HomeMy WebLinkAboutStaff Report 4.A - Attachment 3 11/19/2012 ATTACHMENT 3
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October 15, 2012
Via OVERNIGHT MAIL, HAND DELIVERY and ELECTRONIC MAIL
Mayor David:Glass Mayor David Glass
and Honorable Members of the City Council and Honorable Members of the City
of the City of Petaluma Council of the City of Petaluma
City of Petaluma, c/o City Clerk, Claire Cooper, CMC
11 English Street 11 English Street
Petaluma, CA 94952 Petaluma, CA 94952
Email: daveglass(a�comcast.net; Email: cityclerk(@ci.petaluma.ca.us
mthealy(cilsbcq lbbal.net
councilman:albertson(Wgmail.com;
.teresa4petaluma(o�comcast:net;:
rnike4pet(a�aol.com
councilmemberkearnevic me.com;
tifftiffanyrenee.com
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Re: Comments on,Agenda Item#5.C, Introduction:(First.Reading) of an
Ordinance,Approving New 1S-Year.,Franchise Agreement Between the City
of Petaluma and Petaluma Refuse and'Recycling, Incorporated(`PRR");;an
Affiliate of The Ratto Group of Companies, Inc:-("Ratto,Group"), for Solid
Waste, Recyclable,Materials'and Yard-Trimmings Services and Street
Sweeping Services;'and Authorizing City Manager to Execute a Franchise
Agreement upon:Satisfaction of the(Conditions Precedent Contained in the
• Ordinance
Dear Mayor Glass and Honorable Members of the City Counciltorthe City of Petaluma:
I am writingbn behalf ofthe Petaluma River"Council.("PRC") and No Wetlands
Landfill Expansion ("N1NLE`) (collectively, ",Commenters") and their many members.
living in and around:the City of Petaluma, California ("City") regarding City Council
Agenda..ltemi#5.C, Introduction (First.Reading);of an Ordinance.Approving New 15-
Year Franchise Agreement°BetWeen the;City of Petaluma and Petaluma Refuse-and
Recycling;Incorporated ("PRR ), an Affiliate:,of The Ratto'Groupbof Companies,'Inc.
("Ratto Group"), for Solid Waste, Recyclable Materials and Yard Trimmings Services
and Street Sweeping Services; and Authorizing City Manager to Execute a Franchise
I
October 15,.2012
City Council of the City of Petaluma
Item#5,C, Garbage and Rubbish Disposal Ordinance
Page 2 of 15
Agreement upon Satisfaction of the Conditions precedent contained in the Ordinance.
("Ordinance" or "Project")
I. Introduction.
It appears that the City has:not prepared any environmental review document
under the California Environmental Quality Act=("CEQA"). Public Resources Code
section 21000, et seq. The adoption of proposed Ordinanceisclearly a.
discretionary action with potentially'significant adverse environmental impacts.
Therefore.CEQA review is required to analyze the Ordinance and its impacts and to
propose feasible mitigation measures-and project alternatives.
We previously commented, in November 2011, when'the City adopted.an
Ordinance Amending Petaluma Municipal Code Chapter 8.16 Governing Garbage and
Rubbish Disposal;,Amending Section 816.060, Temporary Contracts;Adding Section
8.16.065, Award of Franchises Without Competitive Bidding; Amending Section
8.16.070, Award of FranchiseeWithoutCompetitive Bidding; And Amending Section
8.16.080, Renewal of Competitively Bid Contracts, which Ordinance was being
presented to the Petaluma City'Council for a second'reading and adoption at the City
Council's November 21, 2011 meeting ("Franchise'Ordinance''). The Franchise
Ordinance granted the City°power to award.no-bid contracts and to terminate its existing
competitively:bid contract prematurely.
The City Attorney took the position at the November 7, 2011 CityCouncil meeting
that although CEQA.review'was,not required prior to adoption ofthe Franchise Ordinance,
some form of CEQA review would likely be required priortoadoption<of any new
Franchise Agreement Now that the City is proposing to award the Franchise
Agreement, it has stili failed to prepare the required CEQA document.
As discussed below,theOrdinance adopting the Franchise Agreement may have
adverse environmental impacts because it is likely to:resultin;:green waste being
redirected from the County landfill to the Redwood Landfill, which has been documented
to be leaking into'thePetalurna.Marsh.
The:Citytabwn,audithas found that PRR haS failed to meet its 50% waste
diversion requirements,and has failed to comply with numerous conditions of its current
contract. It;is astonishingthat the City would choose to sign a'no-bid 15-year contract
with.,a companythat is unable to meet its current.contractual obligations. The failure to
meet itswaste diversion goals certainly>constitutes a significant adverse impact of the
Ordinance. if PRR has failed to meet its waste diversion goals when it faced possible
competitive bidding, it will;have?almost no incentive;to meet these goals once it has
been given anabid 15-year contract. This:will adversely impact the environment.
