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Home My WebLink AboutMINUTES - 10111994 - H.1 H. 1 and H. 2 THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA Adopted this Order on October 11. 1994 by the following vote: AYES: See below for motions and votes (Supervisors Present: Smith, Bishop, DeSaulnier, Torlakson and Powers) NOES: ABSENT: ABSTAIN: SUBJECT: Report From The Director, Growth Management and Economic Development Agency, to Consider Tipping Fees and Other Landfill Related Actions; and Hearing On Amendment 1 to Land Use Permit 2020-89 Regulating Keller Canyon Landfill, Bay Point/Pittsburg Area. On October 4 , 1994 the Board of Supervisors continued to this date the hearing on the recommendation of the Contra Costa County Planning Commission on the request of the Keller Canyon Landfill Company (applicant and owner) for approval of Amendment 1 to Land Use Permit 2020-89 which regulates Keller Canyon Landfill . Amendment 1 proposes to delete or revise conditions of approval established by LUP 2020-89 pertaining to fees paid by the Landfill to Contra Costa County. These include fees for transportation and open space, and resource recovery. Some fees may be eliminated or reduced. Rate setting conditions would be modified. Area-of-origin provisions would be revised for consistency with recent federal court decisions . Amendment 1 does not propose any physical changes to the Landfill facility or site, or any changes to its operating requirements . None of the fee changes affect mitigation measures imposed by the Landfill' s Environmental Impact Report . A Notice of Exemption has been filed pursuant to the California Environmental Quality Act, in the Bay Point/Pittsburg area; and On October 4 , 1994, the Board of Supervisors also continued to this date the report from the Director, Growth Management and Economic Development Agency to consider tipping fees (their amounts and levels) and other landfill related actions . Val Alexeeff, Director, Growth Management and Economic Development Agency, presented the staff report addressing concerns raised by the Board at the October 4 , 1994 meeting. The Board discussed the designation of two Supervisors to attend the October 13 , 1994 meeting of the Centra Contra Costa Solid Waste Authority. Supervisor Powers advised that unless there was objection that Supervisor Smith and Supervisor Bishop will be designated. The vote on the designation was unanimous . Victor Westman, County Counsel, commented on a memorandum before the Board advising that staff had received the fully executed franchise agreements from Acme and Keller for the transfer station and disposal site and that those agreements were now in the Clerk of the Board' s office . Supervisor Powers indicated he had requested the franchise agreements on the agenda this week and that he had not signed the agreements but if the Board directs him to sign them he will do SO. He also indicated he would like to take testimony from those wishing to do so and then discuss the franchises . The following persons appeared and presented testimony: Frank Aiello, 1734 Bridgeview, Pittsburg, representing Citizens United, requested that the Board not decrease the fees, but go back and collect the CPI' s that are due by contract and he suggested the possibility of a Grand Jury report on a possible refund to Contra Costa citizens; Lance J. Dow, 2232 Concord Drive, Pittsburg, requested that the Board deny the applicant' s request; Tom Bruen, representing Browning Ferris Industries, commented on a letter that he had delivered to staff today confirming that Browning Ferris Industries is committing for an eighteen month period upon the commencement of operations of the permanent transfer station to a gate rate of $39 per ton net of taxes . Supervisor Bishop commented on her understanding of the approval of the franchise agreements . Supervisor Torlakson expressed his discomfort with the land use permit change issue and he moved to keep the land use permit in place and not to follow the Planning Commission' s recommendation to change that language but to leave the $2 per ton for open space and $2 per ton for transportation as it is in the permit . The motion died for lack of a second. Supervisor Powers commented on a memo he had provided to the Board (no copy to the Clerk) and had given to County Counsel earlier today. The Board. discussed the approval of the franchise agreements. Victor Westman advised the Board that the Board of Supervisors had approved the agreement and it is really ministerial who signs agreements. The Board further discussed the issue of the approval of the franchise agreements . The Board discussed the options as provided in the report from Val Alexeeff, Options for Administration -of Landfill Mitigation Fees . Supervisor Powers expressed that he did not think that the franchise conforms to what the Board' s direction was . Mr. Westman advised that there was a concern that staff did not completely understand the Board' s direction as to what the fees should be with the adoption of the franchise agreements . Supervisor DeSaulnier suggested that perhaps the Board should discuss how the fee was going to be spent and that the concerns raised by Chairman Powers be addressed in a report from County Counsel on the existence of the agreements . Supervisor Bishop concurred and commented on a need to address some of the issues that Supervisor Powers raised but to do that in a collaborative environment, recognizing that the Board is in a contractual agreement with Browning Ferris Industries . Supervisor Powers moved to put the item over, directing the Chair not to sign it until next week, ' and having an opportunity for staff to look more into this matter. Supervisor Smith commented that most of the proposed amendments before the Board coming from the Planning Commission are unnecessary except for two minor changes on conditions 35 . 1 and 35 . 2 which deal with the transportation fee and the open space fee, the adding of permissive language, and he moved to clarify the language to read the landfill operator may pay to the County of Contra Costa a transportation impact fee of $2 per ton for waste received at the landfill to mitigate the general impacts of the landfill generating traffic on County roads and that similar language should be changed in the other paragraph. He added another sentence for clarity, that the specific amount of the fee shall be determined by resolution of the Board of Supervisors . Supervisor DeSaulnier seconded the motion. The Board discussed the motion. The vote on the motion was as follows : AYES : Supervisors Smith, Bishop, DeSaulnier and Powers NOES : Supervisor Torlakson ABSENT: None ABSTAIN: None Supervisor Powers requested that the matter of the franchise issue be put over for a week to allow the Board and the staff to review any recommendations and for further advice from the County Counsel on whether or not additional provisions can be placed in the franchise agreements . Supervisor Torlakson seconded the motion. Supervisor Bishop indicated she would not support the motion because she opined the Board has an agreement and advised that the points Supervisor Powers raised should be discussed. Supervisor Powers added to his motion with no objection that in the meantime that staff and County Counsel can sit down with representatives of Browning Ferris Industries and Acme and discuss these issues . The vote on the motion as amended was as follows : AYES : Supervisors Smith, DeSaulnier, Torlakson and Powers NOES : Supervisor Bishop ABSENT: None ABSTAIN: None Supervisor Smith moved to request County Counsel and the County Administrator to meet with DeLoitte Touche and return to the Board with an explanation of the difference in the proprietary rate and potential rights and duties and responsibilities of the County are with regard to that differential and the potential of a full or partial refund. Supervisor DeSaulnier seconded the motion. The vote on the motion was as follows : AYES : Supervisors Smith, DeSaulnier, Torlakson and Powers NOES : None ABSENT: None ABSTAIN: Supervisor Bishop Supervisor Smith moved a $2 fee for host community mitigation at the transfer station, at least $3 at the Keller landfill to be distributed among host community mitigation, ag and open space and transportation as the Supervisor from the district sees fit and removal of the resource recovery fee and fund that out of the remainder of the surcharge. Supervisor Torlakson seconded the motion, and he proposed an amendment to consider when the Board can remove the other fees, that the Board would reinstate the fees that are being eliminated from the Keller mitigation but to suspend them in some way at this time rather than eliminating them, and he also suggested consideration of a floor in the land use permit so that the floor is established in the land use permit and any resolution that the Board passes that can be implemented in the franchise agreement . The maker and seconder of the motion discussed the proposed amendment and Supervisor Smith clarified that he would include the floor in the land use permit but expressed a need for County Counsel to draft language to accomplish. that and Supervisor Torlakson expressed agreement with that intention. Supervisor Powers clarified that the motion before the Board was only designating at this point in time the differences within the framework of the previously reduced fees, and the research recovery dollar is moved to the host mitigation and there is a designation of $2 for Acme Transfer Station. Supervisor Torlakson further clarified that by the motion the Board was setting a floor of the $3 for mitigation to Keller. The Board discussed the issues . Supervisor Powers suggested that since there' s an intention that' s clear between the maker and seconder of the motion but not clarity on the specific language, perhaps County counsel could draft that language and return it next week for Board consideration and that the Board could vote it' s intention. Victor Westman clarified that the Board would be leaving the land use permit hearing open before the Board and continuing it for another week for further consideration. Supervisor Powers concurred and further clarified that it would be directing the Board' s intention to Mr. Westman to draft a provision and return next week. The vote on the motion was as follows : AYES : Supervisors Smith, DeSaulnier, Torlakson and Powers NOES : Supervisor Bishop ABSENT: None ABSTAIN: None Supervisor Torlakson expressed his concerns with the Keller Mitigation fund process for this fiscal year and he moved a request for a report on the fund balances in the ag and transportation fund and to commence the process for expending them. Supervisor DeSaulnier seconded the motion. The vote on the motion was unanimous . IT IS BY THE BOARD ORDERED that Supervisors Smith and Bishop with Supervisor DeSaulnier as alternate are DESIGNATED to attend the October 13 , 1994 meeting of the Central Contra Costa Solid Waste Authority; it is DETERMINED to amend Conditions 35 . 1 and 35 . 2 of the Keller Canyon Land Use Permit; the franchise agreement issue is CONTINUED to October 18, 1994 and County Counsel is DIRECTED to advise the Board of Supervisors on the possibility of additional provisions to the franchise agreements; and staff and County Counsel are DIRECTED to discuss these issues with Browning Ferris Industries and Acme representatives; County Counsel and County Administrator are DIRECTED to meet with DeLoitte Touche on the difference in the original and the present proprietary rate and related matters and provide a report to the Board of Supervisors; the hearing on Amendment 1 to Keller Canyon Landfill Land Use Permit 2020-89 is CONTINUED to October 18 , 1994 at 2 P.M. and County Counsel is DIRECTED to prepare specific language for the land use permit amendment and language expressing the Board' s intent relative to the distribution of the mitigation fees, including $2 for Acme and $3 for Keller, and a proposed floor on mitigation funds; and staff is DIRECTED to report to the Board of Supervisors on fund balances in the ag and transportation mitigation funds for Keller and to commence the process for community and Finance Committee review of the expenditures . I i,Preby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Su the date shown. ATTESTED: I q9 4 PHIL BATCHELOR,Clerk of the Board qf.pupervJ4 xv and Administrator CC : GMEDA Community Development BY ,Deouty County Counsel Browning Ferris Industries HA Contra TO: BOARD OF SUPERVISORS - Costa - - - FROM: VAL ALEXEEFF,. DIRECTOR County GROWTH MANAGEMENT & ECONOMIC DEVELOPMENT AGENCY DATE: OCTOBER 11 , 1994 SUBJECT: REPORT FROM GMEDA DIRECTOR TO CONSIDER TIPPING FEES (THEIR AMOUNTS AND LEVELS) AND OTHER LANDFILL RELATED ACTIONS SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION RECOMMENDATIONS Accept Reports from GMEDA Director dated September 27, 1994; October 4, 1994, and October 11, 1994; and, accept addiitional information regarding options for administration of landfill mitigation fees. FISCAL IMPACT Reductions to the General Fund will occur. BACKGROUND/REASONS FOR RECOMMENDATIONS On September 27, 1994 and October 4, 1994 the Board of Supervisors continued Items 2.4 and H-3, respectively, for consideration on October 11, 1994. On October 4th the Board requested that staff provide for consideration options for the administration of landfill mitigation fees. Attachment #1 is a memo outlining such options. Attachment #2 and #3 are the complete Board Orders from the previous Board meetings. CONTINUED ON ATTACHMENT: YES SIGNATURE _ RECOMMENDATION OF COUNTY ADMINISTRATOR — RECOMMENDATION OF BOARD COMMITTEE APPROVE OTHER SIGNATURE(S): ACTION OF BOARD ON APPROVED AS RECOMMENDED _ OTHER _ VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A TRUE AND UNANIMOUS (ABSENT CORRECT COPY OF AN ACTION TAKEN AND AYES: NOES: ENTERED ON THE MINUTES OF THE BOARD ABSENT: ABSTAIN: OF SUPERVISORS ON THE DATE SHOWN. Contact: Val Alexeeff (510/646-1620) ATTESTED cc: Community Development Department (CDD) PHIL BATCHELOR, CLERK OF THE County Administrator BOARD OF SUPERVISORS AND County Counsel COUNTY ADMINISTRATOR Building Inspection Department Public Works Department BY , DEPUTY 939t\bo1SWcompar.3 t H.1 Contra TO: BOARD OF SUPERVISORS - Costa FROM: VAL ALEXEEFF, DIRECTOR Chu / GROWTH MANAGEMENT & ECONOMIC DEVELOPMENT AGENCY DATE: OCTOBER 11, 1994 SUBJECT: REPORT FROM GMEDA DIRECTOR TO CONSIDER TIPPING FEES (THEIR AMOUNTS AND LEVELS) AND OTHER LANDFILL RELATED ACTIONS SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION RECOMMENDATIONS Accept Reports from GMEDA Director dated September 27, 1994; October 4, 1994, and October 11, 1994; and, accept addiitional information regarding options for administration of landfill mitigation fees. FISCAL IMPACT Reductions to the General Fund will occur. BACKGROUND/REASONS FOR RECOMMENDATIONS On September 27, 1994 and October 4, 1994 the Board of Supervisors continued Items 2.4 and H-3, respectively, for consideration on October 11, 1994. On October 4th the Board requested that staff provide for consideration options for the administration of landfill mitigation fees. Attachment #1 is a memo outlining such options. Attachment #2 and #3 are the complete Board Orders from the previous Board meetings. CONTINUED ON ATTACHMENT: YES SIGNATURE _ RECOMMENDATION OF COUNTY ADMINISTRATOR _ RECOMMENDATION OF BOARD COMMITTEE _ APPROVE _ OTHER SIGNATURE(S): ACTION OF BOARD ONS APPROVED AS RECOMMENDED _ OTHER VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A TRUE AND _ UNANIMOUS (ABSENT CORRECT COPY OF AN ACTION TAKEN AND AYES: NOES: ENTERED ON THE MINUTES OF THE BOARD ABSENT: ABSTAIN: OF SUPERVISORS ON THE DATE SHOWN. Contact: Val Alexeeff (510/646-1620) ATTESTED �� Z-/, /"g cc: Community Development Department (CDD) PHIL BATCHELOR, CLERK OF THE County Administrator BOARD OF SUPERVISORS AND County Counsel COUNTY ADMINISTRATOR Building Inspection Department Public Works Department BY DEPUTY 939t\bo1SWcanWsr.3 1 Attachment #1 CONTRA COSTA COUNTY GROWTH MANAGEMWWr AND ECONOMIC DEVELOPMENT AGENCY DATE: October 5, 1994 TO: Members, Board of Supervisors FROM: Val Alexeeff, Director SUBJECT: OPTIONS FOR ADMINISTRATION OF LANDFILL MITIGATION FEES (OCTOBER 11 BOARD AGENDA ITEM #H-1) As part of your Board's consideration of Item H-3 on October 4, 1994, staff was requested to prepare options for the administration of the landfill mitigation fees. Five options are outlined below. tion 1 Continue the existing method for administering the fees using the Land Use Permit Conditions of Approval to lock in $2.00 for Transportation Mitigation and $2.00 for Open Space/Agriculture Mitigation and uses the Franchise Agreement to set a$2.00 Host Community Mitigation Fee. tion 2 Modify the Land Use Permit Conditions of Approval so that the $2.00 Transportation Fee and the $2.00 Open Space/Ag Fee are moved into the Franchise Agreement as part of the Host Community Mitigation Fee for a total Host Community Mitigation of $6.00 and within the budget setting process determine how much shall go to transportation, open space/ag, and host community as presently constructed. tin Modify the Land Use Permit Conditions of Approval so that discretion over the Transportation and Open Space/Ag mitigations are moved into the Franchise Agreement with alternate amounts to be set on an annual or bi-annual basis for budget purposes. QRtion4 Modify Land Use Permit Conditions of Approval as in Option 3 but identify a total mitigation amount for all interests, such as current Transportation, Open Space/Ag, Bay Point area, City of Pittsburg, and area around the Acme Permanent Transfer Station. ti n Consider other methods to provide for area mitigation other than tipping fees or surcharges. 939tAswcompar.mem Addendum Item 2.4 Attachment #2 from 9/27/94 To Be Heard at 2pm on 10/4/94 with Item H-3 Contra TO: BOARD OF SUPERVISORS Costa FROM: VAL ALEXEEFF, DIRECTOR Ca^ GROWTH MANAGEMENT & ECONOMIC DEVELOPMENT AGENCY DATE: OCTOBER 4, 1994 SUBJECT: CONSIDER ADDENDUM TO 9-27-94 BOARD AGENDA ITEM 2.4 ON TIPPING FEES AND OTHER LANDFILL RELATED ACTIONS SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION RECOMMENDATIONS Accept report from GMEDA Director on additional information requested by Board members on Tipping Fees and other Landfill Related Matters. FISCAL IMPACT Reductions to the General Fund will occur. BACKGROUND/REASONS FOR RECOMMENDATIONS On September 27, 1994 the Board of Supervisors continued Item 2.4 to the meeting of October 4, 1994 and requested information regarding estimated disposal tonnages/revenues and use of the fees originally required at Keller Canyon Landfill. The requested information is contained in Attachment lb and 1c. Additionally, Attachment la now includes information obtained from all solid waste hauling/disposal companies which have indicated an interest in providing disposal of solid waste generated in Contra Costa County. Attachment 1 d is the letter received from the Central Contra Costa Solid Waste Authority. CONTINUED ON ATTACHMENT: X YES SIGNATURE, LA _ RECOMMENDATION OF COUNTY ADMINISTRATOP _ RECOMMENDATION OF BOARD COMMITTEE _ APPROVE _ OTHER ACTION OF BOARD ON APPROVED AS RECOMMENDED-_ OTHER _ VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A _ UNANIMOUS (ABSENT TRUE AND CORRECT COPY OF AN AYES: NOES: ACTION TAKEN AND ENTERED ON THE ABSENT: ABSTAIN: MINUTES OF THE BOARD OF SUPERVISORS ON THE DATE SHOWN. Contact: Val Alexeeff (510/646-1620) ATTESTED cc: Community Development Dept. (CDD) PHIL BATCHELOR, CLERK OF County Administrator THE BOARD OF SUPERVISORS County Counsel AND COUNTY ADMINISTRATOR GMEDA Departments 939u:\WSWccmpar.2 BY , DEPUTY rn c a Cl. s its c o -a o p -J y U E N G co t0 V Oto 7 Q V ta N O c� v c o Y L O + O cE0 tb � Q7 'g to cNo 06 m d d Q — Z Z Z 'y * C d Q Z Z Z c Z Z d .0 c ca Q N; *' ° 0 O o ° �_ V E 0 p p 0 0 ?V ca `v 4. w0- O m d 0. 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Q - O h c ti E Z Z o o m 0 c d o 0 O J '= R3 . 0 w H I- N J M 111 M J W +1 M s It LA O O Z U f ATTACHMENT 1B -��.,MTonna2e 1994 it Kellert fi nna2c S 1:00rron Es6matedRevenue January 23,402 $23,402.00 February 22,036 $22,036.00 March 35,936 $35,936.00 April 32,009 $32,009.00 May 37,616 $37,616.00 June 30,831 $30,831.00 July 28,238 $28,238.00 August September October November December Total(Jan.-July) 210.068 5210.068.00 Estimated Projected Total(Jan.-Dec.)• 340,068 $340.068.00 (•Estimate excludes San Ramon only and is haled on 26,000 tons/month.) --Tonnaue/Revenue b•Jurisdiction Jurisdiction Hauler 1990 Tonnage SI:00/Ton Estimated Revenue Antioch phbs 51,280 $51,280.00 Brentwood gar 6,147 56,147.00 Clayton phbs 5,989 551989.00 Concord gar 108,733 5108,733.00 Danville vw 28,403 528,403.00 Lafayette vw 20,459 $20,459.00 Martinez phbs 31,029 $31,029.00 Moraga om 12,431 $12,431.00 Orinda om 14,711 514,711.00 Pleasant Hill phbs 29,017 529,017.00 San Ramon vw 39,047 $39,047.00 Unincorp Central Co. (PHBS/CCCSD) phbs 15,814 $15,814.00 Unincorp Central Co.(VW/CCCSD) vw, 35,830 $35,830.00 Unincorp East Co.(County) ccc 27,328 527,328.00 Unincorp East Co. (Garaventa) gar 26,071 526,071.00 Walnut Crtek vw 77,494 $77,494.00 Tntal 529.783 5529,783.00 Tonnage/Revenue by jurisdiction ( Jurisdiction Hauler 1990 Tonnage S 1:00/Ton Estimated Revenue Clayton phbs 5,989 55,989.00 Danville vw 28,403 $28,403.00 Lafayette vw, 20,459 $20,459.00 Martinez phbs 31,029 $31,029.00 Morass om 12,431 512,431.00 Orinda om 14,711 $14,711.00 Pleasant Hill phbs 29,017 $29,017.00 San Ramon vw 39,047 $39,047.00 Unincorp Central Co. (PHBS/CCCSD) phbs 15,814 $15,814.00 Unincorp Central Co. (V W/CCCSD) vw, 35,830 535,830.00 Walnut Creek vw 77,494 $77,494.00 Total 310.224 5310,224.00 RLAI:momge.tbl 9.29.94 Attachment #lc SURCHARGE :1992/93. '1993/94 Revenues: $1,437,515 $1,235,488 Expenditures: SSI Advocacy 60,000 60,000 Recycling Center 572,912 210,000 Career Development - 15,000 15,000 GA Workcrews Solid Waste Administration 458,648 -0- Sheriff/DA -0- 876,200 Expenditure Total $1,106,560 $1,161,200 Difference Between Revenues & $330,950 $74,288 Expenditures Per Year TONAL BO'M YEARS $405,243 Tonnage for July 1994 was 28,238 with equivalent revenue of $109,062.80 VA:drg c:surchge (revised 9/28/94) ,j TRANSPORTATION 1992/93 1993/94 Revenues: $831,716 $641,812 Expenditures: Bailey Road Widening 300,000 29,204 Traffic Signs -0- 6,000 Evora Road -0- 147,000 Litter Pickup 245,427 202,000 Route Restriction 50,000 70,000 Enforcement Transportation & Congestion -0- 100,000 Relief Roadside Hazardous Cleanup -0- 12,000 Expenditure Total * $595,427 $566,204 Difference Between Revenues & $236,289 $75,608 Expenditures Per Year TOTAL BOTH : $311,897 Mitigation fee revenues remaining after expenditures are retained in the Keller Canyon Mitigation Fund. *Staff administrative costs are not included. TONNAGE FOR JULY 1994 WAS 28,238 WITH EQUIVALENT REVENUE OF$561476. VA:drg catnap (noised 9/28/94) COMMUNITY ASSISTANCE...- 1992/93 1993/94 Revenues: $831,716 $641,812 Expenditures: Code Enforcement 60,000 60,000 Property Cleanup 90,000 90,000 Patrol/Bay Point Res. Deputy 190,000 140,000 Community Mitigation 160,000 162,815 Contracts Pittsburg Library Homework -0- 51,000 Help Center Family Service Integration -0- 46,85 Expenditure Total * $500,000 $550,000 Difference Between Revenues & $331,716 $91,812 Expenditures Per Year TOTAL BOTH YEARS $423,528 Mitigation fee revenues remaining after expenditures are retained in the Keller Canyon Mitigation Fund. Please see attached list of contractors. *Staff administrative costs are not included. TONNAGE FOR JULY 1994 WAS 28,238 WITH EQUIVALENT REVENUE OF$56,476. VA:drg cxmtyasat (revised 9/28/94) OPEN SPACE/AGRICULTURE 1992/93 1993/94 Revenues: $831,716 $641,812 Expenditures: Rodent/Thistle Control 86,661 60,000 Tree Planting 100,000 100,000 EBRPD Trail Maintenance -0- 90,000 Ambrose Open Space -0- 90,000 Wetlands Mitigation -0- 50,000 Delta Env. Science Center -0- 35,L00 Audobon Conservation Outreach -0- 10,000 Farm Bureau -0- 5,000 Ag/Soils Bank 250,000 250,000 Expenditure Total * $436,661 $690,000 Difference Between Revenues & $395,055 - $ 41,812 Expenditures Per Year =TOTAL BOTH YEARS $346,867 Mitigation fee revenues remaining after expenditures are retained in the Keller Canyon Mitigation Fund. *Staff administrative costs are not included. TONNAGE FOR JULY 1994 WAS 28,238 WITH EQUIVALENT REVENUE OF$56,476. VA.drg c:opnspc.agr (revised 9/78/94) Attachment #1d CONTRA COSTA • CENTRA ! CON TRI49EID IM *VI610 WASTE AUTHORITY 4737 fthoff Pike, Suite I C0P. U1IilTY ,apraB.ML ,cluir Mortina. Colitomis 91553 DEVELOPMENT DEPT GM*VL EVaClair MORYL.CAM,DMX EMMV ULM.001or MWYLDII DL/O Doctor SUS4NItlUTY/t4ffY.&1W0f September 26, 1994 MOLMM,Sol;EmewDiwrf X=E.KMFW.saWyaae AXV* 010)2? -wl Ar 010)"22.3182 Honorable Tom Powers, Chairperson Contra Costa County Board of Supervisors County Administration Building 651 .Pine Street, 11 th Floor Martinez, CA 94553 Reference: Request of County to join Central Contra Costa Solid Waste Authority Dear Chairperson Powers and Honorable Board Members: At its meeting of September 22, 1994,the Board of Directors of the Central Contra Costa Solid Waste Authority (CCCSWA) considered the request of your Board for County membership in this Authority. The Authority Board members present unanimously supported the County's request for membership and approved in concept the County's entrance into this organization pursuant to the general terms set forth below. Supervisor Smith and County staff member Louise Aiello provided some insight into the County's intentions regarding joining the CCCSWA. We welcomed Supervisor Smith's comments although he made it clear that his remarks could, of course, not bind the entire Board of Supervisors with regard to the terms and conditions under which the County would join the Authority. For that reason, we have outlined below the terms under which the Authority Board of Directors would welcome the entrance of the County as an equal member to the Authority. The following is a brief outline of those terms: • The County shall join as equal member with two (2) voting members. • County Board Authority members shall be supervisors. • The CCCSWA plans to issue the RFP or extend a franchise (in order to provide the ratepayers with the earliest potential date of rate reduction) at its next meeting to be held on October 13, 1994. The County's consideration of membership should bear this timeline in mind. member•Stories: • Central Conks Costa Senbry District • City of Son Ramon • City of Walnut Creek ®aeras P"V Honorable Tom Powers, Chairperson Contra Costa County Board of Supervisors September 26, 1994 Page 2 • County must agree to delegate franchising authority to the CCCSWA for the unincorporated areas within the current Authority boundaries (within RFP Zones 1 and 2). • County must agree to participate in CCCSWA with an acknowledgment that the intention of the Authority is to pursue and contract for the lowest cost collection and disposal options for the designated service levels, without respect to the location of ultimate disposal of the solid waste collected from the jurisdiction (e.g., in-county or out-of-count). • County must acknowledge that an Authority decision with regard to collection, franchising, and/or disposal may not im consistent with the County's historic position. Accordingly, the County must in good faith commit to working constructively within the Authority to implement that decision, rather than contest it through litigation or similar actions. In addition to the general terms set forth above, the Authority Board discussed the issue of a buy-in charge for the County, given the substantial sums spent by the current member agencies to fund the JPA's current operations, including the ongoing negotiations and the development of the RFP process. The Authority Board members'initial conclusion suggested that there should be no buy-in cost for the County with regard to the areas currently under the franchise of the Central Contra Costa Sanitary District, since contributions of members have been on a waste volume basis. However, to the extent that the County joins the JPA to administer solid waste franchies for unincorporated areas not within the current CCCSD franchise areas, an appropriate buy-in fee would be calculated. The .Authority assumes that there will be no such areas initially, and accordingly, no required buy-in charge. The Authority Board further indicated that the County should understand it is the Authority's intention to impose a liability/closure fee surcharge on the collection rates for both the Incorporated and/or unincorporated areas within its current jurisdictional boundaries for costs and liabilities arising from the Acme lawsuit. The Authority's intent is that the waste shed areas should pay their proportional share of any liabilities or costs arising from the Acme Landfill, without regard to whether the County, CCCSD, or the Authority in fact issues the franchise in the future. 1' Honorable Tom Powers, Chairperson Contra Costa County Board of Supervisors September 26, 1994 Page 3 On behalf of the CCCSWA, I would like to commend the Board's agreement in concept that the ratepayers' best interest are served by the County joining with the other solid waste franchising entities as Authority members to address Central County waste challenges. Sincerely, John B. Clausen, President Central Contra Costa Solid Waste Authority cc: G. Carr J. Clausen E. Munn M. Oliver S. Rainey G. Wolfe D. Blubaugh R. Dolan H. Moniz F. Davis Attachment #3 2.4 TO: BOARD OF SUPERVISORS Contra FROM: VAL ALEXEEFF, DIRECTOR Costa GROWTH MANAGEMENT & ECONOMIC DEVELOPMENT AGE1W ;ount� N DATE: SEPTEMBER 27, 1994 SUBJECT: REPORT FROM GMEDA DIRECTOR TO CONSIDER TIPPING FEES (THEIR AMOUNTS AND LEVELS) AND OTHER LANDFILL RELATED ACTIONS SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION RECOMMENDATIONS Accept Report from GMEDA Director and confirm September 13, 1994 fees/surcharges and any changes thereto. FISCAL IMPACT Reductions to the General Fund will occur. BACKGROUND/REASONS FOR RECOMMENDATIONS On September 13, 1994, the Board of Supervisors referred a number of issues back for further consideration on September 27, 1994. Primary consideration was given to comparing the proposals from BFI, Garaventa, RSS, and Waste Management. In considering available information, staff had some unanswered questions so a questionnaire in matrix format was devised and sent to the companies. The results of this quick survey are provided as Attachment 1 . Further direction to staff may be given based upon review of information provided. The Board wished to discuss the history of the Acme Transfer Station and the report is provided as Attachment 2. CONTINUED ON ATTACHMENT: x YES SIGNATURE = RECOMMENDATION OF COUNTY ADMINISTRATOR _ RECOMMENDATION OF BOARD COMMIZEE , APPROVE OTHER SIGNATURE(S): ACTION OF BOARD ON APPROVED AS RECOMMENDED OTHER 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. Contact: Val Alexeeff (510/646-1620) ATTESTED cc: County Administrator. PHIL BATCHELOR, CLERK OF THE County Counsel BOARD OF SUPERVISORS AND GMEDA Departments COUNTY ADMINISTRATOR 939ukbMSWcompar BY , DEPUTY TIPPING FEES (THEIR AMOUNT kND LEVELS) AND OTHER LAN[ '-L RELATED ACTIONS Page Two - Continued The Board action taken on September 13 is provided along with the transcript as Attachment 3. The charge, as understood by staff, is as follows: a) Charge the following separately: At Keller (Eastin Bill fee).................. $ 1 .34 At Acme (LEA and AB 939)*.......... 1.15 TOTAL ................................................................................... $ 2.49 (" charged at Keller for direct haul) b) Couple cost of all current programs, including HHW and host mitigation fee at Keller and Acme Transfer Station, into a flat, combined 25% surcharge, of which 5% is to be deposited in a trust fund for closure and post-closure, or related litigation expenses. At a $39.00 proprietary rate, the County's surcharge will total ...... $ 9.75 GRANDTOTAL ...............................................................................812.24 c) After six months, the Board will re-evaluate all fees, including HHW ($2.12) and 5% ($1 .95) component of surcharge (1 .95) to determine whether any should be modified, reduced, or eliminated. The Board may wish to provide additional clarification in fees in light of the LUP 2020-89 consideration (Item H-1) and take action as appropriate. Additionally, the Board may wish to direct staff to allocate surcharge amounts. The staff report, prepared by Fred Davis to the Central Contra Costa Solid Waste Authority (CCCSWA) for September 22, is provided as Attachment 4. Staff will provide an update on the actions of the CCCSWA. The Board may wish to direct further action with regard to the CCCSWA. The Citizens United letter dated September 6, 1994 will be responded to in the LUP staff report. 