HomeMy WebLinkAbout7.2 AltamontLandfillAgmtCITY CLERK
FILE # 810-50
AGENDA STATEMENT
CITY COUNCIL MEETING DATE: (October 5, 1999)
SUBJECT:
Altamont Landfill Settlement Agreement
Report Prepared by: Hizabeth Silver, City Attorney
ATTACHMENTS: 1. Settlement Agreement
RECOMMENDATION: Provide direction to staff on whether to monitor and participate in
the AltamontLand~ll CLIP process.
FINANCIAL STATEMENT:
DESCRIPTION:
1996 Use Permit 'and Lawsuits Challenging It
In 1996 Alameda County approved a conditional use permit ("CUP") for Waste Management to
expand the A!tamont Landfill by an additional 80 million tons. The CUP required Waste
Management to pay an open space fee of $0.25 per ton. The City of Livermore, the City of
Pleasanton, the Sierra Club and several recycling groups filed lawsuits challenging the
adequacy of the environmental review for the CUP. The Superior Court found that the EIR did
not comply with CEQA. The County was ordered to invalidate the CUP. Waste Management
has appealed the Superior Court's decision.
Following the Superior Court's decision, the parties to the lawsuit engaged in settlement
discussions. A settlement agreement has been reached between the parties to the lawsuits; all
parties to the settlement agreement have approved the settlement agreement.
Terms of Settlement Agreement
The settlement agreement describes the conditions to be included in an amended CUP for the
Landfill which will be processed through the County. The main provisions to be included in the
amended CUP are as follows:
H/cc-formslagdastmt. doc
COPIES TO:
ITEM NO.
1. The permit will allow an additional 40 million tons of waste, rather than 80 million
tons as provided in the 1996 permit. ·
2. There will be an annual limit on the amount of waste of 1.6 million tons a year
(7,000 tons per day).
from the City
review of the
The Landfill will accept waste from Alameda and San Francisco Counties and
of San Ramon.
Waste Management will pay for a "Community Monitor to provide an independent
company's compliance with the CUP conditions.
5. Periodic compliance reviews will be conducted and Livermore and Pleasanton will
have the right to enforce the terms of the CUP.
6. There will be three fees on users of the Landfill. Waste Management will be
required to include these fees in the franchise fee rate base with the jurisdictions served by
Waste Management. The fees are as follows:
A. An OpenSpace Fee of $0.50 per ton. This $0.50 fee is in addition to the
$0.25 per ton open space fee previously imposed by the County resulting in open space fees
totaling $0.75. These fees will be placed in an "Open Space Account to be spent on acquisition
of open space (by fee or easement); 80% of the open space shall be acquired in the Livermore
area (generally east of a line defined by Doolan Canyon and Ruby Hill) and 20% shall be
acquired in the area west of that line. The agreement calls for an "Advisory Committee,
consisting of appointees by the County, Livermore, Pleasanton and the Sierra Club, to make a
list of properties to acquire. All expenditures must be approved by the Board of Supervisors, the
Sierra Club and, in addition, by Livermore for the eastern area and by Pleasanton for the
western area.
B. A Host Community Impact Fee of $0.25 per ton. The first $10,000,000 of
these fees will be used for the planning and development of a performing arts center in
Livermore. Revenues derived from this Fee in excess of $10,000,000 will be used as
determined by the Board of Supervisors, based on Livermore's recommendation, for
improvements and programs to benefit the City of Livermore and the surrounding community.
C. An Education Fee of $0.25 per ton. These fees will be used for diversion
education, job training in the field of waste diversion and recycling and mitigating the impacts of
the Landfill on the affected neighboring community.
7. Waste Management will pay the City of Livermore Traffic Impact Fee.
Process to Approve New Use Permit
The Settlement Agreement includes the conditions which Waste Management, the
County, Livermore, Pleasanton and the other litigants have agreed should be included in the
new CUP. However, Waste Management must now apply for a new CUP and the Board of
Supervisors will process the application. It is anticipated that Waste Management will apply for
new permit within amonth. The Couhty will need tO do environmental review before the use
per~t can be considered.
The City of Dublin is not the only city that will be impacted by the potential fee increases.
Any city that dumps at the Altamont Landfill will be affected. There are seven cities in Alameda
County which currently use the Altamont landfill for their solid waste disposal. They are Dublin,
Albany, Emeryville, Oakland, San Leandro, Hayward, and Piedmont. Once an application for a
new CUP is filed, all cities, including the public will be ~able to comment on the proposed
environmental document as well as the proposed conditions of the CUP. The City of Dublin may
wish to join these cities in actively participating in the CUP process.
If a new CUP is issued with the conditions described in the settlement agreement, Waste
Management will dismiss its appeal and Livermore, Pleasanton and the other plaintiffs will file a
document with the Superior Court indicating their satisfaction with the County's actions. That
will end the litigation.
if a new CUP is issued but the conditions are different from those described in the
settlement agreement, Livermore, Pleasanton and the other plaintiffs are free to raise objections
and to oppose all approvals related to the Lanefrill expansion.
Potential Increase in Refuse Rates
Waste Management has the franchise in Dublin for refuse collection and Dublin's waste
goes to the Altamont Landfill. If a new CUP is approved with the conditions included in the
settlement agreement, Waste Management will be required to seek a rate increase to pass .the
cost of the increased fees on to the ratepayers. Staff will need to analyze the existing franchise
agreement at that time to determine if Waste Management is entitled to a rate increase as a
consequence of such fees.
Staff anticipates that if the County fees of $1.00 per ton applies to the City of Dublin, an
additional $34,800 would need to be generated by Dublin's rate payers.
Staff recommends that the Council provide direction to staff on whether to monitor and
participate in the Altamont Landfill CUP process.
SETTLEMENT AGREEMENT
BETWEEN AND AMONG
THE COUNTY OF ALAMEDA, THE CITY OF LIVERMORE,
THE CITY OF PLEASANTON, SIERRA CLUB,
NORTHERN CALIFORNIA RECYCLING ASSOCIATION,
MEASURE D COMMITTEE,
ALTAMONT LANDOWNERS AGAINST RURAL MISMANAGEMENT AND
WASTE MANAGEMENT OF ALAMEDA COUNTY, INC.
THIS SETTLEMENT AGREEMENT (the "Agreement") is entered into on
September ,1999, between and among THE COUNTY OF ALAMEDA, a California county
(the "County"), THE CITY OF LIVERMORE, a municipal corporation ("Livermore"),, THE
CITY OF PLEASANTON, a municipal corporation ("Pleasanton"), SIERRA CLUB, a
California nonprofit membership corporation ("Sierra Club"), NORTHERN CALIFORNIA
RECYCLING ASSOCIATION, a California professional trade association CNCRA"),
MEASURE D COMMITTEE, an unincorporated association (the "Measure D Committee"),
ALTAMONT LANDOWNERS AGAINST RURAL MISMANAGEMENT, an unincorporated
association ("ALARM"), and WASTE MANAGEMENT OF ALAMEDA COUNTY, INC., a
California corporation CWMAC"). The County,. Livermore, Pleasanton, Sierra Club, NCRA,
the Measure D Committee, ALARM, and WMAC are sometimes each referred to as a "Party"
and collectively referred to as "Parties".
RECITALS
A. WMAC owns and operates the Altamont Land fill and Resource ReCovery Facility
CALRRF") located at 10840 Altamont Pass Road in Alameda County. Prior to December 1996,
WMAC had operated the ALRRF pursuant to ConditionaI Use Permit C-6395 (the "Existing
Permit") and other prior use permits. Currently, the ALRRF accepts franchise and non-franchise
waste, and franchise waste is accepted for disposal from Alameda County jurisdictions and from
the City and County of San Francisco.
WMAC applied to the County in 1991 for a new use permit to expand the ALRRF
by adding up to 196 million tons of disposal capacity, expanding daily tonnage from a permitted
level of 11,150 tons per day to 20,365 tons per day, and expanding the area from which solid
waste is accepted for disposal. On May 10, 1996, the County's Zoning Administrator certified a
Final Environmental Impact Report (referenced as State Clearinghouse #92083047) and
approved Conditional Use Permit C-55 12 (the "1996 Permit"), which provided for a reduced
expansion ofALRRF. including 164 million tons of disposal capacity and an overall requirement
that the volume of wastes accepted for disposal shall not exceed 11,150 tons per day as
calculated on an annual basis (260 operating days). The actions of the County's Zoning
Administrator xvere appealed to and upheld by the County's Board of Supervisors (the "Board")
on December 5, 1996 through the adoption of Resolution No. R-97~284, which Resolution
ATTACHMENT 1
imposed additional conditions on the approved expansion and reduced the expansion to 80
million tons.
C. Sierra Club, NCRA, the Measure D Committee, ALARM and Castle & Cooke
California, Inc. filed suit challenging the County's actions in Sierra Club et al. vs. Countv of
Alameda. et al., Alameda County Superior Court Case No. 777721-7 (the "Sierra Club
Lawsuit").
D. Livermore filed suit challenging the County's actions in Ciw ofLivermore vs.
County of Alameda, et at., Alameda County Superior Court Case No. 785569-0 (the "Livermore
Lawsuit").
E. Pleasanton filed suit challenging the County's actions in Citv ofPleasanton vs.
County of Alameda. et al., Alameda County Superior Court Case No. V-012791-8 (the
"Pleasanton Lawsuit").
F. The Sierra Club Lawsuit, the Livermore Lawsuit, and the Pleasanton Lawsuit
were consolidated by order of court pursuant to a stipulation of the Parties (the "Consolidated
Lawsuits"), and were heard in the Alameda County Superior Court by Judge Alex Saldamando,
sitting by designation of the Judicial Council. Following briefing by the Parties and a hearing,
on September 1, 1998, the court entered judgment on behalf of petitioners, finding certain
aspects of the Final. Environment Impact Report to be in violation of the California
Environmental Quality Act. The judgment and accompanying writ directed the County to set
aside the 1996 Permit.
G. WMAC timely filed a notice of appeal following entry of the court's judgment.
Following the filing of WMAC's notice of appeal, the Board suspended the 1996 Permit but did
not revoke the permit, pending settlement discussions between the Parties. As a result of this
action, WMAC is currently operating the ALRRF pursuant to the Existing Permit.
H. Following the filing of WMAC's notice of appeal, the Parties engaged in
extensive settlement discussions and negotiations to resolve the Consolidated Lawsuits by
providing for a smaller land fill expansion with fewer proposed imports-of waste to Alarheda
County. Castle & Cooke California, Inc. initially participated in these settlement discussions.
I. The Parties have entered into this Agreement to settle each and any of their
respective Claims under the Consolidated Lawsuits and any appeals thereof without further
litigation and to set forth their mutual understandings as to implementing a substantially reduced,
40 million-ton expansion of the ALKRF, including additional restrictions on particular categories
of waste and significantly reduced imports of waste.
J. The processing and approval of an amended use permit and the preparation of a
new CEQA document such as a revised final EIR, as provided for in this Agreement, are
intended by the Parties to fully satisfy the requirements of the judgment and writ in the
Consolidated Lawsuits, by adding restrictions to the operation of the ALRRF expansion.
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AGREEMENT
NOW, THEREFORE, in consideration of the mutual benefits of this AFeement,
and for other good and valuable consideration, the Parties agree as follows:
1. Terms of Settlement. The Parties settle each and any of their respective Claims
under the Consolidated Lawsuits and any appeals thereof without further litigation on the terms
and conditions set forth below.