October 15, 2012
City Council of the,City.of Petaluma
Item#5 C Garbage and Rubbish Disposal Ordinance
Page 3 of 15
Also, PRR may be unable to meet the termsgof the proposed;contract. The
proposed 15-year no-bid Franchise Agreement:contains;a "No Litigation" clause, which
states:
2:4 No Litigation
To the best of Contractor's knowledge, after reasonable investigation, as of the
effective;date,of this Franchise Agreement, there is no action suit or other
proceeding at law or in equity or any investigation before'or by any court,
governmental authority,;commission„board, agency or instrumentality decided,
pending orthreatened against; Contractorthatis likely to result in a decision,
ruling, or finding thatwould.materially or adversely affect the performance by
Contractor or its obligations hereunder; adversely affect the validity or
enforceability of this Franchise.Agreement, or have a material adverse effect on
the financial condition 'of Contractor or its parent company.
PRR's parent,company, the Ratto Group, is currently in litigation in the United
States District Court for the;Northern.District`'of California for hundreds of violations of
the federal Clean Water,Act, including alleged,discharges into the Petaluma River from
a Ratto Group facility on the Petaluma River, and for hundreds of violations at Ratto
Group facilities in Santa Rosa into the Laguna de-Santa Rosa. Discharges include pH,
total suspended solids ( TSS7),,oil and grease,,aluminum; copper, iron, lead, zinc, and
chemical oxygenidemand ("COD"). The.company faces potential liability of up to
$37,500 per day per violation under federal law. This litigation,has not been resolved,
and may 'materially•or adversely affect the performance-by the Contractor," and may
"have a matehal.adverseeffect on the financial condition::of Contractor of its parent
company." (See, Exhibit-1,.Federal Court Complaintin California Sportfishing
Protection Alliance and Petaluma River-Council'v. West Sonoma County;Disposal
Service, Inc., eta', United States District Court of`the No. Dist. of Calif. Case'No. C10-
03441 JCS)
By this letter,theCommentersrhereby request that the City conduct CEQA
review of the proposed Ordinance prior to its approval; and prepare.an Environmental
Impact Report ("EIR") to analyze all Project impacts, to consider all feasible measures
to reduce Project impacts, and to consider all feasible alternative sites and sizes that
could reduce Project impacts.
We incorporate by this reference all exhibits hereto,..our'prior comments filed in
November 2011. and the:'related City Council staff report:and materials, as well as the
expert comments of Mr;Matthew Hagemann,P:G, C.Hg., submitted herewith as Exhibit
2.
October 15, 2012
City Council of'the,City.of Petaluma
Item#5,C, Garbage and Rubbish Disposal Ordihance
Page.4 of 15
II. Commenters.
The;Petaluma River Council ("PRC") is an unincorporated organization of
concerned citizens; residing in and around Petaluma,committed to protecting and
improving the health and character of the Petaluma River and its surrounding
environment. Members of the Petaluma River Council are residents and taxpayers of
Petaluma and Sonoma County. PRC members regularly use the Petaluma River and
public areas near the river, such,as Shollenberger Park. PRC is involved.in many
actions and campaignsao reduce:pollution that may adversely affect the.Petaluma
River. PRC is concerned`that.the City's proposed action may adversely-affect the
Petaluma.River by contributing additional waste to the Redwood Landfill, which has a
long history of leaching-into the Petaluma Marsh.
No Wetlands-LandfilLExpansion ("NWLE") is a grassroots environmental
education and advocacy organization, and recipient of a Northern California
Environmental Grassroots Fund grant from.the Rose Foundation. NWLE opposes the
expansion of the Redwood Landfill (the "dump") located at the edge of the Petaluma
River Estuary and Marsh on the Mann and Sonoma County border, and seeks to assure
the enforcement of appropriate-oversight of'the}landfill's currentsoperations. NWLE
seeks to assure the protection of citizens, wildlife, and the riverestuary from the
negative health and environmental effects from air,;water, odor;,and noise pollution
arising from operation of the dump. NWLE seeks to redirect local government's
approach to the landfill to consider it a local resource to conserve'to benefit local
residents instead of permitting the:landfill to,.become a regional.dump.. NWLE petitions
our local government agencies to'indlude solid waste management„as a:fundamental
element of county and local planning, including contingency planning, closure and
abatement planning, and:studying and considering alternative-technologies and site
locations. NWLE seeks to preserve and protect the Petaluma River Estuary and Marsh
as a public educational and environmental resource for residents to appreciate its
natural beauty and critical role in our local and Bay;ecosystems.
III. Project=Description.
A. Existing franchise Agreement
The City,currently contracts with Petaluma Refuse for exclusive solid waste
hauling franchise services-coveringi all waste collection, hauling and disposal service,
except debris box services„ The currentten year contract is in its seventh:year and
ezpires,on June 30,, 2016! Petaluma currently composts its green waste at the Sonoma
County Landfill through Sonoma Compost.
October 15, 2012
City Council of theCity,of Petaluma
Item#5.C, Garbage and Rubbish Disposal Ordinance
Page 5 of 15
B. Proposed Ordinance.
The Ordinance would;`terminate the operative Franchise Agreement immediately,
and then enter into a new contract for a term of 15 years without competitive bidding.