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E J J f k k $ $ # E a k ` W q q CN ° 2 . . k _ # 2 � � 2 , 2 2 2 04 # 2 2 0 © c © k 0 2 . v � ' 0 0 E k M 2 E c $ § m v C c ® u Li # f 5 7 . c e � f � 0 - / e ' o c 0 CO © > % t cm k • k k o k00 2 ■ E _ q a c o _ k 0 ° 5 ° ° 2 ■ cn _ u > _ \ / E E E J / E cm C k E Z J k EA 7 § § 2 7 o 3 . .6 3 $ 3 m u.1 @ -01 01 , 3 O k L--Jl I --IL I U-4. f LLL�l 2U SEP-2 1 -S 4 W E D 1Z :02 Attachment #1 b LANDFILL September 21, 1994 TRANSMITTED BY FAX Mr. Valentin Alexeeff, Director Growth Management and Economic Development Agency Contra Costa County 651 Pine Street, North ping, Second Floor Martinez, California 94553-1599 Re: Garaventa/Potrero Hills Landfill Inc. Disposal Proposal Dear Mr. Alexeeff: This letter is a follow up to the September 20, 1994 correspondence fron John Rowdzn on behalf of the Recycling Center and Transfer Station to be developed in Pittsburg, California. As you know, Potrero Hills Landfill, Inc. has entered into an agreement with. the Recycling Center and Transfer Station to provide for disposal of waste delivered to the facility. The purpose of this letter is to provide information to Contra Costa County responsive to the questionnaire which the County promulgated entitled "Comparison of Solid waste Transfer and Dispoaal Costs. " Mr. Rowden hae responded to questionnaire Items i and 2. I reiterate that the total cost at the gate of the Recycling Center and Transfer Station is $41.50 including all government fees. Of course, the $41.50 includes transportation to and disposal at the landfill. Potrero Dills Landfill is permitted to receive 850 tons per day, seven days per meek (TPD7) . The landfill has applied for and expects to receive permission to receive up to 3400 TP07. The remaining capacity at Potrero Hills Landfill is 10 million tons. The landfill can facilitate a peak of 120 one-way vehicle trips per hour. At the rate of 1500 TPD7 the landfill has a retraining life of 22 years. Re have acquired large tracts of adjacent land and we believe that it is possible that the landfill could expand beyond its present foot print and thus have a significantly longer useful lite. Potrero Hills Landfill, Inc. will provide a full and complete indemnification from all future closure liability at the site. There will be more than sufficient capacity at the landfill to accommodate the requirements of Contra Costa County upon approval of pending permit applications. �pOt:V OOS9t111�i tt8356 POTEOOAO HU9 LANE-SUMUN,CA-(M 42949MM • P.O. BOX 99-PAIWELD,CA 9463.1 10 1 In the interim period prior to the opening of the Recycling Center and Transfer Station, Potrero Hills Landfill, Inc. has offered to accept waste by direct haul at the Potrero Hills Landfill and at the West Contra Costa Sanitary Landfill (WCCSL) . The offer is to accept waste by direct haul at either site at the rate of $33.62 per ton, including all government lees. WCCSL will also serve as a back up to Potrero Hills Landfill once the Recycling Center and Transfer Station commences operations. Potrero Hills Landfill, Inc. will provide a full indemnity, along with Nest Contra Costa Sanitary Landfill, Inc. , with respect to all waste received by the WCCSL under the terms of agreements With Contra Costa cities and the unincorporated areas. The following fees are paid by Potrero Hills Landfill, Inc. for each ton of waste received at the landfill. These fees are included in the $41.50 tipping fee at the Recycling Center and Transfer Stations: State bees $1.34 - AD 1230 1.00 - Closure/post Closure 1.00 - PRC 43040 Local Fees $5.00 - County Business License 0.473 - County LEA fee 0.65 - Mitigation TOTAL FEES $9.46 INCLDDHD IN $41.50 TIPPING FEE I believe that the above information, together with the data provided in Mr. Rowden's letter, responds fully to the request for information included in the ^Comparison of Solid waste Transfer and Disposal Options" which we received from the County. Please give me a call if you have any questions regarding this matter. Sincerely, POTRERO HILLS LANDFILL, INC. 14" P-k�. . . Larry Burch, P.E. Director of Environmental Management cc: John Rowden 1pOC��OC9901t�10Q3S6 f d .te: rWT aam b6-- T Z-das BEP-21-94 WO 14:44 RECEIVABLES AHD PAYABLES FAX Na 0000M00 Attachment #1 C J Contra Costa Waste Service 4060 M&LAAD ONVE • P.O.BOX 5397 CONCORD.CAUFOMIA 9AUD (510)473-0180 September 20, 1994 Mr. Valentin Aleaeeff, Director Growth Management and Economic Development Agency Contra Costa County 651 Pine Street, North Wing, Second Floor Martinez, California 94553-1599 Dear Val, On behalf of Mr. Garaventa, the folloving responds to your September 16 letter requesting information concerning the Recycling Center and Transfer Station and Mr. Garaventa's offer to use the facility. Information concerning the Potrero sills &andZ111 will be provided by the owners of that facility. The information is organized according to the format of the questionnaire sect with your letter. 1. Cost Transfer station & haul : A $41.50 gate rate will be charged which will include the landfill gate rate, the transfer station gate rate, the haul cost and all governmental fees. 2. Transfer Station and AB 939 Diversion* Name: Recycling Center and Transfer Station 1300 Loveridge Road, Pittsburg, Contra Costa. County Size of structure: 182,000 of Tonnages committed: No tonnages are legally ccmmeitted to the facility, however, the Garaventa collection companies intend to use the Garaventa owned facility. The Garaventa companies collect between 600 and 700 tons per dap. Area of land (acreage): 17.5 Materials to be separated: Paper, metals, plastics, glass, wood, appliance, tires, concrete, asphalt and other inerts will be separated from loads of commercial, industrial and self-haul loads. Presorted loads of yard waste and other solid ccmpostBDle material will be transferred separately to recycling facilities in order to beet diversion goals. SEP-21-94 WED 14:45 RECEIVABLES AND PAYABLES FAX N0. 0000000000 P. 03 Freeway Access/connection: Loveridge Road to Highway 4 Peak Hour Traffic Protection/Restriction: Restrictions will be placed on transfer trucks and other traffic as prescribed by a traffic plan approved by the City of Pittsburg, consistent with mitigations identified in the City EIR and the program EIR for the Co®ty Integrated Waste Maaageaent Plan Additional Facilities Proposed/Phasing Dates (i.e. , material recovery.. composting, etc. ) capacity of additional facilities: The Recycling Center and Transfer Station will operate in conjunction with. tbe Mt. Diablo Recycling Center located at 4050 Mallard Drive in Concord. The facility will be devoted to processing residential curbside collected recyclables. The Concord facility has a capacity of processing up to 250 tons of material per day. compostable Material will be hauled to composting facilities in Contra Costa or San Joaquin comty. 3. Landfill Name: Potrero Hills Landfill Distance from transfer station: 47 miles 4. Term Short-term: Any length term is accepted including "no term" Long.-term: 7 to 20 years Break-away options: Determined by the waste supplier S. Fees (per ton): All included in gate fee, see 1. If you have any questions about the responses, please call me at 682-0977. Since ely, •'`John Rowden Project Manager Attachment #2 CONTRA COSTA COUNTY GROWTH MANAGEMENT AND ECONOMIC DEVELOPMENT AGENCY DATE: August 25. 1994 TO: Membersawd of Supervisors FROM: Val Akmeetf. Dir SUBJECT: Acme FIl Transfer Station Recently a number of questions have been asked about Acme Landfill temporary trar.ifer station and permanent transfer station. Community Development staff worked with County Council to provide answers. Please review the response. Previous answers have prompted follow up questions so, if you have additional inquiry, please do not hesitate to let us know. VA•d vacmeques.tS ATTACHMENT >ct: P.aatchelor,CAO L&#h,Carry Council C.Zahn, Community Development L Aiello, Community Development B.Smkh, CWnMW*Development Dr.B. Walker,Health Services CONTRA COSTA COUNTY COMMUNITY DEVELOPMENT DEPARTMENT DATE: August 17, 1994 TO: Val Alexeeff, Director, GME FROM: Belinda Smith, Senior Planru 9 SLIBJF=: INMRMA77ON ON RATES FOR THE ACME INTERIM TRANSFER STATION AND THE ACME LANDFILL Summary This is in response to your request, on behalf of Supervisors Torlakson and Smith, for information on rates for the Acme Interim Transfer Station (Acme ITS), the amortization of the Acme ITS investment capital, and disposal at the Acme Landfill. 1. We understand that the amortization of investment capital for the Acme Interim Transfer Station, through the Acme ITS rates, concluded in December 1993. The per ton cost included for amortization remains in the rates but most likely has been offset by C.P.I., fuel costs, worker compensation, the recent increase in Household Hazardous Waste (HHW) Fee and other associated costs. 2. The Transfer Station rate structure was developed in 1989, at the time emergency export to other counties began. Due to seWement efforts for closure/post closure funding of the Acme Landfill, Acme and the County have not requested adjustments to the Acme ITS rates. 3. The County does not have mechanisms in place to rate regulate the Acme Landfill. Acme Landfill has charged 'transfer station rates" since 1989. Acme Landfill has also charged a gate surcharge of$8.63 to all customers, except franchise haulers, per Board of Supervisors approval. 4. Stage 1 of the Acme Permanent Transfer Station has been completed. The transfer facility could begin operation on September 7, 1994. On June 7, 1994 the Board of Supervisors eliminated the floor on the rates for the Keller Canyon Landfill and the Acme ITS. Provided below is a'summary based on file information: a brief description related to direction by the Board of Supervisors on the Acme Landfill and of the rate setting history of the Acme ITS. More detailed information on the Acme Landfill and 1 1 rate setting can be obtained from County Counsel. Overview: Disposal at the Acme Landfill Supervisor Smith's question related to the rata currently charged by the Acme Landfill and how those rates were established. The County does not rate regulate the Acme Landfill. Previous to Keller Canyon Landfill, franchises and tate regulation were not included as conditions of land use permits. The rates historically set at the landfills were a reflection of market demand, but beginning in the early 1980s were driven by regulatory requirements. In January of 1989, in response to new closure laws and regulations, Acme raised its rates from S25 a ton to $41 a ton to collect finds for closure. This action appeared as an item before the Board of Supervisors on April 11, 1989. The Board of Supervisors requested Acme not to make any rate changes to the rates umil the completion of a study by Touche-Ross on Acme Fill closure/post-closure host justification and payment means. On August 15, 1989 the Board of Supervisors referred to the City/County Memorandum of Understanding Committee on Export the issues of assessment and collection of closure/post-closure. The Revised November 28, 1989 Touche Ross report on the Interim Transfer Station Policies and Rate Review stated th-t the County had elected to assess each city.proportional to its use of the landfill through the franchised hauler. It also stated that closure/post closure,and if applicable, landfill costs would be reported with the Acme ITS rate application. The Board of Supervisors subsequently adopted the Touche Ross recommendations. It should be noted that Condition of Approval 15.4 of the Acme Transfer Station Land Use Permit allows for closure/post closure costs to be collected through the transfer station. When the County started export of MSW to the Potrero Hills and Altamont Landfills, the rate established at the Acme ITS became the rate Acme Fill Co. charged for disposal at the Acme Landfill. The chronology of the rates at the Acme ITS is summarized below. Essentially, a lower price charged for disposal at the Acme Landfill could have resulted in cities or haulers demanding the lower rate. Rate Overview: Acme Interim Transfer Station Supervisor Torlakson's inquiry related to amortization of investment capital and if it was included in the current rate. The last rate review of the Acme ITS occurred on November 24, 1992. At that time the amortization period was extended from June 1993 to December 1993. The rate set included amortization of$1.16 per ton. It is our understanding that the ITS is now paid-off. However, there are several other factors now affecting the rate that offset the continued collection of the per ton cost of amortization. Those factors include adjustment to CPI, increases in fuel cost, worker compensation, the recent increase in HHW fee (from S.41 to $2.12), etc. which would be eonsklered in current and future rate reviews. Rate Review Chronology 2 do 0 The Acme Interim Transfer Station stud operations in December of 1989 as a requirement of emergency export to Alameda and Solano Counties. The initial rate set for the Acme Interim Transfer Station was approved on December 5, 1989 for$52.22 per ton. The rate methodology set a 31 month amortization for the ITS. The cost per ton of the amortization of invested capital was $4.32 per ton. The operating ratio was set at 95%. The disposal rate (including mitigation fees to Alameda and Solano Counties) included in the transfer station rate was for export to Altamont Landfill and Potrero Hills Landfill. Although included in the Acme ITS rate application, closure/post closure assessments for the Acme Landfill were not allowed as part of the rate since other options were being explored at the time to handle closure fees. Since the ate was based on projections prior to actual operations, the Board directed Acme to file a rate application in time for a one year rate review. Other fees included in the rate were the per ton AB 939 fee of S.95 and the LEA fee of$.25. The AB 939 fee had been imposed by Resolution No. 89/738 on all disposal sites and transfer stations, including the interim station. The LEA fee was already being collected at the landfills. Acme disagreed on the operating ratio and the length of amortization. On January 16, 1990 the Board of Supervisors reconsidered the Acme rate. The matter was deferred to January 23, 1990. The Board did ho-vever, impose a gate surcharge of$8.63 per ton assessed to all customers. except franchised haulers, at the Acme M. These customers pay a prorated rate of the per ton fees plus $8.63. The Acme ITS rate approved by the Board of Supervisors applied to the franchised haulers. Although not directly applicable to the Acme Landfill, the rate approved for the Acme ITS was applied to Acme Landfill. Although unwritten it was important that Acme not to make a distinction as to where waste was being landfilled since there were differences in tip fee at the three landfills being used. On January 23, 1990 the Board approved a change to the operating ratio and amortization of the Acme ITS. The operating ratio was set at 93.4% and the amortization was extended to 37 months. The Board also reaffirmed the previously approved rate of 552.22. As directed by the Board, Acme submitteda rate application for review proposed to be effective January 1991. On December 18, 1990 the Board of Supervisors approved a rate of$59.68 to be effective January 1, 1991. The rate increase was due to increased regulatory fees, operational costs, lower than anticipated volumes, and hauling contract changes. The rate did not include closure/post-closure surcharge for the Acme Landfill since a Pledge of Revenue Agreement for historic Acme users was being reviewed by the Internal Operations Committee. Acme was also diremd to submit a mid-year rate application. A significant issue for future costs included put- or-pay requirements at the receiving landfills and resulting revenue deficiencies (the Export Agreements were sized to accommodate all Central County wastes, but not all was being sent through the Acme ITS. The export agreement with Alameda County ended December 1991. As of December 1991 the cost of disposal for Altamont in Alameda County was $21.25 per ton tip fee plus $6.10 mitigation fee. The cost for disposal at Potrero Hills in Solano County was $23.15 per ton tip fee and plus $8.25 mitigation fee. The rate used for disposal costs at the Acme ITS were a 3 r blended rate of Potrero and Altamont. The amount of tonnage being disposed at the Acme Landfill was limited, approximately zero to 30-50 tons a day of hard to handle material while both export agreements were in effect,. The rate charged for the Acme Landfill was the same rate as the transfer station, $59.22 per ton. Technically, all material passed through the transfer station, from the transfer station floor waste was sent to Altamont, Potrero, or Acme. On December 3, 1991 the Board of Supervisors approved a raft of$65.69 to be effective upon approval. Acme ITS was also directed to submit a mid year rate application. It should be noted that the raft recommended by Deloitte & Touche was $71.61. In 1992 the rates were adjusted twice for the Acme ITS: the fust occurred on May 12, 1992 in response to the tipping fee set for Keller Canyon Landfill which had just opened. A subsequent rate was approved after the aforementioned rate review in November 1992. In both instances fees for closure/post-closure were not allowed. . The rate set on May 12, 1992 for transfer and disposal at both Keller Canyon Landfill and Potrero Landfill was $77.07 per ton. The change in rate was to adjust for the tip fees established at Keller Canyon and to provide direction to Acme regarding export to Potrero Hills Landfill. Solan County had allowed accelerated disposal after the Altamont Agreement with Alameda county expired in December, 1991. The Board directed Acme to limit the amount of export to Potrero Hills Landfill to 242 tans per day to meet the minimum put or pay. At this time the LEA fee was increased to $1.00 per ton and the Household Hazardous Waste Fee was added at $.41 a ton. The Keller Canyon Landfill interim disposal rate was set at; $33.00 per ton; County surcharge of $3.30 per ton; open space/ag, transportation, host community mitigation fees at $2.00 each; and a $.75 State Eastin Fee. Solan County had raised the rates at Potrero to $25.50 per ton tip fee and $9.65 per ton mitigation fee. The Solano County franchise fee was unknown. Since the agreement with Solano County had not yet expired, continuing export to Potrero allowed for a blended nate which lowered the overall rate. The second rate adjustment occurred on November 24,1992. The rate set after a rate review was $75:97 per ton. In the interim a rate at Keller was set for$38.40 per ton. The rate set was based solely on the Keller Canyon Landfill disposal fee since the rate was effective after termination of the inter-county agreement for export to Solano County. Export to Solano County, under the agreement, stopped on December 8, 1992 when the tonnage cap was reached. It was at this time the amortization of the capital cost of the Acme ITS was extended from May of 1993 to December of 1993. Extending the amortization period for the Acme ITS reduced the rate by 5.73 per ton. The actual per ton amortization based on the extended time period, was 51.16 per ton. cc: Chuck Zahn, Community Development Louise Aiello, Community Developement County Counsel 4 Attachment #3 (see 2.3 below & attached transcript) SMMRY OF THE PROCEEDINGS BEFORE TBE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY MEETING IN ALL ITS CAPACITIES PURSUANT TO ORDINANCE CODE SECTION 24-20402 TuESDiAY,SEPTEmBER 13, 1994 CONSENT ITEMS: Approved as listed. 1.17 DELETED 1.20 CORRECTED Subdivision number on agenda from 7820 to 7280, and ACCEPTED completion of improvements for Subdivision 7280, being developed by Dame' Construction Company, Danville, area. 1.50 DECLARED vacant the seat on the Contra Costa County Advisory Council on Aging held by Mario Estioco, Hercules Local Committee representative, and DIRECTED the Clerk of the Board to apply the Board's policy for filling the vacancy, as recommended by the Advisory Council on Aging. 1.120 APPROVED and AUTHORIZED County Counsel to execute a Contract with Marke Estis in the amount of $14, 640 for the provision of temporary legal services during the period October 3, 1994, through December 31, 1994 . 1.139 DELETED 1. 157 REFERRED to Director, Growth Management and Economic Development Agency for report on September 27, 1994, letter from President, Garaventa Enterprises, advising that the company is developing a transfer station to serve Central and East Contra Costa County, is entering into an agreement with Potrero Hills Landfill, Inc. , and West Contra Costa Sanitary Landfill, and is applying for a rate of $41 . 50 per ton at the gate of the transfer. station, subject to the approval of the City of Pittsburg. ETERMINATION ITEMS: Approved as listed except as noted below: 2.3 ACCEPTED report from the Ad Hoc Solid Waste Committee (unam. ) ; DIRECTED staff to work with the Crockett-Valona Sanitary District in developing a Memorandum of Agreement continuing franchising of solid waste and recyclable collection and disposal by the District, and assuring the attainment of the AB 939 diversion goals (unam. ) ; APPROVED amended Franchise Agreements for Keller Canyon Landfill and for the permanent Acme Fill Waste Recovery and Transfer Station (III voted no) ; DIRECTED that BFI make any compensation to property owners if required as a result of a valuation study (unam. ) ; AMENDED County fees to total $12.24 per ton based on a proprietary rate of $39.00 (III voted no) ; AGREED to apply to the Central County JPA for membership and request it not to franchise unincorporated areas without the County's participation (unam. ) ;' and REQUESTED a report on September 27, 1994 from the Director of Growth Management & Economic Development Agency on the proposals from Garaventa/Richmond Sanitary Service, BFI/Acme and Altamont/Valley Waste, an update on the JPA, and further information on rates for Acme Transfer Station and Acme Landfill (unam. ) . 1 (9-13-94 Sum. ) TII4ED ITEMS: 9 A.M. H.A PRESENTED to Peter Emmons of the Blue Devils staff, Resolution 94/437 honoring the Concord Blue Devils as the 1994 Drum Corps International World Champions. Paul Morris, Trumpet Player for the Blue Devils, played the National Anthem. H.B RECEIVED Certificate of Appreciation to the Board of Supervisors and the Community Development Department and staff for support in the Rumrill Affordability Housing Project in San Pablo by the Lao Family Community Development Inc. and other Southeast Asian and refugee communities. 11 A.M. H.1 a) GRANTED JURISDICTION to the Building Inspection Department for the abatement of 800-814 Bella Vista Avenue, Martinez area, Somalia Inc. , owners. b) GRANTED JURISDICTION to the Building Inspection Department for the abatement of 2200 Tule Lane, Knightsen area, Kam S. Law and Linda L. Lederfeind; 'owners; and invited Mr. Law to meet with the staff in Supervisor Torlakson' s office and the County Health Department in seeking a permit for a septic tank on the property. c) GRANTED JURISDICTION to the Building Inspection Deparment for the abatement of 1828 Dixon Lane, Concord area, John Cusick, owner, allowing 60 days for the new owner to clean up the property. H.2 ADOPTED Resolution 94/440 creating Zone 120 in County Service Area P-6, ADOPTED Ordinance 94-61, and AUTHORIZED election on November 15, 1994 on whether to implement special tax for police protection services. H.3 ADOPTED Ordinance No. 94-58 increasing certain fees in the Sheriff-Corner's Department relating to concealed weapon permits. H.4 CONTINUED to September 27, 1994 at 11 : 00 a.m. hearing on proposed exclusion of land within the boundaries of the City of San Ramon from Contra Costa County Flood Control and Water Conservation District Drainage Area 1010. H.5 APPROVED proposed Disposition and Development Agreement with Community Development Housing Corporation of North Richmond/Eden Housing, Inc. , for the development of a senior housing project in the North Richmond Redevelopment Area. 2 P.M. HA REFERRED back to the East County Regional Planning Commission the request of Boe and Company Architects to amend the Land Use Element of the County General Plan to change the land use designation on 1.75 acres from Multiple. Family Residential, Medium Density to Commercial to accommodate a proposed expansion of an existing retail facility, along with additional parcels added by County Staff in the southwest portion of the enlarged general plan amendment area making the total land area about 2.25 acres in size (GPA 7-93-EC) ; and on the request by Boe and Company (applicant) and The Customer Store (owners) (3009-RZ) to rezone land in the Bay Point area from Neighborhood Business (N-B) , Multiple Family Residential (M-29) and Two Family (D- 1) to Planned Unit District (P-1) with a requested variance, along with Final Development Plan 3012-93 to construct a new 2 (9-13-94 Sum. ) 8, 000 square foot grocery store with a triple island gasoline canopy to replace the existing 4, 000 square foot store, and Land Use Permit 2045-93 for a take out food establishment in an 8, 000 square foot grocery store, Bay Point area; and REQUESTED the Redevelopment Agency to look at the three remaining properties in the area that have been adversely impacted by the Highway 4/Bailey Road Project. C%WTTEE REPORTS: Internal Operations Committee - APPROVED the recommendations as presented. RE C TDATIONS OF HOARD KERS: S.3 AGREED to establish an Ad Hoc Committee of the Board, appointed Supervisors DeSaulnier and Torlakson thereto, and charged it with the specific task of (1) recommending independent bond counsel for the Board of Supervisor's consideration to obtain a second opinion on the legal consequences of defeasance of the Certificate of Participation financing used to fund the Merrithew Memorial Hospital Replacement Project; and (2) recommending an independent underwriter for the Board of Supervisor's consideration in hiring to provide the financial review of the funding requirements for a defeasance of the Merrithew Memorial Hospital Replacement Project financing (Unanimous) ; and REFERRED to staff for report to the Ad Hoc Committee, Supervisor DeSaulnier's proposal to request recommendations for an outside hospital consultant for the Board's consideration to give a cost- benefit analysis of the identifiable options for replacing Merrithew Memorial Hospital such a securing Los Medanos Community Hospital as the county's acute care facility, contracting with district hospital, consolidations of services, etc; and, for the Ad Hoc Committee to meet immediately with the court ordered receiver of Los Medanos Hospital to discuss various options for Contra Costa County to purchase Los Medanos Hospital. S.6 AUTHORIZED Supervisor Torlakson to present congratulations on behalf of Contra Costa County to the Contra Costa Water District commemorating the ground breaking for the Los Vaqueros Reservoir. CLOSED SESSION: Mit.1 The Board returned from Closed Session and announced that it had agreed to place on the September 20, 1994 agenda an ordinance to make the position of Fire Chief of the Contra Costa Fire Protection District an exempt position, and to announce its intention to appoint Allen Little as Fire Chief of the Contra Costa County Fire Protection District. PMIC COMMENT - MR.2 Frank E. Lehmkuhl, 1731 Claycord Avenue, Concord, appeared and spoke on conflicts of interest. MR-3 Rev. Curtis A. Timmons, P. O. Box 8213, Pittsburg, requested that the Director of Health Services, Mark Finucane; and Dr. Jerry Rice, representing Los Medanos Hospital; through the sponsorship of the Public and Environmental Health Advisory Board, attend a community forum in East County to address the specific concerns of the individuals with respect to the hospital issue in East County, including provision of future services and past use of taxpayers' funds. Mark Finucane advised that he would be happy to participate. Supervisor Torlakson advised that he would be happy to work with Rev. Timmons and Mark Finucane in this regard. Rev. Timmons also suggested that the Contra Costa Grand Jury look into the handling of the funds at Los Medanos Hospital and advise the taxpayers. 3 (9-13-94 Sum. ) Transcription Partial Text of item 2 .3 from September 13, 1994 Supervisor Bishop: I would like to respond to the $2 .12 and then some other comments. The $2 . 12 Household Hazardous Materials . I think some months ago, it was represented to us by various cities that they would assume that responsibility. I don' t think we can decide that today. I think that is something that would factor into our considerations however. I want to share with you again. I hear and I can understand Mr. Aiello's concern when the expression by staff is we want to help BFI. I think one I don' t know what was going on in someone' s mind when we wrote that, but I think what we really want to do is two things. One, we want the most important thing we want to get the rates in this county down and that' s a bifurcated process that has to happen with Keller. Keller/Acme and it has to happen with us. I think you know the comments by .Miss Fanden and Mr. Schroder that we do have a landfill that is state of the art . We want to keep Keller viable and it is clear that the message .has come out from the cities . One of the other reasons frankly that I want us to do something today is the Central County JPA and the cities therein have asked us to do something today. And I didn' t hear them wailing and screaming. I've heard them week after week, month after month, asking us to do something about our rates and I think we really have to act now. I am in concurrence with Miss Fanden when she says she doesn't think the issue is particularly complex. I don't think the issue is very complex. I think it is numbers . I think there are policy issues that require working out . As far as the mitigation fees. The six dollar mitigation. The two and two for open space and transportation. That i.s before the Planning Commission. I think there is legitimate, there is merit for a mitigation fee. I think it is very important . I am convinced it is a state of the art landfill but at the same time, 'I don't live next to the landfill and I think we have to insure that there is something there that protects those communities, that gives us a source of revenues to mitigate those impacts . It may not be physical impacts. There are intangible involved. I frankly wouldn' t want to live next to a landfill . I think the preferable most people would say landfill in Pittsburg. If they have a landfill we should compensate for the intangibles inherent in having a landfill in their community. I think that' s very important . I agree. I think you know I hear BFI saying minimizing the risk involved as far as the valuation is concerned but I think we do need to address that . And I think if they are not very concerned about the risks that are involved with the valuation, then maybe they bear the risk. Coming back again to numbers and I must say there' s been no collusion here but it' s interesting. I had some numbers in front of me . I look at the $1 .34 . That is not only a mandated fee but it is a fixed fee. The remaining fees can go up and down. Some of them are mandated but the amount is not mandated. I believe if we take the $1.34 and we make a commitment to get the remaining part of the fees down to $7. 00 . And I want to assure Nancy Fanden that that's just not a number that we're throwing out there. It' s a number that I've given a good deal of thought to. The remaining $7. Right now we have an obligation for $212 . We have an obligation for $1. 00 on LEA. We have an obligation for $4 . 00 that the Planning Commission is going to look at tonight and then, we have the additional $2 . 00. Quite frankly, that does not add up. I think there is no question in my mind that we can move that $2 .12 at some future point to the cities and to Central San. That that can be moved at some point. I believe that what is left out of the pie, there is a priority for mitigation, host mitigation and if there' s someone that comes in on the short end of the pie I think it's going to have to be the County and its franchise fee. I think the LEA fee if other counties can get by with an administration, with a fee of . 09 in one county and .47 in another county and no AB 939 because they wrap it all in together, I think we can do that as well . I think it is very important for us to look at this in the context of what is occurring now not historically. Now we have a proposal before us 1 that we could consummate today of $39 . 00 . I see $8 .34 which I think is reasonable and I think perhaps it becomes more reasonable and there is a benefit to the County if that $2 . 12 . goes to the cities, then we can look at that and going toward the host mitigation, look at it going toward the franchise and I think at this point, I have a question, can we simply say $7. 00 without breaking out where that $7. 