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HomeMy WebLinkAboutMINUTES - 10251994 - H.4-H.5 4 H.4 & H. 5 THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA Adopted this Order on October 25, 1994 by the following vote: AYES: See below for motions and votes 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 18 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 18 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 on the issues for the Board to revisit including the continued land use permit hearing, the franchises, and the JPA. Supervisor Bishop commented on her attendance at the Central Contra Costa Solid Waste Authority meeting, advising that San Ramon had determined to withdraw from the authority. She recommended that the Board delay adopting a resolution that the County join the Central County Solid Waste Authority until such time that Board can see what the implications are of San Ramon not being there. The Board discussed the matter. Supervisor Powers suggested that perhaps the matter could be put over, and staff could draft a letter for the two members to deliver stating that the Board does have an interest in joining but would like the opportunity to pursue further some of the conditions of membership and the question of the entire organization. There was concurrence on the issue of the continuance for two weeks and for the staff to draft a letter as stated. Victor Westman, County Counsel, presented the staff report on the franchises . Supervisor Bishop commented on a letter from Norris and Norris dated October 21, 1994 on the Statute of Frauds . The Board discussed Mr. Westman' s October 25, 1994 memo to the Board on County-BFI Franchises . Supervisor Powers moved that it was not the Board' s intention to adopt the franchises signed by Browning Ferris Industries and that the Board not adopt the franchise by Browning Ferris Industries and clarify the minutes accordingly. Supervisor Smith seconded the motion in the sense that the language that is before the Board is not what the Board acted upon on September 13 , 1994 . Supervisor Bishop advised that she would not be supporting the motion. Supervisor DeSaulnier concurred with Supervisor Bishop that it was his intention that the Board was entering into an agreement but he expressed that there are major concerns by Board members that he tends to agree with as well . Supervisor Bishop suggested that the matter be referred to the Ad Hoc Committee for some wordsmithing and understanding. Supervisor Powers suggested adding to his recommendation that the agreement does not reflect the Board' s intent and also refer the matter to the committee to make those changes necessary to reflect the Board' s intent . The Board discussed their intent . Supervisor Powers further clarified his motion to say that the agreement does not reflect the intention of the Board, that the Board will not sign it and that the Board will refer it to the Ad Hoc Committee to return next week or the week after for a final franchise . Supervisor DeSaulnier suggested adding the word fully before the word reflect . Supervisor Powers concurred. The vote on the motion was as follows : AYES : Supervisors Smith, DeSaulnier, Torlakson and Powers NOES : Supervisor Bishop ABSENT: None ABSTAIN: None Mr. Alexeeff commented on a proposed schedule for budgeting the balance of the Keller Landfill mitigation fees to be discussed in connection with the Land Use Permit issue. The following persons appeared and gave testimony: Frank Aiello, 1734 Bridgeview, Pittsburg, representing Citizens United, presented a proposal for the allocation and administration of Host Community Funds, Keller Canyon Landfill; Supervisor Powers suggested that the proposal be referred to the Finance Committee for consideration. Randall Morrison, 1999 Harrison Street, Oakland, Crosby, Heafey, Roach and May, representing Valley Waste Management, commented on a letter he presented today. Supervisor Powers suggested that the letter be referred to staff for appropriate response . Lance Dow, 2232 Concord Drive, Pittsburg, directed the Board' s attention to ways to save the rate payers money. Kevin Carunchio, 2020 Railroad Avenue, Pittsburg, presented a letter from Mayor Mary Urbez, City of Pittsburg. Supervisor Powers suggested referring the City of Pittsburg' s letter, the Citizens United proposal, and the proposed schedule for budgeting the balance of Keller Landfill Mitigation fees to the Finance Committee for review and report . The Board discussed the proposed schedule for budgeting the balance of the Keller Landfill mitigation fees . Supervisor Powers clarified a motion from Supervisor Torlakson eliminating the last phrase of the last page of the October 17, 1994 memo from Mr. Westman reporting on the land use permit which is to eliminate the words in the fifth line of the last page . Supervisor Smith seconded the motion clarifying that it was recommending 35 . 8 on page two and the other condition which is on page three of the memo except for the last segment of the last sentence which starts except that the Board of Supervisors at its sole discretion. Supervisor Torlakson concurred. Supervisor Bishop advised that she would not be supporting the motion commenting that the fees are too high. The vote on the motion was as follows : AYES : Supervisors Smith, DeSaulnier, Torlakson and Powers NOES : Supervisor Bishop ABSENT: None ABSTAIN: None Supervisor Smith moved to keep the land use permit hearing open pending receipt of a report on the franchises . Tom Bruen advised that the facilities permit for interim transfer station expires on Monday. Supervisor Smith suggested that the Board adjourn to a meeting on Monday morning and that Supervisor Bishop and he before that time will have reviewed the transfer station franchise and that the Board consider only the transfer station franchise and that there will be a recommendation for the Board to consider at that time. The Board discussed the matter. Supervisor Smith clarified that the Board was leaving the land use permit hearing open and would have only the Acme franchise before the Board on Monday and the rest of the items before the Board on Tuesday. Supervisor Powers concurred. IT IS BY THE BOARD ORDERED that consideration of a resolution in the matter of Contra Costa county joining the Central Contra Costa Solid Waste Authority is DEFERRED to November 8, 1994 ; and it is DETERMINED that the franchise agreements do not fully reflect the intention of the Board of Supervisors and the Board DECLINED to sign the agreements; and the matter is REFERRED to the Ad Hoc Solid Waste Committee for a recommendation on November 1, 1994 ; and the hearing on Amendment 1 to the Keller Canyon Land Use Permit is CONTINUED to November 1, 1994 at 2 P.M. ; it is DETERMINED to add a new condition 35 . 8 and additional language as proposed in the memo from County Counsel dated October 17, 1994 and as amended by the Board of Supervisors on this date; and a proposal by Citizens United on the allocation of host mitigation fees, a letter from the City of Pittsburg relative to the Citizens United proposal, and the Proposed Schedule for Budgeting the Balance of Keller Landfill Mitigation Fees are REFERRED to the Finance Committee; and a letter from Randall Morrison representing Valley Waste Management dated October 25, 1994 is REFERRED to staff for report on November 1, 1994 ; and this meeting is ADJOURNED to October 31, 1994 at 9 A.M. in the Board Chambers to consider the Acme Franchise Agreement . I hereby certify that this is a true and correct Copy of an action taken and entered on the minutes of the Board of Sup is-o� the date shown. ATTESTED: �Y 10�°,1 -� c c : GMEDA PHIL BATCHELOR,Clerk of the Board Community Development of Supe fa andCourtt�Administrator County Counsel 11 Browning Ferris Industries By - - .Deputy Date: REQUEST TO SPEAK FORM (Two [2] Minute Limit) Complete this form and place it in the box near the speakers' rostrum before addressing the Board. Name: Phone: Address: City: Pl//G I am speaking for: ❑ Myself OR Organization: CAfl`Fb NAME OF ORGANIZATION CHECK ONE: I wish to speak on Agenda Item # My comments will be: NZ General ❑ For ❑ Against ❑ I wish to speak on the subject of: ❑ I do not wish to speak but leave these comments for the Board to consider: Date: ! 3 REQUEST TO SPEAK FOAM (Two [2] Minute Limit) Complete this form and place it ' the box near the speakers' rostrum before addressing the Board. Name: �'`!� Al d ae(c- Phone. sy Address: City: -7 I am speaking for: ❑ Myself OR D26rganization: V"I wtiJYG NAME OF ORGANIZATION CHECK ONE: E!2 I wish to speak on Agenda Item # • My comments will be: ❑ General ❑ For EZKAgainst ZI wish to speak on the subject of: G OP`� A r' 4-, C 9� 21 A ❑ I do not wish to speak but leave these comments for the Board to consider: Date: /0-a5- - 9q REQUEST TO SPEAK FOAM (Two [2] Minute Limit) Complete this form and place it in the box near the speakers' rostrum before addressing the Board. Name: 2 V I.V) Cmru✓ rG o Phone: 'V39- '166-0 Address: ;O. o 4yc � City: ►7T Urlqt I am speaking for: ❑ Myself OR Organization: C14 t Pi Askurcl, NAME OF ORGANI1 N CHECK ONE: ❑ I wish to speak on Agenda Item # My comments will be: ❑ General ❑ For/ ❑ Against/ >I wish to speak on the subject of: TA. C.f iz e r►t Ur i to / p✓�olb5a ❑ I do not wish to speak but leave these comments for the Board to consider: Date: Io REQUEST To SPEAK FORM (Two [2] Minute Limit) Complete this form and place it in the box near the speakers' rostrum before addressing the Board. Name: /. �c DO-L) Phone: 4 Address: a� 3� Cy�/�lLk� b City: V26 I am speaking for: 00 Myself OR ❑ Organization: NAME OF ORGANIZATION CHECK ONE: ❑ I wish to speak on Agenda Item # My comments will be: X General ❑ For ❑ Against ❑ I wish to speak on the subject of: ❑ I do not wish to speak but leave these comments for the Board to consider: H=r COUNTY COUNSEL'S OFFICE CONTRA COSTA COUNTY MARTINEZ,CALIFORNIA Date: October 17, 1994 To: Board of Supervisors From: Victor J. Westman, County Counsel By: Lillian T. Fujii, Deputy County ounsel Re: Hearing on Amendment No. 1 to Keller Landfill LUP The matter of certain proposed amendments to the Keller Landfill LUP, considered by the Planning Commission on September 13, 1994 and September 20, 1994, was continued to and further heard by the Board on October 11, 1994. I. SUMMARY OF BOARD'S 10-11-94 ACTIONS REGARDING LUP. At the October 11 hearing, a majority of the Board initially indicated its desire to amend LUP Conditions Nos. 35.1 and 35.2, to change the Transportation System Impact Fee (Condition No. 35.1) and Open Space and Agricultural Preserve Fee (Condition No. 35.2) from mandatory $2.00 per ton fees, to be levied by and at the discretion of the Board by separate action, up to a maximum of $2.00 per ton for each fee. However, upon further discussion, the Board members indicated a desire to amend Conditions Nos. 35.1 and 35.2 to provide as follows: 1) the amount of the fees to be levied, up to $2.00 per ton for each condition, shall be at the Board's discretion, but the total fee shall be at least $3.00 per ton, but not to exceed the existing total $4.00 per ton limit; 2) the $3.00 to $4.00 per ton fees levied may be used for host community mitigation purposes in addition to transportation and/or open space/agricultural preserve purposes. The County Counsel was directed to prepare language for the Board's consideration, and to discuss the legal implications of amending the LUP as indicated at this time. Board of Supervisors October 17, 1994 Page 2 II. POSSIBLE LANGUAGE FOR AMENDED CONDITION. Assuming our understanding of the Board majority's intent is correct, we suggest that the Board "stay" the operation of Conditions Nos. 35.1 and 35.2, and "replace" said conditions with a new Condition No. 35.8: "35.8. The Landfill operator shall pay to the County of Contra Costa a fee, the amount of which may be set by the Board of Supervisors by Board Order from time to time, which amount shall not be less than $3.00 per ton and shall not be more than $4.00 per ton, on solid waste received at the Landfill. The fee shall be used as directed by the Board in its sole discretion: 1) to mitigate the general impacts of Landfill-generated traffic on the County's road system, 2) to mitigate the general impacts of the Landfill on open space, existing and proposed recreational facilities, and agriculture, or 3) to mitigate any general impacts of the Landfill upon the surrounding community." III. DISCUSSION. At the time of the Board's consideration of LUP No. 2020-89 for the Keller Canyon Landfill, due in part to concerns that a sufficient "nexus" could not be established to support a host community mitigation fee as a permit condition of approval, a per-ton host community mitigation fee was not included in the LUP. A host community fee was instead included in the franchise agreement with the landfill operator. None of the conditions set forth in LUP No. 2020-89 were judicially challenged in a timely manner. For this reason, Government Code section 65907 (statute of limitations for challenging decisions on conditional use permit matters) now precludes a challenge of such conditions as contained in LUP No. 2020-89. To the extent that the Board now elects to condition the LUP upon the payment of a fee which may be used for "host community" mitigation purposes, such condition may now become subject to a timely taken judicial challenge. In addition, we note the addition of a condition imposing a fee which may be used for host community mitigation purposes was not considered by the Planning Commission. Of course, if this condition is adopted and is not challenged in a timely manner, it too will have the benefit of section 65907. It is possible that a challenge to the proposed condition as set forth above could succeed while the Board's repeal of Conditions 35.1 and 35.2 might be given full Board of Supervisors October 17, 1994 Page 3 force and effect, thus eliminating all such fees. To avoid this possibility, the Board may wish to condition the "staying" of 35.1 and 35.2 upon the above proposed new condition becoming and remaining effective. In other words, the following could also be adopted: "Conditions Nos. 35.1 and 35.2 of LUP No. 2020-89 are hereby stayed in their operation as long as Condition No. 35.8 remains in full force and operation. Should Condition No. 35.8 ( or any portion of it) for any reason be set aside or stayed in its operation, then Conditions Nos. 35.1 and 35.2 shall be in full force and operation except that the Board of Supervisors at its sole discretion shall determine the extent and amount of each fee to be levied." LTF 9a:\lup 1018.94 CROSBY, HEAFEY, ROACH & MAY PROFESSIONAL CORPORATION ATTORNEYS AT LAW 1999 HARRISON STREET 700 SOUTH FLOWER STREET,SUITE 2200 OAKLAND, CALIFORNIA 94612-3573 333 BUSH STREET,SUITE 2580 LOS ANGELES,CALIFORNIA 00017 (510)763-2000 - (415) 986-3400 SAN FRANCISCO,CALIFORNIA 94104.2899 (213)396-6FAX(510)273-8832 FAXI 4)1543-8700 391 269 FAX(213)396.60.80 60 ( ) MAILING ADDRESS: POST OFFICE BOX 2084 OAKLAND,CALIFORNIA 94604-2084 Direct Dial (510) 466-6857 RECEIVED : F 2 51994 October 25, 1994 CLERK 6C< �.�­ -" crl VIA MESSENGER Supervisor Tom Powers Supervisor Jeff Smith Supervisor Gayle Bishop Supervisor Mark DeSaulnier Supervisor Tom Torlakson Board of Supervisors Clerk of the Board Contra Costa County 651 Pine Street, Room 106 Martinez, CA 94553-1293 Re: Hearing on Amendment 1 to Land Use Permit No. 2020-89; October 25, 1994, Agenda #H.5 Dear Supervisors: Our letter of September 26, 1994 on behalf of Valley Waste Management identified potential CEQA violations if the Board adopts Amendment No. 1 to Land Use Permit No. 2020-89 without further CEQA review. The Staff's Report of October 4, 1994 responded and suggested that there were no substantial CEQA issues. We respectfully disagree and point out that CEQA is to be liberally construed, and that its purpose is to ensure full and fair consideration of environmental impacts before irrevocable steps are taken. Here, there should be no doubt that the proposed amendment to Keller's Land Use Permit is a "project" requiring CEQA review. (Public Resources Code Section 21065; CEQA Guideline Section 15378(a)). Furthermore, there is no doubt that this Board previously considered the Transportation and Open Space Mitigation Fees essential to mitigate transportation, open space, and other community impacts from the Keller Canyon Landfill. For this reason, the Board included these fees as Special Conditions in approving the LUP shortly after Keller's EIR was certified. The Staff Report, unfortunately, does not focus on the CEQA definition of "project" and the common sense connection between the impacts and mitigation fees. Instead, the Staff Report engages in an elaborate parsing of the various provisions in the EIR and LUP in order to reach the conclusion that CROSBY, HEAFEY, ROACH S MAY PROFESSIONAL CORPORATION 4 Board of Supervisors October 25, 1994 Page 2 the Transportation and Open Space fees were actually not related to environmental impacts in the EIR. What else, then, were these fees for? We think the Staff's approach misses the point of CEQA review -- which is to evaluate impacts in the real world, rather than indulging in theoretical arguments as to whether all of the impacts in the EIR could somehow be "covered" by specific conditions, thus rendering the Mitigation Fees superfluous. Our specific comments on the Staff Report are as follows: 1 . Transportation (Roadway) Impacts Are Mitigated And Should Continue To Be Mitigated Through County Fees. The Staff Report suggests that all of the transportation-related impacts in the EIR were to be mitigated by other conditions in the Land Use Permit. This argument, in fact, recognizes one of our most important points: It is indisputable that the conditions in the Land Use Permit address impacts identified in the Draft EIR. The Staff wishes to pick and choose among the conditions and to ignore Condition 35.1, which is expressly labeled a "Transportation System Impact Fee." That Condition requires the operator to pay fees ". . .to mitigate the general impacts of the Landfill-generated traffic on the County's road system." There is no denying that the Landfill does have such impacts on the County's road system, and the Draft EIR says so, as pointed out in detail in our September 2.6 letter. The Staff's argument thus ignores the obvious purpose of Condition 35.1 . Furthermore, the Staff's argument assumes, without basis, that the transportation impacts listed in the Draft EIR, and in the Staff's Table, are only to be mitigated by the specific mitigation measures referred to in the EIR. It was clearly the Board's intention in 1990 that transportation impacts were to be mitigated by both the general fees as well as specific mitigation measures, such as trip limits. The Draft EIR itself recognized that County fees were an appropriate mitigation measure, along with other specific measures. It is therefore arbitrary to say that the Mitigation Fees are superfluous. Staff also comments that Conditions 35.1 and 35.2 were not prepared until one month after the Final EIR was certified, and that these Special Conditions were not approved by the Board until four months later. Contrary to the Staff's interpretation, this timing confirms that the Board considered these mitigation measures important in addressing impacts from the Keller Canyon Landfill. With regard to the CEQA Findings attached to the Land Use Permit, Staff argues that each finding tracked a specific condition of approval, and that the Board's findings did not mention Conditions 35.1 or 35.2 ". . .as , implementing any mitigation measures listed in the Final EIR." (Staff Report, p.1). The answer to this point is that Conditions 35.1 and 35.2 impose CROSBY, HEAFEY, ROACH S MAY PROFESSIONAL CORPORATION Board of Supervisors October 25, 1994 Page 3 general Mitigation Fees which would address a variety of impacts, such as roadway maintenance and upgrades, or preservation of open space and recreational facilities. One would not expect a listing of all the different mitigation measures to be funded by these fees. In short, to say that Conditions 35.1 and 35.2 are irrelevant because they are general, rather than specific, is to ignore the purpose of these mitigation measures. Furthermore, the Board's CEQA Findings state that, "The language of the Conditions of Approval in any given instance may not use the exact wording of the FEIR to describe the mitigation measure, but the mitigation measures have been required. To this end, the Conditions of Approval and the stated mitigation measures are to be considered as an integrated whole with these findings." (Findings, § C, p.4; emphasis added). In other words, all the Conditions of Approval and the mitigation measures must be considered together with the Findings. There is no basis for arbitrarily excluding some of the Conditions. 