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Home My WebLink AboutMINUTES - 11011994 - H.3 COUN'T'Y 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 Countyounsel 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 AMENDMENT DOCUMENT AMENDMENT 1 TO LAND USE PERMIT 2020-89 KELLER CANYON LANDFILL COMPANY CONTRA COSTA COUNTY BOARD OF SUPERVISORS SEPTEMBER 27, 1994 AMENDMENT 1 REVISIONS The following is a complete description of Land Use Permit 2020-89 Conditions of Approval modifications, the recommended actions for individual conditions are identified as RESCIND (the entire condition), ADD, or REVISE; wording to be deleted is identified by cross-out type while wording to be added is identified by shading. Condition 5.3 RESCIND the condition: Condition 11 .5 RESCIND the condition (see Condition 16.4): pesitienI GeefdinateF she!! be a staff membeF eF a eensultent. The ewneF she!! make Oeefft-. Condition 11.6 REVISE the condition as indicated: .6 pj i' t i r 6empl ienee and Mitigation Monitoring Program. The Landfill operator shall pFeyide--a fund fe SUPPeFtthe: County staff 90#NM e : pin ; prtrrnr{sr� ri#off monitoring e# #1 : �rdfC[:.s compliance .:... .::..:.. . with these Conditions of Approval andtrotr�talrpa # art:s mitigation monitoring programs, f �...'::y..:n\:•::x:l:iF:::vii'::w-y'•e:iii:•::::.:•::::;:w:...........x:;•::::::x::::w:::::::::w:::::::.:<ii:iii..-.;.....x::::::.w::•:::;•�:;•:ii•;?Ki::}iii:h:i:.:C'i:iGiL±{v:•iiii:::::{;•4ii:iix: ..:..:'...:•ni-:�....:..:.....iv.•:.4.......:ii::i'::.i'.., ..: 4i'.l%:!..:�::.a-.::•.�.:i: :: :::.�.:1�.::•r:.:i..-;...v..''._ii:Lv..:::::..::'..i••}4...•:...:.:.. :..:...: .y.w:..:.;...y.S.:.:...:::r4;:h:^..,...i...,,.,..::: :�e�sn�at�o�eed< lit� anon�o��tor��g I�r� ram�r��t�;es<the;�ecv�+�es��the eotechn�ta1 �r�spec�ar prr�vidad #or ,nr�rad:��c�r?.r'�fir�: Condition 11 .8 RESCIND the condition: .8 Fee and SUFehaFge ldentifieetien. The Landfill epeFateF (pefmittee) shall He Condition 12.1 RESCIND the condition: landf 11 epeFetw at the landfi'l. The Fates established by the F3eafd will be Fiet enly FA8KiFAUFn Fates but else Fninimum Fates-. ADD the condition: <:;<> >> ....Rate R�e�r�ev�t ar 1� r+�vafi Theoartl t�furviar ocia at itst, ore#inn:, tip....: !...... u..:..........................:::...::.......:....., .:.,;:,..,-:::.:.:.:;:.::•;:.;:.::.::'.:•:•;:.•::;::,:.;:.;:.;::.::.:.:.:.::.::;:::�:::-::«:::::>;::;::><::::::::::<::::;�;::<•;.;::.>:•.;'.;:.;;:.:.:.is�>'isi:;•::.:.,,..-. .;�;s>=:::>:::•::_>;<:>.::><.»<:;:::::..>i::::.:;:::.«;:<.;:;::::: reWte :andlflr a rove Atte rate:s..:oha:r'eta h : he: etd#it:>:> `h:e .andf�lt:o .er..ato:r : P.p. : : : : :. :: :.. : 9.:.: : :: .: : :::::::::::>::: : :p.::::::::::::::::. 5� I�;��►ol��rtebY'pr`ovrd��g rel��ri#��'te�r1d Coit rnfor��t��in_�eq�e�tet�bY•_#hp I Cour�t:"::w>``:t� the Board �l'ecjdes ��#:tt�`a . oue..t�e..La.ndf�ll.s::. ro r..etar. .:<rates .....................................................................:....::. G �diors 1�,� through._'�.2 I?.513i�tte �noperativ�.: Condition 16.4 REVISE the condition as indicated: .4 Geotechnical Inspector. The Landfill operator shall , .. .......... .... ..... ......... ... . ..... heF fund'*A—e .costs_;of an independent geotechnical - Page 2 - consultant, who shall be selected by and be responsible to the County. The eeRstarrsjar shall inspect the installation and condition of :.........:........: liners, leachate control facilities and other installations, identified by the }i::}}':l}:ij: i...;>.?:iii..::'::i vii:ryiiiii:}.._:<i�:i'f:'ii:f;:<:Y;;S;%i;:$::i':::4}:i;:,?}:r:::'i'F'::1:':'r.::v:'•ii�iti:':::+?::: County, as they are installed t This provision shall remain in force.over the life of the ;}landfill. Condition 31 .9 RESCIND the condition: .9 County ReseWee ReeeYeFY Management PFeffaffi. When diFeeted by the ADD the condition: .o}.`.'•.::.}:. ..................::: .. :....:..:::.:::,,<.::<;:<..::::.}�:.}::.: <i:;•;::i:;;:i::iiiii•:isr,::i::is2:;::....••%:;:<ii:}:i;-;i::iSi•:!;:;;:i:;:;}:;?:.}:;:ii:};•}::;;.;;:.';:ii::!'a::.<ii<::ii•::;:::i;:::"`;:::: .. :<::: • ..�..:�,.::. �.:::.,:��e:� eco:.::�::: .,.:::.::::a.:::� e.:::.:e::::t.::. '::p :.:ate•::}::::.�"�h�:.: .......................................... ................... ......:........................I .........................:......,...... ....::.::...:::..::..:::.:,.:::.:::.......:::....::............X fl17tk 13UteL?n. is e:<: fl.. .# 3�rtadvief .: ::...::::::.:.:::.:::U:.:.�Y::::::::..:_::::::.:::::::::.::..::::::.:::.::::.::::..::Y _. larl '' ri Ir' o ars dex$ �inadxperhe means : ►....:..,. ::1 .....................:.......:............................. ...........:.... ::>:;::>::::::i:.:i.:i:::i:>::>:>::>: i::::: i ::< >:<::::: atntr�butorr me>: >be;<;a >f, ted .#ee .. donna a srehat a > ; :tt#�or �f a ........ ... an�chsp.:fee oroerci�ar9e <: Y;: el3.oard, Condition 31.10 RENUMBER the Condition 31 .10 to Condition 31 .11 : 4-@;:x::1:: Fund Recovery. The.Landfill owner may recover funds provided to the County in advance of the opening of the Landfill through subsequent rate adjustments or surcharges approved by the county. The County may prorate the cost of the program among other waste disposal facilities it approves which are subject to similar conditions. ADD the condition: ;a <'AS 933 Nlanagerren# Prc� rem The �speratdr shall impose a tonnage deer Other means of funding, set by xhe Board of Supervrsors tcz T.I. ci�ntr�futpo the support of an adequate. program fior the County #o oompiy rv�th state mandated AB 938 rnan'agement requirements Ti he 9:39 program Sfiall b.e hat approvecl:by the Board of Supervisors t - Page 3 - Condition 35.9 RESCIND the condition: !FBffie en the GeuRty'S Feed system. The epeMtOF she!! depesit the fee Fne Condition 35.2 RESCIND the condition: .2 Open Speee and AgFieUltUF8 PFeseWelien Fee. The Landfill epeFeteF she" pay -ated eeeeunt established by the Geunty. The fee she!! be eensid le be a pass thFeugh business eest feF !he PUFpeses ef Fate setting. The Condition 35.4 RESCIND the condition as indicated: .�tien she'! be a pass thfeugh busifiess eest fef the PUFpese ef Fate setting. RCZ3:KCL-COA2.AMD 9-23-94 - Page 4 - Resolution 28-1994 RESOLUTION OF THE PLANNING COMMISSION OF THE COUNTY OF CONTRA COSTA, STATE OF . CALIFORNIA, AFFIRMING THAT THE COMMISSION IS RECOMMENDING TO THE CONTRA COSTA BOARD OF SUPERVISORS# APPROVAL OF AMENDMENT 1 TO THE KELLER CANYON LANDFILL LAND USE PERMIT (LUP 2020-89) . WHEREAS, on February 13, 1990, the County Board of Supervisors certified that the Final Environmental Impact Report for the Keller Canyon Landfill (Landfill) ,. is adequate and complies with the California Environmental Quality Act; and WHEREAS, on October 10 and 17, 1989, the Board adopted General Plan Amendment 3-89-CO (which carried forth to the 1991 General Plan) which was affirmed and ratified by the electorate's approval of Measure C on June 5, 1990; and WHEREAS, on July 24, 1990, the County Board of Supervisors adopted Rezoning Ordinance MS 15-89, approved Minor Subdivision MS 15-89, tentatively cancelled Williamson Act Land Conservation Contract 6-71 and a portion of Land Conservation Contract 8-69, approved Land Use Permit 2020-89, including Conditions of Approval, and adopted findings for the Landfill; and WHEREAS, the approved Landfill project included conditions which included requirements related to County fees, rate review and area-of-origin of wastes; and WHEREAS, on August 25, 1994, the Keller Canyon Landfill Company requested an amendment to LUP 2020-89 to delete Section 12 (Rate Approval) , delete or reconsider Conditions 11.5, 11.6, 31.9, 35.11 35.2 and 35.4 (County Fees) and any other related provisions concerning payment of County fees, and reconsider Conditions 5. 1, 5.2 and 5.3 (Area-of-Origin) ; and WHEREAS, the public hearing was duly noticed both by publication (August 31, 1994) and mailing to relevant parties (August 30, 1994) ; and WHEREAS, on September 1, 1994, the County Community Development Department transmitted a Staff Report, the Amendment 1 to LUP 2020-89 Document, and an Initial Study to the Planning Commissioners for review; and WHEREAS, on September 13, 1994, the County Planning Commission held a public hearing to receive testimony on Amendment 1 to LUP 2020-89, and heard testimony from Scott Gordon, Michael Woods, Ralph deVries, Glen Williams, Lance Dow and Frank Aiello, and closed the public hearing; and - Page 1 - Resolution 28-1994 WHEREAS, on September 13, 1994, the County Planning Commission expressed concern with some of the issues related to the Amendment 1 to .LUP 2020-89 and continued the item to September 20, 1994 so that staff could respond to the issues of concern (changing the Area-of-origin requirements might require additional environmental review, that the Transportation & Open Space/Agriculture Mitigation Fees are mitigation measures which mitigate Potentially Significant Impacts in the Keller Canyon Landfill EIR, Reciprocal Capacity Agreement provision should be. maintained) ; and WHEREAS, on September 20, 1994, the County Planning Commission heard the supplemental staff report which responded to the issues of concern raised at the September 13, 1994 hearing, one significant change was that staff withdrew its previous recommendations on Conditions 5.1 and 5.2 and recommended that the existing language of Conditions 5.1 and 5.2 be retained; and NOW, THEREFORE, BE IT RESOLVED th:.t the County Planning Commission, on the basis of the record before it, takes the following actions: 1. Recommends that the Board of Supervisors approve Amendment 1 to Land Use Permit 2020-89 as outlined in the Amendment Document dated September 13, 1994, with the exception that the existing language of Conditions 5.1 and 5.2 in LUP 2020-89 (July 24, 1990) be retained. 2. Authorize the Director of Community Development, as Secretary of the County Planning Commission, to prepare a resolution setting forth the Commission's findings on this item, and to transmit the resolution to the Board of Supervisors. The instruction by the County Planning Commission to prepare this resolution and recommend Approval of Amendment 1 to Land Use Permit 2020-89, was , given at a regular meeting on Tuesday, September 20, 1994, by the following vote: AYES: Woo, Wong, Straus, Clark NOES: None ABSENT: Accornero, Gaddis, Terrell ABSTAIN: None - Page 2 - Resolution 28-1994 I, Harvey E. Bragdon, Secretary of the County Planning Commission of the County of Contra Costa, State of California, hereby certify that the foregoing was duly called and held in accordance with the law on Tuesday, September 20, 1994. ATTEST: Secretary of the County Planning Commission, County of Contra Costa, State of California DD6:KCL.AIDI.RES Page 3 - CONTRA COSTA COUNTY COMMUNITY DEVELOPMENT DEPARTMENT DATE: September 23, 1994 TO: Board of Supervisors FROM: Harvey E. Bragdon, Director of Community Development By: Charles A. Zahn, Assistant Director SUBJECT: DOCUMENTS FOR SEPTEMBER 27, 1994, BOARD OF SUPERVISORS' HEARING ON AMENDMENT 1 TO LAND USE PERMIT 2020-89, KELLER CANYON LANDFILL As indicated in our memorandum of September 22, 1994, (which transmitted copies of Amendment 1 documents which were before the County Planning Commission) the following additional documents pertaining to the Board of Supervisors' hearing scheduled for 10:00 a.m., on September 27, 1994, are being transmitted under this cover: 1. (Proposed) Board Order approving Amendment 1, as recommended by the County Planning Commission and staff. 2. (Proposed) Amendment Document, indicating the specific changes to the July 24, 1990, Conditions of Approval that would result from the approval of the Planning Commission and staff recommendations. Explanations are provided in the previously transmitted Staff Report of September 13, 1994, to the County Planning Commission. 3. Resolution of the County Planning Commission recommending that the Board approve Amendment 1 with the Commission's September 20, 1994, revisions. CAZ:rw RM kc1-amdl.mcm H-1 TO: BOARD OF SUPERVISORS Contra FROM: Harvey E. Bragdon Costa Director of Community Development Courcy DATE: September 27, 1994 SUBJECT: AMENDMENT 1 TO LAND USE PERMIT 2020-89 FOR THE KELLER CANYON LANDFILL SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION RECOMMENDATION Approve Amendment 1 to Land Use Permit 2020-89 as set forth in the September 27, 1994, Amendment Document (as recommended by the County Planning Commission and the Community Development Department). FISCAL IMPACT x Provision in Amendment 1 would aid the Board of Supervisors in adjusting individual fees the County charges on wastes delivered to the Keller Canyon Landfill to fit within the caps (on the overall fees) approved by the Board on September 13, 1994. The Amendment would eliminate specific fees now set in the Land Use Permit for resource recovery programs and for general transportation and open space programs to enable the Board to set the fees in franchise agreements and other instruments. As a consequence of the Amendment, the proportion of the overall fees allocated to individual programs may drop. - BACKGROUND AND REASONS FOR RECOMMENDATION The Board of Supervisors, on June 28, 1994, directed staff to prepare a proposal for amending Land Use Permit 2020-89 to enable the Board to revise and reduce these County fees paid by the Keller Canyon Landfill which were established by the Land Use Permit, and to eliminate the obligation that the County set the Landfill's fees. The Keller Canyon Landfill Company had requested that these fees be reduced. The Board's direction reflected legal and institutional changes to solid waste regulation which occurred after the Landfill's Land Use Permit was approved on July 24, 1990. CONTINUED ON ATTACHMENT: YES SIGNATURE: RECOMMENDATION OF COUNTY ADMINISTRATOR ' RECOMMENDATION OF BOARD COMMITTEE APPROVE OTHER SIGNATURE(S): ACTION OF BOARD ON APPROVED AS RECOMMENDED OTHER VOTE OF SUPERVISORS UNANIMOUS (ABSENT I HEREBY CERTIFY THAT THIS IS A TRUE AND AYES: NOES: CORRECT COPY OF AN ACTION TAKEN AND ABSENT: ABSTAIN: ENTERED ON THE MINUTES OF THE BOARD OF SUPERVISORS ON THE DATE SHOWN. Contact: Charles A. Zahn (510) 646-2096 ATTESTED cc: Community Development Department (CDD) PHIL BATCHELOR, CLERK OF THE BOARD OF SUPERVISORS AND , COUNTY ADMINISTRATOR BY: , DEPUTY CAZ:rw RC 23/kel-amd t.bod Board Order Amendment 1 to LUP 2020-89 for KCL September 27, 1994 - Page 2 - BACKGROUND AND REASONS FOR RECOMMENDATION (Cont'd) The regulatory situation in effect in 1990 evolved from the state Solid Waste Management and Recovery Act of 1972 (S.B. 5). That legislation required each California county to prepare a County Solid Waste Management Plan on a countywide basis. In practical terms, it meant that waste facilities virtually had to be provided within each county and through a city-county consensus. Opportunities for importing or exporting waste across county lines were very limited, as was the prospect for competition with landfills located in other counties or states. Local governments were primarily concerned with preserving the capacities of local landfills for local use. Local governments proposing to allow the importation of waste, even on a temporary basis, faced intense local opposition. Accordingly, when the Keller Canyon Landfill was approved, its Land Use Permit Conditions of Approval required rate controls and provided for a number of fees to be paid for various County programs. Subsequent to the opening of the Landfill in 1992, a series of U.S. Supreme Court decisions had the effect of overturning state and local "flow control" regulations as being Inimical to interstate commerce. These decisions combined to create immediate competitive situations in which companies controlling landfills are overtly competing for local waste streams and in which parties controlling waste streams are seeking the lowest prices or other economic advantages. The Keller Canyon Landfill believed that it is now placed at a disadvantage for the dual reasons of being a state-of-the-art landfill meeting the latest mandated (but expensive) federal and state construction standards and requiring