00 can go and we wait to see what happens with the Planning Commission but we can set what our priorities are, that number one priority out of that remaining $7. 00 is host mitigation with what is remaining to be and then a $2 .12 that we have a commitment to, the remaining amounts go toward the County and that the County will have a responsibility out of that remaining amount for LEA and 939. Other counties are doing it that way and to me I 'm not a genius at mathematics but I do know that 100 percent or 50 percent of something or $8 .34 percent, $8 .34 as a portion on a ton is better than $16 . 00 which is where we' re close to right now of 0 . $16 . 00 on 0 tonnage . And I think that' s where I'm coming from. I would look for support from the rest of the Board. I would prefer, I will make that a motion. I look at the franchise agreement and on page 19 under 6.4 . This is for the Landfill . Page 19 . That we set out and I've looked over the alternatives, number one, two and three which are Jeff very complex. To me, the 1 . 34 to the Eastin fee with a $7. 00 setting forth priorities that number one priority is mitigation fee, second priority being the $2 . 12 that we are currently required to pay. The third level of priority being those mitigation fees that are considered with the land use permit and then the franchise fee so it' s incumbent upon us, that' s the end of my motion, it' s incumbent on us to move as much as we can out of that $7. 00 . The 2 . 12 . To reduce the transportation and the open space if not eliminating it or hopefully the Planning Commission will address that or maybe I'm understanding from Mr. Zahn that we can consider that in a different context . That it doesn' t necessarily have to be involved with a land use permit . Supervisor Powers : Did anybody write that motion down? You have it on tape. Okay, well let' s see if we get a second. Supervisor Bishop: The motion would be to reduce our mandated fees and surcharge to be all inclusive with or at $8 . 34 . $1 . 34 for the Eastin Fee, the remaining $7. 00 to be allocated as follows. Number one priority going toward mitigation, host mitigation, the second being the $2 . 12 Household Hazardous Waste which may be considered at some future point to be assumed by the cities. The next tier would involve the transportation and open space. mitigation fees that are under the land use permit with the final tier being a county surcharge or franchise out of which LEA and AB 939 are paid. Supervisor Powers: Is there a second to that motion? Supervisor Smith: If I understand, that' s even more of a cut than BFI is asking for, right? Supervisor DeSaulnier: No. Supervisor Smith: Because they' re saying $8 . 00 excluding the State fees, right? $8 . 00 including the state fees? Supervisor Bishop: I think it is exactly what they asked, Jeff, because I was surprised I had it written down on my paper. Tom Bruen: The suggestion made by one of the negotiators for the Solid Waste Authority was $8 . 00 total on all County and State fees. Supervisor Powers: Okay, second to that motion? Hearing no second, let me let' s try to clarify this thing that you gave us . 2 There are some changes across the Board. $1 . 34 for the Eastin fee is changed correct and that' s in all three counties. And then in our County, we eliminated the $. 80 for the 939 to the cities already. So, that' s off. That would make a grand total in fees for Contra Costa County of $13 . 79. That' s what I compute. I'm trying to get feedback for you. Alameda County would be $14 . 73 and Solano County would be $9 .46 with the increased Eastin fee. Supervisor Smith: Mr. Chair, can I ask some questions? I notice Sue Rainey there and Herb from the JPA and I wanted to ask what effect San Ramon' s actions will have on the future function of the small JPA if somebody could answer that . Answer: None. Supervisor Smith: Nothing. So, am I misunderstanding then that San Ramon' s going to franchise separately for San Ramon and then the JPA' s going to franchise differently or in a separate situation. Answer: From audience. The actions taken by San Ramon and directly by Solid Waste. . . .was taken under the current existing franchise agreement . . . . Supervisor Smith: So, that' s just for 16 months . And the franchise that the small JPA is considering is to take over after that 16 months this time. Correct . Okay. Supervisor Powers : I wrote down some issues and so we can begin trying to vote yes together, I thought I would take begin with the simple issues that have arisen. One is that Mr. Bruen asked to have ACME a party to the Keller Franchise agreement . Is that a problem. Mr. Bruen asked to have ACME a party to the Keller Franchise agreement, didn' t you ask that? Vic Westman: No, BFI would still be a party in effect and would still be responsible . . . . Supervisor Powers : Maybe you can clarify that . I didn' t understand what you said Tom. Didn' t sound like a big issue but . Tom Bruen: No, it was not to the Keller Franchise, it was the permanent transfer station franchise. Because they' re the- landowner, it made sense to obligate themselves to the franchise and not just obligate the tenant but rather obligate both. Supervisor Powers: Is there a problem. . . Supervisor Smith: That' s a great idea. I move that . Supervisor Powers: Okay. Motion and a second to add that . Is there any discussion. Hearing none, all in favor of the motion, signify by saying aye. Passes unanimously. And provide in the Keller Franchise agreement some provision to implement the valuation issue, that's the least controversial one that I could find next in order. Is there some. . . Supervisor Torlakson: I would move to direct staff to add language and make it a BFI obligation if it' s a cost . . . Victor Westman: Well, first of all, could I indicate staff has not completely failed. The franchise does say that the franchisee will comply with all the conditions of the land use permit unless they're varied somehow and the land use permit does have a condition that says when the program is adopted by the Board, the. landfill operator shall comply and fund it in the manner specified by the Board. So, I mean we have covered it in that sense . 3 Supervisor Powers: Do you think that' s strong enough to get the message across or would it be better if . . . Victor Westman: Well, if you wish we can certainly provide in there they'll fund it but I think it has to be appreciated that that will be a cost that will somehow be passed on. And I'm not arguing against the condition, but I think there' s sort of a misconception. You dropped out of rate regulation. Therefore, they will add that I'm sure at some point to their cost if that is a cost and you will remember if you were still engaging in rate regulation, you have to insure that you provide a rate that is. not confiscatory, therefore that would be an item that would be reflected in determining the cost for a rate. Supervisor Smith: I think it' s important from looking through what happened before I got here. It was clearly the understanding I think from at least reading the paperwork that when rate review happened if there was some valuation detriment that was required to be paid, it would be included in the proprietary side of the scale and set by the Board in order to pay back those people who lost value. And so it seems to me we should at least make it clear that the County is not going to set another fee in order to pay for that and that the repayment that is due based on the valuation study is considered by the Board to be a cost of doing business. Supervisor Torlakson; That was my motion and I think it' s important to get that clarified because if we are in a competitive rate environment, that leaves with the language Mr. Westman read, and I'm glad we have that for the record, but it leaves an uncertainty an open endedness to the issue . Where the motion that I made and that Jeff' s clarified so well would pin that number down so it' s not an uncertaintied variable that different cities have to look at . Well maybe we' ll get hit with some kind of new fee sometime in the middle of any kind of term of a waste commitment or a wastestream rate allocation. Supervisor Powers : Let me just get if there' s a motion and speakers, you made the motion to include it as a part of the proprietary rate and you second that. Okay, go ahead. Supervisor Bishop: I have problems with that because I'm listening to Mr. Westman' s co you know the language sounds like we' re adding another indefinable here and there is a point which we can define it and I think the part that there' s uncertainty is over our fees not over this element of our fees. I think if we would you read the last part of that again for me. Vic, because it sounds to me it' s like at some future we will agree depending upon the appropriateness of who bears the cost . I think the appropriate of who absorbs the cost kind of is contingent on what the actual amount is and as a cost of doing business if we' re talking about $39 . 00 instead of $77. 00, the ability and word you used was confiscatory, there' s a potential for being confiscatory, if we inject that as well as fees that are in my mind excessive, so we' re combining excessive fees with having them bear the total burden of this cost as well . Victor Westman: If I understand what Supervisor, I think the point Supervisor Torlakson was making, if I understand it correctly, is that whenever that amount is determined, it will not be borne within the County, whatever $7, $12 or $13 and it' ll be the responsibility of the operator to fund that either through the proprietary rate or otherwise is that correct . Supervisor Torlakson: Yes. Supervisor Smith: Right . And since we're not regulating rates, they can increase their proprietary rate to pay for that but of course that' s a business judgement they will have to make . 4 Supervisor Powers : Okay, we understand the motion. All in favor of the motion, signify by saying aye . Those opposed. Passes unanimously. Okay, we did that . Did the request . There was some concern about the providing in the franchise agreement for Keller that at some point in time the Board be able to impose the $2 .00 ag and transportation fee which we are recommending be suspended at this point in time to the Planning Commission but that and you'd raised that Tom, is there desire to add anything to that franchise agreement to insure that it' s not only in the land use permit but also in the franchise agreement which is the arrangement that regulates fees. Supervisor Torlakson: I think some reference in the franchise agreement would be appropriate. I think there' s a major question that I don't have answered yet in my own mind and I need Counsel's guidance on it and the benefit of the public hearing process at the Planning Commission as to whether it' s appropriate to take those out of the LUP or to restructure them in some other way that guarantees nonetheless that the community would still receive the $6 . 00 that they have currently received as mitigation. So, how that' s best done, I'm not exactly sure and what the best mechanism for that . Victor Westman: Well, if I remember correctly the LUP requires that $2 . 00 for open space and $2 . 00 for transportation be paid and there isn' t any discretion to vary that at this point and when this matter does come back to you, you' re going to have the discretion to amend the Land Use Permit and that discretion could be that the fees will be whatever you fix them to be for those two items but not to exceed $2 . 00 per ton or its equivalent . I mean that discretion will be available to you when that comes back if it's next week. Supervisor Powers: So, the idea would be to put a provision in there that we reserve the right to do it in the franchise agreement if it' s varied in the land use permit . Victor Westman: Well, the land use permit will still provide that those fees will be paid but at the amount you specify by some subsequent action, either in the franchise agreement or some other way. Part of I think your endeavor here though is at some point to fix the total parameter of what all these costs are going to be for certainty for the operator but to answer Tom' s question, you' re going to have the discretion next week or the week after. You don' t have to eliminate the ability to collect those fees completely from the LUP. You can simply give the Board discretion to be able to charge less than $2 . 00 a ton and that discretion will be exercised either as part of the if you so chose the franchise agreement whenever you fix the total amount of fees whatever they' re going to be for that. Supervisor Powers : So, is one of the alternatives in the franchise agreement sufficient to cover that. Victor Westman: Yes, well we do say we can add something but I think we also at some point before we can finalize writing all that, we have to know what you finally do. Supervisor Powers: Right . Okay, fine very good. Supervisor Torlakson: And just to register my concern. I am concerned about changing that $6 . 00 amount and that is an issue that we have to debate subsequent to the hearing process that comes up. . . Victor Westman: Well, now remember the host mitigation fee only appears in the franchise agreement . Okay. Supervisor Smith: Can I make a motion about something we might agree on. 5 Supervisor Powers: Sure. Please do. Supervisor Smith: In the transfer station franchise agreement on page 23 , well 22 and 23, the issue of self-haul rates. I strongly believe we should use something similar to alternative two which says that essentially the self-haul customers will be charged no more than the market rate and what I would suggest is that we modify the language to say notwithstanding 6 .1 the gate rate charge to customers delivering less than one ton of solid waste per day shall not exceed the average of the charges of all other landfills and or transfer stations providing the same service in Contra Costa County with similar customers. So moved. Supervisor DeSaulnier: Second. Supervisor Powers: There' s a motion and a second to provide that language in the self-haul section of the ACME Transfer franchise. Any further discussion. Supervisor Bishop: I do have some questions . Alternative two, you say it' s similar to alternative two. Supervisor Smith: Yeah, I just excluded Solano and Alameda counties. And included transfer stations in addition to landfills so that essentially it' s saying it has to be the average or in the market for self-haulers going to other landfills or transfer stations in Contra Costa County. Supervisor Bishop: Their gate rate? Supervisor Smith: Um,humm. Self-haulers. Supervisor Powers : Further questions. Hearing none, all in favor of the motion, signify by saying aye. Those opposed. Okay, passes unanimously. You had mentioned Jeff also host community mitigation in relationship to the ACME situation. Supervisor Smith: Okay, that' s on page 16 of the transfer station franchise agreement and the way it' s written here, it' s an amount to be paid out of the total surcharge and I would suggest that it should be $2 . 00, so I' ll make that motion. Supervisor DeSaulnier: Discussion. I'm s little concerned that we're going to get up past the $10 range by going taking these thing incrementally. I mean is it the point and can we get to it by doing what you' re suggesting, Jeff, but still get to a cap as Supervisor Bishop has tried to do. Supervisor Smith: Well,. I have an over-all suggestion. I don' t know if people will like it . Supervisor DeSaulnier: We' re going to have to face it sooner or later. Why don't we get to the cap now and work backwards. Supervisor Smith: The overall suggestion. Oh.Oh. Well, I think if we go back to the origin of the fees, this will at least clarify what I was thinking. I don't know if the rest of the Board will think it' s a good idea. But at Keller the state fee, the Eastin fee, $1. 34, should be charged separately as a dollar per ton fee. At ACME, I would suggest that the LEA fee of $1 . 00 and the 939 fee of $ . 15 be charged separately as $1.15 per ton as will need to be modified for future action and then I would suggest that the Household Hazardous Waste fee and all other programs which are currently paid for by different fees in addition to the $2 . 00 that I just suggested for the host mitigation be coupled into the franchise and that franchise percentage be 25 percent for both proprietary fees at ACME and Keller. That' ll end up making the total fees $12 .24 if BFI really reduces it to $39 . 00 . I'd also suggest that 5 percent of that or $1. 95 be reserved in a trust fund by the County to assure 6 that we have funding for potential costs of litigation and closure . And that if that is not needed, we' ll be able to refund it to the rate payers. So, I' ll make that motion.. Supervisor DeSaulnier: Since you took your calculator, what' s the base rate excluding the closure cost, the trust fund. Supervisor Smith: Well, if the base rate stays at $39 . 00 and there' s no need for the trust fund, that brings it down into $10 . 00 range total . That includes the State fees, the Eastin fee. Supervisor Bishop: 25 percent of $39. 00 is roughly $10 . 00 . Supervisor Smith: $9 . 75 .. Supervisor Bishop: Right and if $2 . 12 goes away. And then you're talking about, we're still talking 2, 2, and 2 . We' re talking about 6 and then you're saying that $4 . 00 of that, are you suggesting that when that is reduced by the $2 . 12 if that goes away, that that 25 percent is reduced or are you just suggesting that the County get more of that 25 percent . Which is what basically what I suggested except my percentage amount was less. Supervisor Smith: Well, what I'm suggesting is that the $1 . 34 stay at Keller, the $1. 15 stay at ACME which is a total of $2 .49 fixed dollar per ton fees, that the rest of all of the programs be paid for out of a franchise which is set as a percentage surcharge of both the proprietary rate at Keller and the proprietary rate at ACME and that that be 25 percent which will end up if they reduce their proprietary rate to $39. 00, it will end up being $9 . 75 . And that all the other programs, mitigations be paid for out of that money. And then I made the comment and I think it' s important that we reserve a quarter of that, 5 percent essentially for potential costs of closure and litigation and that we be able to refund that to the rate payers if it' s not needed. So that turns out that isn' t a necessity, that it' ll end up in the $10. 00 range. Supervisor Bishop: Is that a motion? Supervisor Smith: Yeah. Supervisor Bishop: Okay, at this point, I would not be supporting that motion. Supervisor Powers : Well, is there a second to the motion. We might not go anywhere with it . I' ll second the motion for purposes of discussion. Supervisor Bishop: Okay, I will not be supporting the motion. I think you know as a suggestion if I hear no interest in exploring the suggestion, my feeling is the $1 . 15, other counties do not charge an AB 939 and their LEA is much less. It' s absorbed in what the County receives. I would prefer seeing the $1 . 15 going down and being absorbed. I think what we would be doing by this action is not enough. I think I'm not in agreement with Miss Fanden. I think $4 . 00 is too little. I think there is a cost of administration of these programs. I think there is a need for mitigation but I believe I'm someplace between you two folks and it looks like Nancy we' re not going to be good guys today as you said. But I cannot support the motion. I think we are not going down low enough. I think at this number we will continue to see the Central County JPA and those jurisdictions go out of County. Supervisor Powers: Okay, now one thing I didn't hear was how we handled the $2 . 00 and $2 . 00 on the ag and transportation and I assume thats I mean we have to consider where to spend that money within this framework. 7 Supervisor Smith: Within the 9 .75 that the Board will then have the responsibility of determining that, those mitigation needs within that amount . Essentially, right now it' s all of those numbers that I included together are $13 almost $14 so it' s a bit of a cut . Supervisor Powers: What' s almost $14 . Your motion was $12 .24 right . Supervisor Smith: Right. It ends up being $12 .24 if they reduce their proprietary rate to $39 . 00 . Currently it's 5.25 plus 5 . 90 plus . . . Supervisor Powers : Now, is there any minimum involved in that? Supervisor Smith: Actually,we should have a minimum. I' ll leave that for the Board' s discretion. Supervisor DeSaulnier: What a coward. Supervisor Smith: Hey I took the first shot . Supervisor Powers: Okay, we got a motion on the floor. It' s got a second. Is there any discussion on that . Supervisor DeSaulnier: My only further discussion is I agree with Supervisor Bishop. I don' t think it' s enough. We' re getting closer but when you look at not being partners with BFI but looking at who we're competing with and I realize to a certain degree, we' re comparing apples and oranges, Potrero Hills their County fees are $9 .46 . I think we at least have to be fair and get to that rate and for me I think they should be less than that . And waste is $14 .73 and if BFI can absorb more costs maybe the charges will go even less. So. . . . 9 .75 is we' re getting there but it' s not close enough. Supervisor Smith: Well, I would suggest that you know we reserve the right to review these fees in the future. If it' s in the right direction, maybe what we should do is implement this for a month or two months and then reevaluate it and see if we have gone low enough because it seems to me that we' re not going to be able to cut absolutely to the quick unless we know what effect this is going to have on the bottom line, the operation of County programs . Supervisor DeSaulnier: Well, I think we have to make a commitment today Jeff or we're going to lose even more waste . I mean we can' t just go on ad nauseam like this until those kids are all in college. Supervisor Smith: Okay. Supervisor Torlakson: I think what we're all trying to do is find a way to get legitimate reasonable approach to doing our share in terms of lowering the fees issue and some accommodation. I think it' s going to be difficult finding the right combination, the right formula but we're all headed in the same direction. And I just want to put in context again, the amount of the fees that our county discretion, around $11. 00, which translates to about $1 . 10 per household per month on your average bill of $22 or $24 per month so our the fees we' re debating here are important but the big issue is the market competition out there is forcing the rates down somewhere you know over $2 . 00 and that' s going to be beneficial . We're working on the edge that will make some difference in a couple of percent one way or another on the household garbage bill rate and it's important to try to fine tune that . I had, I can' t support this motion, maybe I don' t understand it all together but I also think it may be a little high in terms of what' s out there that needs to be competed with and I know in several people' s discussions we said 8 the County you know didn' t get into this business originally to set up a cash register for County programs but a lot of those programs by the way are very important ones in the County and they are related to solid waste. We have crews going around in the conservation corps, welfare workers that are cleaning up the roadside dumping, cleaning up a lot of the garbage and litter problems that are part of our solid waste problem in Contra Costa County. If we eliminate some of those fees, some of those programs will disappear and that' s going to be the consequence and we' ll have messier streets and creeks and so forth as a consequence. We may find other ways innovatively to pitch together. I had scratched out on mine the Household Hazardous Waste. Let that go to cities or regional sanitation district efforts or whatever or some other mechanism. So, that was $2 . 00 . I'd taken the LEA and Resource Recovery and cut them both in half. That was another dollar and the franchise fee and rate review added up to $4 . 00 . So, I came up with $7 .00 by that mechanism in terms of some way to eliminate fees. I guess I'm concerned in the current motion of the lack of specificity regarding the 2,2, and 2 or the various mitigation fees and I understand that would be left for future discussion but I am you know not comfortable at this point with that motion and that way of doing it . Supervisor Powers : Well, Tom, one of the problems is that the LEA program dollar is the amount that is budgeted and likewise the $2 . 12 is what is budgeted, so if you want to eliminate them, be sure that you understand what' s going to happen is it' s got to come out of the mitigation fees unless we find some money elsewhere. And that' s the bottom line problem. It' s easy to eliminate a specific fee but somewhere along the line we' re going to have to put it back in if we' re going to provide the program. So, Local Enforcement Agency program and Household Hazardous Waste Program we all got to be funded. Supervisor DeSaulnier: Excuse me, we wont' have to worry about host mitigation if there' s no trash going there at all . Supervisor Powers : That' s true. Supervisor Torlakson: True the hazardous waste mitigation, well in one sense maybe and in one sense not because there is special waste that will continue to go there. The fact that the landfill is there is you know it' s a state of being, it' s a state of impact. Regardless if you could clear up every environmental issue which is always going to be hard to do, you have the reality no one wanted the landfill in their community because of the image issue and the other impacts of just having it there. and there will still be some waste going. The Household Hazardous Waste just to explore Mr. Power's comment further. As I understand it again in the earlier discussions where the cities had agreed and supported a proposal on the BFI landfill closure to take that off of the landfill tipping fee and collect that at a different place and I know Delta Diablo is exploring a regional issue where we may collect through the sewer fees the monies to do the household hazardous program and not have it be on the tipping fee and again various counties have done it in different ways. I'm just exploring that may be one way to get $2 . 00 off the table from this discussion. Supervisor Powers: Well, if you put it on the can, then they're paying the same amount anyway, so you know it' s just putting it from one pocket to the other. You' re putting it on the surcharge. You' re putting it, I mean it' s not like a net savings to the public. If we want the program, we've got to pay for it and if you want to pay for it on the sewer tax, you want to pay for it on the garbage can, you want to pay for it at the transfer station, it doesn't matter but right now, there' s no other source of money for that Household Hazardous waste program other than what we budgeted in the tipping fee and nobody' s agreed, I mean 9 they talked about it but nobody' s laid anything in writing on my desk that says that, so if we reduce it and we have an overall fee, we have the choice of taking out Household Hazardous Waste to meet host community mitigation or anything else. So, I want you to understand that. Supervisor Torlakson: Right. I do understand that . I have discussed with Pittsburg the possibility of collecting it at their transfer station. I mean there's different places to collect it . I guess the question is is this the appropriate place to collect it or is there a more local place to collect it whether it' s through the regional sewer district or whether it' s through a transfer station. Supervisor Bishop: Could we it would seem simple that we make the amount contingent and say it will be this amount until such time that the cities take over and then it will be reduced by that amount with the understanding that all cities would work in concert. As we've heard today, Antioch has already got that moving in that direction. I think it will happen that maybe we say rather than just saying 25 percent, maybe we put that $2 . 12 someplace else and then make a reduced percentage amount of the rest and maybe you know if you want to work on a motion Mark, have at it, okay. . . Supervisor Smith: Well I wanted to try to still argue for my proposal with respect to the Household Hazardous Waste Program. I think the reason that I think it would be best to incorporate it into the surcharge at this point is because of these uncertainties . We've talked about possibly funding it through the storm water assessment . We've talked about possibly funding it through City franchises. I know that Central San and the mini JPA have been interested in funding it possibly through franchises there or at least funding part of it . There' s a lot of debate about where it will actually end up. Seems to me that if we include it as a requirement at this point to be paid out of the franchise fee that subsequently when we finally find a way to do the program with a different funding source, we have the ability at that point to reduce the franchise or reduce the surcharge and save that money but if we eliminate it now, we' re essentially terminating the program. Supervisor Powers: Did you want to make a motion? Or did you just want to interrupt this discussion. Did anybody ask you a question or did you. . .Okay, does somebody want to ask him a question or do you want to help us . Supervisor DeSaulnier: I move to call for the question. You've helped us enough. Supervisor Powers : Okay, let' s go a little further in this Household Hazardous Waste situation. There is a desire on the part of many jurisdictions to handle it differently. Right now, we have a County wide program that' s being upgraded by the County in most areas. Clearly Central San would like to operate the program in Central County from what I understand from their so if we eliminate this funding source, someone will step into the breach and provide the program that's. . , yes. Supervisor Smith: How bout we make it a one year commitment at this point, so that we' re committing ourselves to find another funding source for the program after the end of the year. Supervisor Powers: Yeah, we do have a program going now, so if we do eliminate that fee the program goes bye, bye. And you recall the public reaction to that when it wasn' t funded or when ACME didn't pay the bill in central County. It wasn' t very pleasant . The people like that program and they like it did you have a thought, that' s an amendment to your motion. 10 Supervisor Smith: Not. I' ll leave my motion the way it was. Supervisor Torlakson: Trying. to understand on one more point . I don't know. I think the public likes the idea of the program but it' s very, very low utilization as hard as we've tried. It' s a fraction, it's a very dismal number actually in terms of the number of people actually utilize the program and so there are efforts to reevaluate the effectiveness of the appointment system process that I know Delta Diablo is in the midst of doing that . So, whether we keep it in place until there' s a replacement, I think that's you know part of this discussion. If you take this out of your numbers Jeff, what does that leave the rate to be. So, if there' s a replacement type fee put in place by some other mechanism whether it' s a sanitation district . Whether it' s a transfer station surcharge. Or some other mechanism for collection at the household you know point of origin on the haul contract . Supervisor Smith: If we don' t need to use the trust fund for closure and if we find another source for the Household Hazardous Waste, then the fees become $8 .17 using my formula. Supervisor Bishop: I didn't get that . Become $8 . 17 . You took the $2 .12 out. Supervisor Powers: Okay take $2 . 12 out and $1. 95 out and it becomes . . . Supervisor Smith: $8 .17. So using the formula that I suggested if we find place for Household Hazardous Waste, if we don' t need to use the closure trust fund, it' s $8 . 17. Supervisor DeSaulnier: So if, jump in here and make it more obtuse. And if it' s $8 . 17 and we did a timeframe where we could give the options to the jurisdictions, we could do household hazardous waste and charge it for the $2 . 12 for the 6 months and in the meantime they could try to find a way to do it . Could we make that as part of the. .6 months . . so basically what we' re doing is giving the jurisdictions the option to either include the be part of the $2 . 12 we do it for 6 months and they' re trying to find other options . Supervisor Smith: Yeah, we could say let' s do this for 6 months . At 6 months, we' ll reevaluate and adjust the surcharge as needed to address the Household Hazardous Waste and/or the closure costs . Supervisor DeSaulnier: So, it' s $8 . 17 with that added for 6 months and in the meantime, the jurisdictions are out trying to find other alternatives if they choose. Supervisor Bishop: How did we get down from $12 .24 to $8 . 17? Supervisor Powers: $1. 