EPR is no Panacea for California’s Troubled CRV System

LEGALLY SPEAKING, EPR IS NO PANACEA FOR CALIFORNIA’S TROUBLED CONTAINER DEPOSIT RECYCLING SYSTEM

The views expressed here do not necessarily represent or reflect the views of the Northern California Recycling Association.

By John Douglas Moore, Esq, NCRA Legal Counsel and Former Board Member

I’ve practiced law for forty years. I’m a board-certified litigator who has won all but three of my cases that went to trial. But I’ve also served as general legal and trial counsel to three public agencies and one $150 million per year retail chain, as well as many other businesses. I have attended hundreds of corporate board meetings and many government closed sessions.

I have observed violations of the Brown Act in the biggest as well as the smallest jurisdictions in the Bay Area. I have dealt with state and local government regulation of businesses at all levels. I have reviewed several prominent cases that involved governments’ failures to regulate business consistent with legislation.

This experience has convinced me that Extended Producer Responsibility or EPR — as defined and advocated by proliferating pro-EPR entitles such as the Product Stewardship Institute — cannot achieve their own stated goals and purposes. That’s because local governments lack the financial resources to win against large corporate interests. Elected officials are subject to ever-shifting political winds over whom they choose to favor and what regulations they choose not to enforce. Staff must do as the elected officials decree.

EPR depends on government regulation and oversight to “level the playing field” for the participants, or so say EPR advocacy organizations. But this has not happened in the past and it will not happen in the future.

EPR originated in Europe, where burning garbage is common and is considered “recycling.” PSI’s website does not mention Europe or burning garbage. Yet one of PSI’s partners is Covanta, an incinerator company. And British Columbia, the Canadian province that has taken EPR the farthest, has a 300 ton per day incinerator in the aptly named town or Burnaby as part of it’s discard management system. Incineration doesn’t conserve valuable materials like real recycling does. Incineration destroys resources. The idea that burning is recycling is a lie. The Pro-EPR folks embrace the British Columbia experience, which puts the actual recyclers on the lowest level of the playing field and do not disavow incineration as recycling.

The Product Stewardship Institute (PSI), the California Product Stewardship Council (CPSC), the Product Policy Institute (PSI), and the newer National Stewardship Action Council (NSAC) have all adopted “principles” for how EPR programs must be established. Their chosen form of EPR is a “mandatory type of product stewardship.” This mandatory type of product stewardship requires, according to PSI,

“Government is responsible for ensuring a level playing field for all parties in the product value chain to maintain a competitive marketplace with open access to all, for setting and enforcing performance goals and standards, for supporting industry programs through procurement, and for helping educate the public. “

Government’s “responsibility” for “ensuring” a level playing field for “all parties” presumably includes the people and companies doing the actual work of recovering the products. To put the lie to economic justice for companies and workers recovering post-consumer goods for reuse or recycling, one needs to look no further than California’s failure to manage its own bottle bill, which is a form of EPR.

California’s bottle bill begins with the same kind of empty platitudes as those employed by PSI:

“It is the intent of the Legislature to encourage increased, and more convenient, beverage container redemption opportunities for all consumers. These redemption opportunities shall consist of dealer and other shopping center locations, independent and industry operated recycling centers, curbside programs, and other recycling systems that assure all consumers, in every region of the state, the opportunity to return beverage containers conveniently, efficiently, and economically.”

Moreover:

“It is the intent of the Legislature to ensure that every container type proves its own recyclability. It is the intent of the Legislature to make redemption and recycling convenient to consumers, and the Legislature hereby urges cities and counties, when exercising their zoning authority, to act favorably on the siting of multimaterial recycling centers, reverse vending machines, mobile recycling units, or other types of recycling opportunities, as necessary for consumer convenience, and the overall success of litter abatement and beverage container recycling in the state.”

And furthermore:

“The purpose of this division is to create and maintain a marketplace where it is profitable to establish sufficient recycling centers and locations to provide consumers with convenient recycling opportunities through the establishment of minimum refund values and processing fees and, through the proper application of these elements, to enhance the profitability of recycling centers, recycling locations, and other beverage container recycling programs.”

Lastly:

“The responsibility to provide convenient, efficient, and economical redemption opportunities rests jointly with manufacturers, distributors, dealers, recyclers, processors, and the Department of Conservation (now CalRecycle).

Does the Bottle Bill as written and passed by the California legislature actually create a “level playing field?” No, it does not!

