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Home My WebLink AboutMINUTES - 08091988 - 3.5 9 3.5 The Board of Supervisors of Contra Costa County, California Adopted this Order on_August 9, 1988 , by the following vote: AYES: Supervisors Powers, Fanden, McPeak, Torlakson, NOES: None ABSENT: Supervisor Schroder ABSTAIN: None SUBJECT: Request of Delta Diablo Sanitation District The Board received a letter dated August 5, 1988,from Ronald A.Tsugita, General Manager/District Engineer, Delta Diablo Sanitation District, 2500 Pittsburg-Antioch Highway, Antioch, 94509, requesting the Board to approve the District operating a landfill facility outside the District's boundary. Since the Board agreed to consider this matter with Agenda Item No. S.3 relative to the presentation of ballot measures on landfill matters to the electorate for the November 1988 election, Supervisor Schroder did not participate in the discussion because of a possible conflict of interest concerning one of his insurance clients. All persons desiring to speak on this matter were heard. Board members discussed the pros and cons of the proposal and were in agreement to defer action 'On this request for one week to afford them further opportunity to review this request since no action was taken This day on Agenda Item S.3 because of a tie vote. THEREFORE, IT IS BY THE BOARD ORDERED that the request of Delta Diablo Sanitation District is CONTINUED to August 16, 1988. IT IS FURTHER ORDERED that County Counsel is REQUESTED to respond to concerns expressed by Board members and the public. I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: August 9, 1988 PHIL BATCHELOR,Clerk of the Board of Supervisors and County Administrator By f ASA Deputy Clerk CC: County Counsel Community Development Director Delta Diablo Sanitation District Q (Contra Costa County Sanitation District No. 7-A) OFFICE AND TREATMENT PLANT: 2500 PITTSBURG-ANTIOCH HIGHWAY: ANTIOCH, CA 94509 TELEPHONE: (415) 778-4040 August 5, 1988 FA S Mr. Robert I. Schroder, Chair Contra Costa County J 1988 Board of Supervisors ELOR 651 Pine Street PH CLERK BOARD OOF F SUPERVISORS Martinez, CA 94553 4 TRA COSTA CO. De u SUBJECT: LANDFILL SITING OUTSIDE DISTRICT BOUNDARY Dear Mr. Schroder: This fiscal year Delta Diablo will spend $200,000 for hauling and disposing of sewage sludge at the East Contra Costa Landfill. When that site is closed, the District will have to find an alternative site or implement some other method of disposal. After considering various options and related costs, the District Board initiated a study to evaluate alternative landfill sites in East County. Several sites in East County have been identified and evaluated. Should the District choose to pursue development of a disposal facility, the following plan of action is anticipated: 1. Prepare a development plan including detailed cost estimates for site work, drainage, and access roads; 2. Submit a plan and cost data to the County Board of Supervisors for its consent to the purchase of the land and its use as a disposal site, and to other agencies for comment; 3. Submit the plan to the County planning agency for general plan conformance; 4. Retain an appraiser to determine the fair market value of the land; 5. Present an offer to the landowners and negotiate a price; 6. If no agreement is reached, hold a public hearing to initiate condemnation proceedings to show public convenience and necessity. A political subdivision of the State of California.Provides Wastewater Treatment services to the citizens of Antioch, Pittsburg,and West Pittsburg. Mr. Robert I. Schroder Page 2 August 5, 1988 As you are aware, the District cannot acquire land for a disposal facility within the unincorporated area of the County until the Board of Supervisors has, by resolution, consented to the use of the proposed site for that purpose. The District therefore requests that the Board of Supervisors grant permission to the District to own a landfill site outside the District boundary. The Board's consent does not relieve the District of filing an application, preparing an environmental impact report, and receiving final approval from the Board. Very truly yours, 0A rc/ Ro ald A. Tsugita eral Manager/District Engineer RAT:dcw cc: Nancy Parent, Chair = ' i ATTACi_ 2,NT #13 COUNTY COUNSEL'S OFFICE CONTRA COSTA COUNTY MARTINEZ, CALIFORNIA Dote: October 26, 1987 To= Board of Supervisors From. Victor J. Westman, County Counse Res Delta Diablo District' s (7-A) request for Board of Supervisors ' consent to use of Marsh Creek area site for landfill facility. --__ SUMMARY: Board of Supervisors ' approval of the proposed Marsh Creek site landfill facility pursuant to Health and Safety Code § 4741 requires compliance with the provisions of the California Environmental Quality Act. INTRODUCTION: On May 26, 1987 Supervisor Torlakson provided the Board with a draft letter from the Delta Diablo Sanitation District (hereinafter called 7-A) requesting Board of Supervisors ' consent to a landfill facility proposed in the Marsh Creek area (the Marsh Creek site) . On July 28, 1987 the District' s Manager provided the Board with a second letter which specifically indicates that the District deserves the Board of Supervisors ' consent to its purchase and use of the Marsh Creek site as a disposal facility. At the July 28th meeting the Board of Supervisors asked this office for its opinion whether the provisions of the California Environmental Quality Act (Public Resources Code §§ 21000 ff. ) apply to this request. As noted in the above Summary, this office believes the provisions of that Acti are applicable . i DISCUSSION: 1. Co. Sanit. Dist. Law. The Delta Diablo Sanitation District (7-A) is organized under the provisions of Health and Safety Code §§ 4700 - 4858. Health and Safety Code § 4741 provides that a sanitation "district [7-A] shall not acquire land for . . . and operate, a . . . disposal facility . . . until . . . the Board of Supervisors of the County, if it is proposed to be located in the unincorporated area . . . , has by resolution, consented to the URP of._the--proposed si a or that nurcosell . i Section 4741 clearly provides a county board of supervisors with a', great deal of discretion to approve �or deny such request. 