The November 7, 2011 Staff Report states that,the new Franchise Agreement may
include food wastetomposting, which "would'reqUire the City-to direct green and food
waste to the Redwood Landfill where this program is currently operating." City Manager
John Brown confirmed atthe City.Council meeting on November 7, 2011 that "this
particular program would divert compost [from Sonoma landfill]to Redwood Landfill."
The November 2011 Staff stated that under the new Franchise Agreement, it is
envisioned that Petaluma Refuse would requirathe City to-direct its,green and food
waste to the Redwood Landfill, which, under Redwood Landfill's currently permitted
operations, is likely to result in the,diiversioniof some or all:otPetaluma's green waste
from composting to:use asAlternative Daily Cover ("ADC") for the Redwood.Landfill.
(November 2011 Staff Report at p. 2) Diversion of waste to;the Redwood Landfill under
a new franchise agreementwouldbe further complicated by the fact that the Landfill has
a history of leaking contaminants into the, Petaluma Marsh. These are potentially
significant environrimentarimpact's that must be-analyzed under CEQA.
The Franchise Agreement doesnot specify where compost will be directed.
Instead, it leaves the choice of composting facilities to•PRR. Certainly, given
statements made at the'November. 7, 201.1 meetingand staff report, it is at least
possible, if not likely, that composting-operations will move from the County landfill to
the Redwood Landfill. The choice of'landfillcertainly.may have adverse environmental
impacts. The courthin.the,case Stanislaus Audobon Society, Inc. v. County of
Stanislaus (1995) 33 Cal.App.4th 144 rejected a county's argument that a-revised initial
study prepared byte county which contradicted the findings of the first initial study had
not "relegated the firstinitial;study to oblivion." (Id. at 154.) The°court stated, "We
analogize such an untenable'position to°the unringing of a bell. The first initial study is
part of the record. The fact that revised initial study was later prepared does not make
the first initial study any less a record entry nor does it diminish its significance,
particularly when the revised study does,not conclude that the project would not be
growth inducing,but instead simply proceeds on the assumption that evaluation of future
housing can badeferred until such housing is proposed." (Id. at 154) Here, the prior
statements made in official staff reports create a fair argument" that the Project may
have significant impacts, despite a lessclear new staff'.report. (See, Id.;,Gentry v.
Murietta (1995) 36 Cal:Appi4th 1359 (petitioner may rely on statements made in initial
study to establish fair argument even in the&face of contradictory evidence);)
October 15, 2012
City Council of'the',City of Petaluma
Item #5.C, Garbage and Rubbish Disposal Ordinance
Page 6 of 15
IV. Legal Background- CEQA.
The Califomia'Environmental Quality Act, Pub. Res. Code § 21000 et seq.
("CEQA"), applies to agency projects that may have an"adverse environmental impact.
(CBE v. SCAQMD 48 Cal. 4'h 310, 319 (2010); Friends of Mammoth v. Board of
Supervisors, 8 Cal.3d 247„259,0972); Friends of B Street v. City of Hayward, 106
Cal.App.3d 988, 1003 (1980) (project that included removal of trees caused significant
effect on environment).) CEQA's procedural and substantive requirements are
"interpreted . to afford the fullest possible:protection to the environment within its
reasonable scope of the StatUtoryi language."(Friends of Mammoth, 8 Cal.3d at 259.).
CEQA has two broad purposes: 1)lavoiding, reducing or preventing environmental
damage by requiring alternatives and mitigation measures. (14 Cal: Code Regs. §
15002(a) (hereinafter "Guidelines")); and 2) providing information to'decisionmakers and
the public concerning the environmental effects of the proposed project (14 Cal. Code
Regs. § 15002(a)(1)).
To achieve its objectives of environmental protection, CEQA has a three-tiered
structure. (14 CCR §15002(k); Comm. to Save.HollywoOdland v. City of Los Angeles
(2008) 161 Cal.App.4th 1168, 1185-86.) First, if a project falls into+an exempt category,
no further agency evaluation is required: (Id.) Second, if there is a-,possibility the project
will have a significant effect on the environment, the agency must perform a threshold
initial study. (Id.; 14 CCR §115063(a).) If the;study'indicates that there is no substantial
evidence that the project may cause a significant effect on the environment the agency
may issue a negative declaration. (Id., 14 CCR §§ 15063(b)(2), 15070.) Finally, if the
project will have a significant effect on the environment, an environmental impact report
("EIR") is required. (Id.)
A. Project Definition.
An activity undertaken, supported, onauthorized by:a public:agency is•a project
subject to CEQA where the "whole of an action" has "potential for resulting ima direct
physical change in,the environment or a reasonably foreseeable indirect physical
change in the environments" IPRC § 21065;14 Cal Code Regs §15378(a)., CEQA
applies when apublic agency proposes to "approve" a project..Pub. Res. Code.
