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HomeMy WebLinkAboutMINUTES - 02231993 - 1.12 (2) d-O CITY'OF CONCORD CITU COUNCIL 19.50 Parkside Drive,NIS/01 Concord,California 94519-2578 Nancy Gore,Nl.iyor (510) 798-06'% Mark DeSaulnicr,N;i((-MaY(w liwami Myron Call)[A)CII % Colleen Coll OFFICE OF THE MAYOR Umd D.Mashoic Telephone: (5 10) 6711-8158 Uoncorn Farrel A.Swwai I.Citi•\•tanager February 4, 1993 RECEMED FEB -5 The Honorable Sunne McPeak, Chair CLERK BOARD OF SUPERVISORS Contra Costa County Board of Supervisors CONTRA COSTA CO. Administration Building 651 Pine Street Martir....Z, CA 94553 Re: County JPA Membership Dear Supervisor McPeak: The City of Concord has followed with interest and concern discussions between Contra Costa County and the Contra Costa Solid Waste Authority regarding County membership in the Authority. The conceptual agreement currently under negotiation between the County and Authority refers to, "a commitment on the part of the County to include export of solid waste as part of the Countywide Integrated Waste Management Plan (CoIWMP)." Legal counsel for the City has reviewed the issue of city export of solid waste with counsel for the California Integrated Waste Management Board. The Waste Board legal counsel states that no restriction exists regarding city export of waste under state law for approximately the next two years. After two years, under conditions the City of Concord expects will be met, there will likewise be no restriction on city waste export (Exhibit A). Further, as recently stated by Waste Board staff, the Waste Board will. not require a CoIWMP to provide for import/export, only that a review will be conducted to assure the importing county maintains a 15-year waste disposal capacity. The lack of state restriction on export of solid waste by cities is not dependent on interpretation of recent U.S. Supreme Court decisions. The Supreme Court decisions, however, strengthen a city's right to unrestricted solid waste export. County Counsel for Solano County, for example, has stated that a voter approved measure in that county limiting solid waste import cannot be enforced due to the recent Supreme Court decisions. The County and Authority influence over the CoIWMP therefore does not touch the issue of city waste export. Negotiations between the County and Authority regarding County membership in the JPA have been framed in a spirit of compromise with a significant County concession being allowance of solid waste export by cities. This is an unnecessary concession which the City of Concord recommends be removed from consideration. 0tv U 6)9— The Honorable Sunne McPeak February 4, 1993 Page 2 The County and representatives from the Authority have discussed a process for limiting the number of transfer stations in the county. The intent and letter of AB 3001 removes the approval of "non-disposal" facilities, including transfer stations, from the control of either counties or the majority vote of cities within a county. An exception to this is a JPA may establish, "procedures, plans, policies, and criteria to which solid waste facilities shall conform" (Section 50001.2). Transfer stations have been removed from the Siting Element of the CoIWMP by AB 3001 and are subject only to Local Task Force (LTF) "comment" rather than approval or disapproval by an entity other than the city siting the transfer station. If a transfer station recycles less than 5 percent of the material handled at the station, even LTF "comment" is disallowed by AB 3001, according to Waste Board staff. Member cities of the Authority should realize that membership in the Authority may foreclose rights granted under AB 3001 to site a transfer station or other "non-disposal" facility if restrictive criteria are adopted by the JPA. The City of Concord is disturbed at the nature of discussions between the Authority and County regarding the CoIWMP and Materials Diversion Ordinance (MDO). Several months ago, the City noted substantial concerns with the CoIWMP and MDO. These concerns have received no response by the County (Exhibits B and Q. The conceptual agreement outlines a process for incorporating city comment in the CoIWMP and MDO. It is inappropriate for the County and Authority to take as a matter of negotiation the process for incorporating city comment into these countywide documents when two cities, the City of Concord and the City of Pittsburg, are not represented by the Authority. It is unlikely the Waste Board would look favorably on a CoIWMP review process that could in any way be viewed as exclusionary. The conceptual agreement states that cities which export waste may be precluded in the future from using a County permitted landfill. The City of Concord questions whether the reach of the County's land use regulations extend to selecting the patrons of a private business. Although we would see no occasion to challenge this assertion due to the non-competitive pricing in effect at the County regulated landfill, we feel it is inappropriate for the County to hold such a position as a bargaining point with cities and would hope that member cities of the Authority would question this provocative position. The conceptual agreement includes the statement that a tipping fee to fund Authority activities would be imposed, "upon the request of a majority of the entities using the transfer station or landfill". This provision would