95 and $2 .12 minus $12 .24 equals $8 . 17 . Supervisor Bishop: Okay, what was the $1. 95? Could you run that by me again. Supervisor Smith: that' s 5 percent for litigation and closure cost trust fund. If we don't need it, we refund it back to the public. In reality, that' s to me if we get tagged for some closure costs, . and litigation fees, public obviously is going to have to pay it . All we' re saying is let' s keep it apart for the moment until the case is resolved. So, you're saying Mark, let me understand, you' re saying go ahead with the proposal that I suggested, reevaluate in 6 months with the intention to drop out the household hazardous waste and closure fees if we can based on new information at that time. Supervisor DeSaulnier: Closure fees aren' t going to be part of 11 it is that right? Supervisor Torlakson: Eliminate those now? Supervisor DeSaulnier: Right . Supervisor Powers: Closure fees, eliminate them. Supervisor Smith: The closure trust fund. Supervisor DeSaulnier: So, we're at 8 .17 plus the household hazardous waste for 6 months . Supervisor Powers: You don' t want to include the litigation fund is what we' re saying. Supervisor Smith: It just means we're going to have to pay it out of the general fund someplace. Supervisor Bishop: That 8 .17, does .that you're not including the $1.34 and you're not including the LEA are you. Supervisor Smith: What I'm saying, go back to what I said. What I'm saying is $1 . 34 per ton at Keller. $1 . 15 per ton at ACME to pay for 939 and LEA plus 25 percent of the base rate of both, base proprietary rate, the proprietary rate of both ACME and Keller, all of that combined is $12 . 24 , if their rate is really $39. 00 and then in 6 months we can eliminate $1 . 95 and $2 . 12 if. we can find alternate funding for those revenue streams because otherwise if we eliminate the $2 . 12 now, we eliminate the Household Hazardous Waste Program. If we don' t plan for potential liability and lawyers fees, it' s just going to come out of the general fund. And that' s specifically allowed for us to pay those charges out of the surcharge by reason of the franchise fee and if we don't need it, we refund it to the. public. Supervisor Powers : Okay, that' s an amended motion. Is that right. Supervisor Smith: Yeah, I think that was basically it . Supervisor Powers : Now, let me just ask the question. We are not assuming that we are eliminating the $2 . 00 open space or $2 . 00 transportation. Supervisor Smith: Right . Supervisor Powers : Or the $2 . 00 mitigation. So, if you look at that it may all go to that . Supervisor Smith: Right. It might all go to that . Supervisor Torlakson: I can support it in that context . We' re not making a decision, not having that debate today. Supervisor Powers : Okay, is there any further discussion? all in favor of the motion, signify by saying aye. Those opposed. Passes 4-1. (Supervisor Bishop voted no. ) And we have that . Now let me see if there are a couple of other things that we missed in the process. Supervisor Smith: Oh, we didn't make the motions about the Solid Waste Authority. I move that we send a formal letter signed by the Chair of the Board requesting membership on the Contra Costa Solid Waste Authority in a membership status equal to the other members. Supervisor Powers : Now let me just raise one issue with regard to that . Do we want to also indicate to them that we are looking at undertaking the franchising of the unincorporated areas and 12 therefore they should not enter into agreements with the current franchisers until such time as we all sit down at the table and work that out. Because we had indicated previously to but we had not given formal notice of that . Supervisor Bishop: Let me respond to that . I would prefer just going with the resolution as it's stated because there are several unexplored issues on the takeover of franchising. We have given notice to Central Sanitary District that we may exercise our right to take over the franchising. I don' t think we want to muck this up at this point . Let's just stick with consider requesting membership and explore that as a separate. Supervisor Powers: The only reason I suggest that is that heretofore the JPA has not really been serious about considering our membership and unless we have garbage to. direct and to franchise, we will not be a player in the program because we have just given up rate regulation on the landfill and there is if we do not exercise our authority that we adopted in an ordinance to take over these franchises in the unincorporated areas, there' s actually really no reason for them to invite us to the table. Supervisor Smith: Well, I think we should say don' t franchise our territory without us. Supervisor Powers : Fine. Why don' t we do it that way then. That will probably get the word across. Say that' s included in the letter. Supervisor Smith: That' s included in the letter. Supervisor Powers : Is that okay with the seconder. Fine. Supervisor Bishop: Before we vote can we hear from Miss Rainey. Supervisor Powers : We sure can. Sue. Sue Rainey: thank you. I know you've had along hearing. I will be very brief . I did want to correct one thing that Tom mentioned. Tom Torlakson on the Central San Franchise. Ours runs just about a little between one and two percent because we don' t make any money off it, just cover expenses only. So there would be nothing for us. to contribute back to the pot . Having said that, first when we started the small JPA we aid invite the County. We had hoped that you would join us and we have worked for the last three to four years on trying to be a cohesive unit to do some good bargaining to get the best rates for our rate payers. I think the cohesiveness of the group having all of Central San' s area, all of Walnut Creek' s and all of the City of San Ramon proves that the American process works. Competition works. When we started as a JPA, we were looking at tipping fees in the 70' s and the landfills could not live with that amount . With the competetive process, we are looking at rates in the 40' s wherever we go. We would hope and we are inviting the County to be an equal member within our JPA hoping that it will continue to work with us in a spirit of keeping that as a cohesive unit . Supervisor Powers : Okay, with that we have a motion that' s on the floor. Supervisor bishop: Could we add to that motion, amended to include number one with respect to the Crockett Valona. . . .Supervisor Powers: We already did that . Victor Westman: Mr. Chairman, could I ask a question. With your action today though the notices which we gave some years ago that all of these franchises in the unincorporated area would expire in 95 or 96 remain in force and you' re not varying that . 13 Supervisor Powers: Yes. Okay, then we' re asking them to be a member and we're asking them not to execute the franchises without our participation and approval in the unincorporated areas. All in favor of the motion, signify by saying aye. Those opposed. Passes unanimously. Supervisor smith: We need to do one other thing which is we didn't actually approve the franchise agreements. Victor Westman: Mr. Chair, that' s what I was going to speak to. I assume you're going to clarify your prior action was to approve the franchise agreements with all the amendment and changes you had asked for together with your discussion and approval of Mr. Smith' s proposal as to the fees and the direction to staff to put that in final form and have that executed. Supervisor Smith: One other thing to add also in the sub committee discussions and I've been operating under the assumption of a commitment from BFI that waste went through the transfer station would not be deposited at the ACME landfill and I understood that that was something that everybody agreed to and I don' t see it specifically stated in the transfer station agreement, so I'd like to include that. Supervisor Powers : Okay, is there any objection to that? Victor Westman: I think there' s some, well, could I just comment . There is some question under recent U.S. Supreme Court cases about that but assuming that' s your preference and after Mr. Bruen if he' s going to speak, we could put in a provision that to the extent allowed by law or something and to the extent. it can be done, they will so do it . Supervisor Powers : Okay, Tom. Tom Bruen: . . . . If I could just add. . .basically specifies that with few exceptions, the waste will be transported at BFI' s direction to Keller Canyon. There are rare situations in which hard to transport loads come in that would be directed away from the transfer station to the. east fill of ACME Landfill and that is really I think to everyone' s benefit to extend the life of that fill and avoid closure requirements. Large loads of concrete or something like that that might show up at the gate of the transfer station might in the future be directed to the fill . Supervisor Powers: You know, here' s one thing that seems to and it bothers me and maybe you can answer it Tom. You know, you are just about to get a franchise for Keller Canyon and for ACME but ACME still continues to accept waste at in substantial amounts at the ACME Landfill avoiding. . Tom Bruen: I don't think that' s true, not since the lease agreement was executed between ACME and BFI . Supervisor Powers: Okay, well at some point in time and I haven' t had the numbers and it' s been a very hard one for me to grab a handle on but I continue to hear and see trucks going to ACME Landfill and that avoids paying fees that the County has imposed on Keller expecting certain amounts of waste there . Tom Bruen: Well, I can tell you Mr. Powers that' s not my understanding as of the date when the lease agreement was executed which I believe was in March. And that basically provides that all garbage coming into the facility is directed to the transfer station except .hard to transfer loads which are very infrequent and that' s my understanding what the status quo 14 is. Supervisor Smith: Well, can I just clarify, but in the sub- committee meeting you said you'd be amenable to having this kind of language. Tom Bruen: But I thought I did discuss that exception that I'm discussing with you now. At least that' s my recollection. Supervisor Smith: Well, I guess my presumption is that for those loads they wouldn't go through the transfer station, they'd be delivered directly to the ACME Landfill and since we don' t regulate the ACME Landfill, those fees would be charged would be totally your proprietary fees. Tom Bruen: Jeff as a lawyer, you're being precise in your phrasing and if you're that precise then that' s fine. Certainly waste that goes through the transfer station will not go to the ACME Landfill. Supervisor Powers: Well, I guess the question Tom, then is how much waste is going to go to the ACME Landfill on what' s your estimate of that and would you agree to any limits in the franchise agreements that would prevent it from going in excess of some stated amount. Tom Bruen: Well, I think we could certainly agree that any waste processed through the transfer station would be would not go to ACME but with respect to waste that might go to ACME, I think there' s a chance that ACME might have a composting project on the east parcel at some time in the future. Strictly speaking, green waste is solid waste, so I think ACME would like the opportunity if it does obtain a permit for a composting facility to have that option and I think that' s addressed in the agreement between ACMe and BFI . I would expect it would be extremely infrequent that other loads would be directed from the transfer station to the landfill . I don' t think that . . . Supervisor Powers : Could we put some general language like that in either one or both of the franchises? Tom Bruen: Well, I guess we'd like, the other thing I'd like to mention is ACME' s receiving dirt to assist it in closure. Because technically speaking waste dirt is . . Supervisor Powers : Okay, no composting. How bout some municipal solid waste. Tom Bruen: Well, MAW includes compostables and chemically dirt . But. . Supervisor Powers : Subtract those two. Dirt is dirt and compost is compost . I mean it' s pretty clear in your business at least . What about other stuff. Tom Bruen: I think the only other possibility that I'm aware of would be hard to transfer loads which really weren' t capable of being processed through the transfer station. Supervisor Powers: Could we put that in the. . .could we put that in the Tom Bruen: You could yes. Supervisor Powers : Okay, why don' t we do that . Supervisor Smith: So, with those modifications and everything that Vic said I'll make that motion. That we approve the franchises . Everything that we said. 15 Supervisor Torlakson: Let me also check for clarification. In the franchises does it what does it speak in terms of any commitment of wastestream? Any of our franchises like Bay Point, Discovery Bay, it doesn' t speak to that? Okay. Supervisor Smith: Doesn't say anything about it . Supervisor Powers: Okay, then we need to vote on the franchise agreement . Supervisor Bishop: I don't think we've had a second to the motion. Great because I wanted to comment or a question. I did not vote on the rates, however, the policy issues that are covered in the franchise agreement, I'm in agreement generally on so I would a vote with this mean that I implicit that I also agree with the rates. So, I don't want to vote on this okay. Great . Supervisor Powers: All in favor of the motion, signify by saying aye. Those opposed. (Supervisor Bishop voted no) Supervisor Torlakson: Mr. Chairman, there were just a couple of very small loose ends but one thing I just thought to make sure I have it summarized correctly and I think I do. Sue Rainey mentioned that their franchise fee was around 2 percent something on that scale and I wanted to say that the action that was taken today within six months or sooner if BFI wants to absorb some of the costs that the five percent that our charges had previously had some rough impact on the garbage bill, on a household per month basis would be cut in half basically by the motion that Jeff put together and was passed and in the meantime, I think it' s going to be a challenge for each of the communities to look at this household hazardous waste. We' re not collecting that money and putting it in the County General Fund. It' s not for a County program to serve the County. It was being collected as you said earlier, Mr. Chairman, for all the rate payers including the cities for a County wide program including the cities and there seems to be some interest in looking at that or reformulating that in another way. The other issue was related to our Bay Point and Discovery Bay Franchises and any others we may have. I think we should get a report back from staff on the other alternative disposal locations and costs and have them direct them to meet with the Portrero/Garaventa, Richmond Sanitary proponents since they have submitted the letter. We've referred the letter to staff but we haven' t said when we' d like it back. I' d like to sort of get a read out back fairly soon. Both on that and whatever Waste Management is doing in San Ramon Valley. Are they making that offer available on a wider basis so that we can have our staff report .back on the details of those other agreement because there are still seems to be some very strong competition and healthy for the rate payer to consider for our rate payers for alternative proposals. Supervisor Powers : Could we do that in two weeks, Val, to have a report on sounds like the three proposals maybe there are more here to the Board. The Garaventa RSS, the BFI/ACME and I guess Altamont/Valley Waste proposals on tipping fees and maybe at the same time if we've got can get an update if you don' t mind on what' s happening with the JPA at that point . Supervisor Torlakson: And finally, supervisor Powers, the memo dated August 17th on the ACME Interim Transfer Station that answers some of the questions. Not to go into it today but maybe have it rescheduled. I think the public and Citizens United have asked questions here and I'm not sure that they' re all that clearly answered in terms of what that interim rate is still there somehow in themix of things and maybe being used to pay for the Household Hazardous Waste Program and other programs. Supervisor Powers : So you want this memo back on. Say two weeks 16 from now. Okay. Fine very good. Okay, let' s try to get to some of the timed hearings that we did have. . . . . . . . 17 Attachment #4 CENTRAL CONTRA COSTA SOLID WASTE AUTHORITY 4797 Imhoff Place, Suite 4 AW I.CLAM.C*r Afutimst, California 9452 SALE WOLR ra Clair ilTML.W Della EtiIIMU MlDer1a ai�LtM1L'MA1f'AA11EY OeaYcr September 16, 1994 AEOaYLs rrren6.oeeDn�cor �e rNa1►lKso�r>aaa�ueio+ry lslolz?sael �arDiaaaslar REPORT TO: BOARD OF DIRECTORS OF THE CENTRAL CONTRA COSTA SOLID WASTE AUTHORITY (CCCSWA) . FOR: THE MEETING OF SEPTEMBER 22, 1994 FROM: FRED DAVIS, EXECUTIVE DIRECTOR r SUBJECT: REQUEST OF COUNTY TO JOIN CCCSWA BACKGROUND: The Ad Hoc CCCSWA Board Committee (Sue Rainey and MaryLou Oliver) met with the . County Solid Waste Ad Hoc Committee on September 5, 1994. The County Board Committee present (Supervisors Bishop and Smith) expressed interest In joining the Authority. At that time the Authority Board members informed the County of the current timeline for Authority decisions on solid waste franchising and waste disposal actions. They were also informed that they would be potentially welcomed as an Authority member, but that the County would be required to enter on an equal basis with the existing members. On September 13, 1994 the Board of Supervisors considered this issue and took action to request that the County be allowed to juin CCCSWA. The Supervisors further took action .to request that the CCCSWA not enter into any new franchise within the unincorporated area within the current CCCSWA boundaries without County participation. (See attached County memorandum dated September 13, 1994: 'Garbage Action--Staff Summary.') STAFF RECOMMENDATION: Staff recommends that the CCCSWA Board consider the County's request for joining the Authority. To the extent the CCCSWA Board concurs generally with the County proposal to join the Authority, the Board should develop conditions for the County's entrance into the Authority. Further staff suggests that the Board direct the Authority staff to prepare Member nestles: Central Conte Cosh Sanihry District Co of So Ralson Cq of Walnul Creek CCCSWA Page 2 September 16, 1994 a letter for Board President Clausen's signature which would respond to the County's request with appropriate conditions. Staff suggests that consideration of the following issues should be addressed as possible conditions for the entrance of the County into the Authority: • County shall join as equal member with two votes. • County Board Authority members shall be supervisors. • County must meet current CCCSWA schedule for implementation of RFP or negotiated franchise option (in order to provide the rate payers with the earliest potential date of rate reduction). County must agree to delegate franchising authority to the CCCSWA for the unincorporated areas within the current Authority's boundaries (within RFP Zones 1 and 2). • County shall agree to participate in CCCSWA attempt to pursue and contract lowest cost collection in disposal options without respect to location of ultimate disposal of solid waste(e.g. in-county or out-of-county). • Once an option has been selected by the Authority Board with regard to collection, franchising, and/or disposal, County must agree to refrain from attempting to delay or prevent implementation of decisions of Authority by litigation or similar actions. • Further conditions for consideration may include, but are not limited to: • Buy-in cost for County, If any. • Drop-dead date for County decision on joining Authority consistent with current schedule of RFP and negotiations. • Agreement to allow pass through of Acme Lawsuit litigation costs in rate structure arising from unincorporated franchise area (if required). ACTION REQUESTED: Provide direction to staff with regard to County's request to join Authority, outline conditions for County joining Authority, and authorize Board President to sign letter to County incorporating conclusions of Authority. ADS/Admin3A/CCCSWA.mem COUNTY COUNSEL'S OFFICE CONTRA COSTA COUNTY MARTINEZ,CALIFORNIA Date: October 11, 1994 To: Board of Supervisors From: Victor J. Westman, County Counsel By: Lillian T. Fujii, Deputy Countyounsel Re: Keller Landfill and Transfer Station Franchise Agreements As you are aware, on September 13, 1994, the Board of Supervisors voted to approve franchise agreements for the Keller Canyon Landfill and the Acme Permanent Transfer Station, subject to certain changes made by the Board on that date, and directed the County Counsel to make the implementing and other non-substantive changes to the franchise agreements. That was done on September 22, 1994. After making a few other clerical and clarifying language changes, on October 9, 1994, this office received fully executed copies of franchise agreements. The executed copies are virtually the same as the copies that were before the Board on September 13, 1994. In accordance with the Board's September 13, 1994 directions and approval, the following changes were incorporated in the final agreements: 1. Acme Fill Corporation was added as a party to the Transfer Station Franchise. 2. The Transfer Station Franchise was changed to include a modified Alternative 2 for the self-haul rate; the self haul rate to be the average of charges of other transfer stations and landfills in Contra Costa County only. 3. The surcharge provisions were changed to implement the following Board actions with respect to fees and surcharges: a. As directed by the Board, a 25 % surcharge of the combined Transfer Station and Landfill propriety rate was inserted into the franchise agreements, with the costs of all County LUP and franchise agreement programs (including host community mitigation) and the household hazardous waste fee to be coupled into the surcharge amount, subject to 5 % of the surcharge to be deposited in a trust fund for closure and post-closure or related litigation I - Board of Supervisors October 11, 1994 Page 2 expenses, with provision that the Board will re-evaluate the household hazardous waste fee and 5 % component within six months to determine whether either should be modified, reduced or eliminated. b. The following currently existing (Mandated) fees are to be charged separately: At Keller: Eastin Fee ($1.34) and LEA and AB 939 ($1.15) as to direct hauls. At the Transfer Station: LEA and AB 939 ($1.15). c. Provisions were included expressly authorizing the Board to use the surcharge for host mitigation, as determined by the Board. d. A provision was added to the Transfer Station Franchise requiring the Transfer Station to deliver waste to Keller. 4. Other changes were made that were not directly discussed by the Board. These changes included those which were purely clerical or non-substantive, or otherwise clearly within the Board's direction to this office. The following are the more significant of the changes that fall within this category: a. Concerning insurance requirements, we eliminated the operators'option to avoid obtaining liability insurance if insurance could not be found at a reasonable price, and eliminated the operators' ability toexclude bodily injury and property damage due to toxics. b. We added provisions to both franchises clarifying that the County's rights to any damages, remedies, insurance coverage and indemnification under the franchise survives the termination of the franchise. c. Since the Board added Acme as a party to the Transfer Station Agreement, we added language to the Transfer Station Franchise stating that Acme's and BFIC, Inc's obligations are joint and several. 5. Other changes were purely clerical, or clarified intent of existing language. LTF.12a:\frn 1011.94 NORRIS U, NORRIS RICHARD E.NORRIS HILLTOP OFFICE PARK TELEPHONE M.JEFFREY MICKLAS DOUGLAS C.STRAUS 3260 BLUME DRIVE. SUITE 200 (510)222-2100 CY INJ.CN RICHMOND CALIFORNIA 94806-1961 JOSHUA A G.GEN ' FACSIMILE JOSHUA G.GENSER EDWARD L.SHAFFER (510) 222-5992 DAVID S.SMITH SHARON M.IVERSEN JUSTIN D.SCHWARTZ NOEL M.CAUGHMAN J.ERICK DIMALANTA RECEIVED �p 2 919QAl September 27, 1994 s"D li COMML�'OSOR �TA wkS The Honorable Tom Powers, Chair CONTRA COSTA BOARD OF SUPERVISORS 100 - 37th Street, Room 270 Richmond, CA 94805 Members of the Board of Supervisors CONTRA COSTA BOARD OF SUPERVISORS 651 Pine Street Martinez, CA 94553 Re:- Potrero -Hills Landfill Fees Dear Mr. Powers and Members of the Board: This letter is a follow up to my correspondence to you dated September 26, 1994, which was in response to the erroneous information regarding Potrero Hills Landfill contained in Thomas Bruen' s letter to you dated September 22 , 1994 . In that correspondence we explained that the current government fees at Potrero Hills Landfill are $9 . 46 per ton. We pointed out that the Solano County Board of Supervisors has yet to consider a proposal to lower those fees and that no such proposal had been calendared for their review. We were pleased to learn late yesterday that the matter may be calendared for consideration by the Solano County Board of Supervisors in the near future, according to the office of the County Administrator. The offer which Potrero Hills Landfill has made to the Contra Costa communities will not be impacted by the actions of the Solano County Board of Supervisors. The Potrero Hills Landfill offer will not increase if the fees are not lowered and does not obligate Contra Costa communities to bear the risk of paying increased fees charged by Solano County. \D0C\P0059011\108687 ' ' r r - � Mr. Tom Powers and Members of the Board September 27 , 1994 Page 2 Potrero Hills Landfill offers the least cost and most environmentally sound disposal alternative to the communities of Contra Costa County. Very trul, ours, NORRIRRIS, P C. BY RI/9RDE. NORR S REN:slh cc: Richard Granzella Val Alexeeff Thomas Bruen, Esq. \DOC\P0059011\108687 C61/11f 4J BRUEN & GORDON A PROFESSIONAL CORPORATION 1990 NORTH CALIFORNIA BOULEVARD SUITE 608 RECEIVED WALNUT CREEK,CALIFORNIA 94596 (510)295-3131 FAX(510)295-3132 October 3 , 1994 CLERK BOAR©OF SUPERVISORS Mak COSTA CO. VIA FACSIMILE AND U.S. MAIL Chairman Tom Powers and Members of the Board of Supervisors Contra Costa County 651 Pine Street Martinez, CA 94553 Dear Chairman Powers and Members of the Board: I am responding to Rick Norris' letter to you dated September 26, 1994 . Mr. Norris suggests that I have provided you with false information regarding state and county fees charged at the Potrero Hills Landfill. In fact, my information was, and is, accurate. Specifically: 1. The Solano County Board of Supervisors has approved the first reading of two ordinances to lower Solano County landfill fees by $2.50 per ton. Based on information provided to us by Solano County staff (which is a matter of public record) the Solano County Board of Supervisors adopted the staff's recommendations as contained in the two staff reports accompanying my letter to you of September 22 . The ordinances were approved following a public hearing and first reading, and are being scheduled for final adoption by the Solano County Board in October. Since Mr. Norris points out that the proposed tipping fee at the Garaventa transfer station in Pittsburg of $41. 50 will not be affected by this action in Solano County, one can conclude that the $41.50- per-ton rate was determined in anticipation of this action by Solano County. Mr. Norris does not deny that the ordinance was solicited by the operators of Potrero Hills Landfill in order to enable them to compete for Contra Costa County waste. 2. Mr. Norris erroneously states that the Potrero Hills Landfill is paying $3.34 in state fees. State fees at all California landfills are only $1.34/ton. Mr. Norris refers to a $1. 00 charge for "closure/post closure" and a $1. 00 charge for "Public Resources Code §43040" as being "state fees" . In truth, the only state fee currently assessed at any landfill in the State of California is $1. 34 per �Ci Chairman Tom Powers and Members of the Board October 3 , 1994 Page 2 ton. All landfills are required by state law to set aside money from their proprietary rates for closure and post closure. However, these are not state fees--these funds are not paid to the State of California. Since the Board of Supervisors has attempted to compare state and county fees charged at the Altamont, Keller Canyon and Potrero Hills landfills (that is, fees collected at the gate but thereafter paid to the State of California or the County) , it is simply incorrect for Mr. Norris to suggest that Potrero Hills Landfill is paying $2 . 00 more per ton in "state fees" than Keller Canyon or the Altamont. 3. Potrero Hills Landfill, upon final adoption of the Solano County ordinances, will pay a total in state and county fees of $4.96 per ton. As stated in my letter of September 22 , after the Solano County Board of Supervisors adopts the two proposed ordinances this month, the total of Solano County and State fees assessed at the Potrero Hills Landfill will be as follows: Waste Mitigation Fee: $ . 15 per ton LEA Fee: . 47 per ton Business License Tax: 3 .00 per ton State Fee: 1. 34 per ton Total: $ 4 .96 per ton It is obvious why BFI's competitorshave urged the Board of Supervisors to keep this County's landfill fees as high as possible. Waste Management and the operators of the Potrero Hills Landfill have suggested to you that it would be unlawful and/or inappropriate for this County to lower these County charges. Neither claim is true. However, to the extent they are really concerned that this County continue to be able to raise funds to pay for mitigation, it is abundantly obvious that if the Altamont and Potrero Hills landfills capture Contra Costa County's waste stream, there will be no funds available at all to Chairman Tom Powers and Members of the Board October 3, 1994 Page 3 mitigate traffic impacts and the like in Contra Costa County. Mr. Norris' groundless rhetoric about the spreading of "falsehoods" cannot conceal this fundamental truth. Very truly yours, Thomas M. Bruen TMB:dcr Enclosure cc: Mr. Rick Norris Mr. Val Alexeeff OFFICE OF COUNTY COUNSEL DEPUTIES: VICTOR J.WESTMAN PHILLIP S.ALTHOFF CONTRA_ COSTA:"COUNTY SHARON L.ANDERSON COUNTY COUNSEL ANDREEAAw CASSIDY :'COUNTY,,ADMINISTRATION BUILDING_n VICKIE L.DAWES TIS SILVANO B.MARCHESI L ' MICH E S. .FAR 651 PINE�STREET•:9ttiFLOOR MICHAEL D.FARR DENNISARTHUR W.WALENTA,JR. MARTINEZ;,CALIFORNIA 94553-0116 FU ASSISTANTS DENNIS C.GRRIIAVES GREGORY C.HARVEY KEVIN T.KERR GAYLE MUGGLI t EDWARD V.LANE,JR. MARY ANN MASON OFFICE MANAGER PAUL R.MUNIZ July 5, 1994 SITYAMA-ATRAJENDER PHONE(510)646-2074 VALERIE J.RANCHE ID F FAX(510)646-1078 DIANA J.SILVER SCHMIDT VICTORIA T.WILLIAMS Thomas M. Bruen, Esc BRUEN & GORDO 1990 No ifornia Blvd. , Suite 608 Creek, CA 94596 Re: Keller Canyon Landfill Franchise Amendment No. 10 Dear Tom: Enclosed for signature by authorized officers of the Keller Canyon Landfill is Amendment No. 10 to the Keller Canyon Landfill Franchise, as approved by the Board of Supervisors on June 28, 1994 . Please return the signed original to the County Counsel ' s Office, to my attention. I will have the amendment delivered to the Clerk of the Board for the Chair' s signature, and will return a certified copy of the amendment to you. Very truly yours, Victor J. Westman County Counsel By: Lillian V. Fujii Deputy County Counsel cc w/attach. : Jeanne Maglio, Clerk of Board Phil Batchelor, County Administrator Val Alexeeff, GMEDA Louise Aiello, Community Development LTF9bruen75. 94 7 COUNTY OF CONTRA COSTA, STATE OF CALIFORNIA AMENDMENT NO. 10 TO LANDFILL FRANCHISE AGREEMENT 1. PARTIES. This Amendment No. 10 to Landfill Franchise Agreement is made and entered by and between the County of Contra Costa ("County") and Keller Canyon Landfill Company ("Operator"). 2. BACKGROUND. On December 4, 1990, County and Operator entered a Landfill Franchise Agreement ("Agreement") for the operation of the Keller Canyon Landfill (described in Exhibit A to the Agreement). Subsequently, County and Operator entered amendments to the Agreement. 3. PURPOSE. The purpose of this Amendment No. 10 is to further extend Amendment No. 1, to August 31, 1994, and to amend the provisions on an interim base rate, subject to any applicable requirements. 4. INTERIM RATE. Effective June 28, 1994, and continuing to and including August 31, 1994, the Base Rate at the Keller Canyon Landfill shall be as established by Operator, not to exceed $38.48, based upon market and economic conditions and/or factors found relevant by Operator. The Gate Rate shall be the Base Rate plus applicable fees, as previously agreed to and last set forth in Amendment No. 9, subject to applicable requirements and agreements between the parties. 