HomeMy WebLinkAboutMINUTES - 09081987 - 2.2 a �
Tom, _
'tBOARD OF SUPERVISORS
. . .
FROM: Phil Batchelor Contra
County Administrator
DATE'. September 8, 1987 COJ*
SUBJECT: Questions Relating to Solid
Waste Management
SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION
RECOMMENDATION:
Acknowledge receipt of report from County Administrator
responding to questions regarding solid .waste management.
BACKGROUND,:
Board members have recently raised a number of questions relating
to the Board' s authority in a number of areas relating to solid
waste management. In addition, staff was asked to draft a
Request for Proposal (RFP) for a public/private partnership in
the area of olwnership and operation of a sanitary landfill. The
County retained a consultant to draft an RFP, a copy of which is
attached. Also attached are memoranda from Community Development
and County Colnsel responding to each question at some length.
Following is a summary statement of the conclusions reached by
Community Development and County Counsel in response to these
questions:
1. It is possible for the County to enter into a public/private
partnership with the current garbage haulers (see draft
RFP) .
2 . It is possible for the County to franchise solid waste,.,pick
up in the unincorporated areas of the County, although most
of this is now done by the existing Sanitary Districts. --
3 . The County cannot generate revenue by way of a tipping fee
at a privately owned disposal site, but could generate
revenue at a publicly-owned site.
4. If the County were . co-owner of a landfill site, the County
would have the same liability exposure as the private owner
would have for any dangerous condition at the site although
insurance coverage might help protect the County.
CONTINUED ON ATTACHMEN7I; X YES SIGNATURE:
_ RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
X APPROVE OTHER '
SIGNATURE(S): p
ACTION OF BOARD ON September 8, 1987 ATIPROVED .AS RECOR,RMENDED
_V_ OTHER X
The Board AUTHORIZED the County Administrator to circulate for 30 days, and make
available to inte ested parties, a Request for Proposal (_RFP) on aublic/private
sanitary landfills, o
VOTE OF SUPERVISORS
I HEREBY CERTIFY THAT THIS IS A TRUE
UNANIMOUS (ABSENT ? AND CORRECT COPY OF AN ACTION TAKEN
AYES: NOES: AND ENTERED ON THE MINUTES OF THE BOARD
ABSENT: ABSTAIN; OF SUPERVISORS ON THE DATE SHOWN.
cc: County Administrator ATTESTED September 8, 1987
County Counsel PHIL BATCHELOR, CLERK OF THE BOARD OF
CommunitytyDevDeVel Opment SUPERVISORS AND COUNTY ADMINISTRATOR
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BY ! ,DEPUTY
M382/7-83 —
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Page 2
5. The County would have complete control over the operation of
a County-owned landfill site whereas with a privately-owned
site the County has only its overall land use and general
governmental powers.
6. The County can use its eminent domain powers to acquire land
for a publicly-owned landfill site, but not for a
privately'-owned site.
7 . State law needs to be changed to provide the County with
clear authority to control the wastestream, particularly in
view, of present franchise and contractual agreements between
the cities, sanitary districts, and the garbage haulers.
8 . The County can and does play an important role in
facilitating a consensus among the cities, sanitary
districts; and the garbage haulers. The County can "veto"
the location of a landfill site in the unincorporated area
of the County and can arbitrate the location of a landfill
site in either the incorporated or unincorporated areas of
the County although it has no land use authority within
cities.
9. Through the use of the land use permit process, the County
can condition a landfill site in such a way as to require
the use of the latest state-of-the-art technology.
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DRAFT
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REQUEST FOR CONCEPTUAL PROPOSALS
FOR
SOLID WASTE LANDFILL ACQUISITION, PERMITTING, AND DEVELOPMENT
AND
ASSOCIATED WASTE MANAGEMENT
WITHIN
CONTRA COSTA COUNTY, CALIFORNIA
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BLACK & VEATCH
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August 25, 1987
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TABLE OF CONTENTS
Page
GENERAL INFORMATION
INTRODUCTION 1
PROJECT BACKGROUND 1
CRITERIA FOR SOLID WASTE LANDFILL DEVELOPMENT 7
MANAGEMENT AND FINANCIAL ARRANGEMENT 7
GENERAL PROVISIONS 7
QUALIFICATIONS PROCESS
SUBMITTAL REQUIREMENTS 10
PRE-BID CONFERENCE 10
INQUIRIESI 10
SELECTIONIPROCESS AND SCHEDULE _ 11
EVALUATION CRITERIA
PROJECT APPROACH 12
SOLID WASTE FACILITY OPERATING EXPERIENCE 12
FINANCIAL, STABILITY 12
PROPOSAL QUESTIONNAIRE
SECTION AI - GENERAL INFORMATION QQ-1
SECTION B; - TECHNOLOGY AND PERMITTING QQ-3
SECTION C SOLID WASTE FACILITY DEVELOPMENT QQ-4
AND OPERATING EXPERIENCE
SECTION D - FINANCIAL CAPABILITY QQ-5
FIGURES
FIGURE 1 LOCATIONS OF PROPOSED PRIVATE LANDFILL SITES 3
FIGURE 2 LANDFILL SITING TASK FORCE POTENTIAL SITES 5
FIGURE 3 CRITERIA FOR SOLID WASTE LANDFILL DEVELOPMENT 8
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P72j 1 TC-1
DRAFT August 25, 1987
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GENERAL INFORMATION
Introduction
This Request for Proposal (RFP) is being issued by the County
Administration of Contra Costa County (County) as the first step in the
selection process to obtain a full service contractor (FSC) and/or separate
public agency to acquire, permit, finance, design, construct, operate, and
maintain a solid waste landfill and associated facilities to serve the
Contra Costa County area for a minimum of 20 years. The County, with its
consultants, will evaluate the proposals and select the most qualified
firms and/or agencies for more detailed consideration. Contract negotiation
or requests for contract proposals may be issued to one or more qualified
firms of agencies following the RFP selection process.
Project Background
Solid waste in Contra Costa County is currently taken to three County
landfills: the Contra Costa Waste Sanitary Landfill (CCWSL) near Antioch,
the Acme Landfill near Martinez, and the West Contra Costa Sanitary Landfill
(WCCSL) near Richmond. All of these landfills are approaching the limits
of their permitted capacity.
The CCWSL serves East Contra Costa County and Concord except for
residential and commercial refuse from West Pittsburg and the City of
Antioch. It also receives dewatered sludge from the Delta Diablo Sanitation
District wastewater treatment facility located near Pittsburg. If the -
CCWSL continues to serve its present collection areas, its closure date is
estimated to be between 1992 and 1994.
The Acme Landfill serves Central Contra Costa County, Antioch, and the
City of Benicia. It also receives incinerated sludge ash from the Central
Contra Costa Sanitary District. Acme Landfill's Army Corps of Engineers
permit allowing landfill disposal in this site's primary disposal area will
expire on June 15, 1989.
The WCCSL serves West County and a small portion of Southern Marin
County and receives dewatered sludge from the West Contra Costa Sanitary
District. Depending on availability of landfill expansion permits, the
WCCSL will reach capacity between 1993 and 2002.
P72h1 1
DRAFT August 25, 1987
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Projections of future waste quantities for Contra Costa County indicate
that if the waste stream that is currently discharged to County landfills
continues to be deposited in existing County landfills and no new landfills
or expansions to County landfills are permitted, the capacity of all
existing landfill sites in Contra Costa County will be exhausted by 1991.
At the time of writing this solicitation, two privately proposed
landfill sites, the Kirker Pass Waste Management Landfill and the East
Contra Costa Sanitary Landfill, are before the County for consideration of
land use entitlements. A third privately proposed site, the Central
Landfill, withdrew its application in December of 1986 after its EIR had
been certified and hearings on the land use entitlements started. The
Central Landfill proponents felt that they could not achieve the necessary
votes for the landfill. Figure l shows the location of the three privately
proposed landfill sites.
The following is a description of the two privately proposed landfill
sites which have submitted applications for land use entitlements.
