Loading...
HomeMy WebLinkAboutMINUTES - 09271994 - H.1 r' H-1 TO: BOARD OF SUPERVISORS Contra FROM: Harvey E. Bragdon Costa Director of Community Development t.lt.Ju nty DATE: September 27, 1994 SUBJECT: AMENDMENT 1 TO LAND USE PERMIT 2020-89 FOR THE KELLER CANYON LANDFILL SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION RECOMMENDATION Approve Amendment 1 to Land Use Permit 2020-89 as set forth in the September 27, 1994, Amendment Document (as recommended by the County Planning Commission and the Community Development Department). FISCAL IMPACT Provisions in Amendment 1 would aid the Board of Supervisors in adjusting individual fees the County charges on wastes delivered to the Keller Canyon Landfill to fit within the caps (on the overall fees) approved by the Board,-on September 13, 1994. The Amendment would eliminate specific fees now set in the Land Use Permit for resource recovery programs and for general transportation and open space programs to enable the Board to set the fees in franchise agreements and other instruments. As a consequence of.the Amendment, the proportion of the overall fees allocated to individual programs may drop. BACKGROUND AND REASONS FOR RECOMMENDATION The Board of Supervisors, on June 28, 1994, directed staff to prepare a proposal for amending Land Use Permit 2020-89 to enable the Board to revise and reduce these County fees paid by the Keller Canyon Landfill which were established by the Land Use Permit, and to eliminate the obligation that the County set the Landfill's fees. The Keller Canyon Landfill Company had requested that these fees be reduced. The Board's direction reflected legal and institutional changes to solid waste regulation which occurred after the Landfill's Land Use Permit was approved on July 24, 1990. CONTINUED ON ATTACHMENT: X YES SIGNATURE: fir' 1-An�ve-'! E. RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE APPROVE OTHER 5 SIGNATURE(S): t ACTION OF BOARD ON September 27 , 1994 APPROVED AS RECOMMENDED OTHER x See Addendum A for Board actions . VOTE OF SUPERVISORS x UNANIMOUS (ABSENT I I HEREBY CERTIFY THAT THIS IS A TRUE AND AYES: NOES: CORRECT COPY OF AN ACTION TAKEN AND ABSENT: ABSTAIN: ENTERED ON THE MINUTES OF THE BOARD OF SUPERVISORS ON THE DATE SHOWN. Contact: Charles A. Zahn (510) 646-2096 ATTESTED September 27, 1994 cc: Community Development Department (CDD) PHIL BATCHELOR, CLERK OF THE City of Pittsburg BOARD OF SUPERVISORS AND Keller Canyon Landfill Local Advisory C NTY A INISTRATOR Committee (via CDD) Keller Canyon Landfill Co. (via CDD) BY: `� , DEPUTY Bay Point MAC (via CDD) CAZ:rw RCZ3/ke1-amd 1.bod Board Order Amendment 1 to LUP 2020-89 for KCL September 27, 1994 - Page 2 - BACKGRO ND AND REASONS FOR RECOMMENDATION (Cont'd) The regulatory situation in effect in 1990 evolved from the state Solid Waste Management and Recovery Act of 1972 (S.B. 5). That legislation required each California county to prepare a County Solid Waste Management Plan on a countywide basis. In practical terms, it meant that waste facilities virtually had to be provided within each county and through a city-county consensus. Opportunities for importing or exporting waste across county lines were very limited, as was the prospect for competition with landfills located in other counties or states. Local governments were primarily concerned with preserving the capacities of local landfills for local use. Local governments proposing to allow the importation of waste, even on a temporary basis, faced intense local opposition. Accordingly, when the Keller Canyon Landfill was approved, its Land Use Permit Conditions of Approval required rate controls and provided for a number of fees to be paid for various County programs. Subsequent to the opening of the Landfill in 1992, a series of U.S. Supreme Court decisions had the effect of overturning state and local "flow control" regulations as being inimical to interstate commerce. These decisions combined to create immediate competitive situations in which companies controlling landfills are overtly competing for local waste streams and in which parties controlling waste streams are seeking the lowest prices or other economic advantages. The Keller Canyon Landfill believed that it is now placed at a disadvantage for the dual reasons of being a state-of-the-art landfill meeting the latest mandated (but expensive) federal and state construction standards and requiring the transfer of processed waste, and having to pay a package of high local fees. Consequently, the Board of Supervisors entered into discussions for lowering disposal costs, including the lowering of County fees. The Board of Supervisors' discretion in changing fees depends on the means by which they were established: Board Order (e.g., fees specifically authorized by the state), ordinance, Franchise Agreement, or Land Use Permit. Those established by Land Use Permit require formally amending the Land Use Permit unless discretion is provided for in the terms of the conditions. The Keller Canyon Landfill Company applied for an amendment to Land Use Permit 2020-89. A set of changes to the original Land Use Permit Conditions of Approval pertaining to the fees and related matters was prepared for consideration by the County Planning Commission. It was designated Amendment 1 to Land Use Permit 2020-89, Amendment Document dated September 13, 1994. It was further described in a Staff Report prepared for the September 13, 1994, Planning Commission meeting. It was the subject of a duly noticed Planning Commission public hearing on September 13, 1994. The Commission closed the hearing to public testimony but continued the matter for decision to September 20, 1994. Staff revised its recommendations and advised the Commission to eliminate changes to Conditions 5.1 and 5.2, which were being interpreted as providing new authorizations for the Keller Canyon Landfill to import out-of-County waste. The Commission acted to recommend that the Board approve the revised amendment. It is before the Board as the Amendment Document dated September 27, 1994. Copies of the documents before the Planning Commission were transmitted to the Board via a memorandum from the Community Development Department dated September 22, 1994. Copies of the Planning Commission's resolution and the revised Amendment Document (September 27, 1994) have been transmitted to the Board through a memorandum dated September 23, 1994. RCZ3:kc1•amd 1.bod ADDENDUM A On September 20, 1994 the Board of Supervisors continued to this date the hearing on the recommendation of the Contra Costa County Planning Commission on the request of the Keller Canyon Landfill Company (applicant and owner) for approval of Amendment 1 to Land Use Permit 2020-89 which regulates Keller