2. The EIR Identifies Open Space And Secondary Community Impacts, And These Impacts Are Mitigated Through the Open Space Fee. The Staff's argument is, again, that specific mitigation measures addressed any open space and community impacts identified in the Draft EIR. The use of specific mitigation measures, however, does not mean that general mitigation measures are unnecessary. Certainly, the Board did not think so in 1990 in imposing Open Space fees as a "Special Condition of Approval." The Staff also states that, "Even if a certain EIR-related impact CAN be mitigated by a fee such as the open space fee or host mitigation fee, that does not mean that such fees were, in fact, imposed for that purpose." (p.2). This is a curious argument. There is no doubt that Open Space fees were imposed, and that these fees were used, at least in substantial part, for open space purposes. This being the case, one must conclude that Open Space fees were imposed to mitigate open-space impacts, just as the Board originally intended in Condition 35.2. The Staff's last argument appears to be that Open Space fees should not be used to mitigate "unavoidable" impacts, because such impacts are addressed by a "statement of overriding considerations." Again, the Staff is incorrect in insisting that only one method can be used to deal with an impact. If there are unavoidable community impacts, they can be addressed by a general mitigation fee as well as a statement of overriding considerations. 3. Rescinding Conditions 31 .9 And 35.4 Will Reduce Keller's Obligation To Fund The County's Resource Recovery Program. Staff does not dispute that the proposed changes in Condition 31 .9 will significantly reduce Keller Canyon's obligation to support the County Resource CROSBY, HEAFEY, ROACH & MAY PROFESSIONAL CORPORATION 1, Board of Supervisors October 25, 1994 Page 4 Recovery Program. No other conclusion is possible, because the "old" Condition 31 .9 required Keller to impose a tonnage surcharge adequate to support the Program, whereas the "new" condition only requires Keller to "financially contribute" to the Program. The Staff's answer is that other sources of funds are available. The Staff states: "The County retains the power to ensure the adequacy of funding for its program, in an amount it deems appropriate. The program does not depend on a particular tipping fee component." (p.2). In our view, there are two problems with this answer. First, where else will the money come from? Chuck Zahn's October 4, 1994 Memorandum states that the County could obtain money from Condition 31.10 or, perhaps, from other sources, such as "collection franchise area administrative fees." (p.2). These comments simply highlight the fact that, at present, there are no other confirmed sources of funding. The suggestion that the County "can find the money somewhere" does not seem an adequate answer when the proposed change in the LUP will clearly result in reduced program funding by Keller Canyon. Second, even if other sources of funds are found, this does not mean that reducing Keller's fees has no impact. Under the present LUP, Keller has an obligation to fund an adequate resource recovery program, and any change in that obligation creates an uncertainty about funding that could lead to environmental impacts. The mere possibility of such impacts requires a CEQA review. 4. Reducing Or Eliminating The Mitigation Fees Will Reduce Or Eliminate Mitigation. The above proposition seems self-evident. The Staff, however, says that these mitigation fees are unnecessary, because all impacts are mitigated by other measures or conditions. Once again, this begs the question. Environmental impacts can be and are mitigated by general fees as well as specific mitigation measures. The fact that the specific measures remain does not mean there will be no impacts if the general measures are eliminated. 5. A Notice Of Exemption Is Improler, Because There Is A Possibility Of Significant Environmental Effects. The Staff acknowledges that CEQA Guideline Section 15061(b)(3) must be strictly construed, and that a Notice of Exemption cannot be used where there is "any possibility" that the activity may have a significant effect on the environment. The Staff nevertheless states that they have not "ascertained any potential impact that could possibly result from the proposed amendment to the Keller LUP." (p.3). CROSBY, HEAFEY, ROACH & MAY PROFESSIONAL CORPORATION Board of Supervisors October 25, 1994 Page 5 To reach this conclusion, it is necessary to ignore (1) the possible environmental effects from eliminating hundreds of thousands of dollars in Transportation Fees which have contributed to maintenance of County roads (2) impacts from loss of hundreds of thousands of dollars in Open Space Fees which have contributed to a variety of open space and community programs, and (3) the admitted reduction in Keller Canyon's obligation to support County resource recovery, with potential effects on programs and the County's ability to regulate. We do not believe all these potential effects can be ignored. In summary, the Staff obviously disagrees with us as to whether there will be environmental impacts from the proposed changes in the LUP, but it is difficult to justify a Notice of Exemption and insist that there is "no possibility" of such impacts. Given the obvious benefits of these two fees in reducing roadway and other community impacts, it seems fair to say that some environmental impact from eliminating these fees is not only possible, but probable. A Notice of Exemption is therefore legally improper, and the Board should require a more thorough and objective CEQA study. As stated earlier, this change in the LUP ja a CEQA project and it deserves regular CEQA review. While we understand the Board's desire to bring this matter to conclusion, there is no deadline facing the Board and no reason to shortcut the CEQA process. Instead, the Board should carefully examine the CEQA issues relating to Keller, just like the financial issues, to insure that the Board's decision stands the test of time. CROSBY, HEAFEY, ROACH & MAY Professional Corporation Randall D. Morrison Attorneys for Valley Waste Management RDM:ma cc via facsimile with hard coon to follow: Silvano B. Marchesi, Esq. Assistant County Counsel PROPOSED SCHEDULE FOR BUDGETING BALANCE OF KELLER LANDFILL MITIGATION FEES Notification of all interested parties of schedule. Nov. 1 Transportation Mitigation Transportation Committee hears transportation mitigation proposals. Estimated Balance: $371,897 Open Space Mitigation EBRPD Liaison Committee hears open space/ agriculture proposals. Estimated Balance: $466,867 Agriculture Mitigation Internal Operations Committee hears EBRPD recommendation and considers whether additional funds from the open space balance need to be placed toward the soils bank. Community mitigation notices out. Dec. 1 Finance Committee hears non-community based requests. Estimated Balance: $483,528 To Board of Supervisors - Transportation, Open Space, Dec. 13 Agriculture, Community (non-community based proposals) Community Mitigation Deadline for proposals to fund community-based Jan. mitigation projects. Review of community proposals by Advisory Jan. Committee. VA:dg OCT 2 5 I9.914 hehnit.fee (10!25/94) CLERK BOARD OF SUPERVISORS CONTRA COSTA CO. COUNTY COUNSEL'S OFFICE CONTRA COSTA COUNTY MARTINEZ,CALIFORNIA Date: October 17, 1994 To: Board of Supervisors From: Victor J. Westman, County Counsel By: Lillian T. Fujii, Deputy County Jounsel Re: Hearing on Amendment No. 1 to Keller Landfill LUP The matter of certain proposed amendments to the Keller Landfill LUP, considered by the Planning Commission on September 13, 1994 and September 20, 1994, was continued to and further heard by the Board on October 11, 1994. I. SUMMARY OF BOARD'S 10-11-94 ACTIONS REGARDING LUP. At the October 11 hearing, a majority of the Board initially indicated its desire to amend LUP Conditions Nos. 35.1 and 35.2, to change the Transportation System Impact Fee (Condition No. 35.1) and Open Space and Agricultural Preserve Fee (Condition No. 35.2) from mandatory $2.00 per ton fees, to be levied by and at the discretion of the Board by separate action, up to a maximum of$2.00 per ton for each fee. However, upon further discussion, the Board members indicated a desire to amend Conditions Nos. 35.1 and 35.2 to provide as follows: 1) the amount of the fees to be levied, up to $2.00 per ton for each condition, shall be at the Board's discretion, but the total fee shall be at least $3.00 per ton, but not to exceed the existing total $4.00 per ton limit; 2) the $3.00 to $4.00�per ton fees levied may be used for host community mitigation purposes in addition to transportation and/or open space/agricultural preserve purposes. The County Counsel was directed to prepare language for the Board's consideration, and to discuss the legal implications of amending the LUP as indicated at this time. Board of Supervisors October 17, 1994 Page 2 H. POSSIBLE LANGUAGE FOR AMENDED CONDITION. Assuming our understanding of the Board majority's intent is correct, we suggest that the Board "stay" the operation of Conditions Nos. 35.1 and 35.2, and "replace" said conditions with a new Condition No. 35.8: "35.8. The Landfill operator shall pay to the County of Contra Costa a fee, the amount of which may be set by the Board of Supervisors by Board Order from time to time, which amount shall not be less than $3.00 per ton and shall not be more than $4.00 per ton, on solid waste received at the Landfill. The fee shall be used as directed by the Board in its sole discretion: 1) to mitigate the general impacts of Landfill-generated traffic on the County's road system, 2) to mitigate the general impacts of the Landfill on open space, existing and proposed recreational facilities, and agriculture, or 3) to mitigate any general impacts of the Landfill upon the surrounding community." III. DISCUSSION. At the time of the Board's consideration of LUP No. 2020-89 for the Keller Canyon Landfill, due in part to concerns that a sufficient "nexus" could not be established to support a host community mitigation fee as a permit condition of approval, a per-ton host community mitigation fee was not included in the LUP. A host community fee was instead included in the franchise agreement with the landfill operator. None of the conditions set forth in LUP No. 2020-89 were judicially challenged in a timely manner. For this reason, Government Code section 65907 (statute of limitations for challenging decisions on conditional use permit matters) now precludes a challenge of such conditions as contained in LUP No. 2020-89. To the extent that the Board now elects to condition the LUP upon the payment of a fee which may be used for "host community" mitigation purposes, such condition may now become subject to a timely taken judicial challenge. In addition, we note the addition of a condition imposing a fee which may be used for host community mitigation purposes was not considered by the Planning Commission. Of course, if this condition is adopted and is not challenged in a timely manner, it too will have the benefit of section 65907. It is possible that a challenge to the proposed condition as set forth above could succeed while the Board's repeal of Conditions 35.1 and 35.2 might be given full Board of Supervisors October 17, 1994 Page 3 force and effect, thus eliminating all such fees. To avoid this possibility, the Board may wish to condition the "staying" of 35.1 and 35.2 upon the above proposed new condition becoming and remaining effective. In other words, the following could also be adopted: "Conditions Nos. 35.1 and 35.2 of LUP No. 2020-89 are hereby stayed in their operation as long as Condition No. 35.8 remains in full force and operation. Should Condition No. 35.8 ( or any portion of it) for any reason be set aside or stayed in its operation, then Conditions Nos. 35.1 and 35.2 shall be in full force and operation except that the Board of Supervisors October 17, 1994 Page 3 force and effect, thus eliminating all such fees. To avoid this possibility, the Board may wish to condition the "staying" of 35.1 and 35.2 upon the above proposed new condition becoming and remaining effective. In other words, the following could also be adopted: "Conditions Nos. 35.1 and 35.2 of LUP No. 2020-89 are hereby stayed in their operation as long as Condition No. 35.8 remains in full force and operation. Should Condition No. 35.8 ( or any portion of it) for any reason be set aside or stayed in its operation, then Conditions Nos. 35.1 and 35.2 shall be in full force and operation except that the Board of Supervisors at its sole discretion shall determine the extent and amount of each fee to be levied.' LTF 9a:\lup 1018.94 �6 COUNTY COUNSEL'S OFFICE CONTRA COSTA COUNTY MARTINEZ,CALIFORNIA Date: October 17, 1994 To: Board of Supervisors From: Victor J. Westman, County Counsel By: Lillian T. Fujii, Deputy County koirsel Re: Hearing on Amendment No. 1 to Keller Landfill LUP The matter of certain proposed amendments to the Keller Landfill LUP, considered by the Planning Commission on September 13, 1994 and September 20, 1994, was continued to and further heard by the Board on October 11, 1994. I. SUMMARY OF BOARD'S 10-11-94 ACTIONS REGARDING LUP. At the October 11 hearing, a majority of the Board initially indicated its desire to amend LUP Conditions Nos. 35.1 and 35.2, to change the Transportation System Impact Fee (Condition No. 35..1) and Open Space and Agricultural Preserve Fee (Condition No. 35.2) from mandatory $2.00 per ton fees, to be levied by and at the discretion of the Board by separate action, up to a maximum of $2.00 per ton for each fee. However, upon further discussion, the Board members indicated a desire to amend Conditions Nos. 35.1 and 35.2 to provide as follows: 1) the amount of the fees to be levied, up to $2.00 per ton for each condition, shall be at the Board's discretion, but the total fee shall be at least $3.00 per ton, but not to exceed the existing total $4.00 per ton limit; 2) the $3.00 to $4.00 per ton fees levied may be used for host community mitigation purposes in addition to transportation and/or open space/agricultural preserve purposes. The County Counsel was directed to prepare language for the Board's consideration, and to discuss the legal implications of amending the LUP as indicated at this time. Board of Supervisors October 17, 1994 Page 2 H. POSSIBLE LANGUAGE FOR AMENDED CONDITION. Assuming our understanding of the Board majority's intent is correct, we suggest that the Board "stay" the operation of Conditions Nos. 35.1 and 35.2, and "replace" said conditions with a new Condition No. 35.8: "35.8. The Landfill operator shall pay to the County of Contra Costa a fee, the amount of which may be set by the Board of Supervisors by Board Order from time to time, which amount shall not be less than $3.00 per ton and shall not be more than $4.00 per ton, on solid waste received at the Landfill. The fee shall be used as directed by the Board in its sole discretion: 1) to mitigate the general impacts of Landfill-generated traffic on the County's road system, 2) to mitigate the general impacts of the Landfill on open space, existing and proposed recreational facilities, and agriculture, or 3) to mitigate any general impacts of the Landfill upon the surrounding community." III. DISCUSSION. At the time of the Board's consideration of LUP No. 2020-89 for the Keller Canyon Landfill, due in part to concerns that a sufficient "nexus" could not be established to support a host community mitigation fee as a permit condition of approval, a per-ton host .community mitigation fee was not included in the LUP. A host community fee was instead included in the franchise agreement with the landfill operator. None of the conditions set forth in LUP No. 2020-89 were judicially challenged in a timely manner. For this reason, Government Code section 65907 (statute of limitations for challenging decisions on conditional use permit matters) now precludes a challenge of such conditions as contained in LUP No. 2020-89. To the extent that the Board now elects to condition the LUP upon the payment of a fee which may be used for "host community" mitigation purposes, such condition may now become subject to a timely taken judicial challenge. In addition, we note the addition of a condition imposing a fee which may be used for host community mitigation purposes was not considered by the Planning Commission. Of course, if this condition is adopted and is not challenged in a timely manner, it too will have the benefit of section 65907. It is possible that a challenge to the proposed condition as set forth above could succeed while the Board's repeal of Conditions 35.1 and 35.2 might be given full Board of Supervisors October 17, 1994 Page 3 force and effect, thus eliminating all such fees. To avoid this possibility, the Board may wish to condition the "staying" of 35.1 and 35.2 upon the above proposed new condition becoming and remaining effective. In other words, the following could also be adopted: "Conditions Nos. 35.1 and 35.2 of LUP No. 2020-89 are hereby stayed in their operation as long as Condition No. 35.8 remains in full force and operation. Should Condition No. 35.8 ( or any portion of it) for any reason be set aside or stayed in its operation, then Conditions Nos. 35.1 and 35.2 shall be in full force and operation except that the Board of Supervisors at its sole discretion shall determine the extent and amount of each fee to be levied." LTF 9a:\lup 1018.94 To be considered with H-4 IN THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA SUBJECT: In the matter of Contra Costa County joining the 1 Central Contra Costa Solid Waste Authority 1 RESOLUTION NO. 94/ The Board of Supervisors of Contra Costa County RESOLVES THAT: WHEREAS, on September 26, 1994, the Board of Directors of the Central Contra Costa Solid Waste Authority (CCCSWA) considered the request 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: • The County shall join as an equal member with two (2) voting members. • County Board Authority members shall be Supervisors. • County must agree to delegate collection franchising authority to the CCCSWA for the unincorporated areas within the current Authority boundaries (within RFP Zones 1 and 2-Zone 1: Pacheco Clyde, Saranap, Pleasant Hill BART; Zone 2: Alamo, Blackhawk). • 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. WHEREAS, the Board