Kirker Pass Waste Management Landfill. This proposed landfill is located
on the northwesterly side of Kirker Pass Road less than 1 mile northeast of
the City of Concord and 2 miles southwest of the City of Pittsburg. The
site consists of approximately 480 acres. Of this total area, approximately
90 acres would be filled. The landfill has a total capacity of 26 million
cubic yards. If the upper canyon is purchased and becomes part of the
landfill site, the capacity would increase to approximately 80 million
cubic yards. The expansion is not proposed at this time. The site has
been proposed, as a Class II Landfill, which could accept designated waste,
non-hazardous solid waste, and inert waste. Access to the site would be
from Highway 4 via Railroad Avenue through Pittsburg.
East Contra Costa Sanitary Landfill. The proposed landfill is located a
half-mile south of the City of Antioch. The site consists of approximately
850 acres. Of this total area, approximately 330 acres would be filled.
The proposed site is estimated to have a capacity of 71 million cubic
yards. The site has been proposed as a Class III Landfill but has been
P72h2 2
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DRAFT August 25, 1987
designed to comply with Class II Landfill criteria. Access to the site
would be from the west end of Fredricksn Lane. Fredrickson Lane can be
accessed from Highway 4 by using Lone Tree or Hillcrest Avenue in Antioch.
Additional landfill capacity is needed as soon as possible in Contra
Costa County. The new landfills now being considered are each to have a
minimum capacity to handle half the County's total waste stream for at
least 20 years. Siting efforts will continue until additional landfill
capacity is available to handle all of the County solid waste stream for a
minimum of 50 years. After this capacity is attained, the remaining capa-
cities of landfills in the County shall be closely monitored; and if the
sum of all capacities results in less than 50 years of capacity for all of
the County's solid waste stream, new landfill siting efforts and/or expan-
sion proposals should start immediately. It is recognized that resource
recovery could extend landfill lives significantly. . Resource recovery is
encouraged and, when major resource recovery programs are implemented, the
waste stream reduction from these programs should be considered when
calculating total remaining capacity.
By County policy, all new landfills shall meet Class II standards.
Class II classification is necessary in order to dispose of designated
waste generated in the County. This requirement would result in standards
higher than the minimum standards in the State regulations but is justified
in order to provide. a higher level of environmental protection.
The following sites, in addition to those above, were identified by
the Landfill Siting Task Force and were recommended to the Board of
Supervisors. They are included in the County's Final Draft County Solid
Waste Management Plan as potential landfill sites. Figure 2 shows the
general locations of the sites.
Bay Pointe Landfill (Site V-1) . This potential landfill is located south
of Highway 4 just east of the Willow Pass grade. The site was identified
as Site V-I in the CCSD/County Study and has been subsequently proposed by
a private developer. A formal application for land use entitlements has
not yet been submitted to the County. The consultant for the developers
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DRAFT August 25, 1987
estimates the site has a capacity of 118 million cubic yards. Access to
the site is assumed to be directly off of Highway 4 from an improved inter-
change at Willow Pass Road.
Cummings Skyway/Canada del Cierto (Site I-2) . This potential landfill is
located north of Highway 4 and west of Cummings Skyway. The Cummings
Skyway site has an estimated capacity of 30 million cubic yards. Access to
the site will likely be off Highway 4 via Cummings Skyway.
Marsh Creek (Sites VI-4 and VI-11) . This potential landfill is located
south of Marsh Creek Road near the intersection of Deer Valley Road. The
combined capacity for VI-4 and VI-11 is estimated to be 450 million cubic
yards. There are several access possibilities for reaching the site. All
involve use of Highway 4 and then surface roads to reach the site.
Tassajara (Site VI-7) . This potential landfill is located in the San Ramon
Valley between Tassajara Road and Dougherty Road. The site has an estimated
capacity of 60 to 75 million cubic yards. Access may be from the west off
Interstate 680 or from the south through Alameda County from Interstate 580.
Big Canyon (Site IV-1) . This potential site is located along the Contra
Costa - Alameda County border west of Interstate 680. The site has a
capacity of 10 to 30 million cubic yards. Access can be off Alcosta Blvd.
from Interstate 680. -
Refuse Canyon and Altamont Area. Two other sites were designated as
possible long-term sites, meaning that they could not solve the immediate
disposal needs of the County but should be considered in the future. The
Refuse Canyon site is partially located on the Concord Naval Weapons Station
north of Highway 4. The Altamont site contains canyons in Contra Costa and
Alameda County and is north of the existing Altamont landfill in Alameda
County near Livermore.
The current policy within the County is that existing landfills will
continue to be privately owned and operated. The ownership of future
P72h6 6
DRAFT August 25, 1987
landfills shall be open to either public, private, or joint public and
private ownership.
Criteria for Solid Waste Landfill Development
As part of the Southeast County Landfill Siting Study completed in
June 1986, the Board of Supervisors, upon recommendation of the Solid Waste
Commission, adopted a list of criteria and criteria categories to judge the
appropriateness of new landfills. The criteria list is shown in Figure 3.
Management and Financial Arrangement
The selected full service contractor or separate agency shall enter
into a long-term agreement with Contra Costa County for the acquisition,
permitting, financing, design, construction, operation, and- maintenance of
the proposed landfill and associated waste management program. All
facilities and their operation and maintenance costs will be paid by the
user tipping fees and through revenues received from resource recovery.
The strategy to be used for financing the proposed activity will be
based on the financial capabilities of the proponent. The proposer will be
required to demonstrate their financial status and proposed strategies
through their responses to the Financial Capabilities section of the
Proposal Questionnaire which follows.
General Provisions
Expenses of Proposal Preparation. Each proposal prepared in response to
this RFP shall be prepared at the cost and expense of the proposer and
shall be prepared by the proposer with the express understanding that there
may be no claims whatsoever for reimbursement from the County for the cost
and the expense of its preparation.
Confidential Information. Proposals submitted in response to this RFP may
contain technical or other data whose public disclosure would cause substan-
tial injury to the proposer's competitive position or constitute a trade
secret. To protect these data from disclosure, the proposer should
P72h7 7
DRAFT August 25, 1987
FIGURE 3: CRITERIA FOR SOLID WASTE LANDFILL DEVELOPMENT
Site Evaluation Criteria
I. Proximity to residential/commercial development.
2. Proximity to parks and other recreational uses.
3. Proximity to drinking water reservoirs and canals.
4. Capacity.
5. Cost.
6. Access.
7. Historical/archeological significance.
8. Ecological significance.
9. Visibility.
10. Adequacy of on-site cover material.
11. Seismicity.
12. Restorability.
13. Uses displaced.
14. Acquirability - number of owners.
15. Anticipated future uses displaced.
16. Transportation impacts along roads leading to landfills.
17. Suitability for resource recovery.
Operational Criteria
1. Odor control.
2. Landfill safety.
3. Vector and bird control.
4. Cover - daily, interim, and final.
5. Fire and explosion control.
6. Dust control.
7. Litter control.
8. Noise generation.
9. Completed site maintenance.
10. Resource recovery activities.
11. Separation of waste from water.
12. Liner requirements.
13. Leachate control.
14. Earthquake design.
15. Surface water drainage diversion.
16. Landfill gas collection.
P72h8 8
DRAFT August 25, 1987
specifically identify the pages of the proposal that contain such informa-
tion by properly marking the applicable pages and inserting the following
notice in the front of its proposal:
NOTICE
The data on pages of this proposal, identified by
an asterisk (*) or marked along the margin with a vertical line,
contain information that is a trade secret and/or whose dis-
closure would cause substantial injury to the proposer's competi-
tive position. The proposer requests that such data be used only
for the evaluation of the proposal, but understands that
disclosure will be limited only to the extent that the County
determines is proper. If a contract is awarded to this proposer,
the County will have the right to use or disclose the data as
provided in the contract.