Canyon Landfill . Amendment 1 proposes to delete or revise conditions of approval established by LUP 2020-89 pertaining to fees paid by the Landfill to Contra Costa County. These include fees for transportation and open space, and resource recovery. Some fees may be eliminated or reduced. Rate setting conditions would be modified. Area-of-origin provisions would be revised for consistency with recent federal court decisions . Amendment 1 does not propose any physical changes to the Landfill facility or site, or any changes to its operating requirements . None of the fee changes affect mitigation measures imposed by the Landfill' s Environmental Impact Report . A Notice of Exemption has been filed pursuant to the California Environmental Quality Act, in the Bay Point/Pittsburg area. Charles Zahn, Community Development Department, presented the staff report before the Board today and he commented that the main purpose of the amendment is to enable the Board of Supervisors to adjust County Government fees which are now locked in by the specific terms of the land use permit which is to say to adjust those fees to fit under the cap that the Board of Supervisors has approved, and with a secondary purpose being to accomplish housekeeping changes to the land use permit by rescinding, modifying or replacing conditions that are related to the main changes where the original language has become obsolete. Mr. Zahn also commented on the original permit holders' proposed amendment represented by the Amendment document dated September 13 , 1994 , and the amendment recommended by the County Planning Commission and staff dated September 27, 1994 with the only difference in those two being on conditions 5-1 and 5-2 on the area of origin of waste taken by the Keller Canyon Landfill . The Board and staff discussed the issue of the area of origin. Mr. Zahn commented on the key changes in the amendment including the area of origin, the recision of specific resource recovery fee amounts and related changes, the substitution of rate review condition language, and the recision of the general fee conditions in the land use permit pertaining to condition of approval 35 . 1 . He also commented on issues that the Planning Commission had addressed in their hearings . The Board and staff discussed the issue of modifications to condition 35 . 1 . The following persons appeared and presented testimony: Lance J. Dow, 2232 Concord Drive, Pittsburg, requested that the Board deny the Land Use Permit amendments; Frank Aiello, 1734 Bridgeview Way, Pittsburg, representing Citizens United, presented a written statement regarding numerous CEQA violations that have not been addressed; Norm Tuttle, 1258 Upper Happy Valley Road, Lafayette, representing Valley Waste Management, commented on a letter he had submitted; Randall Morrison, 753 Miner Road, Orinda, representing Valley Waste Management, responded to Board concerns on waste from other jurisdictions and road impact mitigations; Supervisor Bishop expressed that she would like staff to address various issues including the dollar amounts collected for both open space and transportation since the date of operation at Keller Canyon, the expenditures and what fees are committed or designated and how they are to be spent and how much is being spent in reserve, a scenario of what the Central County solid waste volume would be and also various cities that are currently contemplating looking at franchising and directing their waste . Supervisor Torlakson spoke in support of getting that information and he requested that County Counsel review if the Board were to change the language, what would be a time period for contesting that, and he requested more information as to how that can be done if Browning Ferris Industries stipulated to some change could another party besides BFI contest it and unravel that level of commitment . Also, he expressed a need for further analysis of what it would cost and what time delay there would be if the County is litigated on the CEQA issue. IT IS BY THE BOARD ORDERED that the hearing on the above matter is CONTINUED to October 4, 1994 at 2 P.M. in the Board chambers . Text of item H. 1 and 2 .4 from September 27, 1994 Supervisor Bishop: H. 1 is a hearing item scheduled for 10 o' clock. We have some people here to speak to that item and I would request, I'm looking around for staff . I would request, would like to have the consent from the rest of the Board that we include that with 2 .4 or whatever the other one is . The H. 1 is the LUP pertaining to fees that is coming to us from the Planning Commission and 2 .4 is to consider the tipping fees and other landfill related actions and it would be my suggestion that we consider those two items together and at this time take public testimony, have a staff report and then leave the hearing open or not leave the hearing open, perhaps close the hearing until Chairperson Powers has an opportunity to come back next week and participate in our deliberations . Other commissioners or supervisors . Supervisor Smith: I just think we should probably leave the hearing open. Supervisor Bishop: Leave the hearing open. Okay, any other comments . Okay. With that Mr. Zahn you have a report or Mr. Alexeeff . Chuck Zahn: Madam Chair, members of the Board, you have before you Amendment 1 to the Land Use Permit 2020-89 pertaining to the Keller Canyon Landfill . The main purpose of this amendment is to enable the Board of Supervisors to adjust County Government fees which are now locked in by the specific terms of the land use permit which is to say to adjust those fees to fit under the cap that the Board of Supervisors has approved. A secondary purpose of the amendment is to accomplish housekeeping changes to the land use permit by rescinding, modifying or replacing conditions that are related to the main changes where the original language has become obsolete . The items before your Board are first of all the original permit holders proposed amendment . This is represented by the Amendment Document dated September 13 , 1994 . It' s also covered, described in the staff report to the Planning Commission of the same date . Secondly, you have the amendment recommended by the County Planning Commission and staff and this is the amendment document dated September 27, 1994 . The only difference between those two proposals is the elimination of changes to conditions 5-1 and 5-2 which deal with the area of origin of waste taken by the Keller Canyon Landfill . Supervisor Bishop: - Could you cite me to that again Mr. Zahn. Chuck Zahn: The only difference between the two amendments . The first one as proposed by the applicant and the second one as comes to you from the County Planning Commission which is also the