the transfer of processed waste, and having to pay a package of high local fees. Consequently, the Board of Supervisors entered into discussions for lowering disposal costs, including the lowering of County fees. The Board of Supervisors' discretion in changing fees depends on the means by which they were established: Board Order (e.g., fees specifically authorized by the state), ordinance, Franchise Agreement, or Land Use Permit. Those established by Land Use Permit require formally amending the Land Use Permit unless discretion is provided for in the terms of the conditions. The Keller Canyon Landfill Company applied for an amendment to Land Use Permit 2020-89. A set .of changes to the original Land Use Permit Conditions of Approval pertaining to the fees and related matters was prepared for consideration by the County Planning Commission. It was designated Amendment 1 Land Use Permit 2020-89, Amendment Document dated September 13, 1994. It was further described in a Staff Report prepared for the September 13, 1994, Planning Commission meeting. It was the subject of a duly noticed Planning Commission public hearing on September 13, 1994. The Commission closed the hearing to public testimony but continued the matter for decision to September 20, 1994. Staff revised its recommendations and advised the Commission to eliminate changes to Conditions 5.1 and 5.2, which were being interpreted as providing new authorizations for the Keller Canyon Landfill to import out-of-County waste. The Commission acted to recommend that the Board approve the revised amendment. It is before the Board as the Amendment Document dated September 27, 1994. Copies of the documents before the Planning Commission were transmitted toZ the Board via a memorandum from the Community Development Department dated September 2a', 1994. Copies of the Planning Commission's resolution and the revised Amendment Document (September 27, 1994) have been transmitted to the Board through a memorandum dated September 23, 1994. RCZ3:ke1-"1.bod t o� COUNTY COUNSEL'S OFFICE CONTRA COSTA COUNTY MARTINEZ, CALIFORNIA I, Date: October 31, 1994 i To: Board of Supervisors From: Victor J. Westman, County Counsel By: Silvan B. Marchesi; Ass't County CounselJ,8 r iI Re: Keller Canyon Landfill, Proposed Land Use Permit Amendment As the Board directed on 25 October 1994, we have reviewed the letter of that date to the Board from Randall D. Morrison, attorney for Valley Waste Management. Here is our response to Mr. Morrison's specific points. 1. Transportation (Roadway) Impacts Are Mitigated And Should.Continue To Be Mitigated Through County Fees. RESPONSE: We reiterate the point we made in our memo of 4 October 1994 to the Board: CEQA requires that an EIR examine each impact of a project. Generally, for each such impact, the lead agency must find either that a mitigation measure that it has adopted reduces that impact to an insignificant level, or that the impact is unavoidable but is outweighed by the benefits of the project. Conditions of approval are imposed not only to satisfy environmental needs, but also to further other governmental purposes, such as purely planning considerations. For the Keller Canyon Landfill LUP, the EIR identified various impacts and proposed certain mitigation measures. As to each transportation impact, the EIR also proposed one or more mitigation measures. All of those mitigation measures were adopted in the Board's conditions of approval for the LUP, but none of them was characterized as a "Transportation System Impact Fee." The attached table sets forth each impact identified by the EIR, the mitigation measure suggested, and the condition of approval that relates to that mitigation measure. Condition of Approval No. 35.1 did not arise out of the EIR process, since it was not even written until one month after-the Board certified the EIR as adequate: As indicated, the Board had previously determined that the mitigation measures identified in the EIR were legally adequate. ratios, .& may add to Reconstruct inter- established. capacity impacts on change. App. to access roads in participate with others vicinity. (p. 3-193) in funding needed, improvements pro rata. (p. 3-196) 6. Safety of 6. Implement bike & 6. Condition 29.10. Pedestrians & pedestrian path system Bicycle lane-pedestrian Bicyclists: Increased on roads to site. (p. 3- path installed. traffic hazards on 196) .Bailey Rd. (p. 3-196) 7. Traffic Effects on 7. Use transfer 7. Condition 8.1, 9.1, Adjacent Land Use: stations, eliminate.pub. 22.1, Development & commercial & access to KCLC, Improvements Plan residential visual/noise berms, developments along & control hours of truck west of Bailey Rd. (p. operation (p. 3-197) 3-197) 2 3 how it would be financed. - - Virtually the same condition was put in the 1987 Land Use Permit for the Acme Transfer Station. There was an expectation that the costs of the program --capped at$100,000 annually - - would be spread among other facilities as they came on line. It is noted the waste facilities approved by the County all include Land Use Permit conditions that obligate the permittees to cooperate with the County to provide resource recovery services to their respective service areas. AB 939, mandating waste reduction goals and calling for a new plan for reaching the goals went into effect in January, 1990. A central idea of AB 939 is that individual cities and counties (for unincorporated areas) should be primarily responsible for meeting the goals. It wasn't until mid 1993 that the new Integrated Waste Management Plan was completed. . Amendment 1 would help provide for the maintenance and implementation of the Integrated Waste Management Plan by adding Condition 31.10, specifically authorizing the Board of Supervisors to impose a tonnage surcharge for AB 939 program purposes. The County is not limited to moneys from Condition 31.10 to finance resource recovery. If, for example, the geographic base for the provision of the County's resource recovery program does not correspond to the service area of the landfill, the County can use collection franchise area administrative fees to obtain funding. The County, then, can anticipate that the changes to resource recovery program funding in Amendment 1 will not be deleterious to the program. CAZ:rw RCZ3:KCIAmard.rrp - Page 2 - f � l 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 unsel 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. 352) 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 AAMDED 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 352 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 the R-ar of S tin �. .. nbnll detA.w line tbn ""}rent a�RmnLnt �f Pach fPP t.� hP lovied." LTF 9a:\1up1018.94 AMENDMENT DOCUMENT AMENDMENT 1 TO LAND USE PERMIT 2020-89 KELLER CANYON LANDFILL COMPANY CONTRA COSTA COUNTY BOARD OF SUPERVISORS SEPTEMBER 27, 1994 AMENDMENT 1 REVISIONS The following is a complete description of Land Use Permit 2020-89 Conditions of Approval modifications, the recommended actions for individual conditions are identified as RESCIND (the entire condition), ADD, or REVISE; wording to be deleted is identified by cross-out type while wording to be added is identified by shading. Condition 5.3 RESCIND the condition: .3 Sub Geunty SeFYiee AFea. it theFe is FneFe than ene Glass 11 OF Glass !11 landfills Condition 11.5 RESCIND the condition (see Condition 16.4): Condition 11 .6 REVISE the condition as indicated: •� �-fes .6 + ,I r i Gempiienee and Mitigation Monitoring Program. The landfill operator shall e--a fund to-open County srteff 1 �'nJ,CO!!Y•:%$r:.MP:-0r.�•::?GS::!.. :/•iS...,ft:,M...:•h'!!f�e!M:.+,?:f�!;i??K:!�?t;?}X.txt•,?M.:^$!;:{x.}'f.•:K:-}Y.:}:! :•?ivi .$f,.lca:F.;W..,..y.:�,.�:: j►{ lit . tif � I # monitoring e#r3 compliance a `.• y'-02x�•.'`.::,tca oa •is o:• '}s-:aYc3:ca:-�w,.a;,ti•<s�},,.«aaa u•%::.:.x,•;•N A' tc: ;, > .6t;.. N' a%r2 r yq°" '}t• : } :`.•`•;:x>}w' withs: Conditions of Approval andtr'� `ltp;; r mitigation monitoring programs, as designed pnd implemented by the Geunty .- ..` r•.o? `Ot�M„.`... .'2`•"?Y':w:'M2?�t?•`.oF`�` .»;;rw,•, aa}2?r;:cx,. :?.x^'.?}.Y••.:r,.. ..Y? Yi'.:. !?Q??gga+e .�;Y•?A;7rN.•. <>� $ . !'� :.Y•.;:.• ?_:�Ac}'t•$::.}x:!:!:.•yt::.:t.,•...T7.,.:::::.� .. .:ty;:�.,�..: ,�'�. >.•L7tlk'Y'f ty.•w S,-.: ��xLx�re:?%�cxtiuk,c�wccw,Ja..n£'axt:.;N:wY.w:o .. :}•�:`,•:i..: ..\..:,v:.i-'.i$:v.'inii:�%vh.'rtir.J�,•,�,�r\h••r`'�: 'QF }�.e�h7:a:�]NQ7:±��k��l•�~:`...`'ii/.J:::[•"�.7:..'•.:il,:�da'1+,fµ:kS.Yl::>]•1::!%~ ..�.. ,�...:•�t ^w'?i .:,:..':f,xv v::• .....r..........,v:..::.v v- ..n-:e?y:-i:'v.., {-:::Z:iiA:k{R]!i 't' }. �+" Condition 11.8 RESCIND the condition: Condition 12.1 RESCIND the condition: landfill it the landfill. The Fates established by the Bewd will be net ADD the condition: .. . .... .: :.....:..v ::.:.::f.::.x. :.. :: ..:::.:vx.:.:,..,.-::.:... . ....., r:.:.:...: ::::::::..:.:n.:::..::...::::.,-r:::::.x.::.:.:.}..:}:t..,•r!., !:;�::.,.;;!:..:.:.::.:::::' ..: xy•ft ..:..t,z:.,: »::�.a..:: .....;..:;....;+.::�., . y+. .i y�j€ y �yy �y $�� •.•Y:c }191.:}:c...•;.: : 1 .7 Ay} a�'..'t..: ' .rr.::: .^Y.l: :'�Y .�.`�.(...,...:I i:�F.:i: ' S:iii�• 4`a ::��;�-4�.'ki ..M. ,.•. •:• t;•.4.},�i�5 RNLI e:Y.{..v�-. M .. ..Q ..� :•..... .�.c.: 1?�: : ... h! -w *�V: . :a o.}Y ��yt,,,,::::-�:K:c::.'•:R�:ch%:}`*":;:::'.:':.?::�Y;i, „}.i,�Qafo::�.:',.,x�•:::;t. ,•5}a:Yi ,o-.}.,r:. Now t� t<v.;,C•..-i[{'•pc•:}r't•:c�:fri;:irt•,::,}..4at}••:'#5::.}{ ,c✓ .!?n; <}:...,L:. .,Wn. .:::::.:,•k.:. �v..,!a::Kta'•.:ti\,`kc•.�•-�..•�:t�T.:+?i::}:}:?•.,-:°f:r1i::::-k.v :..d`.t :..$.....Y;�L,C;!: ,{.,..f:.•..s.,t:..�,.;f.:: >e<ylar«ar3 .or.,.a. . .rua:le.taas`> e :".`tea>< rirw� . ,.ar�tfatT:< ��., ratii'i= .h ...t.:.•.vn...: :r.P.::.}•..'•;!•�:;:!:•:F.::}}�:-..r:•% .'v,:iY:>:4 •.:S Gr. •Y.•Y:!{:!nry:x. .,..::; u,••:;t}r:}t?.;:::•:•::::.,.:•::. :•::c:}::::::..:,.:::w:-:.x-:•::::•::-:,..:•.•"a":-.:�:,::?v:•�:<.:.}:::-..};:-.f:•:.-.'•,::^"•:i`•. .. `�fi. .......... ..�. ,?•.{:;t}.`!.;,,::r;`.•^p:!'!.ci<;:::X•:::::>;:::: afoQ'. T+"�tEiOidt �tt':Es?it$1 # ' It(f$t141:Lp s' t#I;rI ' t} of.:: <flt <:>Boar;�d>dcd:es< at>xo< . ...o�✓a,te... .acl.f��-.s.. .ro .r. ea�r. t;:rates:: ::::•-::•:.:...�:;::::•:::t:.:,;}:••:;::::._::•>?_•:•}-•;;••}?••:-x:.,.s•:.-:::::..:::..:.:}•:.::.:i•:.?}:.:.:ct:::::.::.::.::.:c:::.......:..,,..}„}:)}•..•!.};;.}}};...v.f...•wf...v..:,..ox........:.,......:.:.,:.r.....w,..r..:.,.............. Ctrr� a:t�ons:12>:... l r: :.u: ri ev Condition 16.4 REVISE the condition as indicated: .4 Geotechnical Inspector. The Landfill operator shall eeAthaet with the GeuAty, fund ,the; costsof an independent geotechnical Page 2 - w , consultant, who shall be selected by and be responsible to the County. The een t s r shall inspect fegulef! the installation and condition of liners, leachate control facilities and other installations, identified by the vt:;r,.<'.?4:..;:;.x:.^�.}%,}»..>::..::F•,;q.'"':..".' ;..,.;%,}:.;..r.::..?..,..;.r..�::":x^:::fx.•.;..r�a.•r,.:Fn.%r,.::i+:rurc!S'{;�,r„x: County, as they are installed <. � reafters �rectd jt. This provision shall remain in force.over the life of the + ancifill. Condition 31.9 RESCIND the condition: ADD the condition: ...,:i%xi.}::i.•,•:::•: •::.. .:rvM. Q./� ..S.x•}% . f Jiiif}:x..:;.:Y:i...:.�•: C f:e:. �,��yj3:��.-7y� /a� .`iVfF_. :r'h. +�.} 4:{{+r}a,Y•.:v'f. +Y Will:... ti.S: 7`(/�yF yQ►{ f�^%:•�: L..,•�C,?[2+:Fv: ' .•,•$,..,.;Y{ 'd [i[•4 'h�.•. ; T'TY1: ?F - , !s:+^-!•:• ti ....'•::::p<+:.::. vv..,:•:K4.:- :•.i:. ,ti,,.:.x.•,'•.••..•.••.'•w: £`.:<`:i.::.:f::: '^•..,}-.! ..k ::.:: .`.:. y.�•... : mss: ' : :..;.:..';j, 1'C'. '.:..ra �' •:: 3 ,:: . : ' 1tk'..:.<% .. G� . .'.: •,• .. ^:,-;}}: :,......... ^•�•y.gt.• riper...%...,... ••'•l<•:,}::. , ..,c::: �?'}�:' ;4`•,w• A:-$.: i?. ;}.:.:�..•:f:};>.}:%x:c::.}.a:.;w �;:;: :}, �•.., ti}}}:'1��,:. ,f,.••::}:;.,::.. •,f6a- 4 .`h....4'>h:.!n t;{�,}�:O}'\i'',...�F..i:}..:.i{.::.:%...{.C} •}.. :.A...},.h::i:'•:i':::i:ri{:h:•.h}::}}i".;:•}:?:.. W. ..v;... ..f,.. A.::J..;i.�:%\{F.Yf' :.Y{'n4•..W,}.`:.::.f:: •.>.i%, .::}::.•:.a:.:::::;.%..,::.:a`r.:.,.:.::: :;,.::..:.,c.}::.:.,-:::r;;.::,....,:x.::plc:rx..t-..a..2.:;.._.}:/r.•x•:.,.:,...::::.f:r:.,•:Xc:`.}.�c� rw•� MA''G::: i.'.4-..�::::•}.:p:?:;>..,,•::::::;:}}:::.'.:•.:::x}.::.:::.•,}::.:::J:::. ...;4:.,••: ::x.:.,.:::. ..,•.a.'ric.:::}p}}xc.::;.,•::}::::::. ::.•f..::::.c.::::7.:•:.:?}•.:. :.,.5 p:.�.• .,. �f�ncht&e fee :;or__athe;�rcharge set by;;�� l�oatd„ Condition 31 .10 RENUMBER the Condition 31..10 to Condition 31.11: :48+ v;l Fund Recovery. The.Landfill owner may recover funds provided to the County in advance of the opening of the Landfill through subsequent rate adjustments or surcharges approved by the county. The County may prorate the cost of the program among other waste disposal facilities it approves which are subject to similar conditions. ADD the condition: ....... .... . L: S 939 It1lar�agerr�en# Ptagrarn 'i"he operator shall rrnpose a tonnage fees Other rneans:<offund�ng, set by the Board of uperv;sors to manually cantr�bu#e #o the suppor# of an adequate program for the County #o Comply with stats mandated.AB.939 management requirements the A8 939 program fiall be that approved by th'e Board O: Mervisors Page 3 - Condition 35.1 RESCIND the condition: Condition 35.2 RESCIND the condition: gFegeted seeount established by the Geunty. The fee she!! be eensideFe-d to he Condition 35.4 RESCIND the condition as indicated: geted epeeunt established by the Gewfity. The extent ef the neeptien shall be a pass thfeugh business eest feF the pufpese ef fate settifig. .. ......... RCZ3:KCL-COA2.AMD 9-23-94 - Page 4 - Resolution 28-1994 RESOLUTION OF THE PLANNING COMMISSION OF THE COUNTY OF CONTRA COSTA, STATE OF .CALIFORNIA, AFFIRMING THAT THE, COMMISSION IS RECOMMENDING TO THE CONTRA COSTA BOARD OF SUPERVISORS# APPROVAL OF AMENDMENT 1 TO THE FELLER CANYON LANDFILL LAND USE PERMIT (LUP 2020-89) . WHEREAS, on February 13, 1990, the County Board of Supervisors certified that the Final Environmental Impact Report for the Keller Canyon Landfill (Landfill) , is adequate and complies with the California Environmental Quality Act; and WHEREAS, on October 10 and 17, 1989., the Board adopted General Plan Amendment 3-89-CO (which carried forth to the 1991 General Plan) which was affirmed and ratified by the electorate's approval of Measure C on June 5, 1990; and WHEREAS, on July 24, 1990, the County Board of Supervisors adopted Rezoning Ordinance MS 15-89, approved Minor Subdivision MS 15-89, tentatively cancelled Williamson Act Land Conservation Contract 6-71 and a portion of Land Conservation Contract 8-69, approved Land Use Permit 2020-89, including Conditions of Approval, and adopted findings for the Landfill; and WHEREAS, the approved Landfill project included conditions which included requirements related to County fees, rate review and area-of-origin of wastes; and WHEREAS, on August 25, 1994, the Keller Canyon Landfill Company requested an amendment to LUP 2020-89 to delete Section 12 (Rate Approval) , delete or reconsider Conditions 11.5, 11.6, 31.9, 35.1, 35.2 and 35.4 (County Fees) and any other related provisions concerning payment of County fees, and reconsider Conditions 5.1, . 