I. 1. Relation Between This Am'eement and the New Use Permit. The Parties
and their counsel met to negotiate and draft this Agreement, as well as to negotiate certain
operational conditions to be included in a new use permit for the ALRRF which may be
approved by the Alameda County Board of Supervisors following appropriate heating and
compliance with the California Environmental Quality Act. In this discussion and negotiation,
the Parties agreed to certain operational commitments that WMAC would undertake in the
operation cYf the ALRRF, including the funding of the community monitor as set forth in this
Agreement, and including th'e new conditions of approval set forth in Exhibit "A" attached
hereto. All of the provisions of this Agreement, including W'MAC's agreement to comply with
the aforementioned operational conditions, are expressly conditioned upon the adoption by the
Alameda County Board of Supervisors of an amended use permit that includes operational
conditions which axe consistent in every material respect with said Exhibit "A", unless otherwise
ageed to by all the Parties.
1.2. County Fees. The County has stated its intent to impose certain host
community fees in any mended use permit for operation of the ALRRF, including fees
originally imposed by the County in its December 5, 1996 approval of Resolution No. R-97-284.
These fees are set forth within Section 18 of Exhibit "A" attached hereto. WMAC has not
consented or agreed to the imposition of these fees. Petitioners have stated that their agreement
to settle as set forth in this Agreement is conditioned upon the adoption of an amended use
permit including provisions substantially similar to Section 18 in Exhibit "A" attached hereto.
The Parties agree, however, that any such fees, if imposed by the COUnty, are imposed solely at
the County's discretion and pursuant to the County's exercise of its authority, and have not been
agreed or consented to by WMAC.
1.3. Adoption of a New Use Permit. This Agreement shall become effective
upon execution by all the Parties; provided,' however, that the performance of the obligations in
Sections 3 and 5 shall not become effective until (a) the Board has approved an Amended Use
Permit ("Amended Use Permit"), that is consistent in all material respects with this Ageement,
including without limitation Exhibit "A" hereto or changes to Exhibit "A" agreed to by all
Parties pursuant to Sections 2.1.5.1 and 2.1.5.2; and Co) the Parties have taken the actions
specified in Sections 2.2.1 and 2.2.2. A draft version of the Amended Use Permit is attached to
this Agreement as Exhibit "B." Exhibit "B" is a draft based on the terms of the 1996 Permit and
including the new conditions of approval set forth in Exhibit "A."
2. Further Actions. Each Party shall take such further actions, and execute such
further documents, as may be necessary to implement the terms of this Agreemeht. Without
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limiting the foregoing, the Parties shall follow the implementation procedure and schedule set
forth below:
2.1. Review and Adoption of an Amended Use Permit. Upon execution of
this Agreement by all Parties, the Board will instruct County staff to proceed with any necessary
environmental review to evaluate whether approval of the Amended Use Penit will result in any
new significant impacts and otherwise respond to the trial court's decision in the Consolidated
Lawsuits. The actions in this subsection do not commit the County to any particular course of
action with regard to terms in the Amended Use Permit.
2.1.1. County staff, and such environmental consultants as County staff
determines are appropriate, will complete an appropriate level of environmental review for the
Amended Use Permit under CEQA.
2.1.2. The Parties and their counsel wilI have an opportunity to review
the scope of work for the environmental document and an administrative*draft.
2.1.3. The environmental document is currently anticipated to be a
revised final EIR, or a separate volume to be included with the prior EIR volumes as a revised
final volume.
2.1.4. Following appropriate notice, the Board will schedule a hearing to
consider approval of the Amended Use Permit.
2.1.5. If, as a result of the public hearing processor for any other reason,
the County proposes to or makes any change in the draft Amended Use Permit that would cause
the New Permit to be inconsistent in any material respect with this Agreement, including without
limitation the provisions of Exhibit "A" hereto, the Parties shall meet and confer in good faith
with the goal of eliminating such inconsistency. The Parties shall take the following steps to
attempt to resolve any differences regarding changes or proposed changes in the Amended Use
Permit:
2.1.5.1. The Parties may agree to the propoied change or -
changes.
2.1.5.2. If all Parties do not agree to the proposed change or
changes, the Parties shall endeavor to develop a mutually agreeable alternative for
recommendation to the Board.
2.1.5.3. If the Board does not approve an Amended Use Permit
that is consistent in all materials respects with this Agreement, or with changes agreed to by all
Parties, the provisions of Section 2.2.3 shall apply.
2.1.6. If the Board approves the Amended Use Permit, then the Board
will also certify a revised final EIR and instruct County staff to prepare a revised return to the
writ to be filed with the trial court.
2.1.7. County Counsel will file a revised return writ stating that the
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County has entered into a settlement agreement and approved an amended use permit.
2.1.8. Following approval of the Amended Use Permit that is consistent
in all material respects with this Agreement, or with changes agreed to by all Parties. if a
permitting agency (such as The Alameda County Waste Management Authority (ACWMA), the
San Francisco Bay Area Regional Water Quality Control'Board (RWQCB), or the California
Irategrated Waste Management Board (CIWMB)) (ACWMA, RWQCB, and CIWlVlB are
hereinafter referred to individually and collectively, as a "Permitting Agency") proposes to issue,
amend or modify a permit or approval for the ALRRF in a manner that is inconsistent in any
material respect with this Agreement, the Parties shall meet and confer in good faith with the
goal of eliminating such inconsistency. The Parties shall take the following steps to at'tempt to
resolve any differences regarding the permit or approval:
2.1.8.1. The Parties may agree to the proposed permit or
approval.
2.1-.8.2. If all Parties do not a~ee to the terms and conditions of
the proposed permit or approval, the Parties shall endeavor to develop a mutually a~eeable
akernative to the inconsistent portion of the permit or approval for presentation or
recommendation to the Permitting Agency.
2.1.8.3. Failing the development by the Parties of a mutually
agreeable alternative pursuant to Section 2.1.8.2, any Party may oppose the inconsistent portion
of the permit or approval on the basis of the material inconsistency without being in violation of
Section 4.
2.1.8.4. In making any presentation or recommendation to the
Permitting Agency concerning a proposed permit or approval that is materially inconsistent with
this Ageement, the presenting Party or Parties shall urge the Permitting Agency to act in a
manner consistent with the Amended Use Permit, as it may be modified by Sections 2.1.5.1 and
2.1.5.2.
2.1.9. Following approval of the Amended Use Permit that is consistent
in all material respects with this Agreement, or with changes ageed to by all Parties, if a
Permining Agency (s .uch as ACWMA, RWQCB or CIWMB) proposes to issue, amend or
modify a permit or approval for the ALRRF in a manner that is not inconsistent in any material
respect with this Agreement but contains a provision or provisions otherwise objectionable to
any Party, the Parties shall meet and confer in good faith with the goal of eliminating such
objection. The Parties shall take the following steps to attempt to resolve any differences
regarding the permit or approval:
2.1.9.1. The Parties may agree to the proposed permit or
approval.
2.1.9.2. If all Parties do not a~ee to the terms and conditions of
the proposed permit or approval, the Parties shall endeavor to develop a mutually aFeeabte
alternative to the objectionable provision or provisions of the permit or approval for presentation
or recommendation to the Permitting Agency.
2.1.9.3. Failing the development by the Parties of a mutually
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agreeable alternative pursuant to Section 2.1.9.2, any Party may oppose the permit or approval
on the basis of the objectionable provision or provisions without being in violation of Section 4.
2.2. Disposition of Litigation. If the Board adopts an Amended Use Permit
that in all material respects is consistent with the draft New Use Permit, or with changes agreed
to by the Parties, the Parties will take the following actions set forth below:
2.2. I. W/MAC will dismiss its appeal.
2.2.2. The Parties that are petitioners in the Consolidated Lawsuits will
file a document with the trial court indicating their satisfaction with the revised return to the writ.
2.2.3. If the Board does not adopt a permit that in all material respects is
consistent with Exhibit "A" attached hereto, or with changes agreed to by all Parties, the Parties
that are petitioners in the Consolidated Lawsuits may raise objections to the County's return to
the writ and oppose in any forum all approvals related to the land fill expansion.
3. Enforcement of New Permit. The Parties acknowledge and agree that the County
shall have primary authority for interpreting and enforcing the terms of the Amended Use
Permit. In addition to the County's authority to interpret and enforce the Amended Use Permit,
each Party shall have the contractual fight to seek enforcement of the provisions of this
Agreement and Exhibit "A" hereto pursuant to Section I5 of this Agreement. In addition to the
fights available pursuant to this Agreement, Livermore, Pleasanton, Sierra Club, NCRA, the
Measure D Committee, and ALARM, and each of them, shall have the fight to ensure through
any available administrative orjudiciaI process WMAC's obligation to comply with the
Amended Use Permit.
4. No Opposition for Approvals to Expand Landfill. The Parties Shall not oppose in
any forum the Amended Use Permit and any other additional approvals necessary to expand
ALRRF and implement the Amended Use Permit in a manner consistent with the terms of this
Agreement, including, without limitation, approvals from ACWMA. This provision shall be
limited to the expansion of the ALRRF consistent with this Agreement and the Amended Use
Permit, and shall not limit the Parties from taking positions adverse to each other on any other
matters. In addition, each Party agrees and warrants that it shall not bring, commence, institute,
maintain, prosecute (or allow any person, entity or organization to bring, commence, institute,
maintain, or prosecute in the Party's name) any other action at law or equity, or any legal or
administrative proceeding whatsoever, challenging the approval of the ALRRF expansion as
authorized by the Amended Use Permit and this Agreement, provided that this provision shall
not apply to any action to enforce the terms of this Agreement. This Agreement may be plead as
a full and complete defense to, and may be used as a basis for injunctive relief against, any
action, suit or other proceeding which may be instituted, prosecuted or attempted in breach of
this Agreement.
5. Communitv Monitor. Pursuant to the provisions set forth below, WMAC shall
fund a community monitor (the "Community Monitor"), which will be a technical expert or
experts meeting the minimum qualifications set forth below, to monitor the ALRRF's
compliance with environmental laws and regulations as defined below, and to advise the public
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and the Cities of Livemore and Pleasanton about environmental and technical issues relating to
the operation of the ALRRF. The Community Monitor shall be an independent contractor
retained and supervised by the Community Monitor Committee, and WMAC shall not under an,,'
circumstances have any supervisory control over the Community Monitor.
5.1. Community Monitor Committee.
5.1.1. The Community Monitor Committee shall consist of the following
four (4) voting members: one (1) member appointed by the Livermore City Council; one (1)
member appointed by the Pleasanton City Council; one (1) member appointed by NCRA; and
one (1) member appointed by Sierra Club. The Committee shall take action by a vote' of at least
three of the voting members. The County and the Cities of Livermore and Pleasanton may, but
are not required to, have assigned staff attend and participate in the Community Monitor
Committee as non-voting members. One representative each designated by WMAC and by
ALARM may, but are not required to, attend and participate in the Community Monitor
Committee as a non-voting members. The Committee shall notify WMAC of any changes in the
individual members sitting on the Committee.
5.1.2. The Community Monitor Committee shall be responsible for (a)
interviewing, retaining, supervising the work and overseeing the payment of, and terminating the
contract of the Community Monitor, as necessary; (b) reviewing all reports and written
information prepared by the Community Monitor, including, but not limited to, the report
prepared pursuant to subsection 5.7.5 below, and information disseminated to the public by the
Community Monitor; and (c) participating in the Five Year Compliance Reviews (as defined in
Section 6 of Exhibit "A" attachpd hereto) and the Mid-Capacity Compliance Review (as defined
in Exhibit "A" attached hereto), including, but not limited to, conferring with the Community
Monitor in connection with the Community Monitor' s review of the materials submitted by
WMAC and the County and submitting comments to the County Planning Commission or the
County Board of Supervisors, as appropriate.
5.2. Selection. The Community Monitor shall be selected by majority vote of
the voting members of the Community Monitor Committee, pursuant to the following
procedures:
5.2.1. The Community Monitor Committee shall release a request for
proposal (the "RFP") incorporating the scope of work set forth in subsection 5.7 below, and
setting forth minimum qualifications for applicants as set forth in subsection 5.4 below. Prior to
releasing the RFP, the Community Monitor Committee shall give WMAC five (5) working days
to review and comment on the contents of the RFP.
