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Home My WebLink AboutStaff Report 4.A - Attachment 5 11/19/2012 ATTACHMENT 5 B C 2'00 FOURTH ST SU9T,E 400 P•Q. BOX 8.7,8 SANTA ROSA, CA 95402-0878 PHONE 70'7.5 7.2000 FAX< 7057-: 5'2.6 .274.6 WEB B E,YE RS.0 OSTI N . COM BEYERSA PROFESSIONAL CORPORATION CO,ST`I'N October 30, 2012 Hon. Mayor David Glass and City Councilmembers Petaluma City Council 11 English Street Petaluma, CA 94952 Re: Ordinance Approving-Franchise Agreement with Petalun a Refu§e and Recycling, Inc. BC File No.:6164-02. Dear Mayor Glass and CityCouncilrhernbers: On behalf of Petaluma Refuse and Recycling, Inc. ("PRR"), I am responding to the comments of,the PetalumatRiver Council and No;Wetlands Landfill Expansion ("Opponents") set forth in their'October;;15, 2012 letter:,The Opponents make three arguments; all-of which failiand appear-intended only to obtain a delay of the matter. With respect-to Opponents' primary argument; this Council's approval of the proposed franchise agreement does not require further CEQA review because the activity contemplated, solid waste,collection and disposal, is a municipal:service that is already being performed=and.would; under the'proposed agreement, simply continue at the same level of service and'by the same entity;; By contrast, a"project" under CEQA is an activity that involves an element of physical change in the environment measured against current baseline conditions. The proposed agreement does not alter that baseline. In order to trigger CEQA review; some credible evidence must be presented. Mere allegations or suppositions will not suffice: The single physical impact Opponents claim;might occur,the likely"-or "possible" diversion,of green waste from the Sonoma landfill to the.Redwood landfill, isentirely speculative:: It is'nof found in the actual terms of the agreement;nor m PRR's currentsolid waste collection practices, nor in any description'of the;proposed activity. Offered without explanation as to its cause, it is an impact that'.Opponents only assume'will occur. Opponents have no evidence - credible or not,- to justify making this claim. .Opponents' second;argumentthat PRIl has failed:to,meetats existing diversion goals is similarly misleading, The City's audit of;PRR's performance indicated a compliance rate consistently at 90%, a fact consistent with the City having never issued any warning for substandard'service. Ironically;.the Opponents',position is that PRR's G:\6164-02\Letters\Mayor-Citycouncit 2012-10-30.doc Hon.Mayor'David;Glass and City Councilmefribers Octobei 30;:2012 Page 2 past practices will continue, not change. This argument'is exactly the opposite of what would need to be concluded to trigger CEQA review: As for their third argument, Opponents ask the Council to equate allegations contained,in a lawsuit- one that does not even involve PRR - with'the inevitability of a judgment, the imposition of penalties in excess of that allowed by law,,and finally the inability of entities (other than PRR) to respond-financially. It is frankly an.argument premised on.bare.accusation followed by a chain of supposition: There is zero evidence, indicating that PRR would notibein compliance with the "No Litigation" warranty in the proposed agreement. Opponentsobviqusly do not want PRR to receive a new'franchise agreement, but their arguments, relying on conjecture;and assumption rather than data, do not establish any legal basis to require environmental review of the proposed ordinance. The Proposed,Ordinance,Is Exempt for CEQA Purposes CEQA establishes a three-stageprocess of environmental review. The first stage is "a preliminary.review-to determine whether an activity-is subjectto'CEQA." Only if such review'indicates that a-contemplated;activity is a "project" and''is not exempt from CEQA,does the agencyproceed!to the second stage,Which is the initial study. Depending on whether there appears, possibility of.a "significanteffectronthe environment," that study results iheither a (mitigated),negative.detlaration or.a full EIR.1 If in the course of its,preliminary review; the agency'determines that the activity does not meet the definition of "project," or that it is otherwise,exempt from CEQA, no further environmental review is necessary 2 In this matter, city staff has now completed its preliminary review, and has correctly concluded'thafthe proposed ordinance approving a new waste hauling and processing agreement is not a project for purposes of CEQA and is therefore exempt from^:further`environmental review 1 Muzzy.Ranch Co.v. Solana County;Airport,Land Use Corn., 41 Cal, 4th 372,380 (2007); CEQA Guidelines,14Cal. CodeRegs §§,15000 etseq, ("Guidelines")1:§15060. 2 Muzzy Ranch,41 Cal. 4th at!380. 