5.2 and 5.3 (Area-of-Origin) ; and WHEREAS, the public hearing was duly noticed both by publication (August 31, 1994) and mailing to relevant parties (August 30, 1994) ; and WHEREAS, on September 1, 1994, the County Community Development Department transmitted a Staff Report, the Amendment 1 - to LUP 2020-89 Document, and an Initial Study to the Planning Commissioners for review; and WHEREAS, on September 13 , 1994, the County Planning Commission held a public hearing to receive testimony on Amendment 1 to LUP 2020-89, and heard testimony from Scott Gordon, Michael Woods., Ralph deVries, Glen Williams, Lance Dow and Frank Aiello, and closed the public hearing; and - Page 1 - Resolution 28-1994 WHEREAS, on September 13, 1994, the County Planning Commission expressed concern with some of the issues related to the Amendment 1 to LUP 2020-89 and continued the item to September 20, 1994 so that staff could respond to the issues of concern (changing the Area-of-Origin requirements might require additional environmental review, that the Transportation & open Space/Agriculture Mitigation Fees are mitigation measures which mitigate Potentially Significant Impacts in the Keller Canyon Landfill EIR, Reciprocal Capacity Agreement provision should be. maintained),; and WHEREAS, on September 20, 1994, the County Planning Commission heard the supplemental staff report which responded to the issues of concern raised at the September 13, 1994 hearing, one significant change was that staff withdrew its previous recommendations on Conditions 5.1 and 5.2 and recommended that the existing language of Conditions 5.1 and 5.2 be retained; and NOW, THEREFORE, BE IT RESOLVED that the County Planning Commission, on the basis of the record before it, takes the following actions: 1. Recommends that the Board of Supervisors approve Amendment 1 to Land Use Permit 2020-89 as outlined in the Amendment Document dated September 13, , 1994, with the exception that the existing language of Conditions 5.1 and 5.2 in LUP 2020-89 (July 24, 1990) be retained. 2. Authorize the Director of Community Development, as Secretary of the County Planning Commission, to prepare a resolution setting forth the Commission's findings on this item, and to transmit the resolution to the Board of Supervisors. The instruction by the County Planning Commission to prepare this resolution and recommend Approval of Amendment 1 to Land Use Permit 2020-89, was given at a regular meeting on Tuesday, September 20, 1994, by the following vote: AYES: Woo, Wong, Straus, Clark NOES: None ABSENT: Accornero, Gaddis, Terrell ABSTAIN: None Page 2 - Resolution 28-1994 I, Harvey E. Bragdon, Secretary of the County Planning Commission of the County of Contra Costa, State of California, hereby certify that the foregoing was duly called and held in accordance with the law on Tuesday, September 20, 1994. ATTEST: Secretary of the County Planning Commission, County of Contra Costa, State of California DD6.,KCI,AIDI.RPS Page 3 - ' s.' w t CONTRA COSTA COUNTY COMMUNITY DEVELOPMENT DEPARTMENT DATE: September 23, 1994 TO: Board of Supervisors FROM: Harvey E. Bragdon, Director of CommunityDevelopment By: Charles A. Zahn, Assistant Director SUBJECT: DOCUMENTS FOR SEPTEMBER 27, 1994, BOARD OF SUPERVISORS' HEARING ON AMENDMENT 1 TO LAND USE PERMIT 2020-89, KELLER CANYON LANDFILL As indicated in our memorandum of September 22, 1994, (which transmitted copies of Amendment 1 documents which were before the County Planning Commission) the following additional documents pertaining to the Board of Supervisors' hearing scheduled for 10:00 a.m., on September 27, 1994, are being transmitted under this cover: 1. (Proposed) Board Order approving Amendment 1, as recommended by the County Planning Commission and staff. 2. (Proposed) Amendment Document, indicating the specific changes to the July 24, 1990, Conditions of Approval that would result from the approval of the Planning Commission and staff recommendations. Explanations are provided in the previously transmitted Staff Report of September 13, 1994, to the County Planning Commission. 3. Resolution of the County Planning Commission recommending that the Board approve Amendment 1 with the Commission's September 20, 1994, revisions. cnz:rw RC73:kc1-amd1.mem H-1 TO: BOARD OF SUPERVISORSt • •n2 C +' ' FROM: Harvey E. Bragdon Costa Director of Community Development DATE: September 27, 1994 t SUBJECT: AMENDMENT 1 TO LAND USE PERMIT 2020.89 FOR THE KELLER CANYON LANDFILL SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION BECOMMENDATION Approve Amendment 1 to Land Use Permit 2020-89 as set forth in the September 27, 1994, Amendment Document (as recommended by the County Planning Commission and the Community Development Department). FISCAL IMPACT Provision in Amendment 1 would aid the Board of Supervisors In adjusting individual fees the County charges on wastes delivered to the Keller Canyon Landfill to fit within the caps (on the overall fees) approved by the Board on September 13, 1994. The Amendment would eliminate specific fees now set in the Land Use Permit for resource recovery programs and for general transportation and open space programs to enable the Board to set the fees in franchise agreements and other instruments. As a consequence of the Amendment, the proportion of the overall fees allocated to individual programs may drop. BACKGROUND AND REASONS FOR RECOMMENDATION The Board of Supervisors, on June 28, 1994, directed staff to prepare a proposal for amending Land Use Permit 2020-89 to enable the Board to revise and reduce these County fees paid by the Keller Canyon Landfill which were established by the Land Use Permit, and to eliminate the obligation that the County set the Landfill's fees. The Keller Canyon Landfill Company had requested that these fees be reduced. The Board's direction reflected legal and institutional changes to solid waste regulation which occurred after the Landfill's Land Use Permit was approved on July 24, 1990. CONTINUED ON ATTACHMENT: YES SIGNATURE: RECOMMENDATION OF COUNTY ADMINISTRATOR ' RECOMMENDATION OF BOARD COMMITTEE APPROVE OTHER SIGNATURE(S): ACTION OF BOARD ON APPROVED AS RECOMMENDED , OTHER VOTE OF SUPERVISORS UNANIMOUS (ABSENT I HEREBY CERTIFY THAT THIS IS A TRUE AND AYES: NOES: CORRECT COPY OF AN ACTION TAKEN AND ABSENT: ABSTAIN: ENTERED ON THE MINUTES OF THE BOARD OF SUPERVISORS ON THE DATE SHOWN. Contact: Charles A. Zahn (510) 646-2096 ATTESTED cc: Community Development Department (CDD) PHIL BATCHELOR, CLERK OF THE BOARD OF SUPERVISORS AND COUNTY ADMINISTRATOR BY: , DEPUTY CAI:rw RCZ31ke1-imd 1.bod Board Order Amendment 1 to LUP 2020-89 for KCL September 27, 1994 Page 2 BACKGROUND AND REASONS FOR RECOMMENDATION (Cont'di The regulatory situation in effect in 1990 evolved from the state Solid Waste Management and Recovery Act of 1972 (S.B. 5)• That legislation required each California county to prepare a County Solid Waste Management Plan on a countywide basis. In practical terms, it meant that waste facilities virtually had to be provided within each county and through a city-county consensus. Opportunities for importing or exporting waste across county lines were very limited, as was the prospect for competition with landfills located in other counties or states. Local governments were primarily concerned with preserving the capacities of local landfills for local use. Local governments proposing to allow the importation of waste, even on a temporary basis, faced intense local opposition. Accordingly, when the Keller Canyon Landfill was approved, its Land Use Permit Conditions of Approval required rate controls and provided for a number of fees to be paid for various County programs. Subsequent to the opening of the Landfill in 1992, a series of U.S. Supreme Court decisions had the effect of overturning state and local "flow control" regulations as being inimical to interstate commerce. These decisions combined to create immediate competitive situations in which companies controiling landfills are overtly competing for local waste streams and In which parties controlling waste streams are seeking the lowest prices or other economic advantages. The Keller Canyon Landfill ;? believed that it is now placed at a disadvantage for the dual reasons of being a state-of-the-art landfill meeting the latest mandated (but expensive)federal and state construction standards and requiring the transfer of processed waste, and having to pay a package of high local fees. Consequently, the Board of Supervisors entered into discussions for lowering disposal costs, including the lowering of County fees. The Board of Supervisors' discretion in changing fees depends on the means by which they were established: Board Order (e.g., fees specifically authorized by the state), ordinance, Franchise Agreement, or Land Use Permit. Those established by Land Use Permit require formally amending the Land Use Permit unless discretion is provided for in the terms of the conditions. The Keller Canyon Landfill Company applied for an amendment to Land Use Permit 2020-89. A set of changes to the original Land Use Permit Conditions of Approval pertaining to the fees and related matters was prepared for consideration by the County Planning Commission. Jt was designated Amendment 1 Land Use Permit 2020-89, Amendment Document dated September 13, 1994. It was further described in a Staff Report prepared for the September 13, 1994, Planning Commission meeting. It was the subject of a duly noticed Planning Commission public hearing on September 13, 1994. The Commission closed the hearing to public testimony but continued the matter for decision to September 20, 1994. Staff revised Its recommendations and advised the Commission to eliminate changes to Conditions 5.1 and 5.2, which were being interpreted as providing new authorizations for the Keller Canyon Landfill to'Import out-of-County waste. The Commission acted to recommend that the Board approve the revised amendment. it is before the Board as the Amendment Document dated September 27, 1994. Copies of the documents before the Planning Commission were transmitted toz the Board via a memorandum from the Community Development Department dated September 29;' 1994. Copies of the Planning Commission's resolution and the revised Amendment Document (September 27, 1994) have been transmitted to the Board through a memorandum dated September 23, 1994. RCZ3:ke1-md1.Dad , 3 COUNTY COUNSEL'S OFFICE CONTRA COSTA COUNTY MARTINEZ, CALIFORNIA Date: October 31, 1994 To: Board of Supervisors Frau: Victor J. Westman, County Counsel By: Silvano B. Marchesi, Ass't County Counse1,J 18 Re: Keller Canyon Landfill, Proposed Land Use Permit Amendment As the Board directed on 25 October 1994, we have reviewed the letter of that date to the Board from Randall D. Morrison, attorney for Valley Waste Management. Here is our response to Mr. Morrison's specific points. 1. Transportation (Roadway) Impacts Are Mitigated And Should Continue To Be Mitigated Through County Fees. RESPONSE: We reiterate the point we made in our memo of 4 October 1994 to the Board: CEQA requires that an EIR examine each impact of a project. Generally, for each such impact, the lead agency must find either that a mitigation measure that it has adopted reduces that impact to an insignificant level, or that the impact is unavoidable but is outweighed by the benefits of the project. Conditions of approval are imposed not only to satisfy environmental needs, but also to further other governmental purposes, such as purely planning considerations. For the Keller Canyon Landfill LUP, the EIR identified various impacts and proposed certain mitigation measures. As to each transportation impact, the EIR also proposed one or more mitigation measures. All of those mitigation measures were adopted in the Board's conditions of approval for the LUP, but none of them was characterized as a "Transportation System Impact Fee." The attached table sets forth each impact identified by the EIR, the mitigation measure suggested, and the condition of approval that relates to that mitigation measure. Condition of Approval No. 35.1 did not arise out of the EIR process, since it was not even written until one month after the Board certified the EIR as adequate. As indicated, the Board had previously determined that the mitigation measures identified in the EIR were legally adequate. Board of Supervisors October 31, 1994 Page 2 2. The EIR Identifies Open-Space And Secondary Community Impacts, And These Impacts Are Mitigated Through the Open Space Fee. RESPONSE: The EIR listed Impacts Nos. 10-19, and identified mitigation measures for each impact. None of those mitigation measures included an open space fee. However, each mitigation measure identified was included in a condition of approval. Thus, the imposition of Condition of Approval No. 35.2 cannot be said to be required to mitigate the open space impacts identified in the EIR. 3. Rescinding Conditions 31.9 And 35.4 Will Reduce Keller's Obligation To Fund The County's Resource Recovery Program. RESPONSE: We understand that the Board has expressed its intent to reject this proposed amendment. 4. Reducing Or Eliminating The Mitigation Fees Will Reduce Or Eliminate Mitigation. RESPONSE: In our view, there is no evidence in the record to suggest that reducing or eliminating the two fees in Special Conditions 35.1 and 35.2 will reduce or eliminate the effectiveness of mitigation measures set forth in the EIR and adopted by the Board of Supervisors. 5. A Notice Of Exemption Is Improper, Because There Is A Possibility Of Significant Environmental Effects. RESPONSE: In our view, Valley Waste Management has not shown that reduction or elimination of either of the subject fees will have any environmental effect, 'in light of all the other mitigation measures that were adopted by the Board of Supervisors. In addition to these specific responses, since the EIR for the Keller Canyon Landfill LUP has been certified, no further environmental review is permitted by CEQA unless: "(1) Subsequent changes are proposed in the project which will require important revisions of the previous EIR ... due to the involvement of new significant environmental impacts not considered in a previous EIR ... on the project...." (State CEQA Guidelines, § 15162(a)) Board of Supervisors October 31, 1994 Page 3 In our view, no evidence has been placed in the record to indicate any new significant `environmental impact not considered by the EIR for the Keller Canyon Landfill LUP. i KELLER CANYON CEOA MITIGATION MEASURES Iml2act Mitigation Measures Condition 1. Effects on Highway 1. a. Limit trips from 1. Condition 29.9, 8.1 4 (p. 3-186): Change KCL to Transfer current traffic patterns Stations-6:30-8:30 & generate new traffic a.m. This reduces volumes, esp. truck impact to insignificant. traffic b. Use TS, and prohibit self-haul. c. Implement hwy. projects to widen & improve Hwy 4. (p. 3- 187) 2. Cause damage &' 2. . Option 1: a. 2. Condition 29.5, wear to pavements on Require applicant to 29.7. Maintenance fee Bailey Road (p. 3-188). contribute to (Option 2) has not improvements fee to been established. upgrade & improve pavement sections on roads impacted by transfer truck traffic to KCLC. b. Require applicant to contribute to maintenance fee. Option 2: Have surcharge on each truck trip to be applied toward future maintenance of these roads. (p. 3-189) 3. Site Access: 3. Design proper sight 3. Condition 29.4 Location & design of distance & intersection access road at entrance. This intersection on Bailey would reduce impact Rd. is critical design to insignificance (p. 3- element. (p. 3-190) 190). KELLER CANYON CEQA MITIGATION MEASURES lmgact Mitigation Measures Condition 4. Traffic Safety on 4. Site access 4. Condition 29.4, Bailey Road: improvements 29.5 Additional traffic to proposed by appl., plus KCLC may result in marked left-turn add'I accidents, entrance. Also, traffic especially in fog (p. 3- signal. (p. 3-193) 190-193). 5. Traffic Capacity & 5. Roadway 5. Condition 29.8. Congestion: Traffic improvements at Improvement dist. or would increase V/C freeway ramps. area of benefit not yet ratios, & may add to Reconstruct inter- established. capacity impacts on change. App. to access roads in participate with others vicinity. (p. 3-193) in funding needed improvements pro rata. (p. 3-196) 6. Safety of 6. Implement bike & 6. Condition 29.10. Pedestrians & pedestrian path system Bicycle lane-pedestrian Bicyclists: Increased on roads to site. (p. 3- path installed. traffic hazards on 196) .Bailey Rd. (p. 3-196) 7. Traffic Effects on 7. Use transfer 7. Condition 8.1, 9.1, Adjacent Land Use: stations, eliminate pub. 22.1, Development & commercial & access to KCLC, Improvements Plan residential visual/noise berms, developments along & control hours of truck west of Bailey Rd. (p. operation (p. 3-197) 3-197) - 2 1 KELLER CANYON CEOA MITIGATION MEASURES Iml2act Mitigation Measures Condition 8. Costs of Rd. 8. App to pay pro 8. Condition 29.8 Improvements: Bailey rata. Pay all entrance Rd.: $1.5 million; costs & Bailey n. of Bailey/SR4 intersec- entrance, plus tion: To be maintenance (p. 3- determined; Entrance: 198). $300,000 (p. 3-197- 198) 9. Construction- 9. None. Insignificant. 