force a tipping fee upon any city in the "minority". In accordance with SB 1703, courtesy and common sense, the City believes neither the County nor other cities may force a solid waste fee upon a city without concurrence by the city. While AB 2567 added notice and procedural requirements for the assessment of such fees, the consent provisions of SB 1703 remain in effect. The City is especially concerned with the issues that have not been adequately addressed by the County or Authority. For example, will the County be an equal voting partner with other members or will the County hold a 50% vote? other percentage? This is an issue with many The Honorable Sunne McPeak February 4, 1993 Page 3 implications that member cities of the Authority should discuss. The cost of forming a Solid Waste Authority with expanded responsibilities has received inadequate attention. The Alameda Solid Waste Authority which is often cited as a model has a staff of 13 persons and an annual $7 million budget. The explanation has been given that cities and the County expend considerable staff time and other resources and these resources would be transferred to the Authority. We believe significant staff time and resources would continue to be spent by cities following the formation of an expanded Authority due to the ultimate responsibility that rests with cities to comply with AB 939 and the importance of waste management to our ratepayers. Care must be taken to achieve the most efficient and cost-effective solid waste management system cities can provide for their residents. In our opinion, the conceptual agreement, if implemented, may limit a city's present ability to export waste and site non-disposal facilities. The agreement may attempt to impose fees on cities without their consent, promote a flawed process for adopting the CoIWMP and may support questionable prohibitions on the future use of County regulated disposal facilities by cities. Essential issues including the voting percentage assigned to the County and the cost of forming an expanded Solid Waste Authority do not appear to receive adequate emphasis in the conceptual agreement document. The City of Concord hopes other cities and the County will closely review and explore issues such as those mentioned above during the negotiation process and especially prior to making any binding commitments to the JPA. Sincerely, Nancy Go e, Mayor City of Concord c: Contra Costa County Board of Supervisors Contra Costa Solid Waste Authority City Councils Public Managers Sanitary Districts AB 939 Project Managers M:\dly\IOCOM Exhibit A MCCA33E, ScxwARrz, EVANS, LEvY & DAwE PROFESSIONAL LAW CORPORATION TRACY D. ALEXANDER ONE CONCORD CENTRE JOHN J. CAMOZZIt DAVID J. LEVY DEAN A. CHRISTOPHERSON' 2300 CLAYTON ROAD, SUITE 1500 OF COUNSEL JAMES N. DAWE CONCORD, CALIFORNIA 94520-2100 LEO J. O'BRIEN BRIAN P. EVANS OF COUNSEL BEVERLY J. LAVIN TELEPHONE (510) 687-3450 KENNETH H. LAVIN FACSIMILE (510) 680-0129 ROBERT S. LEICHTNER MICHAEL P. MCCABE OF COUNSEL MARCHMONT J. SCHWARTZ ARLENE SEGAL tALSO MEMBER HAWAII STATE BAR December 8, 1992 'ALSO MEMBER WASHINGTON STATE BAR By Hand Delivery Peter Dragovich city of Concord Planning Division 1950 Parkside Drive Concord, CA 94519 Re: Concord Disposal , Inc. Our File No. 1903-01A Dear Peter: You have advised us that the California Integrated Waste Management Board has opined that Public Resources Code §41903 precludes the export of waste until a CoIWMP has been adopted by the exporting county. At your request we have reviewed the statute with counsel for the State Board and find that they have determined that exporting may continue at least until one year after the date on which the CoIWMP must be adopted. The statute in question reads, in pertinent part, as follows: 41903 . No city or county shall export solid waste to any other jurisdiction unless the exporting city or county has, within one year following the date specified in Section 41791 or a later date established or permitted by the board an approved city or county household hazardous waste element and a source reduction and recycling element which have both been implemented, or have submitted a countywide integrated waste management plan, and is in compliance with it, provided however, that, until one year following the date specified in Section 41791 or a later date established by lite hoard, ivtiiiiay 1: ^1^ shall he construed as prohibiting '-the export of solid waste. MCCABR, SCHWARTZ, EVANS, LF.vY & DAWF. PROFESSIONAL LAW CORPORATION Peter Dragovich December 8 , 1992 Page 2 As a preface to this discussion, be advised that I phoned Michelle Lawrence of the California Integrated Waste Management Board and confirmed that she has taken the position articulated above. During , the course of this conversation, however, she indicated that this opinion has not been approved by the Board, or even her supervisor, and she invited me to speak with counsel for the Board, Maureen Carr Morrison [916-255-2188] to confirm that the Board supports her interpretation of the pertinent section. Ms. Lawrence stated that, to date, the Board has not pursued any claimed violation of this statute. I next spoke with Maureen Morrison, counsel for the State Board, who opined that there was no prohibition against exporting until one year after the applicable date specified in Public Resources Code §41791 .1 She indicated that she would communicate this position to Ms. Lawrence. Further, Ms. Morrison indicated that the two alternative acts which would allowa city or county to continue exporting beyond that date, to wit: 1 Public Resources Code §41791 (as amended by AB 2092) reads as follows: 41791 . (a) Any county which has less than eight years of landfill capacity shall submit its countywide integrated waste management plan to the board within 12 months after the Office of Administrative Law formally approves regulations for the preparation of countywide siting elements and countywide integrated waste management plans pursuant to Section 11349. 