3 Apt. Ass'n of Greater L.A. v: Citijof LA., 90 Cal. App. 4th 1162, 1167 (2001);Public Resources Code ("PRC") §§21080(d), 21084(a). G:\616402\Letters\Mayor-City @ouncil'2012-1 O 30.doc 1 Hon. Mayor David Glass and City'Councilmembers October 30, 2012 Page 3 As Opponents themselves acknowledge; a "project"under•CEQA is not so broadly defined as to encompass any and all actions or authorizations by a public agency. "CEQA was not intended to and cannot reasonably be construed to make a project of every activity of a public agency, regardless ofthe nature:and objective of such activity Rather CEQA requires that the contemplated activity implicate some element of physical change in.the environment- either a "dire ct physical change" or a "reasonably foreseeable indirect physical change."5 Where amexisting facility or activity is, bymeansof new official;action, extended, renewed or otherwise.continued, but without&physical change in the environment resulting from that action,;the activity does not as a "project" requiring further CEQA analysis. For example, the-renewal of a permit for a large waste treatment center was-foundtot to be a "project" because the facility and associated activities were already existing:6 Likewise°a city's.ordinance adopting a permanent code enforcement;-program,;to replace:an`interim program, was found exempt under CEQA.because, While certain:differences existed`between,the two programs, there was "nothing in the change's incbrporated?into'the permanent program to suggest its results will be markedly different from-the interim program."7 Likewise in this matter, while the action;that the;Council is considering no doubt implicates a legal;:change with respect to.relationship between PRR and the City, CEQA is concerned only with the possibility of:a physical;change in the baseline activity that is Simi Valley Recreation &Park Dist::v: Local Agency.Formation.Commission, 51 Cal. App. 3d.648, 663 (1975). 5 Guidelines § 15378(a); Santa,Monica Chamber of Commerce v. City of Santa.Monica, 101 Cal, App. 4th 786, 788 fn.2:(2002) (no;initial study required:for_legislation that created a large, permit-required parking district). 6;Bloom v: McCurk; 26 Cal. App..4th.1307,"1315&In 3 (1994) (CEQA requires"potential impacts to be exarmned inlight of the environment as it'exists when:a project is approved'')(emphasis added);'=see also Muzzy Ranch Co. v. Solano•County Airport Land Use Coln., 41 Cal. 4th 372,-389 (2007) (county may=,adopt airport land use.plan.without CEQA review because the plan simply incorporates existing-general plan and zoning law restrictions already in place); Erven v. Board of Supervisors, 53 Cal: App.3d 1004 (1975) (city's resolution approving the extension of road;maintenance is exempt under CEQA because service is being extended to existing roads). 7 Apt. Ass'n of Greater LA:, 90 Cal. App. 4th of 1174. G:\6164-02\Letters\Mayor-Ci tyCoundr 2bi 240-30.doc Hon. Mayor David Glass ant City Councilmembers October 30, 2012 • •Page 4 currently being performed.? With,respect to.that baseline; there is;no change. PRR is already collecting,disposing and.processing waste, recyclables and organic materials, arid it:will continue.to do these:same things under the new agreement. As staff has indicated, the new agreement would simply extend the current service for additional years,(along with setting forth new rights and duties.between the parties). Opponents seek to create the impression of a physical change in the environment by suggesting thatthe:new agreement will somehow result in "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:.."0 But the Opponents provide no basis for that assertion. Certainly no such diversion is discussed in the • current staff report. Nor is it;found.in, or"reasonably foreseeable" from, the terms of. the agreement itself. Opponents candidly concede as much: "The Franchise.Agreement does not specifij where compost will be directed."'O. In fact, control over the destination of Green Waste remains squarely with theCity. Given these facts, Opponentsrely instead on staffcomments made last year, before,the agreement under consideration was even negotiated, which were explicitly offered as hypotheticals:,"The Council will note these benefits are as possibilities,rather than as specific deabpoints."77 Opponents also`offer the letter of Matt Hagemann which they describe as "expert evidence [that] demonstrates that the project;may have adverse;environmental impacts,such as diverting green waste."12 In fact, Mr. Hagemann'srletter'establishes no such thing; 'Mr: Hageman simply states;as an assumption without any'ezplanation asEto how or why,that such,diversion will occur. Such opinion does'not; onstitute the type of "substantial evidence" required to make a "fair argument" that art exception applies to remove a project from a CEQA exemption. "[M]ere argument, speculation, and unsubstantiated opinion, even;expert opinion, is not substantial evidence for a'fainatgument ",i3 Yet that is all Opponents offer - their 8,Simi Valley Recreation, supra:, 51 Cal. App.'.3d 648 (1975);(LAFCO resolution is nota "project" under CEQA where the.dev,elopment contemplated by opponents is already underway and not dependent-on commission's action). 9`Opponents' letterat p. 9;. 10 Id. atp.5 (emphasis added): 1' Staff Report, dated November 7, 2011 regarding Ordinance Amending Municipal Code Chapter 8.16at p: 2. 12 Opponents'lettersat p. 9. 