§21080(a), Save Tara v City.'of 1NHollywood (2008) 45`Ca1,4th 116; RiverWatch v
OlivenhaihMun. Water Dial. (2009) 170 Cal. App. 4th 1186. The term "approval"refers
to a public agency:decision that "commits the agency to a definite course of action in
regard to.a' project."14 Cal Code Regs §15352(a). This definition of"approval" applies
to all projects intended to be.'carried out any person,which includes actions`
undertaken'by a public agency as well as actions funded or authorized by apublic
agency. 14 Cal Code Regs §15352(a).
October 15, 2012
City Council O the City,of Petaluma
Item #5.C, Garbage and Rubbish'Disposal Ordinance,
Page 7 of 15
A "significanteffect on the environment"";is statutorily defined'as "a:substantial,
or potentially substantial, adverse change in the environment." PRC.§ 21.068.
"Environment means the physical conditions which exist within the area which will be
affected by a proposed project, including',land, air, water, minerals, flora, fauna, noise,
objects of historic or aesthetic significance." PRC § 21060.5. Combining these
statutory,definitions, a'"significant effect on the environment" under CEQA is a
substantial or potentially-substantial adverse change in the physical conditions existing
within the area affected by-the project.
To be subject to CEQA, a project must be discretionary" as opposed to
"ministerial." (Pub.Res.Code §21080(a); Miller v. City of Hermosa Beach (1,993) 13 Cal.
App. 4th 1118, 1131 (CEQA requires ER to be prepared in connection with discretionary
projects" proposed to be carried out or approved,by public agencies).) CEQA Guidelines
define discretionary'projectsias actions,requiring "the exercise ofjudgment, deliberation
or decision." (14 CCR §15024) Section 150020) of the CEQA Guidelines provides:
Discretionary.Action. CEQA applies:in'situations where's governmental agency
can useits judgment in„deciding whether and;how to carry out or approve a
project. A project subjectto such judgmental controls is called a "discretionary
project.”
The CEQA Guidelines define "project" broadly as "the whole of an action, which
has a potential for-resulting in either a direct physical change in the environment, or a
reasonably foreseeable indirect physical change in theenVironment." (14 Cal. Code
Regs § 15378(a).) Under CEQA, the term "project" includes
(a) An activity directly undertaken by any public agency.
(b) An activity undertaken by a persomwhich is supported, in whole or in part,
through contracts, grants, subsidies, loans, or other forms of assistance from one or
more,public agencies.
(c) An activity that;involves the issuance torn person of a lease, permit, license,
certificate, or otherentitlementfor use!by.one or more public agencies.
(Cal Pub Res. Code § 21965; Friends of Mammoth w Bd. of Supervisors (1972) 8 Cal.-3d
247, 257-62 ("project"'includes not;only'government'initiated actions,but also approval of
privately-initiated:permits, leases, and other entitlements).) It also includes:the "issuance
of rules, regulations, plans, or other general criteria." (14 CCR §15168(a)(3); Bozung v.
Local Agency Formation Comm'n (1975) 13 Cal.3d 263, 277-279; Dunn-Edwards v.
BAAQMD, 9 Cal.Ap0.4th at,658-659.)
The issuance by local public agencies of contracts, permits and'regulations
'constitute,a project within'the meaning of CEQA. (Miller, 13 Cal: App..4th'1118
(issuance of the hotel building,permit,was discretionary and brought the project within'the
ambit of CEQA);,Plastic Pipe& Fittings Assn.: v. California Building-Standards Corn. (2004)
October 15, 2012
City Council of
Item#5.C, Garbage and Rubbish'Disposal Ordinance
Page 8 of 15
124 Cal. App. 4th 1390; 1413 (regulations,permitting.use of polyethylene pipe were project
subject to CEQA);Day v. City of Glendale (1975):51 Cal.App 3d 817, 824 (issuance of
grading permit determined to be discretionar eproject.under CEQA); Simi Valley
Recreation & Park Dist. v. LAFCO (1975) 51 Cal;,App. 3d 648;664 (''Simi Valley'')
(agency's "minimal link'with rivate activit y, either byidirect proprietary permitting,
regulating, or funding the private activity, constitutes'project" subject'to CEQA).)
Because a project is,defined as the whole ofan action, a public agency generally
may not segment or "piecemeal" a'project"into several pieces'if the°effect is to avoid full
disclosure of environmental,impact, (See Tuolumne County Citizens for Responsible
Growth, Inc. v: City of Sonora-(2007)155 Cal. App. 4th 1214, 1231 (because opening of
home:improvement center was conditioned,on completion of road realignment, two acts
were part of single pproject=for purposes,of CEQA).) Even where individual projects are
undertaken in phases ormultipleparts, where the total undertaking comprises a project
with,significant environmental effect,the lead agency must fully, analyze each project in
a single environmental document. (14 Cal. Code Regs. § 15165:)
CEQA requires that;"environmental considerations do not become.;submerged by
chopping a large projectinto many little ones--each with a minimum potential impact on
the environment--which cumulatively may have disastrous consequences." (Bozung v.