3 of the Government Code. (b) Any city or county which has more than 8 years of landfill capacity shall submit its countywide integrated waste management plan to the board within 18 months after the Office of L9lA1U 2L n 4 s t r a t.1 v C Law fvi raa i I apprGves regulations for the preparation of countywide . siting elements and countywide integrated waste management plans pursuant to Section 11349. 3 of the Government Code. MCCABF, SCHWARTZ, EVANs, LEVY 8c DAWF. PROFESSIONAL LAW CORPORATION Peter Dragovich December 8, 1992 Page 3 (1) Approval of a city or county Household Hazardous Waste Element and Resource Reduction and Recycling Element (both of which have been implemented) , or (2) Submission of a CoIWMP (and compliance with it) , require approval by, or submission to, the California Integrated Waste Management Board. Public Resources Code §41800, et seq. Accordingly, the City of Concord's approval of the household hazardous waste element and source reduction and recycling element are not deemed by the Board a sufficient predicate to continued export in the face of Section 41903 . My legal research has revealed that §41903 has not been cited in any appellate cases decided to date. We believe that, as Ms. Morrison's legal opinion should prevail upon Ms. Lawrence, and considering that this provides a significant additional window of time to continue exporting, this may well resolve this issue altogether. Very truly yours, McgABE, SCHWARTZ, EVANS, LEVY & DAWE rofessIonal Law Corp rat' n Michael P, Mc b Dean A. T to ter on Dean A. hr' s. e hersn DAC:klw _� nii,(:F.l�! lilF.ALN(1K r ���� I.I••^•r: IT; l7:'.�:u-r r- - -- O Ki:-f 1:tr:. .(:i(. \lan:rc. November 4, 1992 The Honorable Sunne McPeak, Chair Contra Costa County Board of Supervisors Administration Building 651 Pine Street Martinez, CA 94553 Re: Draft Countywide Integrated Waste Management Plan Dear Sunne: The Concord City Council has concerns regarding the recently released Draft Countywide Integrrated Waste Management Plan. AB 939 shifted the responsibility for solid waste planning and implementation from counties to counties and cities. Since Contra Costa County and its member cities have become one of the first jurisdictions in the state to consider adopting and implementing a countywide plan under AB 939, it is critical that a workable and effective partnership be forged between cities and the County. To assist in achieving this goal, the City of Concord requests the following issues be addressed in the Final Countywide Integrated Waste Management Plan which Contra Costa County will submit to cities for approval: • Program costs are not stated in the Plan State of California regulations for the preparation of the countywide plan requires a tabulation of the costs of programs contained in the Source Reduction and Recycling Element and Household Hazardous Waste Element of cities together with the cost of programs specified, in the Countywide Integrated Waste Management Plan. The Draft Plan claims this can only be accomplished at the time of the Plan's first revision. To comply with the regulations and, more importantly, to give residents a statement of the cost of proposed programs, an estimate of total costs should be undertaken. A city cannot responsibly consider adopting a plan that does not estimate implementation costs. Will the adoption of the Plan allow the County to assess fees for programs without receiving city approval? To be acceptable to the City of Concord the document must contain a commitment from the County that city approval will be sought and received prior to assessing fees to implement the pian. Fees should apply only to those cities who agree to assist in funding a proposed program. The Honorable Sunne McPeak November 4, 1992 Page 2 • Export of waste is not provided for in the Plan Cities will continue to seek the lowest cost means of solid waste disposal while achieving AB 939 goals. Export of waste could satisfy these needs. The plan should clearly provide for the export of waste directly by cities, TPAs, or sanitary districts. • The expanded role identified for the Local Task Force (LTF) should be reconsidered The LTF is identified as an administrative body for the Plan. The LTF, which is appointed by the County, has only advisory functions under the provisions of AB 939 and state regulations. For countywide solid waste management to be responsive to the needs of residents, an administrative body that has the ability to act and enforce the Plan should be entrusted with the role that is now assigned to the LTF in the Draft Plan. Alternatives should be examined for administration of the Plan. • If a solid waste facility proposed by a city, sanitary district, or JPA is not identified in the Plan, will the Local Enforcement Agency (LEA) and California Integrated