The redemption centers that were promised by the bill to be “profitable” were instead locked into an exploitative statutory compensation scheme that was based upon outdated economic models. The last two years’ legislative sessions ended with no more money to the redemption centers, whose employees do the work of recycling. Hundreds of redemption centers were closed and thousands of recycling jobs were lost.

Just one chain — Re-Planet — closed 600 locations and laid off 1000 employees after the state starved them out. In the last five years, the number of redemption centers has fallen by over one third, resulting in “recycling deserts” in many parts of the state. Consumers today have far fewer places to go to “get their nickel back” from CRV deposits.

Why would this be allowed to happen when the Bottle Bill promises consumers “in every region of the state, the opportunity to return beverage containers conveniently, efficiently, and economically”?

Many consumers with no other recycling options will ultimately place their containers into their curbside collection carts that are picked up by franchised waste haulers. So the waste haulers end up getting paid deposit fees by the state for the CRV, not the consumers. Some waste haulers are in fact supporters and allies of PSI, as evidenced by PSI’s “partnership” with the Solid Waste Association of North America (SWANA) and Waste Management Inc. (WMI).

Some critics of the bottle bill believe that the regulator, CalRecycle, is underenforcing the obligations of beverage distributors to pay into the fund that is supposed to make the system work. Grocery chains required by the bill to provide consumers the ability to claim the redemption money can opt out of the system entirely by paying $35,000 per year. Most that can, do. This further limits the ability of consumers to find locations to obtain CRV redemption.

Meanwhile, CalRecycle is sitting on a surplus of unclaimed CRV deposits in the tens of millions of dollars.

Examples are easy to find of local government’s inability to enforce regulations against businesses that possess limitless lawyers and resources:

    1. When the City of Oakland rejected the bid of Waste Management of Alameda County (WMAC) for a long term solid waste franchise, WMAC sued the City of Oakland. With a school system in bankruptcy, a police department paying for a federal-court appointed monitor, a bloated obligation to pay union pensions, and rampant homelessness, the City of Oakland lacked the resources to fight WMAC’s lawsuit. They folded. WMAC ended up with the franchise.
    2. When local jurisdictions began passing plastic bag bans, the plastic bag makers and their petrochemical allies filed CEQA lawsuits against the government entities, which cost a lot of time and money to defend. Most local jurisdictions who got sued, like Oakland, folded. When the City of Manhattan Beach finally stood up for itself and won the CEQA case against it, plastic bag bans became more common, setting up even more battles in the state legislature and then before the voters.
    3. Ask any city attorney or elected official that you know what it would take for them to want to sue a Waste Management. Inc. for not fulfilling contractual obligations, or sue a Coke or Pepsi megacorporation who leave a trail a plastic pollution in parks, public waterways, and stormwater systems, or sue Safeway for not providing CRV redemption opportunities as promised by the legislature.

I can only say, having litigated against large corporations represented by big law firms, that big businesses ignore local regulation when they can, because they can. They can outlast almost anyone who stands up to them.

Besides having more resources, big businesses are also better at playing politics. Franchised waste haulers are an entrenched part of local government’s obligation to keep garbage off the streets. The waste haulers work daily with local regulators in the common cause of “cleanliness” and “Zero Waste.”

The waste haulers contribute to civic projects and the campaigns of the elected officials that supervise them. In this close relationship, local government staff are ill-suited for aggressive regulation of waste haulers. The recyclers — the companies whose employees actually recover resources, not just “manage” them — are not on a level playing field with waste haulers.

Why would an EPR promise of “level playing fields” not be just as hollow?

NCRA secured a victory in court to uphold a voter-passed Solano County law limiting the import of garbage into the county. Cheap tipping fees in the county were reducing recycling and increasing air pollution because garbage was being imported from as far away as San Jose! Solano County government never tried to enforce the import limiting law and the Superior Court upheld the law over the 3-2 opposition of its Board of Supervisors. But after the court case was decided, waste haulers paid a lot of money to then assemblyperson Fiona Ma to intervene in the haulers’ favor. Fiona Ma’s law undoing the court decision was passed without any public hearings about the effects.

What do you think?