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DRAFT August 25, 1987
QUALIFICATIONS PROCESS
Submittal Requirements
Prospective private organizations and/or public agencies interested in
submitting a proposal for the acquisition, permitting, financing, design,
construction, operation, and maintenance of the waste management facilities
for Contra Costa County shall submit their proposals in accordance with
this RFP to be received no later than 5:00 p.m. , (date) ,
1987. Submittals should be forwarded to:
Mr. Phil Batchelor
County Administrator
Contra Costa County
651 Pine Street
Martinez, CA 94553-0095
Ten (10) copies of the proposal document, including the completed
Proposal Questionnaire, shall be submitted.
The County will date-stamp all materials received regarding the
proposal documents. Those received after the specified submittal deadline
will be rejected. Postmark time and date will not be usable as evidence
for submittal delivery time. The County will not be liable' or responsible
for . any late submittal for whatever reason. In addition, the County will
not be responsible for costs incurred in the preparation of qualification
statements and proposals. _
Pre-Bid Conference
A pre-bid conference will be held at the County Administration
Building, 651 Pine Street, in the Conference Room at (time) a.m.
on (date) . County staff and their consultant will review
the project and answer questions.
Inquiries
The County will answer all written inquiries concerning this RFP if
the inquiries are received by (date) . No interpretation of
P72h10 10
DRAFT August 25, 1987
the meaning of this RFP will be made verbally except at the pre-bid
conference (see Subsection above) .
Written inquiries must be addressed to:
Mr. Harvey E. Bragdon
Director of Community Development
Contra Costa County
P.O. Box 951
Martinez, CA 94553-0095
The responses and related questions will be sent to all organizations
or individuals who are sent this RFP.
Selection Process and Schedule
The selection of a contractor or implementing agency will be conducted
in a two or three-step process. This conceptual RFP represents the first
step from which one or more qualified firms/agencies will be selected based
on the proposal documents submitted. A formal request may be issued to _the
qualified firms/agencies inviting them to submit a more detailed proposal
or agreement. The final step will involve the evaluation of the detailed
proposals and the selection of a firm or agencies for implementation of the
project. The County reserves the right to reject any or all proposals.
Initial proposal documents will be evaluated by the County and its
consultants based on the evaluation criteria outlined in this RFP. Approxi-
mately 60 days have been allocated for the RFP process as outlined below: _
Activity Date
Issuance of RFP To be determined.
Deadline for receipt of initial proposals To be determined.
Notification to firms To be determined.
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DRAFT August 25, 1987
EVALUATION CRITERIA
The following three categories will be considered the primary elements
in the evaluation of the proposal documents.
Project Approach
Submitting firms and agencies will be evaluated on the feasibility of
the proposed approach to the acquisition, permitting, financing, design,
construction, operation, and maintenance of the facility. The proposed
team, subcontractors, and/or associates--as well as the management plan for
implementation, control, and interaction with the County--will be key
considerations, i.e. , demonstrate approach for expedient, cost-effective,
and reliable system/facility implementation. The proponent's preference
and limitations relative to acquisition, permitting, construction,
operation, performance guarantees, and financing options will also be
important elements in the evaluation. In addition, the proponent's proposed
business relationship with the County will be a key factor (e.g. , equity
split, interagency agreements, etc.) .
Solid Waste Facility Operating Experience
Proposers will be evaluated on their demonstrated ability to finance,
design, construct, �operate, and maintain successful solid waste management
facilities. Overall management and technical expertise as reflected by
experience of the organization in the operation of such facilities and
management of related environmental requirements will be important elements
in the evaluation process.
Financial Stability
Firms or agencies will be evaluated according to the following
financial criteria:
1. Overall financial condition, including ratings of corporate stock
or debt issues of the company by Standard and Poor's or Moody's
Investors Service.
2. Long-term record of the firm/agency.
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DRAFT August 25, 1987
3. Financial capacity to meet contractural commitments, including
ability to absorb possible overruns or losses.
4. Ability to secure insurance, guarantees, or bonds of required
size for this project.
5. Financial ability to take on a project of this size based upon
past and current commitments.
o Ability and willingness to enter all necessary commitments
to assure project financing, including operation over the
term of the debt.
o If the proposal is to be a joint venture, the nature of the
agreement between parties with emphasis on how financial
obligations will be assigned.
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DRAFT August 25, 1987
PROPOSAL QUESTIONNAIRE
SECTION A - GENERAL INFORMATION
1. Provide the name, address, and telephone number of the applicant and
the key contact person(s) :
Applicant:
Address:
Telephone No. :
Contact Person:
Telephone No. :
Contact Person:
Telephone No. :
Date Submitted:
2. Describe the type of organization (i.e. , public agency, corporation,
partnership, joint-venture, individual, etc.) . Provide the ownership
and organizational background of the firm/agency.
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DRAFT August 25, 1987
3. List the officer or officers who will be responsible for negotiations
and duly authorized for signing contract documents or agreements
relating to this project.
4. If the Applicant responding is a partially or fully-owned subsidiary
of another entity, indicate the company's participation in the
respondent's activities, and identify the levels of corporate manage-
ment that will be needed to approve contracts relating to this project.
5. Provide a project organization chart identifying the personnel who
will be assigned to the acquisition, permitting, design, construction,
operation, and submittal of applications to governmental authorities.
Any specific functions to be accomplished by outside contractors or
consultants shall be identified.
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DRAFT August 25, 1987
SECTION B - TECHNOLOGY AND PERMITTING
1. Identify the technological approach for the proposed solid waste
management program and facilities.
2. Outline approach for site selection, acquisition, permitting, and
obtaining other necessary approval for proposed facilities. List
critical factors, milestones, and anticipated schedule for the project
development through acceptance and start-up.
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DRAFT August 25, 1987
3. Provide cost opinions relative to planning, selection, acquisition,
permitting, design, and construction.
SECTION C - SOLID WASTE FACILITY DEVELOPMENT AND OPERATING EXPERIENCE
1. Provide all solid waste facility experience indicating the number of
years of experience and the degree of involvement on each project
relative to the following categories:
o Acquisition.
o Permitting.
o Design.
o Construction.
o Operation.
o Turnkey (i.e. , design plus construction) .
o Full service (i.e. , finance, design, construction, plus operation).
o Other activities.
2. Information° provided should state the proposer's role on each project
(i.e. , designer, contractor, subcontractor, etc.) . Identify those
presently under development as well as those already accepted and
operating. Each program or facility description should include:
o Location.
o Owner.
o Size (i.e. , tons per day processed) .
o Solid waste characteristics (residential, commercial, industrial) .
o Integrated resource recovery (i.e. , description of process,
technology, resource recovered, etc.) .
o Capital costs.
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DRAFT August 25, 1987
o Development schedule.
o Project financing arrangements.
o Annual solid waste throughput and disposal (indicate seasonal
fluctuations) .
o References.
o Information regarding solid waste franchise contracts negotiated
by the firm.
3. List experience in obtaining necessary permits, licenses, and other
regulatory approvals for location, construction, and operation of
facilities of comparable size.
SECTION D - FINANCIAL CAPABILITY
The following information or equivalent shall be provided to demon-
strate the firm's or agency's capability to perform its financial obliga-
tions and performance guarantees. Any affiliation which may have a bearing
on the ultimate financing of the project must be identified and duplicate
information provided:
1 . A copy of the firm's Form 1OKs filed with the US Securities and
Exchange Commission (SEC) over the past five years and all IOQs since
the last 10K.
2. Firms or organizations not filing a Form 10K with the SEC should
submit the following information:
o Audited financial statements for the past five fiscal years to
include, at a minimum, income statement, balance sheet, and
statement of changes in financial position. (If less than five
years available, please provide to fullest extent possible.)
o Copies of quarterly financial reports issued subsequent to the
last annual report.
o A copy of the latest Annual Report, if any.
o Any material changes in the mode of conducting business,
bankruptcy proceedings, and mergers or acquisitions within the
past five years.
o A list of the executive officers or directors, positions held,
and terms of office.
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DRAFT August 25, 1987
3. Certificate from a bonding company demonstrating the ability to obtain
a performance and payment bond in the amount of the anticipated partici-
pation cost.
