HomeMy WebLinkAboutStaff Report 4.A - Attachment 4 11/19/2012 ATTACHMENT 4
LO
i••
H � �
Denser& Watkins LLP
A/IOf/1P�.[i/Lan'
November 15, 2012
Honorable.Mayor David Glass.and City Counbilpersons
City of Petaluma
I i English Street
Petaluma, CA 94952
Re: Franchise Agreement with Petaluma Reftise'&'Recycling; Inc.
•
Dear'Mayor Glass and the City Council:
The proposed new Franchise Agreement between theCityof Petaluma and Petaluma
Refuse.& Recycling, Inc., before you on October 15, 2012, was not adopted because of
several issues that arose prior to-or at that(fleeting., One of those"-issues was whether the
City was required to conduct an assessment of the potential environmentalimpacts;of the
new Franchise Agreement prior to its adoption. It is my opinion that such an assessment
is not required, and that any CEQkchallenge to the adoptionof the proposed new
Franchise Agreement would be unsuccessful. However, in an excess of caution, some
changes have been made to the proposed new Franchise Agreement to make the City's
position-even stronger.
The California Environmental Quality Act ("CEQA") requires that, whenever a.public
entity embarks on what is.called a "Project", the potential environmental impacts of the
Project be studied and any significant such impacts be mitigated or found to be justified.
An act of:a public entityis a Project, however, only if it is likely that the act will result in
some.physical change to the environment.
Approval of the proposed new Franchise Agreement is not Project, because it has no
likely implications for causing any physical change to the environment. That is, the new
Franchise Agreement extends the term of the existing franchisee and has•numerous
financial and legal implications for the City, but no 'physical.changes are contemplated or
likely: the same trucks will pick up the various categories of solid waste and transport
them to the,same places on the same schedule. .
Attorneys representing the Petaluma,River-Council and No Wetlands Landfill Expansion
submitted a lengthy letter arguing that environmental review was required before the City
could adopt the new Franchise Agreement. Despite.the length of the letter, it contained
no specific allegation of a potential adverse physical impact resulting from the new
123 Pork Place Saito 210.Point Richmond, Cn/i/hrnich 9480/ lel (510) 237-6916 4m (510)236-9831
ns an
-7v 5'Vicerdnmlkin c.r0,1
Mayor Glass and City Council
November 15, 2012
Page 2 of 4
Franchise Agreement. The letter can be read to have argued that the physical change that
would trigger the need for CEQA review was that it was likely under the proposed new
Franchise Agreement that green waste would be transported to Redwood Landfill instead
of to Sonoma Compost, where it goes presently, and that it would be used for Alternative
Daily Cover at the Redwood Landfill instead of being composted. There is absolutely
nothing in the proposed dnew.Franchise•Agreement that.would indicate that such changes
are likely. Under both the old and new Franchise Agreements, such changes are possible,
but there is nothing in the new Franchise Agreement that makes them more likely than
they were under the old Franchise Agreement. Moreover, under either version of the
Franchise Agreement, if any change in service were to,have potential adverse physical
environmental impacts, then environmental review would be required at the time such a
change is proposed.
To make it even more clear that nothing in the proposed new Franchise Agreement
implies that a future physical change will take place, some changes were made to the
version that was before you on October 15, 2012. The definition of"Diversion
Requirement" (§1.40) was changed to that it could not be interpreted more broadly than
the same requirement under the existing franchise agreement. The existing franchise
agreement requires that the franchisee meet a diversion goal of 50%, and requires that the
franchisee comply with all laws; which would include any new law that would increase
the diversion requirement. The version of the new Franchise Agreement that you saw on
October 15 required, in addition to both of those, that the franchisee comply with the
Sonoma Countywide Integrated Waste Management Plan. That Plan does not now, in
fact, call for a diversion rate any higher,than,is required by State law, but we were
concerned that some future amendment could increase'the-requirement, causing a
physical change (e.g., some new program designed to meet the higher diversion goal that
had consequential impacts on the physical environment) that would not occur under the
existing franchise agreement. The elimination from the.proposed new Franchise
Agreement of the requirement ofcompliance with the Integrated Waste Management
Plan does not mean that the franchisee cannot be required to meet a higher diversion goal
as set forth in an amended.Countywide Integrated Waste M anagement Plan; it means
merelythat=it would not be automatic, that the City+would have to decide to require the
franchisee to do;so and that the Citymi'ght; upon imposing that requirement,have to
conduct some environmental review of whatever new program or other action was
required to comply.
