Waste Management Authority as a composting plant.
Chair Giunchigliani: And is that where the pad then comes in as a requirement?
Mr. Campbell: Right.
Mr. Savage: Just a general comment would be any materials that might have received any type of herbicides or anything like that that are trying to be composted, again if you’re adding water or liquid to that and you get a runoff or potentially if the soils are not compacted, which would prevent any leeching going into the soils that would impact the groundwater, that would of course be a concern of ours, and so in our plan review processes we would like to know how that facility would be operated, how they are going to compost, how and what they will add whether it’s just water. We’ve had other people consider putting other industrial waste waters to be added to help with the degradation process, again it’s a case-by-case basis. Are we concerned? Sure, we would be concerned with that being a possible issue.
Chair Giunchigliani: And I think the issue, what do we do to catch the bad apples that are just doing it, I mean I reported last year and gave you pictures and you guys got out to that. But it was a huge construction operation that was taking off one of our big gaming properties and just dumping it illegally out in the desert and that’s just mind-boggling to me and if we don’t have proper procedures in place to cease & desist them in a very quick manner, then what do we say to those businesses, mostly the smaller ones, that are playing by the rules? And there’s a whole other game that’s out there that we have to be careful of is under the green building tax abatement they actually have to have a licensed recycler that’s transporting their construction materials – if they don’t they cannot qualify. Well, one of these companies that I turned in was not using a licensed permitted recycler. So my opinion they should not be able to qualify for that statute. So there’s other factors that come into play. Then we have other ones taking it to Lincoln County and just circumventing the process. I don’t know if this reg gets us to that yet. I understand, if I recall, part of this came about because of the two hearings, correct, we had with some companies and this was a potential resolution, or am I mixing those up?
Mr. Savage: It was part of that and also some examples of recycling centers that might of received a business license as a transporter…
Chair Giunchigliani: Mm-hmm.
Mr. Savage: …and received zoning approval and they didn’t really…
Chair Giunchigliani: They’re not …
Mr. Savage: …and in those situations, and so we’re trying to be business friendly but we’re protecting public health. So we thought about a way a businessperson who’s trying to be legitimate and somehow just got classified maybe in a different manner, and now we’re trying to work with them and with the zoning and land-use people, and the business permitting folks in the jurisdictions to get those people by. They’ve got a building, they’ve got a concrete pad, they’ve got an operation that seems to work, somehow they just got a wrongful classification and…
Chair Giunchigliani: And do you need better authority then, for those lists that you discover that, you know, one of the local governments turns in and says, hey Glenn, you know we’ve got these five illegally, we didn’t give them zoning, we don’t want them here, etc. to get those to stop. I mean, is it too drawn out a process? Is there something else we ought to be looking at as well, because if you notify them, you give them the opportunity to come in and they still don’t play? Then they should be…
Mr. Savage: We agree. Staff this past year did approximately close to 2,000 complaints – that’s up from the previous year. And there are a lot of illegal disposals and also it’s businesses who are also doing things without getting the necessary permit. So…
Chair Giunchigliani: They come in a narrow one and go beyond that. OK.
Mr. Savage: …so staff does issue normally a cease & desist order; if they would participate with us and try to get permits and work with the local jurisdictions, we will work with them. If they chose not to, then we seek counsel and go before our hearing officer, plead our case and see what the hearing officer does rule.
Member Eliason: I’ve got one question on your fees, Glenn. If they come into compliance, are we waiving, is there a minimum fine, no matter what? I guess, because some of our code enforcement side in my City, even though the code enforcement officer still signs off on it, they still have to pay a minimum fine. Are we doing that also, even if they come into compliance? Is there still a minimum fine that we are charging those guys?
Mr. Savage: We kind of keep that in a negotiation phase with the attorney and staff.
Member Eliason: OK.