staff' s recommendation. The only difference there is that the latter does not include changes to conditions 5-1 and 5-2 . And these pertain to area of origin. Otherwise the two amendment formats before you are identical . Supervisor Torlakson: What do you mean by area of origin? Chuck Zahn: Area of origin pertains to the area that waste can come from to be eligible to be taken at the Keller Canyon Landfill . Supervisor Bishop: Specifically, I believe it was the concern of staff and the Planning Commission that the importation which was not contemplated at the time of the adoption of the original land use permit brings a different concern and but what they under the land use permit what they are talking about is that that be incorporated under the franchise agreement as being held as I love it when I look out and I see a blank face of someone that I'm not making any sense okay. Val Alexeeff : We can answer that . The issue is that at the time that the permit was approved every county had to have their own landfill and counties were extremely worried about giving up their capacity to import and so the condition was put in, it was similar to the context that we had with both altamont and portrero for the fact that they had all sorts of conditions on importation of our waste. And I think that the issue that we have here is that this all preceded the Supreme Court decisions that there couldn' t be any restrictions and the abdication of this issue from the State Solid Waste Management Board, so we were trying to adapt that into the use permit and we found that there was a tremendous amount of opposition to that recommendation which we thought was just a clarifying process . Supervisor Bishop: Do you have any questions or comments before we open the public hearing. Okay, yes Mr. Zahn. . Chuck Zahn: Did you want me to finish the list Madam Chair? The key changes in the amendment are first of all dealing with the area of origin which we've already covered. As Mr. Alexeeff indicated, staff had regarded this as an improvement in language. Others had regarded it as a new substantive approval . Rather than get into the controversy, the recommendation was to retain the original language . Second, is the recision of specific resource recovery fee amounts and related changes . By this series of amendments one would eliminate the specific fees of $100, 000 and $200, 000 per year for resource recovery in the land use permit and enable the levels to be taken up through franchising agreements and other Board approved instruments . Third is the substitution of rate review condition language. It would rescind the condition of approval the Board to set rates for the Keller Canyon Landfill and substitute a new condition 12 . 1 which is discretionary. Fourth, there would be the recision of the general fee conditions in the land use permit pertaining to condition of approval 35 . 1 which is the transportation system impact fee at $2 a ton and the elimination of the open space agricultural recreation fee, again at $2 a ton, enabling the Board to set levels they deem appropriate in other instruments . The remaining changes that are of a housekeeping nature and I won' t go into these unless there are questions that arise later. The basic issues that arose during the consideration by the Planning Commission of this Amendment are first of all the area of origin already explained but I may also note that the basic policy with respect to imports and exports was set in the 1993 County Intermittent Waste management plan. Secondly, there was the California Environmental Impact Quality Act status of the Transportation and Open Space Agriculture recreation fees . There are those laid the claim that these fees specifically mitigated impacts identified in the Environmental Impact Report . In the staff report, we pointed out that these fees originated after the environmental impact reports were certified and that the environmental impact report did not require a general purpose fee to mitigate a specific potential impact . The Board may wish to regard these kinds of fees as a general form of mitigation but they were not in the pattern, the system that was adopted to mitigate impacts in the environmental impact report . That concludes my report . If there are any questions, I' d be happy to answer them for you. Supervisor Bishop: Are there any questions at this time for fellow board. . . Supervisor DeSaulnier: Actually, I do of Val . Val, we had city managers here a week, two weeks ago saying that they had to get back to waste management vis a vie franchise agreements by the 15th. What happened. Have they just continued their discussions as the rates have started to move downward. Val Alexeeff : Yeah, my understanding, but it clearly is second- hand, is that they' re in negotiations right now. And in item 2 .4 you have a matrix comparing the three. Well, we haven' t received anything from Waste Management because they feel it would be premature to provide any information in the middle of negotiations . So, the negotiations are continuing. Supervisor DeSaulnier: So, this has been another drop dead date passed onto cities that has come and gone? Val Alexeeff : Apparently. Supervisor DeSaulnier: Okay, thank you. Supervisor Bishop: I don' t see Supervisor Smith. But I do know in connection with that that he did meet with the Central County Solid Waste Authority and you know in connection with that, they have indicated a willingness and an interest in our joining that authority and as an authority, they are looking at franchising and they are looking at requests for proposals that are due on October 15th. Is that correct . Val Alexeeff : Yeah, it' s gone from September to October. We will be presenting a little bit more detail on that under item 2 .4 . Supervisor Bishop: Okay, I thought we were doing it together but I guess . This is so complex and trying to figure out what goes together. It' s all solid waste and it would seem but you would rather keep the two issues separate . Is that your choice? Val Alexeeff : Well, my our let' s say inclination is to have both items discussed at this time to the extent that you want to discuss them but to have the hearing item opened and discussed first so that the testimony would be specific to the use permit and not to the general issues of waste disposal . Supervisor Torlakson: Madam Chair, that question prompted a thought with me which is we took action last week on some of the issues related to the fees and any consideration of changing the land use permit I think also has to be kept in mind of what commitment we have or what context of initial policy direction we've taken related to other fees, so for instance the recycling fee was originally put in. I think I was an advocate for that originally because we wanted to reduce the amount of waste going into the system. We wanted to promote more recycling. If we' re going to accomplish that goal through the franchise fee formula, I would feel that' s fine that we remove it from the land use permit . The other fees that Mr. Zahn mentioned that are specifically under conditions 35 . 