of Directors of the Central Contra Costa Solid Waste Authority (CCCSWA) stipulated there would be no buy-in fee unless the County added area to current JPA boundaries. WHEREAS, the Board of Directors of the Central Contra Costa Solid Waste Authority (CCCSWA) 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. WHEREAS, on September 13, 1994, the Contra Costa Board of Supervisors voted to explore membership in the Central Contra Costa Solid Waste Authority and appointed Supervisors Jeff Smith and Gayle Bishop to meet with the Authority on this matter. NOW, THEREFORE, BE IT RESOLVED THAT THE COUNTY OF CONTRA COSTA hereby accepts membership (with the following stipulations). PASSED by the following vote of the Board of Supervisors on the 25th day of October, 1994: AYES: NOES: ABSENT: ABSTAIN: I hereby certify that the foregoing is a true and correct copy of an order entered on the minutes of the Board of Supervisors on the date aforesaid. Contact: Val Alexeeff (510/646-1620) Witness my hand and the Seal of the cc: Community Development Department (CDD) Board of Supervisors affixed on this County Administrator day of 1994. County Counsel CCCSWA via CDD Phil Batchelor, Clerk of the Board of Supervisors and County Administrator BY: Deputy Clerk RESOLUTION NO. 94/ RCZ3:CCCSWA.re9 10-20.84 City Of Pittsburg Civic Center • P.O. Box 1518 • Pittsburg,California 94565 OFFICE OF THE MAYOR October 25, 1994 The Honorable Tom Powers, Chair Contra Costa County Board of Supervisors 651 Pine Street Martinez, California 94553 Dear Supervisor Powers: It has come to our attention that Citizens United has put forth a proposal for the allocation of solid waste mitigation monies. We understand that this proposal apportions a specific fee amount for use in the City of Pittsburg, and delineates a process for the distribution of the money. Please be advised that Citizens United does not represent the City of Pittsburg in this matter. The proposal advocated by Citizens United has not been presented to our City Council for consideration, and at this time it is not endorsed by the City. The Citizens United proposal needs to be distinguished from the City's own request that it be compensated for the negative impacts of the Keller Canyon Landfill. As you know, the City and County are currently negotiating the terms of this compensation in accordance with the formal request made by the City of Pittsburg on July 15th pursuant the Contra Costa County Ordinance No. 89-81. We believe that this clarification is necessary to guard against any misunderstanding which may impede the progress being made in these negotiations. In closing, we ask that the Board consider postponing any decision affecting the overall distribution of mitigation money until the Keller Property Valuation Study has been finalized and its findings can be considered. Thank you for your attention to this matter. Sincerely, !RECEIVED Mary ez, May OCT Z 5 I + % cc: Members the City Council CLERK BOARD OF SUPERVISORS S. Anthony Donato, City Manager CONTRA COSTA CO. California Healthy Cities Project National Center for Public Productivity Exemplary Award - 1993 City of New Horizons Citizens United 2232 Concord Dr. Pittsburg, CA 94565 (510)458-4419 Citizens dedicated to the environment and dealing with environmental health issues Board of Supervisors October 23, 1994 651 Pine St Matinez, CA 94553 Honorable Tom Powers, Chair and Members of the Board: Proposal by Citizens United for the allocation and administration of Host Community Funds; Keller Canyon Landfill. Primary Objective To ensure funds are collected and placed in trust for use by the impacted host communities as identifiied by previous Board Orders and Board Policy. Secondary Objectives A) To put in place mechanisms to guarantee the funds will remain in place and at a level and rate that will provide the Host Communities just compensation for being host to a Class II landfill for the disposal capacity of the landfill. B) The level of fees should be at a sufficient level to encourage recycling by the Communities and other users using the landfill. This will help the County reach the requirements of AB939 and will help divert waste from the landfill thereby creating additional longterm disposal capacity for the County. C) The fees should be at a sufficient level to re-enforce to landfill users their commitments and responsibilites for the environmental and social impacts put upon the Host Communities, and to encourage all landfill users to use the landfill responsibly. The placing of the fees at a sufficient level will also protect the Host Communities and all County residents by holding down any additional impacts due to landfill related traffic congestion, increased air pollution, and other environmental and social impacts. RECEIVED OCT 2 5 l9u CLERK BOARD OF SUPERVISORS CONTRA COSTA CO. Note: Alameda County charges per that County's Measure D initiative a recycling fee of $6.00 per ton. The Objectives in this proposal will hold costs down for users of the landfill by putting in place Host Community Funds at a sufficient level that will both adequately compensate the Host Communities and encourage recycling at the same time, without adding additional burdensome fees on Contra Costa residents such as the Alameda County Measure D fee imposes upon the residents of Alameda County and those other communities and juristictions using the facility. HOW TO ACCOMPLISH THE GOALS AND OBJECTIVES The Board should enact by Board Order 1. That the Community Host mitigation fees be collected monthly and the fees be deposited into trust fund accounts independant of Contra Costa County. 2. That a Host Community Mitgation Finance Committee be formally formed for each of the Host Communities. One for the Acme Community. One for the Pittsburg Community. One for the Bay Point Community. 3. That these independant Host Community Finance Committees have charge to collect, plan, allocate, and dispurse the funds collected and placed into their trusts. 4. That each Host Community Finance Committee shall be funded from the funds collected and placed in their trusts. 5. That each Host Community Finance Committee is made up of only residents from that Host community for which the committee is established. And that each member of that commitee be appointed by the Board of Supervisor whose District the Host Community is located in. And that prior to appointment, the appointing Supervisor shall be required to accept applications for the appointment and hold public hearings for input on ,J r 6. Set the current level of Host Community mitigation per ton for each Host Community with yearly increases set to the Consumer price Index. 7. Require the Host Community mitigation 'fees to stay in place for the length and term of the Amended Franchise Agreements recently entered into by the County and the owners, operators, and or lessors, lessees of Acme, BFIC Corp., and the Keller Canyon Landfill Company. OJJ17W , CROSBY, HEAFEY, ROACH & MAY PROFESSIONAL CORPORATION ATTORNEYS AT LAW 1999 HARRISON STREET 700 SOUTH FLOWER STREET,SUITE 2200 OAKLAND, CALIFORNIA 94612-3573 333 BUSH STREET,SUITE 2580 L05 ANGELES,CALIFORNIA 90017 (510)763-2000 • (415) 986-3400 SAN FRANCISCO,CALIFORNIA 94104-2899 ( 896-8000 I(415)391-8269 FAXX(2(213)896-8-8 FAX(510)( )273-8832 FAX( 15)391-8269 MAILING ADDRESS: POST OFFICE BOX 2084 -. OAKLAND,CALIFORNIA 94604-2084 Direct Dial (510) 466-6857 RECEIVED OCT25W October 25, 1994CLERK 13077— .; .%I r�1.:�� VIA MESSENGER Supervisor Tom Powers Supervisor Jeff Smith Supervisor Gayle Bishop Supervisor Mark DeSaulnier Supervisor Tom Torlakson Board of Supervisors Clerk of the Board Contra Costa County 651 Pine Street, Room 106 Martinez, CA 94553-1293 Re: Hearing on Amendment 1 to Land Use Permit No. 2020-89; October 25, 1994, Agenda #H.5 t Dear Supervisors: 'i Our letter of September 26, 1994 on behalf of Valley Waste Management identified potential CEQA violations if the Board adopts Amendment No. 1 to Land Use Permit No. 2020-89 without further CEQA review. The Staff's Report of October 4, 1994 responded and suggested that there were no substantial CEQA issues. We respectfully disagree and point out that CEQA is to be liberally construed, and that its purpose is to ensure full and fair consideration of environmental impacts before irrevocable steps are taken. Here, there should be no doubt that the proposed amendment to Keller's Land Use Permit is a "project" requiring CEQA review. (Public Resources Code Section 21065; CEQA Guideline Section 15378(a)). Furthermore, there is no doubt that this Board previously considered the Transportation and Open Space Mitigation Fees essential to mitigate transportation, open space, and other community impacts from the Keller Canyon Landfill. For this reason, the Board included these fees as Special Conditions in approving the LUP shortly after Keller's EIR was certified. The Staff Report, unfortunately, does not focus on the CEQA definition of "project" and the common sense connection between the impacts and mitigation fees. Instead, the Staff Report engages in an elaborate parsing of the various provisions in the EIR and LUP in order to reach the conclusion that CROSBY, HEAFEY, ROACH & MAY PROFESSIONAL CORPORATION Board of Supervisors October 25, 1994 Page 2 the Transportation and Open Space fees were actually not related to environmental impacts in the EIR. What else, then, were these fees for? We think the Staff's approach misses the point of CEQA review -- which is to evaluate impacts in the real world, rather than indulging in theoretical arguments as to whether all of the impacts in the EIR could somehow be "covered" by specific conditions, thus rendering the Mitigation Fees superfluous. Our specific comments on the Staff Report are as follows: 1 . Transportation (Roadway) Impacts Are Mitigated And Should Continue To Be Mitigated Through County Fees. The Staff Report suggests that all of the transportation-related impacts in the EIR were to be mitigated by other conditions in the Land Use Permit. This argument, in fact, recognizes one of our most important points: It is indisputable that the conditions in the Land Use Permit address impacts identified in the Draft EIR. The Staff wishes to pick and choose among the conditions and to ignore Condition 35.1, which is expressly labeled a "Transportation System Impact Fee." That Condition requires the operator to pay fees ". . .to mitigate the general impacts of the Landfill-generated traffic on the County's road system." There is no denying that the Landfill does have such impacts on the County's road system, and the Draft EIR says so, as pointed out in detail in our September 26 letter. The Staff's argument thus ignores the obvious purpose of Condition 35.1 . Furthermore, the Staff's argument assumes, without basis, that the transportation impacts listed in the Draft EIR, and in the Staff's Table, are only to be mitigated by the specific mitigation measures referred to in the EIR. It was clearly the Board's intention in 1990 that transportation impacts were to be mitigated by both the general fees as well as specific mitigation measures, such as trip limits. The Draft EIR itself recognized that County fees were an appropriate mitigation measure, along with other specific measures. It is therefore arbitrary to say that the Mitigation Fees are superfluous. Staff also comments that Conditions 35.1 and 35.2 were not prepared until one month after the Final EIR was certified, and that these Special Conditions were not approved by the Board until four months later. Contrary to the Staff's interpretation, this timing confirms that the Board considered these mitigation measures important in addressing impacts from the Keller Canyon Landfill. With regard to the CEQA Findings attached to the Land Use Permit, Staff argues that each finding tracked a specific condition of approval, and that the Board's findings did not mention Conditions 35.1 or 35.2 ". . .as implementing any mitigation measures listed in the Final EIR." (Staff Report, p.1). The answer to this point is that Conditions 35.1 and 35.2 impose CROSBY, HEAFEY, ROACH & MAY PROFESSIONAL CORPORATION Board of Supervisors October 25, 1994 Page 3 general Mitigation Fees which would address a variety of impacts, such as roadway maintenance and upgrades, or preservation of open space and recreational facilities. One would not expect a listing of all the different mitigation measures to be funded by these fees. In short, to say that Conditions 35.1 and 35.2 are irrelevant because they are general, rather than specific, is to ignore the purpose of these mitigation measures. Furthermore, the Board's CEQA Findings state that, "The language of the Conditions of Approval in any given instance may not use the exact wording of the FEIR to describe the mitigation measure, but the mitigation measures have been required. To this end, the Conditions of Approval and the stated mitigation measures are to be considered as an integrated whole with these findings." (Findings, § C, p.4; emphasis added). In other words, all the Conditions of Approval and the mitigation measures must be considered together with the Findings. There is no basis for arbitrarily excluding some of the Conditions. 2. The EIR Identifies Open Space And Secondary Community Impacts, And These Impacts Are Mitigated Through the Open Space Fee. The Staff's argument is, again, that specific mitigation measures addressed any open space and community impacts identified in the Draft EIR. The use of specific mitigation measures, however, does not mean that general mitigation measures are unnecessary. Certainly, the Board did not think so in 1990 in imposing Open Space fees as a "Special Condition of Approval." The Staff also states that, "Even if a certain EIR-related impact CAN be mitigated by a fee such as the open space fee or host mitigation fee, that does not mean that such fees were, in fact, imposed for that purpose." (p.2). This is a curious argument. There is no doubt that Open Space fees were imposed, and that these fees were used, at least in substantial part, for open space purposes. This being the case, one must conclude that Open Space fees were imposed to mitigate open-space impacts, just as the Board originally intended in Condition 35.2. The Staff's last argument appears to be that Open Space fees should not be used to mitigate "unavoidable" impacts, because such impacts are addressed by a "statement of overriding considerations." Again, the Staff is incorrect in insisting that only one method can be used to deal with an impact. If there are unavoidable community impacts, they can be addressed by a general mitigation fee as well as a statement of overriding considerations. 3. Rescinding Conditions 31 .9 And 35.4 Will Reduce Keller's Obligation To Fund The County's Resource Recovery Program. Staff does not dispute that the proposed changes in Condition 31 .9 will significantly reduce Keller Canyon's obligation to support the County Resource CROSBY, HEAFEY, ROACH MAY PROFESSIONAL CORPORATION Board of Supervisors October 25, 1994 Page 4 Recovery Program. No other conclusion is possible, because the "old" Condition 31 .9 required Keller to impose a tonnage surcharge adequate to support the Progr@m, whereas the "new" condition only requires Keller to "financially contribute" to the Program. The Staff's answer is that other sources of funds are available. The Staff states: "The County retains the power to ensure the adequacy of funding for its program, in an amount it deems appropriate. The program does not depend on a particular tipping fee component." (p.2). In our view, there are two problems with this answer. First, where else will the money come from? Chuck Zahn's October 4, 1994 Memorandum states that the County could obtain money from Condition 31 .10 or, perhaps, from other sources, such as "collection franchise area administrative fees." (p.2). These comments simply highlight the fact that, at present, there are no other confirmed sources of funding. The suggestion that the County "can find the money somewhere" does not seem an adequate answer when the proposed change in the LUP will clearly result in reduced program funding by Keller Canyon. Second, even if other sources of funds are found, this does not mean that reducing Keller's fees has no impact. Under the present LUP, Keller has an obligation to fund an adequate resource recovery program, and any change in that obligation creates ,an uncertainty about funding that could lead to environmental impacts. The mere possibility of such impacts requires a CEQA review. 4. Reducing Or Eliminating The Mitigation Fees Will Reduce Or Eliminate Mitigation. The above proposition seems self-evident. The Staff, however, says that these mitigation fees are unnecessary, because all impacts are mitigated by other measures or conditions. Once again, this begs the question. Environmental impacts can be and are mitigated by general fees as well as specific mitigation measures. The fact that the specific measures remain does not mean there will be no impacts if the general measures are eliminated. 