5. EXTENSION. Amendment No. 1 is hereby extended to and including August 31, 1994. 6. EFFECT. Subject to the provisions herein, Amendment No. 1 remains in full force and effect. 7. EFFECTIVE DATE. This agreement is effective on June 28, 1994 and shall remain in effect until August 31, 1994. This agreement replaces Amendment No. 9 for the period commencing June 28, 1994, to June 30, 1994. KELLER CANYON LANDFILL COUNTY OF CONTRA COSTA COMPANY, a California corporation By Chair, Board of Supervisors By Attest: Phil Batchelor, Clerk of the Board of Supervisors and County Administrator By By Deputy LTF 5.kcicamd.1Of ry r ' RESPONSE TO KELLER/ACME AMENDMENTS - SUPPLEMENT TO STAFF ANALYSIS FOR CONSIDERATION BY BOARD OF SUPERVISORS OCTOBER 10, 1994 a- S+ ' OVERVIEW OF PROPOSED ACME/KELLER AMENDMENTS Acme/Keller has requested that the County consider lowering its fees and relieving Acme/Keller of rate regulation. In many respects, these may be wise policy alternatives for the County. Certainly, to the extent that the County can participate in lowering landfill costs for rate payers, the County is well served to work with Acme/Keller in that regard. Moreover, there are sound public policy principles involved in deregulation which the County .should consider carefully. With the following revisions and additions to the staff recommendations, the County can responsibly address the policy and price concerns that Acme/Keller has raised and do so in a way , to insure that the County rate payers will be the principle' beneficiaries. It is clear that Acme/Keller has agreed to be bound by rate setting, in fact, they requested a rate higher than the one set by the County as the Interim Rate. They also agreed to collect and pay all of the County fees applicable to Acme/Keller. So Acme/Keller has made its bed and cannot demand that the County save it from its own business judgments.. The real issue, though, is how the Board of Supervisors can help the rate payers. On that issue, there is a lot that the Board of Supervisors can do. SIX PROVISIONS WHICH MUST BE REVISED TO AVOID ACMEIKELLER TAKING UNFAIR ADVANTAGE OF THE RATE PAYERS AND THE COUNTY I. KELLER/ACME CAN'T CHARGE LESS FOR OUT OF COUNTY WASTE First, the Board of Supervisors has to clean up the Keller/Acme draft that. still includes a few big benefits to Keller/Acme at the expense of the rate payers and the County. The first thing to go must be the provision in the Franchise Agreement for Keller that allows Keller to charge a lower Surcharge for out of County waste than for waste from within the County. It is outrageous that Acme/Keller should request such favorable treatment for their out of County customers while leaving their in County customers subject to the full Surcharge. It would be even more of an outrage if the Board of Supervisors were to let them get away with it. This change is explained at Paragraph 7 of the Cover Memo to Proposed Amendments to Article 6 of Acme/Keller Franchise Agreements. 2 v y II. KELLER/ACME CAN'T STOP FUNDING OF SOLID WASTE PROGRAMS BY CONTRACT Second, the Acme/Keller draft would allow Acme/Keller to fix the Surcharge for more than twenty years by entering into a contract with another company. This would leave the County without the ability to finance new solid waste programs (except by means of the general fund) as they are mandated or as they are . demanded by residents. This provision helps Acme/Keller line up more customers, but it does not provide a rational regulatory scheme for the County to meet its regulatory and programmatic obligations. This issue is addressed at Paragraph 8 of the Cover Memo to Proposed Amendments to Article 6 of Acme/Keller Franchise Agreements. III. KELLER/ACME CAN'T REDUCE COUNTY FEES BY COLLUSIVE CONTRACTS WITH BFI COLLECTION COMPANIES Third, the Acme/Keller draft would allow Acme/Keller to control the amount of fees paid to the County by agreeing with other BFI companies to artificially low disposal. fees. The County can and must impose a floor on the Surcharge to avoid being taken advantage of by BFI, Acme and Keller. The issue is addressed at Paragraph 4 of the Cover Memo to Proposed Amendments to. Article 6 of Acme/Keller Franchise Agreements. IV. CONTRA COSTA COUNTY HAS TO PROTECT AGAINST BECOMING THE DUMP TO THE .ENTIRE BAY AREA Fourth, the Keller/Acme draft would completely deregulate out of County waste. If the law changes (and there are bills in Congress to do just that) , then Keller/Acme would be completely unregulated regarding out of County waste while other counties would have the power to regulate their solid waste facilities. This could lead to a situation where all of the waste in the region would be attracted to Contra Costa, congesting highways and utilizing landfill space we have tried so hard to develop. The issue is addressed at the Cover Memo to Proposed Additional Language Regarding Right to Exclude Out of County Waste. V. ACME/KELLER MUST PASS ON THE SAVINGS AND NOT REAP MORE WINDFALL PROFITS AT THE EXPENSE OF THE COUNTY Fifth, the Keller/Acme draft does not simply require Keller/Acme to pass on the benefits of the lowered fees. The Board of Supervisors must make this a key element of the package' of changes or the Board will find itself increasing the profits for Acme/Keller while not reducing the rates paid by local residents. This issue is addressed at the Cover Memo to Proposed Revisions to. Franchise Agreements to Assure $39.00 Rate at Keller/Acme. 3 f VI. THE COUNTY MUST NOT GIVE UP THE RIGHT TO RECOUP THE EXCESSIVE PROFITS OF KELLER/ACME UNDER THE $66.00 INTERIM RATE - A $17 MILLION WINDFALL Sixth, Contra Costa County must be vigilant top protectits right to go back in the rate setting process and recover the excess profits that Keller/Acme made by charging $27.00 per ton more for disposal than they now claim they need to operate. While it is possible that not all of the windfall profits can be recovered, it would be a GIFT OF PUBLIC FUNDS to allow Acme to keep its ill gotten windfall by abandoning rate setting just when it can be used to achieve a refund for the rate payers. This issue is addressed at Paragraph 1 of the Cover Memo to Proposed Amendments to Article 6 of Acme/Keller Franchise Agreements. OTHER AREAS OF CONCERN TO THE COUNTY AND RATEPAYERS The proposed revisions to the Land Use Permits and Franchise Agreements also address the issue of the right of the County to meet funding needs for solid waste on its own schedule and not one dictated by Acme/Keller, the adjustment of the Surcharge by the CPI, the conditions which should be met prior to reducing funding for Acme Closure and for household hazardous waste t programs, and the exclusion of County solid waste management programs from the Surcharge to assure adequate funding. The adoption of the proposed amendments to the Franchise Agreements and the Land Use Permits with the protections that are referenced hereinabove will result in guaranteed lower rates: for the rate payers at Acme/Keller while protecting the interests of the rate payers by stopping Acme/Keller from taking advantage of the County and its rate payers. The net result of the fee reductions will be that Contra Costa County will be getting less per ton for its general fund than will Solano County, even assuming that Solano County lowers the Business License Tax to $3.00 per ton. The $9.75 per ton fee includes all of the required programs and the mitigation costs and will certainly leave less than $3 .00 per ton for the general fund. 4 It is only fair and reasonable that the County do whatever it can to assure at least the partial funding by Acme/Keller of all of the promises of mitigation that Keller/Acme .made when they were asking for their permits in the first instance. The careful preservation of the right of the County to meet its ever changing , obligations respecting solid waste while limiting the government fees as much as possible and demanding lower rates in exchange for lower fees will be the best policy for the County. To simply give BFI the huge financial breaks that are built into the Acme/Keller draft (which somehow got by staff with a positive recommendation) would be a travesty. 5 c• COVER MEMO TO PROPOSED AMENDMENTS TO ARTICLE 6 OF ACME/KELLER FRANCHISE AGREEMENTS Introduction. Article 6 is virtually identical in both the Keller and Acme Franchise Agreements. There are nine changes from the draft promulgated by Acme/Keller which should be made to improve the Franchise Agreement. One of the changes, number 7, corrects a flaw in the Acme/Keller draft which would have allowed Keller to charge less for out of County waste than for waste from Contra Costa County cities. The theme of the changes is the preservation of the right of the County to meet its obligations to rate payers. This theme is advanced with respect to the preservation of the County's right to recover past over charges by Acme/Keller and by preserving the right of the County to meet its financial obligations respecting solid waste and mitigation issues. The major changes from the Acme/Keller draft are noted in the text and a number appears by each change. The number corresponds to the numbered explanations below. Explanation of Proposed Changes. 1. The revised Section 6. 1 allows, the County to retain the , right, but not the obligation, to set the rates at Acme and Keller. . This right is very important for a number of reasons: a. The County may elect in the future to regulate, rates at landfills. Reasons could range from a desire to encourage recycling in order to comply with state law to a change in federal law which would allow Counties to control the importation of solid waste. In that event, Contra Costa County could be well served by having the right to exercise control over the utilization of a, by then, relatively scarce resource. b. Keller/Acme have been charging about $27.00 . per ton more than they are now offering to charge under the Interim Rate set by the County. The County has the right to revisit that interim rate and determine if some portion of that rate provided a return ;or a profit in excess of the allowed profit under the rate review standards. There is approximately $17,000,000.00 at issue. While the County may be able to seek recovery by litigation, it is likely that litigation would require proof of fraud and would be expensive and time consuming. In the rate setting process, the , 6 County need only demonstrate the excess profitability (based on a comparison with the $39.00 rate) and then establish a new rate which would allow the recovery of the past overpayment (eg. a deduction in the $39 .00 to allow for recovery of the $17,000,000.00 over several years) . It is important to remember. that Acme/Keller have claimed the right to get an increase over the Interim Rate and to charge that increase retroactively when Acme/Keller was arguing for a $95.00 rate and the County allowed $66.00. It is only fair that the County have the same right to adjust unfair profit levels in rate setting procedures. 2. This revision allowing for an adjustment of the Surcharge as required by ever changing state and federal law and solid waste program demands from local residents simply leaves the Board of Supervisors the right to establish the Surcharge under the Franchise Agreements when and if there is a need. Thus, the County. will be able to respond to changes in State and Federal law as well as its own needs when the need arises and not in accordance with a calendar dictated by an agreement with a private party. It is unlikely that Keller/Acme will consent to increases in the Surcharge more often than they are obligated to '. under the Franchise which could leave the County General Fund exposed for two year increments of unforeseen solid waste related expenses. 3. This new provision automatically adjusts the Surcharge by the CPI, annually. Without this adjustment, the Board of Supervisors will have to act annually to increase the Surcharge to keep up with the rising costs of implementing the programs supported by the Surcharge. Of course, the Board of Supervisors could decide to forego any increase in the event that the costs of the programs supported by the Surcharge did not increase with inflation. 4. This amendment places a floor of $9 .75 per ton on waste received at Keller/Acme. The advantage of this "floor" on the Surcharge is that it precludes BFI from manipulating disposal and collection cost figures within its franchised operations to . establish an artificially low disposal cost which would lead to a lower Surcharge. Since BFI covers both sides of the disposal transaction when it both collects and disposes of waste, it would be free to assign costs to its Pleasant Hill Bay Shore collection company and artificially lower the Surcharge, at the expense of the County and for the benefit of BFI. Assuming that $39.00 is the lowest price that Acme can charge (which results in a $9.75 surcharge) , this floor should not pose a problem for Acme/Keller. 7 5. This revision establishes the amount of the funding .for closure at the Acme Landfill. The $1 .95 will cover the likely expenses of the County in dealing with the closure of Acme. 6. This revision provides fixed standards for the removal of the fees for closure and household hazardous waste programs. Thus, the County will not be compelled to abandon the funding of these two programs if there is a risk that the general fund of the County will be forced to pick up the tab or there is a risk that other agencies will not step in for the County and- provide the household hazardous waste service that the County now provides. This provision will assure compliance with the County's Solid Waste plan and the County's obligations under state law, as well as avoid solid waste related charges accruing to the general fund of the County. 7. With respect to the Keller Franchise, this Amendment removes Keller's attempt to favor imported garbage over in-County waste. Keller proposed to charge a Surcharge of only 100 (probably about $2.50) on imported garbage while charging $9.75 for local waste. This would have clearly favored out of County rate payers over in-County rate payers - a circumstance that is completely unacceptable to the County. 8. This revision allows Keller/Acme to fix the Proprietary/Base rate at the Transfer Station for disposal in contracts with third parties. Acme/Keller should not have the right to fix the amount of the Surcharge because to do so would be to relinquish control over a necessary aspect of solid waste management so that the County would not be able to meet funding demands for solid waste programs as they are mandated by state and federal government and as demands from County residents change. It is important to allow Acme/Keller to lock the Proprietary/Base rate since the County may elect to regulate those rates in the future and this will allow Acme/Keller some ability to commit for up to five years. 9. This revision conforms the self-haul rate setting to the provision (above) confirming the right of the County to establish rates at the Transfer Station. 8 PROPOSED AMENDMENTS TO ARTICLE 6 ACME TRANSFER STATION FRANCHISE AGREEMENT ARTICLE 6. RATES Section 6.1 PROPRIETARY RATE. The Transfer Station Proprietary Rate shall be determined in accordance with the provisions of Section _ of the Use Permit governing rate review y the County. Nothing in this -Agreement shall i.mi the rig oT he Coun y to allow the Operator to establish its own _ Proprietary Rate from time to time, subject o tne rtgnt of the County to establish rates hereunder if and wheft the CounFy so e ec s, at its sole discretion. Notwithstanding section 4. 11, and subject to the right of the County to establish rates, the Operator need not charge a uniform Transfer Station Proprietary Rate to all customers, but may vary the Transfer Station Proprietary Rate as between different customers based on various factors determined by Operator, including, but not limited to, the quantity and type of waste delivered by each customer to the facility. and whether each customer has entered into an agreement with the Operator in which the customer agrees to deliver some or all of the customer's future waste stream to the Transfer Station. Section 6.2 SURCHARGE. (a) THE AMOUNT. The County shall , from time to time, determine and establish, effective on the date determined by the Board of Supervisors, the Surcharge which shall be added to the then applicable Transfer Station Proprietary Rate, and collected as part of the Gate Rate. After the establishment of the initial Surcharge, Operator will be provided at least ninety (90) days written notice of any newly established Surcharge. In the absence of the County establishing a particular Surcharge amount, the Surcharge to be collected by the Operator for the County shall be thirty percent (30%) of the then applicable Transfer Station Proprietary Rate. (b) CPI ADJUSTMENT TO SURCHARGE. In years when the County does not adjust the Surcharge, the aggregate amount of the per ton surcharge shall be increased by not less the increase in the Consumer Price Index for that year. Thus, for a year within which the County does not review and establish the Surcharge, the per ton Surcharge would increase by the dollar amount of the percentage increase in , the Consumer Price Index over the preceding year multiplied 9 by the prior year's Surcharge. Any increase in the Surcharge arising from an increase in the Proprietary Rate shall be netted against any required CPI increase hereunder so that if the Proprietary rate increases by the CPI and the Surcharge is a percentage of the Proprietary Rate and the Surcharge remains unadjusted for that year, the Surcharge will increase by the CPI automatically, without the application of this CPI provision. Section 6. 3 GATE RATE. The Gate Rate shall consist of the Transfer Station Proprietary Rate, Mandated Fees, Surcharge and disposal costs. Section 6.4 INITIAL SURCHARGE. a. Amount. Effective on the effective date of this Agreement, the Surcharge shall be the greater of. twenty-five percent (25%) of the combined. Transfer Station Proprietary Rate and the Keller Landfill Base Rate or $9.75 per ton. b. Funding of Programs from Surcharge. During the period covered by the above initial Surcharge, costs of all County programs (required or authorized by the Use Permit or this Agreement) shall be funded from said combined Transfer Station and Keller Landfill Surcharge. In addition, any household hazardous waste fee imposed by the Board pursuant to Public Resources Code section 43213 shall be collected (deducted) from said combined Surcharge amount. c. Closure, Litigation. Operator agrees and soacknowledges that a $1.95 of the Surcharge as determined by the County's Board of Supervisors shall be utilized pursuant to Board order(s) and a trust account arrangement for any landfill closure or post-closure or related litigation expenses. Any amount not so expended may be otherwise utilized for other Surcharge purposes. d. Reconsideration. Within or approximately six months from the date of this Agreement, the Board of Supervisors may reconsider and re-evaluate the household hazardous waste and the landfill closure and/or litigation expense programs, their levels of funding, whether one or more programs should be modified, reduced, or eliminated, and a surcharge adjustment made. In no event shall the County eliminate the Household Hazardous Waste program or the $2.12 per ton c aF rge ere or, unless and until an alternative program with funding mechanism in place is established by one or more agencies within Contra Costa County and available to t e residents of each of the cities in Contra Costa County and the residents of the unincorporated areas of Contra Costa County. In no event shall the County eliminate the closure and/or litigation expense program or the_ $f.55 per 10 ton charge therefor, unless and until the Board of Supervisors determines that there is adequate provision from another source of funding, other than the general fund of e County, for the expenses, legal, closure, and otherwise_, which the County's counsel advises are reasonably oreseea le in connection with the litigation regarding the c osure of the Acme Landfill and the closure of the Acme Landfill. Section 6.5 CONTRACTS. For all contracts entered for the delivery to and receipt of Solid Waste at the Transfer Station, the Proprietary Rate applicable at the time of the contract .shall apply for the term of said contract. The parties agree that any, later established Proprietary Rate shall not apply to waste received pursuant to such Solid Waste contract for the term of said contract, provided that the maximum term for which the originally applicable Proprietary Rate shall apply shall be five ears. Operator shall advise County of any contract subject to the privileges of this section immediately upon execution. Operator shall provide County with any and all information requested by County concerning any such Contract, including providing County with copies of such contracts upon request. Operator shall also provide to County upon request, copies of all contracts for the transportation (hauling) and/or disposal of Solid Waste transferred at or processed through the Transfer Station. Section 6.6 SCHEDULE OF RATES. Operator shall at all times maintain on file with the County, a schedule of Transfer Station Proprietary Rates and Gate Rates, including disposal rates, charged to each customer. The schedule may include a standard Transfer Station Proprietary Rate and Gate Rate which Operator charges unless an agreement is entered, or other arrangements made. Said schedule of Base and Gate Rates shall be updated within ten days of material modification thereof. Material modifications include, but are not limited to, changes to any customer's Transfer Station Proprietary Rate and Gate Rate, and entering of an agreement with a new customer. The schedule shall specify and distinguish between the Transfer Station Proprietary Rate and the Gate Rate, and shall include all elements of the Gate Rate, including disposal costs. The purpose of this section is to ensure that the 'rates charged by operator as well as fees and surcharges imposed by County as well as other governmental agencies are a matter of Public Record, so as to promote cooperation and trust between the Operator, the County, and the public. Towards this end, County may request, and Operator shall provide to County, all 11 information reasonably necessary to effectuate the purpose of this section. Section 6.7 SELF-HAUL RATES. Notwithstanding Section 6. 1, and only to the extent that the County elects not to regulate th _. self-haUT—r—NU-6—at the Transfer Station as provided at Section 6,1 e ate Rate charged to customers delivering less than one ton of solid waste per day shall not exceed the average of the charges of all other transfer stations and landfills in Contra Costa County which receive waste from the general public. , 12 PROPOSED AMENDMENTS TO ARTICLE 6 KELLER CANYON LANDFILL FRANCHISE AGREEMENT ARTICLE 6. RATES Section 6. 1 BASE RATE. The Base Rate shall be determined and established in accordance with Section 12 of the Use Permit governing rate review by the County. Nothing in this Agreement shall limit the right of the County to allow the Operator to establish its own rate from time .to time, subject to the right of the County to establish rates hereunder if and when the County so elects, at its sole discretion. Notwithstanding section 4 .13 , and subject to the right of the County to establish rates, the Operator need not charge a uniform Base Rate to all customers, but may vary the Base Rate as between different customers based on various factors determined by Operator, including, but not limited to, the quantity and type of waste delivered by each customer to the facility and whether each customer has entered into a disposal agreement with the Operator in which the customer agrees to dispose of some or all of the customer's future waste stream at the Landfill. Section 6.2 SURCHARGE. (a) AMOUNT. The County shall from time to time determine and establish, effective on the date determined by the Board of Supervisors, the Surcharge which shall be added to the then applicable Base Rate, and collected as part of the Gate Rate. operator will be provided at least ninety (90) days' written notice of any newly established Surcharge. In the absence of the County establishing a particular Surcharge amount, the Surcharge to be collected by the Operator for the County shall be thirty percent (300) of. the then applicable Base Rate. (b) CPI ADJUSTMENT TO SURCHARGE. In years when the County does not adjust the Surcharge, the aggregate amount of the per ton surcharge shall be increased by not less the increase in the Consumer Price Index for that year. Thus, for a year within which the County does not review and establish the Surcharge, the per ton Surcharge would increase by the dollar amount of the percentage increase in , the Consumer Price Index over the preceding year multiplied , by the prior year's Surcharge. Any increase in the Surcharge arising from an increase in the Base Rate shall be netted against any required CPI increase hereunder so that if the Base rate increases by the CPI and the Surcharge is a percentage of the Base Rate and the Surcharge remains 13 unadjusted for that year, the Surcharge will increase by the CPI automatically, without the application of this CPI provision. Section 6.3 GATE RATE. The Gate Rate shall consist of the Base Rate, Mandated Fees, and Surcharge. Section 6.4 INITIAL SURCHARGE. Effective on the effective date of this Agreement, the Surcharge shall be as set forth in this section. a. Permanent Transfer Station. The Surcharge on Solid Waste received at the Landfill via the Acme Fill Waste Recovery and Transfer Station (commonly referred to as the "Acme Permanent Transfer Station," and hereinafter referred' to as the "Transfer Station") shall be as set forth in Section 6.4 (Initial Surcharge) of the Franchise Agreement between the County and the operators of the Transfer Station, as follows: Amount. The greater of twenty-five percent of the combined Transfer Station Proprietary Rate and the SL+ Landfill Base Rate or 59.75 per ton. b. Funding of Programs from Surcharge. During the period covered by the above initial Surcharge, costs of County programs (required or authorized by the Use Permit or this Agreement) shall be funded from said combined Transfer Station and Landfill Surcharge. In addition, any household hazardous waste fee imposed by the Board pursuant to Public Resources Code section 43213 shall be collected (deducted) from said combined Surcharge amount. c. Closure, Litigation. Operator agrees and acknowledges that $1.95 or more of the Surcharge as determined by the County's Board of Supervisors shall be utilized pursuant to Board Order(s) and a trust account arrangement for any landfill closure or post-closure or related litigation expenses. Any amount not so expended may be otherwise utilized for other Surcharge purposes. d. Reconsideration. Within or approximately six months from the date of this Agreement, the Board of Supervisors may reconsider and re-evaluate the household hazardous waste and the landfill closure and/or litigation expense programs, their levels of funding, whether one or more programs should be modified, reduced, or eliminated, and a surcharge adjustment made. In no event shall the County eliminate the household hazardous waste program or the $2.12 per ton charge therefor, unless and until an alternative program with funding mechanism in place is established by one or 14 more agencies within Contra Costa County and available to the residents of each of the cities in Contra Costa County and the residents of the unincorporated areas of Contra Costa County. In no event shall the County eliminate the closure and/or litigation expense program or the $1.95 per ton charge therefor, unless and until the Board of Supervisors determines that there is adequate provision from another source of funding, other than the general fund of the County, for the expenses, legal, closure, and otherwise, which the County's counsel advises are reasonably foreseeable in connection with the litigation regarding the closure of the Acme Landfill and the closure of the Acme Landfill. e. Collection. For Solid Waste received at the Landfill via the Transfer Station, the combined Surcharge and any other Keller Mandated Fees may be collected at the Transfer Station. f. Other Wastes. The Surcharge on waste received at the Landfill other than via the Transfer Station shall be established from time to time by the Board of Supervisors and, in the absence of Board Action, shall be a per ton fee equal to the greater of thirty percent (30%) of the Base Rate or the percentage of $9.75 equal to the percentage of the Base Rate compared to the Base Rate plus the Proprietary Rate at the Transfer Station (eg. If the Base Rate is $25.00 , and the Proprietary Rate is $14.00 the total is $39.00. The percentage attributable to the Base Rate is 64% so the minimum Surcharge would be 64% of $39.00 or $6.24) . Section 6.5 DISPOSAL CONTRACTS. For all contracts for the disposal of Solid Waste entered by Operator, the Base Rate applicable at the time of the disposal contract may apply for the life of said disposal contract. The parties agree that any later established Base Rate amounts shall not apply to waste received pursuant to such Solid Waste disposal contract for the life of said disposal contract, provided that the maximum term for which the originally applicable Base Rate shall apply shall be five years• Operator shall advise County of any disposal contract subject to the privileges of this section immediately upon execution. operator shall provide County with any and all information requested by County concerning any such Contract, including providing County with copies of such contracts upon request. Section 6.6 SCHEDULE OF RATES. Operator shall at all times maintain on file with the County, a schedule of Base Rates and Gate Rates charged to each customer, including Solid Waste received via the Transfer Station. The schedule shall specify 15 whether each customer delivers waste directly to the Landfill or ' whether it is delivered by way of the Transfer Station or other transfer or processing facility. The Schedule shall identify the components of the rates charged at the Facility. The schedule may include a standard Base and Gate Rate which Operator charges unless a disposal agreement is entered, or other arrangements made. Said schedule of Base and Gate Rates shall be updated within ten days of material modification thereof. Material modifications include, but are not limited to, changes to any customer's Base and Gate Rate, and entering of a disposal agreement or other agreement with new customer. The purpose of this section is to ensure that the rates charged by Operator as well as fees and surcharges imposed by County as well as other governmental agencies are a matter of Public Record, so as to promote cooperation and trust between the Operator, the County, and the public. Towards this end, County may request, and Operator shall provide to County, all information reasonably necessary to effectuate the purpose of this section. 16 COVER MEMO TO PROPOSED ADDITIONAL LANGUAGE REGARDING RIGHT TO EXCLUDE OUT OF COUNTY WASTE This amendment to the Land Use Permit of Keller and Acme will preserve the right of the County to control the flow of out of County waste into Contra Costa County if and when federal law ' allows counties to exercise such control. The provision will not compel the County to regulate out of County waste but it differs from the Acme/Keller proposal which would deny the County the ability to regulate if and when the law changes. It may be imprudent for the County to give up the right to regulate out of County waste. Surrounding Counties have not waived the right to regulate out of County waste and Contra Costa could be left the only County without the power participate as an equal in regional disposal regulation. Contra Costa could end up as the unregulated disposal capital of the Bay Area if the County doers not retain the right (but not the obligation) to impose regulation if and when it is legal and prudent to do so. 17 PROPOSED LANGUAGE ESTABLISHING RIGHT TO EXCLUDE WASTE FROM OUT OF COUNTY FOR LUP FOR KELLER AND ACME [LUP 5.1] Area of Or.igir a. In no event shall the Operator charge less for receiving, processing, or disposing of waste with respect to waste which was disposed of outside of Contra Costa County than for waste which was disposed of within Contra Costa County. Not less than the total of government fees, including the Surcharge as described in the Franchise Agreement, which is due to the County under the terms of this Conditional Use Permit and the Franchise Agreement with, respect to waste originating within Contra Costa County shall be payable with respect to waste received from outside of Contra Costa County. b. To the extent that the law allows the County to regulate the acceptance of waste by the Operator. which waste originates from outside of Contra Costa County, the provisions of Section 5 of this Land Use Permit shall be applicable and enforceable. For so long as the County does not have the right to regulate the importation of out of county waste, then paragraph (a) , above, shall be the sole special provision regarding the importation .of out of county waste. 