5.2.2. The RFP shall specify a deadline for submission of proposals, that
proposals must include the qualifications of the party or parties making the proposal, a base bid
for the scope of work and associated expenses, as well as one or more hourly rates that would
apply to any additional compensation which may be authorized pursuant to subsection 5.3.3,
below. Thb Community Monitor Committee may request additional information from applicants,
provided that each such request shall be made only in ~vriting and shall be made to all applicants
and all applicants shall have the same amount of time to submit the requested information.
09/14/1999
5.2.3. After the deadline for submitting proposals has expired, and any
additional information requested by the Community Monitor Committee has been received, the
Community Monitor Committee shall provide WMAC with copies of all submitted proposals.
Within 15 days after receiving all submitted proposals, WMAC shall have the fight to submit to
the Community Monitor Committee objections to any proposal based upon an objective showing
that (i) the applicant does not individually or collectively possess the minimum qualifications
required set forth in subsection 5.4 below, and/or (ii) any proposal exceeds the scope of work set
forth in subsection 5.7 below.
5.2.4. If three or fewer qualifying bids are submitted, then the
Community Monitor Committee must accept either the lowest bid for the Community Monitor
work, or any bid within a certain range of the lowest bid, as set forth in subsection 5.2.5, below.
If more than three qualifying bids are submitted, then the Community Monitor Committee must
accept one of the two lowest bids for the Community Monitor work or any bid within a range of
_the lowest bid, as set forth in subsection 5.2.5, below. If the Community Monitor Committee
reasonably determines that a higher bidder would provide better community monitoring service,
the Community Monitor Committee may ask WMAC to waive the requirements of this
subsection. The Community Monitor Committee shall consult with WMAC prior to accepting
any bid for the Community Monitor work.
5.2.5. Notwithstanding the provisions of subsection 5.2.4, the
Community MOnitor Committee may accept any qualifying bid which does not exceed the
lowest bid by the applicable mounts set forth below:
5.2.5.1. If the lowest bid is fifty thousand dollars ($50,000) per
year or less, then twenty-five percent (25%) of the lowest bid;
5.2.5.2. If the lowest bid is greater than fifty thousand dollars
($50,000) per year and equal to or less that seventy-five thousand dollars ($75,000) per year,
then twenty percent (20%) of the lowest bid, or $12,500, whichever is higher;
5.2.5.3. If the lowest bid is greater that seventy-five thousand
dollars ($75,000) per year, then ten percent (10%) of the lowest bid, or $15,000, whichever is
higher.
5.3. Compensation.
5.3.1. The Community Monitor shall provide detailed invoices for work
actually performed, as described on an hourly basis, and for associated expenses, and such
invoices shall be submitted to the Community Monitor Committee and WMAC on a monthly
basis. WMAC shall pay such invoices to the Community Monitor Committee within 45 days of
receipt by WMAC. Fees and expenses incurred by the Community Monitor which are
inconsistent with both the Community Monitor's role as set forth in Section 5 and with the
specific scope of work set forth in the Community Monitor's contract, shall not be reimbursed to
the Community Monitor by WMAC, except as provided in subsection 5.3.3 below. The
Community Monitor shall not charge any fee for any compilation of its invoices, and
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disbursements shall be billed on an actual cost basis.
5.3.2. The Community Monitor Committee shall provide detailed
invoices for reasonable overhead business expenses, including such items as copying, postage
and delivery services, telephone charges, and publication of notices, and such invoices shall be
submitted to WMAC. W'MAC shall pay such invoices to the Community Monitor Committee
within 45 days of receipt by WMAC.
5.3.3. The total compensation to be paid by WMAC for the Community
Monitor's work in any year shall be limited to the mount of the accepted bid from the
Community Monitor, provided that this mount may be exceeded by up to twenty percent (20%)
if the Community Monitor and the Community Monitor Committee reasonably determine that
additional work is necessary for the Community Monitor to gather information regarding,
inspect, report upon, and monitor any situation in which the Community Monitor has reasonable
cause to believe, based on credible evidence, the ALRRF is in substantial noncompliance with
any environmental law or regulation or any conditior~ of a penit or approv-al for operation of the
ALRRF. The Community Monitor Committee shall consult with WMAC prior to authorizing
any additional ycork to be funded by WMAC.
5.3.4. The Community Monitor Committee may authorize additional
work beyond the twenty percent (20%) cap set forth in subsection 5.3.3 above, provided that
such additional work is within the scope of work set forth in section 5.7 below, or is additional
work as set forth in subsection 5.3.3, and further provided that WMAC shall not be directly or
indirectly responsible for payment for work beyond the twenty percent (20%) cap provided in
subsection 5.3.3.
5.3.5. WMAC shall not be required to pay for any legal services or
litigation services as part of compensation for the Community Monitor.
5.4. Minimum Ouali~cations. The Community Monitor may be any
individual, firm or organization, or any combination thereof, which meets the minimum
qualifications set forth in this subsection. The Community Monitor shall serve as an independent
contractor to the Community Monitor Committee, and the Community MOnitor shall meet the
following minimum qualifications:
5.4.1. Expertise in monitoring environmental impacts, including air
emissions and discharges to poundwater;
5.4.2. Experience in monitoring compliance with mitigation measures
pursuant to the California Environmental Quality Act or other California laws or regulations
requiring environmental mitigation;
5.4.3. Familiarity with the operations of solid waste !andfills, and with
regulatory requirements of the California Integrated Waste Management Board, the Regional
Water Quality Control Board, and the Bay Area Air Quality Management District relating to the
operation of solid waste landfills; and
09/14/1999
5.4.4. The ability to communicate environmental information in a clear
and comprehensible manner.
5.5. -Parties Which Mav be Disqualified bv the Committee. The Community
Monitor Committee shall have the right not to consider for selection as the Community Monitor
any party which is, or includes as part of a team, (i) a past or current employee of WMAC, its
parent company (Waste Management, Inc.), or affiliates of WMAC or its parent, or its pre-
merger predecessor, USA Waste Services, Inc. or affiliates thereof; or (ii) a contractor or
consultant to WMAC, its parent company, affiliates of WMAC or its parent or USA Waste
Services or affiliates thereof. The Community Monitor Committee may also elect to specify in
its contract or a~eement with the selected Community Monitor that the Community Monitor
must avoid such employment, contracting or consulting arrangements with WMAC, its parent
company, or affiliates of WMAC or its parent.
5.6. Parties Which May be Disqualified bv WMAC. WtViAC shall have the
fight, by giving writt_.en notice within the 15 days specified in subsection 5.2.3, above, to
disqualify for consideration as the Community Monitor any party which is, or includes as part of
a team, a party that is adverse in pending litigation to WMAC, its parents, or affiliates of WMAC
or its parent..
5.7. Scope of Work. The duties and scope of work of the Community Monitor
shall include and be limited to the following:
5.7.1. reviewing all materials submitted to the County in connection with
the Five Year Compliance Reviews or the Mid-Capacity Compliance Review to be conducted
pursuant to this Agreement;
5.7.2. reviewing all other reports, documents and data which WMAC is
required to submit to the County or any other regulatory agency pursuant to this Agreement or
the terms of WMAC's permits and approvals for the ALRRF;
5.7.3. reviewing all other reports, documents and data regarding the
ALRRfF's compliance with applicable environmental laws and regulations;
5.7.4. advising the public, through the Community Monitor Committee,
and the Cities of Livermore and Pleasanton, via oral presentations or written reports, on technical
and environmental issues pertinent to the ALRRF;
5.7.5. issuing a written report each year summarizing the ALRRF's
compliance record for the period since the last such report with respect to all applicable
environmental laws and regulations, which report shall be presented to the Community Monitor
Committee and submitted to Alameda County, the City of Livermore, and the City of Pleasanton.
5.7.6. if and only if the Community Monitor reasonably suspects, based
on credible evidence, that the ALRRF is in substantial noncompliance ~vith environmental laws
and regulations, or with this Agreement, or with the conditions of any permit or approval for the
operation of the ALRRF, and if the suspected noncompliance involves a substantial
10
09/14/1999
environmemal or health risk, the Community Monitor may notify WMAC and the County Local
Enforcement Agency or its designee (the "LEA") of such suspected substantial noncompliance
and, immediately after notifying WMAC and the LEA, the Community Monitor may notify any
appropriate regulatory agency with jurisdiction over the suspected substantial noncompliance;
5.7.7. conducting inspections and monitoring and accessing the ALRRF
site as authorized by subsection 5.8, below; and
5.7.8. conducting truck counts as authorized by subsection 5.9, below.
5.7.9. reviewing all testing data and source information submitted to
WMAC, as provided in section 2.1 of Exhibit A attached hereto with regard to acceptance of soil
at ALRRF, and section 2.2 of Exhibit A attached hereto with regard to any proposed acceptance
at the ALRRF for any use or disposal ofmateriaI that (a) requires a variance from the then
existing permit conditions at ALRRF in order to be accepted there ("variance waste"), or (b) is a
hazardous waste that has been declassified or is proposed to be declassified for purposes of
acceptance at ALRRF Cdeclassified waste"). The Community Monitor may review the propriety
of such receipt of material under all applicable laws and regulations and may notify or consult
with any appropriate regulatory agency regarding such action.
5.8. Periodic Inspections. The Community Monitor may inspect the ALRRF
up to twelve (12)times per calendar year. Such inspections shall occur upon simultaneous
telephonic or personal notice to WMAC. WMAC shall provide the Community Monitor the
appropriate contact(s) and telephone number(s) for notice pursuant to this subsection. WMAC
shall have the right to have a representative accompany the Community Monitor on any such
inspection. If the Community Monitor is a firm or organization, the Community Monitor shall
provide to WMAC in advance of any inspections the identity of the specific person(s) who will
carry out its inspections under this subsection.
5.8. I. In addition to conducting same day inspections as provided above,
the Community Monitor may accompany any authorized government or regulatory inspectors on
their visits to and inspections of the facility, provided that the government or regutatory inspector
consents to such participation by the Community Monitor, the government or.regulatory
inspector retains control of the inspection, and the Community Monitor does not interfere with
the work of the government or regulatory inspector. The LEA shall provide reasonable notice to
the Community Monitor of its regular and other inspections of ALRRF and allow the
Community Monitor to accompany its inspector(s) on any such inspections. In the case of
impromptu inspections, telephonic notice to the Community Monitor, including the leaving of a
telephone message, shall constitute reasonable notice.
5.8.2. The Community Monitor may notice up to six (6) additional same
day inspections per calendar year if, in the conduct of the Community Monitor' s duties, the
Community Monitor reasonably determines that the ALRRF is in substantial noncompliance
~vith any environmental la~v or regulation, the substantial noncompliance is reported to the
applicable regulatory agency, and the regulatory agency determines that there is a substantial
noncompliance problem. Such additional inspections may qualify for additional compensation to
the Community Monitor within the twenty percent (20%) limit set forth in subseCtion 5.3.3,
11
09/14/1999
above.
5.8.3. During any partial calendar year when this A~eement is in effect,
the number of inspections authorized by the section shall be pro-rated. Any fraction of V2 or
more shall be rounded up, and any fraction less than ½ shall be rounded down.
5.9. Truck Counts. The Community Monitor may conduct periodic
independent counts of truck trips arriving at the ALRRF, with such monitoring to be done at or
outside the entrance gate to the ALRRF. WMAC shall have the right to monitor such truck
counts and to conduct a duplicate truck count. During the first year after a Community Monitor
is appointed, up to 12 single day counts of truck trips may be conducted by the Community
Monitor. During subsequent years, up to 6 single day counts oftTuck trips may be conducted by
the Community Monitor, unless there is a significant discrepancy between the Community
Monitor's truck counts and the truck counts reported by WMAC, and that discrepancy cannot be
resolved through good faith evaluation and discussion of the truck counts. In the event of such
aft unresolved discrepancy, up to six (6) additional truck counts may be conducted by the
Community Monit6r. Such additional counts may qualify for additional compensation to the
Community Monitor within the twenty percent (20 %) limit set forth in subsection 5.3.3, above.