5. A Notice Of Exemption Is Improper, Because There Is A Possibility Of Significant Environmental Effects. The Staff acknowledges that CEQA Guideline Section 15061(b)(3) must be strictly construed, and that a Notice of Exemption cannot be used where there is "any possibility" that the activity may have a significant effect on the environment. The Staff nevertheless states that they have not "ascertained any potential impact that could possibly result from the proposed amendment to the Keller LUP." (p.3). CROSBY, HEAFEY, ROACH & MAY PROFESSIONAL CORPORATION Board of Supervisors October 25, 1994 Page 5 To reach this conclusion, it is necessary to ignore (1) the possible environmental effects from eliminating hundreds of thousands of dollars in Transportation Fees which have contributed to maintenance of County roads (2) impacts from loss of hundreds of thousands of dollars in Open Space Fees which have contributed to a variety of open space and community programs, and (3) the admitted reduction in Keller Canyon's obligation to support County resource recovery, with potential effects on programs and the County's ability to regulate. We do not believe all these potential effects can be ignored. In summary, the Staff obviously disagrees with us as to whether there will be environmental impacts from the proposed changes in the LUP, but it is difficult to justify a Notice of Exemption and insist that there is "no possibility" of such impacts. Given the obvious benefits of these two fees in reducing roadway and other community impacts, it seems fair to say that some environmental impact from eliminating these fees is not only possible, but probable. A Notice of Exemption is therefore legally improper, and the Board should require a more thorough and objective CEQA study. As stated earlier, this change in the LUP is a CEQA project and it deserves regular CEQA review. While we understand the Board's desire to bring this matter to conclusion, there is no deadline facing the Board and no reason to shortcut the CEQA process. Instead, the Board should carefully examine the CEQA issues relating to Keller, just like the financial issues, to insure that the Board's decision stands the test of time. CROSBY, HEAFEY, ROACH & MAY Professional Corporation Randall D. Morrison Attorneys for Valley Waste Management RDM:ma cc via facsimile with hard copy to follow: Silvano B. Marchesi, Esq. Assistant County Counsel HA COUNTY COUNSEL'S OFFICE CONTRA COSTA COUNTY MARTINEZ,CALIFORNIA Date: October 25, 1994 To: Board of Supervisors From: Victor J. Westman, County Counsel By: Lillian T. Fujii, Deputy County Cunsel Re: Comments re Supplement to Staff Analysis of Keller and Acme Franchise On October 11, 1994, Supervisor Powers submitted to the Board of Supervisors, a document dated October 10, 1994, entitled "Response to Keller/Acme Amendments - Supplement to Staff Analysis for Consideration by Board of Supervisors." The Board of Supervisors directed County staff to meet with representatives of the Keller Landfill and the Acme Transfer Station to discuss the issues raised in the aforementioned document, and to discuss whether the Keller Landfill and Acme Transfer Station operators are agreeable to amending the franchise agreements. Pursuant to the Board's direction, this office and Community Development Department staff met with Thomas M. Bruen, who represented both the Keller Landfill and the Transfer Station operators. The issues raised were discussed, and Mr. Bruen expressed satisfaction with the terms of the current franchise agreements and did not indicate a willingness to amending the franchise along the line indicated by Supervisor Powers. We understand that the representatives of the Keller Landfill and Transfer Station will be attending the Board's October 25, 1994 meeting. cc: Val Alexeeff, Director, GMEDA Louise Aiello, Community Development Depart. LTF 9a:\pw101094.mem COUNTY COUNSEL'S OFF/CE CONTRA COSTA COUNTY MARTINEZ, CALIFORNIA Dace: October 25, 1994 To: Board of Supervisors From: Victor J. Westman, County Counse Re: County-BFI Franchise Agreements At the Board of Supervisor' s October 11, 1994 , meeting, a question arose as to whether the County-BFI franchise agreements ( "the agreements" ) remained open for further deliberation by the Board or whether they had been approved by the Board and offered to and accepted by BFI . Attached to this memorandum is a copy of the Clerk' s draft transcription of the Board' s September 13 , 1994 , meeting relevant to this question. (This transcription was originally presented to the Board and to interested members of the public on September 27, 1994 , as part of the GMEDA Director' s package to the Board of that date . ) Also attached to this memorandum is a copy of the Clerk' s summary of proceedings (see Government Code section 25150) , which reflects the Clerk' s summary view of the Board' s action at its September 13 meeting. At the Board' s October 11 meeting, this office expressed its initial view that the agreements appeared to have been approved by the Board and offered to and accepted by BFI . This office based this initial view on the following: (1) The draft transcription of the Board' s September 13 meeting indicates at page 14 that, regarding the Board' s action of that date on the agreements, this office stated: "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. " (2) The transcription further indicates at page 15 that Supervisor Smith stated: "So, with those modifications and everything that Vic said I' ll make that motion. That we approve the franchises . Everything that we said. ,, (3) The transcription finally indicates on page 16 the statement : "Okay, then we need to vote on the franchise agreement, " and "All in favor of the motion, signify by saying aye . Those opposed. " The transcription reflects that the motion passed, four to one . The Clerk' s summary view of proceedings indicates agreement approval . Board of Supervisors October 25, 1994 On September 13 , and October 11, this office assumed that the Board understood and agreed that, when this office used the word "execution, " it was referring to execution by BFI, i .e . , an acceptance (or rejection) by BFI of the offer being made by the Board. Such a practice, i .e . , one in which the Board approves an agreement subject to its acceptance (or rejection) by the other party, with the Board Chairperson (or designee) to sign the agreement at a later time if it is accepted, is not atypical . If the Board' s intent on September 13 was to follow this practice, an agreement can be formed when the Board' s approved offer is accepted by the other party, and the Board can not modify or withdraw its approved offer after the other party accepts it . Here, BFI accepted and approved the agreements before the Board acted further. If the Board understood its September 13 action to have some other interpretation than that of this office noted above, it should be clarified by the Board' s consideration and adoption of the minutes for its September 13 meeting. When this office spoke to the Board at its October 11 meeting, this office was incorrect that the Board had already reviewed and approved the minutes of the Board' s September 13 meeting. This office understands that, pursuant to the Clerk' s statutory duty (see Government Code sections 25101 and 25103) , the Clerk is preparing these minutes for the Board' s consideration. When the draft minutes for the Board' s September 13 meeting are presented to the Board, it should clarify its intent and interpretation concerning the actions taken on that date as part of its approval of those minutes . Those minutes, when finally approved by the Board, should reflect clearly what occurred at the Board' s September 13 meeting, consistent with the meeting' s transcription. Finally, attached to this memorandum is a copy of a letter regarding what occurred at the Board' s September 13 meeting. This letter was received by this office on Friday, October 21, 1994 , at noon from the law firm of Norris & Norris . It presents other views on this subject . (See page 2 of the letter for a summary of Norris' & Norris' views, to which this office responds immediately following. ) First, although it might be the law in other states, it is not the law in California that a general law county can "reverse and rescind contracts after legislative approval but before execution by the designated municipal officer. " Instead, where no specific statutes govern, e .g. , bidding statutes, relevant California law conforms to the general offer and acceptance principles of contract law, as discussed above . Second, as also discussed above, it has not been clear to this office that "the intention of the parties" was to have a document signed both "by an officer of BFI and the Chairman of the Board of 2 Board of Supervisors October 25, 1994 Supervisors" before an agreement (s) existed. The Board should consider and clarify its intent in this regard as part of its adoption of the minutes for its September 13 meeting. Finally, assuming that the Statute of Frauds applies here (and, based upon its cursory review of this point since Friday, this office believes that it does) , the Statute operates not to invalidate an agreement but as a legal affirmative defense to liability if the agreement is not signed by the party to be charged, i . e . , the party who is the defendant in a lawsuit alleging breach of the agreement . Accordingly, if the Board chose to rely on the Statute in this instance, it would be necessary for the Board to indicate that the September 13 agreements will not be signed and honored. If BFI then sues the County for performance or damages, the County at that time could assert the Statute as a legal affirmative defense to liability. The Board' s adoption of the minutes for its September 13 meeting should determine its position whether the legal affirmative defense of the Statute of Frauds will be necessary. ctla:rush.vjw 3 SUMMARY OF THE PROCEEDINGS '�:•� BEFORE _ SOBS OF CONTRA COSTAOUNTY FETING IN ALL ITS CAPACITIES n GPP�� PURSUANT TO ORDINANCE CODE SECTION 24-20402 TUESDAY,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, 64.0 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. DETERMINATION 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. ) Partial Text of item 2 .3 from September 13, 1994 Q.r�; Ypa""nrd 'Supervisor Bishop: I would like to respond to the hen 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 is 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 inypacts. 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 i,t '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? i �- 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 1 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 tee 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. '1 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 a 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 V 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 1 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. a 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 !a fee and if we don' t need it, we refund it to the public. i 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. ,f 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 did 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 9$ 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 saidyou'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 i` 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 i� 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 P. 001 21' 94(FRI) 11:59 NORRIS & NORRIS NORRIS rel NORRIS RICHARD E.NORRIS Ho"TOP OFFICC PARK 1E1-EPHONE H_JEFFRfY MICKLAS 3260 GLUME DRIVE.SUITE ZOO (5101 2aa-2100 DOUGLAS C..VTRAUS CY EPST{IN RZCS2tcom, COLIN J.COFFEY C,AI•LFORIQId OaeO$-1961 FACSIMILE JOSHUA 0.OENSER 9PWARo I-SHAFFER (5101 2z2.6GpZ OAV10 6,SMITH SHARON A.IVERSEN JUSTIN D.BCHWARTZ NOtL M.CAU GHMAN J.Eli(Ck OIMALANTA FACsIMYL>a COVER SHEET Date: 1�,, To: Y `LT.d't u)j ____ Fax # 10 -(E.W,-�(}7Z -MCth j1.1 Fax FaX if ��d� /1 � Fax # Re: IY ( m �G/�i.� Leh?/j_ Enclosure: From: Shelly Hartman, ext. 120, assistant to Richard Norris and Justin Schwartz Total Number of Pages (including this cover page) Message: PX D t1� La U-b 1�9�D_r yLbi 11R Should you have any problems receiving this transmission, please contact Shelly Hartman at 510-222-2100, extension 120. Thank you. WARNING: This message is intended only for the use of the individual or entity to which it is addressed and may contain information that is privileged, confidential, and exempt from disclosure under applicable law. If you are not the intended recipient, you are hereby notified that any use, dissemination, distribution, or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by telephone, and return this original message to us at the above address via the Us Postal service- Thank you. \DOC\N9999001\103983 p.001 OCT-21-1994 11:58 21' 94(FR1) 12:00 NORRIS & NORRIS P. 002 NORRIS !0, NORRIS RICHARD E.HORRts HILLTOP OFFICE PARK TgL[PHQNE M.JEfFREY MICKLA.s 3260 BLUME DRIVE. SUITE 200 1510'2EY•2100 OOUGLA5 C.STRAuS GY CN GOLINJ..COREY RICHMOND,C IJ70MIMA"aOG.1061 JOSHUA G.GENSCA fAGsIMILF. COWARD I-s"AfFER [Mat 222-5892 OAVIO S.SMITH SHARON M.WERSEN JUSTIN O.SCHWARY2 NDEL M.CAUGHMAN J.CRICK OIM.ALANTA MEMORANDIIM DATE: October 21, 1994 FROM: Richard E. Norris, Norris a Norris TO: victor J. Westman, county counsel By Facsimile 510-646-1078 RE: The Board of supervisors has the Right to Review, Revise and/or Rescind the Keller and Acme Franchise Agreements INTRODUCTION our law firm represents Potrero Hills Landfill, Inc. , a company which is actively and successfully competing with Keller Canyon Landfill, Inc. , and, indirectly, with Acme Transfer Station. On behalf of our client, we have been following the issue of the approval of Franchise Agreements for Keller Canyon Landfill and the Acme Transfer Station. The initial, tentative opinion of County Counsel to the effect that the approval of the Franchise Agreements between the County and Keller and Acme constitutes a binding agreement upon the County absent execution of the Franchise Agreements by the Chairman of the Board of Supervisors is incorrect. While there are circumstances when an unexecuted agreement could, in theory, bind the County, those circumstances are ,not present in this matter. County Counsel's initial opinion in this matter_ unnegessar-ily limits the power of the Board of Supervisors to serve the interests of the rate payers, tax payers, and neighbors of Keller and Acme within Contra Costa County. We have researched the issue carefully and we are hopeful that you will reconsider the initial, tentative opinion offered regarding the rights of the Board of Supervisors with respect to the Franchise Agreements with Keller and Acme. FACTS The Board of Supervisors of Contra Costa County (hereinafter sometimes referred to as the "Board's) , on motion duly made and seconded, approved a Franchise Agreement between the County and Keller Canyon Landfill, Inc. , and Acme Fill Transfer Station (hereinafter the contracting parties will be referred to jointly as "BFI" and the Franchise Agreements will be referred to jointly OCT-221-1994 11:'58 P.Lu0k OCT. -21' 94(FRI) 12:00 NORRIS & NORRIS P. 003 victor J. Westman, Esq. October 21, 1994 Page 2 as the "Franchise Agreement" or "Agreement") . The motion provided that the Chairman of the Hoard would sign the "to be revised" Agreement with BFI. The Agreement is to be performed over several years. County Counsel reported by memo to the Board the changes which County Counsel understood were to be made to the Agreement. Hearing no objection from the Board Members, County counsel amended the Agreement in accordance with the memo and forwarded the Agreement to the Board and to BFI. BFI signed the Agreement, knowing that terms of the Agreement were on the agenda of the Board of Supervisors for discussion. The Board is presently reconsidering some of terms of the Agreement and an issue has arisen as to whether or not the Board has the legal right to revise the Agreement at this stage. The Chairman of the Board has not signed the Agreement. County Counsel has offered a preliminary opinion that the Agreement is binding on the County even in the absence of a signature by the Chairman. We respectfully disagree with the tentative conclusion of County Counsel. QUESTION PRESENTED Is the Franchise Agreement valid and binding without the Chairman's signature? SHORT ANSWER No. - a) The Statute of Frauds requires that contracts tot to be performed within one year must be in writing and signed by the-party to be charged. b) It was the intention of the parties as evidenced by the pattern and practice of the county, the document produced by County Counsel, and the Resolution approving the Agreement to create a written agreement to be executed by an officer of BFI and the Chairman of the Board of Supervisors, so the Agreement is not valid until it is signed by both parties. c) The law is clear that in the absence of special circumstances such as statutes governing competitive bidding, government entities may revise or rescind contracts after legislative approval but before execution by the designated municipal officer. \00C\P0059011\110060 2 uCT- 1-1'+91 11:58 F.OFJ- OCT. -21' 94(FRI) 12:00 NORRIS & NORRIS P. 004 Victor J. Westman, Esq. October 21, 1994 Page 3 DISCUSSION A. THE FRANCHISE AGREEMENT IS SUBJECT TO THE STATUTE OF FRAUDS AND MUST BE SIGNED. The Statute of Frauds provides that contracts that cannot be performed within one year are invalid unless they are in writing and signed by the party to be charged. California Civil Code §1624. In the present case, the Agreement at issue is for a term of greater than one year. Thus the Agreement must adhere to the Statute of Frauds in order to be valid. County Counsel, in its initial, tentative opinion, argues that BFI may seek to enforce the Agreement against the County and that the Agreement may, indeed, be enforceable. The analysis of the enforceability of the contract is from the perspective of BFI seeking to compel the County to act in accordance with the unsigned agreement, it is axiomatic that the Statute of Frauds in California requires that the County must have signed the agreement in order for it to be enforceable against the County. Without the Chairman's signature, the Agreement does not adhere to the requirements of the Statue and is not enforceable. It is equally clear that the instant case does not present facts which would support an exception to the Statute of Frauds since there are no facts which would support a claim of fraud, estoppel, or reliance on the part of BFI. 'BFI may argue that it could seek to compel the execution of the Agreement by the Chairman of the Board of Supdivisors by Mandamus. While Mandamus may be a remedy to force a single, obstructionist public official to carry out the direction of a legislative body, it is not a means of denying the Board of Supervisors the right to revise or rescind the Agreement prior to its lawful execution. It is simply illogical that BFI could compel execution of the unsigned contract in order to obtain the result which it could not obtain in a direct action to enforce the Agreement. B. THE PARTIES INTENDED TO CREATE A WRITTEN AGREEMENT. Not only is a writing required by the Statute of Frauds, it was understood by both the Beard and its staff on the - one hand, and BFI on the other, that a fully executed written \000V0059011\110060 3 QCT-21-199-4 11:50 p.0Q4 OCT. -21' 94(FRI) 12:01 NORRIS & NORRIS P. 005 Victor J. Westman, Esq. October 21, 1994 Page 4 agreement was intended. In the seminal case of Dexter v. Ankiewicz, (1938) 79 P.2d 400, the court held that "when parties understand that before a contractual relationship shall exist the terms of their contract are to be reduced to writing and signed by them, a binding or completed contract does not arise until a writing . . . has been executed by the respective parties." Id. , at 403 .see also (Kessingery. Organic Fertilizer, (1957) 312 P.2d 352) (emphasis added) . In the present case, there is evidence that both BFI and the County intended to enter into a written franchise agreement. To begin with, it is the custom and practice of the County to reduce such agreements to writing and to have them signed by the Chairman of the Board. Indeed, the Board directed County Counsel to draft the agreement to conform to its motion and County Counsel provided a signature line for the Chairman of the Board and for BFI. BFI also intended the franchise agreement to be in writing. They were active participants in the revisions to the Agreement occasioned by the actions of the Board and they were engaged in making changes to the agreement up to the day prior to their own execution of the Agreement. of course, BFI executed the Agreement, as well. It is inconceivable that BFI did not intend that the Franchise Agreement be a writing in light of all of the facts and circumstances of this case. BFI has demonstrated by its execution and delivery of the written agreement that the formal execution of the Agreement was an event with legal significance. Certainly, BFI did not consider itself bound prior to its execution of the Agreement. The Dexter case is abundantly clear that the signing of the--contract is a necessary predicate to its enforceability where, as here, the parties intend to have a written and signed agreement. It is unfair and unreasonable to hold that the County is bound without a signature while BFI is not. C. THE AGREEMENT IS NOT FINAL UNDER MUNICIPAL LAW. BFI argues that all that a binding agreement between the County and themselves was created by the approval of the Board to enter into a Franchise Agreement. The facts and the law compel a contrary result. \00C\P0059011\110060 4 OCT-21-1994 11:5-9 P.C171 OCT. -21' 94(FRI) 12:01 NORRIS & NORRIS P. 006 . Victor J. Westman, Esq. October 21, 1994 Page 5 The Board of Supervisors did not specify in their motion that the Franchise Agreement would be binding in the absence of its execution by the Chairman of the Board in the ordinary course of business. In the leading case of Brophy v. City of Jolliet, 14 I11.App.2d 433, the court found that the approval by a municipality of a contract did not bind the city to the contract until it was