4. A description of all present obligations and their bearing upon the
firm's financial ability to meet the performance requirements of the
proposed Contra Costa County project.
5. A detailed description of the business structure and funding scheme
contemplated to accomplish the goals of the Contra Costa County project
(joint private/public agency, joint venture, limited partnership,
corporation, etc.) .
6. Indicate your organization's ability to participate in the ownership
and financing of the proposed solid waste facilities. The ability to
provide construction and performance guarantees should be indicated.
The proposed degree of involvement should be identified as follows:
0 100 percent equity. I
0 50 percent equity, 50 percent County sponsored.
0 25 percent equity, 75 percent County sponsored.
7. If equity is provided, describe the business relationship and con-
tractual arrangements which would be required regarding project manage-
ment, construction costs, operating costs, waste stream control,
tipping fees=, and resource recovery revenues.
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DRAFT August 25, 1987
8. Indicate your approach to taking advantage of various tax or financing
benefits available to you.
9. Describe your firm's and/or affiliation's direct involvement with the
financing of waste management facilities. Indicate the type of
.. financial agreements reached, interest rates used, and other applicable
details.
P72k7 QQ-7
CONTRA COSTA COUN'T'Y
COMMUNITY DEVELOPMENT DEPARTMENT
File
DATE: September 2, 1987
(Revised 9/4/87 )
TO: Phil Batchelor
County Administrator
FROM: Harvey E. Bragdon
Director of Communit e t epartment
SUBJECT: Public/Private Pa re ship r chising and other Solid Waste
Matters
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In further response to your July 30, 1987 memorandum wherein you
requested information from Community Development Department and County
Counsel on nine questions, we submit the following:
Question #1: Is it possible to establish a public/private
partnership with the current garbage haulers?
Response: We interpret the question to mean, Is it possible to
enter into a public/private relationship to select, develop and
operate a sanitary landfill? We refer you to a separate memorandum
concerning a draft request for proposal.
We feel that it is quite. possible that a public/private partnership
can be arranged. The private sector has expressed reluctance to
invest large sums of money on new speculative alternative sites,
unless there is a clear indication that the site will receive strong
support. Now, may be a good time for the County, in concert with
cities and sanitary districts , to enter into a public/private
partnership.
Question #2: Is it possible to franchise solid waste pick up in the
unincorporated areas of the County?
Response: Yes .
At this time there is one good reason for the County to consider
franchising sanitary services in otherwise unrepresentated
unincorporated areas of the County. That reason is to increase the
County' s standing in the area of wastestream control and to provide
the County the same type of standing that the cities and sanitary
districts now have in the franchising of solid waste collection.
Most of the 140 , 373 unincorporated population is within the service
areas of a Sanitary District ( i.e. Central Contra Costa; West Contra
Costa; Rodeo; Crocket-Valona; Mt. View; Oakley; Bryon and Kensington
Community Service District) that administer the existing collection
franchises.
If the County decides to proceed with franchising it is possible that
the following areas may attract interest:
(A) Discovery Bay - this area is currently served by the Garaventa
interests. They have approximately 1,150 residential subscribers.
(There are considerably more housing units in the Discovery Bay than
are currently served by the collector. It is estimated that there are
over 2,200 housing units now and substantially more will exist when
buildout is complete. )
(B) Bethel Island is currently served by Garanventa interests. There
are approximately 1, 550 residential subscribers.
(C) Shore acres is currently served by Garanventa interests with
approximately 1,300 subscribers. In addition, West Pittsburg is
served by Pleasant Hill Bay Shore with an estimated 1, 500 subscribers.
If we assigned an average rate of $10.00 per month and assume the
franchise fee to be 50 of the gross revenues from the household
subscriptions than the franchise fee revenue would be $33, 000 per
year.
A few other areas may be populous enough to justify franchising if the
areas can be combined into a countywide franchise or into the closest
"city" collector. For example, Alhambra Valley and Tassajara Valley.
Because of administrative costs that may be involved and the fact that
the currently served unincorporated areas may be benefiting from the
more efficient adjacent areas, it is possible that the franchise rates
for these small unincorporated areas may be larger than is currently
paid.
Question #8 : Is there a role the County can play in serving as
liaison between the cities and the sanitary districts and the haulers?
What authority does the County have to arbitrate the establishment of
a landfill site in the unincorporated area and the incorporated area?
Response: The County does and can play an important role in these
matters. The County staff has the knowledge and resources to be
actively involved in these matters and to facilitate consensus . The
staff is ready to follow the direction of the Board of Supervisors to
facilitate liaison with the cities, sanitary districts and haulers .
The County has "veto" power over landfill sites through its land use
powers and through the Solid Waste Management Plan, the County has the
ability to "arbitrate" establishment of landfill sites both in the
incorporated area and the unincorporated area ( although it has no land
use authority in the incorporated areas) .
Question #9: What steps can the County take to help bring about the
most effective state of the art operation of landfills?
Response: County Counsel has written a legal opinion (Number 85-64)
which shows that the County has legal authority to require
state-of-the-art operation of landfills. The Community Development
Department has implemented this legal opinion by including numerous
conditions to the land use permits for two privately proposed landfill
sites. Additionally, the land use permit conditions provide that the
permit must be reviewed every five years (after the first review in
three years) to assure that the landfills meet state-of-the-art
operational criteria.
After you have received a companion response from the County Counsel,
staff is ready to meet with you to discuss the details concerning the
Board' s request.
PEK:vpl
L22:caoheb.mem
COUNTY COUNSEL'S OFFICE
CONTRA COSTA COUNTY
Date: September 4 , 1987 MARTINEZ, CALIFORNIA
To: Phil Batchelor, County Administrator
From: Victor J. Westman, County Counsel LTA
By: Lillian T. Fujii, Deputy County Counsel
Re: Public-private partnership .with current garbage haulers
To respond to Supervisor Nancy Fanden' s request that the
County Administrator explore the possibility of a private-public
partnership with current garbage haulers, nine questions were
prepared for response by either the County Counsel ' s office or the
Community Development Department. This responds to those
questions which are appropriately addressed by the County Counsel ' s
office (Questions 3 through 7, inclusive) .
Question No. 3 . Can we generate revenue by way of a tipping
fee over and above the current fee imposed?
a. What is the maximum amount that can be currently
charged with private ownership?
b. What is the maximum amount that can be currently
charged with County ownership?
Answer: The County is authorized to collect fees for the
costs of its solid waste enforcement program .(Govt.C. § 66796. 20 )
and for the preparation, maintenance and administration of the
solid waste management plan (§ 66784 . 3 ) . Both statutes prohibit
the amount of the fees collected from exceeding the reasonable
costs of the ?grogram for which the fees are authorized. Thus ,
under_ the current private ownership of landfills , the County may
not increase these fees to _landfill operators unless the costs of
its progra_ns increase and such increase is reasonable.
If the County owns the landfill, we know of no statute or
other law which would prohibit the County from generating revenue
(above its costs ) in operating the landfill_ in such proprietary
capacity. Government Code § 25823 , attached, strongly indicates
that the County ma17 operate a landfill in a revenue-generating
fashion. ( See Anaheim City School Dist. v. County of Orange
[ 1985] 164 Cal.App. 3d 697 , 699-700 , 210 Cal .Rptr . 722 . )
There have been several statutes adopted within the past
several years (Govt .Code 5§ 54985 , 54990 ) prohibi-ting the County
from imposing fees in excess of the reasonable cost of providing a
Phil Batchelor, County Administrator September 4 , 1987
service. We have reviewed these provisions , and are of the
opinion that -they probably would not cover a tipping fee charged
by the County as the owner and operator of a public disposal site.
Question No. 4: What liability would the County assume as a
co-owner of a landfill site?
Answer No. 4: The County would generally assume the same
liability that a private owner of a landfill would have. The
County would also be liable for any dangerous condition at the
site. The County could attempt to shield itself by obtaining
insurance coverage or by entering agreements requiring a private
contractor to assume responsibility for the site . However , a hold
harmless agreement is generally only as good as the private
contractor is financially sound and/or has adequate insurance .