9. Condition: N/A related Traffic Impacts: Add'I traffic during construction (p. 3-198) Onen-Saace lmpacts And Secondary Community.Impacts 10. Traffic: See 10. See above 10. See above above impacts. mitigation measures. conditions. 11. Visual: Alteration 11. Manage grading, 11. Condition 22 of Topography (p. 37 landscaping plans; 150) establish park, plant trees (p. 3-1158-159) 12. Visual: Views 12. Screen auxiliary 12. Condition 22 from Bailey Road (p. 3- areas, enhance entry, 163) design admin. bidgs. (p. 3-163) 13. Visual: Water 13. Construct berms 13. Condition 22.12 tanks (p. 3-164) around all water tanks, plant grasses. (p. 3- 164) 14. Visual: Light and 14. Directional lighting 14. Condition 22.14 glare (p. 3-164) on access road (p. 3- 3 KELLER CANYON CEQA MITIGATION MEASURES Im acct Mitigation Measures Condition 164) 15. Visual: Litter 15. Litter control plan, 15. Condition 25 inc. debris fences, litter patrols, perimeter berms, daily cover. (p. 3-165) 16. Noise: Operations 16. Limit hours of 16. Condition 21 & Site Preparation (p. construction/operation, 3-245) berm (p. 247) 17. Noise: Traffic (p. 17. Noise suppressors 17. Condition 21.6, 3-247) on transfer trucks (p. 21 .7 3-248) 18. Odor (p. 3-132) 18. Small working 18. Condition 20.2, face; quickly cover 20.3, 20.4 sludge; enclose r leachate collection system; gas collection & flare system. (p. 3- 132) 19. Cancellation of 19. Provide for quality 19. Condition 23.2 Williamson Act grazing for about contract (p. 3-29) same number of cattle. Require range management plan. (p. 3-29) 4 CONTRA COSTA COUNTY COMMUNITY DEVELOPMENT DEPARTMENT DATE: October 4, 1994 TO: Victor J. Westman, County Counsel Attn: Silvano Marchesi, Assistant County Counsel FROM: Harvey E. Bragdon, Director of Community Development By: Charles A. Zahn, Assistant Director C::�. SUBJECT: PROPOSED CHANGES TO RESOURCE RECOVERY PROGRAM CONDITIONS IN AMENDMENT 1 TO LAND USE PERMIT 2020-89 FOR THE KELLER CANYON LANDFILL The following comments on the financial implications of Amendment 1's proposed changes to the resource recovery provisions of Land Use Permit 2020-89 are provided in accordance with .our discussion yesterday. The Crosby, Haefy, Roach, and May letter of September 26, 1994 (for Valley Waste Management) claims that: "Rescinding Conditions 31.9 and 35.4 will significantly Reduce Keller Canyon's Obligation to Fund the County Resource Recovery Management Program." The letter goes on to imply that Condition 31.9 obligates the Keller Canyon Landfill to suppoart the entire County Resource Recovery Program. Both Conditions pre-date the preparation and adoption of the 1993 County Integrated Waste Management Plan. Their terms could neither predict the requirements of the plan nor foresee how it would be financed. Virtually the same condition was put in the 1987 Land Use Permit for the Acme Transfer Station. There was an expectation that the costs of the program --capped at $100,000 annually - - would be spread among other facilities as they came on line. It is noted the waste facilities approved by the County all include Land Use Permit conditions i that obligate the permittees to cooperate with the County to provide resource recovery services to their respective service areas. AB 939, mandating waste reduction goals and calling for a new plan for reaching the goals went into effect in January, 1990. A central idea of AB 939 is that individual cities and counties (for unincorporated areas) should be primarily responsible for meeting the goals. It wasn't until mid 1993 that the new Integrated Waste Management Plan was completed. Amendment 1 would help provide for the maintenance and implementation of the Integrated Waste Management Plan by adding Condition 31.10, specifically authorizing the Board of Supervisors to impose a tonnage surcharge for AB 939 program purposes. The County is not limited to moneys from Condition 3 1.10 to finance resource recovery. If, for example, the geographic base for the provision of the County's resource recovery program does not correspond to the service area of the landfill, the County can use collection franchise area administrative fees to obtain funding. The County, then, can anticipate that the changes to resource recovery program funding in Amendment 1 will not be deleterious to the program. CAZ:rw RCZ3:KCLAmend.rrp - Page 2 - .. ...:. 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 Countyunsel 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. SUAMARY 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 352, 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. POSSIBILANGUAGE FOR AMENDED CONDITION. Assuming our understanding of the Board majoritys 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 352 upon the above proposed new condition becoming and remaining effective. In other words,the following could also be adopted: "Conditions Nos. 35.1 and 352 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 352 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:\1up1018.94 H- 5 AMENDMENT DOCUMENT AMENDMENT 1 TO LAND USE PERMIT 2020-89 KELLER CANYON LANDFILL COMPANY CONTRA COSTA COUNTY BOARD OF SUPERVISORS SEPTEMBER 27, 1994 AMENDMENT 1 REVISIONS The following is a complete description of Land Use Permit 2020-89 Conditions of Approval modifications, the recommended actions for individual conditions are identified as RESCIND (the entire condition), ADD, or REVISE; wording to be deleted is identified by cross-out type while wording to be added is identified by shading. Condition 5.3 RESCIND the condition: .3 Sub Geunty SeFY'-ee AFea. if theFe is FneFe than ene Glass WeO Glass !11 land has established a sub Geunt ea fnr Condition 11.5 RESCIND the condition (see Condition 16.4): es Development GeeFdinateF. The Landfill eWHeF she!! pFe-vide a fund te suppe.n. GeeFdineteF Shall be a staff Fnembw eF a eensultent. The ewneF she!! make r bjeet to th of th County's Dir .r�lcrl�--�--�'I3-oJci�-re—t`i��F�b4�—vT—rrT�—cvur rT-�—a r i Condition 11.6 REVISE the condition as indicated: pma+. :,ypp .6 6emplienee and Mitigation Monitoring Program. The Landfill ua3dJ rg operator shall pe—a fund _te—uppeFt ,' County staff 9'pt : w monitorin e# CfA. ' ' compliance withest Conditions of Approval and mitigation monitoring progra , . e 4 1 1g i:. i'�Q`? (0 L'IS ' :# £ M1'•o'�y.::.:`••:%S.`.Yh :::`•:y.{s ef:��{.,;u:`:}::y`:pp%:`c:i.�,•.,?`;`,"�:.:;"`;f;;;`A•,`S:o�•,� :q` - .i�u.)cu�ofa4�S•,C� '�aSowva,.w.oa�.. 'S`hzzasu r. I� SpE'>�ttf 3'tYod ? :: ;. j'ondition 11.8 RESCIND the condition: Condition 12.1 RESCIND the condition: landfill epefeteF et the landfill. The Fates esteblished by the Beefd will be net �dfnuffi Fates but else fninimum Fates. ADD the condition: ~., +. \w .k.:`.•ht`rk.a4A;.,>?t_r{?4.;%•s.s+.s::i:{.c:.,;S..Q.,{v,{::•:v,.:„?\:a,:°,,:`r :U ? tic i'vtx p jPeA . tu a YJ{'K{?�.:�?{.y:twt•ktsrry,.:4.xr:: .; r.>.:� c: t :, r #; f> Ali : : :+ a �a %{.:{,'.;ic? 5,. �-•. ,�v��•."(.n.:.•n:C�"C. :•: Elm '•i5'?:.:Cx.y:y:c.:-s.{S„w,;{,sy#:•.:•-.c{{ch:•.•:.:;.:: . r . . I�Vii �' �ri.J3' f'fl? t 'ilr UBttd 4. J...:4..... - :°.::::v :C•?o f isb::.v;3.;.::{if{ri-i:�}::::{{x.?.:'�,e..du'r h�r,'.r:,r•,:'n•�.M"3?4.? vvv:h._ii:}:�n:�i'ti{ir<i}4:{i:::':?v:,•x::.::vm::::: 11` the Board decides> ot::>tc >a Irovd ..v. h: 12:.v.:.:.:ti??ii?i}}}}:-ii:vy:::li'.::ti{,:::ii?}::.t.+'�: rn:1%.'•.]!uti•N:.v.vv�r• ,.n.. •::1u::.:i♦:..1ii:'iii:::::::::. ::'':i::::::".:.i:i:::;v;!;:F":?.:�:.: is:v. _.� .:.:.+...: .L••.i'•.:.}.W:::::-}:+':;:i'3:�::::,1:x::::;4 ..: .....:::.... rlcr�Efo :<: ; ,2 througS Shit rr�? lrt�v , Condition 16.4 REVISE the condition as indicated: .4 Geotechnical Inspector. The Landfill operator shall , . . ....... ..... ... ...... . ... . .. .. ef fund the costsof an independent geotechnical Page 2 - r � l consultant, who shall be selected by and be responsible to the County. The eensultent `ttsc shall inspect FegulaN the installation and condition of rh. liners, leachate control facilities and other installations, identified by the County, as they are installed }....:.:. ..... ...° -:�'aye' �. This provision shall remain in forceeverthe life of the landfill. Condition 31.9 RESCIND the condition: pFegFeFn te be suppened by the SUFeh8Fge shall not emeeed $100,000 at 198:7 eenditien, the Geunty Mey pFe Fate the east ef the. pFe@FeFA effieHO them ADD the condition: } fl X�yj ate-`>..•:••2!^.xtr>V n. �!!2 --••}} :2>.,i.` ,.:'' ry:>:..:.�`�• .:•} .:i: }..1: 'xi :..7....::::::::::::::::::::._::•:::::: ::•;- :...:R:::..:._::..,.plc. ... ..-,..-.. .:.►:.x. :.: :.�,r•.�.:._:.� .::::.i .,.,ted,. ..-... ...:::::.. '•}:i��}.:: .:i:ti�::i.:}r'::.:i'i:.:i::i:iii::i:.:i::ii:;i'.:::_}:.:ii.i:::::::�:i�•:i:.i}i}:i'}}:'�.:%:�'--r::.-}:.:i'::`::::i4}}�� .A}/{�v}:r _�• Condition 31.10 RENUMBER the Condition 31.10 to Condition 31.11: Fund Recovery. The.Landfill owner may recover funds provided to the County in advance of the opening of the Landfill through subsequent rate adjustments or surcharges approved by the county. The County may prorate the cost of the program among other waste disposal facilities it approves which are subject to similar conditions. ADD the condition: '10 <.....AB : :3.9::lularia errent Pro ram <:»'f he>r }erato:t.:sha1.1 .:tflnn:a e::f :<< : :::::::::::::::: .::.::_.::::.:::::.g:::::.e:e..::or other means of ending, set by tt�e Board of uperync;ally Contr3bu#e to the support of ars adegrate program for the County to comply vvrth state mandated AB 939 rrianagerner� requ�remnts TheAB 939 program, ... shall bel1at approved by the Board of Supervisors - Page 3 - Condition 35.1 RESCIND the condition: Condition 35.2 RESCIND the condition: .2 Open Speee end AffieultuFai PFesefyatlen Fee. The Landfill epefateF She!! pay impeets ef the he, pen speee, existing E. ed feeFeatiene 18 be 8 P866 !hFeugh business ees! feF the PUFpeser, Of Fate setting. The iee Condition 35.4 RESCIND the condition as indicated: , 000 ennually, beginning Afly 1, 1990. The deyelepeF shell deposit the Wited epeount established by the Geunty. The extent ef the neeptien shall be a pass thfeugh busifiess eest fef the puFpese ef Fate setting. RCZ3:KCL-COA2.AMD 9-23-94 - Page 4 - Resolution 28-1994 RESOLUTION OF THE PLANNING COMMISSION OF THE COUNTY OF CONTRA COSTA, STATS OF .CALIFORNIA, : AFFIRMING THAT THE COMMISSION I8 SENDING TO THE CONTRA COSTA BOARD OF SUPERVISORS, APPROVAL OF AtlENDMENT 1 TO THE XELLER CANYON LANDFILL LAND USE PERMIT (LUP 2020-89) . WHEREAS, on February 13, 1990, the County Board of Supervisors certified that the Final Environmental Impact Report for the Keller Canyon Landfill (Landfill) ,. is adequate and complies with the California Environmental Quality Act; and WHEREAS, on October 10 and 17, 1989., the Board adopted General Plan Amendment 3-89-CO (which carried forth to the 1991 General Plan) which was affirmed and ratified by the electorate,,s approval of Measure C on June 5, 2990; and WHEREAS, on July 24, 1990, the County Board of Supervisors adopted Rezoning Ordinance MS 15-89, approved Minor Subdivision MS 15-89, tentatively cancelled Williamson Act Land Conservation Contract 6-71 and a portion of Land Conservation Contract 8-69, approved Land Use Permit 2020-89, including Conditions of Approval, and adopted findings for the Landfill; and WHEREAS, the approved Landfill project included conditions which included requirements related to County fees, rate review and area-of-origin of wastes; and WHEREAS, on August 25, 1994, the Keller Canyon Landfill Company requested an amendment to LUP 2020-89 to delete Section 12 (Rate Approval) , delete or reconsider Conditions 11.5, 11.6, 31.9, 35.1, 35.2 and 35.4 (County Fees) and any other related provisions concerning payment of County fees, and reconsider Conditions 5.1, . - 5.2 and 5.3 (Area-of-Origin) ; and WHEREAS, the public hearing was duly noticed -both by publication (August 31, 1994) and mailing to relevant parties (August 30, 1994) ; and WHEREAS, on September 1, 1994, the County Community Development Department transmitted a Staff Report, the Amendment 1 - to LUP 2020-89 Document, and an Initial Study to the Planning Commissioners for review; and WHEREAS, on September 13 , 1994, the County Planning Commission held a public hearing to receive testimony on Amendment 1 to LUP 2020-89, and heard testimony from Scott Gordon, Michael Woods, Ralph deVries, Glen Williams, Lance Dow and Frank Aiello, and closed the public hearing; and - Page 1 - Resolution 28-1994 WHEREAS, on September 13, 1994, the County Planning Commission expressed concern with some of the issues related to the Amendment 1 to .LUP 2020-89 and continued the item to September 20, 1994 so that staff could respond to the issues of concern (changing the Area-of-Origin requirements might require additional environmental review, that the Transportation & Open Space/Agriculture Mitigation Fees are mitigation measures which mitigate Potentially significant Impacts in the Keller Canyon Landfill EIR, Reciprocal Capacity Agreement provision should be maintained),; and WHEREAS, on September 20, 1994, the County Planning Commission heard the supplemental staff report which responded to the issues of concern raised at the September 13, 1994 hearing, one significant change was that staff withdrew its previous recommendations on Conditions 5.1 and 5.2 and recommended that the existing language of Conditions 5.1 and 5.2 be retained; and NOW, THEREFORE, BE IT RESOLVED that the County Planning Commission, on the basis of the record before it, takes the following actions: 1. Recommends that the Board of Supervisors approve Amendment 1 to Land Use Permit 2020-89 as outlined in the Amendment Document dated September 13, .1994, with the exception that the existing language of Conditions 5.1 and 5.2 in LUP 2020-89 (July 24, 1990) be retained. 2. Authorize the Director of Community Development, as Secretary of the County Planning Commission, to prepare a resolution setting forth the Commission's findings on this item, and to transmit the resolution to the Board of Supervisors. The instruction by the County Planning Commission to prepare this resolution and recommend Approval of Amendment 1 to =Land Use Permit 2020-89, was given at a regular meeting on Tuesday, September 20, 1994, by the following vote: AYES: Woo, Wong, Straus, Clark NOES: None ABSENT: Accornero, Gaddis, Terrell ABSTAIN: None - Page 2 - Resolution 28-1994 I, Harvey E. Bragdon, Secretary of the County Planning commission of the County of Contra, Costa, State of California, hereby certify that the foregoing was duly called and held in accordance with the law on Tuesday, September 20, 1994. ATTEST; Secretary of the County Planning Commission, County of Contra Costa, State of California Page 3 -- r Y9� CONTRA COSTA COUNTY COMMUNITY DEVELOPMENT DEPARTMENT DATE: September 23, 1994 TO: Board of Supervisors FROM: Harvey E. Bragdon, Director of Community •Development By: Charles A. Zahn, Assistant Director SUBJECT: DOCUMENTS FOR SEPTEMBER 27, 1994, BOARD OF SUPERVISORS' HEARING ON AMENDMENT 1 TO LAND USE PERMIT 2020-89, KELLER CANYON LANDFILL As indicated in our memorandum of September 22, 1994, (which transmitted copies of Amendment 1 documents which were before the County Planning Commission) the following additional documents pertaining to the Board of Supervisors' hearing scheduled for 10:00 a.m., on September 27, 1994, are being transmitted under this cover: 1. (Proposed) Board Order approving Amendment 1, as recommended by the County Planning Commission and staff. 2. (Proposed) Amendment Document, indicating the specific changes to the July 24, 1990, Conditions of Approval that would result from the approval of the Plan ning.Commission and staff recommendations. Explanations are provided in the previously transmitted Staff Report of September 13, 1994, to the County Planning Commission. 