The proposed new Franchise Agreement does explicitly contemplate the possibility of
changes in scope of the services to be provided by the franchisee, such as the addition of
a new program of collecting and composting commercial food waste. Several changes
were made to explicitly require that, if such a change in scope were determined to be a
Project under CEQA, appropriate CEQA review would be conducted. Those changes
are:
/25 Pan( Place, .4udc 2/0. Pero/ Richmond. Culzfarnia 91301/ lel' (310)237-69/6/us: (5/0)236-9351
1'11911.gt 0111111(11Yg1,F:111.f.coil,
. Mayor Glass and City Council
November 15,2012
Page 3 of 4
• The:version-you saw on October 15 had lists (in Exhibit 5) of Approved Disposal
Sites, Approved.Organic Materials Processing_Sites and Approved Recyclable
Materials Processing Sites. The revised version before you eliminated those lists,
leaving only the current sites.as "Approved: The point into make it absolutely
clear that the proposed Franchise Agreement does not contemplate a change in
site, an event which could, conceivably, trigger CEQA review. That is not to say
that a change in would necessarily trigger environmental review. Rather, if there
were to be a change-in site, the City would have to evaluate at that time whether
any sort of CEQA review was necessary.
• Section 4.5.6 discusses a possible new commercial food waste program,
specifically. It provides that, ifthefe is to be such-a program in the future, the
City Manager may designate to where the collected food waste will be taken for
processing. Giving this authority to the oCity Manager'expressly emphasizes that,
if such anew program were to require some sort of environmental assessment, the
City would have an opportunity to do so before enacting the program, and the
City might have the opportunity to avoid doing so by choosing a facility that has
already had its environmental impacts studied. These provisions actually add
nothing that was not:alreadyin the more general provisions regarding any change
in scope-of the services to be provided by the franchisee, but they address the
specific concerns of some in the community.
• There is a new provision (section 8.2.3.5) which expressly prohibits the use of
Organic Materials as Alternative Daily Cover.
The proposed new Franchise Agreement also has new provisions governing what
happens if there were a need for CEQA review or if there.were-a CEQA lawsuit:
• New section 4.5.8 obligates the franchisee to pay for-any required environmental
review triggered by any change in site or new program'or any other change in
sold waste service that requires CEQA review. The franchisee is permitted to
recover those costs the next time it requests,:a rate,adjustment.
• If there were to be a lawsuit challenging the new Franchise Agreement, a new
provision (section 3.3)requires the franchisee to defend the lawsuit at its cost, but
those costs.would be recoverable by the franchisee-the-next time there were to be
a rate adjustment. If that lawsuit were to be successful, then the old Franchise
Agreement would be restored, and the City would have to refund any payments it
had received from-the-franchisee in excess of the payment that would have been
made under the old Franchise Agreement.
If a CEQA lawsuit were to be successful, a,possible outcome would be to void the new
Franchise Agreement. Arguably, if the new Franchise Agreement were void, the
provisions in it that govern what would happen in the case of a successful legal challenge
123 Pink Plan. Suiir 210, Pohl/Richmond, CM/1M ;9411 lel: (510) 237-6.916/ xr (310)236-9851
noon urn.ierandm«tnu,milt
Mayor Glass and.City Council
November 15:2012
Page 4 of 4
would also be void. Thus,there is an additional agreement between the City and the
franchisee That covers only What happens in the case of a successful legal challenge,
which is that the old Franchise Agreement is resurrected and the City must refund to the
franchisee any payments made in excess:of what would have been paid under the old
Franchise Agreement.
We believe that there is little risk of an actual CEQA challenge to the proposed new
Franchise Agreement, and an even smallerrisk that such a challenge would be successful,
and we have taken steps to minimize even that small risk.
Very truly yours,
- 9
Joshua Genser
•
125 Pink Place, .Sninc 210, Poini Rncbiiiond, Giltfartin 97801 !r/: (3/0)237-69161x: (5/0)236-9831
n:;mgen.arand;znikin mnr