5.10. Oversight. The Community Monitor shall report to the Community
Monitor Committee, and the Community Monitor Committee or its designee shall provide
reasonable oversight and supervision of the Community Monitor's work and expenses.
5.11. Open Meetin__.s and Notice. Meetings of the Community Monitor
Committee shall be open to the public, and the Community Monitor Committee shall give 5 days
written notice in advance of all meetings, 'including any closed meetings, to all Parties to this
Ageement. These notice and public meeting requirements shall not apply to meetings of the
Community Monitor Committee to (a) review proposals from bidders for the position of
Community Monitor; (b) to interview any such bidders; (c) to discuss and select the Community
Monitor from among the qualified bidders; or (d) to discuss personnel matters or performance
evaluations relating to the Community Monitor or any of its team members.
5.12. Advahce Notice Prior to Accepting Certain Material. WMAC shall notify
the Community Monitor, and give the Community Monitor all testing data and source
information submitted as provided in section 2 of Exhibit A attached hereto, prior to acceptance
at ALRRF for any use or disposal of variance waste or declassified waste. Such notice, data and
information shall be provided to the Community Monitor by WMAC within 48 hours after
receipt by WMAC, and in any event no fewer than ten (10) days prior to any acceptance at
ALRRF of such material. The requirements of this subsection 5.12 apply only when WMAC has
determined to accept such materials, and do not apply to materials that WMAC declines to
accept for use or disposal at ALRRF.
6. Additional Rights and Obligations-
6.1. Contractu~il Rights. The settlement agreement includes binding contract
rights and provisions. Accordingly, the Parties acknowledge and a~ee, to the maximum extent
consistent with applicable law, that this Agreement provides a contractual right to proceed with
12
09/14/1999
the land fill expansion under the terms and conditions set forth in the Amended Use Permit,
subject to the receipt by WMAC of all permits and other approvals from regulatory agencies
required for operation of the expansion. WMC's right to proceed is further subject to the
provisions of this Ageement and the contractual rights of the Parties to enforce this Ageement.
6.2. National Flow Control Legislation. In the event that the United States
Congress enacts legislation which would permit the County to restrict the flow of solid waste
into the County from other jurisdictions, the County shall have the authority to restrict the import
of such solid waste to ALRRF pursuant to the terms and conditions set forth in such national
legislation, notwithstanding any provisions to the contrary contained in this Ageement.
6.3. Public Hearing Prior to Accepting Certain Material. Prior to acceptance at
ALRRF of variance waste or aleclassified waste, a public heating shall be noticed and held by the
Alameda County Board of Supervisors to receive public comment, unless the Department of
Toxic Substances Control 0TSC) holds a public heating in Alameda County prior to DTSC's '
action on a request for a variance or declassification for waste proposed for use or disposal at
ALRR.F. WMAC and the County shall each use their best efforts to obtain and provide to the
parties notification of proposals pending before DTSC to dispose at ALRRF materials subject to
the requirements of subsection 2.2 of Exhibit "A" attached hereto. If Health and Safety Code
section 25141.6 set forth in Senate Bill 636 (1999) becomes operative, the County shall request
public notice, pursuant to proposed subsection 25141.6(d), of any proposal to dispose at ALRRF
materials subject to the requirements of subsection 2.2 of Exhibit "A" attached hereto. Upon
receipt of such notice, and no less than five (5) days prior to the expiration of the notice period
required in proposed section 25141.6(d), the Board of Supervisors shall hold a public hearing to
receive public cogent on the proposal. In the event 'that Senate Bill 636 is repealed or fails to
take effect, and until Senate Bill 636 takes effect, the County shall use its best efforts to hold a
public hearing prior to approval by DTSC of a proposed variance for or proposed declassification
of any such materials subject to the requirements of subsection 2.2 of Exhibit "A" attached
hereto for purposes of disposal at ALRRF. To facilitate scheduling hearings as set forth above, if
Health and Safety Code section 25141.6 is enacted into law, then the County shall submit to the
DTSC a written request to receive copies of all public notices pursuant to that section.
7. Imposition. Collection and Allocation of Fees.
7.1. At the earliest opportunity to amend the permits of any other landfills in
Alameda County, the County shall present for review by the Board of Supervisors proposed
permit conditions imposing fees comparable to those imposed on the ALRRF pursuant to the
Amended Use Permit on any such landfills in Alameda County. Petitioners agee to support
imposition of such fees on all other landfills in Alameda County.
7.2. The fees imposed by the Amended Use Permit shall be held initially by
the County in separate, designated accounts (the "Accounts") as specified in Subsection 7.3,
below. Upon approval of expenditures, as provided for in Subsection 7.4, below, the County
shall transfer the designated funds to the entity identified for expenditure of the funds. The
County shall provide an annual written report to the Livermore and Pleasanton City Councils and
the Board of Supervisors on the previous year's expenditures from the Accounts.
13
4/1999
7.3.
following manner:
The fees accrued by the County shall be allocated to the Accounts in the
7.3.1. All of the fees collected under the Amended Use Permit pursuant
to the provision set forth at Condition No. 18.1 of Exhibit A, and one-half (1/2) of the fees
collected under the Amended Use Permit pursuant to the provision set forth at Condition No.
18.2 of Exhibit A, shall be allocated to the Open Space Account for expenditure on open space
acquisition (in fee or permanent easement) in the following areas: (1) eighty percent (80%) in the
eastern area, as depicted in Exhibit C; and (20) twenty percent (20%) in the western area, as
depicted in Exhibit C.
7.3.2. One-fourth (1/4) of the fees collected under the Amended Use
Permit pursuant to the provision set forth at Condition No. 18.2 of Exhibit A shall be allocated to
theHost Community Impact Account for expenditure on improvements and programs to benefit
,City of Livermore residents and the surrounding community.
7.3.3. One-fourth (1/4) of the fees Collected under the Amended Use
Permit pursuant to the provision set forth at Condition No. 18.2 of Exhibit A shall be allocated to
the Education Account for expenditure on recycling and diversion education programs and job
training in the field of waste diversion and recycling. Two cents ($0.02) of every twenty-five
cents ($0.25) that is deposited into the Education Account, up to a maximum of one hundred
thousand dollars ($100,000), shall be earmarked by the Advisory Board described in Subsection
7.6.1 to mitigate the impacts of the ALRRF operations on the affected neighboring community.
To the extent that expenditures from this fund are made, it shall be replenished up to the
maximum of one hundred thousand dollars ($100,000) by the earmarking of two cents ($0.02) of
every twenty-five cents ($0.25) deposed into the Education Account. Any money remaining in
the earmarked fund at the end of the ALRRF Expansion shall be released and may be expended
for the general purposes of the Education Account.
7.4. Expenditures from the Open Space Account shall be made as follows:
7.4.1. The County shall convene an Advisory Committee consisting of
the following members: one (1) member appdinted by the Board of Supervisors, one (1) member
appointed by the Livermore City Council, one (1) member appointed by the Pleasanton City
Council, and one (1) member appointed by the Sierra Club. All members shall be residents of
Alameda County. The Advisory Committee may request the assistance of representatives of
park districts, land trusts and interested constituencies such as the ranching community.
7.4.2. The Committee shall prepare two (2) priority lists of properties for
acquisition in fee or pennanent easement, one for each of the geographic areas of concern as
defined in subsection 7.3.1. The priority lists shall give first priority to acquisition of property
having significant value for preservation of native biological diversity and/or wildlife habitat,
and second priority to acquisition of property having significant value for visual character and/or
non-motorized recreation. The Committee shall not recommend and no money from the Open
Space Account shall be spent (i) upon the acquisition of land through fee or easement where such
acquisition otherwise has been required as a condition of project approval or where such
acquisition would otherwise directly facilitate development of open space or (if) upon
14
09/14/1999
acquisitions within the viticulture area of the South Livermore Valley Area Plan. The
Committee shall also prepare proposed allocations of funds in the Open Space Account for
expenditure during the upcoming year from each of the proposed priority lists. Each
recommended expenditure for the purchase of a permanent easement to protect open space shall
include whatever level of funding the Committee finds necessary to the effective long-term
monitoring and enforcement of that easement. The Committee may develop proposed
allocations of funds for multiple years.
7.4.3. For each proposed acquisition, the Committee shall desigr~ate the
entity (city, county, land trust, park district, conservancy or other appropriate entity) that shall be
responsible for carrying out that acquisition.
7.4.4. The Committee's recommended priority lists and allocations of
funds shall be submitted to the County and to the appropriate City, as identified below, by
March 1 of each year. The County and the appropriate City each shall hold public discussions of
the recommendations at Board of Supervisors and City Council meetings, respectively. The
Cities and County shall determine only whether the recommendations are consistent with the
criteria set forth in Subsection 7.4.2. Affirmative action on the recommendations shall be
required by the Board of Supervisors and the Livermore City Council for expenditures in the
eastern area, as depicted in Exhibit C, and by the Board of Supervisors and the Pleasanton City
Council for expenditures in the western area, as depicted in Exhibit C. action on the
recommendations shall be taken by both bodies within sixty (60) days of the Committee's
submission of its recommendations to the County and appropriate City. In the absence of
concurrence, the recommendations shall be referred back to the Committee for reconsideration.
7.4.5. The Committee shall annually update the recommended priority
lists and the proposed expenditures of funds from the Open Space Account for the upcoming
year or years.
7.4.6. The Committee shall take action by majority vote of the appointed
members as follows:
7.4.6.1. For the priority list and allocation of funds proposed for
the eastern area, as depicted in Exhibit C, the vote shall be taken among the County., the City of
Livermore, and the Sierra Club voting members.
7.4.6.2. For the priority list and allocation of funds proposed for
the western area, as depicted in Exhibit C, the vote shall be taken among the County, the City of
Pleasanton, and the Sierra Club voting members.
7.4.7. By approval of a majority of the members of the Advisory
Committee, and concurrence by the County and Cities, up to five percent (5%) of the funds
received in the Open Space Account in any given year may be expended for the services of
independent consultants to aid the Advisory Committee in carrying out its duties to identify open
space areas in need of protection and to make plans for their acquisition, and up to t~vo percent
(2%) of the funds received in the Open Space Account in any given year may be expended for
costs incurred in the financial management of the account.
15
09/14/1999
7.5.
Expenditures from the Host Community Impact Account shall be made as
follows:
7.5.1. The initial $10 million allocated from the Host Community Impact
Account shall be for the planning and development of a performing -arts center in Livermore or,
if development of a performing arts center does not proceed, other community facilities in the
Livermore Valley Center project.
7.5.2. The Livermore City Council shall recommend to the Board of
Supervisors, for the Board's concurrence, the programs and projects to be funded from the Host
Community Impact Account. The City of Pleasanton and others may make recommendations to
Livermore and to the County for appropriate programs and projects .for funding. The Livermore
City Council and Board of Supervisors shall permit public discussion and input during their
respective meetings regarding expenditures from the Host Community Impact Account.
7.6. Expenditures from the Education Account shall be made as follows:
7.6.1. An Advisory Board shall be formed consisting of five (5) voting
members: one (1) science, environmental education or vocational education teacher from the
Livermore public schools, chosen by the Livermore City Council, one (1) science, environmental
education or vocational education teacher from the Pleasanton public schools, chosen by the
Pleasanton City Council; the County Recycling Board's environmental educator; and two (2)
representatives chosen by NCRA. ALARM and the Regional Occupation Program shall be
entitled to one (1) non-voting seat each on the Advisory Board.