3. Resolution of the County Planning Commission recommending that the Board approve Amendment 1 with the Commission's September 20, 1994, revisions. CAZ-rw RM kcl-amdI.mem n-1 T0: BOARD OF SUPERVISORS l ra FROM: Harvey E. Bragdon WJIa Director of Community Development it DATE: September 27, 1994 co SUBJECT: AMENDMENT 1 TO LAND USE PERMIT 2020-89 FOR THE KELLER CANYON LANDFILL SPECIFIC REQUEST(S) OR RECOMMENDATIONS) & BACKGROUND AND JUSTIFICATION RECOMMENDATION Approve Amendment 1 to Land Use Permit. 2020-89 as set forth In the September 27, 1994, Amendment Document (as recommended by the County Planning Commission and the Community Development Department). FISCAL IMPACT Provision In Amendment 1 would aid the Board of Supervisors in adjusting individual fees the County charges on wastes delivered to the Keller Canyon Landfill to fit within the caps (on the overall fees) approved by the Board on September 13, 1994. The Amendment would eliminate specific fees now set in the Land Use Permit for resource recovery programs and for general transportation and open space programs to,enable the Board to set the fees in franchise agreements and other instruments. As a consequence of the Amendment, the proportion of the overall fees allocated to individual programs may drop. BACKGROUND AND REASONS FOR RECOMMENDATION The Board of Supervisors, on June 28, 1994, directed staff to prepare a proposal for amending Land Use Permit 2020-89 to enable the Board to revise and reduce these County fees paid by the Keller Canyon Landfill which were established by the Land Use Permit, and to eliminate the obligation that the County set the Landfill's fees. The Keller Canyon Landfill Company had requested that these fees be reduced. The Board's direction reflected legal and Institutional changes to solid waste regulation which occurred after the Landfill's Land Use Permit was approved on July 24, 1990. CONTINUED ON ATTACHMENT: `YES SIGNATURE: RECOMMENDATION OF COUNTY ADMINISTRATOR ' RECOMMENDATION OF BOARD COMMITTEE APPROVE OTHER SIGNATURE(S): ACTION OF BOARD ON APPROVED-AS RECOMMENDED OTHER VOTE OF SUPERVISORS UNANIMOUS (ABSENT I HEREBY CERTIFY THAT THIS IS A TRUE AND AYES: NOES,— CORRECT COPY OF AN ACTION TAKEN AND ABSENT: ABSTAIN: ENTERED ON THE MINUTES OF THE BOARD OF SUPERVISORS ON THE DATE SHOWN. Contact: Charles A. Zahn (510) 646-2096 ATTESTED cc: Community Development Department (CDD) PHIL BATCHELOR, CLERK OF THE BOARD OF SUPERVISORS AND COUNTY ADMINISTRATOR BY: , DEPUTY CAZ:rw RCZ31kckamd t.pod Board Order Amendment 1 to LUP 2020.89 for KCL September 27; 1994 - page 2 - BACKGROUND AND REASONS FOR RECOMMENDATION (Cont'd) The regulatory situation in effect In 1990 evolved from the state Solid Waste Management and Recovery Act of 1972 (S.B. 5). That legislation required each California county to prepare a County Solid Waste Management Plan on a countywide basis. In practical terms, it meant that waste facilities virtually had to be provided within each county and through a city-county consensus. Opportunities for importing or exporting waste across county lines were very limited, as was the prospect for competition with landfills located in other counties or states. Local governments were primarily concerned with preserving the capacities of local landfills for local use. Local governments proposing to allow the importation of waste, even on a temporary basis, faced Intense local opposition. Accordingly, when the Keller Canyon Landfill was approved, its Land Use Permit Conditions of Approval required rate controls and provided for a number of fees to be paid for various County programs. Subsequent to the opening of the Landfill in 1992, a series of U.S. Supreme Court decisions had the effect of overturning state and local "flow control" regulations as being inimical to interstate commerce. These decisions combined to create immediate competitive situations in which companies controiling landfills are overtly competing for local waste streams and in which parties controlling waste streams are seeking the lowest prices or other economic advantages. The Keller Canyon Landfill believed that it is now placed at a disadvantage for the dual reasons of being a state-of-the-art landfill meeting the latest mandated (but expensive) federal and state construction standards and requiring the transfer of processed waste, and having to pay a package of high local fees. Consequently, the Board of Supervisors entered into discussions for lowering disposal costs, including the lowering of County fees. The Board of Supervisors' discretion in changing fees depends on the means by which they were established: Board Order (e.g., fees specifically authorized by the state), ordinance, Franchise Agreement, or Land Use Permit. Those established by Land Use Permit require formally amending the Land Use Permit unless discretion is provided for in the terms of the conditions. The Keller Canyon Landfill Company applied for an amendment to Land Use Permit 2020-89. A set .of changes to the original Land Use Permit Conditions of Approval pertaining to the fees and related matters was prepared for consideration"by the County Planning Commission. ,It was designated Amendment 1 Land Use Permit 2020.89, Amendment Document dated September 13, 1994. It was further described in a Staff Report prepared for the September 13, 1994, Planning Commission meeting. it was the subject of a duly noticed Planning Commission public hearing on September 13, 1994. The Commission closed the hearing to public testimony but continued the matter for decision to September 20, 1994. Staff revised its recommendations and advised the Commission to eliminate changes to Conditions 5.1 and 5.2, which were being interpreted as providing new authorizations for the Keller Canyon Landfill to import out-of-County waste. The Commission acted to recommend that the Board approve the revised amendment. It is before the Board as the Amendment Document dated September 27, 1994. Copies of the documents before the Planning Commission were transmitted toZ the Board via a memorandum from the Community Development Department dated September 29;' 1994. Copies of the Planning Commission's resolution and the revised Amendment Document (September 27, 1994) have been transmitted to the Board through a memorandum dated September 23, 1994. RCZ316«ndt.bod t 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 26, 1994 651 Pine St. Martinez, CA 94553 RECEIVED Tom Powers, Chair �U 2 7 iQ�,i Honorable Chair Powers and Members of the Board: CLERK BOARD OF SUPERVISORS CONTRA COSTA CO. On Tuesday, the City of Pittsburg submitted to the Board a letter concerning the issue of mitigation fees generated at the Keller Canyon Landfill and a representative of the City of Pittsburg also made additional comments in public testimony before the Board during the public hearing on these funds. Citizens United would like to make clear to the Board that several items in the letter were erroneous. The letter referred to a proposal made by Citizens United on behalf of the public and in the interest of the citizens residing in the host communities. Citizens United proposal contrary to statements made in the City of Pittsburg's letter did not specify any amounts, or level of fees and did not do so as this is the perogative of the Board after due consideration. Nor did Citizens United specify any apportionment or allocations of the Host Community mitigation funds or any other funds the Board may wish to impose upon the users of the Acme and Keller facilities. The City of Pittsburg has stated for the record that a claim has been submitted to the County in reference to County Ordinance 89-81. Also put on the public record is the'fact that negotiations concerning the claim have taken place and will continue to take place on this claim. As the claim does not appear to have been rejected by the County nor has a lawsuit been filed by the City of Pittsburg, and whereas the persons in negotiation are elected and publicly paid officials these discussions may be subject to the Brown Act and its open meeting and notification requirements. In an effort to aid those discussions however, Citizens United suggest that the Board seperate any discussions with the City of Pittsburg as to its claim as a seperate issue from the host community mitigation fees, and that.any resolution of the claim be considered under the Franchise Agreement as a Mandated Fee to be charged at the gate of the Keller Canyon Landfill. Mandated fees according to Mr. Thomas Bruen would not be included in the 25% cap and would not affect the profits of the Keller Canyon Landfill.c As the claim is against the County the Mandated fee would provide a mechanism for paying any claim without affecting the Host Community mitigation fees. Fees that the Board has on numerous occassions unanimously endorsed and which are borne out in County policy for years. In conclusion, the City of Pittsburg requested in it's letter that any discussions regarding the Host Community Mitigation fees be delayed until results of the property evaluation study have taken place. Citizens United respectfully brings to the attention of the Board that that issue has already been resolved by the Board, and that the Board recently unanimously voted to properly address that issue with specific language in the Franchise Agreement requiring BFI to fund the property losses per LUP Condition 35.3 by direct payment, the cost of which BFI may choose to absorb or pass on in their proprietary rates. In closing Citizens United respectfully suggests that the Board in its attempts to motivate BFI to reopen the discussion of the Franchise Agreements for Keller and Acme - use as a kind of icebreaker - that the Board should resolve to immediately redirect the waste under the Board's control to other lower cost waste disposal facilities. Sincerely, Lance J. Dow, ViceChair 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 26, 1994 651 Pine St. Martinez, CA 94553 H t C E A V E D Tom Powers, Chair k 7 Honorable Chair Powers and Members of the Board: CLERK BOARD OF SUPERVISORS CONTRA COSTA CO. On Tuesday, the City of Pittsburg submitted to the Board a letter concerning the issue. of mitigation fees generated at the Keller Canyon Landfill and a representative of the City of Pittsburg also made additional comments in public testimony before the Board during the public hearing on these funds. Citizens United would like to make clear to the Board that several items in the letter were erroneous. The letter referred to a proposal made by Citizens United on behalf of the public and in the interest of the citizens residing in the host communities. Citizens United proposal contrary to statements made in the City of Pittsburg's letter did not specify any amounts, or level of fees and did not do so as this is the perogative of the Board after due consideration. Nor did Citizens United specify any apportionment or allocations of the Host Community mitigation funds or any other funds the Board may wish to impose upon the users of the Acme and Keller facilities. The City of Pittsburg has stated for the record that a claim has been submitted to the County in reference to County Ordinance 89-81. Also put on the public record is the fact that negotiations concerning the claim have taken place and will continue to take place on this claim. As the claim does not appear to have been rejected by the County nor has a lawsuit been filed by the City of Pittsburg, and whereas the persons in negotiation are elected and publicly paid officials these discussions may be subject to the Brown Act and its open meeting and notification requirements. In an effort to aid those discussions however, Citizens United suggest that the Board seperate any discussions with the City of Pittsburg as to its claim as a seperate issue from the host community mitigation fees, and that any resolution of the claim be considered under the Franchise Agreement as a Mandated Fee to be charged at the gate of the Keller Canyon Landfill. Mandated fees according to Mr. Thomas Bruen would not be included in the 25% cap and would not affect the profits of the Keller Canyon Landfill. LQ—, rl C -/)6 As the claim is against the County the Mandated fee would provide a mechanism for paying any claim without affecting the Host Community mitigation fees. Fees that the Board has on numerous occassions unanimously endorsed and which are borne out in County policy for years. In conclusion, the City of Pittsburg requested in it's letter that any discussions regarding the Host Community Mitigation fees be delayed until results of the property evaluation study have taken place. Citizens United respectfully brings to the attention of the Board that that issue has already been resolved by the Board, and that the Board recently unanimously voted to properly address that issue with specific language in the Franchise Agreement requiring BFI to fund the property losses per LUP Condition 35.3 by direct payment, the cost of which BFI may choose to absorb or pass on in their proprietary rates. In closing Citizens United respectfully suggests that the Board in its attempts to motivate BFI to reopen the discussion of the Franchise Agreements for Keller and Acme - use as a kind of icebreaker - that the Board should resolve to immediately redirect the waste under the Board's control to other lower cost waste disposal facilities. Sincerely, c/ Lance J. Dow, ViceChair a C Transcript of item H. 2 and H. 3 from November 1, 1994 Supervisor Powers : H. 2 and . 3 . I guess before we get into that we probably would like to have some kind of response from BFI as to our actions yesterday and whether those are acceptable. Tom Bruen: Mr. Chairman, members of the Board, we have reviewed the proposed amendment to the permanent transfer station franchise agreement and although, as we indicated yesterday, we would strongly prefer to have a twenty-four month period on the initial surcharge, in the spirit of getting .this issue behind us and getting it resolved today, we will agree to the form of the amendment that' s been prepared by County Counsel . Supervisor Powers : Alright, were there any staff reports? I notice that we did get some new paperwork here, one dated October 31st from Val although he' s not here, maybe Louise did you want to go over that? You don' t have one? Louise Aiello: I don' t have that . did he tell me about . Supervisor: It' s a two page. . Victor Westman: You mean the one about options for waste franchise . Louise Aiello: Oh, that' s it . Yes, I will go over that but I think you want to go over the other stuff first . Victor Westman: I don' t know the manner in which you wish to proceed. We did put before you and you did bring up first the amendments proposed amendments to the franchise for the transfer station. We did provide them as you and Mr. Bruen have noted. They are in accord with them. If they are acceptable to the Board, we would suggest that you simply indicate that they are consistent with your desires in these areas and that the franchise is approved and the Chairperson is authorized to sign it . Supervisor Smith: So, I suppose I' ll make that motion a. . Supervisor Powers : With respect to the Acme Transfer . . . Supervisor Smith: The transfer station. Supervisor Powers : Motion and a second. . . Supervisor Smith: Just confirms what we did yesterday and recognizes that BFI agrees to the language as we all agree to it . Supervisor Powers : Okay, all in favor of that motion, signify by saying aye . Those, opposed. Passes unanimously. And then now 1 the I guess we need to talk about well let' s talk about the Keller Canyon Franchise and the land use permit issues . That kind of relates to the Acme situation, so maybe we can move on that one first . Are there any staff reports on that . Victor Westman: we put before you today, I don' t know which you want to take first, the franchise. We put before you today a memorandum together with copies of the and I think it has on it H. 2, and entitled first amended Keller Canyon Landfill Franchise . With that memorandum there' s a copy of and again like yesterday of the September 20th overlay and strike out draft that shows the changes that were made