Local Agency Formation Corn: (1975), 13 Cal 3d 263, 283-84; see Kings County Farm
Bureau v. City of Hanforcf(1990) 221 Cal. App. 3d 692, 716; McQueen v. Board of
Directors (1.988) 202 Cal. App.,3d 1136, 1143-44; see-also Association fora Cleaner
Environment v. Yosemite Community°College Dist. (2004)'116•Cal. App. 4th.629, 637-
40 (decisions to close, clean up salvage, and relocate;shooting.range constituted single
project for purposes of evaluation under CEQA); Arviv Enterprises, Inc. v. South Valley
Area Planning Com: (2002) 101 Cal. App. 4th 1333, 1345-47 (separate applications
from same developer to'build various numbers of houses on same street comprised
single project requiring EIR).)
B. CEQA Exemptions.
"Agency action is notexemptfrom CEQA„simply because it will not have an
immediate or direct effect on the environment. CEQAappliesifiit,is reasonably
foreseeable that'environmental impacts will'ultimately result:"';(Kostka &Zischke,
Practice Under the California,Environmental'Quality Act (CEB 1993), § 4:20, p. 151,
citing Bozung,v: LAFCO (1975) 13 Cal:3d 263, 277. (emphasis added)) If an agency's
action is a necessary step that,starts in motion a chain of events that will foreseeably
result in_impacts to the physical environment, the activity must be treated as a project
subject to CEQA." (ld ;see also Friends of Mammoth v. Board of Supervisors of Mono
County (1972) 8 Cal:3d 247; 265'(holding thatthe term "project” includes notonly
activities directly involving'actual physical impacts on the.:erivironment, but=also
activities, such as therapproval of permits, whose environmental'effects are indirect).)
October 15, 2012
City Council of the:Cityof Petaluma
Item #5.C, Garbage and Rubbish Disposal Ordinance
Page 9 of 15
Exemptions'to CEQA are narrowly construed and "[ejxemption categories are not
to be expanded beyond the reasonable scope of their statutory language:'''(Mountain
Lion Found. v. Fish & Game,Com. (1997) 16 Cal.4th 105, 125.) Finally, there are
several exceptions to the categorical exemptions. 1'4 CCR § 15300.2. When there is a
"fair argument" that an exception exists, the categorical exemption may not be used to
exempt,a project from CEQA. Azusa Land Red. v. Main San Gabriel Basin
Watermaster(1997) 52 Cal.App.4th 11'65, 1 202 ("Azusa").
The City contends"thatthe Ordinance'is exempt entirely from CEQA because it is
not a "project" within the meaning of CEQA,.as defined in Public Resources Code
Section 21065 and CEQA Guidelines sections 15060(c )(3), and 15378. The City also
contends that the Ordinance"has no potential for causing a direct physical change or a
reasonably foreseeable indirect physical change in the environment."
As discussed below,.the Ordinance is a "project" within the meaning of CEQA,
because it is a discretionary governmental action.
Expert evidence demonstrates that the project may have adverse environmental
impacts, such as diverting green waste from the Sonoma`Landfill where it is currently
composted to the Redwood Landfill, where it is likely to be land filled as "alternative
daily cover" Also contributing additional material to the:.Redwood'Landfill may have
adverse impacts to the Petaluma Marsh since the Redwood Landfill has a long history
of leaking harmful leachate'into the Petaluma Marsh. These impacts should be
analyzed in a CEQA documentat this time..
V. Analysis.
A. The Ordinance Is a Discretionary Project Subject to CEQA.
1. The Ordinance Is A "Project Under CEQA.
A "project" is thewhole:of an action, which has a potential#or resulting in either a
direct physical change in the environment, or a reasonably foreseeable indirect physical
change in.the-environment, (14.Cal. Code Regs § 15378(a),and includes the
contracting.or issuance ofpermits,,licenses, or regulations by a public agency to a
private entity for activities,which will forseeably result in environmental impacts. (Plastic
Pipe & Fittings Assn, 124 Cal. App. Oat 1413-14;.Miller,' 13 Cal. App.4th 1118; Day, 51
at 824; Simi'Valley, 51 Cal. App. 3d at 664.)
The Ordinance grants ani;exclusive a no-bid contract'with a single company,
Petaluma Refuse;;for 1:5'years. The November 7, 2011 Staff Report:and presentation
makes.clear that PRR intends to divert green waste from the Sonoma County Landfill to
the Redwood Landfill.
•
October 15, 2012
City Council of the City of Petaluma
Item#5.C, Garbage and Rubbish Disposal Ordinance
Page 10 of 15
"If an agencysraction is a necessary step"that:starts in motion°a chain of events
that will foreseeably result in impacts to the physical environment, the activity must be
treated as a project subject to CEQA." (Bozung v. LAFCO'(1975) 13 Cal.3d 263, 277.;
see also Plastic;Pipe,& Fittings Assn, 124 Cal. App. 4th at 1413-14 (CEQA review
required at time regulations passed, since intent of approval of the use of plastic
drinking water pipe was to`facilitate the use:,of the pipe in buildings in the future).)