7.6.2. The Advisory Board shall prepare a proposed allocation of funds in
the Education Account, which shall be updated annually, for expenditure during the upcoming
year on diversion education pro~ams, job training in the field of waste diversion and recycling,
and mitigating the impacts of the ALRRF operations on the affected neighboring community.
By approval of a majority of the members of the Advisory Board, and concurrence by the
County and Cities, up to two percent (2%) of the funds received in the Education Account in any
given year may be expended for costs incurred-in the financial mani~gement of the account.
7.6.3. The Advisory Board's proposal .shall be submitted by April 1 of
each year to the County, the Cities and the board of NCRA, each of which shall hold public
discussions of the recommendations at Board of Supervisors, City Council and NCRA board
meetings, respectively. The Cities, County and NCRA board shall act on the recommendations
within sixty (60) days and shall determine only whether the recommendations are consistent with
the purposes set forth in Subsection 7.6.2. Concurrence by all four governing bodies shall be
necessary to fund the Advisory Board's proposed allocation. In the absence of concurrence, the
proposal shall be referred back to the Advisory Board for reconsideration.
7.7. Notwithstanding the provisions of Section 14 of this Agreement, the
provisions of Subsections 7.3 through 7.5 inclusive may be amended by the unanimous written
agreement of all Parties other than WMAC.
16.
09/14/1999
8. Release and Waiver. Each Party releases and discharges each other Party and
their respective successors, assigns, officers, directors, members, agents, employees and
attorneys from any and all claims, liabilities, obligations, costs, expenses, actions and causes of
action, whether known or gown, suspected or unsuspected, which each Parry now has or may
hold, based upon any fact, act or omission occurring prior to the date of this Ageement related
to the Consolidated Lawsuits, or in any way arising out of or in connection with: (a) the
County's approval of the 1996 Permit; (b) the environmental review performed in connection
with the 1996 Permit; (c) subsequent acts and omissions of the County with respect to such
approvals occurring prior to the date of this Agreement; and (d) the commencement, prosecution
or defense of the Consolidated Lawsuits. It is specifically agreed by the Parties that they are
expressly waiving all rights under section 1542 of the California Civil Code which provides:
"A general release does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the release, which if known
by him must have materially affected his settlement with the debtor."
This release shall not be construed*to limit the right of an~ Party to assert any claim or cause of
action arising in connection with any event, fact, circumstance, or violation of law occurring
after the date of this Agreement. This release also shall not be construed to limit the rights of
any Party, or their members, representatives or agents, from taking positions adverse to each
other on matters other than the expansion of the ALRRF consistent with this Ageement and the
New Use Permit, as provided for in Section 4 of this Agreement. This release also shall not be
construed to limit the rights of the Parties to submit and negotiate claims for attorneys' fees and
costs arising out of the Consolidated Lawsuits, or to enforce the provisions of this A~eement.
9. Acknowled~ements and Warranties. The Parties acknowledge that they have
been represented by independent legal counsel throughout the negotiations that culminated in the
execution of this Ag-reement. The Parties further acknowledge that they have been fully advised
by their attorneys with respect to their fights and obligations under this A~eement and
understand those rights and obligations. The Parties also ac'k. nowledge that, prior to the
execution of this Agreement, they and their legal counsel have had an adequate opportunity to
make whatever investigation or inquiries we. re deemed necessary or desirable with respect to the
subject matter of this Agreement. Therefore, the language of this Agreement shall not be
presumptively consumed either in favor of or against any Party.
The Parties acknowledge that the consideration recited herein is the sole and only
consideration for this Agreement and that they have voluntarily entered into this Agreement and
that no representations, promises or inducements have been made other than those, which appear
in this Agreement.
The Parties understand and agree that, if the facts to which this Ageement is
executed are found hereinafter to be other than, or different from, the facts now believed by them
to be true, the Parties expressly accept and agree that this A~eement shall be and remain
effective notwithstanding such differences.
10. Notices. Except as specifically provided to the contrary elsewhere in this
Ageement, any notice or communication required hereunder between any Parties must be in
17
09/14/1999
writing, and shall be delivered personally, by telefacsimile (with original forwarded by U.S.
Mail) or by Federal Express or other similar courier promising overnight delivery. If personally
delivered, a notice shall be deemed to have been given and received when delivered to the Party
to whom it is addressed. If given by facsimile transmission, a notice or a communication shall
be deemed to have been given and received upon an actual physical receipt of the entire
document by the receiving Party's facsimile machine. Notices transmitted after 5:00 p.m. on a
normal business day, or on a Saturday, Sunday or holiday, shall be deemed to have been given or
received on the next business day. If notice is given by Federal Express or similar courier, a
notice of communication shall be deemed to have been given and received on the date delivered
as shown on the receipt issued by the courier, provided that any notice delivered on Saturday,
Sunday or holiday shall be deemed to have been given or received on the next business day.
Such notices or communication shall be given to the Parties at their addresses set forth below:
If to the County, to:
Adolph Martinelli, Director
Alameda County Community Development Agency
224 W. Winton Avenue,'Room 110
Hayward, California 94544
Facsimile: (510) 670-6374
Copy to:
Richard E. Winnie, Alameda County Counsel
Administration Building
1221 Oak Street, Room 463
Oakland, California 94612
Facsimile: (510) 272-5020
If to the City of
Livemore, to:
Thomas R. Curry, City Attorney
1052 South Livermore Avenue
Livermore, California 94550-4813
Facsimile: (925) 373-5125
Copy to:
Mark I. Weinberger
Shute, Mihaly & Weinberger LLP
396 Hayes Street
San Francisco, California 94102
Facsimile: (415) 552-5816
If to the City of
Pleasanton, to:
Michael Roush, City Attorney
City of Pleasanton
123 Main Street
Pleasanton, California 94566
Facsimile: (925) 484-8234
18
09/14/1999
If to the Sierra Club,
Northern California
Recycling, Association,
Measure D Committee,
and/or Altamont Land
Owners Against Rural
Mismanagement, to:
Trent W. Orr
96 Manchester Street
San Francisco, California 94110-5215
Facsimile: (415) 643-6661
If to Waste Management
of Alameda County,
Inc., to:
Rich Thompson, Dave McDonald, Paul Yamamoto
Waste Management of Alameda County, Inc.
172 98tb Avenue
Oakland, California 94603
Facsimile: (510) 613-2839
Copy to:
Doug Sobey, Senior Vice-President
Wastd Management--Western Area
155 North Redwood Drive, Suite 250
San Rafael, California 94903
Facsimile: (415) 479-3737
Copy to:
Michael H. Zischke
Landels Ripley & Diamond, LLP
350 The Embarcadero, 6th Floor
San Francisco, California 94105-1250
Facsimile: (415) 512-8750
Any Party hereto may at any time, by giving ten (10) days ~vritien advance notice to the other
Parties hereto, designate a new address and/or facsimile number for notices and communications
pursuant to this Agreement.
11. Applicable Law. This Agreement shall be construed and enforced pursuant to the
laws of the State of California.
12. Attorneys' Fees and Costs.
12. I. In any action or proceeding at law or in equity between any.of the Parties
to enforce or interpret any provision of this Agreement, each Party shall bear all of its own costs,
including attorneys and experts fees.
12.2. No~'ithstanding subsection 12.1 above, payment of petitioners' attomeys
fees and costs in connection with the 1996 Permit, Sierra Club Lawsuit, Livermore Lawsuit,
Pleasanton Lawsuit, Consolidated Lawsuits, court of appeal proceedings (the "Litigation
Activities"), settlement activities related to the foregoing, and approvals related to landfill
expansion, including without limitation the Amended Use Permit and ColWMP amendments
(collectively, the "Settlement Activities"), shall be governed by section 13 of this Agreement.
19
09/14/1999
13.
Activities.
Attorneys' Fees and Costs Related to Litigation Activities and Settlement
13.1. WMAC shall pay to the Cities their attorneys fees and costs in connection
with the Litigation Activities and Settlement Activities incurred by the Cities, from the last week
of October 1996 through the date of execution of the Agreement, in the mount of $ ., which
represents the actual fees and costs billed by the Cities' attorneys to the Cities through the date of
execution of this Agreement. WMAC shall pay seventy-five percent (75%) of this amount
following execution of the settlement agreement, in accordance with the procedures set forth in
subsection I3.3 below, and the remaining twenty-five percent (25%) following approval by the
Board of Supervisors of an Amended Use Permit, in accordance with the procedures set forth in
subsection 13.6 below.
13.2. WMAC shall pay to the Sierra Club, NCRA, Measure D Committee and
ALARM their attorneys fees and costs in connection with the Litigation Activities and
Settlement Activities incurred by the Sierra Club, NCRA, Measure D Committee and ALARM,
through the date of execution of the Agreement, in the amount of $ , which represents the
urnreimbursed costs incurred by their attorney and the unreimbursed hourly fees of their attorney,
billed at the same hourly rate as the Cities' attorneys, through the date of execution of this
Agreement. WMAC shall pay seventy-five percent (75%) of this amount following execution of
the settlement agreement, in accordance with the procedures set forth in subsection 13.3 below,
and the remaining twenty-five percent (25%) following approval by the Board of Supervisors of
an Amended Use Permit, in accordance with the procedures set forth in subsection 13.6 below.
13.3. WMAC shall pay the sums specified in sections 13.1 and 13.2 above
within forty-five (45) days of the execution of this Agreement
13.4. Within twenty (20) days of (a) approval by the Board of Supervisors of
Amended Use Permit that is consistent in all material respects with this Agreement or with
changes agreed to by all Parties and (b) dismissal of WMAC of its appeal, all as provided for in
section 2 of this Agreement, the Cities shall provide to WMAC a written statement of the total
amount of attorneys fees and costs incurred by the Cities in connection with Settlement
Activities for the period from the day following execution of this Agreement to the approval of
the Amended Use Permit. The amount to be paid by WMAC shall represent the actual fees and
costs billed by the Cities' attorneys to the Cities for this period. In connection with Board of
Supervisors' approval of the Amended Use Permit, the Cities' attorneys shall use the same lead
personnel and maintain the same level of staffing used for Settlement Activities in undertaking
'further actions set forth in subsections 2.1.1 through 2.1.8 above. The Cities agree that their
reimbursable fees and costs during this period shall reflect a level of activity commensurate with
the previous phases of Settlement Activities.
13.5. Within twenty (20) days of(a) approval by the Board of Supervisors of
Amended Use Permit that is consistent in all material respects with this Agreement or with
changes agreed to by all Parties and Co) dismissal of WMAC of its appeal, all as provided for in
section 2 of this Agreement, the Sierra Club, NCRA, Measure D Committee and ALARM shall
provide to WMAC a written statement of the total amount of attorneys fees and costs incurred by
the Sierra Club, NCRA, Measure D Committee and ALARM in connection with the Settlement
2O
09/14/1999
Activities for the period from the day following execution of this Agreement to the approval of
the Amended Use Permit. The mount to be paid by WMAC shall represent the artreimbursed
costs incurred by their attorney and the unreimbursed hourly fees of their attorney, billed at the
same hourly rate as the Cities' attorneys, for this period. In connection with Board approval of
the Amended Use Permit; the attorneys for the Sierra Club, NCRA, Measure D Committee and
ALARM shall, to the maximum extent practicable, use the same lead personnel and maintain the
same level of staffing used for Settlement Activities in undertaking further actions set forth in
subsections 2.1.1 through 2.1.8 above. The Sierra Club, NCRA, Measure D Committee and
ALARM agree that their reimbursable fees and costs during this period shall reflect a level of
activity commensurate with the previous phases of Settlement Activities.
13.6. WMAC shall pay the sums specified in sections 13.4 and 13.5 above
within forty-five (45) days ofmailing or transmittal to WMAC of the written statements
provided for in those sections.
