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Home My WebLink AboutMINUTES - 11101987 - S.7 s.7 Toy BOARD OF SUPERVISORS Fes" Supervisor Tom Torlakson CoItm Costa DATE: November 10, 1987 suBJECT; BOARD RESPONSE ON REQUEST BY DELTA DIABLO FOR CONSENT ON USE OF LAND IN THE MARSH CRUM AREA A FOR LANDFILL SITE SPEC 1 F I C REQJr.STISI OR RECOhM1ENDAT 1 ON(S) a BACIa,ROUND AM JUST 1 F 1 CAT 1 CNV RECOMMENDED ACTION: That the Board of Supervisors respond to the request by the Delta Diablo Sanitation District Board of Directors for (1) a resolution under the Health and Safety Code to own a landfill site outside the district boundaries; and (2) for information .from County Counsel on steps necessary toward a site development that can be taken without such a resolution from the Board . of Supervisors (i.e. ,. development of an application, filing of an application, negotiating options for a proposal, and the commencement and completion of an EIR. ) BACKGROUND INFORMATION: Delta Diablo has advocated the concept of a public-private partnership and is not intent on owning and operating a landfill site. Delta Diablo has offered the concept of participating with.the county in a public-private partnership and has talked to private participants about a public-private partnership. Various possibilities exist for joint ownership and/or management and operating of a landfill site. Delta Diablo's request is for time on the Board of Supervisors agenda to both understand any position the 'Board may have on this matter as it concerns the 7-A joint powers authority, which the county is a partner in, and to provide information about the extensive research and efforts the district has made on these issues. Board Action: November 10, 1987 The Board received a report, dated October 26, 1987, from V. J. Westman, County Counsel, advising that the Board of Supervisors ' approval of the proposed Marsh Creek site landfill facility pursuant to Health and Safety Code Section 4741 requires compliance with the provisions of the California Environmental Quality - Act. Following discussion on the report of County 'Counsel and the above noted recommendation, the Chair called for a vote -on the recommendation. The vote was as follows : AYES.: Supervisors Torlakson, McPeak NOES: Supervisors Powers, Schroder ABSENT: Supervisor Fanden Therefore, no action was taken on the recommendation. f THIS IS A MATTER FOR RECORD PURPOSES ONLY. Attested: November 10, 1987 PHIL BATCHELOR, Clerk of the Board of Supervisors and County cc : Supervisor Torlakson Administrator Community Development Department County Administrator By 6f Deputf Clerk 5- 7 COUNTY COUNSEL'S OFFICE lr CONTRA COSTA COUNTY C�JL MARTINEZ, CALIFORNIA Date: October 26, 1987 W p J 9 P141L BATCHELOR TO: Board of Supervisors C��OR°OAsuPERV � - �S� r From: Victor J. Westman, County dounsef Re: Delta Diablo District' s (7-A) request for Board of Supervisors' consent to use of Marsh Creek area site for landfill facility. SUMMARY: Board of Supervisors' approval of the proposed Marsh Creek site landfill facility pursuant to Health and Safety Code 5 4741 requires compliance with the provisions of the California Environmental Quality Act. INTRODUCTION: On May 26, 1987 Supervisor Torlakson provided the Board with a draft letter from the Delta Diablo Sanitation District (hereinafter called 7-A) requesting Board of Supervisors' consent to a landfill facility proposed in the Marsh Creek area (the' Marsh Creek site) . On July 28, 1987 the District's Manager provided the Board with a second letter which specifically indicates that the District deserves the Board of Supervisors' consent to its purchase and use of the Marsh Creek site as a disposal facility. ' At the July 28th meeting the Board of Supervisors asked this office for its opinion whether the provisions of the California Environmental Quality Act (Public Resources Code 55 21000 ff. ) apply to this request. As noted in the above Summary, this office believes the provisions of that Act are applicable. DISCUSSION: 1. Co. Sanit. Dist. Law. The Delta Diablo Sanitation District'. (7-A) is organized under the provisions of Health and Safety Code SS 4700 - 4858. Health and Safety Code $ 4741 provides that a sanitation "district [7-A] shall not acquire land for . . . and operate, a . . . disposal facility . . . until . . . the Board of Supervisors of the County, if it is proposed to be located in the unincorporated area . . . , has by resolution, consented to the use of the proposed site for that purpose" . Section 4741 clearly provides a county board of supervisors with a great deal of discretion to approve or deny such request. 2. CEQA. Except as provided in it, the California Environmental Quality Act (CEQA) applies to discretionary projects proposed to Board of Supervisors October 26, 1987 be carried out or approved by public agencies (Pub. C. $ 21080) . - In part, CEQA projects mean activities directly undertaken by a public agency or activities involving the issuance of a permit, license or other entitlement for use by a public agency .