In Bozung, a.cityiargued:that an annexation of land did not trigger CEQA because it
only moved lines on a map, and did not confer any development rights, and any`specific
development plan would;be subject to CEQA•.at a later time The Supreme Court rejected
this argument, finding that thecannexation was a "project" subject to CEQA since the clear
purpose was to effectively"subdivide agricultural land," and "not the,case of a rancher who
feels that his cattle would chew their cuds more contentedly in an incorporated pasture."
(13 Cal.3d at 281;) Similarly, in'this case, it is clear thatthe.Ordinance:is.likely to result in
moving green waste from Sonoma Landfill to;Redwood Landfill.
The City Attorney took the position at the November 7, 2011 City Council meeting
that although CEQA,review'was:not required prior to adoption ofthe Franchise Ordinance,
some form of CEQA review would likely be required prior-to adoption'of any new
Franchise Agreement. Now that the Cityis proposing the award the Franchise Agreement
it is once again failing;to conduct CEQA review. CEQAreview should be conducted at
this time; prior to the award of the Franchise Agreement; at a time when true flexibility
remains.
2. The Ordinance Is a:Discretionary Action.
CEQA applies in situations where a governmental:agency can use its judgment
in deciding whether and how to carry out or approve project. This is the hallmark of a
"discretionary project" underCEQA. (14 CCR,§§ 15002(1), 15024.)
Section 15002(i)(2) provides that"whether an agency has discretionary or
ministerial control over a project depends on the-authority granted by the law providing
the controls over the activity." "The statutory distinction between discretionary and
purely ministerial projects implicitly recognizes that unless a public agency can shape
the project in a way that would.respond to concerns'raised.in an EIR, or its functional
equivalent, environmental review would be a meaningless exercise=" (Mountain Lion
Found. 16 Ca1.4th at 1"17, Friends of Juana Briones v. City of Palo Alto (2010)
(`Briones)190 Cal.App.4th 286)
Discretion exists where the approving agency can.impose."reasonable
conditions' based on professional judgment." (Natural Res. Del Council v. Arcata
(1976).59 Cal: App,3d 959, 971; see also People v. Dept. of'Housing, 45 Cal.App.3d
185 (issuance of a conditional.perrriit held to be discretionary in view of its containing
both fixed design and construction specifications and generalized standards requiring
October 15, 2012
City Council of the.City of Petaluma
Item #5.C, Garbage and Rubbish.Disposal Ordinance
Page 11 of 15
the use of judgment).) Further, it is sufficient that',the agency possesses discretionary
authority, even if'it chooses not to exercise that authority. "[W]fiere the agency
possesses enough authority'(that:is, discretion) to deny or modify the proposed project
on the basis of environment consequences!;the EIR might conceivably uncover, the
permit process is 'discretionary' within the meaning of CEQA." (Friends of Westwood,
191 Cal.App.3d at272.)
Here, there is no question^that the Ordinance is a discretionary action by the City
Council. The City Council clearly has discretion to°adopt, decline to adopt, or amend
the Ordinance. It is therefore discretionary.
B. The Ordinance,.May-Result In Significant Environmental Impacts; CEQA
Review Is Therefore Required.
Under CEQA, an EIR is,required, whenever substantial evidence in the record
supports a "flair argument" that significant impacts may occur, even,if other substantial
evidence supports the opposite conclusion. (CBE v. 'SGAQMD (2010) 48 Cal. 4th 310,
319; Mejia v. Los Angeles; 130 Cal:App:4th 322 (2005)i, Protectors v.
Sacramento, 124 Cal.App+4th 903 (2005).) "Substantial evidence.includes ... expert
opinion." (Pub. Res. Code §21080(e)(1), 14 Cal Code Regs. § 15064(f)(5):) Since
"[t]he adoption of a negative declaration . . .,has a terminal effect,on the environmental
review process," by allowing the agency "to dispense with the duty [to prepare an EIR],"
negative declarations+are allowed only in where "the proposed project will not
affect:the environment at all." (Citizens of Lake Murray v. City Council of San Diego,
129 Cal.App.3d 436, 440 (1982);)
"Significant effectiapon the environment";is definedas "a substantial or
potentially substantial adverse changein:the environment:"' (Pub. Res. Code § 21068;
14 Cal. Code Regs. ,§ 15382.) ,A,project"may" have‘a significant effect on the
environment if there is a "reasonable probability" that it will result in a significant impact.
(Sundstrom v. City of Mendocino, 202 Cal.App.3d 296, 309 (1988).) If any aspect of the
project could result in a significant impact+on the environment, an EIR must be prepared
even if the overall effect of that project is beneficial. (14 Cal..Code Regs. §
15063(b)(1).)