Insurance coverage for many types of liability (e.g. , claims based
in inverse condemnation, civil rights violations , antitrust
violations, etc. ) may be prohibitively expensive to obtain.
In responding to this question it is assumed that if the
County ultimately decides to become involved with the owning and
operating of a landfill, it will proceed to do so in a legal
manner which will not subject it to antitrust liability by private
proponents of landfill sites.
Question No. 5 : What authority does the County have to
control the operation of a landfill site:
a. Under private ownership?
b. Under County ownership?
Answer No. 5 : As to a privately owned landfill in the
unincorporated area of the County, the County' s authority over the
operation of the landfill would be limited to its land use and
general governmental powers . Specifically, the County would have
some ability to control the operation of a landfill pursuant to
land use entitlement conditions, and the ability to .require
compliance with general governmental regulations pursuant to its
authority to enforce laws on minimum requirements on the operation
of landfills . Attached hereto is a copy of County Counsel opinion
no. 85-64 , which contains a general discussion on the County' s
ability to regulate operations at a landfill_ pursuant to its land
use powers .
If a landfill is owned by the County, the County would have
complete control (pursuant to its police power, and as property
owner ) over its operation subject only to state and federal laws .
-2-
Phil Batchelor, County Administrator September 4 , 1987
Question No. 6 : What authority does the County have under
its eminent domain powers to condemn land for a publicly held site
or a privately held site?
Answer No. 6 : The County has authority under the eminent
domain laws to condemn property for a public use (a public site) ,
but not for a private site. Thus, there could be legal problems
if a public-private partnership proposed a County eminent domain
aquisition of property for private ownership.
Question No. 7 : What authority does the County have to
control the destination of the waste stream?
Answer No. 7 : The County Counsel ' s Office has in the past
provided opinions concerning waste stream control. In opinion no.
84-93, copy attached, the issue of controlling the waste stream
through a County solid waste management plan was discussed. It
was generally concluded that although a County plan would be an
appropriate forum for controlling the waste stream, a change in
state policy should be made. In opinion no. 85-64, another waste
stream control issue was addressed. In that opinion (pages 8
through 10 ) , the same conclusion was generally reached.
Currently, and in practice, franchising cities and districts
have the ability to direct the waste stream, subject to contrary
provisions in the various franchise agreements. The County would
similarly have the ability to contractually direct the waste
stream as to the unincorporated areas where it has the authority
and elects to franchise garbage collection service. (See Answer
to Question No. 2 . )
LTF:df
-3-
j:
x
F +
25820 COUNTIES—BOARD OF SUPERVISORS Title 3
Notes of Decisions
I. in general
i iwhich similar dumps are operated howev-
Allegations in count of complaint er dump may not be operated in negligent
a;;anscounty brought y o
it ty bht bwners whose
ii manner or in such manner as to consti-
property was damaged by fire spreading
tute a nuisance. Id.
1 ,
from county dump, that county maintained
Bump in such manner as to be injurious A city may, instead of collecting and
io and to cause an obstruction to free use disposing of garbage and rubbish itself,
{ ( of plaintiffs' property and so as to inter- grant an exclusive privilege to engage in
i fere with comfortable enjoyment of life such activities. rlatula v. Superior Court
and property properly alleged nuisance. (1956) 303 P.2d 571,146 C.A.2d 93.
Lehr v. Santa Cruz County (1959) 342 As respects validity of ordinance, a gov- 4
1'.2d 957,172 C.A.2d 697. P a
eruing body' of a political subdivision such
E°= Grant of power to county to maintain as a county is empowered to regulate the
_ud operate .1 refuse dump including burn- Handling, transportation, and disposition
iu of refuse thereon
g protects county of garbage within the area over which the
from liability for ordinary operation of subdivision's jurisdiction extends. Ex
J ' dump and county has right to operate parte Lyous (1933) 30 P.2d 745, 27 C.A.
dump in usual and customary manner in `'d 162. r
M.
25821. Use by other agencies
The board may permit the use of any dump site, incinerator, or
other disposal plant, by lease or otherwise, by municipalities or other
governmental agencies. (Added Stats.1947,c.424,p.1132, § 1.)
Derivation: See Derivation under§25520.
1
Cross References
€ _ Authority to make contracts for disposal of garbage anti -other refuse matter, see IIealth
and Safety Code§§4121 et seq.,4760 et seq. a
§ 25822. Acquisition of necessary property
The board may acquire by gift, devise, condemnation proceedings,
or otherwise such real and personal property and rights of way as it
deems necessary and proper to the exercise of the powers set forth in
this article, and may pay for and hold such property. (Added Stats.
F 1947, c. 424, p. 1132, § 1.)
Derivation: See Derivation under§25820.
Cross References TFI
Acquisition of property for public use,see§ I84.
Corporations subject to eminent domain,see ConstituLion,art.12, j S.
" Eminent domain, see § 154; Const. art. 1., §§ 14, 141/2; Civil Code § 1001; Code of
-, Civil Procedure§ 1237 et seq.
250023. I'iwgulation of use of facilities; restrictions; compen-
sation
The board may make and enforce all necessary and proper regula-
tions for the use of disposal facilities not in conflict with the Constitu-
tion and the laws of the State. The board may collect compensation
536
_4 E
ii II.
COUNTY COUNSEL'S OFFICE
CONTRA COSTA COUNTY
MARTINEZ, CALIFORNIA
S Date: May 10 , 1985
To: internal Operations Committee, Board of Supervisors
From: Victor J . Westman , County Counsel
By: Lillian T . Fujii , Deputy County Counsel
Re: Solid waste - landfill site regulation through LUP , control
of waste stream
SUNSIARY:
1. The Board has broad discretion in determining what con-
ditions may be imposed upon the grant of a land use entitlement .
2. The County has no general statutory authority to regulate
disposal fees ( "tipping fees" ) at privately owned and operated
sanitary landfills (disposal sites) . However , under emergency
circumstances , the County may be able to so regulate provided the
sanitary landfill is located within its jurisdiction, and such
regulation is "reasonable. " If the County is interested in regu-
lating rates at privately owned disposal sites in non-emergency
circumstances , it could seek legislation expressly authorizing
such regulation as part of the franchising of disposal sites .
3 . Under the police power , the County may be able to impose
an entitlement condition upon the operation of a privately owned
landfill requiring that , with respect to communities capable of
establishing curbside recycling , only wastes from those com-
munities with such a program be accepted . However , depending
upon the facts , such a condition could conflict with State law
(Govt .Code 966757 , see discussion) , and he subject to lege l
challenge.
4 . The County may not control the waste stream ( in its
incorporated and unincorporated nren) by imposing conditions upon
a land use permit to operate a snnitnry landfill in the unincor-
porated area of the County . if the Board 1.wishes to control the
waste stream, amendments to State statutes and/or rel;ulations
will be required.
r �-
Internal Operations Committee , May 20 , 1985
Board of Supervisors
Regulations ( 1977 ) 52 . 122 . ) Since that commentary , the police
power of local public entities in California has "expanded" , and
local public entities are able to regulate local affairs to an
extent and in ways previously not believed to be within local
authority.
A more recent commentary summarizes the current ability of
cities and counties to impose conditions and exactions , as
follows :
" . . . As a general rule , the courts will
uniformly uphold the constitutionality of
local government ordinances or regulations
requiring dedication or payment of a fee as a
condition of land use approval where the
following conditions are met : ( 1) the local
government is acting within its police power;
(2 ) the conditions have a reasonable relation
to the public welfare ; and (3 ) the local
government does not act in arbitrary or
unreasonable manner . . . . " (Curtin, California
Land-Use and Planning_Law ( 5th Ed. , Jan.-1985)
Pg. 105 . )----------
1 . Reasonableness of Condition .