signed. Id. , at 454. In Brophy, the court considered a contract which, like the one now before the Board of Supervisors, appears to become a binding agreement upon execution by the parties. The court stated that no contract could exist until the contract was executed, demonstrating the final approval of the municipality., at 454. The finding in Brophy is echoed many similar cases from throughout the United States (see also Erie Iron and Metal Co. y. US (1925) 60 Ct. Cl 882, cert den 269 US 567; McRae_ _v. Faruquhar (1925) 168 Ark 38; State ex. rel. McCormicky. Howell (1912) 26 Del. 387; Delta Democrat Publishing v. Bd. of public Contracts (1955) 224 Miss 848, 81 So. 2d 715; Kinsella v. Auburn (1889) 4 Silt/ Sup 101, 26 NYSR 884; S art v Philidel hia (1903) 205 Pa 329; Morganstern Electric v. Corapolis (1937) 326 Pa. 154; Chilli v. McKeesport School Dist. (1939) 334 Pa. 541; Wayne Crouse. Inc. v. Braddock Borough School Dist, (1941) 314 Pa 497; Schu-11 Construction v. Bd. of Regents (1962) 79 SD 487) There are cases which have found that the mere action of an elected board may bind the municipality, but in each of those cases there is an underlying obligation created by a bidding process or other statutory duty which arises in connection with the legislation considered by the board or cofualssion. Thus,, in some instances a public agency has been compelled to award contracts to a low bidder. However, there is absolutely no authority for the proposition that a government entity is obligated by a contract before its execution when there is no bidding or other statutory scheme that gives the contracting party some measure of special rights. Moreover, there is no authority that the County is exempt from the legal obligations imposed by the statute of Frauds (see Section I, above) . In the matter now before the Board of Supervisors, there is no special statutory scheme which gives BPI the unilateral right to bind. the County by its execution of the Franchise Agreement and no applicable exception to the Statute of Frauds. WOW0059011\110060 5 OCT-21-199-4 11:'59 P.006 OCT. -21' 94(FRI) 12:01 NORRIS & NORRIS P. 007 victor J. Westman, Esq. October 21, 1994 Page 6 CONCLUSION The rights and duties of the County and BFI in this matter are logical and simple. The Board of supervisors has passed a motion approving the Franchise Agreement. Staff has completed its drafting of the document and BFI has added its corrections and additions. The document is to be presented to the Board Chairman for his signature and to BFI for its signature_ Neither party is obligated until it signs, and the execution of the agreement by one of the parties does not bind the other in the absence of their execution of the agreement. The Chairman of the Board may not unilaterally refuse to execute the Agreement when the majority of the Board has directed him to do so. BFI could, in that instance, seek and obtain relief by means of a Writ of Mandamus. This relief is designed for the situation where a single member of a Board refuses to carry out the will of the Board. That is not the situation which we face in Contra Costa County. Here, there is clearly interest on the part of the Board to revise the Agreement to make it better for the rate payers in Contra Costa County and to correct mistakes and misunderstandings within the document which inadvertently got by the Board in the first round of discussions. It is simply unreasonable and inconsistent with applicable law to deny the Board the opportunity make the Agreement better simply because BFI signed its copy of the document delivered by staff. For so long as the Agreement is not executed, the Board has the right to revise or rescind it. There is no legal authority which gives BFT the right to deny the Board of Supervisors the right to revise or rescind a Franchise Agreement prior to its execution by the Board Chairman. The custom and practice of the County to have documents executed 1by the President of the Board must be interpreted to give the custom and practice meaning. Thus, the President of the Board is required to execute documents on behalf of the Board so that he can review the final draft and confirm that it is in accordance with the will of the Board. In this instance, the Chairman of the Board has reviewed the Agreement and elected to bring it back to his colleagues for further review. The system which the County uses for executing important documents has worked. The Board should be asked whether or not it wishes the Chairman to execute the Agreement which has been prepared by staff and executed by BFT or whether it wishes to have additional \DOW0059011\110060 6 OCT-c1-1994 11:59- F.00 OCT. -21' 94(FRI) 12:02 NORRIS & NORRIS P. 008 Victor J. westman, Esq. October 21, 1994 Page 7 and further changes made to the Agreement. If it is the will of the elected Board of Supervisors to make changes to the Agreement, the law allows the Board to do so. REN:slh cc: Silvano B. Marchesi, 510-646-1078 Lillian Fujii, 510-646-1078 \Dac\P0059011\110060 7 OCT-21-1'394 lc:FL) P.008 Text of items H.4 and H. 5 from October 25, 1994 Supervisor Powers : Last two items on the agenda are H.4 and H. 5 which relate to garbage. H.4 is the report of the Director of Growth Management and Economic Development on Franchise agreements, tipping fees and other landfill related actions including the County relationship with Central County JPA. Take that first . I think there is a report by dated October 17th by Vic regarding the land use permits . There' s a subsequent report in response to some concerns I expressed by Vic dated I guess today, yeah today, October 25th. There' s a resolution in the matter of Central Contra Costa Solid Waste Authority. And a whole bunch of other things . Do we have a staff report? Val Alexeeff : I think that the intent of the staff report would be to bring the Board back to the issues that were on the table essentially on October the eleventh and that is the land use permit, the franchise and the JPA. As you are aware, the land use permit was continued pending some issues that were raised regarding the franchise agreement and the JPA was based on becoming a member of the Central County Solid Waste Authority with San Ramon, Walnut Creek and Central San. As you probably are aware, Central San and Walnut Creek are still members of the authority but San Ramon has requested to be dropped from the membership and among the reasons that were cited was their ability to get preferential rates . Supervisor Bishop was at the meeting and participated in the meeting and perhaps would like to provide comment from the Ad Hoc Solid Waste Committee perspective. If you wish to do the JPA item first which may be the simplest and then. . . Supervisor Powers : Right . Supervisor Bishop: Get it out of the way. Supervisor Powers : Sure . Supervisor Bishop: I analogized this beforehand to being asked out on a date and go to a party and get to the party and everybody leaves the party and then turn around and find out that your date is gone too. Supervisor Smith: Boy, oh boy. Supervisor Bishop: I hope Cindy will understand that . Actually what happened I had been alerted to the fact that with respect to the Contra Costa Central Solid Waste Authority that San Ramon had determined on Tuesday evening to withdraw from the Authority. So, when I arrived that was one of the first things that was taken up, the fact that they were leaving and as we moved through the agenda when I finally came time for me to speak, we had Board direction based upon all the assumption of facts available to us 1 which was that we would be joining a JPA that would be two of eight votes . It was apparent that we would be two of six votes which depending on your point of view could really alter how effective we are at the Central County JPA. I had mixed feelings . I had not had an opportunity to talk to anybody about if this would affect our decision to join, as I was asked to explain the County position, I found it very difficult so what I did was explain our position as of the last time we met with the direction that Jeff and I were to go to the meeting and express and interest in joining the Authority. As you probably know, there were several conditions to our joining and one of my problems was we did not adopt a resolution to the effect that we agreed to all those terms and conditions and those terms and conditions being one, two representatives, both Board members, one that we would delegate or we would give to the Solid Waste Authority the ability to franchise, that it would not be the County franchising. That it would implicit in that would be that the notice that we gave to Central San that we would take over the franchising sort of eviscerated that process . To make a long story short, when it came time for me to speak, I wasn' t real sure whether this Board still wanted to join the Authority given the new set of circumstances or you know and we had not officially adopted a resolution. So, I indicated to them that I would get back to this Board to see what the intent of the Board is . If I might make a recommendation, I think we may want to delay adopting a resolution that we join the Central County Solid Waste Authority until such time that we see what the implications are of San Ramon not being there. My understanding too, my it' s not an understanding but I have had some indication that Walnut Creek may be of a like mind as San Ramon, so if they were to leave the Authority that would mean us and Central San and I don' t see that that gets us to the same place . I think this is an issue that we really perhaps need to find out what you know it' s like sand it coming out from under our feet . I think we have an interest in working together with other jurisdictions on the issues but I'm not sure that we want to adopt a resolution right now given the uncertainty of what' s going on at the Central County Solid Waste Authority. That' s my view. I think it would be probably premature to adopt that resolution now. Supervisor Powers : Okay, any other concerns or comments . Supervisor DeSaulnier: Maybe just for the sake of argument, play devil' s advocate and I'm not saying that I don' t disa, that I disagree with you. Does it empower the JPA more so that it holds it, it' s more likely to hold it together and keep Walnut Creek in it if we were to join. Supervisor Bishop: I don' t think so. In fact, I'm very certain that that would not be a factor. In fact, I think if we joined, there' d be more likelihood that we would get out . 2 Supervisor Smith: I think it' s a little confusing exactly what the JPA thinks about us joining. One of the, I was there for part of the meeting, I had to leave halfway through, but one of the reasons that the representatives from San Ramon gave for leaving was our interest in joining, although I understand they made the decision to leave long before we made the interest to join, so it' s a little hard to say what effect would have . Seems to me that we've declared our intent or interest . Maybe it would be appropriate to let them know by letter that we' re still interested if indeed the JPA is going to continue to exist but if it' s going to fall apart, obviously there' s no reason to join it . Supervisor Powers : Well, that seems to be consistent . Supervisor Bishop: I think we need to participate and need to go there . There was one member that did, who was a substitute member, and she had a rather strange reaction to my it wasn' t a reluctance, but it was uncertainty because I did not realize that Jeff you had a medical emergency. I thought maybe you had just decided you didn' t want to participate and . . . just left me there . One of the parties did say that she thought it would be kind of yucky and that those were her words, if the County determined not to join. But I think really we need perhaps a couple of more weeks to make a decision. Supervisor Smith: Yucky? Supervisor Bishop: Yucky. Supervisor DeSaulnier: Articulate spokesman. Supervisor Powers : Well, that seems to be the recommendation of the two appointed members that we put this off for at least a couple of weeks and perhaps express and interest in continuing to pursue membership and maybe a letter that both of you could deliver but that there is still some issues that need to be resolved. I guess I was concerned also with at least one of the provisions in the resolution, that delegated the collection/franchising authority to the Solid Waste Authority because of two things . One, is that the other members have not delegated yet and two, that we had started off several years ago and continue to pursue putting our own franchises together, so those things and I understand in a short time that some staff reports will come to the Board asking in what form we'd like to go forward and pursue those, so it does seem appropriate that we put it off for a couple of weeks . So, unless there' s other recommendations perhaps the Board Order could suggest that the matter is put over and the staff draft a letter for the two members to deliver stating we do have an interest but we'd like to pursue further some of the conditions of membership and you know the question of the entire organization, what it' s going to be like in the near future . Is that okay? 3 Supervisor Bishop: That sounds great . Supervisor Powers : Okay, you got that, okay. That will be the order then. Val Alexeeff : I just wanted to tell you that the resolution that you have before you was based upon the transmittal that the Central Contra Costa Solid Waste Authority sent . I didn' t have any direction for what should be in it so I took their wording. Supervisor Powers : Fine . Very good. Thank you. Okay, let' s see the next, we got that out of the way very easily. Now, franchise agreements . We do have a staff report in response to some differences of opinion we had last time two weeks ago and maybe you could give us what your definitive judgement is . Victor Westman: Well, I think we've provided you with a report and then there were ten or twelve copies earlier placed on the table there, thought I notice most of them have disappeared already. I think our report simply says in our report to you last time of our preliminary view of the situation, we were acting on what we understood had occurred and what we intended by at least our statements during the proceeding but I think in the end it' s the Board' s decision as to what you understood occurred in the meeting and what will be done and as I note in my memo to you I misspoke last time . I had thought that the minutes for the meeting of September 13th had been prepared and adopted by you. They have not . The minutes are what constitutes your order for that date and I would suggest that if the Board has some different views or interpretation of what occurred on the 13th, that you should consider having before you the at least the Clerk' s proposed minutes for your consideration and a decision by you when you adopt those meetings as to what you intended on that date . That has not yet happened. I also received on Friday a letter which was attached to the packages from an interested attorney in these matters who indicated who raised the question at least from our point of view of significance of the statute of frauds since the County has not executed the agreements on it' s part . I think as we indicate, the statute of frauds is essentially a defense and while that may have some validity to it and at least in our review over the weekend, there is a there appears to be some substance to assert that, if it' s the County' s desire not to proceed with those franchise agreements that were before you on the 13th, I think that' s something you may want to decide after you've considered and determined what your action of the 13th was by considering and approving your minutes when they' re before you and they're not before you today. And I think the only thing I added in the memo is that in doing that you of course have to have in mind what did occur on the 13th and there is a transcript available, a transcription which was previously provided to you a few weeks ago. That' s all I really have to report on this date . Now, we did since that time . I gave you 4 another memo today indicating we did meet with representatives of Keller/BFI and ACME on the question of accepting changes to the franchise drafts that were before you on the 13th, September 13th. We met with them. They indicated at this time if we correctly understood their view that they find the prior draft agreements before you on the 13th acceptable. They would like to proceed with those and at least at this point in time, they' re not agreeable to any further changes in them. They had various concerns about the proposed changes in the franchise agreements and I we did not seek to replicate in our memo their concerns . If it' s appropriate and they wish to speak or you wish to hear from them, they can speak to those concerns . But I believe at least from our office' s point of view, that is what they indicated to us and perhaps I' ll speak for Val, there was another referral to us to meet with Deloitte and Touche about their prior rate setting and so on. That was a direction to the County Administrator' s office and to our office to arrange and meet with them. The County Administrator' s office has arranged a meeting later this week with them which we will participate and we will bring a report back to you at a subsequent meeting on that . On this item, I don' t believe I have any more to comment on. Val? Supervisor Bishop: I am a little concerned that first of all, Mr. Westman, that the October 25th the date of the memo to this Board from your office sort of summarizing and responding to the October 21st letter only reached us at the time that we sat down this morning. I would've at least liked twenty-four hours to have reviewed that . I note that Mr. Norris as the representative for Potrero had submitted the letter to County Counsel' s office on the 21st . I would also like to state I would like to have those kind of documents forwarded on to me as nearly to the time that you receive them as possible so I can have an opportunity to review them as well . In looking at your response and actually looking at Mr. Norris' 21st letter, I don' t think since law school have I read such a treatise on the Statute of Frauds and what must be in writing and not be in writing but I think your response and your evaluation is that it is not the law in California and General Law County but basically the Statute of Frauds does not control and ordinance that is adopted by this Board. Let me . . . Victor Westman: No, I'm sorry if I confused you. Mr. Norris and Mr. Norris of course has his views and he is talking about what he understands to be our procedures to some extent . I disagree with him as to his understanding of how the County conducts business and approves agreements and subsequently executes them and so on and a lot of that is a factual misunderstanding. But on the question of the Statute of Frauds at least on its face, it appears to be applicable and the County I want to emphasize something the Statute of Limit . . . Supervisor Bishop: But only as an affirmative defense is that 5 right? Victor Westman: Statute of Frauds, I sorry if I said limitations, I meant to a say frauds, is a defense and it' s really available to us if it sort of in the context of an agreement was proposed but we are now taking the position we are not going to follow through with that agreement was formulated, but we' re not going to proceed with it because it doesn' t technically comply with the legal requirements of the Statute of Frauds and assuming no conditions exist otherwise to estop us from asserting