18 COVER ,NEMO TO PROPOSED REVISIONS TO FRANCHISE AGREEMENTS TO ASSURE $39.00 RATE AT KELLER/ACNE These provisions will assure the County that the Keller/Acme owners do not reap the benefits of the County's lowered fees as additional profit. Rather, the County will insure that the benefit of the lowered fees will be enjoyed by the rate payers. The provision also requires Keller/Acme to agree that the lowering of the rate to $39.00 will not preclude the County from seeking to recover all or a part of the $17,000,000.00 in overcharges measured by the difference between the current request for a $39.00 rate and the Interim Rate of $66.00. Finally, the provision requires that Acme/Keller not discriminate among cities in Contra Costa County but rather that they offer the $39.00 tipping fee to all cities without any strings attached. Otherwise, it will be possible for Acme/Keller to limit the ability of cities and the County to shop for the best rate as additional facilities which will service Contra Costa County come on line. The Board of Supervisors has the ability to require Keller/Acme to pass on the savings that Contra Costa County is allowing and to give all of the rate payers in Contra Costa County the maximum opportunity to benefit from the competition in disposal prices. If these provisions are not added, then Acme/Keller will be the principal short term beneficiary of the lowering of fees (as they are currently keeping the savings voted by the Board) and the rate payers will risk being roped into long term contracts to gain the short term benefits of the County's lowered fees. The County should not allow itself to be the instrumentality of Keller/Acme's forcing cities to sign up for long term contracts to gain short term price advantages. Rather, the County should endeavor to preserve the most price options for the cities and the County. 19 f` PROPOSED LANGUAGE ESTABLISHING $39.00 PROPRIETARY RATE FOR THE ACME PERMANENT TRANSFER STATION - KELLER CANYON LANDFILL ARTICLE 6 [ACME FRANCHISE] Section 6.8 $39.00 RATE. The County will allow the Operator to charge a Proprietary Rate of $39.00 per ton notwithstanding the Interim Rate of $66.00 per ton upon the following terms and conditions: 1. The Operator and the Operator of Keller Canyon Landfill, Inc. , agree in writing that the allowance of the $39.00 Proprietary Rate shall not limit the rights of the County, if any, to recover at law or through the rate review and setting process, the amounts charged by Operator and/or Keller Canyon Landfill, Inc. under the then existing interim rate which are in excess of the $39.00 per ton rate which Operator and Keller Canyon Landfill, Inc. have requested that the County allow them to charge. The letter to be signed by the Operator and Keller Canyon Landfill, Inc. shall not require an admission of liability to the County or its rate payers, nor a waiver of any statute of limitations which the Operator or Keller Canyon Landfill, Inc. may claim applies. 2. The immediate lowering of the gate rate at the Interim Transfer Station or the Permanent Transfer Station of tipping fees to $39.00 per ton for all . solid waste brought to the Interim Transfer Station or the Permanent Transfer Station by haulers operating under franchise agreements with government agencies within Contra Costa County, including without limitation, cities, districts, and the County. 20 Section 6.9 SURCHARGE ADJUSTMENT EFFECTIVE UPON LOWERING RATE• No reduction in the County Fees actually paid by the Operator and by Keller Canyon Landfill, Inc. below the total of fees due to the County under the terms of the Use Permit and other actions by the Board of Supervisors immediately prior to the execution of this Agreement shall be allowed, and the amounts due to the County shall not be lowered, until Operator shall have lowered its Proprietary rate to $39.00 per ton for all waste received at the Permanent Transfer Station or the Interim Transfer Station from haulers operating under Franchise Agreements with government agencies within Contra Costa County. In the event that the County elects not to regulate the rates of Operator, and Operator raises its Proprietary Rate by an amount greater than the CPI, the Surcharge shall be increased to the total of fees due to the County immediately prior to the execution of this Agreement or the then applicable Surcharge, whichever is greater. [similar revisions to be made in Keller Franchise] 21 COVER MEMO TO PROPOSAL EXCLUDING RESOURCE RECOVERY MANAGEMENT FEES AND AB 939 MANAGEMENT FEES FROM SURCHARGE These amendments to the Keller/Acme Franchise Agreements and Land Use Permits will assure the County that agreements with private businesses will not preclude the County from funding the state mandated programs of AB 939 Management and Resource Recovery by means of a per ton fee at the landfill. If these amendments are not made, then the limitations on the amount of the Surcharge could require the County to turn to its general fund to meet the obligations imposed by the state. The practical effect of this amendment is to add the cost of these two state mandated programs to the $9.75 per ton minimum Surcharge and to allow the additional charge to rise and fall with the County's program obligations under these two state mandated categories. 22 k w PROPOSED LANGUAGE TO CONFIRM THAT RESOURCE RECOVERY MANAGEMENT FEE AND AB 939 MANAGEMENT FEE ARE IN ADDITION TO SURCHARGE Revise Section 31.9 of the Keller Canyon LUP as follows: .9 Resource Recovery Management Program. The Operator shall support an adequate County Resource Recovery Management Program as determined by the Board of Supervisors. The means of contribution shall be a tonnage surcharge in an amount to be established, from time to time, by the Board of Supervisors. Said surcharge shall be in addition to any and all other surcharges and fees charged hereunder. .10 AB 939 Management Program. The Operator shall impose a tonnage fee set by the Board of Supervisors to financially contribute to the County to support an adequate program for the County's compliance with state mandated AB 939 management requirements. The AB 939 program shall be approved by the Board of Supervisors. Revise Franchise Agreements as follows: Notwithstanding any other provision, all amounts charged to "the Operator by the County under Sections 31.9 and 31.10 of the Use Permit shall be Mandated Fees and shall not be included in the Surcharge. 23 Recycled paper BROWNING-FERRIS INDUSTRIES WESTERN REGION RECEIVED October 11, 1994 OCT t9Q4 CLERKCONTRAOCOSTA CO' The Hon. Thomas Powers, Chairman and Members of the Board of Supervisors County of Contra Costa 651 Pine Street Martinez, California 94553 Re: Permanent Transfer Station/Keller Canyon Landfill Dear Chairman Powers and Members of the Board: On behalf of Browning-Ferris Industries, Inc. and its subsidiaries the Keller Canyon Landfill and BFIC, Inc. (collectively "BFI") , we are pleased to announce that effective on the commencement of operations of the Permanent Transfer Station, the combined rate for in-county waste deposited at the Permanent Transfer Station and disposed of at the Keller Canyon Landfill will be $39 per ton. This rate is exclusive of State and County fees, which will be added to the rate of $39 per ton to arrive at the gross gate rate. We hereby commit not to increase our proprietary rate for a period of eighteen (18) months. This rate will apply to all franchised municipal 'solid waste for which wastestream commitments have not been made to our facilities. BFI reserves the right to charge different rates to franchised haulers and/or jurisdictions that have entered into disposal contracts for use of the Permanent Transfer- Station and Keller Canyon Landfill. Very truly yo s, iennis P. Fenton Divisional Vice President DPF:dcr cc: All Cities and Sanitary Districts 9188 GLENOAKS BLVD., 3RD FLOOR • SUN VALLEY, CA 91352 • (818) 504-9282 • FAX: (818) 504-6490 �J COUNTY COUNSEL'S OFFICE CONTRA COSTA COUNTY MARTINEZ, CALIFORNIA RECEIVE® Date: October 11, 1994 To: Board of Supervisors OCT 1 I-1994 BOARD OF CLERKCONTRA COSTA S From: Victor J. Westman, County Counsel By: Lillian T. Fujii, Deputy Countyounsel Re: Keller Landfill and Transfer Station Franchise Agreements As you are aware, on September 13, 1994, the Board of Supervisors voted to approve franchise agreements for the Keller Canyon Landfill and the Acme Permanent Transfer Station, subject to certain changes made by the Board on that date, and directed the County Counsel to make the implementing and other non-substantive changes to the franchise agreements. That was done on September 22, 1994. After making a few other clerical and clarifying language changes, on October 9, 1994, this office received fully executed copies of franchise agreements. The executed copies are virtually the same as the copies that were before the Board on September 13, 1994. In accordance with the Board's September 13, 1994 directions and approval, the following changes were incorporated in the final agreements: 1. Acme Fill Corporation was added as a party to the Transfer Station Franchise. 2. The Transfer Station Franchise was changed to include a modified Alternative 2 for the self-haul rate; the self haul rate to be the average of charges of other transfer stations and landfills in Contra Costa County only. 3. The surcharge provisions were changed to implement the following Board actions with respect to fees and surcharges: a. As directed by the Board, a 25 % surcharge of the combined Transfer Station and Landfill propriety rate was inserted into the franchise agreements, with the costs of all County LUP and franchise agreement programs (including host community mitigation) and the household hazardous waste fee to be coupled into the surcharge amount, subject to 5 % of the surcharge to be deposited in a trust fund for closure and post-closure or related litigation Board of Supervisors October 11, 1994 Page 2 expenses, with provision that the Board will re-evaluate the household hazardous waste fee and 5 % component within six months to determine whether either should be modified, reduced or eliminated. b. The following currently existing (Mandated) fees are to be charged separately: At Keller: Eastin Fee ($1.34) and LEA and AB 939 ($1.15) as to direct hauls. At the Transfer Station: LEA and AB 939 ($1.15). c. Provisions were included expressly authorizing the Board to use the surcharge for host mitigation, as determined by the Board. d. A provision was added to the Transfer Station Franchise requiring the Transfer Station to deliver waste to Keller. 4. Other changes were made that were not directly discussed by the Board. These changes included those which were purely clerical or non-substantive, or otherwise clearly within the Board's direction to this office. The following are the more significant of the changes that fall within this category: a. Concerning insurance requirements, we eliminated the operators'option to avoid obtaining liability insurance if insurance could not be found at a reasonable price, and eliminated the operators' ability toexclude bodily injury and property damage due to toxics. b. We added provisions to both franchises clarifying that the County's rights to any damages, remedies, insurance coverage and indemnification under the franchise survives the termination of the franchise. c. Since the Board added Acme as a party to the Transfer Station Agreement, we added language to the Transfer Station Franchise stating that Acme's and BFIC, Ines obligations are joint and several. 5. Other changes were purely clerical, or clarified intent of existing language. LTF.12a:\frn1011.94 • ", CENTRAL CONTRA COSTA SOLID WASTE AUTHORITY 4737 Imhoff Place, Suite 4 JOHNB.CLAUSEN,Chair Martinez, California 94553 RECEIVED GENE WOLFE,Vice Chair GREGORYL.CARR,Director EVELYNMUNN,Director MARYLOU OLIVER,Director SEP SUSANMcNULTYRAINEY,Director ,September 26, 1994 FRED DAVIS,Interim Executive Director CLERK BOARD OF SUPERVISORS JOYCEE.MURPHY,SecretaryoltheAuthority CONTRA COSTA CO. (510)229-4881 Fax:(510)229-5182 Honorable Tom Powers, Chairperson Contra Costa County Board of Supervisors County Administration Building 651 Pine Street, 11th Floor Martinez, CA 94553 Reference: Request of County to join Central Contra Costa Solid Waste Authority Dear Chairperson Powers and Honorable Board Members: At its meeting of September 22, 1994,the Board of Directors of the Central Contra Costa Solid Waste Authority (CCCSWA) considered the request of your Board for County membership in this Authority. The Authority Board members present unanimously supported the County's request for membership and approved -in concept the County's, entrance into this organization pursuant to the general terms set forth below. Supervisor Smith and County staff member Louise Aiello provided some insight into the County's intentions regarding joining the CCCSWA. We welcomed Supervisor Smith's comments although he made it clear that his remarks could, of course, not bind the entire Board of Supervisors with regard to the terms and conditions under which'-the County would join the Authority. For that reason; we have outlined below the terms under which the Authority Board of Directors would welcome the entrance of the County as an equal member to the Authority. The following is a brief outline of those terms: • The County shall join as equal member with two (2) voting members. • County Board Authority members shall be supervisors. • The CCCSWA plans to issue the RFP or extend a franchise (in order to provide the ratepayers with the earliest potential date of rate reduction) at its next meeting to be held on October 13, 1994. The County's consideration of membership should bear this timeline in mind. rei , C - (I D rr�� IMember agencies: Central Contra Costa Sanitary District City of San Ramon City of Walnut Creek ® Recycled Paper Honorable Tom Powers, Chairperson Contra Costa County Board of Supervisors September 26, 1994 Page 2 • County must agree to delegate franchising authority to the CCCSWA for the unincorporated areas within the current Authority boundaries (within RFP Zones 1 and 2). • County must agree to participate in CCCSWA with an acknowledgment that the intention of the Authority is to pursue and contract for the lowest cost collection and disposal options for the designated service levels, without respect to the location of ultimate disposal of the solid waste collected from the jurisdiction (e.g., in-county or out-of-county).. • County must acknowledge that an Authority decision with regard to collection, franchising, and/or disposal may not be consistent with the County's historic position. Accordingly, the County must in good faith commit to working constructively within the Authority to implement that decision, rather than contest it through litigation or similar actions. In addition to the general terms set forth above, the Authority Board discussed the issue of a buy-in charge for the County, given the substantial sums spent by the current member agencies to fund the JPA's current operations, including the ongoing negotiations _ and the development of the RFP process. The Authority Board members'initial conclusion suggested that there should be no buy-in cost for the County with regard to the areas currently under the franchise of the Central Contra Costa Sanitary District, since contributions of members have been on a waste volume basis. However, to the.extent that the County joins the JPA to administer solid waste franchies for unincorporated areas not within the current CCCSD franchise areas, an appropriate buy-in fee would be calculated. The Authority assumes that there will be no such areas initially, and accordingly, no required buy-in charge. The Authority Board further indicated that the County should understand it is the Authority's intention to impose a liability/closure fee surcharge on the collection rates for both the incorporated and/or 'unincorporated areas within its current jurisdictional boundaries for costs and liabilities arising from the Acme lawsuit. The Authority's intent is that the waste shed areas should pay their proportional share of any liabilities or costs arising from the Acme Landfill, without regard to whether the County, CCCSD, or the Authority in fact issues the franchise in the future. t BRUEN & GORDON A PROFESSIONAL CORPORATION 1990 NORTH CALIFORNIA BOULEVARD SUITE 608 RECEIVED WALNUT CREEK,CALIFORNIA 94596 (510)295-3131 7 FAX(510)295-3132 WT October 3, 1994 CLi F(K BOARD OF SUPERVISORS :,'!:'?:nk COSTA CO. VIA FACSIMILE AND U.S. MAIL Chairman Tom Powers and Members of the Board of Supervisors Contra Costa County 651 Pine Street Martinez, CA 94553 Dear Chairman Powers and Members of the Board: I am responding to Rick Norris' letter to you dated September 26, 1994 . Mr. Norris suggests that I have provided you with false information regarding state and county fees charged at the Potrero Hills Landfill. In fact, my information was, and is, accurate. Specifically: 1. The Solano County Board of Supervisors has approved the first reading of two ordinances to lower Solano County landfill fees by $2.50 per ton. Based on information provided to us by Solano County staff (which is a matter of public record) the. Solano County Board of Supervisors adopted the staff's recommendations as contained in the two staff reports accompanying my letter to you of September 22 . The ordinances were approved following a public hearing and first reading, and are being scheduled for final adoption by the Solano County Board in October. Since Mr. Norris points out that the proposed tipping fee at the Garaventa transfer station in Pittsburg of $41.50 will not be affected by this action in Solano County, one can conclude that the $41.50- per-ton rate was determined in anticipation of this action by Solano County. Mr. Norris does not deny that the ordinance was solicited by the operators of Potrero Hills Landfill in order to enable them to compete for Contra Costa County waste. 2. Mr. Norris erroneously states that the Potrero Hills Landfill is paying $3.34 in state fees. State fees at all California landfills are only $1.34/ton. Mr. Norris refers to a $1. 00 charge for "closure/post closure" and a $1. 00 charge for "Public Resources Code §43040" as being "state fees" . In truth, the only state fee currently assessed at any landfill in the State of California is $1.34 per 0 41 c,� Chairman Tom Powers and Members of the Board October 3, 1994 Page 2 ton. All landfills are required by state law to set aside money from their proprietary rates for closure and post closure. However, these are not state fees--these funds are not paid to the State of California. Since the Board of Supervisors has attempted to compare state and county fees charged at the Altamont, Keller Canyon and Potrero Hills landfills (that is, fees collected at the gate but thereafter paid to the State of California or the County) , it is simply incorrect for Mr. Norris to suggest that Potrero Hills Landfill is paying $2.00 more per ton in "state fees" than Keller Canyon or the Altamont. 3. Potrero Hills Landfill, upon final adoption of the Solano County ordinances, will pay a total in state and county fees of $4.96 per ton. As stated in my letter of September 22 , after the Solano County Board of Supervisors adopts the two proposed ordinances this month, the total of Solano County and State fees assessed at the Potrero Hills Landfill will be as follows: Waste Mitigation Fee: $ . 15 per ton LEA Fee: .47 per ton Business License Tax: 3 . 00 per ton State Fee: 1. 34 per ton Total: $ 4 .96 per ton It is obvious why BFI's competitors have urged the Board of Supervisors to keep this County's landfill fees as high as possible. Waste Management and the operators of the Potrero Hills Landfill have suggested to you that it would be unlawful and/or inappropriate for this County to lower these County charges. Neither claim is true. However, to the extent they are really concerned that this County continue to be able to raise funds to pay for mitigation, it is abundantly obvious that if the Altamont and Potrero Hills landfills capture Contra Costa County's waste stream, there will be no funds available at all to Chairman Tom Powers and Members of the Board October 3, 1994 Page 3 mitigate traffic impacts and the like in Contra Costa County. Mr. Norris' groundless rhetoric about the spreading of "falsehoods" cannot conceal this fundamental truth. Very truly yours, Thomas M. Bruen TMB:dcr Enclosure cc: Mr. Rick Norris Mr. Val Alexeeff Honorable Tom Powers, Chairperson Contra Costa County Board of Supervisors September 26, 1994 Page 3 On behalf of the CCCSWA, I would like to commend the Board's agreement in concept that the ratepayers' best interest are served by the County joining with the other solid waste franchising entities as Authority members to address Central County waste challenges. Sincerely, John B. Clausen, President Central Contra Costa Solid Waste Authority cc: G. Carr J. Clausen E. Munn M. Oliver S. Rainey G. Wolfe D. Blubaugh R. Dolan H. Moniz F. Davis ADDENDUM TO H.1 and H.2 OCTOBER 11, 1994 As requested by the Board on October 4, 1994, the Director of the Growth Management and Economic Development Agency (GMEDA) presented five options for the Board to consider for the administration of the landfill mitigation fees. The Board agreed to conduct at the same time the hearing on the recommendation of the Contra Costa County Planning Commission on the request of the Keller Canyon Landfill Company (aplicant and owner) for approval of Amendment No. 1 to Land Use Permit 2020-89 which regulates the Keller Canyon Landfill. Amendment No. 1 proposes to delete or revise conditions of approval established by LUP 2020-89 pertaining to fees paid by the Landfill to Contra Costa County. These include fees for transportation and open space, and resource recovery. Some fees might be eliminated or reduced, and rate setting conditions could be modified. Area-or- origin provisions would be revised for consistency with recent federal court decisions. Val Alexeeff, Director, GMEDA, advised the Board that Amendment No. 1 does not propose any physical changes to the Landfill facility or site, or any changes to its operating requirements. He noted that none of the fee changes affect mitigation Y measures imposed by the Landfill's Environmental Impact Report, noting that a Notice of Exemption has been filed pursuant to the California Environmental Quality Act for the Bay Point/Pittsburg area. The Board discussed the options presented and the issues presented in the report of the Director of GMEDA and particularly on franchise agreements and tipping fees. There was discussion on the feasibility of amending Conditions Nos. 35.1 and 35.2 of the Keller Canyon Land Use Permit. Several Board members expressed an interest in attending the meeting of the Central Contra Costa Solid Waste Authority on October 13, 1994. All persons desiring to speak on this matter were heard. At the conclusion of the discussion, the Board DETERMINED to amend Conditions Nos. 35.1 and 35.2 of the Keller Canyon Land Use Permit No. 2020-89. i The vote was: Ayes: Supervisors Smith, Bishop, DeSaulnier, Powers Noes: Supervisor Torlakson Absent/Abstain: None The Board DESIGNATED Supervisors Smith and Bishop with Supervisor DeSaulnier as alternate to attend the October 13, 1994, meeting of the Central Contra Costa Solid Waste Authority. The vote was: Ayes: Supervisors Smith, Bishop, DeSaulnier, Torlakson, Powers Noes: None Absent/Abstain: None Further, the Board CONTINUED to October 18, 1994, the franchise agreements issue and DIRECTED County Counsel to advise the Board of Supervisors on the possibility of additional provisions to the franchise agreements. County Counsel, GMEDA, and Community Development staff were REQUESTED to discuss these issues with BFI and ACME representatives. Landfill Issues October 11, 1994, H.1 and H.2 Page 2 The vote was: Ayes: Supervisors Smith, DeSaulnier, Torlakson, Powers Noes: Supervisor Bishop Absent/Abstain: None The Board DIRECTED the County Administrator and County Counsel to meet with Deloitte Touche on the difference in the original and the present proprietary rate and related matters and provide a report to the Board of Supervisors. The vote was: Ayes: Supervisors Smith, DeSaulnier, Torlakson, Powers Noes: Supervisor Bishop Absent/Abstain: None Y Text from items H. l and H. 2 from October 11, .1994 Supervisor Powers : Then we' ll start those H items from last week and other weeks . Is there a report from staff? Val Alexeeff : Thank you. We have the items as you indicated as a carryover. The primary question that was to us were the options that had come up but as you can see there was a variety of other kind of housekeeping items that were related to the whole Keller Landfill issue that have been carried over. The use permit is still before the Board for decision in whatever form you wish to decide it . And then the franchise related issues and fees would naturally follow from whatever decision was made from the use permit . We tried to provide the options for you so that you had some different choices if you needed them on where to go from here . Clearly they can be modified with additional Board ideas and concepts . So, I think I' ll stop here and be prepared to answer any questions . Supervisor Powers : Any questions by members of the Board. Supervisor Bishop: Yes, just one question. I notice in the Board the agenda and then the H. 1 and both H. 2, the item under H. 1 it says designate two Board members to attend the October 13 , 1994 meeting. As you all may recall, it was determined at a prior meeting that we had an ad hoc committee that would go and meet with the Central County JPA and Supervisor Smith and I were designated as those individuals . The one time that we met with the Central County JPA that was at a LAFCO conference in Oxnard but I'm puzzled as to why that is included as an agenda item because I thought we had already designated Supervisor Smith and myself . Val Alexeeff : I apologize for appearing to ignore that previous action. What happened was that the Board last meeting directed staff to go work with the JPA, the JPA in turn asked for Board participation. I just wanted to make sure that everybody understood that it will be the Board that' ll be working, the ad hoc committee that would be working with the JPA and staff would provide support but not be the direct link since it' s a policy body as opposed to a staff body. Supervisor Bishop: Thank you. Supervisor Powers : Well, maybe we can dispose of that item and get on a roll . Unless there' s objection, the same two members will go ahead on that . Supervisor DeSaulnier: Had a question. Was I an alternate to that? Supervisor Bishop: Yes . Supervisor DeSaulnier: - So, if either of you can' t make another meeting, you' ll let me know so I can go. Okay. I couldn' t remember. Supervisor Bishop: I apologize, Mark, if I didn' t let you know but . . Supervisor DeSaulnier: I wasn' t being critical . I was just trying. . . Supervisor Bishop: I know and my recollection is I mentioned at the Board meeting that I was going to the LAFCO and I should have specifically notified you but I frankly think it would probably be in the best interest of all the parties even if you' re not participating as a voting member of the JPA that you might just want to sit in on those meetings . 1 Supervisor DeSaulnier: More meetings . Supervisor Bishop: Right . Supervisor DeSaulnier: More garbage . Supervisor Smith: More meetings about garbage . Supervisor DeSaulnier: Okay, a motion and a second I guess . Supervisor Smith: . . . . Supervisor Bishop: Second. Do we have a motion? Supervisor Powers : Okay, all in favor of the motion, signify by saying aye . 5-0 Vic Westman: Mr. Chair, could I perhaps indicate in connection with H. 1 that we've laid before you and copies on the table a memorandum just advising you that yesterday we received the fully executed agreements from ACME and Keller for the transfer station and the disposal site and noting that at your direction on + September 13th, we incorporated a number of provisions into those agreements and otherwise made a few technical and clerical changes in them and the copies of those agreements are now in the Clerk' s office . Supervisor Powers: The I had asked last week and after hearing BFI' s request for some minor changes to have the franchise on the agenda this week. I had always thought it was coming back particularly because of the integral part parts of the franchise that are interwoven in the land use permit and the franchise could never be final until, the Board acted on those land use permits and those have not been acted on yet by this Board, so I have some proposed changes for the franchise agreement . And I haven' t signed the franchise agreement but obviously the Board directs me to do so, I will do that but in the meantime I, the matter is on the agenda and I' d like to discuss it . So, before we do that, we do have people to speak and I' ll call them in the order that I received them. Unless you have some other order that you wish to speak. Frank and Lance. Supervisor DeSaulnier: Sounds like a comedy act . Supervisor Powers : So, it' s Frank Aiello and Lance Dow. Frank Aiello: Could I get a new microphone for next week? Supervisor Powers : New mike? Yeah, you can use mine here . Frank Aiello: Just a few points to bring up. I thought I wasn' t going to have to say anything and then I started reading some more documents and to and behold we find some more . I believe last week, Chairman Powers, you brought up the possibility there was a rate proposal a couple of years ago of 95 and I believe that rate proposal is exactly $90 . 26 . I have the document in front of me . What' s interesting to note is that the mitigation fees in that proposal were to go up, not eliminated, but to go up. It' s an interesting point . Two years later, we want to eliminate ' em. And two years ago, we wanted them to go up. I looked at the document from Deloitte and Touche again and I think it' s really important here a legally defensible rate that meets our legal obligation to establish a rate which is not confiscatory to the company but is fair to both the rate payer and the company. Remember within that rate is a 2 . 601 risk premium. They' re being paid that right now. And that amounts to $2 . 