(Pub.C. S 21065) . "CEQA" applies to situations where a governmental agency can use its judgment in deciding whether or not to carry out or approve a project. A project subject to such judgmental controls Is called a "discretionary project" (State CEQA Guidelines 5 15001(i) . The Board of Supervisors' exercise 'of discretion pursuant to Health and Safety Code S 4741 appears clearly to be a "discretionary project" for the purposes of CEQA and not merely a "ministerial" decision where the Board cannot use personal, subjective judgment in deciding whether or not the project should be approved. In other words, the requested Board of Supervisors, decision pursuant to $ 4741 is a "discretionary project" (Guidelines $ 15357) and not a "ministerial" project (Guidelines $ 15369) for the purposes of CEQA.. For this reason, compliance with CEQA is required before the Board of Supervisors may make a 4741 decision (e.g. , EIR or negative declaration) . The exemption or exception provisions of the California Environmental Quality Act (§S 21080 et seq. ) and the implementing exemption provisions of the State CEQA Guidelines has been reviewed and none of them expressly provide an exemption for the proposed disposal site activity. It would appear difficult to argue that the establishment of the proposed disposal facility would not have any potentially substantial adverse environment effects. 3. Use Permit. As the facts are known to this office, Sanitation District No. 7-A is required pursuant to Chapter 418- 4 of the County Ordinance Code to obtain a "use" permit before it can establish a waste disposal site in the unincorporated area of the County (Ord. C. §$ 418-4.006(3) & 418-4.008) . Since the degree of discretion which the Board may exercise on any such "use" permit application is almost equivalent to that which it exercises pursuant to Health and Safety Code § 4741, an argument could be made that other than allowing the district to purchase the property it cannot establish a disposal facility thereon until it has a Chapter 418-4 "use" permit from the County. Since the district cannot establish the disposal facility use on the property based alone on the County's § 4741 consent, it might be possible to justify a CEQA negative declaration as sufficient for giving $ 4741 consent. -2- Board of Supervisors October 26, 1987 A substantial problem with this -rgument is that the County's authority to require a "use" permit pursuant to Chapter 418-4 _ is based, in large part, on the provisions of Government Code S 53091. Pursuant to the provisions. of Government Code S 53096, by a unanimous vote of its board, Sanitation District No. 7-A may be able to render the County' s zoning (Chapter 418.4) ordinance inapplicable to its proposed disposal facility use of the Marsh Creek site. For this reason, full CEQA compliance for a S 4741 consent review can't be deferred on the basis that there will later .be a use permit required when that LUP requirement might be rendered inoperative by the District. 'If the Sanitation District and the'County agreed that in consideration of the Supervisors providing a S 4741 consent the District could option the site but not acquire it and establish . the use until it had actually obtained a Chapter 418-4 permit from the County, that agreement might support the position that a negative declaration is adequate or there is no CEQA project with this S 4741 -consent because the District by agreement must -still obtain a use permit after full CEQA review. This possible agreement arrangement assumes that the use permit would only be issued if found to be consistent with the applicable general plan. If there is any desire in pursuing this type of agreed relationship with the district, the agreement could also require compliance 'w' ith any other appropriate conditions desired by the County for such a •disposal site (e.g. , opened to waste from all areas of this county without discrimination, off-site mitigation measures, etc. ) . 4. Solid Waste Plan. Sanitation District No. 7-A in- order to establish. a Marsh Creek disposal site will have to obtain further approvals from the County but those approvals are not granted solely at the discretion of the Supervisors. In order for the Sanitation District to establish a disposal- facility it must be done in compliance with the County's Solid Waste Management Plan (Govt.C. S 66784) . But the Board of Supervisors cannot make provision on the Solid Waste Plan for such use unless a majority of the cities in the County representing a majority of the incorporated areas population agree. Further, any such waste site in order to be operated must obtain a solid waste facilities permit from the County's Health Department. But the granting of ' this permit resembles to some extent the issuance of building permit where if an applicant has met the prescribed statutory requirements (Govt.C. S 66796.32(c) (3) , (d) ) , the permit usually must be issued. If we may be of any further assistance, please advise. VJW:df -3-