between the September 13th draft and the excuse me the October 10th draft when it was before you. The memo for the most part the first few paragraphs is repetitive of yesterday' s memo since we' re talking about the same provisions and I think the Board should make a decision whether you wish to amend the surcharge and the initial surcharge provision as discussed in there in the same manner which you did the provisions yesterday. The new item before you is on page 3 of the memorandum, section 3 . The provision that discusses the provision about the 10 percent surcharge on other waste that comes to the landfill site but that has not gone through the transfer station as I think we set out there that was not specifically before the Board previously on September 13th, that at least based on the 25 percent surcharge and the fee reductions made for other wastes that go through the transfer station that in some instances more revenue would be generated to the County with the ten percent fee charge since the fees otherwise would be completely paid that would be applicable. The Community Development Department has worked out a chart or charts to illustrate that and provide you with some additional information about the fees and that is the October 31st memorandum before you chart of possible surcharge structure. If you have some questions about the chart, I would suggest you direct them to Louise who prepared it and can answer them in a more thorough manner than I can. Yes . Supervisor Bishop: The 25 percent surcharge, out of that 25 percent surcharge as contemplated by the Board a couple of weeks ago in one of our former motions and resolutions we've talked about an Acme mitigation fee . We talked about a 5 percent closure . Now, an Acme mitigation fee the more appropriate place to collect that or really it would only make sense to collect that at Acme so if we have direct haul to BFI to Keller, we would not be the mitigations would be going towards those communities that Keller impacts while if it, I'm having problems conceptually with this, a mitigation fee should be mitigating impacts on surrounding neighborhoods . Is there going to be and maybe I'm asking you and maybe I'm asking Jeff and maybe I'm just asking for an answer to that . Are we going to make the fee come out of the surcharge that comes from the facility that is impacting the neighborhoods . Okay, that' s one question. The other question is 2 the closure we' re going to look to Acme to reimburse us or to provide for closure or we' re going to be providing for closure but that 5 percent relates to Acme so is that 5 percent only going to be assessed at out of the 25 percent surcharge at Acme Transfer Station? Those are questions in my mind that I am have there' s some confusion in my mind about that and I think because there' s a purpose for the fee and somehow the fee should be related to a particular facility. That closure relates to Acme. That impact mitigation should relate to impacts on Keller therefore the Keller surcharge would seem to be appropriate . Are we going to take that up here. Where does that fit in? Supervisor Powers : Maybe we'd go over this report October 31st . That might . . . Victor Westman: Well, can I perhaps provide you with some background. In the franchise that you just approved and was before you yesterday, it provides for a 25 percent surcharge on waste going through the transfer station. Of that 25 percent, you will today or some subsequent week determine what proportion of that 25 percent will be allocated to host mitigation for the greater area surrounding the Acme Transfer Station. You we also provide in the franchise agreement that you can designate or you may propose to designate up to 5 percent of that 25 percent surcharge collected to go towards the County' s costs and other related costs of addressing the Acme cleanup that . . . Supervisor Bishop: Right . But my question is about Keller, now we' re today we' re talking about the Keller Franchise Agreement . Victor Westman: Well, on Keller as I remember the franchise, the host mitigation funds would come out of the 25 percent . That will be collected for waste that goes to Keller. Now, mechanically, the fees may actually if it goes through the transfer station all the fees may be collected there for both sites but there will be appropriate accounting made to al — for allocation. And of the waste that goes to the Keller site there will be the 25 percent collected and out of that 25 percent the host mitigation fees will be paid for as you will determine by some subsequent action. Supervisor Bishop: But my question is this, we've separated out those that are going through the transfer station but on the other hand we may have some that will go through another transfer station and ultimately end up at Keller. We' ll be charging you know under either scenario my feeling is we intended the 25 percent but of that 25 percent that is being collected at Keller and it will never have gone through the transfer station, one are we contemplating, is someone contemplating. . . Victor Westman: No, that' s not . . 3 Louise Aiello: Yes it is. Mr. Chairman, if I may, depending on which formula and option you select to go into the franchise agreement, the 25 percent, and a few weeks ago there was a chart that broke out the dollar amounts . With my recollection for that particular chart was $3 for the mitigations associated with Keller, $2 for mitigations associated with Acme . If you do a 25 percent and the waste is going directly to Keller, either a special waste or direct haul, that is handled separately in their accounting and the 25 percent were you to go with that option would be levied against that . Your Board has not yet finalized that allocation. An approach would be what you're suggesting which is on what goes directly there that the 25 percent is broken out for those mitigations at that facility. You haven' t done that . That is probably a later step once you've adopted the overall formula. Supervisor Bishop: Which one you choose, depending on which one you choose but also the 5 percent that goes toward closure cost would not be collected at Keller either. Is that corr. . I mean if you collect 25 percent . . Louise Aiello: You haven' t gotten there either. That would be the next spinoff of the once you've decided the option you want and it was my understanding that Val had agreed to come back. . . Victor Westman: I think it ought to be pointed out that whatever is collected at Keller in the sense however you allocate the 25 percent surcharge for the most part is at your discretion whether you allocate it if you want to even for Acme cleanup and so on but we have never we have never represented that there is some sort of nexus between Keller' s operation and Keller' s cleanup. Okay. , Supervisor Bishop: Acme cleanup. Victor Westman: Acme, I'm sorry. Supervisor Smith: That was the whole point is that the previous franchise agreement signed in 1990 made it pretty clear that the surcharge amount could be money collected from the surcharge could be used for any waste program. Which would clearly include either paying for cleanup at Acme or paying for litigation related to cleanup at Acme . And so we didn' t change that and so, the 25 percent of the proprietary rate, the way this is written, 25 percent of the proprietary rate at Keller will be charged and also 25 percent of the proprietary rate at Acme and it' s up to the owner/operator to decide how to apportion his or her their proprietary rate . The percentage of the surcharge stays the same . And so, what we have before us, what was identified in the sub-committee meetings as an issue of confusion is the fact that previous Keller franchise envisioned only two types of waste going to Keller. One coming directly from the Acme Transfer 4 Station and one coming as special waste. And when we made the decision or I guess actually the Supreme Court made the decision for us, but that wasn' t necessarily a restriction, that introduces the third type of waste that could be going to Keller which could be from a different transfer station other than Acme . What BFI said during the sub-committee meeting was that they presumed this language on page 22 under other waste was operative in that event so you would have a situation where waste came from another transfer station charge the ten percent surcharge plus all of the individual fees and waste coming from Acme would only get the 25 percent surcharge plus the Eastin fee and what I ' d like to suggest to the Board is that we be clear that waste coming from any transfer station is charged the same rate which is the fee I mean the surcharge of 25 percent plus the Eastin fee realizing that the LEA and the 939 have already been collected at the transfer station and then we have to decide what we' re going to suggest with regard to the special waste because special waste doesn' t fit nicely into the package . Supervisor Powers : Okay, why don' t you. We've basically gone over this report then and why don' t you make a motion or somebody make a motion. Supervisor Smith: Louise is going to make a motion. I' ll make a motion. I think that consistent with the Acme or the transfer station franchise agreement on page 21 we should change the term during which we will not change the surcharge to 18 months . We should also change at the bottom of that page, again this is consistent with what we said with regard to the transfer station under 6 .4 pa down at the bottom funding of programs from the surcharge again insert the word current before County programs except for LEA and 939 programs so that it' s clear that those will come out of the surcharge and then again Vic has summarized again this language on his memo page 2, section 2, that new language which is the same language that was in the transfer station agreement should be added at the end of that paragraph. Supervisor Powers : The notwithstanding paragraph? Supervisor Smith: Right the notwithstanding any other provision paragraph. And then on page 23 , again I think we should after the word surcharge at the top there under Section 6 . 5 this having to do with the disposal contracts, we should again put in the word percentage just to be clear as we were with the transfer station agreement that the percentage doesn' t change but the actual amount of the surcharge might change and so I' ll make that as one motion and then realize that we need to go back and decide about the other waste issue. So, I' ll make that as a motion for the moment and we have to make another motion later. Supervisor Powers : I' ll second it . We got a second. 5 Supervisor Bishop: Okay, I would like to comment on that . Philosophically, I've always had a problem with the mitigation fees . I believe when both the transfer station and the landfill were approved, there were conditions for approval that were that addressed mitigation of negative impacts . Those were done at the time that the approvals were given. I believe the 2, 2 and 2 are fees that one if someone had challenged them on the basis of no nexus between the fee and the impact that you were trying to mitigate, I believe one might have been successful . I think it' s unfortunate that we didn' t do that . I think again, historically, those monies have been used in the districts on programs and things that though valuable programs are not truly mitigating the impacts of the landfill . I think when we introduced or this Board introduced a few weeks ago Acme as having a mitigation fee, it really in the minds of the public is putting emphasis on the fact that these are funds that certain districts use at their discretion that are used by individual Supervisors to fund programs in their districts and when I look at Acme, to come up in 1994 with a mitigation fee for Acme, and have that levied actually at Keller is absolutely outrageous. And I think to put a five percent of twenty-five percent on closure at Keller for closure at Acme does not make any sense and you know I have watched tapes of these meetings and I know that I am getting as tired of saying these things as my fellow Board members are of hearing them because they' re falling on deaf ears and it' s interesting in watching the transcripts because I say these things and I think they have a good deal of sense to them and it' s almost as if I don' t say them but what we are talking about are the fact that we now have $12 . 24 or $12 . 04 and I don' t know why the difference here in fees in this County that at least $6 of them are totally inappropriate . There is no other County that has mitigation fees . They have a business tax or a business levy in Solano County. They have their assessments in Alameda County. Those are used for Countywide programs . I see some basis for some fees at a minimal amount but I think we' re up at $12 . 24 and I will not support any action by this Board to allocate fees, to keep those fees out up where they are right now at $12 . 24 but I think the logic is just not there. Keller is not impacting Acme . Why do we collect the fee at Keller when those wastes have not even gone through Acme . Supervisor Powers : Okay, we have one speaker. Frank, did you want to speak now? Frank Aiello: Or forever hold my peace? Supervisor Powers : Something like that . Frank Aiello: Good afternoon, some general comments . First of all I would like to I believe this Board deserves some credit and some gratitude from the community for taking the time and the effort to actually make sure that communities, citizens, 6 fiduciary responsibilities, all these things are taken care of before we enter into any type of an agreement with a private company. And I think that you are doing a very good job of that and I commend you for it and Citizens United commends you for that . With regards to I believe we' re taking H. 2 and H. 3 up, so I just wanted to make some general comments on this . With regards to H. 3 , a document produced by Mr. Marchesi, bottom of page 2 , I believe he just made the argument for why we continue to fight that amendment period. In addition, a specific response is the EIR for Keller Canyon Landfill has been certified. No further environmental review is permitted by CEQA. Then he goes down to say subsequent changes are proposed on the project which will not require important revision. Well, if you've got the possibility of 2800 tons a day of special waste coming to your landfill, I'm sorry but that' s an important revision and you've already allocated up to 40 percent of that landfill for special waste which is 1100 tons . That' s an important revision. And then to say that no evidence has been placed into the public record to indicate any new significant environmental impact . If you go back to the Planning Commission meetings and the documents put on file by Citizens United and I will believe you will find contrary to Mr. Marchesi' s remarks that there has been in fact significant information put on board to actually indicate that CEQA should be looked at . And furthermore, condition 11 . 1 which has been brought up continuously by Citizens United as a condition of the Land Use Permits should be advocated has never been done and I think it was part of this overall hearing which got started about a month and a half ago that staff respond to that condition. I have never heard staff respond to it in the last three weeks and in fact, there' s the very reason why they should be responding to it . I believe we could help. I believe the citizens out there can help to make this a better overall site . What' s the overall objectivity. You have to make it safe and you have to make it comply. That' s all we've ever asked. One final thing, we did send a letter out and i hope the Board did get it with remarks that was made by the City of Pittsburg last week. I just want to say we do not represent the City of Pittsburg, nor do we intend to. We do however represent homeowners that live adjacent to a landfill . And those homeowners I believe have come up with a way that would propose to how can I say this properly, put those impacted areas and give those monies out in a more appropriate manner than is currently being used. I hope that you take that seriously and Miss Bishop philosophically, I believe you said September 13th, I frankly wouldn' t want to live next to a landfill . Now, philosophically, I believe you said September 13th I frankly wouldn' t want to live next a landfill . Now I frankly wouldn' t want to live next to a landfill . . Supervisor Bishop: I didn' t say that Frank. You do need to go back and look at the transcript . 