Historically, the most significant " limitation" upon the power
of the County to -impose-conditions upon the granting of a con-
ditional use permit was the requirement that the condition be
"reasonably related" to the public need . Many cases required a
showing of public needed as created by the development to support
a condition or exaction . (See Scrutton v . County_of_Sacramento
[ 1969 ] 275 Cal .App. 2d 412 , 79 Ca1 .Rptr . $7 •, Mid-W_aV_C_abinent_etc_
Mfg__v__County of San_Joaquin [ 1967 ) 257 Cal .App. 2d 181 , 65
Cal .Rptr . 37 .� -
The requirement that the enaction bear a " reasonable relation"
to the public needs has been liberalized in recent "exaction"
cases . In the case of Associated_llomebuilders ,_ Inc . v ._City_of-
Walnut_C_reek ( 1971 ) 4 (Ja1.3d 633 , 638-640 , 94 Ca1 .Rptr . 630 , 484
P. 26 606 , the Supreme Court upheld a provision of the Subdivision
Map Act authorizing the imposition of park dedication requirements
without a direct showing that the subdivision proportionately
increased the need for recreational fncilities . The _Associa_te_d_
Homebuilders case was a subdivision case , but is viewed as -
i
-3-
, t '
Internal Operations Committee, May 10 , 1985
(t. Board of Supervisors
upon the party who assails the classifi -
cation. ' (Board of Education v. Watson [ 1966 )
63 Cal . 2d 829 , 833 . ) " (Amusing Sandwich_._
Inc. v. Citv of Palm Springs T1-MT-1 5
Ca1 .App. 3d 1116 ,' 1226..
The case of N4sh_v__Ci1y of_S_anta_Monica ( 1984) 37 Cal .3d 97 ,
207 Cal .Rptr . 285 , provides another recent example of this liber-
alined view of regulatory police power legislation. In that
case the Court upheld an ordinance which prohibited the demolition
of rent-controlled residential structures if the owner was
receiving a fair rate of return on his investment .
3 . Ordinance.
The existence of a valid ordinance was once believed to be a
condition upon the ability to impose exactions or conditions upon
the granting of a land use entitlement . ( See L ongtin, California
Land Use Regulations [ 1977 ] §21 . 122 [ 21 . ) In the recent case of
Soderliny_v._City, of Santa Monica ( 1983) 142 Cal .App. 3d 501 , 191
Cal.Rptr . 140 , the Nur t_o Appeal upheld as a condition of
approval for a tentative map for four condominium conversion pro-
jects , a requirement that smoke detectors be installed , even
though no ordinance expressly authorized that condition . The
Court noted that support for the condition was found in a General
Plan objective to provide safe housing for all ; that such regula-
tion did not require an ordinance , and that the condition was
valid since it was not prohibited by statute . (Soderling, supra ,
142 Cal .App. 3d at p. 506 . )
Currently , the County regulates the issuance of land use per-
mits for disposal sites pursuant to Contra Costa County Ordinance
Code Chapter 418-4 . The current code has been drafted to provide
the Board of Supervisors with broad discretion in determining
whether and pursuant to what conditions , the Board may issue a
permit for the operation of a disposal site . ( See C .C.C.Ord .C.
9418 -4 .014 , )
4 . Comment .
Although it is clear that under the police power , the Board
may impose reasonable regulations upon the operation of a busi -
ness , and that broad discretion is granted to the Board in deter-
mining whether and to what extent a condition or exaction may be
imposed upon the grant of a land use entitlement , there have been
�� -5-
Internal Operations Committee , May 10 , 1985
�( Board of Supervisors
Of course , the inability of the Board to require continuing
surcharges does not limit the Board ' s ability to require other
mitigation measures to benefit neighboring communities (e .g . ,
requiring the operator to pay for public improvements necessitated
by the project , etc. ) Although an applicant may "volunteer" to
comply with or perform conditions which the Board could not unila-
terally compel , if a legal challenge is brought , we doubt that
such an annual surcharge condition will be validated by the Court
given that it isrohibited by the State Constitution
( "Proposition 13 "S . Of course, the County ' s electorate could
validly authorize the surcharge as a special tax .
D. Acceetance_of Waste_Onlyy_from_Communities_with Curbside
The Board is interested in knowing whether it may require ,
with respect to urban communities where curbside recycling is
feasible , that the operator may only accept wastes from those com-
munities where curbside recycling has been implemented .
Such a condition and any other condition promoting recycling ,
could find support in the current Solid Waste Management Plan ,
which we believe could be an important tool to validate land use
conditions to foster recycling. ( See Garden Grove_Sanitarv_
District v. -Me County of_Orange [ 1984T 162 Ca1 .App . 3d 842 , 208
Cal .Rptr . 777 ; Soderi ing_v __the C_i-ty_of_S_anta_Monica_ [ 1983 ) 142
Cal .App. 3d 501 , 191 ;a1 .Rptr . 140 , condition supported by General
Plan . )
We have no doubt that the fostering of recycling is a legiti-
mate °goal under the police power in that it promotes the public
health and welfare . The shortage of landfill space is a serious
threat to the public and to the environment . Given that the
determination of what is reasonable is , under current law, largely
a legislative prerogative (see _Birkenfeldv . City_of Berkeley
[ 19763 17 Cal .3d 1299 159 , 130 Cn1 .Rptr . 465 , 550 P. 2dd 1001T, the
proposed condition, in our opinion , may be a reasonable exercise
of the police power .
However , our opinion on this point is not without caveat .
This is the type of condition which regulates ongoing businesses
which has never really been " tested" by appellate review. We are
further concerned that this proposed condition may , depending upon
the facts at that particular time , be in conflict with State law,
specifically , Government Code §66757 . (A police power regulation ,
to be valid , may not conflict with general law, including State
statutes - Ca1 .Const . Art . XI , 57 . ) Government Code 566757
(hereafter , all section references are to the Government Code)
provides , in part , as follows:
-7-
Internal Operations Committee , May 10 , 1985
( Board of Supervisors
currently be in violation of general law - State solid waste
policy ( regulations) .
State solid waste policy, as set forth in Section 17334 of
Title 14 of the California Administrative Code , provides as
follows :
1117334 . Ownership of Waste Materials .
Solid wastes subject to collection by a
collection service operator shall become the
property of the collection service operator
subject to loc&l ordinances or contract con-
ditions after such time as the authorized
collector takes possession of the wastes . "
This state regulation vests ownership of wastes in the collec-
tors subject only to contract conditions and local ordinances . A
direct attempt by the County to control the waste stream in cities
and franchising sanitary districts would be inconsistent with this
adopted State policy.
In our opinion No. 84-93 , this office discussed , at length ,
the many issues related to controlling the waste stream through
the solid waste management plan. Attached hereto is the first
page of said opinion , in which the matters discussed are sum-
marized . We concluded that subject to several limitations and
considerations , if the Board wished to control the waste stream
through the County ' s Solid Waste Management Plan , current state
regulations (especially 14 C.A.C. 517334) should be amended and
existing local (city and sanitary district ) plans be considered.
If the Board desires to unilaterally ( i .e . without the
cooperation of the majority of the cities containing a majority of
the incorporated population) control the entire County ' s waste
stream, a number of considerations , including current statutes ,
must be considered . For example, solid waste management and
planning pursuant to the solid waste management plan is vested in
both the County and a majority of the cities containing the
majority of the incorporated population ( 566780 . 1 ) . Prior to the
enactment of the Nejedly-Z' berg-Dills Solid Waste Management and
Resource Recovery Act of 1972 ( §66700 et seq . ) , control over the
collection and disposal of waste was entirely a municipal func-
tion , left to the individual local jurisdictions . (Matula v .
Superior_Court_[ 19561 146 Cal .App. 2d . X13 , 104 - 105 , 303 P. 2d~871 ;
Ca1 .Const . Art . X1 , §7 . )
-9-
Solid Waste, County has limited control 84-93 pg . 1
C COUNTY COUNSEL'S OFFICE
CONTRA COSTA COUNTY
MARTINEZ, CALIFORNIA in,nn
Date: August 13 , 1984 11J'OJIr
To: Supervisor Tom Powers
From: Victor J. Westman, County Counsel ! .l
By : Lillian T. Fujii , Deputy County Counsel
Re: Waste stream control and solid waste management plan
SUIWIARY: Control of the waste stream within the County may
be possible through the planning process , i . e. , through a county
solid waste management plan , subject to a number of limitations
and requirements imposed by general and specific solid waste laws .