13.7. Within twenty (20) days of approval by ACWMA of any amendment(s)
to the County inte~ated Waste Management Plan CColWMP") that are consistent in all material
respects with this Agreement or with changes agreed to by all Parties, as provided for in section
2 of this Agreement, the Cities shall provide to WMAC a written statement of the total amount of
attorneys fees and costs incurred by the Cities in connection with Settlement Activities for the
period from the day following approval of the Amended Use Permit through the approval of the
ColWMP amendment(s). The amount to be paid by'WMAC shall represent the actual fees and'
costs billed by the Cities' attorneys to the Cities for this period. In connection with any
ACWMA approval, the Cities' attorneys shall use the same lead personnel and maintain the same
level of staffing used for Settlement Activities in undertaking further actions set forth in
subsections 2.1.8 and 2.1.9 above. The Cities agree that their reimbursable fees and costs during
this period shall reflect a level of activity commensurate with the previous phases of Settlement
Activities.
13.8. Within twenty (20) days of ACWMA of any amendment(s) to the
ColWMP that are consistent in all material respects with this Agreement or with changes agreed
to by all Parties, as provided for in section 2 of this Agreement, the Sierra Club, NCRA, Measure
D Committee and AL-ARM shall provide to WMAC a written'statement of the total amount of
attorneys fees and costs incurred by the Sierra Club, NCRA, Measure D Committee and
ALARM in connection with Settlement Activities for the period from the day following approval
of the Amended Use Permit through the approval of the ColWMP amendment(s). The amount to
be paid by WMAC shall represent the unreimbursed costs incurred by their attorney and the
unreimbursed hourly fees of their attorney, billed at the same hourly rate as the Cities' attorneys,
for this period. In connection with any ACW!MA approval, the attorneys for the Sierra Club,
NCRA, Measure D Committee and ALARM shall, to the maximum extent practicable, use the
same lead personnel and maintain the same level of staffing used for Settlement Activities in
undertaking further actions set forth in subsections 2.1. I through 2.1.8 above. The Sierra Club,
NCRA, Measure D Committee and ALARM a~ee that .their reimbursable fees and costs during
this period shall reflect a level of activity commensurate with the previous phases of Settlement
Activities.
21
09/14/1999
13.9. WMAC shall pay the sums specified in sections 13.7 and 13.8 above
within forty-five (45) days of mailing or transmittal to W1VIAC of the written statements
provided for in those sections.
13.10. All payments to the Cities shall be by check made payable to Shute,
Mihaly & Weinberger LLP Client Trust Account and forwarded by United States mail, postage
prepaid, or personal delivery. All payments to Sierra Club, NCRA, Measure D Committee and
ALARM shall be by check made payable to Trent W. Orr, Attorney at Law, and forwarded by
United States mail, postage prepaid, or personal delivery.
13.11. In the event that the Board does not adopt an Amended Use Permit that in
all material respects is consistent with Exhibit "A" hereto, or with changes agreed to by all
Parties, nothing in section 12 of this Agreement or in this section 13 shall bar petitioners from
filing claims for attorneys fees in connection with petitioners objections to the County's return to
-the writ and opposition to approvals related to the landfill expansion provided for in sectio. n 2.2.3
of this Agreement.
13.12. Notwithstanding section 12 o f this Agreement, petitioners may file their
claims for attorneys fees in connection with any action to enforce this section 13.
13.13. Payment by WMAC of the total amount of attorneys fees and costs under
this section 13 constitutes a full and final compromise, release and settlement of any and all
claims for attorneys fees and costs from all petitioners and each of them against WMAC through
and including the Litigation and Settlement Activities.
14. Amendments. This Agreement may be amended only by a written instrument
signed by all the Parties.
15. Default and Enforcement. Any failure by any Party to perform any term or
provision of this Agreement, which failure continues for a period of thirty (30) days following
written notice from any other Party, unless such period is extended by written mutual consent of
all Parties, shall constitute default under this Agreement. Any notice given pursuant to this
section shall specify the nature of the alleged failure and, where appropriate the manner in which
said failure satisfactorily may be cured. If the nature of the alleged failure is such that it cannot
reasonably be cured within such thirty (30) day period, then the commencement of the cure
within such time period, and the diligent prosecution to completion of the cure thereafter, shall
be deemed to be a cure within such thirty (30) day period. Upon the occurrence of a default
under this Agreement, the non-defaulting Party or Parties may institute legal proceedings to
enforce the terms of this Agreement or, in the event of a material default, terminate this
Agreement. If an alleged failure is cured pursuant to this section, no default Shall exist and the
noticing Party or Parties shall take no further action. In any legal proceeding to enforce this
Agreement, the Parties have the right to seek specific performance, and such specific
performance shall be the sole and exclusive remedy to enforce this Agreement.
16. Entire At, reement. This Agreement contains the Parties' entire agreement on the
matters addressed in this document.
22
09/14/1999
17. Execution of the Am'cement. The persons executing this Ageement represent
and warrant that they are authorized to sign on behalf of their respective principals, and that this
Agreement shall be binding upon their respective principals2 This Agreement has been fully
negotiated at arm's length between the Parties after full and complete advice by independent
counsel and other representatives of each Party freely chosen by it; each Party is fully and
completely informed with respect to all of the terms, covenants and conditions contained in this
Agreement, and the meaning and effect thereof, and after such advice and counsel, each Party
has freely and voluntarily entered into this Agreement with such full knowledge. Based on the
foregoing, no Party shall be deemed the scrivener of this Agreement; and the provisions of this
Agreement shall be construed as a whole according to their common meaning -- and not strictly
for or against either Party -- in order to effectuate the intent of the Parties.
18. Duplicates and Counterparts. This Agreement may be executed in duplicate
originals, each of which shall be equally admissible in evidence. This Agreement may be
executed in counterparts, which when collectively executed by all of the Parties shall constitute a
single agreement.
19. Documents Necessary to Carry Out A~eement. The Parties hereto shall without
delay execute any and all documents which may be necessary to carry out the provisions of this
Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first
above written.
COUNTY:
LIVERMORE:
THE COUNTY OF ALAMEDA,
a California county
By:
Attest:
Chair, Board of Supervisors
County Clerk
THE CITY OF LIVERMORE,
a municipal corporation
By:
Cathie Brown, Mayor
Attest:
City Clerk
23
09/14/1999
PLEASANTON:
SIERR~ CLUB:
NCRA:
MEASURE D
COMMITTEE:
THE CITY OF PLEASANTON,
a municipal corporation
By:
Deborah Acosta, City Manager
Attest:
City Clerk
SIERRA CLUB,
a Califomia nonprofit membership corporation
By:
Name:
Its:
NORTHERN CALIFORNIA RECYCLING ASSOCIATION,
a California professional trade association
By:
Steve Lautze
Its:
MEASURE D COMMITTEE,
an unincorporated association
WMAC:
By:
David Tam
Its:
ALTAMONT LANDOWNERS AGAINST RURAL
MISMANAGEMENT,
an unincorporated association -..
By:
Name:
Its:
WASTE MANAGEMENT OF ALAMEDA COUNTY, INC.,
a California corporation,
By:
Doug Sobey
Its:
[SIGNATURES CONTINUED ON NEXT PAGE]
24
09/14/1999
{SIGNATURES CONTINUED FROM PREVIOUS PAGE]
APPROVED AS TO FORM:
By:
Richard E. Winhie
Counsel to the County of Alameda
By:
Michael Roush
City Attorney, City of Pleasanton
By:
By:
Thomas R. Curry
City Attorney, City of Livermore
Mark I. Weinberger
Counsel to City of Livermore and
City of Pleasanton
By:
Michael H. Zischke
Counsel to Waste Management of
Alameda County, Inc.
By:
Trent Orr
Counsel to the Sierra Club, Northern
California Recycling Association,
Measure D Committee and Altamont
Landowners Against Rural
Mismanagement
25
09/14/1999
EXHIBIT A
New Conditions of Anproval Proposed to be Included in the Amended Use Permit
Pursuant to Settlement Negotiations between the Parties
1. Limitations on Acceptance and Disposal of Wastes. In addition to any other
limitations in this permit or in any permits or approvals of the Altamont Landfill and Kesource
Recovery Facility (ALRRF), the operator shall not accept any waste for disposal. except as
provided in subsections 1.1 through 1.6, below.
1.1 Limitation on Franchise Waste. The operator shall be pertained to accept
for disposal at the ALRRF franchise waste only from Alameda County. the City and County of
San Francisco and the City of San Ramon, California subject to the following two conditions:
1.1.1 - With respect to franchise waste accepted for disposal from the City
and County of San Francisco, during the remaining term on the existing contract for such
disposal the City and County. of San Francisco must meet the recycling rate requirement
specified pursuant to the existing permit for the acceptance of Franchise Waste from San
Francisco issued by the Alameda County Waste Management Authority (ACWMA's Resolution
No. 78), (a copy of this recycling rate requirement is attached to this permit as E'xhibit "1.')
After expiration of the existing contract, the operator may enter into a new contract to accept
franchise waste from the City and County of San Francisco if San Francisco is in compliance
with the aforementioned recycling rate requirement and any applicable recycling rate
requirement of state law.
1.1.2 With respect to franchise waste accepted for disposal from the City
of San Ramon, the operator may enter into a contract to accept such waste only if the City of San
Ramon demonstrates that it is achieving a recycling rate equal to the average recycling rate
achieved by Livermore and Pleasanton, provided that such average rate shall be weighted to
reflect the respective populations of Livermore and Pleasanton.
1.2 Limitation on Non-Franchise Waste. The operator shall be penyx. itted to
accept for disposal at the ALRRF non-franchise waste from Alameda Cotmty and the City and
County of San Francisco. In addition, the operator shall be permitted to accept for disposal at the
ALRRF non-franchise waste specifically covered by subsections 1.3, 1.4 and 1.5 below.
1.3 Slud..es. Inert Waste. and Special Waste Prior to ALRRF Expansion.
During the continued operation of the ALRRF within the landfill area covered by the Existing
Permit and prior to the date of the first deposit of solid waste in the expansion area of the
ALRKF authorized by permit (the "Expansion Date"), sludges, inert waste, and special waste
from outside Alameda County and San Francisco may be accepted for disposal at the ALRRF
subject to the following provisions:
1.3.1 During the calendar years 1999 and 2000, the amount of such
waste accepted for disposal at ALRRF shall not exceed an annua tonnage cap of 75,000 tons per
year, provided, however, that any unused portion of this annual tonnage cap in either calendar
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09/1411999
year may be "banked" for potential use during any calendar year after the year 2000 and up to
the Expansion Date as provided in subsection 1.3.2 below-. In each of these calendar years, no
more than 12,000 tons of such waste shall be accepted for disposal from outside the City and
County of San Francisco, and the Counties of Alameda, Contra Costa. Marin. Napa. San Mateo.
Santa Clara, Solano and Sonoma (the "Nine Bay Area Counties").
1.3.2 During each calendar year beginning on January 1. 2001 up until
the Expansion Date, the amount of such waste accepted for disposal at ALRRF shall not exceed
an annual tonnage cap of 60,000 tons per year, provided, however, that any unused portion of
this annual tonnage cap in any calendar year may be "banked" for potential use in any
subsequent year up to the Expansion Date, and further provided that the annual tonnage cap may
be increased to up to 75,000 tons per year by the use of any tonnage which hfis been "banked" in
any prior calendar year pursuant to this subsection 1.3. In each of these calendar years, no more
than 7,500 tons of such waste shall be accepted for disposal from outside the Nine Bay Area
Counties.