Waste Management Board withhold granting a Solid Waste Facilities Permit? A prerequisite to filing an application with the LEA for a Solid Waste Facilities Permit is conformance with the countywide plan. California Integrated Waste Management board concurrence is required to issue a Solid Waste Facilities Permit. If a city is not able to receive County agreement to amend the Countywide Plan or is not able to receive approval of a plan amendment by a majority of the cities representing a majority of the population, the city would be prevented from going forward with a project which requires a Solid Waste Facilities Permit_ This could be to the serious detriment of a city's ability to meet AB 939 goals. It is requested the above issues be addressed before the Final Coun!x de Integrated Waste Management Plan is circulated for review. Sincerely, rc•' Nancyore Mayor c: City Council; Steve Jepsen, Acting City Manager; Public Managers; Contra Costa Solid Waste Authority; Contra Costa Central Sanitary District; AB 939 Project Managers w&ac DRCoiWMp.pe alit..:: �.:'+�'•��� iti Mbit C ' (510) 798-0636 (510)671-3158(Tic( � _ OFFICE OF THE MAYOR December 1, 1992 The Honorable Sunne McPeak, Chair Contra Costa County Board of Supervisors Administration Building 651 Pine Street Martinez, CA 94553 Re: Materials Diversion Ordinance Dear Sunne: The Solid Waste Committee of the Concord City Council met on November-240, 1992 to discuss the Materials Diversion Ordinance proposed by Contra Costa County. Concord supports the intent of the ordinance which is to encourage recycling programs countywide. The City of Concord currently meets the proposed ordinance requirements to January 1, 1994 and we expect to implement or expand programs to meet or exceed ordinance requirements. The Committee -has several concerns including implementation costs, subjectivity of the ordinance language and reporting requirements. The continued expansion of waste management legislation is placing a serious burden on the ability of local governments to effectively implement common waste reduction goals. The Committee would like to see the following changes to reduce demands on city resources and to clarify the requirements of the ordinance: Reporting Cities must submit annual reports to the CIWMB under AB 939. The Board is required to review, not less frequently than every two years. whether a city or county is implementing their SRRE. The County could use this annual report to make an initial determination of compliance with the Materials Diver:,ion Ordinance. In 1993, the County could ask for staff level verification of compliance, since the AB 939 reporting requirements will not yet be in effect. The County could ask ;or additional information to augment the information supplied, if necessary. S:ction 418-10.610 Amendment should be deleted from the ordinance. Annual reports should be adequate to update the County on compliance and interim amendments should not be necessary. December 1, 1992 Page 2 Subjectivity The Committee is concerned the ordinance does not give adequate guidance on what constitutes a Board of Supervisors approved recycling or diversion program. While additional criteria could lead us into additional reporting and verification requirements, some examples of qualifying programs are desired. For example, "as an example, collection of plastic film by grocery stores and dry cleaners qualifies as a recycling program for 0) plastic film", or, "as an example, an active backyard composting program which includes workshops for residents to learn composting methods qualifies as a diversion program for (k) yardwaste." Guidance of this type is needed, otherwise the ordinance could be compared to a requirement to "drive safely on the highway" without setting any speed limits. A basis for interpretation should be provided in the ordinance. Cost The ordinance carries the penalty of denying city use of a county sited and regulated landfill. This is a harsh penalty that could be exceedingly expensive for cities to comply with lacking adequate notice or preparation. AB 939 includes costly penalties for non- compliance with SRRE preparation and implementation requirements. AB 939 provides a 120 day period for cities to correct deficiencies in the case of SRRE adoption_ In a similar manner, the Materials Division Ordinance should include a period of at least six months for cities to correct deficiencies once the Board has found city programs to be inadequate. As noted in Reporting above,changes are needed in the ordinance to reduce reporting and compliance requirements and to adequately share remaining responsibilities between the County and cities. It is recognized that cities will state the Materials Division Ordinance is not nary because it duplicates AB 939. While this is substantially true, a Materials Division Ordinance wilt give the'County some influence with cities that may neglect their waste diversion mandates. Concord does not intend to be such a city. The Materials Division Ordinance, however, should be amended to reduce city costs, to reduce subjectivity, and to provide a reasonable process in the event the Board finds a city's recycling and diversion ordinance does not meet the letter of the ordinance. Sincerely, Nancy Gore Mayor cc: Louise Aiello, Project Manager Julie Fisher, Recycling Manager Public Managers AB 939 Project Manager Peter Dragovich, Associate Planner