1 . Listed now at $2 a ton are the open space and the transportation fees and what I'm checking in terms of the Planning Commission recommends and what you also say is possible, is it possible to keep that in the land use permit as general mitigation for open space, transportation, community mitigation, host community mitigation rather than having it earmarked in the categories that it currently is . Is that what you said that that potentially that is another option for the Board to consider. Chuck Zahn: That is the case . I said that those two fees were not mandated to mitigate specific impacts identified in the Environmental Impact Report . However, the Board wishes to treat these as general policies that' s a matter for the Board' s discretion. Supervisor Torlakson: And they could be kept, condition 35 . 1 could potentially be modified to more generic language not maybe $4 total, not specifically towards transportation or open space but in some general description. Chuck Zahn: That or any other variant would be at your discretion. Supervisor Torlakson: I just wanted to clarify that Madam Chair in the context of our discussion last week. Vic Westman: Well, could I perhaps comment . I don' t completely understand Mr. Zahn' s answer. The land use permit specifically mandates at this time that you require $2 for X and $2 for Y and the reason for the amendment before you today is to remove the mandatory nature of requiring those fees . You could still have the ability to require them for those specific purposes . If you' re going to now require a fee that isn' t that is simply a fee that is simply available at your discretion to be paid, I can only advise you that that may be subject to challenge by the applicant if he wishes to pursue it as not justified by a nexus connection to the entitlement itself . Assuming the applicant acquiesces to that type of condition, then I think we could defend it . Supervisor Torlakson: So, potentially, just to clarify that Madam Chair with Counsel' s additional thinking here that that condition could be batched to be $4 totally and it could say transportation/open space/other community concerns that we would have some discretion over. But it could be challenged in terms of the nexus to the EIR or to the land use. . . Vic Westman: No, I am concerned about a nexus condition. You realize presently the land use permit authorizes, in fact appears to mandate $2 for transportation and $2 for open space. The statute of limitations in which to challenge those specific conditions expired quite a while ago. If you simply change them from mandatory to discretionary on your part as to whether they' re levied, then I think arguably we can defend them against any legal challenge as the statute of limitations has run but if we now add a third category from which those funds can be expended, we will then become subject again to someone during the period of the statute of limitations challenging that fee . Usually that would be the applicant thought and if the applicant is agreeable to that then we've probably mitigated any legal challenge . Supervisor Bishop: Okay, with that clarification and I will reserve my comments until we have public testimony. With that, we' ll open the public hearing and at this time I only have on H. 1 three speaker cards and so I will take them in this order. Lance Dow. Lance Dow: Morning members of the Board. Lance Dow. Citizen of Pittsburg. This is pretty complex and it seems like every week it gets more complex and we just got a packet from staff that is about a half inch thick and it' s difficult to go through it so there' s not a whole heck of a lot I can comment on. Other than to say you' re talking about a lot of different issues here and it' s all lumped into one. I would liked to have seen it split apart but you know the public would have better chance to comment on them. Supervisor Bishop: Actually, we will be taking 2 .4 separately for comment . Lance Dow: Oh, okay. I thought that you' d said that you' d put them together. Supervisor Bishop: I intended to but we've had a report on H. 1 and we' ll just go ahead and take it separately. Lance Dow: Okay, that' s fine . As far as the amount is concerned, I' d just like to read something Mr. Zahn has stated that there weren' t specific things in the EIR but obviously there were some commitments made to both Contra Costa County taxpayers and the overall citizenry of this County. I' d like to read something. This is from a letter from former Supervisor Sunne McPeak and this goes to basically conditions 35 . 1 and 35 . 2 and it was to Val Alexeeff . Val the host community mitigation was publicly debated and set at $2 per ton and will be used to offset impacts in the host communities in consultation with those communities . The $2 for transportation is intended to offset impacts on roads, litter control and landfill related traffic enforcement per the conditions of approval . Specific impacts are not known today, therefore, we purposely have not earmarked the funds but have no doubt that over the life of the landfill we will see impacts on the transportation systems and roads that more than require the money collected and held in trust . The $2 for open space and agricultural land preservation was publicly debated. The charge is critical since for some time the Board has promised to capitalize the agricultural soils trust fund. The open space component is very important to others and Keller will take valuable open space out of existence and we need to replace it, signed Sunne . Now, that kind of in a nut shell tells you the commitments that were made to the taxpayers, to the host communities next to the landfill and to the citizens of Contra Costa County. Now BFI, they don' t care about our welfare, let' s face it . They' re here fighting for their economic life. We've been through this for quite some time now. They don' t care about Contra Costa. They don' t care if their waste goes anyplace else as long as the money comes in the till . But it' s your job to protect us . It' s your job to protect the taxpayers . It' s your job to protect the host communities . It' s your jobs to make sure that the roads are taken care of, that we don' t have disruption in our roads and streets . So, as far as I'm concerned it' s your duty and that duty is even bound in County Ordinances . I would ask you to hold BFI to their