1.3.3 NotwithStanding the limitations set forth in subsections 1.3.1 and
1.3.2 above, additional sludges, inert waste, and special waste may be accepted for disposal at
ALRRF to the extent that such additional wastes are the result of a "major event" which impacts
all or part of Alameda County or the City and County of San Francisco, or both.. A "major
event" for purposes of this subsection is defined as an event or occurrence which requires
substantial additional disposal of sludges, inert wastes or special waste, and which is either (i) a
regulatory change or order requiring the collection and disposal of soil. debris or other material
from a substantial area such as numerous industrial facilities or public facilities, or (ii) a
damaging event or occurrence such as a fire, earthquake, flood, or large explosion, which
destroys or damages structures or facilities over a substantial area. If the '*major event" is a
regulatory change or order, then review and approval by the County Planning Commission shall
be required prior to any acceptance of additional waste pursuant to this subsection 1.3.3 from
outside Alameda County and the City and County of San Francisco. The County shall use its
best effort to schedule and conclude the Planning Conu-nission hearing on any such proposed
action within thirty (30) days following WMAC's application to the County seeking approval of
such disposal.
1.4 Slud~,es. Inert Waste. and Special Waste After ALRRF Expansion. After
the Expansion Date, the amount of sludges, inert waste, and special waste accepted for disposal
at ALRRF from outside Alameda County and San Francisco shall not exceed 25,000 tons per
calendar year, and no such waste shall be accepted from outside the Nine Bay Area Counties.
The "banking" and "major event" provisions and exceptions set forth in subsection 1.3, above,
shall not apply after the Expansion Date.
1.5 Self-Haul from Contra Costa County. The operator may continue to
accept self-haul wastes from Contra Costa County at the ALRRF, up to an annual tonnage cap of
15,000 tons per year prior to the Expansion Date, and up to an annual tonnage cap of 25,000 tons
per year after the Expansion Date. Prior to the Expansion Date, any unused portion of the annual
tonnage cap in any calendar year may be "banked" for potential use in any subsequent calendar
year prior to the Expansion Date, provided that the overall amount of such waste accepted shall
not exceed 25,000 tons in any calendar year. This "banking" provision shall not apply after the
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09/14/1999
Expansion Date. Self-haul wastes are defined for purposes of this Section to include solid wastes
which are self-hauled to the ALRRF by the independent contractor or customer who generates
the wastes.
1.6 Pro Rata Adiustment of Partial Calendar Years Before and After the
Exl~ansion Date. With respect to any partial calendar year immediately before or after the
Expansion Date, the applicable tonnage caps shall be a pro rated percentage of the otherwise
applicable caps. Minor variances in the pro rated caps for the partial calendar year. if any. prior
to the Expansion Date shall be allowed only to the extent the variance is the result of seasonal or
periodic fluctuations in the rate of waste disposal. which fluctuations would be consistent with
complying with the tonnage cap if the cap applied over an entire calendar year.
1.7 No Hazardous. Medical or Radioactive Waste. The provisions set forth
above are intended to allow for disposal of franchise waste, non-franchise waste and materials
regulated or classified as inert waste, special waste or designated waste, and are not intended to
allow for disposal at .ALRRF of material which is regulated as a hazardous waste, medical waste,
or radioactive waste. Accordingly, the ooperator shall not accept for disposal at the ALP,.RF any
material which is (i) classified and regulated by the State of California as a hazardous waste;
(ii) classified and regulated by the State of California as a medical waste; or (iii) classified and
regulated by the United States Department of Energy as a radioactive waste.
1.8 Annual Torma~,e Cap and Average Daitv Tonnage Can. The amount of
solid waste accepted for disposal at ALRRF in any given calendar year shall be limited by the
geographic and other restrictions in this permit, and further by the provisions of this subsection
1.8. The provisions of this subsection are intended to provide an annual tonn~e cap and a cap
on average daily tonnage of solid waste to be accepted for disposal at ALRRF in addition to the
geographic restrictions in this permit.
1.8.1 Beginning in the year 2000, the amount of solid waste accepted for
disposal at the ALKRF in each year shall not exceed a total of 1,600,000 tons. Based on a
calendar year calculated at 260 days, this would result in an annual average daily tonnage of
solid waste disposed at the ALRRF of approximately 6, 154 tons per day, calculated over the
entire year. To allow for seasonal fluctuations in solid waste disposal. the average daily tonnage
of solid waste accepted ifi any calendar quarter shall not exceed 7000 tons per day. Botl,, this
annual tonnage cap and the average daily tonnage cap shall be subject to adjustment as provided
in this subsection 1.8. During any part of the year 1999 that this permit is in effect, the annual
tonnage cap shall be applied on a pro rata basis.
1.8.2 Beginning in the year 2001, the annual tonnage cap and the
average daily tonnage cap shall be automatically increased by the Alameda County Planning
Department ("Planning Department") to the extent required to accommodate additional waste
disposal resulting from any one or more of the following factors: (i) additional growth,
development or economic activity in Alameda County, San Francisco, or San Ramon as
determined by the California Integrated Waste Management Board's CIWMB") annual indices,
and including automatic increases in each calendar year for additional waste generated by
projects approved in Alameda County, San Francisco, or San Ramon; (ii) the transfer of any
solid wastes or solid waste stream from other landfills in Alameda County for any reason,
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09/14/1999
including without limitation the closure of such landfills or the negotiation of new contracts
providing for disposal at the ALtLR1r, provided that such waste streams originate in Alameda
County, San Francisco or San Kamon as provided for in this permit.
1.8.3 Within sixty (60) days after the IWMB releases its annual indices
for the previous calendar year, WMAC shall provide the Planning Department with a copy of the
IWMB indices, and the Planning Department shall automatically increase the annual tonnage cap
and average daily cap to the extent required to accommodate additional waste disposal as set
forth in subsection 1.8.2 above.
1.8.4 For the purposes of calculating automatic cap increases as
provided by subsection 1.8.2 above, WMAC may provide the Alameda County Planning
Department with other indices or factors that support, update or, in the absence of the IWMB's
indices, substitute for the IWMB'S annual indices. WMAC shall simultaneously provide copies
of all such materials to all other Parties in addition to the County. The Planning Department may
use such i~dices or factors in determining appropriate increases to the annual tonnage cap and
average daily cap for the pdrposes of calculating automatic increases to the annual tonnage cap
and average daily cap but shall take no action granting an automatic cap increase based on such
indices or factors any sooner than twenty-one (21 ) days after the receipt of copies of such indices
or factors by all Parties, in order that the Parties may review these and comment upon them to
the Planning Department.
1.8.5 In addition to the automatic increases provided by subsection 1.8.2
above, following noticed public hearing and discretionary approval by the Alameda County
Board of Supervisors, the annual tonnage cap and the average daily tonnage cap for a given
calendar year may also be increased to the extent WMAC demonstrates to the Board that such
increase is required to accommodate additional waste disposal resulting from extraordinary
events, including natural disasters.
1.8.6 The operational or design capacity of the ALRRF specified in the
solid waste facilities permit shall be 11,150 tons per day, provided that the daily tonnage cap
shall still apply as a condition of this permit.
1.9 Definitions of Waste Categories and Cover. For the purposes of this
permit, the following terms have the specified meanings set forth below, including any future
amendments of such referenced statutes or regulations:
1.9.1 Designated Waste. The term, "designated waste", means
"designated waste" as defined in California Water Code § 13173.
1.9.2 Cover. The term, "daily cover" means "daily cover" as defined in
27 California Code of Regulations CCCR") § 20164.
1.9.3 Hazardous Waste. The term, "hazardous waste", means "hazardous
waste" as defined in 14 CCR § 17225.32.
1.9.4 Inert Waste. The term, "inert waste", means "inert waste" as
defined in 14 CCR § 18720(a)(32).
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09/1411999
1.9.5 Slud~e. The term. "sludge", means "sludge" as defined in 14 CCR
§ 18720(A)(69).
1.9.6 Special Waste. The term, "special waste", means "special waste" as
defined in 14 CCR § 18720(a)(73)
2. Testin~ and Advance Notice Prior to Acceptin~ Soil and Certain Material.
2.1 The operator shall not accept for any use or disposal more than ten (I0)
cubic yards of any soil known or reasonably suspected by WMAC to come from a contaminated
site without first requiring submittal of, and reviewing, the following information:
(i)
Results of laboratory testing of the soil for its hazardous materials content
and suitability for acceptance in a municipal solid waste landfill;
A statement identifying the source of the soil and the location of the
source property; and
(iii)
Any required notification from appropriate regulatory agencies that the
soil may be accepted for use or disposal at ALRRF.
2.2 The operator shall not accept for any use or disposal of any material that
(a) requires a variance from the then existing permit conditions at ALRRF in order to be
accepted there, or (b) is a hazardous waste that has been declassified or is proposed to be
declassified for purpose of acceptance at ALRRF. without first requiring submittal of, and
reviewing, the following information at least ten (10) days in advance of acceptance of such
material at ALRRF:
(i)
Results of laboratory testing of the material for its hazardous materials
content and suitability for acceptance in a municipal solid waste landfill;
(ii)
A statement identifying the source of the material 'and the location of the
source property; and
(iii)
Notification from appropriate regulatory agencies that the material may be
accepted for use or disposal at ALRRF.
2.3 The requirements of subsections 2.1 and 2.2 above are triggered only
when WMAC has determined to accept for any use or disposal more than ten (10) cubic yards of
soil known or reasonably suspected by WMAC to come from a contaminated site, or any
material that (a) requires a variance from the then existing permit conditions at ALRRF in order
to be accepted there, or (b) is a hazardous waste that has been declassified for purpose of
acceptance at ALRRF, and do not apply to soils or materials that WMAC declines to accept for
use or disposal at ALRRF.
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09/14/1999
2.4 The Hazardous Waste Exclusion Program for the ALRRJ: shall be
amended to include the requirements of this section 2.
3. Size of Expansion and Landfill Footprint. The landfill expansion shall not exceed
40 million tons of capacity. Consistent with the size of the expansion and the restrictions on
solid waste disposal and imports in this permit, the footprint of the landfill expansion shall be
limited to approximately 250 acres.
4. Prohibition on Rail Haul. The operation of the ALRRF shall not include any
delivery of waste to the ALRRF by railroad.
5. Prohibition on Soil Mining. The operator shall not engage in the mining of soil
on the ALRRF for sale or export outside the ALRRF site (including any such mining for sale or
export that requires a surface mining permit).
6. Five Year Permit Compliance Reviews. Consistent with applicable provisions of
the Alameda County Code, the County shall conduct a permit comp!iance review every five
years to determine the compliance of the ALRRF with the provisions of this permit. The permit
compliance reviews shall not include reconsideration or re-evaluation of the terms and conditions
of this permit.
6.1 Notice and Hearing. The County shall provide ninety (90) day advance
written notice to each of the Parties of any public hearings (the "Compliance Review Hearings')
held by the County in conjunction with the County's Compliance review of the New Permit (the
"Five Year Compliance Review"). The County's Planning Commission shall hear the
Compliance Review Hearings. At least one Review Hearing for each Five Year Compliance
Review shall take place in the evening in Livermore. The County shall publish notices of all
Compliance Review Hearings at least 60 days prior to the earliest such hearing in major
newspapers of general circulation in the County, including the Tri-Valley Herald, the
Independent and the Valley Times. The operator's submittals and the relevant County staff
reports that are intended to be considered at any Compliance Review Hearing shall be made
available to the general public, and copies shall be provided to each of the Parties or their
designated representatives, at least forty-five (45) days prior to the public hearing. Any follow-
up documentation, such as a response to or clari~catiorf of a public comment, shall be made
available to the general public upon submittal to the County, or if prepared by the County, upon
submittal to the Planning Commission. The County shall make copies of all such written
materials publicly available at one or more locations in Livermore and in the City of Oakland.