Mr. Savage: We get them to pay…if they’re coming in with use permits, and we’ve seen that from the jurisdictions, and they’re bringing in a permit, they’re cleaning out the facility, you know we see that kind of compliance and are willing to work with us, sure that can go a long way in how we negotiate out a settlement. But if we do catch them illegally operating, without permits, we’re going to seek some sort of monetary penalty. Just as what we found this past week with…a call comes in, someone is recycling basically out of their house, and they’re bringing in a Ryder truck and here comes “recyclables” with the neighbors. Mr. Erskine actually went out there and busted them, if you will – they had no business license, they had no permits from us. Now will that case be written and presented to our counsel? Absolutely. Will hearing officer Schmidt or Melton hear the case? Yes. We’ll see what happens, but this group apparently had no respect for the jurisdictional laws and the solid waste laws.
Chair Giunchigliani: And I want to thank you for that, and Councilman Barlow will as well, for the work that you did with code enforcement.
Mr. Savage: We were working with code enforcement, also, in that investigation.
Chair Giunchigliani: We have a couple more questions. Steve Kirk has a couple, then Bubba.
Member Kirk: A couple of comments. First of all, I think that it’s important that we note that I look at these regulations like I look at all of our regulations and that is a work in progress. I mean, how many times do we adopt something and then discover, thinking we’ve got all the answers, and then later discover there’s a case in which our regulations don’t handle it correctly. And so I have no problem whatsoever adopting these regulations with the understanding that they’re a work in progress and we may be back, Dennis I’m sure you’re going to come back, and Glenn you guys are going to find instances out there that aren’t covered in these regulations because I can find any lawyer anywhere who can lawyer up this whole thing and ask them, just as I see this memo written by Mr. Hawley, there’s questions on every single paragraph almost. He’s questioning my trash can at my house whether that’s a solid waste bin. Now I’m not going to litigate that – I don’t really care. And so, I mean I want to move forward on this because I want to get things moving and show progress. I don’t want to lawyer this up and wait another three, or four or five months or two years while we have every lawyer around town weigh in on what is our intent. If there’s some legal issues, let them litigate them. If there’s some major constitutional problems, let them litigate them. But we need to show action. We need to take action on this kind of stuff. I think our intent is to get the bad operators out of business, make them pay fines, let the good operators pay their fees and do business as we all know that we intend to do it. And so I don’t want to lawyer this up and take any more time. I mean, I’m comfortable with the way they are right now, knowing that you and others will probably come back and want to make some significant changes with this later. But I don’t want to get stuck in this, your definitions of waste bins at my house, whether that constitutes solid waste. I don’t want to deal with that. I think it’s ridiculous. It’s a litigious society and that’s the kind of thing that we’re faced with and that’s not what we want to do. So I want to move forward on this right now.
Mr. Savage: One comment, too, we did hear from the Board a few months ago about trying to come up with a process that will work and move businesses along in tough economic times. This is our attempt with the good solid waste folks out there trying to work with us. You’ll probably hear again today from another group concerning plan review and our pool program and how we’re going to be working with them to try and speed that process along with working with contractors and pool maintenance people. So we, in environmental health, are trying to do things to be faster in our plan reviews and still grab that public health and safety flag and wrap ourselves around it and try to be also cognizant of business needs out in the community.
Chair Giunchigliani: Thank you. Bubba, you had a question.
Member Smith: Thank you, Madam Chair. Board member Kirk addressed a lot of those and so has Glenn, a lot of the comments I had and I appreciate that. If we’re going to decide, again, I think of our charge to protect the public safety and health. And we’re talking about businesses that are operating, they’re in violation – they’re operating without business licenses and without permits. Our leniency cannot even extend so far and I appreciate Board member Kirk and Crowley’s and that six-month extension, I think that would be fair. And when we’re talking about the types of businesses that are operating without permits, without business licenses and so I think we’re being very lenient but we’re being very proactive at the same time saying we want you to stay in business, we know this is important to our society as a whole, and so we’re giving you this opportunity. We’re going to give you six months and a potential six-month extension to get it right and get the permits, to make sure you have the licenses and so I agree we need to move forward. We need to either find those that are willing to work with us and those who are going to do it without permit and license and be able to eliminate those types of individuals. So I think it’s very fair and I almost thought we were too lenient as I read through it the first time and in this discussion I think we’re being very proactive and need to move forward.