95 on every ton that goes in. Another thing to remember is, profits are not based on the total tonnages that are going into Keller. Profits are based on the actual tonnage going into Keller. It doesn' t matter how many tons . If we use Mr. Bruen' s 2 analysis, if he gets more tonnages he can lower the rate even further. But he' s accepting less tonnages and still lowering the rate. Doesn' t make sense. Environmental controls . Again I pointed last week that County staff had indicated that if these fees were to go, environmental controls were the first to go. I would like to point out to this Board the Vasco Road Landfill in Alameda County. Last year received 18 violations from the Integrated Waste Management Board from the current site manager at the Keller Canyon Landfill . The Vasco Road Landfill turned off the burn stack three times and was written up by the Bay Area Air Quality Control District for those violations . Those are serious violations . The Ox Mountain Landfill in Half Moon Bay had a sedimentation pond failure from the same construction company who constructed Keller Canyon Landfill and the Regional Water Quality Control Board requested an investigation by the State Attorney General' s office and also requested a 15 million dollar fine . Environmental Control and we want to lessen the fees? With the comments to Deloitte and Touche, the grand jury report, any reputable accounting consulting firm routinely prepares a set of work papers which supports its conclusions and recommendations . Such work papers would include spread sheets, calculations, documents and correspondence . With regards to rate regulation again, they' re still rate regulated and I support any type of a full and complete audit . I think that would reveal the full truth. And I think the final thing I' d like to mention to you is there is a current case pending against BFI and that case is slated for February 28, 1995 but I think it' s important that you know what BFI' s defense is in this case . It was first, we' re not guilty, we' re not guilty we didn' t do anything. Second affirmative defense, plaintiffs who are the homeowners voluntarily assumed the risk of any harm resulting from the acts alleged in the complaint and therefore, may not recover for that harm. I think that' s pretty interesting since the homeowners were there first . But they voluntarily assumed the risk. Third affirmative defense . Plaintiffs, homeowners own negligent conduct contributed to any harm suffered as alleged in the complaint and BFI is for that reason not liable . Good business people . Those are the good neighbors . Now the homeowners are negligent . Fourth affirmative defense, homeowners' own negligence contributed to any harm as alleged in the complaint and any damage awarded shall be diminished in proportion to plaintiffs' own contributory negligence . Does that sound like a company who is innocent? And here' s something that I think the County should be very worried about . The negligence of third parties for which BFI is not responsible intervened upon and superseded any actions by BFI and thereby caused the harm alleged in the complaint for which BFI is not liable . Now who would be the third party? County sound familiar. County LEA. And in closing, the 18th affirmative defense was the plaintiffs/homeowners consented to any trespass on. . .which occurred and consequently, any trespass or negligence which occurred was privileged. They were privileged to come on our property and destroy it . That' s a good neighbor. I respectfully request that not only do these fees not be decreased but that we go back and collect the CPI' s that are due to us by contract for the past two years and that a full and entire audit be looked into and that a grand jury report be looked into as the possibility of refund that is due Contra Costa citizens . Citizens United does not get a penny from this . We do not get a penny from Pittsburg residents . We' re not in this for Pittsburg residents . We don' t get a penny but the rest of Contra Costa County does . San Ramon, every other district does . We don' t . So, to say that we' re in this to close Keller Canyon is absurd. To say that we' re in this to do what' s right, is correct . Thank you. Supervisor Powers : Thank you Mr. Aiello. Lance Dow followed by Tom Bruen. Lance Dow: Good afternoon Board. What is clear for some time to 3 this Board and this County and the cities here is that we had the option of sending our waste to numerous environmentally sound disposal facilities at substantial savings to our citizens, but yet we haven' t done it . At least two of these locations now are at about $33 a ton I believe if you direct haul your waste there . Instead our citizens are now still paying I believe around $78 a ton and by now we know that not a whole lot of relativity is assigned to these fees. You've lowered the fees . From my calculations, you've slashed the fees almost by 35 or 40 percent . And it didn' t get you any lower rates . You've had promises of lower rates but you didn' t get your lower rates . I don' t even think it got you a guarantee . Maybe you've gotten a guarantee since Mr. Powers asked for a guarantee from BFI last week, but I haven' t heard of any but you haven' t gotten any guaranteed lower rates yet they' re asking you again, lower your fees and we' ll lower ours . Lower your fees and we' ll lower ours . Now, they' re saying not only are lower fees not good enough but in this whole mix, we want you to mess with the land use permit . We don' t want to operate under our own (old) land use permit, the land use permit that some of you people fought very hard to get certain things in there and had big battles, and big political battles . And we had public discussions about . No, now they even want you to get rid of those protections . And some of these Board members appear to me that they've already agreed to this in principle . But let' s be very clear what is happening here . Let' s be sure of what is at stake, let' s be aware of who is asking us to do these things . This is from this morning' s paper. This morning' s paper in the Contra Costa Times Business section. This is the fastest growing business we have said Phillip Angle and aid to William D. Ruckelhouse, Browning Ferris Chairman, and this is about recycling and the money you can make off the curbside recycling and the margins are in the mid-teens, which produces respectable profits, about fifteen percent . Later on in the article, big trash hauling companies like Browning Ferris added recycling programs to their bids for collection although executives grumbled that it is hard to make money with curbside programs because of the cost of collection and sorting. Well, which is the truth. I mean which one is the truth. Either you make money, either you' re making money or you' re not making money. And this is the same situation we' re in here right now today. Either they' re making, money or they' re not making money. We don' t know the truth and I don' t understand how until you people, you five know the truth either through an audit or some other responsible fiduciary method, until you know the truth, how can you mess with that land use permit which are the protections that were put in there for your citizens . How can you do that in good conscience? I don' t think you can. I really don' t . Please deny the request until at least this is investigated and looked into and you' re standing on firm ground. Miss Bishop has used the term quicksand. I've heard Mr. DeSaulnier use the word quagmire. It doesn' t sound like you guys are real sure about what' s going on here and until you are, until you are, then deny the request, take your time. You have plenty of options to send your trash someplace else at lower rates so I ask you to deny the applicant' s request . Thank you. Supervisor Powers : Thank you for your testimony. Tom Bruen is next . Tom Bruen: Thank you, Mr. Chairman, members of the Board. I simply wanted to state on the record that I delivered to your staff today a letter addressed to this Board confirming that BFI is committing for an eighteen month period upon the commencement of operations of the permanent transfer station, to a gate rate of $39 per ton net of taxes . That letter is signed by Mr. Dennis Fenton who is a divisional vice-president of BFI who is here in the audience today and I just wanted to confirm on the record that the Board had received that letter. Thank you. Supervisor Powers : Thank you very much. We appreciate very much 4 that letter. Does staff have a copy of that and the Clerk has a copy as well . Okay. The matters are before us and let me ask if there any questions of members of the Board. Supervisor Bishop: I do have a clarification. I have H. 1 in front of me . The document provided and I believe was it your understanding that we did not vote on the franchise agreements Supervisor Powers . Because we did. Clearly, I think your statement before we hear from speakers, was that because the rates, the agreement itself, somehow we didn' t vote on the agreement and my recollection as I go back over these notes, that recollection is confirmed that we on page 15 and 16 of the text of that hearing, Supervisor Smith indicates that we approve the franchises and then your statement after some other comments are okay, then we need to vote on the franchise agreement and my recollection is that I abstained simply because I didn' t agree on the rates that were within that agreement because I did not think they were low enough so and I very clearly say that the reason I oppose the motion was because I oppose the rates that were included within that motion so I think that the agreement that we had there was no discussion here about bringing the franchise agreement back. It was a franchise agreement that in various permutations that this Board had seen for approximately three months . So, as far as wordsmithing, or even going over the conditions, I think we were really at least I was really clear as to what I was not voting for and I would assume that the rest of the Board was very clear about what it was voting for. I well, anyway, so I understood last week too that there were technical amendments and that I understand now that those technical amendments or just textural, textural, can' t get the word out, corrections were made and that it has been executed according to our vote on that day. With respect to what is before us now. One of the things we are talking about the little JPA I think at some juncture maybe we' re going to get into this at H. 2 but I think it appropriate the 13th on Thursday of this week, the little JPA or the Central County JPA will be meeting and I think perhaps some background for Jeff and I going there, we need to go there with the full Board understanding, what my understanding is of what the situation is that we will walk into. The letter from Mr. Claussen is in our packet that talks about if we are going to join the JPA, what the conditions of our joining are and one of those conditions is that we relinquish to the Central County JPA the right to franchise and as you know, the City of San Ramon has determined to direct its waste stream to Altamont consistent with their franchising agreement with Waste Management . And I certainly it should come as no surprise to us that they took that move. Not only Joe Tanner with the City of Pleasant Hill but Don Blubaugh with Walnut Creek and Herb Moniz with the City of San Ramon have urged us as our part to get our fees down. And so it comes as no surprise that the City of San Ramon has directed their solid waste to Altamont . My understanding as well, I think the Central County JPA, when Jeff and I get there on Thursday, is I don' t think the word is quagmire or quicksand is meant to imply that we don' t understand what we' re you know, that we' re not real sure about what' s going down. I think what- it implies is the conditions and circumstances continue to change, that we work out one problematic area and then something else comes up in its place . I think the perception of a quagmire comes as a result that we think we've resolved certain issues and then we have some questions about those issues that are raised at some point later. There' s never any certainty about where we are going but I do know that the Central County JPA is going to be looking on the 13th to a full participating County and I think it would behoove us to know exactly what the uncertainties are going to we' re going to be met with at that meeting on Thursday. Supervisor Powers : Well, okay, the do you have any comments or questions? Supervisor Torlakson: A comment which is not to go on at length 5 a repeat of what I've stated in the last couple of weeks as I've looked at this land use permit change issue . I felt more and more uncomfortable in terms of the kinds of protections that were originally intended by having the $2 earmarked for the open space and the $2 earmarked for mitigation for transportation concerns . And checking further during the week with Val Alexeeff, my understanding would be that if we change it in some way, it could be challenged and I am more comfortable leaving it as it is in the plan. It could be challenged even if BFI agreed to it . Some one else could challenge those amounts, the statute for BFI to challenge the existing land use permit is over and it is something they accepted at the time . It' s something that we've made a commitment through the environmental process whether it' s exactly dovetailing with CEQA in terms of the environmental documents, it was certainly a part of the discussion of the environmental impacts of the project in a neighborhood city environment in the open space near that environment . So, I'm comfortable with it the way it is and would so move to keep the land use permit in place not to follow the Planning Commission' s recommendation to change that language but to leave the $2 per ton for open space and $2 per ton for transportation as is in the permit . Supervisor Powers : Is there a second to that motion? Okay, it hearing no second, it dies for lack of second. The situation with the garbage disposal and franchising is clearly one that has been one of the most complex and difficult ones that I think we've dealt with as a Board and I'd sure say that for myself at least and the matters in which the manner in which we go about doing this has clearly appeared to be difficult and that' s because it is I have seen you know a lot of issues come before us and one of the two issues is the franchise, the rates, and the land use permit all of which are integral parts of one another and all of which have not been acted on to date and I'm happy because every time I look at any one of these items, I find more things to talk about and more concerns on behalf of the public . I' d like to present to you some things I've given to you in writing and I gave to County Counsel earlier today and I think one of them they' re contained or summarized in the first few pages of this memo that I've sent or given to you. First, it is really surprising to me to find that in the franchise agreement, Keller is allowed to charge a lower surcharge for out of county waste than it is for waste within a 'county and I think clearly that has to be corrected. The also the draft would allow Keller to set the surcharge for more than 20 years by entering into a contract with another company. This would leave the County without the ability in the future if it so chose to do new solid waste programs except through its slim General Fund. The third item is the draft would allow ACME/Keller to control the amount of fees paid to the County by agreeing with other BFI companies to be artificially low and for those reasons there needs to be a floor on the fees . Moreover, one of the reasons that we' re in this complex situation is because of constitutional decisions that have been made that allows garbage to flow back and forth between counties and frankly, that' s a good idea for competition and that' s why we' re dealing with lower rates but at the same time, in Congress there' s a bill pending that would prevent that interchange and this franchise requires us to allow that interchange and not allow us to regulate the kind of wastes if the law changes that comes in and out of our County which we did in the first place . We were concerned about what waste comes in the county and we should if the law changes, retain that ability. Moreover, it' s apparent to me even after seeing the letter from BFI that Keller/ACME does not require in the franchise that the benefits of lower fees be passed onto the public . The rate at 39 is not set . They believe they allow the rate to go higher and , in some cases they may charge a different amount and that would prevent us from passing on the savings to other people in this County for lower rates and so I think we have to assure that the $39 rate at Keller/ACME is locked in. Finally, and this is 6 something that Jeff originally brought up. If there is a windfall profit, it appears that the only way we can collect that is through the rate-setting process and so I've suggested that the possible 17 million dollar windfall that and I'm not saying it exists, I'm just saying that a drop from $66 a ton to 39 or 27 dollars per ton over the period of time that it' s been collected may mean that we need to go back and look at that and so those provisions are contained in the requested changes to the franchise agreement . Likewise, I've included some discussion about some of the land use permit provisions . Now, to some extent this is a little confusing because some of the I've tried to number it as best as possible to correspond with the numbers in the explanation. The some other additional language would require that the closure and litigation fund, trust fund, be set up so that that expense is met and other wise provides for the elimination of that surcharge but only if those litigation expenses and closure is eliminated. Likewise substituting the Household Hazardous Waste Program there' s a required finding for that before that' s eliminated and I'm sorry to this is extremely complicated. Had a very difficult time pulling it together so that it' s understandable and clear and I' d be happy to answer any questions . Supervisor Bishop: I have a question. The date on the front is October 10th. This is October the 11th. This was just provided to me at the beginning actually at about 2 : 10 . Who prepared this . This is a supplement . You personally prepared this . Supervisor Powers : I did. Yes . I didn' t finish it until yesterday or I would have given it to you then. Supervisor Bishop: I had two and a half hours during lunch with which I could have gone over this, gone over and also it appears that we I assume that we will reopen the public hearing for comments and response to this report . Supervisor Powers : Well, this is my recommendation. We can do that if you wish. If anybody wants to speak on it . Supervisor Bishop: This would seem to replace a contract that we have entered into already. We have a franchise agreement that is fully executed. Supervisor Powers : No, it' s not . I didn' t sign it . Supervisor Bishop: Well, we have voted to approve the franchise agreement and one of the parties, I was under the impression that both of the parties had executed the agreement and I see Vic Westman nodding his head that both parties have executed the agreement . Vic Westman: Well, let me play lawyer. Supervisor Bishop: I can play too, can I play too? Vic Westman: Yeah, the Board of Supervisors approved the agreement . It' s really ministerial and of no significant legal consequence who signs agreements . The Board I looked at the minutes as contained in Val' s package for September 13th. They indicate that the franchises were approved. When this question was brought to my attention this morning, I checked and I noticed that last week the Board approved the minutes for September which included in the minutes that the Board had approved the two franchise agreements . Your approval on the 13th indicated that the agreements were approved subject to placing into them those changes you had approved at that meeting and which we thereafter then placed in the agreement and made a few other clerical changes, spelling and a few other technical changes and they've now been signed. Absent something else coming to my attention, I believe the agreements have been approved by both parties . And 7 a� the actual execution, I'm sorry, on the part of the Chair or whoever else signs it for the County is simply a ministerial ah I don' t want to say an act that is not conditioned precedent to the agreement being effective assuming the Board has approved them which to me I had the impression on the 13th that the Board had approved them. Supervisor Powers : Well, you know, this situation has continued to come back and forth to this County. An agreement as important as a franchise agreement that will last 20 years or more is something that I sure contemplated would come back to this Board. When I put it on the agenda last week, nobody complained, as a matter of fact, subsequent to the 13th of September BFI and members of this Board were still arguing provisions in the agreement so surely this Board has some discretion to if we have discretion to argue the issue, if BFI has discretion to want to make continued changes particularly in their rates, surcharge, I sure don' t consider that final and clearly if the Board directs me to sign these things as is, I will do so but it surely was not my understanding Vic, so you and I have a total misunderstanding of the way the facts are and the circumstances and I guess what BFI/ACME would sue us again then if . . . . Vic Westman: They can but you know in defense, I want to point out that on the day of that meeting late in the afternoon, we prepared a summary of the action as perceived it on that day and faxed it to all the Supervisors' offices and so on and did not receive any comments to the contrary. Supervisor Powers : Is that that those minutes that we always read over in detail . Vic Westman: I don' t know. No, this was a summary prepared by our office, prepared late in the afternoon of that day and faxed to each Supervisor' s office together and provided to the Clerk of the Board and was entered as a summary for that day and then you ratified all of that when you approved the minutes on October 4th I believe and certainly no one on the staff brought to my attention any concern on their part that you did not approve the franchise agreements on that day. Supervisor Smith: Maybe I can interject and play lawyer also. Is that okay. If we presume that the contracts are entered into and valid by both parties, I' ll call your attention to two clauses that I think are important that allow the Board to reconsider the fees and surcharges . One is on page 22 of the Keller landfill and the other is a similar clause on page 20 of the ACME or the transfer station agreement . Both say that within or approximately six months from the date of this agreement, the Board intends to reconsider and reevaluate the Household Hazardous Waste levels of funding, one or more programs that may be modified and a surcharge adjustment . So, certainly if the agreement contract takes effect as of yesterday, we are within the 6 months to reconsider it if we so choose . It' s appropriately before us on the agenda so I think it certainly could be considered. Supervisor DeSaulnier: Can I play confused non-lawyer. Congratulations for all the lawyers in the audience for making this issue even more confusing but that' s why you went to law school I presume. Jeff, what you' re saying is what we are allowed to discuss is just those fees, not all the details that Supervisor Powers has put in front of us . Supervisor Smith: Correct . Supervisor Bishop: If I could interject here. I think we've had advice from County Counsel and I've not always been on record as having adhered to that advice but I think it' s very clear being a transactional attorney, this is a transaction that was a 8 contract, it was not, it was very specific in its terms with respect to the fee setting, any fee adjustments that would be to the detriment to one of the parties of the contract would have to have all parties to the contract, I believe, in agreement to that . I think there was a you know Household Hazardous Waste are very precise in our ability to determine those amounts . There' s unquestionably we entered into a contract and the question was asked is BFI going to sue us if we now decide that this is not a contract . You know, I don' t have a crystal ball but I can tell you if I were an attorney representing BFI, I would certainly sue the County. I think they have a very good basis to sue the County and I think this is one lawsuit that I wouldn' t want to get into. I am not a litigator but I' ll tell you this is one I wouldn' t touch. We approved the franchise agreements or you four guys approved the franchise agreements including the fees and I did not go along with that because the fees were not low enough and if I thought there was an ability to lower the fees, I might have gone along with it . I knew there was an ability to lower the fees but I still did not go along with it but I think unquestionably we have an agreement here . If one of the parties at this juncture determines that we want out of it, we want to rework the deal, I think we' re making a real mistake in that regard. Supervisor Torlakson: Mr. Chairman, I've read these for the first time also just now and I agree with a number of the ones . I am still evaluating some of the others but some of them just make good government sense . I mean the idea that the laws may change and we may not have caught that in the boilerplate language between the parties, some of those ideas look like ones that both parties would want to agree to and some process for discussing this with BFI and looking at the ones they might agree to mutually might be able to reveal some way to progress on the situation. I think the issue of the windfall profit question may be one that they might object to having language in there about that but that is a serious concern. It' s one that we should raise and how we best do that is something that I haven' t figured out yet from the discussion so far today but I think it' s appropriate that you've raised these points and we need to find someway to look at this . At any time a franchise agreement or contract between parties can be changed by mutual agreement and there are other things that are happening out there that affect what we' re doing. I frankly had thought we were going to be looking at the land use permit issues in conjunction with some of the franchise issues as well to get a sense of how they all fit together. I hope we' ll get back into that part of the discussion today as well in terms of how we deal with the new formulas we have allocated but as Supervisor Smith said there are some review points coming up in a few months and some of the considerations in that review are whether we continue some of the fees or not and one of our biggest concerns so far has been that we are trying to execute these kinds of agreements at the same time we' re being sued by ACME over being an operator as they claim we are and operator of the old ACME Fill Solid Waste facility and that' s creating hundreds of thousands of dollars, well over a half million dollars of legal expenses to the County and a jeopardy of millions of dollars to our General Fund and that' s why we have that $1 . 95 written into this agreement and I think there' s a motivation, there should be a motivation on the part of all parties to get together and try to work out some of this language and see if there' s a way that we can mutually agree on a number of these if not all of them. Supervisor Bishop: What I do believe is before us today are options for administration of the landfill mitigation fees . We had a motion to keep it in the land use permit and that failed for lack of a second. I would suggest that we turn to some of the options that were prepared by the staff . Option 1, 2, 3 and 4 . I think Option 1, we did not get a second on that . And also, Option No. 2, modify the land use permit conditions of approval 9 by saying that we aren' t going to do the by land use permit I think that one is as a practical matter eliminated. Which brings me to option 3 , which frankly, is the one that I think is . supportable . It is modify the land use permit conditions of approval so that the discretion over the transportation and open space, ag mitigations are moved into the franchise agreements with alternate amounts to be set on an annual of bi-annual basis for budget purposes . In addition to that option, one of the things that I would put in there, I would like to see put in there, is that we start with an initial amount for mitigation of $3 and that additionally, we say that that three dollars will be a floor for mitigation fees with the right reserved to increase those amounts based upon the annual or bi-annual budget review. I believe that addresses mitigation. As I said the last time, one of my concerns, one of my concerns, I just lost my train of thought . Um. .but I think that does address your concern Supervisor Torlakson about mitigation. When we went over what was actually expended in the area of open space mitigation, we found that a lot of those monies were going into reserves and were not really host mitigation. My view is again that we had a good environmental review and then in that environmental review we imposed conditions and most of the conditions mitigating impacts have already been performed in the construction of the landfill and the transfer station or in the landfill, so I look at the $3 as nominally Supervisor Torlakson meeting your concern about mitigation. I'm still sure that your concern is there is no exactness or enforceability there, that it could be changed on any given day by three votes on the Board of Supervisors but I think there' s enough language in the record that your fellow supervisors support mitigation and it' s just that we do not support it in the land use permit . That it is in my view better handled as we set it up on September 13th to be covered by that surcharge, that it will be built into the surcharge with the understanding that the Household Hazardous Waste that went from what .41 up to $2 . 12 before we came to the Board and then additionally with some reduction of some other fees being incorporated into that surcharge . But that still gets to your mitigation fee . Supervisor Powers : Before we go into that I did have some questions on the previous subject with the land use permit issues that were before the Planning Commission that are integral parts of what ultimately will happen in the Franchise Agreement . In other words, the issue of rate regulation and the Vic Westman: First could I ask a procedural question. Have you opened the hearing on H. 2 . I wasn' t sure . You were hearing and discussing H. 1 . Have we gotten. . Supervisor Powers : Well, I called for all three of the issues that were there I guess and. . . Vic Westman: Okay, because H. 2 was a continued formal hearing. I just wanted to be sure you. .okay. Supervisor Powers : Correct . Okay. The integral nature of the Franchise Agreement and the land use permit changes what if we were not to act on the land use permit all of the land use permit issues or voted the changes down, that would be inconsistent with the franchise would it not? Vic Westman: Well, there would be some, you mean literal text yes but there is a construction clause in the land use permit that says that conflicting provisions of the franchise agreement will prevail . The only. . . Supervisor Powers : Okay, let me jump back then to this issue of reconsideration. If the issues contained in the page 22 section I forget which one that talks about reconsideration, we reconsidered those issues that are listed there, can that be done 10 by a motion to reconsider today? Vic Westman: Reconsider what Tom? I'm sorry I . . . Supervisor Powers : Well, the items that are listed. . Supervisor Smith: It' s just the fees and the surcharge . Supervisor Powers : That' s correct . Lillian Fujii : The Household Hazardous Waste Fees and the five percent . The Household Hazardous Waste Fee and the five percent . Supervisor Powers : Pardon. Yeah. So, to the extent that we could discuss the proposed changes assuming you: re right and I don' t agree that you' re right because I don' t believe the franchise agreement has been finalized and that was the intention of the Board not to finalize such an important document, what items that I suggested here could be argued under the reconsideration? I mean I' ll try to do it as clean as possible to comply with what you believe our intention was which I differ with but which items I've listed here like 1, 2, 3 , 4 , 5, 6 about nine items in the franchise agreement that could be that I had proposed to make changes . One has to do I' ll go through them. They' re pages 6 through 9 . Vic Westman: Well, the franchise agreements were approved on the 13th and I and they've now been signed by the other party and I at least from what I understand from the record of the proceedings, we now have franchise agreements . They can' t be unilaterally changed. The Board has certain discretion under them and under the land use permit to do certain items, Supervisor, and then you have certain discretion as to the fees that are involved in both as to what their amounts will be and then you have before you the question of whether you' re going to change the LUP in any respect which may or may not give you more discretion concerning certain fees or activities . Supervisor Powers : Okay, let me approach this from a little bit different direction. When I put this matter on the agenda last week, you had indicated to Mr. Bruen, you haven' t accepted the franchise yet have you and you turned to him and he came up and at the same we discussed putting this matter back on, the franchise back on the agenda. Why didn' t anybody say anything. I go to all this work in the meantime . Vic Westman: I'm sorry I didn' t understand that that was your intent Supervisor and I apologize I did not understand that . Supervisor Powers : Well, I mean why would I put the franchise back on the agreement, just to give it a kiss . I mean frankly, I don' t think the franchise conforms to what the Board' s direction was, that' s my opinion, and I surely. Vic Westman: Supervisor, you know I can only say as I said earlier, we did send out a summary on the day iri question. We provided it not only to you, but to Mr. Alexeeff, to Mr. Zahn, to the County Administrator, none of them indicated to us that where I think three places in that summary, it states the franchises were approved. If I can understand the busyness of the Board but for the involved staff, this is a very important item for them and if they had disagreed with that summary in the three weeks since then, they certainly have not brought it to my attention. Supervisor Powers : Well, they did bring it to our attention by putting the matter back on the agenda on two occasions after the 13th. Vic Westman: No, what they put back on the agenda as I understood it . . . 