6.2 Operator Submissions. In connection with each Five Year Compliance
Review, the operator shall submit to the County (i) comprehensive information on the record of
ALRRF's compliance with the terms and conditions of the New Permit, (it)current data and
information included in the required reports made pursuant to the California Integrated Waste
Management Act, Public Resources Code Sections 40050 et. seq., in connection with review of
the Solid Waste Facilities Permit for ALRRF, (iii) current data and information included in the
required reports made to the Regional Water Quality Control Board in connection with review of
waste discharge requirements, and (iv) current data and information included in the most recent
existing air quality report and related monitoring reports for ALRRF.
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09/14/1999
6.3 Possible CEOA Review Due to Substantial Noncompliance. In the event
the Board finds that there has been substantial noncompliance by the operator with any of the
permit conditions during the five-year period under review, the County may, in addition to any
other recourse the County may have, and provided that such action is allowed pursuant to Public
Resources Code 21166 and Sections 15162 and 15164 of the CEQA Guidelines or any other
applicable provisions of CEQA, require CEQA review of the non-complying operations prior to
any approval of the continuation of such activities.
6.4 Possible CEOA Review Due to Substantial Chan-,,es or Significant New
Information. Consistent with the provisions of CEQA, including Public Resources Code section
21166 and sections 15162 through 15164 of the CEQA Guidelines, the County shall require
additional CEQA review if, and to the extent, the County finds, based on substantial evidence,
that further CEQA review is required pursuant to the terms of Public Resources Code section
21166, and 15162 through 15164 of the CEQA Guidelines or any other applicable provisions of
CEQA.
7. Augmented Board of Supervisors Permit ComDliance Review Prior to Mid-
CapaciW Buildout Point. During that Five Year Compliance Review which is closest in time but
prior to that date which the operator projects that fifty percent (50%) of the total approved
capacity of the ALRRF expansion will be filled (the "Mid-Capacity Compliance Review"), the
County shall conduct a more intensive review of ALRRF's compliance with the new permit and
based solely on that permit compliance review shall specifically review whether the operator
should be allowed to continue operation of the ALRRF and fill the remaining fifty percent (50%)
of the total approved capacity. of ALRRF. In addition to the requirements for Five Year Reviews
set forth in Section 6 above, during the Mid-Capacity Review, the Board of Supervisors shall
determine whether ALRRF may continue operations after fifty percent (50%) of ALRRF's total
approved capacity has been filled based solely upon its determination that the following
conditions have been met:
(i) the operator has requested continued operation of ALRRF;
(ii) ALRRF is in compliance with all New Permit conditions; and
(iii)
there is a demonstrated need for continued operation of the
ALRRF based upon consideration of the availability of other
technologies or programs for source reduction, reuse or recycling,
existing or projected contracts or franchise agreements for disposal
of solid waste at the ALRRF, and the existence of a market for
solid waste disposal in the area, provided that this Mid-Capacity
Compliance Review may not base any need finding upon the
availability of space at any other solid waste landflits that do or
could compete with the ALRRF.
Prior to any determination by the Board regarding the conditions described above, the Board
shall hear and consider the recommendations made by the County's Planning Commission
regarding appropriate findings for the conditions. The County shall hold at least one Review
Hearing in connection ~vith the Mid-Capacity Review and the necessary findings in Livermore.
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09/14/1999
At the same time that the Planning Commission and the Board consider the determinations set
forth above, but not as a condition to continued operation of the ALRRF, the PIanning
Commission and the Board shall also consider whether the County should take, or recommend to
other agencies or parties, any further actions to encourage or establish other technologies or
programs for source reduction, reuse, and recycling.
8. Insurance for Environmental Dama~,e. The operator currently carries insurance
related to environmental impairment, corrective action for landfill releases, and landfill closure
and post-closure costs in the amounts described in the certificates attached hereto as Exhibit "2."
The operator shall continue to maintain insurance at the same coverage, and at any higher
coverage required by applicable law and regulation, during the operation of ALRRF and, as
required by applicable law and regulation, during the closure and post-closure periods.
9. Liner Technology Requirements. At the time each new cell within ALRRF is
built, the operator shall comply with the existing regulatory requirements for the best available
liner technology.
10. Davis Street Organics for Compost. The operator shall make available, for
purchase at a reasonable price and use as compost material, organic material that is received at
the Davis Street Transfer Station operated by the operator.
11. Monthly Reporting Protocols
11.1 Solid Waste Disposal. The operator shall prepare and deliver to the
County and to the Community Monitor monthly reports specifying the quantity, point of origin
and material types of all solid waste disposed at ALRRF, including, without limitation, sludge,
inert wastes and special wastes.
11.2 Alternate Daily Cover. The operator shall prepare and deliver to the
County and to the Community Monitor monthly reports setting the forth the materials received at
ALRRF for use as alternative daily cover as allowed pursuant to State of California regulations
governing such alternative daily cover, and such reports shall specify the type, source and
quantity of the alternative daily cover materials received.
11.3 Standardized Truck Counts. The operator shall implement a standard
means of counting all truck trips to the landfill each day, including separate counts of transfer
trucks and counts of trucks other than transfer trucks. These daily truck trip counts shall be
compiled into monthly reports to be delivered to the County and to the Community Monitor.
12. Limitin~ Use of Highway 84. The operator shall limit the use of that portion of
State Highway 84 between Interstate 680 and Interstate 580 so that trucks which haul solid waste
or other material to the ALRRF and which are subject to the operator's routing control shall not
use that portion of State Highway 84. This provision shall not apply to trucks collecting solid
waste or other material from local areas served by this portion of Highway 84. It is
acknowledged that the operator does not have routing control over self-haul trucks.
13. Limitations on Peak Hour Truck Trips. During the a.m. peak commute period
(6:45 a.m. to 8:45 a.m.) there will be no more than 50 total refuse truck trips per hour arriving at
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the ALRRF. During the p.m. peak commute hour (4:30 p.m. to 5:30 p.m.) there will be no more
than 10 total refuse truck trips arriving at the ALRRF.
14. Citv of Livermore Traffic Impact Fee. The operator will pay the City. of
Livemore Traffic Impact Fee per Chapter 12.30 of the Livermore Municipal Code within 30
days after the newly developed expansion landfill area first receives waste for disposal. For the
purposes of computing this fee, (a)every large truck will count as the equivalent of three
vehicles, (b)the project will be assumed to generate 50 additional truck trips during the peak
hour, and (c) the payment will be based upon the per trip fee in effect at the time the payment is
made. The operator shall not be required to pay more than once for any roadway improvement
within the City of Livermore. Accordingly, the operator will be given a credit or refund for any
portion of the City of Livermore Traffm Impact Fee for which the City of Livermore receives
payment or in kind services for roadway improvements within the City, which are paid by the
operator directly or through other fees imposed by this permit (including the Alameda County
Cumulative Traffic Mitigation Fee or the Alameda County Public Works Traffic Impact Fee or
pursuant to any'other condition of this permit).
15. Distribution of Litter Control Literature. On an ongoing basis, ALRRF shall
distribute informational flyers regarding litter control to customers as a reminder of the
ALRRF's obligation to the environment and community. ALRRF shall also fund litter control
on an additional portion of Interstate 580 in the vicinity of the landfill through the "Adopt a
Highway" Program.
16. RWOCB Concurrence Re~ardin~ Bethany Reservoir. The operator shall request
that the Regional Water Quality Control Board's review iDf the landfill expansion include that
Board's concurrence that ALRRF is designed to ensure that there is no drainage of landfill
leachate to the Bethany Reservoir.
17. Land Dedication for Habitat Preserve. To the extent that off-site habitat mitigation
is required by the United States Fish and Wildlife Service CUSFWS"), the operator will enter
into a Conservation Agreement with USFWS and the Livermore Area Recreation Park District
and/or the East Bay Regional Park District regarding the acquisition, operation and maintenance
of a Habitat Preserve (the "Preserve") in the Altamont or other suitable area in eastern Alameda
County. The operator's requirement for multi-species off-site mitigation acreage shall be met by
the operator by the dedication of public open space in the Altamont or other suitable area in
eastern Alameda County. The operator shall meet and confer with the City of Livermore and
Alameda County planning staffs to identify properties that might be incorporated within the
Preserve. In identifying the acreage for additions to the Preserve, the operator shall give priority
to lands which are adjacent to or in the vicinity of existing public open space in the Altamont
area such as Brushy Peak and Vasco Caves. Any such properties shall be given preference for
inclusion within the Preserve (subject to availability and cost) if they are acceptable to the
USFWS and the Livermore Area Recreation and Park District. The operator and the City of
Livermore shall confer and cooperate to identify supplemental sources of funds, if appropriate, to
assist in purchasing such preferred properties. Pre-construction habitat mitigation required for
each phase of the ALRRF expansion shall be implemented prior to the opening of that phase
consistent ~vith condition 17 of this permit. A Trust Fund for the acquisition, operation and
maintenance of the Preserve shall be established by the operator in an amount to be determined
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09/14/1999
under the agreement with the USFWS.
18. County Fees.
18.1 The operator shall pay twenty-five cents ($0.25) per ton as a host
community fee for all solid waste disposed at the ALRRF during current operations and the
expansion authorized by this permit. This fee shall be collected on every ton of waste disposed
at the ALRRF throughout the life of the landfill facility. This fee shall be adjusted annually to
account for inflation in a proportion equal to the Manufacturing Index Value in the Engineering
News Record.
18.2 The operator shall pay an additional one dollar ($1.00) per ton as an
additional host community fee for all solid waste disposed at the ALRRF during current
operations and the expansion authorized by this permit. This fee shall be collected on every ton
of waste disposed at the ALRRF beginning immediately and continuing throughout the life of the
landfill facility, This fee shall be adjusted annually to account for inflation in a proportion equal
to the Manufacturing Index Value in the Engineering News Record.
18.3 With respect to non-franchise waste disposed at the ALRRF, the fees
imposed pursuant to Conditions No. 18.1 and 18.2 shall be collected by the operator at the time
of waste disposal.' With respect to franchise solid waste disposed at the ALRRF, the fees
imposed pursuant to Condition No. 18.2 shall be collected by the operator and payable at the
time and only to the extent that these fees are included in the franchise rate base for solid waste.
The operator shall take all actions necessary to ensure that these fees are included in the
franchise rate base for each franchisee at the earliest possible date allowable under each franchise
agreement. If any franchisee fails to take diligent steps to include these fees in the franchise rate
base, the operator, at its expense, shall initiate and diligently pursue litigation no later than
twelve (12) months following the effective date of this permit to enforce payment of the fees,
including recovery of all unpaid fees retroactive to the effective date of this permit; the County
shall join as a co-plaintiff in any such action. The 'operator shall report to the Board of
Supervisors and to the County Counsel regarding collection and payment of these fees bimonthly
fgr twelve (12) months following the effective date of this permit, and annually thereafter. In the
event that these fees are judicially determined in whole or in part to be unenforceable against a
franchisee, the operator shall cooperate with the Codnty in any modification of these fees
necessary to make them enforceable.
18.4 The fees imposed by Conditions No 18.1 and 18.2 shall be collected as
provided in the Settlement Agreement Between and Among the County of Alameda, the City of
Livermore, the City of Pleasanton, Sierra Club, Northern California Recycling Association,
Measure D Committee, Altarnont Landowners Against Rural Mismanagement, and Waste
Management of Alameda County, Inc..
18.5 Following each calendar quarter, the operator shall submit to the County a
report specifying the amount of fees paid during such calendar quarter by the operator, including
the fees specified in Conditions 18.1 and 18.2.
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EXHIBIT 1
SAN FRANCISCO RECYCLING RATE REQUIREMENT
[To be attached]
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09/14/1999
EXHIBIT 2
CERTIFICATES
[To be attached]
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09/14/1999
EXHIBIT "B"
DRAFT AMENDED USE PERMIT INCLUDING
NEW CONDITIONS OF APPROVAL
FOR EXHIBIT "A'
[to be added]
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