However , it appears that State policy must first be changed.
QUESTION: Can a county solid waste management plan be used
to "control " the place of deposition of wastes generated in the
County? In other words , may the plan require that waste be depo-
sited at a particular location , e. g. , at a specified waste- to-
energy plant , when contrary provisions may have been made in . local
( cities and sanitary districts ) ordinances or franchise
agreements ?
DISCUSSION.
1 . Summary-of_Discussion :
Although control over the collection and disposal .of wastes
has been traditionally a municipal function , the State, through
the Nejedly-Z' berg-Dills Solid Waste Management and Resource
Recovery Act of 1972 , has "entered" the field. By this act , the
State has established State policies on the subject of waste , but
has entrusted local government , through a county solid waste
management plan , with primary responsibility for solid waste
planning and management . It may be possible to direct that wastes
must be taken to a waste-to-energy plant in a county plan, however
current state regulations should first be amended and existing
local plans considered .
If current (city, sanitary distict , etc . ) local ordinances
and/or contracts have provisions contrary to those in a county
plan , it must be determined whether they implement " local plans . "
If they do , such " local plans" will prevail over contrary provi -
sions in a county plan . If existing agreements ( franchises , etc. )
are required to be nullified , there is a question whether such
action is an unconstitutional abridgment of contract rights .
Finally, antitrust liability may exist .
84-93 pg. 2
C,
Supervisor Tom Powers August 13 , 1984
2 . Solid_Waste Mana(1ement_Plan_
Historically and statutorily, control over the collection and
disposal of waste has been a municipal function. (See 7 McQuillan
Municipal Corps . f3rd Ed. ] §§24 . 242ff ; 59 Ops . Cal .Atty.Gen. 542 ,
546 ; Health and Safety Code §§4200ff , 4250ff , 6510ff . ) Such muni-
cipal control includes the right to direct where wastes are to be
disposed , subject to existing contract terms . (See Co.Co.Opn. No.
82-18 , pages 1 & 2 . )
In 1972 , the Legislature found , inter atin, that the
increasing volume of solid waste generated , coupled with inade-
quate existing methods of managing such wastes , are creating con-
ditions which threaten the public health, welfare and well-being.
(Govt .Code §66701 (a) . ) The Legislature thus "entered" the field
of solid waste by enacting the Nejedly-Z' berg-Dills Solid Waste
Management and Resource Recovery Act of 1972 , Chpaters 1 and 2 of
Title 7 . 3 of the Government Code , (hereafter the "Solid Waste
Act " - Govt .Code §66700ff . ) (All section references are to the
Government Code unless otherwise specified. ) The Solid Waste Act
called for the establishment of a comprehensive state policy on
solid waste management and resource recovery ( §66702 ) , while pro-
viding that primary responsibility for adequate solid waste
management and planning shall rest with " local government"
( §66730 ) . "Solid waste management and planning" is not defined in
the Solid Waste Act , but "solid waste management" is defined in an
applicable regulation as follows :
1117124 . "Solid waste management" means a
planned program for effectively controlling the
storage , collection , transportation, processing and
reuse, conversion or disposal of solid wastes in -a
safe, sanitary, aesthetically acceptable, environ-
mentally sound and economical manner . It includes
all administrative , financial , environmental , legal
and planning functions as well as the operational
aspects_of solid waste handling, _dise2sal �1litter
control _and resourc_e__recovery systems necessary to
achieve established objective_ s . " ( 14 C.A.C.
§17124 - Emphasis added . )
The tool for " local solid waste management and planning" is
the county solid waste management plan . ( 5§66780ff . , esp.
§66780 . 1 ; 14 C.A.C. ,Div . 7 , Chapter 2 , §§17100ff . )
Government Code Section 66780 . 1 , which provides for the pre-
paration of county solid waste management plans (hereafter "county
plan" or "'plan" ) , reads , in part :
-2-
• ` 84-93 pc
C l
Supervisor Tom Powers August 13 , 1984
"66780 . 1 (a) Each county_in_cooperation_with
affected local i sd iet i ons�_sha 11 _erepareL_suh_
ect_to_the_a�eroval_of_the_plan_by_a_ma �ority_of_
the cities-within thecounty_which_contain_a_
maj•ority_of_the_population-of_the_incoreorated area
of_the_countyz-a_comprehensive,_Soordinated_solid
__
waste_m_ana em—en--t— an i—consistent with state olic
— -- pl--- --__------- ------- --p----y
and any_aPeroeriAte_reFional_or_subregional_solid
waste_management_plan_for -all-waste-disposal_within
the count and for all waste ori inati_n therein -
whTch_is to be se
_diseod_ofou_tside_o_f_th_eco_unty.
Each solid waste management plan shall be submitted
for review and comments to the regional planning
agency for the region prior to submission to the
board. Any county , with the agreement of a
majority of the cities within the county which con-
tain a majority of the population of the incor-
porated area of the county, may - trans-fe-r--t-he
responsibility for the preparation of the solid
waste management plan to the regional planning
agency for the region. Each plan shall include an
implementation schedule, as defined in Section
66714. 9 , no later than July 1 , 1984. Each plan
shall also include an analysis of the economic
feasibility of the plan . Where appropriate , the
plan may include elements providing for subregional
solid waste management covering more than one
county or parts thereof . The_elan_shall_not_super:
sede_plans_of any loc_al_jurisdiction_unless-there
is_agreement by all parties concerned .
. " (Emphasis added. )
Local solid waste management and planning must conform to the
validly approved county plan prepared pursuant to 566780 . 1 .
( 566730 . ) For purposes of 566730 , the term "local " must refer to
cities , districts , and the County, individually ( see 14 C.A.C.
517225 . 43 ) , as the County must prepare and the cities must
approve , the plan prepared pursuant to 566780 . 1 . If a validly
approved county plan properly designates waste to be deposited at
a particular place , e. g. , at a designated waste-to-energy facility
566730 requires that solid waste management and planning of local
jurisdictions ( cities , districts , county) , conform to the county
plan .
3 . State Policy
Although 566780 . 1 , in conjunction with 14 C.A.C. 517124
(definition of solid waste management ) seems to indicate that such
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Supervisor Tom Powers August 13 , 1984
a designation in a County plan is proper , it is currently still
questionable whether state policy allows a county plan to
designate where wastes are to be taken if contrary provisions have
been made by local franchise agreements or ordinances , or if the
individual local agencies disagree with the proposed designation.
Section 66780 . 1 , by its terms , requires that a county plan be
"consistent with state policy. " To the extent that a county plan
fosters resource recovery (defined , 14 C.A.C. 517225 . 58 ) e. g. , by
assisting a waste- to-energy, plant , the plan is well in accord with
"State policy" , which , as set forth in §66786 , provides :
"§66786 . The Legislature finds and declares that
effective solid waste management can aid in the
development of alternative sources of energy
through the conversion of solid waste material into
energy, synthetic fuels , and reusable materials .
It is the policy of the state and the intent of the
Legislature that a well-coordinated governmental
effort be directed toward achieving an efficient
process for the conversion of solid wastes into
energy, synthetic fuels , and reusable materials .
Such policy is specifically designed to encourage
the dual objectives of materials recovery and the
development of supplemental energy resources . . . . "
However , state policy is not limited to that which is set
forth in §66786 .