that defense, it' s a defense that would be available to us in that context but as I indicated earlier, I think the Board at some point should consider and adopt its minutes and definitively establish what you had in mind when you accepted the direction that I had made about execution and whether the agreements would be final or not upon that execution or would they be returned to you. I think at some point you have to clarify that because in offering our views, we were simply acting on the literal wording of the transcript and what we may have intended by our expression but I think you have to if you disagree with our prior expression, you have to establish that by indicating what your understanding of the meeting of the 13th was and what was intended by those actions . Supervisor Bishop: Let me follow up on that . The other comment that was made and in your statement it says when this office spoke to the Board at its October the 11th meeting, this office was incorrect that the Board had already reviewed and approved the minutes of the Board' s September 13th meeting and I have a summary. Victor Westman: That' s a summary, but that' s not the minutes . Supervisor Bishop: Isn' t that what we always approve, the summary and the summary very clearly states that we amended the franchise agreements . Victor Westman: No. But that' s a summary, the Clerk' s required by law in ten days after a meeting to prepare a summary but the Clerk is also required by law to prepare minutes and those minutes have not been at least I was advised last week have not been prepared for the meeting of the 13th. Now, Ann can correct me but that' s what I was advised and I have not seen an order yet for the meeting of the 13th and if you understand the minutes to a large extent are simply stringing together your orders as you take action during the day and that becomes your minutes but the minutes, an order on any particular matter you know the orders you had in your package you got today, those essentially, I haven' t looked at minutes for a long time are sent out in their totality in the minutes . That before you is a summary of what the Clerk thought your action was that day. You don' t approve summaries, you only see the minutes and the minutes will come to 6 you at some point . Supervisor Bishop: When? I've never seen the minutes . Where are they. . . Victor Westman: Well, I think in recent years, the Clerk has not been putting them in your package but I think this is an occasion when you should see the minutes since they have not yet been approved by you and you should see them and determine that they adequately and accurately reflect your action on the I'm sorry I thought it was September 13th. October 11th. . . Supervisor Bishop: You' re suggesting that this Board does not approve the minutes unless they have had an opportunity to review that that is the standard procedure for this Board. That unless we have had an opportunity to completely review the complete minutes, not just a summary of the minutes, do we go through the process of approving minutes . Victor Westman: Well, I was going to say you never approve summaries . I'm not aware of that' s the Clerk' s summary, that the Clerk prepares as a matter of law and promulgates within ten days after the conclusion of a meeting. The Clerk prepares the minutes, the detailed minutes for your meetings . When I checked last week, I found that those minutes had not yet been prepared for September 13th and it would appear that if the Board believes that there' s some ambiguity as to an understanding of what you did on September 13th, you should have those minutes brought to you, you should review them and direct that they be entered to fairly reflect what you believe you did on the 13th. Supervisor Bishop: Thank you. Supervisor Smith: Well, when this issue came up I went back and got my copy of the drafts of the franchise agreements that were before us when we considered them on September 13th and compared them with the September 22nd draft and there' s a lot of different language here that exists in September 22nd draft that didn' t exist in the draft on the 13th that I don' t think we added to the Board or at least the Board didn' t add to the draft, language that refers to issues that I think we need to address and for example, page 21 on the Keller franchise agreement, section 6 .4a. That section didn' t exist in the previous draft that was approved or discussed on the 13th and what it says currently on the 20th is that the surcharge on solid waste received at the landfill via ACME Fill Waste Recovery and Transfer Station is the only waste that would be charged the franchise and I specifically remember many times throughout this entire discussion trying to make it absolutely, completely crystal clear that in my mind there was not an absolute link between ACME Transfer Station and the Keller Landfill . It might, they might indeed be operated by the same business entity but in no way do I want to imply that if waste 7 comes from some other transfer station and goes to Keller Landfill that they are then not subject to the surcharge fee and the way I read this they are not . I mean if it went from say the transfer station out of County or from one of the other two transfer stations that are being proposed, they would not be subject to the surcharge at Keller. That' s a problem and that language wasn' t before us on the 13th. There' s a number of other things . One, I look through here, I don' t see where we included the Eastin fees and the LEA fees and the 939 fees in the documents from the 20th, so I guess I'm I was under the impression when I was told that there were a few commas and periods that needed to be changed that there wouldn' t be change of the substance of the language before it came back to the Board and so I'm a little confused what happened in the interim. Lillian Fujii : Yea, I am. I'm also confused. Exactly what language are you referring to Supervisor? Supervisor Smith: Well, it' s the draft that' s it' s under a cover letter from September 22nd. The actual draft is dated September 20th. The two franchise agreement drafts are stapled together and I'm referring to the one that has to do with the landfill and it' s page 21, section 6 .4 entitled initial surcharge and what it goes through is the effective date of the agreement surcharge will be set forth as following this section and then it puts in this section about permanent transfer station and from my understanding reading that language, if garbage came from another transfer station other than ACME, there would be no surcharge charged. Also, I don' t see where we included the state fees in the Keller franchise and I don' t see where we included the LEA and 939 fees in the transfer station franchise which were things that we specifically talked about on the 13th that should be incorporated. Lillian Fujii : Yes, I can tell you what the agreements intend to say. The if garbage comes from a transfer station other than the ACME Transfer station, it would be the 10 percent, the franchise fee that had previously existed and continues to exist at Keller Canyon. It ' s 10 percent, plus all of the fees and that would include the Household Hazardous Waste Fee, the LUP fees, the Eastin fees, the mitigation fees, and what I could do. . . Supervisor Smith: My point is who made that decision about it being ten percent? Lillian Fujii : That was in the draft that was before you when you approved the franchise agreements Supervisor. I do not have them at my hand right now but I can. . . Supervisor Smith: Well, I have it, we can look through it and see . . . 8 Supervisor Powers : Well, I think that goes to at least one of the points that I raised and that is that out of County garbage would be charged less than garbage that is initiated in Contra Costa County and I think that was one of the problems that I saw and suggested two weeks ago needed to be changed. As I was completely unaware of it being that situation. I just think it' s you know, I don' t think this Board would ever think of charging waste out of County less than they would waste in this County and so. . . Supervisor Smith: Well, I have the drafts before me. There on page 19 , they' re dated August 30th. You presented us with drafts that gave three alternatives, and you asked us to choose one or choose our own. I don' t remember us choosing any of the alternatives that are listed and what I remember us doing from the language in the minutes is that we decided that the franchise rate would be the same at both the transfer station and at Keller, a fixed percentage and we fixed 25 percent . That doesn' t mean that if garbage went directly to Keller from some other transfer station that the franchise at Keller surcharge was less . I don' t remember us saying that . Lillian Fujii : What the agreements provide currently is that if garbage goes through the transfer station and goes to Keller it is a 25 percent surcharge on the entire amount, the tipping fee received at ACME which includes the tipping fee for the landfill . Supervisor Smith: Right and then there' s the addition of $1 . 34 for the Eastin Fees at Keller. . Lillian Fujii : That would be in addition. Supervisor Smith: Right and I don' t see where we added that in the final language, but where did we get to the language that if the garbage comes from another transfer station, other than ACME, that the surcharge rate at Keller is somehow now ten percent . Who said that? I didn' t say that . Lillian Fujii : No, that is the direct haul rate and the direct haul rate has always been ten percent . Plus all fees, so it would actually. Supervisor Smith: It' s not the direct haul rate. If it goes through another transfer station and goes to Keller, it' s not a direct haul . Lillian Fjuii : Yes, I'm sorry. That is the rate for all waste other than waste going through the transfer station and that is from the direct haul . Supervisor Powers : Well, let me uh. Let' s it' s obvious that there is at least one difference and I have a whole series of 9 differences . I would suggest consistent with the County Counsel' s report and I' ll make the motion that it was not our intention to adopt the franchises signed by BFI and that we not adopt the franchise by BFI . Otherwise, we would not be able to consider a series of issues including what we directed the staff to go do with DeLoitte-Touche and go back and look at the rates and see if there was an overcharge because if we don' t clarify that in the franchise agreement, we' ll not be able to recover what might prove to be an overcharge by the ACME/BFI operation. So, I would move then that we not adopt the franchise as indicated and that it was not our intention to adopt it as signed. And clarify the minutes accordingly. Supervisor Smith: I have to second that at least in the sense that the language that' s here isn' t what we acted upon on the 13th. And therefore, it' s substantially in my mind different than what we were talking about adopting. Now I think it can be worked out but I really you know, how many times do we have to say the ACME transfer station and the Keller Landfill in the minds of the County are separate. And I really just don' t see why staff continues to want to inextricably link them in some way that ends up doing a disservice to the rate payers . It' s really just a bad idea. Supervisor Powers : Okay, any other comments . Gayle . Supervisor Bishop: Yes, I will not be supporting the motion. I think by reference to the actual minutes of the meeting, it was clear what the intent of this Board was and we did adopt the franchise agreements . I believe that we are embarking on a step that invites litigation. I'm not sure how that happens . I think we have I think perhaps the landfill operators will take the position that they have a valid franchise agreement and they will withhold fees according to what that valid franchise agreement . I believe we will probably have to sue on some kind of basis . I don' t know, I guess it' s going to put the County in a position because I think this really demonstrates a very obvious thing that if you don' t want to enter into an agreement with certain parties, that between two parties, there' s every way in the world to derail an understanding and I think the message that will come out from this action from this Board is that you cannot deal with the County, that the County' s word is not good and I don' t think that' s a message that we want to send out . I think the message we want to sent out is we want to get the fees down. We want to get garbage rates down. I've got correspondence here I brought to share with you but I don' t want to prolong this hearing but it is really clear that we adopted a franchise agreement . The summary of the minutes says so. You go back to the text of the minutes, that is what our intent was . That is what BFI and ACME relied upon. I think one of the reasons the JPA, we may have people withdrawing from the JPA, I don' t want to read meanings into it, but having talked informally to those people, you can 10 enter into agreements with the County and then the County backs out and we are inviting litigation by this action. We've had two weeks for you know Vic Westman' s office to sort of back off of their legal opinion that we did adopt the minutes, that it was strictly ministerial for us to sign the franchise agreements, so I really think we need to give some serious thought to what we are doing. We are saying we might agree with you on one Tuesday but the following Tuesday we can say we didn' t agree with you, that there is never an agreement with the County. Supervisor Smith: Can I just ask staff to tell me where in the language there is an allowance for charging the dollar LEA and the . 15 cents 939 fees at the transfer station. Lillian Fujii : Keller. Supervisor Smith: No, it was transfer station. Where is it? Where is it written. I mean I don' t even see it . Lillian Fujii : Okay. Supervisor Powers : While you' re looking that . . I just want to I've been signing agreements for 16 years now and usually about 6 inches a day. I've never had the kind of trouble with and I don' t think this County has ever had the kind of trouble with an agreement that we have had with this . There has never been a question about signing agreements . We've always followed through with it . I would say probably 30 to 40 agreement per week that this Board has executed. When the agreement is as complicated and long lasting and it has the implications as an agreement like this does on the public that it should be taken with tremendous amount of scrutiny and that is the whole idea. We want to come out of this multi-year, twenty plus year agreement with something that' s in the public' s interest and the more time that we scrutinize it the more time that we take to make sure that it' s perfect, the better off the public is going to be and so I mean at some point in time, we' re going to finalize this but believe me it' s going to be done right if I have anything to do with it . Supervisor DeSaulnier: I think I agree with Supervisor Bishop that was my intention that we were entering into agreement but I think somewhere between and give the benefit of the doubt given how complicated this has been for all of us including various legal minds, is that somewhere between the intention and what we the product we actually have in front of us, there are some major concerns by Board members and I tend to agree with them as well . My concern is what' s the best legal way to pursue this and maybe the best practical way and although I hate to continue this any further, it would certainly would be nice to get done with this . I think what I heard Mr. Westman say to begin with, perhaps the cleanest way legally is to allow the opportunity for one more 11 week to get the full minutes so that we can give some kind of direction from the full minutes that our intention may have been one thing but what happened was something different and we want to go back and visit that . Supervisor Powers : Well, I think that was . . Victor Westman: I agree with that but I could also say that when we provided the on October 11th when the executed agreements were returned and essentially you for the first time were seeing the revised drafts from the 13th, we thought from our point of view, we had essentially incorporated the changes that you had directed and made other non-substantive changes . But if I understand what the Board is saying, you believe the drafts that were returned to you on the 11th don' t fairly reflect what your decision was on September 13th. And if that is the case, then we failed to return to you that which you desired but you don't have those drafts in front of you that you directed be prepared on September 13th and I think that' s your prerogative to make that decision and with that decision, we as staff would like some direction on these are very complicated agreements and we have floating concepts that change and it' s very hard to pin them down to get a consensus of understanding and we' re willing to put in the time but I don' t want to ah. . I realize you had a committee previously but we do need to work with somebody or a Board committee to try to pin down the concepts . Supervisor DeSaulnier: I didn' t mean to imply any kind of criticism of staff . I think it' s obviously very confusing. I just think that our intention was one thing and maybe that there are some major concerns in the final product and it was no one' s fault . It' s just that it' s complicated. And that' s what I'm hearing from Jeff and Tom. Victor Westman: Then I'm suggesting one thing you may wish to consider further is when you do finally see the minutes actually for October 11th, not September 13th, that those minutes and your action today reflect that you believe the executed agreements which we've returned to you, at least executed on BFI' s part do not fairly represent what you understood you may or may not have completely approved on September 13th and we' ll work from that basis if that is your direction. Supervisor Powers : Maybe what we can do is okay, let me get the answer from Lillian and then we' ll get you. Lillian Fujii : Yes, do you have the final agreement . Perhaps it might be easiest to work from page . . . Supervisor Powers : Is it called final agreement? Lillian Fujii : Yeah, well maybe 12 Supervisor DeSaulnier: She better not admit to it . Lillian Fujii : let' s work with the permanent transfer station final agreement, page 19, 6 . 3/// Supervisor Powers : Okay, what' s the date of the agreement because I have Lillian Fujii : September, 1994 . Supervisor Powers : September 20, 1994 . Lillian Fujii : September 1994 . . .does not have it . Supervisor Smith: Yes, I've got that . Supervisor Powers : Well, I've got one here, September 20th, 1004 . Lillian Fujii : That was a typo. That was one of the corrections I made to the final draft but I didn' t we didn' t point that out . Supervisor DeSaulnier: That' s when you started this . Supervisor Smith: I do have that . September 20, 1994, page 19 . Supervisor Powers : And that' s ACME? Lillian Fujii : Yes. And the way this is written continues the previous format approved by the Board of Supervisors, Section 6 . 