commitments . Deny the LUP Amendments and keep the funds in the trust funds so that they will be there for the taxpayers and Contra Costans in the future . Thank you. Supervisor Bishop: The next speak, thank you Mr. Dow, the next speaker is Frank Aiello. Mr. Aiello and following Mr. Aiello is Norm Tuttle. Frank Aiello: Good afternoon members of the Board, Chair Bishop. Here we are again and as Mr. Dow said everything gets more complex. My name is Frank Aiello. I am representing Citizens United. We have two issues before us today. I' ll talk about one of them now and talk about one of them later. I have a statement that I was going to read but I will submit for the record and this statement regards numerous CEQA violations that have not been addressed. The other thing is I think there' s a falsity out here that BFI is deregulated. The fact is they' re not . They' re not deregulated until this land use permit has been changed and the fact is two weeks ago, you got a rate proposal of $39 a ton for 17 months I believe . For 16 or 17 months but it was a rate proposal . Now according to the land use permit, condition 12 . 3 , this has not been amended yet . When you got this application. Form and content of rate review application. The landfill operator shall submit its rate application in a form and content as specified by the County. Such application may require the landfill operator to submit the application on forms and are using computer software provided by or specified by the County. The County shall have the right to inspect and audit, audit all records of the landfill operators which support its rate review application. They are not deregulated as of this time . They are still rate controlled by this Board and they have not followed this permit which is the amendment to delete and if we delete it then we don' t know what we' re giving away. It could cost them $10 a ton to run this landfill, but we don' t know that do we because we've never seen the books . And my question is really simple, why. What has changed? What has changed to delete these $4 in fees . What has changed? The only thing that' s changed is that there are going to be potentially more impacts . You' re going to have more traffic, not less . That' s the change . Yet we want to eliminate the fees . It doesn' t sound right . Eliminate but increase . There' s a little problem there . That' s what your staff is recommending to you. And the fact that your staff is telling you that they' re deregulated and the fact is they' re not . So, my question really is where is the rate application. Where is the full financial statement as required by condition 12 . 5 with that letter that you received two weeks ago. And that' s all . I' ll defer my other comments until later for condition 11 . 1 of the LUP. Thank you. Supervisor Bishop: Thank you, Mr. Aiello. The next speaker is Norm Tuttle . Norm Tuttle : Thank you and good morning. My name' s Norm Tuttle . I live in Lafayette . I'm a lawyer representing Valley Waste Management . We' re pleased to be here supported by the ghost of Sunne . . . . (direction from Chair on adjusting the microphone) . . .okay, so I'm pleased to be supported by the ghost of Sunne McPeak on our position. I'm also pleased to be representing the folks who helped and deserve a little of the credit for the apparent miracle of Keller Canyon, the prices of Keller Canyon have miraculously come down since they've had competition, the kind of competition that we've always argued would be good for the public policy. We' re here because we think that the staff has not given you the appropriate advice in how you address the subject of changing conditions to theland use permit but the mitigation steps which are now before you for elimination were imposed as part of the very careful environmental impact CEQA process,.. They all use the word mitigation. The fact that they were imposed a few hours after the certification of the EIR makes no difference . , They came out of the knowledge that this supervisory board gained at those meetings and have all the strength and validity of anything that a drafter, we' re all human beings . Stuff that' s written in the draft EIR is not the only gospel that impacts what an EIR is all about . So, the things that came in as these special conditions that you' re now being asked to throw out to help make some other lawsuit or something else go away. That' s not the right way to do it . The EIR process has procedures which allow the public to be involved in any changes in the kinds of commitments to the citizens of this County which were made to allow that landfill to go forward. We think it would be a big mistake to brush them aside and not follow CEQA and go ahead and say oh it' s just another government tax that we can willy nilly change if we want to. It' s not that simple . We have submitted in the interest of time we have submitted a letter which outlines in more detail the points we' re making with just one last factual thing. The staff reiterates the fact that it' s okay to eliminate these mitigation events because they really weren' t mentioned as specific events in the draft EIR. That is blatantly erroneous . There are expressed references which are in our letter to the fact that the road conditions will require specific types of maintenance surcharges . Those are in there. You' ll see them in the letter. It' s not fair to represent to the public that they weren' t and even if they weren' t the stuff that wasn' t in there that came up out of the deliberations is entitled to equal dignity. Thank' s very much. Supervisor Bishop: Are there any questions of Board members of Mr. Tuttle . You' re with Crosby, Heafey? Supervisor DeSaulnier: I had a question of Mr. Tuttle . You' re representing Valley Waste Management? Okay. Are you currently taking waste from any other jurisdictions in Contra Costa County to your landfill . Norm Tuttle : I was afraid you'd ask technical questions . I can' t . .Randy Morrison' s here and Randy Morrison is a lawyer with our office that regularly and he' s across the street, I'm subbing for him. He can answer some technical questions right now. Randy. Supervisor Bishop: I believe if I can presume I would like to hear his answer buy my understanding is that San Ramon has the ability to direct their waste under their franchise with Valley Waste Management and they have directed that their waste go to Altamont and it can that directive can change at any time . Randy Morrison: Okay, if I could address your question first Supervisor. San Ramon is currently directing its waste to Altamont Landfill pursuant to its existing franchise agreement . That is what is going on and we are currently negotiating with other members of the joint powers