13 Pocket Protectors 1)..City of 124.Cal. App. 4th:903;.929 (2004). G:\6164-02\Letters\Mayor-Cit icouna13012'10-30.doc I3on. Mayor David Glass and City'Councilmernbers Octole"r`30,2012 Page 5 • unsupported assumption that it is "at least possible, if not likely" that composting operations will be diverted from one landfill to another.14' Without any identifiable factsin the ragreement or in PRR's current or future activities to support this "likelihood, Opponents' asserticinis meaningless. As one court stated,'"We`d°notbelieve an expert's;opifiion which.says nothing more than 'it is reasonable to assume' that something;'potential1y...may occur' constitutes.the substantial evidence necessary'to;invoke an±exception to a categorical exemption."15 It is "pure speculation with no evidentiary support."i6 The new agreement would undeniably alter the legal rights and duties between the City and PRR,butigiven;thaPPRR is already performing the.actual services contemplated, there will be no'physical change in the existing eriviionment. Consequently, no"further CEQA review is necessary. PRR Is in Substantial''Compliance Under the Current Agreement Referring to the recent audit!of PRR's performancesunderits current agreement, Opponents argue that PRR's performance has been sub-par, and from that"fact" argue it is reasonable to "assume" that PRR will fail to;meetthe new agreement's new waste diversion goal.17 They are wrong. In fact; the audit-report-states that PRR-has met the majority of the goals and standards required of it, and is in substantial compliance with all but a few.18 With respect to the,goal of,50% diversion, while-PRR did not meet that goal each month, on average it obtained:no lass;thaii 45%•diversion'.19 :Furthermore; its-overall rate of i4 Opponents' letter:at p. 5. 15 Apt. Ass'n of Greater L.A., supra., 90 Cal. App. 4th at 1175-76. 16 Id. at 1176,fn. 39,see also'Association for Protection of Environmental Values v: City of Ukiah, 2 Cal.-App'.4th 720, 735-36 (1991) ("project opponents Must produce some evidence, other than their unsubstantiated opinions,`that;a project will produce a particular adverse effect ).. 170pponents' letter atp. 14. 18 The few areas ofrnon=compliance do_not pertain to waste;collection or disposal activity, but the content of:annual reports and vehicle/container;identification. See, generally, Staff Report dated October.15; 2012 at 2-3. 19 See Report of R3 Consilltirig Group at p. 58 (Exhibit t;3 to Staff Report). •G:\6164-02\Letters\Mayor-GityCounci12012-10-30.doc Hon. Mayor David Glassiand City Councilmenibers October 30, 2012 Page 6 diversion exceeds 65% per Sonoma County Waste'Management;Agency's methodology. Finally, as the audit notes, the.City has previously determined that the existing level of diversion was in fact sufficient such that it never issued any warning as required of it under the current:agreernent.2° Finally, Opponents understandably fail to mention that.the few deficiencies revealed by the audit wi]1 all be addressed and corrected by the nett/agreement,which "provides the.City benefits,and financial incentives+that are-not currently available in the existing franchise agreement.?21 Frankly, Opponents should be applauding and supporting the new agreement(and its "teeth"'for enforcement):.. PRR Will Be in FullCom.liance of the "No Liti•ation"Provision In an obvious attempt:fo mislead the Council, Opponents reference esuit by one of them, Petaluma River,Council,against anumber of Ratto Groupindividualsand companies (but not PRR) ovei±alleged regulatory violations occurring at;certain facilities (but none of those covered by the proposed franchise-agreement). Based solely on having filed that litigation, Opponents now argue that PRR may-somehow be unable to perform the new agreement. Opponents' point'is not well'.'taken. Neither Petaluma4River Council„nor the same attorneys representing them in,this;matter, can honestly represent that the case is likely to result in-anything close to their allegations. In fact, the parties in that case recently attended'esettlement conference and reached a global resolution of the litigation. The settlement documents:are presently being;drafted.. Finally,it is worth noting that PRR is a completely separate,and sell-capitalized company, distinct from the corporate named;in the now-settled lawsuit. Its financial ability to perform its agreements is'inno way dependent on other Ratto Group entities. The new franchise agreement+explicitly keeps in'place the requirement that PRR "operate as [a].separateand distinct entity and:will•not be merged with'any other companies;in theRatto Group. ' Simply put, the/ability of-PRR to continue performing under the new agreementthe same services;it now provides under the current agreement,will not be impacted by any-pending or threatened litigation. PRR can comply with the No Litigation”warranty. 20 Staff Report at p.'2. 21 Id. at p. 3. 22 Staff Report at p: 5. G:\6164-02\Letters\Mayor CityCounal ith-10-90,doc Hon. Mayor David Glass and City Councilmembers October.30, 2012 Page 7 As the Council has already recognized, there are;significant financial advantages and additional rights,the City would obtain under the proposed,new agreement. None of the arguments:made by Opponents establish any legal;impediment to the City now accepting those benefits through adoption of the ordinance. •pe er Si s e- PLS:bh cc: Client • G:\6164-02\Letters\Mayor-CityCoundi2012-1030:doc