3 , the Gate rate consists of transfer station proprietary rate, mandated fees, surcharge and disposal costs . Mandated fees are defined as fees that are imposed separately by law. For example, the LEA fee, the Eastin fee, and any other fee that may be imposed by any state or government in the future . And in addition, in the next section, 6 .4 covers the initial surcharge approved by the Board and that is 25 percent of the combined gate rate, the proprietary gate rate for the transfer station and the landfill and the way that we included funding of certain programs is in subsection b and subsection b provides that during the period of this initial franchise initial surcharge, costs of County programs and those are programs required or authorized by the use permit or agreement not necessarily mandated fees and in fact, those are very specific fees . Only land use permit fees and franchise agreement fees shall be required from said 25 percent combined surcharge and in addition, the Household Hazardous Waste fee shall be collected from that combined surcharge, and in addition the Household Hazardous Waste fee shall be collected from that combined surcharge, so any other fees that are not specifically listed are still mandated fees but they would be in addition to the 25 percent surcharge . So, . . . . 13 Supervisor Smith: So, using your logic, we could after this franchise is in effect, we could mandate by resolution another fee and add it on to the surcharge. Because you' re essentially calling the 939 and the LEA fees "mandated" fees . Supervisor Powers : Yes and no. There' s two answers . . Supervisor Smith: And I believe, I don' t know Mr. Bruen might disagree with me, but I don' t believe it would be BFI' s intention to allow those two words mandated fees to give the Board discretion to you know make a resolution next week to mandate another fee. Maybe that' s what they wanted but that' s certainly not what I thought the Board said. Lillian- Fujii : Well, . . . Supervisor Bishop: If I can make a suggestion. Rather than us make a motion that really says we didn' t adopt it, I suggest that we go back to our Ad Hoc Committee, do some wordsmithing and have some understanding. Let me address the mandated fees . I see mandated fees. I say that means State mandated fees, not mandated by this Board but I see st . . .the amount may be you know 1 . 34 the 1 . 34 Eastin fee, there' s no discretion in there but I think if we say mandated fees even within 939 the LEA where some counties don' t charge there' s discretion there that is the state mandated, the amount is discretionary, but I think in setting the amount we would run afoul of our contractual agreement when we finally do agree if we add an additional mandated fee ourselves . Supervisor Smith: I could agree with you however in the body of the franchise agreement, we define mandated fees which includes Federal, State, Regional programs, programs required by land use permit or other County established fees so with that language in there and using Lillian' s interpretation of the surcharge arrangement, anytime down the line a month from now, three weeks from now, we set up another fee for some other program and the fee structure changes . I don' t think that' s what we intended. Supervisor Powers : Okay, why don' t we do a combination. I think there' s more than just a little wordsmithing. I think it' s an issue of what the Board intended, so I would suggest adding to the recommendation that I made which is that this wasn' t this agreement does not reflect the Board' s intent, that we also refer it to the committee to make those changes necessary to reflect the Board' s intent, so we can do that and take a couple of weeks to do that or a week if you can put that together. So, I would Supervisor Smith: Let me make sure that I understand what the Board' s intent was . I at least know what my intent was but . . . Supervisor Powers : Well, I' ll give you at least six of my 14 intents here . I've got them in writing. Supervisor Smith: My intent was that at Keller there was going to be a charge for the Eastin Fee that was you know $1 . 34 per ton, at ACME there was going to be charge of $1 . 00 per ton for the LEA and . 15 for the 939 and then at both there would be a 25 percent surcharge, 5 percent of that being used for closure and litigation issues and all of the rest of the programs, previously funded programs to be paid for by the remainder of the surcharge not as an additional mandated fee . That' s what I thought and that' s what came up that' s how we came up with the $12 . 24 . Is that not what Mr. Bruen understood. Is that what you understood? Should get him on the record here. What did you intend? Tom Bruen: I thought the agreement that the Board approved and I still think the agreement that the Board approved reflects the Board' s intent . I agree with County Counsel' s interpretation of the agreement . Essentially the amended Keller Canyon Landfill Franchise Agreement does not change the County tax structure with respect to waste received at that landfill that doesn' t go through ACME. I don' t know if you want me to repeat that again. Basically it doesn' t change the status quo with respect to waste that is received at Keller that isn' t going through ACME whether it goes through a transfer station from inside this County or outside the County, it' s essentially status quo. The 25 percent cap on County fees applies to waste received at the gate at ACME. That is what I had understood the Board' s intent to be . That was in the prior drafts that were reviewed by the Board and that we discussed in the Solid Waste Subcommittee . The concept of putting a 25 percent cap on County fees with respect to waste received at Keller that doesn' t go through the ACME transfer station is something that I've just heard for the first time today and frankly I'd have to look at that . I don' t know if that would be acceptable or not to my client as a revision to the franchise agreement . I'd want to look at how those numbers turn out but there' s no doubt in my mind that the document that was before the Board this Board intended to approve . I think what' s really going on here is some second thoughts about what the agreement really says and I think the discussion today is premised on a misunderstanding of what the agreement provides . As I understand the current amended landfill franchise agreement, if garbage from out of county or in county, whether it' s from the West County transfer station or Mr. Garaventa' s transfer station or some other source is received at Keller' s gate, it hasn' t gone through ACME, the fees would be 10 percent, a surcharge representing 10 percent of the proprietary rate at Keller plus whatever other County fees or programs are in effect over and above that surcharge. That' s my understanding what the agreement says . Supervisor Smith: I think that' s what it says . I don' t remember us saying that on the 13th but maybe you can find it in the 15 minutes someplace but let me ask just one question, with the agreement the way it' s written now, where do you see the authority for the County to charge $1 a ton for LEA programs at ACME. Tom Bruen: That would be a mandated fee I believe as defined under the I should strike I believe . It is a mandated fee under the definitions of the franchise agreement and under the landfill agreement for garbage that' s received at Keller' s gate that doesn' t go through ACME, Keller is required to pay the surcharge plus mandated fees . Supervisor Smith: And so your client' s comfortable with just having mandated fees defined as they are defined and no limitation on what they might be in the future . Tom Bruen: That' s what the present agreement says and this doesn' t change it with respect to waste that doesn' t go through ACME' s gate, so yes we're comfortable and we've executed the agreement . Supervisor Smith: So, if we said next week, there was a $2 a ton mandated fee for the recycling development zone fund, that would be completely within the discretion of the Board given this franchise. Tom Bruen: The franchise requires that we pay mandated fees . This Board has to pass them and you in turn are responsible to the people that elected you, so all we have to do at this point is to obey the terms of the franchise agreement as it' s in effect . Supervisor Smith: That' s interesting. Supervisor Powers : Okay, thank you very much for your comments and I will make the motion clear that I and the motion then I' ll change to say that the agreement does not reflect the intention of the Board, that the Board will not sign it and that the Board will refer it to the Ad Hoc Committee to return next week or the week after for a final franchise . . . Victor Westman: Another report . Supervisor Powers : Another report on an attempt to get a final franchise okay. So, is that acceptable to you Jeff. Supervisor DeSaulnier: I just make one small suggestion. Maybe I'm getting caught up in making things more complicated that they have to be but instead of reflect I'd add the word fully reflect because in many ways it does reflect what the intention was . Supervisor Powers : Yeah, okay, that' s fine. I don' t have any 16 objection to that . Okay, any further discussion? All in favor of the motion, signify by saying aye . Those opposed. (Supervisor Bishop) . Okay, passes 4-1 and I will pass you my concerns that you can deal with in the committee . We have a couple more items on the agenda, one more item on the agenda. Victor Westman: Mr. Chairman, don' t forget H. S . The Land Use Permit . Oh, you' re going to get to it okay. Supervisor Powers : H. 5, right . LUP and we do have the same report before us dated October 17th and we have three people to that was your report Vic . Val Alexeeff : Right, and we also have portions of a proposed schedule for budgeting the balance of the Keller Landfill mitigation fees which was to be discussed in connection with this . Supervisor Powers : Let me call some people to testify on this . Supervisor Torlakson: Mr. Chairman, as you go to do that, I would note the report from staff and the various language they suggest to protect the new direction of the Board legally. I agree with the staff report reflects the Board direction as I understand it on page 1 and 2 . The final page recommends some additional language that is in a quote at the bottom of page 3 and there' s one part of that that I think may invite a challenge rather than fortify us against a legal challenge. And that' s the beginning and end of the third line there . It refers to numbers condition 35 . 1 and 35 . 2 shall be in full force and operation so that in effect if the new condition is challenged and overthrown, that statement says that the earlier conditions are in full force and effect but then the following phrase I think opens up the door to again discretion and possibly dropping the fees to a lower amount which would potentially be an incentive for someone to litigate to get below the 3 dollars . And that' s the exception clause . So, I'm raising a concern about the exception clause at the end of that sentence. And suggesting that we delete that so it would fortify the $3 and not invite a lawsuit that might get us back to the original conditions which say $4 but leave it discretionary whether to apply the $4 . Supervisor Powers : Okay, is so you' re suggesting that after the word shall be in full force and effect, in the third to the last line after that word and be eliminated is what you' re suggesting. Supervisor Torlakson: Right . Just to be in full force and operation. Because otherwise the idea of the floor is eliminated with the discretion of the Board to lower it to some other amount and I think what we want to do is say we wanted to lower the fee to a lower amount and but set a floor at $3 total combined. That' s the way I read what we were doing last time . 17 Supervisor Powers : Well, let' s get the testimony. I'm not sure that I completely understand the implication. Frank could you Frank Aiello followed by Randall D. I guess it' s mattieson and Lance Dow. Frank Aiello: Good afternoon. Today I come before you not to talk about everything that you just talked about . But a quick and short answer to that just in references that I don' t see a threat of litigation to the County if you don' t sign a franchise agreement . If you don' t sign it, they don' t operate. So, they better come to terms with what the County wants, not with what BFI wants . And the second reference to that is I really believe that the confusion lies in continually combining ACME/Keller. Let' s get ' em separated. Talk about he ACME franchise agreement and then talk about the Keller franchise agreement . I think the confusion lies is that they continually mix them and confuse everybody. Get ' em separated. Talk about one, get it finalized, get it done, then talk about the other and finalize and get it done . That' s a perspective from a citizen who' s been watching this for ages . Today I'm just going to submit this for the record. It is a proposal by Citizen United to allocated the host mitigation fees proposed and there are a number of references . I believe I've sent them to a few Supervisors . There are a number of references in here on how to do that . And I'm not going to talk too much about it today. I believe it is a strong program that would show that the County is behind it' s citizens and it is letting the citizens help to decide how those impacted communities can spend that money in a way that helps offset those impacts . So, I'm going to submit this for the record and if there' s any questions, I' ll take them. Supervisor Powers : Okay, maybe we can refer that also to the to a finance committee to deal with that . Because Finance Committee has been dealing with that allocation issue for some time. Okay, just as a suggestion. Okay, ah Randall Matthieson, followed by Lance Dow followed by Kevin Carunchio. Randall Morrison: Good afternoon, it' s Randall Morrison for Valley Waste Management . Sorry about the printing. I' d like to go back to what Supervisor Powers said a moment ago in talking about the importance of getting it right when it comes to issues such as the ones you' re considering today whether it' s the franchise agreement or the land use permit . As I count them. You've got three major issues to look at . One is the franchise agreements but the second is the Deloitte study that' s underway as I understand it and the third is the CEQA issues that we raised in our letter of September 26th and that the staff responded to in their October 4 memorandum and that we replied to in our letter today. I think the Board has an opportunity here to do it right on the CEQA side as well as the other issues . Why not take the time to direct staff to conduct a regular CEQA review, to perform an initial study and to look at this change in 18 the land use permit like you would any other conventional CEQA matter rather than trying to short cut it which is what I think the staff is recommending in recommending a notice of exemption. Now as I indicated in our letter, reasonable people might disagree about what the environmental impacts are going to be in eliminating these mitigation fees or reducing them but I don' t' think it' s possible to disagree that there is a prospect of an environmental effect intaking these mitigation fees out of the land use permit and if there is any bare possibility of an environmental effect, then a notice of exemption simply isn' t the right CEQA device . It' s not the right CEQA step. So my suggestion is why not do it right . Why not direct the staff to conduct an initial study determine what CEQA alternatives are really appropriate and avoid having a problem four or five months from now. You have the opportunity to do it . You' re taking the time to study the financial issues . You' re taking the time to study the franchise issues . Study this at the same time . Then you can get all three of these issues sorted out correctly before any final decisions are made . Rather than having the CEQA problem come back later on after you think you got these other issues resolved. That' s the essence of the letter and my testimony. Thank you. Supervisor Powers : Okay, you did submit this letter dated October 25th and I see a copy has gone to Sylvano Marchesi and so officially we could refer a copy to you to respond to you when you come back one way or another. Yeah Lance Dow and then Kevin Carunchio. Lance Dow: Good afternoon, members of the Board. I'm not going to talk too long. I just wanted to direct this Board' s attention to the fact that there are several options out there that you can take advantage to lower your rates for your rate payers right now and Citizens United has been taking calls from some of the outlying areas of the County where the County actually directs the waste to landfills and they are seeking your support in redirecting that waste at a lower, substantial savings . You have several options available to you now besides the ACME/Keller option. So, I would just like to direct your attention in that area to save your rate payers some money in those areas that you control . Supervisor Powers : Thank you very much for your testimony. Kevin Carunchio. Am I pronouncing your name properly? Kevin Carunchio: Just fine. Mr. Chairman, members of the Board, my name is Kevin Carunchio, I represent the City of Pittsburg. I'm here to deliver a letter from Mayor Mary Urbez regarding the Citizens United proposal that you've just received. To paraphrase the letter very briefly, Mrs . Urbez asked that i be here today to clarify and advise the Board that the Citizens United proposal does not necessarily represent the City of 19 Pittsburg in the matter of allegation of mitigation fees . This isn' t to say that we don' t' share common concerns and interests, only that the Citizens United proposal has not been presented formally to the City of Pittsburg City Council and at this time it cannot be endorsed. We' d ask that the Board distinguish the Citizens United proposal from the City' s request to be compensated for the negative impacts of Keller Canyon Landfill . As you know, the County and City are currently negotiating the terms of this compensation in accordance with the formal request made by the City on July 15th pursuant to County Ordinance 89-81 . In closing, we' d ask that the Board consider postponing any decision that might affect the overall distribution of mitigation monies until the property valuation study has been finalized and it' s findings can be considered. Thank you very much for your consideration. Supervisor Powers : Thank you very much and just to acknowledge I believe Mr. Torlakson has been talking with representatives of the City of Pittsburg and I guess in simultaneous to dealing with Citizens United response if you have something to report on Pittsburg that can be done to the Committee and ultimately to the Board as well . Supervisor Torlakson: Great . I think you know two points are important . That number one trying to involve more citizens in the process of input to how any fees are spent that' s important . We have an existing process . There needs to be real clear notification to everybody about when the meetings are, how they can get proposals in, how they as citizens, neighborhood leaders can get information to the staff and then ultimately to the Board. The suggestions by Citizens United I think deserve full consideration in the Finance Committee . I think as well Pittsburg has been on record and legitimately concerned about getting some of the mitigation fees and how that' s particularly earmarked and how much and in what way is something that we' re in discussions now to try to find a solution to that, so I would like to try as you suggest Mr. Chairman, to bring that process forward further and bring some results to the Finance Committee for further consideration. Supervisor Powers : So, perhaps we could review send the Pittsburg letter and the Citizens United letter to Finance Committee if there' s no objection by members of the Board, that could be done . Send the Citizens United proposal as well as