authority, City of Walnut Creek and Central Contra Costa Sanitary District along with San Ramon for a long term contract in which these three jurisdictions would send their waste to Altamont . Now, Altamont by the way also has fees and Norm didn' t speak about those yet but they also have mitigation fees just as you do. And our concern is that this Board take actions that are responsible in terms of mitigation needs in this County just as Alameda County has with regard to our landfill there, Waste Management' s landfill . Supervisor Bishop: I'd like to follow up on that question. You are directing the waste is going from San Ramon to altamont . Randy Morrison: Correct . Supervisor Bishop: In what way can we in Contra Costa the concerns raised about transportation over roads and being somehow compensated for the impacts in Contra Costa for those you know the wear and tear and maintenance of those roads which the LUP envisions . We are talking about an amount and Supervisor Torlakson has always I know been very concerned about the impact on his community. Let me share with you, San Ramon is in my district and though it is fairly close to the Alameda County line, you do travel over Contra Costa roads with your haulers . In what way can we capture some funds that would mitigate those impacts on Contra Costa roads from your haulers . Randy Morrison: Well, I'm not sure I'm in the position to give you legal advice but I can give you a tip. The Alameda County Waste Management Authority actually already collects a mitigation fee on all waste that comes in from Contra Costa County. It' s a $4 . 53 fee and it consists of two components . One that' s very relevant to what you' re considering today is a general open space capacity mitigation component which consists of $3 . 80 . $ . 70 or the balance is devoted to transportation impacts . Now, I suppose there' s nothing in principle that precludes your County from talking to Alameda County about sharing those funds and I'm not making any recommendation but those funds are for transportation mitigation and there certainly has been discussion at the Alameda Waste Authority about some kind of collaboration with your County on fees . So, this is not a novel idea on my part . That' s what they' re doing in terms of transportation. Supervisor Bishop: What authority do we have for obtaining those funds though. We it just their generosity. Supervisor Torlakson: Good neighbor. Supervisor Bishop: Good neighbor. Supervisor DeSaulnier: Got some swampland I' d like to talk to you about . Randy Morrison: As to authority, as to specific legal authority, I'm not sure I can give you an answer right now but the fee is collected on imported waste so I suppose there' s an argument that everybody' s who' s impacted by the transportation of that waste ought to have some access to the fee . That' s common sense answer I guess . Supervisor Bishop: But currently there is an obli, there is no obligation for spending that fee other than in Alameda County on Alameda County roads . Randy Morrison: That' s correct as I understand it . Supervisor Bishop: The $4 . 53 is there litigation currently with respect to that $4 . 53 because my understanding the Supreme Court decision is that it is an impairment of interstate commerce to impose such a fee and my understanding is that there are certain people going to challenge that $4 . 53 . Randy Morrison: Short answer is there' s no litigation nor do I know of any litigation that' s currently planned but everybody' s well aware of the vulnerability of this fee to a commerce clause challenge . It' s no secret . It' s been talked about at the waste authority. No one' s yet taken any legal action on it . May I ask add a comment or two to what Norm said. Our concern is to use a quote Tom Bruen at the Alameda Board of Supervisors hearing is a level playing field. In Alameda, we pay mitigation fees . In Contra Costa, Keller should pay mitigation fees that are appropriate . Now a few months ago when I was here, I said that the Board was on the right track in letting the competitive process work to bring down garbage rates and that' s been very effective . Our concern today is that you not cut corners on CEQA to accomplish the rate reduction which you know is important and everybody knows it' s important . We think there are specific references to roadway impacts in theEIR which have been overlooked and we pointed those out in our letter. Likewise when it comes to the open space and the host fee, I realize the host fee' s in the franchise agreement, staff has taken the position that those are just general generic mitigation fees and they' re not tied into anything in the EIR but I think that overlooks a very important point . It' s true that the EIR doesn' t say you have to impose a mitigation fee to take care of this but the EIR says these are impacts of a general nature so what the Board should ask as it did a couple of years ago is are these mitigation fees appropriate responses to these mitigation needs and if the mitigation fees are appropriate, you should keep them. So, our suggestion is take another look at the CEQA process because what the County' s purporting to do right now is file a notice of exemption that says ladies and gentlemen there' s no CEQA issue here. It' s impossible for there to be a CEQA issue . There is a CEQA issue and we ask that you look at it so that the County cuts square corners when it makes these decisions which we all recognize are important . Supervisor Bishop: Supervisor DeSaulnier has a question but before he goes to a question, I want to respond. . . Supervisor DeSaulnier: An observation and a question. Obviously you compete with BFI all over the world so your motives for being here aren' t completely altruistic, correct? Randy Morrison: We've never pretended that we don' t have a business interest in this matter. Supervisor DeSaulnier: Okay. If I could just finish. Suppose we take the line of questioning that Supervisor Bishop is taking to its logical or not logical but ultimate conclusion and Mr. Aiello, Mr. Dow would be very happy because Keller no longer exists and it' s no longer taking any kind of refuse, any kind of waste stream and it' s all going to you. Where is the justice to our citizens because all that traffic impact is still going across our roads but we' re getting nothing, zero and that' s the problem we' re trying to deal with is the level playing field not just for the business entities but for our constituents . Randy Morrison: Let me give you two answers . First of all, this County' s entitled to inquire about any impacts that you think affect your citizens . There' s no question about that . And if you think those issues are important and if you think they haven' t