Substantial evidence`includes facts, reasonable assumptions predicated upon
facts, and expert=opinion supported by facts. (Pub. Res. Code §'21082.2(c).) As a
matter of law, "substantial evidence includes . . . expert opinion." (Pub. Res. Code §
Under the CEQAGuidelines, "significant;effect:on the environment" means a substantial, or
potentially substantial;'adverse change in any of the physical conditions-within the area affected
by the project, including land, air, water, minerals, flora, fauna, ambient noise and objects of
historic or aesthetic significance. . ." (14 Cal. Code Regs. § 15382.)
October 15, 2012
City Council of the°Cityof Petaluma
Item #5.C, Garbage and Rubbish.Disposal Ordinance
Page 12 of 15'
21080(e)(1); 14 Cal Code Regs § 15064(f)(5).) Under the Guidelines, substantial
evidence means:
"enough:Televant information,and reasonable inferences from this
information that a fair argument can be made to support a conclusion,
even though other conclusions mighLalso be,reached. Whether a fair
argument can be made;that the project may have,a significant effect on
the environment is Id be determined by the'whole.record before
the lead agency. . . (14 Cal. Code Regs. §'15384(a)i)
The "fair argument" standard creates-a "low threshold" favoring,environmental
review through an EIR rather than'through issuance of negative declarations or notices
of exemption from (Citizens Action to Serve All Students v. Thornley, 222
Cal.App.3d 748, 754 (1990):) An agency's decision not to-require an EIR can be upheld
only when there is no credible evidenceto the contrary: (Sierra Club v. County of
Sonoma, 6 Cal.App.4th, 1307, 1318 (1992).)
1. An EIR is Required To'Analyze The Potentially Significant Impacts of The
Ordinance.
The expert comments of hydrogeologist,Matthew Hagemann, PG, C.Hg.,
demonstrate that the Ordinance is likely to have significant adverse impacts on the
environment. Specifically, moving composting operations from the Sonoma Landfill to
the Redwood Landfill would=have significant adverse impacts.
a. Green Waste that is Currently Composted may Instead be Landfilled.
The solid waste facility`permit ("SWFP") for the Redwood Landfill allows it to
use green waste as alternative daily cover. The Final Environmental Impact Report
prepared for the SWFP states that::an average of 300 tons per day of green waste is
projected to be used as alternative-daily, cover CADC")at the Redwood Landfill. (Final
EIR p.2-11) CalRecycle defines ADC as "coveYmaterial other than earthen material
placed on the surface of`the active face of a municipal solid waste,landfill at the end of
each w w.calreevcle ca qov/Igcentral/basis/adcbasic hbtnl) Thus,some or all of the operating Y 9 9
( ) e green
waste proposed to betaken to the Redwood Landfill`will simply be landfilled as ADC,
rather than composted.
By contrasf;'underthecurrent arrangement with Sonoma Compost, Petaluma's
green wasters currently composted at the,SonomajLandfill into.a high grade, usable
fertilizer. Land°filling compostable material that would otherwise,be diverted:from the
landfill is an;adverse.enviFOnmental impactthatis contrary to local and state policies
favoring.diversion of materials:away from landfills.
October 15, 2012
City Council of the Cityof Petaluma
Item#5.C, Garbage and Rubbish'DisposalOrdi'nance
Page 13 of 15
Also as discussed by hydrogeologist Matthew Hagemann, land,filling
compostable material ratherthan composting itgenerates methane gas, a powerful
greenhouse gas. Thus, the proposed action`will;likely have adverse:impacts on global
warming, which should be analyzed in a CEQA document.
b. Redwood,Landfiill Has a History of Leakage Into Petaluma Marsh.
Redwood Landfill has a long history of leakage of hazardousleachate into the
Petaluma Marsh. Adding more material to the leakyRedwood'Landfill may contribute to
additional leaching, The Courts have held that adding material to an already leaky
landfill is a potentiallysignifieant environmentilimpact.requiring CEQA review. (See,
Azusa Land Reclamataion'Co:. v. Main San Gabriel Basin. Watermaster(1997) 52 Cal.
App. 4th 1165 (decision to allow continued operation'of landfill was subject to CEQA
review because it would result in ongoing additional discharges of pollutants to
groundwater due to leachate from landfill).
As discussed by hydrogeologist Matthew Hagemann, PG, C. Hg., land filling
green waste can result in the creation of acidic leachate: Diversion of green waste to
Redwood Landfill will increase landfill volume and therefore.the potential for generation
of leachate. Redwood Landfill'has a history of leaking into nearby San Antonio Creek
and violating permit conditions by exceeding its maximum:allowable daily tonnage.
Without a liner; there.is,the potential for'leakage into"the adjacent Petaluma Marsh.