the Pittsburg letter on how to distribute these mitigation fees to the finance committee and for report back to the Board. And this is budgeting Keller Landfill mitigation fees . That ought to be referred as well I guess to Finance Committee. It' s always gone to Finance Committee has it not . Val Alexeeff : Yeah, this particular item is what was requested last time . I'm still trying to get the committee dates . November 20 is a very difficult month to schedule and I'm trying to work through the various Finance Committees and East Bay Regional Park District and IO and so forth to nail down our times . I think that all of these items, these mitigation fees, the balances, are going to be going to the Committees in November. Hopefully decision by the Board for the majority of the items by December 13th and the community mitigation since it is a much longer process requires setting up committees and a variety of other things, probably will be circulated in December and decided sometime at the end of January and again the issue for us is getting the committees together and getting the committee to act . A lot of this is out of staff' s hands once the process gets going. Supervisor Torlakson: Why can' t the community mitigation notices go out also November 1st so that' s the way we did it last year. We got all the fund balances . As I understand it whatever new condition we approve should we get to that point today, we could set a date as to when the new system goes into effect and then define the process for expending those dollars and I understand for instance we could if we act today set November 1st as the date that these go into effect so that there' s a full month' s tonnage accounted under the old system and then a new month' s and thereafter tonnage accounting under the new land use condition permit or fee collection, mitigation collection system. But as I look at this I don' t see why can' t we move forward as we have in the past, simultaneously, the three types of mitigation fees that are already in the bank so to speak or already in the trust funds that have been accumulated and will be accumulated as of the date we set the termination of the current process . So, in other words the $2 per ton mitigation for transportation, there' s an account set for that, you' re suggesting go ahead. Open space mitigation you' re suggesting go ahead and then the community mitigation, you say wait till december 1st . I don' t see the need to wait till December 1st . That previously we just got requests and proposals and ideas sorted through them and presented them to the Finance Committee sometime I was anticipating in December. Supervisor Powers : Well, let' s there' s a whole bunch of things wrapped up in one statement there Let' s with respect to the fees . The fees what they are is whatever they are today and whatever the amount is will come into those accounts and right now Ithink the fees are 25 percent of whatever ACME is charging or are they or have they changed. Val Alexeeff : Well, the Supervisor is correct . The amounts that you have here the balances that you have here are the amounts that we project are currently in the bank. We did not try to forecast what the distribution was going to be since that decision has not been made yet in terms of the final decision on the LUP or the franchise agreement, so what numbers you have are through the first quarter of 94/95 . In other words, it' s 21 everything that was in the bank plus three months, a three month estimate . Supervisor Powers : They may be off a little bit one way or the other but they' re whatever they are and so unless we begin to work with some numbers and we' re not going to know what to do. Supervisor Torlakson: I'm not disagreeing with the numbers . I was just suggesting that rather than defer the community mitigation part to December 1st, initiate that with the other two simultaneously like we have done in the past . In other words, we are half way through the fiscal year already and the community' s been anticipating some mitigation for this fiscal year. Supervisor Powers : I think the problem is that how many people there are to just do this and all the meetings and putting all the reports together, I guess you' re trying to judge staff time and you do have to take that into consideration. Val Alexeeff : Well, we' re doing the CDBG process at the same time and it' s the same people doing it . That' s one issue . The second issue is that we have been using the CDBG subcommittee to process this once it goes through the gathering and the circulation and we are missing some members of the CDBG subcommittee from the local area that need to be appointed and so we are trying to provide time for those things to happen. Supervisor Powers : Okay. Can we just leave this the way it is Tom? Supervisor Torlakson: Well, the problem is for instance the Pittsburg Library cofunding terminates and that was from the Community Mitigation Fund, so we will have to begin to lay off library staff because we don' t have any authority because this process isn' t starting till December 1st . Maybe we can grant some exceptions to get some of the priorities sorted out so that we don' t have to lay people off, countyemployess off . That' s what I'm concerned about . Val Alexeeff : I apologize that this particular report is not complete . It does indicate that the non-community based organizations funding would occur on December 13th. The non- community based would include the library. Supervisor Torlakson: Okay, very good. Supervisor Powers : I'm sorry. Gayle then Jeff . Or Jeff and Gayle . Supervisor Bishop: Go ahead Jeff, what are we doing? I mean are we what are we doing. Are we going to adopt some fees . Are we going to make some suggestions for fees . I don' t know what we' re 22 doing. Supervisor Smith: I don' t think we can adopt any fees until we get the franchise agreement straightened away and I guess that' s what I was going to bring up. It really the time schedule I think is important to move expeditiously but we really need to get the franchises down in black and white to reflect exactly what the Board wants to do before we can change the fees . Supervisor Torlakson: This memo from Val has nothing to do with changing the fees . This says we have money in the bank that' s already collected under the current system and it' s still being collected. The community is expecting and our departments by the way, the Sheriff receives a half million dollars funding for various community programs . They need to know whether the money' s there or not and I think we need to go through the process . Supervisor Powers : Well, this is for information and we' re not going to act on this right now. Supervisor Bishop: Current funding is $2, $2 and $2 . Now we have disputably a franchise agreement . Some people say we do, some people say we don' t . Now those that say we do are probably the proprietary rate is 39 . Well, I'm wondering what fees and this is again I'm confused. Are they when they levy a $39 fee a proprietary fee, are they going to be levying the 2 , 2 and 2, are they going to be levying the 25 percent with the 5 percent going toward the litigation closure with the remaining 20 percent . I just saw somebody go like that . I don' t know. . . Supervisor Powers : I' ll tell you what the fees are . They' re the same as they were and what they' re charging at the ACME transfer station is 76 dollars and change. Supervisor Smith: Well, if maybe I can ask Mr. Bruen to explain his interpretation of what he says is the franchise agreement but if I understood his interpretation, the fees that should be charged tomorrow are 25 percent plus the $17 mandated fees which are already mandated fees . That' s what he' s saying. And sorry, that' s what it says . Supervisor Powers : That' s not the intention and that' s why we' re in this debate . So, let' s try to. . . Supervisor Bishop: Let me suggest . I think one of the things that play here, we've only got about six weeks and we will not have the same Finance Committee in January that we do now and I think it' s important to try to move forward with this now as far as the process is concerned so we can have a Finance Committee that' s looking at the request before we know precisely the dollar amount because quite frankly looking back historically we have 23 z put some of those funds in reserve and we have not actually allocated those funds so I don' t think we' re in danger of overspending our allocation. Supervisor Powers : Well, okay, is there anymore motions to make. Mr. Torlakson had one that I think I would interpret this written eliminating the last phrase of the last page of the October 17th Vic Westman report on the land use permit which is eliminate the words in the fifth line of the last page "except that the Board of supervisors at its sole discretion shall determine the extent and amount of each fee to be levied. He wants to eliminate that . Is everybody there? Okay, I' ll consider that a motion. Is there a second. Supervisor Smith: Can I be clear since I want to make sure we don' t end up back here again. We' re recommending 35 . 8 on page 2 and the other condition which is on page 3 which is not numbered except for the last segment of the last sentence which starts except that the Board of Supervisors at its sole discretion. Supervisor Torlakson: Right . My understanding of Mr. Westman' s recommendation to include that latter phrase is to have a backup so that if the language we agreed on last time is eliminated that 35 . 8 by some legal action, that the original conditions stand as the backup. But if we add that discretionary clause which wasn' t in the original conditions it would seem it would be an invitation to try to attack the policy we want to adopt now. Supervisor Smith: Second. Supervisor Powers : Okay, you' re seconding the motion that would take into consideration all those with the modified language that Tom is suggesting. Supervisor Bishop: Very briefly. I will not be supporting the motion because in looking through you know what is being proposed here as fees, for one we' re talking about mitigation fees, having heard the comments for example Mr. Aiello said we need to look at how the landfill impacts the community and how to offset those impacts . I believe that if we look at how the mitigation fees have been spent historically, how they will be spent in the future, that frankly we aren' t mitigating impacts on the community, that we' re talking about general benefitting the community and I frankly think the fees that we've set an outline for are much too high. I went through the numbers and the 1 . 34 Eastin fee, the 1 . 15 LEA 939 fee frankly I would be much more comfortable down on the 15 percent range which would really, really show some movement on this Board to get our fees down. I think the fees outlined in the possible language of the 35 . 8 are too high. Therefore, I will not be supporting the motion. Supervisor Powers : Okay, all in favor of the motion unless 24 there' s further comment, signify by saying aye. Those opposed. (Supervisor Bishop) So it passes 4-1 . Is there any other motions or actions to be taken. Supervisor Smith: I would like to move that we keep the land use permit hearing open until we get our report back about the franchise fees . Because there are conditions in the land use permit that would impact those fee discussion significantly and I think they need to be at least addressed. Supervisor Powers : Okay and we also had referred the letter of Crosby Heafy to staff for an evaluation of that . Now you want to come back next week or week after that . Supervisor smith: With the franchise recommendations? I' d like to get back as fast as possible . I'm getting sick of this . Supervisor Powers : So, you guys have to meet this week if you want to come back next week. Supervisor Smith: That' s fine . I' ll meet on Saturday all day. Supervisor Powers : Try to come back next week. Okay good. Okay, then we' ll come back in a week so we do want to finish it rapidly. Victor Westman: Perhaps at some point there' s going to become a difficulty of the ACME operation continuing in the permanent or an interim status because of the State Boards and the LEA if there isn' t some action taken on a franchise because we have an ordinance that says you can' t operate without a franchise at least as to the permanent station and that we' re getting very close to. . . Supervisor Powers : That' s right . We' re going to try to do that next week. Okay and we will try to come to a final agreement and if it' s in writing, I will come back and I will sign it if the Board says for me to sign it . Yes . Tom Bruen: I'd just like to comment that the facilities permit for the interim transfer station expires on Monday. Supervisor Powers : So, we' d have to extend that . Tom Bruen: Which would mean that . Well, I don' t think it will be possible to extend the facilities permit for the interim transfer station beyond next Monday. so, if it the Board' s position that there is no franchise agreement in place for the permanent transfer station, then it would flow from that that the County would take the position under its ordinance that waste would have to be redirected from ACME as of Tuesday morning. I don' t know if that' s the Board' s intent . I believe that it' s my 25 clients position that there is a valid franchise agreement for that facility but I understand the Board is taking a different position. You may want to consider the public consequences if you adhere to the position that you've taken today that the permanent transfer station has no valid franchise agreement because I will have to report that to my client and have them make a decision as to whether or not the ACME facility will be taking waste come next Tuesday morning. Otherwise . . . Supervisor Powers : Let me tell you something. You have your company has made threats and woe is me for about ten years . You said you didn' t have any capacity at the ACME transfer station at the ACME landfill and you closed it down. Twice that happened and nothing the by God you still continue to take garbage . You took it over to Richmond for a while, then you started taking it back to ACME. I'm sick and tired of you and your clients telling us woebegone things that are not able to be worked out . We have worked with you. You have sued us . You have threatened us . I'm sick of it . You want to work it out . That' s fine, we' ll work with you but don' t threaten us anymore . Supervisor Bishop: Can I interrupt . I don' t think that' s a threat . I think it' s a his recounting of what he perceives the law to be and our County Counsel I think will agree with that if they don' t have a if we take the position that we don' t have a franchise agreement, then they do not have a permit for their facilities . It' s as simple as that . I don' t see it as a threat . It just this is the way the facts are. Supervisor Powers : Yeah they have a woebegone interpretation. Supervisor Bishop: Tom, let' s not have a temper tantrum. Supervisor Smith: Well, I think I have a suggestion. You say Monday is the expiration date . Tom Bruen: For the facilities permit yes . Supervisor Smith: I would suggest that we adjourn to a meeting on Monday morning and that Gayle and I before that time on Monday morning will have reviewed the transfer station franchise and will agendize only the transfer station franchise so that that will at least give me the satisfaction of dealing with one franchise separate from another. It will address the issue that Mr. Bruen is coming up with and we will have a recommendation for the Board to consider at that time. Supervisor Powers : If that' s the Board' s choice. Supervisor Bishop: So, we are adjourning to Monday morning. This Board is . 26 -r Supervisor Smith: If everybody agrees . Supervisor Powers : I think there probably is an easier way out of this than making this Board have another special meeting but if that' s I mean I don' t mind doing it as fast as possible . Supervisor DeSaulnier: Maybe we can ask County Counsel is there another easier way to extend the permit . I take it as at least a veiled threat that if we don' t do something before then that there' s going to be garbage . . . Tom Bruen: I didn' t intend it to be a threat . I simply wanted to point out that legally you' re putting us in a little bit of a box. Supervisor DeSaulnier: Is there a way that we can get you out of the box and not have to meet on Monday. Victor Westman: I think you better meet on Monday because to some extent it' s State agencies that are going to determine whether or not their permit I think what Mr. Bruen is saying is there' s been indication that the LEA permit for the interim transfer station will not be continued and they don' t have a permit as I understand for the permanent station at this point . Tom Bruen: Well, we should have that by next Tuesday. It' s not a facilities permit problem. It' s just that if the Board takes the position there' s no franchise agreement, there' s a penal statute or ordinance excuse me in this County that says that it' s a misdemeanor to operate a solid waste facility. Victor Westman: Well, they can' t operate the permanent transfer station at least if they comply with our ordinance that says they cannot do so unless they have a franchise. Whether or not it' s possible . . . Supervisor Powers : We have granted interim franchises to the Keller Company for ages now. I mean it' s not like it' s impossible to give an interim franchise for a day. We've been doing it for years but if we can meet on Monday that' s fine . I don' t mind. Let' s do it 10 o' clock Monday morning. Tom Bruen: May I suggest that you may want to consider amending the prior resolution with respect to the franchise agreement for the ACME Permanent Transfer Station rather than indicating it wasn' t your intent to approve it to rather indicate that the agreement as it stands represents the Board' s intent at the time and that you wish to engage in further discussion with ACME regarding its content . That would be a way to avoid a meeting on Monday. Supervisor Powers : Well, I don' t think so. I think that' s a 27 A trap. Victor Westman: Well, I think a better. If it is not possible to develop a permanent franchise, I mean if all else fails, simply given them a 30 day franchise . Or something or 60 days if we' re forced to do that on Monday. Supervisor Powers : That' s right . Supervisor Smith: Well, how about this? We' ll come back with an alternative on Monday morning. We' ll have sat down and worked outthe new franchise language hopefully to our satisfaction. We' ll also have before the Board the option of an extension of the or a temporary franchise I should say. Supervisor Powers : Very good. Okay. Supervisor DeSaulnier: I may not be there because I may be in Federal Court on City of Concord legal issue. You know it' s probably one of the few things that I would prefer to be there for. It' s not a garbage hearing. Supervisor smith: Can we do 9 o' clock. Supervisor Powers : Nine o' clock fine. We' re adjourned till 9 o' clock. Supervisor smith: Can I just clarify. We' re leaving the LUP hearing open and we' re going to have the ACME franchise only before us on Monday and then the rest of the entire agenda which is now H.4 and H. 5 would be before us on Tuesday, is that correct? Supervisor Powers : Yes . Is that okay. Victor Westman: On the LUP hearing since it is a hearing item it ought to be continued to a date certain either next Tuesday or. . Supervisor Powers : Next Tuesday at 2 o' clock. Unless there' s a problem with that . Okay fine . Okay we are adjourned. Thursday at 2 : 30 the committee in Val' s conference room. 28