been raised, the County has the resources to pursue those inquiries . But as to Keller' s status and what' s going to happen with Keller, obviously we' re in competition with Keller for the waste stream of this County but I think your job I think as Mr. Aiello pointed out, is not to worry about who comes out on top in the competitive process and that's I think where if I may say you might have gone askew a little bit . You've been concerned about where these fees are going, what happens to Keller but if you pull back a second and ask what is the public interest here, the public interest is in number one making sure that the lowest possible garbage rates are in place and the competitive process itself will take care of that . You don' t need to help it along by making any adjustments in the CEQA process or anything else . Just stay true to your mission of looking after the public interest, let the CEQA process work and the competitive process will take care of the market place by itself . You've already seen that happening and it' ll continue. Supervisor DeSaulnier: You didn' t, you failed to answer the question though. The basis of the question is where is the justice to our citizens . We've dropped the rates but the traffic is still being impacted and that money is going to Alameda County not to relieve the traffic impacts in Contra Costa County. Randy Morrison: Well, I think there' s an assumption in your question that maybe I don' t share. The waste goes to Alameda County. Let' s say the bulk of the waste in Central County goes to Alameda County, alright . Our belief is that those transportation impacts have been already considered in the EIR process for our importation of waste. Now, if you don' t think that' s accurate. If you don' t think transportation impacts have been considered, that' s a different issue but we made a very 1. thorough, we Waste management, made a very thorough study of the transforation impacts . As part of this importation program, you remember back in 1989 and in 1991 a full EIR was done evaluating not only the traffic impacts in Alameda but in Contra Costa County, so it' s not as if this issue hasn' t been looked at . Our planners believe that that issue' s been addressed and that the traffic impacts really aren' t significant from our importation. Supervisor DeSaulnier: Well, I think maybe the question is how the traffic has changed and will change as the competitive process goes along so we have dual responsibilities in my view. Supervisor Bishop: I believe Supervisor Torlakson has a question. Supervisor Torlakson: Thank you appreciate the dialog going on. The effort to achieve these mitigations as long as you've pointed out and I don' t want to get into the length of that history but in terms of your current position as I understand it from the letter and you've made many good points in the letter. While we would have the opportunity to challenge the CEQA documents and environmental planning process of any importation to Altamont' s landfill, to your company' s landfill in Alameda County, likewise the public has a chance and you as a company have an opportunity to challenge this process if you feel it' s not correct . And I did by the way in our memo to the Board and the action we took looking at dropping the floor on rates some months back, we also referred to staff the question of whether there were any CEQA grounds to litigate the issue of impacts by export out of our County to Alameda County, so we have that referred to staff and at some time we should get a clear answer back in terms of what our legal standing is, what our potential is, whether all the is and is were dotted in the CEQA process that you just referenced that occurred some time ago. Likewise try to understand the complexity of our ability to change or not change this if we desire to change it . You've made many good arguments not to change it, but would it be your company' s position that you would be concerned on the CEQA issues enough to litigate this question if the Board did exercise some changes to eliminate those fees . Randy Morrison: Let me answer it this way. We' re not threatening to sue anybody but we are concerned that the CEQA process be implemented in an appropriate way and we've given you our thoughts fully in that letter so that you and your staff can reconsider the issue. That' s really what we want right now. We want the issue to be addressed squarely on CEQA grounds and the appropriate decision to be made that' s all . Supervisor Bishop: I have one question before we move on. In the text of your comments, you did make reference to one of your concerns was a level playing field. And that' s why you are here about our fees and concern that you know the $4 . 53 that you' re paying down there . Are you also anticipating since you are also in an area where you are competing with other individuals, are you planning on going to Solano County and talk to them when the subject of their mitigation fee being reduced. Have you spoken at those hearings? Randy Morrison: Honestly, Supervisors, we haven' t thought about Solano County. I can' t predict what we might do up there but we have an immediate issue here and we' re simply trying to provide useful information to you so the Board does the right thing. Supervisor Bishop: Okay, I was just curious if you' re interested in their getting their fees down or keeping your fees up as well . Thank you gentlemen. I have no further cards on this subject but I do have some questions . One and since we are keeping this part of the hearing open until next week, I would like some information back about the open space and the transportation. We've received this in various versions but I would like to know since the date of operation at Keller Canyon, the dollar amounts collected for both open space and the transportation. What have been the expenditures and what fees are committed or designated and how they are to be spent and how much is being spent in reserve . If we could just have one very short sheet as to how that breaks out . I would also like to know and I've seen that, maybe what you can do just drag out those old documents and just sort of spotlight them but my view of what Supervisor Torlakson is seeking and some of the rest of us as Sunne McPeak is, fairness, equity on the community that is impacted by landfill, that they get sufficient funds to mitigate those impacts . My view is that $4 . 00 as a percentage if you were to express it of 0 waste is 0 . $1 . 