Petaluma Marsh is the largest?salt marsh in San Pablo bay and home to numerous plant
and animal life. Leakage froth the landfill torthe,marsh:may threaten ecological
receptors. This leakage,may also,result in groundwater contamination and degradation
of the water quality in the marsh:
The precipitation that falls into.a.landfill, coupled.withanydisposed liquid
waste, results in the extraction,of the water-soluble;compounds and particulate matter of
the waste, and'the subsequent formation of leachate.The creation of leachate,
sometimes deemed "garbage soup," presents a major threat to the current and future
quality of groundwater. (See, Landfills:.Impact on Groundwater types, system, source,
oxygen, human http://www.waterencyclopedia.com/La=Mi/Landfills-Impact-on-
Groundwater,html#ixzzle69iFuBx)` A release of leachate to the groundwater may
present several risksao human health and the""environment.. The release Of hazardous
and nonhazardous:components:of leachate may renderan aquifer unusalle for
drinking=water purposes and other uses. Leachatelimpacts to`groundwatermay also
present a danger to'the environment and to aquatic species if the leachate-
contamihated•groundwater plume discharges to wetlands-or streams. (Id.)
c. PRR is Failing to Meetits Waste Diversion Goals.
The,Cityhas conductedran audit of PRR$s performance under its existing
contract. The audit determined that PRR is not in compliance with 10 of its contractual
October 15, 2012
CityCouncil of the,City,of Petaluma
Item#5:C, Garbage and Rdbbish Disposal Ordinance
Page 14 of 15
obligations, anctonly in partial compliance with. 12. ;(Staff Rept. for Oct. 15,'2012 City
Council meeting, p. 3) 'Significantly, the audit by the firm R3, "Determined that PR&R
has not consistently met.the Agreement's 50% Diversion goal." (Staff Rtp. p:2)
The proposed Franchise,Agreement;once again requires PRR to meet a 50%
diversion goal However, the City now,has hard evidence to show that PRR.has failed to
meet the 50% diversion goal under-the existing contract. There.is no reason to believe
that PRR will perform any more responsibly Under the new,contract.
Under CEQA, this history of violations itselfgives rise to a fair argument of
environmental impact; Asthe Supreme Court stated, "a project proponent's prior
environmental record is properly a subject of close:consideration 'in determining the
sufficiency of the proponent's promises in an EI R " Laurel Heights Improvement Assoc.
v. Regents of the Univ. of'Calif,.47 Cal.3d 376', 420 (1988).
Since PRR has failed to meetthe 50% diversion goal under its existing contract,
it is reasonable to assume that it will continue to fail to'meetthis goal and may even
perform worse nowthatit.has secured a 15-year no-bid contract:. Failing to meet the
50% waste diversion goal, and possibly falliiig`even farther behind the diversion
requirement is clearly a significant adverse environmental impact that should be
analyzed under CEQA.
d. The Ratto,Group is in Litigation in Federal Court for Hundreds of
Violations of`the:federal Clean Water Act.
The Petaluma River Council has sued the Ratto Group in United States District
court for hundreds of violations of the Federal Clean Water Act at 3 facilities owned by
the Ratto Group, including one in Petaluma and two in Santa Rosa. Monitoring reports
show that Ratto Group companies have discharged numerous pollutants into the
Petaluma River and the Laguna de Santa Rosa,'including TSS, lead, zinc, aluminum,
copper, iron COD, oil and grease, and others.
These violations"subjectthe Ratto Group to penalties of up to $37,500 per day
per violation, as well as injunctive relief: Sending more waste to Ratto Group
companies may result in.morewaste being directed'+,to these Ratto`.Group'facilities, and
more discharges to waterways: This is a significant impact that should be;analyzed
under CEQA.
Also, as,a result of this pending litigation, PRR may notbe able to meet required
terms of the.Franchise Agreement. The proposed 15-year no-bid Franchise Agreement
contains a "No Litigation"'clause, which states:
•
October 15, 2012
City Council of the City of Petaluma
i Item #5.0, Garbage and Rubbish Disposal Ordinance
Page 15 of 15
2.4 No Litigation
To the best;of:Contractor's knowledge, after reasonable investigation, as of the
effective date ofthis Franchise Agreement, thereis.no action suitor other
proceeding at:law orin:equity orany=investigation before or by-any court,
governmental authority, commission, board, agency orinstrumentalitydecided,
pending or threatened against, Contractor.thatis likely to result in a decision,
ruling, or finding thatwould materially or adversely affect the performance by
Contractor or its obligations hereunder; adverselyaffect the validity or
enforceability of this Franchise Agreement or have a material adverse effect on
the financial,condition ofOontractor or its parent company.
The company faces:potential liability,of up to $37,500 per day per violation under
federal law, which may total:in,the millions of dollars. This litigation has not been
resolved, and may 'materially°or adversely affect the performance by the Contractor,"
and may have a material adverse effect on the financial condition of Contractor of its
parent company " This ongoing litigation should be considered in a;CEQA document.
At the very least, the City should.analyze the environmental impacts of discharges from
the Ratto Facilities into waterways.
VI. Conclusion.
We sincerely hope that the City Council will consider these comments prior to
making a decision to adopt the proposed Ordinance. We urge the.City to consider '
these impacts under CEQA before taking action,. Thank you for considering our
comments.
Sincerely,
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LOZEAUlDRURY LLP
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1 Richard Drury
Douglas Chermak
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