7 Frank Aiello: That' s a quote. It' s a quote . It' s a quote . Out of the transcript that was handed out last week. I frankly I wouldn' t want to live next to a landfill . People say landfill in Pittsburg. I quote . And if you look in the transcript it' s right there. So, based off of that philosophical quote, I believe host mitigation fees are in place, they are in tact . And this Board has made a concession. You haven' t given the CPI' s to the people that were contracted for. You don' t need to give any more . Thank you. Supervisor Powers : Thank you for your testimony. I don' t have any further cards before us and we do have a vote ready to go unless there' s further comments by members of the Board. Okay, all in favor of the motion, signify by saying aye, those opposed (Supervisor Bishop no) . Okay is there any further motions to make on this subject? Supervisor Smith: Well, the other issue that I think needs to be addressed in the franchise is this concept of other waste and how we' re going to charge the surcharge versus special waste and waste that' s gone through a transfer station. And I know what my opinion is . I don' t know what the rest of the Board is but I would suggest that on page 21, under 6 .4 a, and it' s in the franchise agreement . Supervisor Powers : You' re looking at the . . . Supervisor Smith: I'm looking at the . . . Supervisor Powers : Acme franchise right? Supervisor Smith: No, this is the Keller Franchise . First Amended Landfill Agreement Keller Landfill, September 20th, page 21, section 6 .4 , titled initial surcharge . Under section a, the way that that paragraph is written, it means that anything that doesn' t go through the Acme Transfer Station is other waste and so it seems to me we should say really Transfer Station not specifically Acme Transfer Station so it should say something like the surcharge on solid waste received at the landfill via a transfer station shall be set forth in section 6 .4 rather than specify Acme and then later on in the same section under section b other waste, we need to make the decision whether we want the surcharge and fee structure to be the same as it currently is for special waste or whether we want to change it . Supervisor Torlakson: What are the pros and cons on that? Supervisor Powers : This report . Supervisor Smith: That' s this report . If actually if you look at the numbers . The numbers are actually a little wrong so let me try to clarify. What we said under Keller, was actually that 8 only the Eastin fee was going to be paid at Keller so that' s $1 . 34 , the LEA and the 939 were going to be paid separately at Acme outside of the surcharge, so if you move those numbers over, the total at Keller if you presume that the proprietary rate at Keller is $25, this is all a presumption and that the proprietary rate at Acme is $14 and the fee at Keller would be $7 . 59 and the one at Acme would be. . . Supervisor Powers : $7 . 39 . Supervisor Smith: No, $7. 59 . The fee at Acme would be $4 . 65 . The total would be $12 . 24 . Supervisor Torlakson: where are you getting those? Supervisor Powers : He' s moving the . 15 and dollar over right? Supervisor Smith: Okay LEA and 939 we already said were going to be charged at Acme not Keller. This is for waste that goes through transfer stations . So, if you add $6 . 25 to $1 . 34 that' s $7 . 59 at Keller. Again, presuming that the proprietary rate at Keller is $25 and the proprietary rate at the transfer station is $14 so, then that would mean that at the transfer station the fee would be $3 . 50 plus 1 plus . 15 which is $4 . 65, so the total is $12 . 24 if waste goes first to Acme then to Keller. And with this franchise agreement, what I thought we were envisioning doing was allowing Keller to take waste from either Acme or some other transfer station or also, the special waste . Supervisor Powers : Right . Supervisor Smith: My presumption was that no matter what transfer station it came from, the fee structure would be the same at Keller. But that for the special waste, we might want to do something different . So, you have to change section 6 . 4 to make that clear so it doesn' t say in 6 .4a that the surcharge only applies to waste that goes via the Acme Landfill . It just has to say or via the Acme Transfer Station. It just has to say transfer station and then later on in section b you have to identify other waste and whatever the Board wants to do. Supervisor Powers : The other waste would be . . Supervisor Smith: would be special waste . That would be just the direct haul special waste . That' s just the waste that doesn' t go that can' t go through a transfer station because it doesn' t qualify and currently gets charged 10 percent surcharge plus all of the fees . Supervisor Powers : Okay. Supervisor Torlakson: So, if I could ask just a further 9 clarifying question. On the Keller surcharge share of the 25 percent, the $6 . 25 for say special waste that was coming in, how do you see that divided up? In terms of where that mitigation stream goes . Supervisor Smith: So, if something came from another transfer station, for example, and just went to Keller. . . Supervisor Torlakson: Or let' s take special waste . That' s just coming direct from a special waste generating site. What are the charges . The charges are $7 . 59 is that what I'm reading. Supervisor Smith: No, that would be waste that comes from transfer stations . Supervisor Bishop: Or special . . Supervisor Powers : It would be like option 2 . With some changes . Supervisor Smith: I knew this was going to get confusing. Supervisor Bishop: The question is the same as my question. What happens to the allocation on those mitigation fees? We' re getting $6 . 25 at Keller, where does it go? Supervisor Torlakson: Where does it go? Supervisor Smith: We have to decide as a Board how to apportion that . I think we made the decision that $3 at least was going to be mitigation for the community around Keller and obviously none would go to Acme, since it doesn' t go to Acme and then we have the rest that needs to be allocated via our decision based on the programs that we need to run. Supervisor Bishop: That was my earlier question and that response satisfies me on that issue . Supervisor Smith: And of course, all of this is presuming that some waste will go via some other transfer station to Keller which currently doesn' t happen correct? Currently doesn' t happen. Louise Aiello: There is no other transfer. . Supervisor Smith: So, might be zero. Supervisor Powers : Okay, then if my understanding, you' re trying to make a motion consistent with option 1 as corrected for waste that sloes not go that goes to Keller that is not special waste and does not go to Acme . 10 Supervisor Smith: Right . So that in section 6 .4 a it would merely say the surcharge on solid waste received at the landfill via a transfer station shall be set forth in section 6 .4 initial surcharge of the franchise agreement between the County and the operators as follows and then the rest would be as we said and back at the bottom, b where it says other waste, personally I think we should leave that the way it currently is the special waste which is the surcharge but we should clarify, other waste shall be defined as special waste . The surcharge received will be 10 percent plus County mandated fees . Does that clarify it? Supervisor Powers : Yep. Okay. Good. Motion and a second right . Supervisor Smith: Does that clarify it? Am I clear? Louise Aiello: Repeat it . Did you get it Lillian? Lillian Fujii : There' s one point I would like clarified. And that is right now it says combined transfer station and Keller rate and that would make sense in the case of the Acme Transfer Station which you have franchising authority but maybe we should clarify that to state that for waste going through another transfer station, it is 25 percent of the Keller. Louise Aiello: You' re referring to page 21 where it says amount under a. Supervisor Smith: Oh under amount . Oh, I'm sorry, you' re right . That should be changed so it' s clear. Supervisor Powers : Okay, everybody' s on that . Supervisor Bishop: I have another question. What then anything going directly to Keller we are not collecting LEA or 939 . Supervisor Powers : Yes, we are. Supervisor Bishop: On top of . . . Louise Aiello: Yes, you are . Direct you are . Anything that goes direct you are . Supervisor Smith: Anything that' s direct haul, we are. Supervisor Bishop: We' re 25 percent plus that . Supervisor Smith: Ten percent . Supervisor Powers : Ten percent . Supervisor Smith: Direct haul would be ten percent plus the 11 current mandated fees which is what they' re currently doing. That' s for special waste . That' s 32, 000 tons a year. Roughly. Supervisor Bishop: And we' re talking about . Supervisor Torlakson: And is that about equivalent to what we' re collecting now? Just to get a comparison. Supervisor Smith: Yes, that ' s exactly what we' re collecting now. And material that went through another transfer station and ended up at Keller the LEA or 939 fees would be charged by the transfer station jurisdiction which if it came from outside the County which it would have to be would be charged at that location. So, say for instance it came from West County, they currently have household hazardous waste, LEA fees, and 939 fees charged at the IRRFF. It wouldn' t double charge. Supervisor Bishop: So, you' re saying that what we intended which I thought was 25 percent, is now we' re only using that with direct haul going through another transfer station and that special waste we' re going back to the ten percent . I see Lillian shaking her head yes . Because that' s what I'm understanding. Supervisor Smith: No, direct haul is only special waste nothing gets direct hauled that' s not special waste . Supervisor Bishop: Okay, but direct haul is ten percent if we use another transfer station it' s the 25 percent . Supervisor Smith: Well . . . Supervisor Powers : Well, let' s separate the other transfer station because direct haul is only special waste. And there is no transfer station involved. 10 percent plus mandated fees . If it okay then other situations may be that it not go to Acme transfer station but it goes to some other transfer station nor out of the County, that would not be special waste and that would not be direct haul, either one of those are exclusive. Supervisor Bishop: Right, but it would be 25 percent is that what you' re saying? Supervisor Smith: 25 percent of the proprietary rate at Keller alone. Plus the state fee . Supervisor Bishop: Plus the Eastin fee . Supervisor Smith: Right . I mean this is basically the maybe I should let Tom Bruen agree . But they' re understanding of the language that previously existed would have required the ten percent plus all of the current fees to be charged on everything except waste that went via Acme. And all I'm trying to say is 12 that we should not discriminate if it does not go to Acme but does go to a transfer station, it should get charged the same rate at Keller. Supervisor Powers : He likes this one. Supervisor Smith: Tom likes this one . Supervisor Powers : Tommy likes this one . Supervisor Smith: Did you want to comment, Tom? Tom Bruen: Well, as I understand the proposal it is to take the 25 percent surcharge concept and apply it to all transfer station waste going to the landfill but not direct haul waste which basically is special waste. We prefer it be applied to all waste, but we would accept the proposal because it' s certainly more equitable than the current dichotomy in the franchise agreement . Supervisor Powers : Alright, any further discussion. Hearing none, all in favor of the motion, signify by saying aye . Those opposed. Passes unanimously. Okay, we have now I think another. . Victor Westman: Mr. Chairman, could we perhaps ask, you voted on that item and some earlier items . Do we imply from that that you approve the franchise or indicated that the franchise is approved with those changes to it? Supervisor Powers : That' s correct . And I will sign it . Victor Westman: And do you want . . . . Supervisor Powers : The Board has directed me to. Supervisor Bishop: Are we approving the franchise or are we approving an amendment to the franchise agreement? Victor Westman: Well, we' ll it' ll be in the mode of amendments to the franchise but do you want us to reduce those to writing and bring them back to you next week. Okay for your final ratification. Supervisor Powers : Yes . Supervisor Bishop: Please no. Supervisor Powers : That' s smart . That' s really smart . Supervisor Smith: Is that what we really want to do. 13 Supervisor Bishop: No, I really don' t want to see it again. Supervisor Powers : Well, let' s bring it back just for information and review before next week, so if there is a problem we can stand and shout . I doubt very much if there will be but okay the next one is the November 1st report and it says here report dealing with the collection franchises and I guess for clarification it looks like you' re just dealing with the Bay Point and Discovery Bay but you' re actually asking for direction for the BFI area, the waste area as well as the Garaventa, . . Louise Aiello: Correct, Mr. Chairman, would you like me to give a report? The Board order you have before you deals with waste collection franchises, the hauling side of this, and we have been meeting with BFI, Garaventa Enterprises as well as Valley Waste Management on areas that they have been serving. We have some differences in existing franchises that the County has between West County and East County and some of the things we would like to reconcile in changing those franchises . There have also been some issues put on the table by the haulers of those various areas and we need some direction from your board before we can go any further. The areas that we need direction on are the lengths of the franchise, and I can explain that if you want any further explanation other than what' s before you. There are some options there . Then the second area is method for directing the waste stream. And the last area is administration of the mandatory subscription ordinance . Supervisor Powers : Okay, do you want to explain ' em. Why don' t we go down one by one. Louise Aiello: Okay, I can go through. Okay, the length of term for the franchise agreements . Currently the franchises with Garaventa Enterprises and BFI for Discovery Bay and Bay Point provide for a ten year term with the option of a five year extension. In West County, we have a longer term franchise based upon the financing and the JPA agreement . Option 2 , would be to establish that longer term similar to what we have in West County. Option 3 would be to reduce the term of existing franchises and any new franchise to and we put here 7 years or less and probably with an extension of 7 years'. 7 years seems in the haulers mind to be a bare minimum because that is how they amortize their equipment . So, were we to put on the table anything less, it would probably be very difficult to come to resolution. Do you want to stop there. Supervisor Powers : Okay, why don' t we stop there . I guess in the we couldn' t standardize this for anything shorter than the 20 year period because Richmond is locked into twenty years plus in this case. Louise Aiello: Correct . 