00 per ton as a percentage if you want to express it as a percentage of so many thousands of tons going to Keller Canyon is a given dollar amount . I' d like to see a scenario of what the Central County solid waste volume would be and also various cities that are currently contemplating looking at franchising and directing their waste. If I could have that information. Another thing I think and maybe this is not the appropriate time Supervisor Torlakson, the other day when we were talking about fees and we were talking about mitigation what I see under H. 1 is a moving off of this being governed by the land use permit which does not give you a tremendous level of comfort and certainty but I will be very clear as I did a week ago that I think there are priorities . And I think of the first of all 25 percent I think is too high. I think that is not a sufficient cut . I think we have to bring it way down but whatever we bring it way down to I believe that the first priority is mitigation of the impacts on the community that is affected by that landfill . I don' t think a high priority is going into the County General Fund. I don' t think a high priority is road maintenance that is unrelated to the landfill . What I have seen here in two years is the utilization of those funds in the communities that are impacted and utilization such as the one of the $25, 000 that went to the Bay Point Library that we were able to leverage into a $95, 000 Federal Grant . Those are the kinds of things that I feel very committed to and I think next week we' ll explore this further but I know the level of certainty that you would like to have but I also know that our first priority other than a safe landfill is to get our rates down and BFI has to do its part, ACME has to do its part but we have to do our part . Supervisor Torlakson: I support your getting that information, appreciate those comments in terms of the level of security of the fees and I think the community has deserved from the beginning, the EIR public hearing, the environmental review process, documented in various ways the need for mitigation some of the letters, including that from Valley Waste Management with specific quotes I think verify that and point it out in detail staff' s through Vic Westman' s earlier comments concern me that if we change the language in any way at this time there' s some period where this can be contested and I' d like Counsel to review that and give us some more information next meeting as to how that can be done if BFI stipulated to some change and that they would not contest it, could another party other than BFI contest it and thereby unravel that level of commitment . I think the land use permit was the appropriate place to put these guarantees to the community and that they should remain in some form if not the exact form that they' re currently there . I'm actually leaning towards leaving them the way they are from the testimony I've heard today. Also, we should get back a further analysis of what it would cost if we are litigated on the CEQA issue and what time delay there would be if we are litigated on the CEQA issue, so that was raised to us rather directly in terms of the potential of that coming if it' s not from Valley Waste Management, it might be from other parties that have a direct interest in Citizens United and other community organizations and property owners in the area may be one of those parties and so we should know the cost and the potential of time delays if we are litigated on the CEQA issues . The rate review part of this, the recycling fees, I think those could be modified as those are at our discretion to do so separate from the community impacts . There was a letter from the Alameda Waste Authority that I wanted to reference that I think was an important one . The Waste Management Authority that as I understand it our staff' s not recommending changing the language about import/export and I think that' s fine because there are Supreme Court decisions and the market will be and the legal environment will be what it is in that regard. So, perhaps Alameda County Waste Authority concerns are not appropriate here but they should be addressed and maybe some more information from staff back. We did make an agreement with Alameda County and Solano County and I believe we' re committed and should remain committed to honor that which is reciprocal waste capacity. We took our waste to their landfills for a certain amount of years, a certain amount of tons and we should reserve some capacity for their reciprocal importing to our County in direct equivalent exchange for that good neighbor action they took to help us in a time of need so I just want to make sure that we have addressed that next week. Supervisor Bishop: I am not quite certain and perhaps staff can help me on how to handle this meeting. I'm inclined because of r the connection to take up 2 .4 at this time, however, I'm looking out there at mobilehome owners who have been sitting here all morning. What' s the pleasure of the Board. I'm asking for help. Supervisor De Saulnier: How many speakers do we have on 2 .4 . Supervisor Bishop: On 2 .4 we actually have Lance Dow and that' s it . Supervisor Smith: In my sense you've declared your intent to continue the hearings . Might as well hear from Lance and then. . . Lance Dow: comments on not receiving material until last minute . Supervisor Bishop: So, with that we will continue it till next week which is October 4th at our 2 : 00 pm. Supervisor Torlakson: Madam Chair, on that I had just one observation I had as a result of our discussions last week. And I reiterated what my thinking was about our discussion and our motion that the $1 . 95 we've added into the equation is something that would disappear to the extent BFI would in one metaphor take the gun away from our head in terms of litigation claiming we' re an operator that should be responsible for the closure cost so, I wanted to just relate that that was my understanding of the $1 . 95 was to be a hedge against and a guarantee to protect the County General Fund in case we' re adversely impacted by the litigation or actions by BFI against the County and to that degree if they remove the gun, if they remove the lawsuit against us or if the cities would come forward and indemnify us as the operator and say you know we' re going to pick up any losses the County would be subject to to the General Fund, there might be room to look at that $1 . 95 in either of those circumstances and I just wanted to clarify my thinking about that . Supervisor Bishop: I'm just wondering if the back row heard you. I assume it did. Aerial is standing against the wall and i think that is something that perhaps we need to hear back from. That $1 . 95 I'm beginning to feel somewhat like an auctioneer. Do I hear any other amounts that we' re willing to take off . Anyway, with that we will keep the public hearing open, continue till next week and the next item on the agenda. . . . . .