2. CEQA. , Except as provided in it, the California Environmental Quality Act (CEQA) applies to discretionary projects proposed to Board of Supervisors October 26, 1987 be carried out or approved by public agencies (Pub. C. § 21080) . In part, CEQA projects mean activities directly undertaken by a public agency -or activities involving the issuance of a permit, license or other entitlement for use by a public agency (Pub.C. § 21065) . "CEQA" applies to situations where a governmental agency can use its judgment in deciding whether or not to carry out or approve a project. A project subject to such judgmental controls is called a "discretionary project" (State CEQA Guidelines § 15001(i) . The Board of Supervisors ' exercise of discretion pursuant to Health and Safety Code § 4741 appears clearly to be a "discretionary project" for the purposes of CEQA and not merely a "ministerial" decision where the Board cannot use personal , subjective judgment in deciding whether or not the project should be approved. In other words , the requested Board of Supervisors' decision pursuant to § 4741 is a "discretionary project" (Guidelines § 15357 ) and not a "ministerial" project (Guidelines § 15369) for the purposes of CEQA. For 'this reason., compliance with CEQA is required before the Board of Supervisors may make a § 4741 decision. (e.g. , EIR or negative declaration) . The exemption or exception provisions of the California Environmental Quality Act (§§ 21080 et seq. ) and the implementing exemption provisions of the State CEQA Guidelines has been reviewed and none of them expressly provide an exemption for the proposed disposal site activity. It would appear difficult to argue that the establishment of the proposed disposal facility would not have any potentially substantial adverse environment effects . 3. Use Permit. As the facts are known to this office, Sanitation District No. 7-A is required pursuant to Chapter 418- 4 of the County Ordinance Code to obtain a "use" permit before it can establish a waste disposal site in the unincorporated area of the County (Ord. C. §§ 418-4.006 (3) & 418-4 . 008) . Since the degree of discretion which the Board may exercise on any such "use" permit application is almost equivalent to that which it exercises pursuant to Health and Safety Code § 4741, an argument could be made that other than allowing the district to purchase the property it cannot establish a disposal facility thereon until it has a Chapter 418-4 "use" permit from the County. Since the. - district cannot establish the disposal facility use on the property based alone on the County' s § 4741 consent, it might be possible to justify a CEQA negative declaration as sufficient for giving § 4741 consent. -2- Board of Supervisors October 26, 1987 A substantial problEm with this argument is that the County' s authority to require a "use" permit pursuant to Chapter 418-4 is based, in large part, on the' provisions of Government Code S 53091. Pursuant to the provisions of Government Code S 53096, by a unanimous vote of its board, Sanitation District No. 7-A may be able to render the County' s zoning (Chapter 418.4 ) ordinance inapplicable to its proposed- disposal facility use of the Marsh Creek site. For' this reason, full CEQA compliance for a S 4741 consent review can't be deferred on the basis that there will later be' a use permit requir.ed .when. that LUP requirement might .be . rendered inoperative by the District. If the Sanitation District and the County agreed that in consideration of the Supervisors providing a S 4741 consent the District could option the site but not acquire it and establish the use untiZit had actually obtained a Chapter. 418-4 permit from the County, that a?Lqxee nt might support the position that a negative declar on is adequate 'or there is no CEQA project with this S 4741 - nsent because the District by agreement must still obtain a e permit after full CEQA review. This possible agree t arrangement assumes that the use permit would only-be iss d if found to be consistent with thea p�1iC4b1e general P3.an. .If here is any, desire in pursuing this type of agreed r lationship with the district, the. agreement could also require ompliance with any other appropriate conditions desired by the County for such a .disposal site (e.g. , opened to. waste from .all areas of this county without discrimination, off-site mitigation :. ... measures, etc. ) . 4. Solid Waste Plan. Sanitation District No. 7-A in order .to establish a Marsh Creek disposal ' site will have to obtain .further approvals from the County but those approvals are not granted solely at the discretion of the Supervisors. In order for the Sanitation District to- establish a disposal facility it must be done in compliance with the County's Solid Waste Management Plan (Govt.C. S 66784) . But the Board of Supervisors cannot make , provision on the Solid Waste Plan for such use unless a majority of the cities in the County representing a majority of the incorporated areas population agree. Further, any such waste site in order to be operated must obtain a solid waste facilities permit from the County's Health Department. But the granting of this permit resembles to some extent the issuance of building permit where if an applicant has met the prescribed statutory . requirements (Govt.C. S 66796.32(c) ( 3) , (d) ) , the permit usually. must be issued. 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