14 Supervisor Powers : So, if we wanted to standardize it, have everybody on the. . . Louise Aiello: Basically it' s everything east of the Briones being standardized. Supervisor Powers : Yeah. So, if we wanted to standardize everybody the same as Richmond, we' d go for option 2 . Louise Aiello: The option 2 would standardize with the RSS Franchise. Supervisor Bishop: Louise, I have a question. The Central county JPA in their RFP, do we know what they are looking at? I mean we' re trying to stan. the West County JPA is already in place and they have the financing that has sort of dictated what the term of that will be but do you have any idea what it' s going to be in the Central County JPA. Louise Aiello: I cannot answer that . I know that they have split it between hauling and recycling so it' s not necessarily going to be a combined franchise as we have right now or as some of the cities have . Supervisor Powers : Okay, why don' t we go down these one by one and do them. Is there a motion on 1, 2, or 3 . Supervisor Torlakson: I' ll move number 2 . Supervisor Smith: How many times will we have to hear about this if we go for number two the next term, my next term. I vote for number two. Louise Aiello: Very little probably. Supervisor Bishop: Can I ask this . We are currently doing option 1 . What would be the rationale for changing that to a longer term. Supervisor Powers : I think trying to combine all their franchises aren' t you? Louise Aiello: Well, one is to try and standardize them. Two, is to try and stabilize your relationships and conflicts because you have carved out territories and you've entered into long term arrangements with these folks . Supervisor Bishop: Are we doing this by an RFP or what . We' re just going. . . Louise Aiello: You have actually existing franchises in some of these areas . In some, you would be picking up existing 15 franchises from sanitary districts . And the Board' s policy had been that where a provider was giving service that they would have the right to that area in unincorporated County so that basically we' re consolidating service areas . Supervisor Bishop: Thank you. Supervisor Powers : Any other questions? Hearing none, all in favor of the motion signify by saying aye . Those opposed. Okay, number two methods for directing waste stream including recyclables and compost . Louise Aiello: Option 2, number one . Under waste stream control . Currently under the franchises and I did attach language, attachment A. The top paragraph says number 22 disposal and waste stream control . The top paragraph is currently the language in the franchises for Bay Point and Discovery Bay. But it would stop at the end of that first paragraph and what it does it gives your Board, the County direction and control over directing the waste to transfer stations and disposal facilities . Option 2 is a modification and that is the addition of the second paragraph which is highlighted there . And what that provides for is that if the waste hauler wants to bring in an alternate proposal for transfer and disposal, that the County would consider it . But that we would be considering all the relevant factors including transportation, closure, post-closure, liabilities, disposal fees, other fees, etc . The way the language before you is written that' s highlighted it is permissive . You are not, the Board and any future Board would not be obligated to accept such an alternative proposal from a hauler but you would be required to consider it . Ah. . . Supervisor Bishop: Option 2 is you would be required to consider options . Louise Aiello: You would be required to consider options and the context would probably be a staff report . Which means it would be in public . Supervisor Torlakson: And you' re contemplating an option that would basically would basically give up control of the waste stream for some consideration of cost and long term stability or something like that . Is that what you' re why would you have that in here otherwise in this particular section. Louise Aiello: Some of the haulers don' t would prefer to be able to have options on where they take it, not feel that they are obligated to take it at the present time through Acme Transfer Station Keller. Supervisor Torlakson: I don' t disagree with this language . I 16 think the modified language is good. I think we should retain our control and only carefully review any other alternative proposals so that we should be able to control the waste stream designation. But if there' s some plan that comes along that has some benefits that we can' t forsee today until we see the plan, I think we should be able to consider it, so I would move that option. Supervisor Bishop: Option 2 . Supervisor Torlakson: Yes . Supervisor Bishop: Second. Supervisor Powers : There' s a motion and a second. Just I think that' s fine. You might want to consider a little bit more control if in the third line between the words for and proposal you could say in County. Louise Aiello: Could you repeat that . Supervisor Powers : The third line in option 2, the one, two, three, four after the fourth word which is the word four, put in in County proposals . Supervisor Bishop: Why would we put that Tom? Supervisor Powers : Well, that kind of insures that we consider the fees would have a little bit more control over that issue . Supervisor Torlakson: I would support that . Supervisor Smith: You don' t want you' re not suggesting changing the language on the amendment, you just want to change the language on the Board Order. Okay. Supervisor Powers : Okay, any further discussion? Hearing none, all in favor of the motion, signify by saying aye. Okay number three is the mandatory subscription. Louise Aiello: Number three, correct, the County currently has a mandatory subscription ordinance on in existence and it is presently under the administration of the County Health Department . In the West County Franchise with RSS, because a process had been in place, between RSS and the West County Sanitary District, that had worked very well for quite some time, they asked and we concurred that the Community Development Department would administer it. They do all the work. We go out to the hearing and we notice people and maybe there are a few people that I do understand from some of the cities that when the mandatory subscription initially went into place, there were large numbers of people but it has not been that way for the last 17 s s year or so. If that process were used, it is easily administered by either the Health Department or Community Development . It is my understanding that the Health Department has proposed and forwarded to Counsel some amendments to that ordinance but I am not sure what the status of that is . So, what you have before you would eliminate mandatory subscription, modify the existing ordinance, allow no exemptions which would make it very easy to administer, continue the existing procedure and let the Health Department administer it . Or modify it and have Community Development administer it where we have franchises . Supervisor Powers : Okay, you prefer number two and I think the collectors . . . Louise Aiello: We would probably have — staff has no preference Supervisor Powers . Supervisor Powers : Oh, you have no preference whatsoever. Neutral . Supervisor Bishop: Let me understand under the second proposal if someone is not subscribing then there is the ability on the part of the collector to actually go out and put a lien on. . . Louise Aiello: What they do is they put a lien and in fact, I think we've come twice before you as a part of the consent calendar with the liens . And that' s exactly that' s what we would do here . We want the haulers and we would say to the haulers you must implement the same procedures that RSS has if we' re going to do this for you. Victor Westman: Well, could I point out that I don' t two is a procedure whereby you authorize the private collector to perform governmental services such as holding hearings and making decisions as to what charges are to be extended onto the tax roll . At some point in that process, I'm not completely familiar with it . You have to finally approve those charges being extended onto the tax roll but as part of it the involved landowner is supposed to get notice and opportunity to be heard and to dispute either one that they qualify for some exemption or to the amount of the bill and then if it is not paid it is extended on the tax roll for collection. I think that' s the benefit of the arrangement under two. The other benefit is probably where two is being exercised, it there are some areas in the County where the collectors are not as how shall I put this aggressive in pursuing people connecting to their service and so on as Richmond Sanitary Service is in certain areas and probably is at work to the benefit of General Health and Safety where the collector has been very aggressive in pursuing people to pay their bills and the collector does that because he is security for all that is he has the best security in the world. The bill for the collection service will be put on the tax bill and the 18 property therefore if you don' t pay it within four or five years will be sold. Supervisor Bishop: I just want to say here I'm torn two ways here . one is I do know some people who do not subscribe and perhaps should. I don' t know them, yes Ido. But at the same time the relinquishment to a private agency or a private company that responsibility, I' ll go with where ever the balance of the Board goes because I really have strong feelings both ways so. Louise Aiello: Mr. Chair, Supervisor Bishop, there are exemptions and the procedure that Vic outlined, a person does right and there are certain conditions and if they can demonstrate they either haul it themselves or something else, they can get an exemption so not everyone, so there are ways around the ordinance and the mandatory subscription. Supervisor Powers : It works pretty well in Richmond and San Pablo and they believe the cities believe that tends to not make the rates go up as fast because otherwise they would have to compensate for uncollected locations by shifting it to those who are paying their bills in the form of an increased rate, so it does tend to keep the rates down a little bit . Jeff did you have a comment . Supervisor Smith: I was just wondering if you had any comments fromthe public . I'd like to hear what the haulers have to say about this BFI or somebody. Nobody has a comment . Supervisor torlakson: While they' re determining whether they have a comment or not, I've tracked this quite a bit in the original franchise and our Health Department frankly is overwhelmed with a lot of other pressing code enforcement and other responsibilities and they have not been able on their own todo this . I think the model that Richmond Sanitary set is one of the private partnership with the public to work as a team to get it done and the recalcitrant or the real hard cases that don' t respond to the initial notification from the hauler, those are the ones that we need to be their aid to get on the tax roles . I would move option 2 . I think we need to keep the mandatory subscription ordinance and there' s exemptions for people who recycle and have a low volume by that approach but I would move number 2 . Victor Westman: Could I point out that we already do option 2 in the richmond area without modifying the existing ordinance so I don' t quite understand how we have to modify the existing ordinance to do it in the rest of the County but to the extent we have to do that we will do so but it should be remembered under option 2 a County Department whether it' s Community Development or the Health Services is primarily responsible for the administration of the ordinance and that the hearings are held 19 and the decisions are appropriately made . That discretion is not delegated to a private collector. It remains with the involved department and if something does happen, it will be that department that will be responsible . Thank you. Supervisor Powers : Well, why don' t we just say if necessary modify the ordinance and if it doesn' t need modification— it' s the procedure that we're interested in. Louise Aiello: It was my understanding that we needed to modify it in order to accommodate Richmond Sanitary' s services agreement and we haven' t been able to do that yet . Supervisor Powers : Okay. So, there needs to be some discussion. Let' s leave it the way it is . Okay, we have a motion and a second. All in favor of the motion, signify by saying aye . Those opposed, passes . Is there anything more to come before the Board. Supervisor Smith: The LUP. 1 Supervisor Bishop: Oh God. Supervisor Powers : I do want to ask the Board if they will . . . Supervisor Smith: We have to do the LUP. Supervisor Powers : Is there a desire to make any more changes on the LUP. Supervisor Smith: well we have before us the language that we asked County Counsel to come back to us with. Victor Westman: Well, you did consider at a prior meeting our October 31st memo. Supervisor torlakson as I remember I thought moved that our language would be accepted except for the phrase on the last section on page 3 or our memorandum except that the Board of Supervisors . . . sole discretion shall determine the extent and amount of each fee to be levied. I thought Supervisor torlakson moved on that and you otherwise adopted the language as set forth with the addition as indicated in October 17th memorandum which is before you. And the other question I think that staff had perhaps to wrap up the LUP completely is there were quite a number of other changes proposed to the LUP in the earlier Community Development Department draft that was before you which we enclosed in your file today and perhaps you may wish to go back over those to be sure you either wish to take no action on them, take action on them in some modified form or accept the staff' s recommendation. AS to those changes I believe Mr. Zahn can speak completely to them since he has shepardized them through the process . 20 i a Supervisor De Saulnier: Shepardized. Supervisor Smith: I suggest we leave them alone and just go with what Supervisor Torlakson made the motion on. Supervisor powers : I thought that' s what we were going to do. Supervisor Bishop: It' s a legal term. No, no you if you do research, you go through shepherds and you shepardize it to make sure that current law, why am I telling you this . Supervisor DeSaulnier: Let' s leave them as they are . Supervisor powers : So, is there a desire to make any further changes in the land use permit . So, that' s your answer. Don' t bring any of this stuff back forever. All right then if you would. Warren Jackman, many of you knew him. Some on the board knew him and he passed away. He suffered from an illness for some time and he' s a former the Director of the Building Trades Council before Gregg Ferry was selected and we' re all sad to see him pass away. He was really a great man and a fun guy to be with and we' re sorry that we've lost him and if it' s okay with the Board we' ll adjourn in his memory and if you could give me that certificate . Victor Westman: Mr. Chair, you did have the continued hearing today on the Land Use Permit and to formally conclude it with just the amendments listed on our memo could you take a vote to. . . Supervisor Powers : Okay, the public hearing is closed and could we have a motion to include those items that we had previously indicated our desire to change and that was in the October 31st or is October 17th and which one was it so that we know what we' re doing? Because we only changed one I believe with was that under section two? Victor Westman: No as I understood you were adopting 2 as indicated on page two, 35 . 8 and adding to it the material on page 3 except for the phrase at the end except that the Board at it' s sole discretion, that would be deleted. Supervisor Powers : That was deleted? Victor Westman: Yeah. Supervisor Powers : Okay, can we have a motion to that effect? Supervisor De Saulnier: So moved. Supervisor torlakson: Second. 21 Supervisor Powers : motion and a second. A11 in favor of the motion, signify by saying aye. Supervisor Bishop: I was a no vote consistent with my prior no vote on this action. Supervisor Smith: Garbage is done . Supervisor Powers : Ha Ha that' s what you think. 22