Chair Giunchigliani: Thank you. I kind of see it almost as allowing some businesses to self-report, oops we didn’t do it, we’re going to play by the rules and give them an opportunity to come in to play. And if they don’t, those are the ones we need to go after as far as that’s concerned. And I appreciate what Susan’s saying. I think it is a guiding document, it’s fluid still at this point, so may be part of, if we do adopt it, is that maybe in six months we get a report back on how is it being implemented, are there issues that we still need to take a look at. And maybe one thing that might help for future regulations is once public comment and you make changes that have been suggested, maybe if there’s a different way to underline it or highlight it so we know. Because I think you did incorporate, but it was hard to go back and forth and that might be something that just might help us see where you did respond and react to the public concerns that were brought up. And that said…Susan you have a…
Member Crowley: I do have to compliment you, though. You did provide us a document that went a long way towards helping us understand how we responded as a regulatory group to the comments that were offered. But I think you’re right, it would have been helpful if in the regulations we could have seen where the language changes occurred. I think it would have been helpful for the regulated community, too.
Mr. Campbell: And we can always incorporate that, because we will be making more changes to our other regulations, and they are fluid documents.
Member Crowley: I do want to compliment for that document you provided for you.
Mr. Campbell: Thank you.
Member Crowley: Very helpful.
Member Strickland: I just have one question and I haven’t heard it answered yet, and that may be something that everybody’s assumed and it may be it’s already happened, but I’m assuming that this document was reviewed by our legal counsel with respect to the concerns that were concerns that were addressed on the language.
Stephen F. Smith: Yes.
Member Strickland: OK.
Chair Giunchigliani: And any of the court cases that are in litigation as to what those cases are, I’m assuming. Yes, David?
Member Steinman: I’m trying to consume all this for the first time. And I’m hearing let’s fine people and put them out of business. Can I ask you what the authority you have to collect those fines once they are assessed? Is there a lien? What’s the process for all your fines and getting that money?
Mr. Campbell: Through the NRS we do have the ability to, through the Solid Waste Management Authority, there is the ability to assess penalty dollars. We don’t have the authority to issue liens on anything. We assess a penalty and they fail to pay then we can bring them back before the hearing officer as a failure to comply with a hearing officer order through the hearing officer process. And we do also have an ability to go to a collection agency to ask them to have them collect these penalties through the collection agency.
Member Steinman: So if they have no intent to comply, ultimately we may not see those fines.
Mr. Erskine: We also, in the cases where there are assets, and/or there egregious violators, we ask our attorney to take the case to District Court and get a District Court ruling and I know one case that went to the point where the judge was threatening the individual with jail time if they didn’t comply.
Chair Giunchigliani: Good question. Thank you. OK, is there a suggestion for a motion? Susan?
Member Crowley: There may be others from the public…
Chair Giunchigliani: Oh, I apologize. Is there anyone else who wishes to testify from the general public? Seeing none, we will close the public hearing. OK, Susan?
Member Crowley: And I was really waiting to see whether or not there was anybody else in the audience that wanted to speak. Knowing that the only public comment we really got was that the whole structure needs to be re-thought, re-scoped, and that’s a much bigger effort that we can try to accomplish today or even in the next couple of weeks. I would move that we would accept the language as it sits, as it’s been provided to us, with the exception that we extend the extension from three months to six months to give our staff the possibility to do that.
Mr. Campbell: We can do that.
Chair Giunchigliani: Is there a second?
Member Kirk: Second.
Chair Giunchigliani: OK. Moved and seconded that we would adopt the regulations as proposed with the change from a three-month extension to a six-month extension. All those in favor say “aye.”
Board members: Aye.
Chair Giunchigliani: Those opposed? Motion carries. Thank you very much. We appreciate your work.
A motion was made by Member Crowley to adopt the proposed regulations as submitted with the change of a three-month extension to a six-month extension; seconded by Member Kirk and was unanimously approved.