11 Supervisor Powers : They put the fees back on the agenda. Vic Westman: Yeah, the fees, there was a concern that staff did not understand completely your direction as to what the fees should be with the adoption of the franchise agreements and that' s what I understood. Supervisor Powers : Well, the argument was for lower fees on one part and higher on the other part, so I mean why didn' t somebody say something then? I mean I don' t quite understand how you can have your cake and eat it too. I mean somebody has put the item back on the agenda to argue for different kinds of fees, not within the parameters of the franchise agreement but more or less and both occasions that was raised. Last week I raised the fact I wanted the franchise on. I mean I didn' t want to kiss it . I mean I wanted to make sure when I signed it it was what the Board intended it to be . And somehow, frankly, I don' t think the Board intended to have a provision in here that allows counties of waste outside of this county to be charged a lower fee . I don' t think the Board intended to allow BFI' s companies to get away with what may be an overpayment, and frankly, I thought all that was coming back. Now, maybe I'm insane but we were arguing similar issues for the last three weeks . Vic Westman: Well, could I perhaps respond. I also, you know I have to be guided by the record and I. realize that you may not always see the minutes but you did approve the minutes on October 4 or 5 which also ratified the action of the 13th, indicating that you had approved these agreements . Supervisor Powers : The agreements never came back to us did they? I mean I haven' t even seen the final agreement until it just came to me today. Vic Westman: Yeah, but the changes in the agreements are very slight in relation to the totality of the agreements . And it is very regularly the practice in the County to approve agreements and give staff some discretion within parameters to work on it . I think the only changes we made in the agreements from the draft before you were to put in the changes that you' d asked for. The few other changes we made at our discretion are purely for the benefit of the County. Such as the insurance provision. changing those so that we took out certain limitations that were in the draft before you so that they no longer have limitations . You have the record though. You' re aware of the record but from what I see of the record and what we presented and the fact that we received no comments that were contrary to the summary we prepared and sent out both to you and to involved staff and no one raised a question about the agreements being approved, we proceeded in that manner. Supervisor DeSaulnier: If I could maybe make a suggestion so we get off this . My understanding that what we were doing today was deciding where the $8 . 17 was going to be spent and that the concerns that Chair Powers has maybe we can get a report back from County Counsel if there' s any opportunity to address the concerns he' s given us today given the existence of the agreements as you understand them Mr. Westman. I don' t know if there is because you can' t unilaterally go back and talk about some kind of provisions and maybe if we are in a franchise agreement then BFI will help us with it but it would be nice if we could start talking about as Supervisor Bishop has brought up exactly how we are going to split up these monies and how we' re going to address the mitigation issues . Supervisor Powers : Okay. Supervisor Bishop: I would agree with you 100 percent . I think what we need to do is look at since it apparently is determined that it is not going to be part of the land use permit . It' s 12 going to be part of that $8 . 17 . That was my impression. We've got the $1 . 95 that addresses the litigation cost and is going would go into a trust fund. The $2 . 12 on the Hazardous Waste we perhaps will get the cities to work with us on that but within the $8 . 17 I think we really need to determine how that' s going to be allocated and again I think the number one priority in that 8 . 17 is mitigation. I would agree with you Supervisor DeSaulnier, I think we have a contract here but I think what we really need to do is to work cooperatively on some of these areas that Supervisor Powers has worked with and sit down with BFI or ACME or whoever and address some of the concerns raised therein. I think those concerns some of them are legitimate concerns . I have you know the 17 million dollar windfall profit I am not so sure that that' s a very accurate guess . I have a distinct feeling contrary to what I think it was Mr. Aiello was suggesting how do we know and can we really rely on this . We need facts . My facts come from something a document called an annual report and I also understand that a company or corporation can have profits in one segment and losses in another industry segment and they will offset one another and generally you will have profits in the company. Yet you may have a loss sector of your corporation. But I think there' s really a need to sit down and address some of the issues that Supervisor Powers has raised but we do that in a collaborative environment, recognizing that we are in a contractual relationship with BFI . Supervisor Powers : Okay. Just a second. I don' t mind doing this . I know that this is a complicated area and I would consider moving to put it over, directing me not to sign it until next week, having an opportunity for staff to look more into this matter and frankly, I would rather give the public the benefit of the doubt on the BFI refunds than BFI, and that' s my own personal opinion, and I think that' s a- very important issue that Jeff raised and if we waive our right to go back and collect that even if it' s $500, 000 we' re making a big mistake on behalf of the public . So, Jeff . . . Supervisor Smith: Well, I was going to make a suggestion while I'm thinking about what you suggested, I was going to make a suggestion about modification to the LUP, that maybe we can go ahead with the Land Use Permit has a condition 11 . 10 which in part states that there will be no need to amend the conditions of approval if there' s a conflict between the franchise agreement and the conditions . And that, I Supervisor Torlakson: What page is that on? Supervisor Smith: That' s on page 10 and 11 of the Land Use Permit . I can pass it down her. In that sense I think most of Supervisor Powers : Which one? The . . . Supervisor Smith: The Land Use Permit for Keller. In that sense, I think most of the proposed amendments that are here before us coming from the Planning Commission really are unnecessary except for maybe two minor changes and those are on conditions 35 . 1 and 35 .2 which deal with the transportation fee and the open space fee. And really the only minor change that I think is necessary is to rather than having the word shall collect or shall pay, we should have a permissive language so it should say something to the effect of the landfill operator may pay to the County a transportation impact fee of $2 per ton as levied by the Board of Supervisors and then have the same or similar language in condition 35 . 2 specifying that it may pay that fee up to $2 as specified by the Board of Supervisors . That would allow discretion for us to change, for the Board to change the allocations in such a way as to meet the needs in the local community but still make it clear that those fees will be collected. So, that might be a suggestion to start with. 13 Supervisor Powers : Okay, is that a motion? Supervisor Smith: Okay, I' ll make that as a motion just to be clear again I'm only going to read one paragraph. And similar language should be changed in the other paragraph. The Landfill operator may pay to the County of Contra Costa a transportation impact fee of $2 per ton for waste received at the landfill to mitigate the general impacts of the landfill generating traffic on County roads. Supervisor Bishop: Is that may pay up to $2? Supervisor Smith: Right . And I guess we should add another sentence just to be clear. The specific amount of the fee shall be determined by resolution of the Board of Supervisors . Supervisor Powers : Okay, is there a second to that? Supervisor DeSaulnier: Second. Supervisor Powers : Okay. Now I guess I Supervisor DeSaulnier: I have a question, I'm sorry. I see Mr. my favorite body language staff person moving around. Would you like to express your opinion on the motion. Val Alexeeff : No. Everything' s fine . No, I'm just following it . Supervisor DeSaulnier: It' s okay? Supervisor Bishop: I have a Supervisor Torlakson: Well, everything' s not fine but that' s your opinion. Supervisor DeSaulnier: It' s nice to know someone in this room thinks everything is fine . Supervisor Bishop: I have a question. Is that really saying anything. Tom, do you feel like that' s really. Supervisor Torlakson I think it erodes and undermines the intent of protecting the community in those mitigation- areas so from changing to shall which is a mandate basically to continue to earmark the monies for the community mitigation, it puts it into a very discretionary almost whimsical dimension where the Board could change that as we would review the franchise agreement it would dictate that amount going up or down. Supervisor Powers : Right . Supervisor Bishop: You know, I think though one thing it does do it gives an extra level of officialdom shall we say. It really says there is a the Board recognizes a need to address mitigation through fees and then that amount can be determined by resolution. I think it gives it another level there of validity if that' s the word I'm looking for. Supervisor DeSaulnier: I think what Jeff' s attempting to do is to join the LUP with what we the motion we made of however long ago so that we would review it in 6 months or bi-annually. that' s your intention isn' t it just to tie the two together? Supervisor Smith: Right . Yes . I'm trying to link the two and make it clear that there will be fees for transportation. There will be fees for open space and agricultural preservation. They maybe up to $2 and the Board has the discretion to change them by a resolution in order to impose them. But it seems to me in previous discussions we had at least considered the possibility of using the host or the $6 mitigations in less of a categorical 14 na or way so that there is more leeway to use the money not necessarily as it was partitioned 2 , 2 and 2 . It could be partitioned in a different way. Supervisor Bishop: I have one more question of County Counsel . excuse me Tom before you. My recollection and I can David Tam is sitting out there and he can, my recollection is that he came to me after initially these mitigation fees were adopted and he asked if I wanted to be the plaintiff . By reinstituting that kind of language, do you start the clock ticking again as to people that can come in and challenge those fees on the basis of no nexus between the fees and the landfill mitigation I mean do you start the clock ticking again. Vic Westman: Well, if you did remember that would simply then restore the . . .provision of $2 and $2 . I think everything that Supervisor Smith is proposing gives some discretion on the part of the Board to determine whether it should be 0 or above the $2 . . .but to challenge the land use permit . . . and prevail on that point . . . . . . . . .would go back to court . The full condition would not disappear and also I think when it was considered a few weeks ago, there was some concern about removing those two conditions completely and I think I pointed out at that time that that would then leave us that would remove any statute of limitations defense and you may want to consider assuming you want to change those two conditions at all, making them discretionary so that you would still have the ability to levy them though be it at your discretion and if someone did challenge that decision, the worst thing that could happen is we'd be back. . . Supervisor Powers : Okay. Supervisor Bishop: Thank you. Tom Bruen: I was just going to say if it' s of any comfort that on behalf of BFI, we would support the proposed amendment . Supervisor DeSaulnier: Well, maybe we should rethink. Supervisor Bishop: that' s what I was afraid of . Supervisor Smith: If it would make more assurance Tom we could also put in a floor. Say it would be between 1 and 2 . Supervisor Torlakson: Not enough of a floor and not enough of a guarantee . Supervisor Powers : In all cases, that' s probably not going to be satisfactory to eliminate it right? I mean I think that' s Tom' s position and we should recognize that . Supervisor Bishop: Like to call for the question. Supervisor Powers : Okay, is there any further discussion? Hearing none, all in favor of the motion, signify by saying aye . Opposed. (Supervisor Torlakson) Okay, the is there any other items to be discussed on the land use permit that any one wishes to deal with. Supervisor Smith: I don' t think there' s much more that needs to be changed unless County Counsel has . Vic Westman: Well, Supervisor Powers : Well, what I would, I'm going to suggest something and see what happens . The I' d ask that the matter on the franchise issue be put over for a period of a week to allow the Board and the staff to review any recommendations and for further advice from the County Counsel on whether or not additional provisions can be placed in the franchise agreements . 15 • Supervisor Torlakson: Second. Supervisor Bishop: It is my view that we have had clear direction from County Counsel . If it provides us a week to bring pressure on County Counsel, so be it but I think it' s very clear what has been said today is we have a valid franchise . We have entered into an agreement and if the story changes next week, I don' t want you to be you know you were concerned that somehow this got on the agenda Tom that it was some kind of indication, Tom, that we didn' t have an agreement . I will not support the motion because I think we have an agreement . I think any further discussion of the franchise agreement other than sitting down and working with BFI with whom we have entered into the franchise agreement, I don' t know how beneficial that will be . I think what we really need to do are take the points that you raise and sit down and talk about those issues and so I will not be supporting the motion. Supervisor Powers : Well, I wouldn' t mind adding that to the motion if there' s no objection, that in the meantime, that that staff, County Counsel can sit down with the representatives of ACME, BFI and discuss these issues . I have no objection to that . Supervisor Bishop: It was in the alternatives, Supervisor Powers . I do not want to see the franchise agreement before this Board again. Supervisor Powers : Well, on behalf of the rate payers of this County, I do not want to give up at the minimum the possibility that a refund might exist and other a couple of the other issues are vital and I will try to persuade the County Counsel that he' s wrong and you can be assured of that . Supervisor Bishop: I know that . Supervisor Powers : And anybody else I can as well, so if you don' t mind we could have County Counsel discuss these issues with Supervisor Torlakson: I think that' s important . I think there may be agreement on some of them. Supervisor Powers : Yeah there may be . Okay, any further discussion on that issue. Hearing none, all in favor of the motion, signify by saying aye . Those opposed. (Supervisor Bishop no) Okay, now . . .designate two members we did that and there are some other . . franchise agreement, tipping fees, we discussed that in relationship to land use permit and other related actions, I don' t know what other ones there are. Supervisor Smith: I have one . With regard to the issue of the confusion about why two and a half years ago the base rate or the proprietary rate needed to be $62 and now $39 is adequate, I would like to ask for authorization to have the Administrator and County Counsel sit down with Deloitte Touche who was the consultant at the time and explain come back to the Board with an explanation of why the difference, what our potential rights and duties and responsibilities as the County are with regard to that differential and the potential of partial or full refund. I ' d like to make that as a separate motion because it envisions actually getting a report back from Deloitte Touche and the Administrator and County Counsel, so I' ll make that motion. Supervisor DeSaulnier: Second. Supervisor Powers : Okay, motion and a second. Any further discussion? Hearing none, all in favor of the motion, signify by saying aye. Those opposed. (Supervisor Bishop abstained) There' s one abstention. Okay, 16 A Supervisor Smith: Did you want to do fee discussions? Supervisor Powers : Okay. Supervisor DeSaulnier: Yes . Why not . It' s past the point of being like a russian novel anyway. Supervisor Powers : I did do some calculations that are fairly simple and I don' t know if I can find them right now. There' s so much recycling here but go ahead make a proposal . Supervisor Smith: Well, as a package, we agreed to $2 .49 which includes the Eastin fees at Keller plus the LEA fees and 939 fees at the transfer station and then a 25 percent increment . Part of that 25 percent is the $2 . 12 Household Hazardous Waste and part of it' s the $1 . 95 that goes in the trust fund for closure costs . I anticipate that those last two fees will eventually be moved out of that funding source by this Board of Supervisors and we anticipated that in our discussions when we talked about the reevaluating in six months but we don' t have the ability to do that at this point . So, what I would suggest is we consider the possibility of making a decision now about the mitigation fees and the other fees with the contingency that when we reevaluate in that six month period, we will attempt to restore any mitigation fees that are lost by supplementing substituting for those household hazardous waste and other and closure fees potentially and I would suggest a $2 fee for host community mitigation at the transfer station, at least $3 at the Keller landfill to be distributed among host community mitigation, ag and open space and transportation as the Supervisor from the district sees fit and that we remove the resource recovery fee at this point fund that out of the remainder of the surcharge and I think that will add up. So, I' ll make that motion. Supervisor Bishop: Would you restate that so I can add that up. Supervisor Torlakson: I' ll second that to get it on the floor for discussion and to consider it further in terms of a possible slight modification but I think it' s the concept that the motion puts forward is important in terms of there' s only a few dollars to divide up between what remains and the $6 if it were maintained as I would like to see it for the mitigation for the community at Bay Point and West Pittsburg and Pittsburg would take up most of that money and there would be very little left to distribute to the other needs and the other legal requirements we have . So, in the interest of compromise, I'm willing to explore something here that would guarantee a revenue stream for mitigation. You've mentioned $3 to help in that regard and to provide some flexibility in how it would be allocated, whether it would be host community or transportation or open space or some combination. I feel very strongly that it' s appropriate to consider mitigation for the ACME community and we've talked about that . I've advocated and supported that concept from this podium many, many times in years past and we I think deserve to give the community their mitigation it deserves . I would urge the Board to consider as we look forward at the time when we can remove the other fees that we would reinstate as Supervisor Smith said in the motion the fees that are being eliminated from the Keller mitigation but at this time as I understand the intent of the motion, they would be suspended in some way rather than eliminated. So, that we wouldn' t be collecting them or earmarking them for those funds as we've previously established those funds . The only other thing that is of consideration and put forward for us to look at is whether we can whether we should put a floor in the LUP as you suggested earlier, that would earmark in someway language pursuant to the resolution and motion that was passed that a floor of $1 . 50 per item or floor of $3 so that the floor gets established in the LUP as well as in this discussion and any resolution we pass that can be implemented in the franchise agreement . So, I' d urge our consideration of that . 17 r Supervisor Powers : Well, unless, I' ll consider that a proposed amendment to the motion. Is there a second to that . Supervisor Smith: You mean to go back and change what we did with the LUP just now. Supervisor Torlakson: Not to change it but to take up your suggestion that you said would $1 per ton be as a floor be something I' d be comfortable with and I said it was too little and $1 . 50 per ton or you had said that that may be set by resolution but you were open to considering a floor and so to guarantee the $3 more than just by the action that' s here that we would also memorialize that in the LUP language as a floor so that it' s a minimum of $3 that' s collected and that can' t be changed. Supervisor Powers : Good try. Supervisor Smith: But the disadvantage I think to your district would be that that would commit that it had to be spent on either open space or traffic mitigation. You wouldn' t have the ability to spend it on host community mitigation at that point . But . . Supervisor Torlakson: Or we could change the language to make it generic that $3 minimum combined floor in the LUP is for host community/open space/transportation as per land use conditions number 35 . 1 and 35 . 2 and just change the language to incorporate your intent and the action of the Board. Supervisor smith: We' re going to include this in a separate resolution, we' re not going to include this in the LUP okay. Supervisor Torlakson: You don' t want to include in the LUP? Supervisor Smith: Well, I am happy to include it in the LUP if you want but I think it adds more limitations to you. If you want it in the LUP that' s fine by me. As far as I am concerned it should be a minimum of $3 for the community of Pittsburg and Bay Point to be used in either one of those three functions that' s appropriate and I would defer to County counsel to make sure it' s written so that it doesn' t get challenged and throw the entire process into a mess . Supervisor Torlakson: Well, if that' s the intention, I agree with that intention and so the maker and seconder of the motion agree on that and maybe we need County Counsel to figure out the best way to accomplish that if there' s agreement of the Board to move forward with this kind of a concept . Supervisor Bishop: The reason I voted no on the franchise agreement I thought the $8 . 17 did not go far enough. And what I actually see here with the $3 now for host mitigation where before it was $2 , $2 for open space, $2 for transportation and another $2 for ACME, we are increasing the amount of fees and I believe in those calculations that we are not doing what we have been requested to do again and again. Whatever the fees are and what the levies are per ton if you get 2 tons and you have this kind of fee you get a certain amount but if you have 100 tons you receive much more . I don' t know what' s going on. Maybe you all have had a better opportunity to go over the numbers that you handed to me and you were talking about Jeff but I obviously understand the Eastin fee the AB 39 fee the LEA fee and I understand that we talked about $8 . 17 and then the $1 . 95 and the $2 . 12 on top of that but I was hopeful that when we adopted this that the understanding . . .don' t mind me. . . I thought the understanding was that when we were successful in getting the cities to assume the $2 . 12 the interest of the cities was to get the overall fee down and that the $1 . 95 once it took care of the 18 f problem that we were concerned with with litigation, that that would go away and that ultimately there would be a hope in getting the fees down. I see that was not the case . You've had more of an opportunity to meet and discuss this than I have so. . . Supervisor Powers : The ag fee and the transportation fee have been eliminated so that is not being added back in. All that is happening is that the resource recovery dollar is being moved to host mitigation to make that $3 and that' s the only thing that' s part of the motion. There' s no increase. . . Supervisor Bishop: You' re saying the ag fee and the transportation fee have been elim. . . Supervisor Powers : Those are out . . . Supervisor Bishop: But can be restored? Supervisor Powers : Only in the event that the board in considering the litigation fee and the 2 . 12 household hazardous waste fee eliminates that . Then at that time, the Board can consider it . Supervisor Bishop: And we know that will happen. So we really are doing nothing to reduce the fees is basically what I'm hearing. Supervisor Smith: No, we' re reducing them but the Board can always change it later on. As a matter of fact, we said that as part of the resolution last time that we were going to reserve the right to change the fee structure. This is just a way of giving us the flexibility to do that without being committed to the land use permit requirements that don' t necessarily reflect the needs in the community. Supervisor Powers : I'm sorry I gave you that piece of paper. It was confusing. Supervisor Bishop: No, it' s not confusing. It makes it crystal clear. Supervisor DeSaulnier: If I could, I think Jeff there' s a certain level of concern on my part but in terms of the 12 . 24 , our discussion originally was that household hazardous waste was going to have to be paid for someway so it was going to stay in here until the cities found a way to supply that and I know Concord' s and I think Pittsburg is attempting to do that now although they' re separate from this obviously. And the $1 . 95 for closure and post-closure so what we were hoping for was that those two costs would go away in six months correct? Supervisor Smith: And that' ll be $4 . 06 and those hopefully will go away in six months when we find a program and if the Board wanted to increase mitigation fees they could but I doubt that they would neither do I doubt they would include them by the entire $4 . 06 . Supervisor DeSaulnier: It was always my intention that those would our best case scenario what we' re going to work toward' s is have those go away, so I would assume they would. Supervisor Powers : Okay, the motion' s before us . We' re only designating at this point in time the differences within the framework of the previously reduced fees and the research recovery dollar is moved to the host mitigation and there' s a designation of $2 for ACME transfer station. And that' s the motion. Any further discussion. Supervisor Torlakson: Under the question, Mr. chairman, just to clarify again we have by the motion we' re setting a floor 19 basically of the $3 for mitigation to Keller. Supervisor Powers : At this time .-- Supervisor ime:Supervisor Torlakson: And then the other fees are suspended in the Land Use Permit for consideration of restoration in the future . The possibilities of that are more likely if the litigation goes away than on the hazardous materials because the hazardous materials costs will just get moved around but it' s something you' re saying there' s an intent to look at that and to examine the impacts ont he community because again the community fought long and hard for those mitigation dollars and for the mitigation programs . The other issue that I want to just pass this down to Jeff to see if you can all look at it and look at the language but the $3 floor question, we' re directing Counsel to look at this . Besides setting it in the resolution is it also possible to set it in the LUP and I've suggested the generic language to accomplish that could possible be in sync with the wording you previously put forward in the motion passed. So, it leaves it discretionary but you had offered the idea of a floor in the LUP of $1 per ton -and if you had language in the LUP that said mitigation programs for open space/transportation/community programs, would be set at this $3 minimum floor, it would accomplish that goal of making it stronger than just simply in a resolution. Supervisor Powers : I saw the language. It' s trying again to put it in the LUP and I think that that lost a couple of times without a second. Supervisor Smith: Well, I have a suggestion. I think I see where you' re going from and maybe if we can for a second reconsider the LUP issue since we made the two categorical collections permissive maybe we could put in $1 . 50 per category with another addition at the end of both categories saying this may be used for host community mitigation and put that in both paragraphs so that way you do not limit your ability to use the money and I could support that . Supervisor Torlakson: I like that . I like that . Supervisor Powers : Okay, I' ll consider. . Supervisor Bishop: You' re putting host community into the land use permit . Supervisor Powers : Yes . Supervisor Smith: We' re just putting permissive. We can ask Tom Bruen if he agrees to it . Supervisor Bishop: I think if you put a floor of $1 . 50 he' s not likely to agree to it . I'm certainly. not going to agree to it . Supervisor Torlakson: I think it adds flexibility. Here' s what I see happening on the other scenario is that if these funds eroded to an unacceptable point, there will be litigation on the other . side and the litigation may just roll it right back to $2 and $2 and all this effort to change the LUP will go down the tubes . I think a compromise here that guarantees some floor would keep Citizens United and other groups who may want to sue on this issue from litigating and possibly unraveling it . We've had letters from Norris and Norris and other attorneys that have raised the question that can we amend this land use permit without going through a CEQA process when we went though a CEQA process to establish it originally and will the negative declaration stand and I think a compromise here with the floor in the LUP that would go a long way toward settling the community' s anxiety about removing these protections . 20 Supervisor Powers : Okay, maybe what we can do is since there are a couple of questions° about this . I think there' s an intention here that' s clear between the maker and the seconder. I'm not sure about the specific language, have that drafted and checked out by Counsel and bring it back next week so that we can find out what we' re doing for sure and what the implications are. Is that okay Tom, Jeff, we can vote our intention, I think we know. . Supervisor Bishop: are you asking if it' s okay with me? Supervisor Powers : Please go ahead that' s the way we vote . Vic Westman: Well, then you' re going to be leaving the land use permit hearing open before you and continuing it another week for further consideration., okay, fine. Supervisor Powers : Okay and directing our intention to you to draft a provision to come back next week on. Okay? Is that okay, all in favor of the motion signify by saying aye . Those opposed. (Supervisor Bishop no) Okay, is there any other items on this that need to be discussed. Supervisor Torlakson: Only one thing Mr. Chairman, just to clarify from two weeks ago on the very briefly when we discussed this either a week or two or three weeks back because we have discussed it in a sequential fashion, we gave some direction but I wanted to see that it' s really reflected in the minutes for the County Administrator and Community Development Department to begin the Keller mitigation fund process for this fiscal year. It' s been held up while we've had all these discussions so that the community has not put in you know project proposals and we haven' t sent it to the various committees but that process should commence and I just want to clarify that was the Board' s intent . There is a fund balance in there and there will be money of some amount to be spent by the end of the year and we should get the community involved in budgeting that . Supervisor Powers : Okay, could we make that a motion to make it clear that' s a directive to staff to deal with the ba. Supervisor Torlakson: so moved. Supervisor DeSaulnier: Second. Supervisor Powers : .motion and second any discussion. All in favor of the motion, signify by saying aye . Opposed. It' s direct the staff to report back on the fund balances in the ag and transportation mitigation fund Supervisor Torlakson: And commence the process for expending them. Supervisor Powers : and commence the process for community review of expenditure which in essence calls for the Finance Committee review and community review. 21