Section 66722 defines "State policy" as meaning, ,"the policy
for solid waste management adopted pursuant to §66770 . " Pursuant
to §66770 , the State has adopted regulations , including those set
forth in Chapter 3 (commencing with §17200 ) of Division 7 of Title
14 of the California Administrative Code. Included in Chapter 3.
is 14 C.A.C. §17334 , which reads :
"17334 . Solid wastes subject to collection by
a collection service operator shall become the
property of the collection service operator subject
to local ordinances or contract conditions after
such time as the authorized collector takes
possession of the wastes . "
Thus , State policy , as set forth in 14 C.A.C. §17334 , provides
that the ownership of solid waste is with a collector subject to
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Supervisor Tom Powers August 13 , 1984
local ordinances or contract conditions . For discussion purposes
here, ownership and control is virtually synonymous . Therefore,
it can be argued that any contrary provision in a county solid
waste management plan, i . e. , any attempt to place control over
wastes other than with the collector , subject only to local ordi -
nances or contract conditions , would not be consistent with
current state policy.
We note, however , that this matter is not free from doubt .
The California General , in somewhat similar circumstances has to
some extent reached a similar conclusion. In 59 Ops .Cal .Atty.Gen.
542 , at pages 548-549 , the Attorney General opines that the State
Solid Waste Management Board may require a county solid waste
management plan to satisfy state policy on resource recovery, and
if in order to satisfy state policy, the county plan must provide
for waste to be taken to a recycling center , local contracts
( franchises ) to the contrary must yield to a validly adopted
county plan, unless those contracts implement a pre-existing
established local plan. From this Attorney General ' s opinion it
would follow that a county plan may require that waste be taken to
a particular place (e. g. , a recycling center or a waste-to-energy
plant ) , in contravention of local (cities , sanitary districts )
franchise agreements where state policy mandates such county plan
requirements (but see Section 6, "Abridgment of Contract" ) .
For reasons not known to this office , the Attorney General
does not discuss the provisions of 14 C.A.C. 17334.
Except for 14 C.A.C. §17334 , it is unclear whether the right
to direct that wastes are to be taken to a particular facility, is
something that is determined through the solid waste management
plan , i . e. , local jurisdictions collectively, or local jurisdic-
tions individually. Section 66757 , added in 1980, which sets
forth what matters are subject to the exclusive control of
individual jurisdictions , provides , in part .
"§66757 . Notwithstanding any other provision of
law, each county , city and county, city, special
district , or other local governmental agency may
determine all of the following:
( a) Aspects of solid waste handling [as
opposed to planning or manangement } which are of
local concern including, but not limited to, fre-
quency of collection , means of collection and
transportation , level of services , charges and
fees , nature , location , and extent of providing
solid .waste handling services . . . . " (Bracketed
material added . )
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Supervisor Tom Powers August. 13 , 1984
"Solid waste handling" means the "collection, transportation,
storage, transfer , or processing of solid wastes" . ( 566721 . )
"Processing" means the reduction , separation , recovery , conver-
sion, or recycling of solid wastes . ( 566716. ) Whether directing
that wastes be taken to a waste-to-energy facility is an aspect of
solid waste handling designated .by the State as being of purely
local concern under 566757 , and therefore not subject to a county
plan, is not in our opinion definitively addressed by the Solid
Waste Act or current adopted State policy. The only expression of
State policy is in 14 C.A.C. 517334, which indicates that it is
local , individual agency concern . (See also, 566771 . )
4. Enforcement
For purposes of enforcement , it is important that the validity
of a county plan and its requirements be clearly established . The
only provision on enforcement of the provisions of a county plan
in the Solid Waste Act is 566784, which provides-: -
"566784. No person shall establish sites for solid
waste disposal , transfer station, waste processing,
or resource recovery not in conformance with the
county solid waste management plan approved by the
board . Nonprofit private resources recovery or
recycling sites for neighborhood for community type
activities approved by a local governmental entity
are exempt from this requirement . If the board or
any local governmental entity determines that a
proposed site in a city or county is not in confor-
mance with the solid waste management plan of that
county, the board may, after public hearing,
require conformance to the plan, or approve an
amendment to the plan. Any amendment to a county
solid waste managment plan shall be subject to the
requirements of subdivision (c) of Section 66780 . 5 .
No person shall establish or operate , or permit the
establishment or operation of , a site which the
board has determined is not in conformance with the
plan . At the request of the board or any local
governmental entity, the Attorney General shall
bring an -action to enforce the provisions of this
article. "
As can be readily seen , the enforcement provisions in the
Solid Waste Act are focused on preventing establishment of new
facilities not designated in the plan, and not on other types of
deviations from the plan. The last sentence of 566784 is the only
general enforcement mechanism specified in the Solid Waste Act ,
i
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Supervisor Tom Powers August 13 , 1984
and it provides that at the request of a local governmental
entity , the Attorney General shall bring an action to enforce the
provisions of this Article 2 , which includes solid waste manage-
ment plans (but does not include §66730 , requiring local planning
and management to conform to the plan ) . Given such limited
enforcement alternatives , it is unlikely that a violation of a
provision in a County plan can be or will be enforced by the
Attorney General unless the provision is clearly consistent with
State policy . Therefore, if there is interest in directing the
waste stream in the County, through the solid waste management
plan , State policy should be amended to definitively require that
a county plan address the conclusion (post-collection period ) of
the waste stream.
5 . Local Plan
Section 66780. 1 , in addition to its other requirements ,
prohibits a county plan from super s°ed=ing...8.,:!1Ioea1- plan": The term
" local plan" is not defined in the Solid Waste Act .
The California Attorney General has opined that a local plan
must include "evidence of careful study of all relevant factors ,
resulting in a document integrating the study ' s conclusions with a
course of action, " and that only contracts entered pursuant to
such a local plan can survive contrary mandates in a county pian .
( 59 Ops .Cal .Atty.Gen . 542 , 548 [19761 . ) However , the Attorney
General , at page 547 , points out that courts have not given con-
sistent meaning to the word "plan" , and whether local schemes of
franchise agreements and/or ordinances which comprehensively
addresses the various aspects of solid waste handling, including
the place of disposal , would qualify as a local plan under
§66780 . 01 , remains to be judicially resolved .
6 . Abridgment-of Contract
In the same opinion , the Attorney General also points out the
fact that there are constitutional limitations upon a government
entity ' s power to abridge an existing contract . (U. S . Const . Art .
I , §10 clause 1 ; Cal .Const . Art I , §9 ) . Although this constitu-
tional limitation may not be used to prevent a proper exercise of
the police power , such exercises are limited to measures adopted
as bona fide legislative responses to immediate threats to the
public health , safety , morals or welfare . See 59
Ops .Cal .Atty .Gen . , supra , 544 . ) With respect to recycling, the
Attorney General , at page 545 , notes that "absent is the tangible
urgency of an imminent threat to the public" . Although the
legislature has found that the solid waste problems are creating
conditions which threaten the public health , safety and well -being
( §66701 ) , whether the police power cam be properly exercised to
abridge existing solid waste contracts is a question that will
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Supervisor Tom Powers August 13 , 1984
turn upon the facts of each particular contract case. Given the
risks (possible damages ) that a government entity assumes should a
court find that a contract has been unconstitutionally abridged,
careful consideration should be given in any situation calling for
the nullification of existing contracts .
7 . _Antitrust . Concerning the ownership and control of solid
waste , the subject of antitrust liability has been previously
discussed by this office in the past (County Counsel Opinion No.
82-18 , copy attached ) . Although 966757 ( discussed previously) ,
allows local agencies to provide that solid waste handling be by
an exclusive franchise, it. does not specifically authorize local
agencies to require that wastes be taken to a particular location.
Further antitrust problems arise when a government entity enters
the field of solid waste on a proe ietary bases , e. g. by operating
or having an interest in a waste-to-energy plant for profit . (See
concurring opinion of Chief Justice Burger in Lafayette_v__
-- -
Louisiana_Power_& Lifht_Co_ (1978 ) 435 U. S: 359 , 413 ,422-423 . )
In such cases , actions requiring that wastes be disposed of at
such entities ' proprietary facility would have to be carefully
analized for possible antitrust violations . The foregoing further
illustrates why current State policy ( "state action" ) must be
changed to require a county solid waste management plan to provide
for the conclusion of the waste stream if substantial legal risks
in this area are to be avoided .
LTF: df
cc : Supervisors Fanden , Schroder , McPeak and Torlakson
Philip J. Batchelor , County Administrator
r