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Rancho Mirage Revisited

RANCHO MIRAGE SUPREME COURT RECYCLING CASE REVISITED
By John D. Moore, NCRA Vice President and Legal Counsel
28 years ago, the cities of Rancho Mirage and Palm Springs, and their franchise hauler, Waste Management of the Desert, sued to enjoin Palm Springs Recycling Center from collecting bottles, cans, and paper in those cities. The local court granted the injunction, the Court of Appeal reversed the trial court , and then in 1994 the California Supreme Court reversed the Court of Appeals in what became the landmark California case interpreting what materials may lawfully be within a public entity grant of an exclusive solid waste franchise. The industry knows this as the “Rancho Mirage case” establishing the “fee for service” test of whether material is solid waste or not. The validity of the Rancho Mirage ruling has been called into question by a case now pending before the United States Circuit Court of Appeals for the Ninth Circuit.

In 1989, the California legislature passed the landmark AB 939 (the Act) which reworked the regulatory structure of garbage collection and established the infrastructure for California’s recycling industry that exists today. This Act stated as a matter of policy that landfilling materials was environmentally harmful because of the toxicity of landfills and the exhaustion of finite virgin resources. The Act created an express hierarchy with the 3 Rs, stating that post-consumer material should be reduced, reused, and recycled so that only the residue should be considered solid waste, the gentrified term for garbage. The Act imposed a mandate for 50% diversion of materials from landfill by 2000 and authorized $10,000/day penalties for noncompliant public entities. The Act carried over from former law the right of public entities to comply with their health and safety mandates by entering into garbage collection franchises. The Act granted discretion to public entities to grant exclusive solid waste collection requirements only if “the public health and welfare so require.”
Although the Act contains a definition of “solid waste” that may (not shall as some cities argue) be part of an exclusive franchise, disputes immediately arose between the franchised haulers, like Waste Management of the Desert, that preferred a broad definition consistent with former law, and recyclable collectors like Palm Springs Recycling Center, that interpreted AB 939 to mean that materials that went through the 3R hierarchy and were recycled, never became solid waste. “It’s not waste until it’s wasted” was a clever way to describe this point of view. Recyclers at the time viewed the Act as critical to their ability to create an economically sustainable industry.
The Court of Appeal found that the position of the franchised haulers lead to an unconstitutional taking of property rights. The state Supreme Court agreed to hear the case. California’s recycling associations and major businesses at the time participated in this important case by submitting amicus briefs. The amicus briefs of NCRA, CRRA, and Urban Ore, among others, supported the recycler and argued that under AB 939, solid waste was a residual category of materials that were not recovered by the 3Rs- in other words, if it went to the landfill it was waste; if it was recovered and did not go to landfill, it was not solid waste. CRRC, supporting the franchised haulers argued that if someone paid to have post-consumer material taken away, it was solid waste. The cities of Rancho Mirage and Palm Springs, and WMD, did not make this fee for service argument.
The logic of the fee for service test, adopted by the Court, perplexed many in NCRA. Although seemingly absurd, a competing garbage hauler theoretically could pay $1 for anyone’s discards and undercut the franchise hauler. Metals, which had enough value to be purchased by collectors, immediately became immune from franchises, to the pleasure of ISRI, that also filed an amicus brief. On the other hand, materials like wood and cardboard, with fluctuating markets, would be recycled by the collector, but were not valuable enough to offset the collection cost of driver and vehicle. These so-called negative material materials, often in mixed C&D became the friction point of the last 25 years between franchised haulers and non-franchised mixed C&D collectors.
The state Supreme Court decision was not a model of jurisprudence. Although the Court was purporting to interpret a state statute defining “solid waste” which the litigating parties argued was ambiguous, it did not follow state law in its method to resolve statutory ambiguity. State law precedent requires that a court interpreting a statute first look at its “plain meaning”, and if that was ambiguous, to be guided by the legislative purpose. But the Court did not cite any of the stated legislative purposes of AB 939. The Court did not cite the public policy of landfill avoidance. The Court did not cite the mandated hierarchy of resource recovery that put landfilling last in line. The Court did not cite the legislative command to develop markets for recovered material. State law is also clear that if the plain meaning of the statute is ambiguous and the legislative intent does not clarify the meaning, only then may the court resort to dictionary definitions. The Court used dictionary definitions of “discard” and “dispose” to justify its reasoning, but it selected one of many definitions found in the dictionary for these terms that helped its argument, ignoring others, and the definitions used by the court can no longer be found in published dictionaries today. The Court cited a District of Columbia case to support its conclusion but that case actually held the opposite. The Court did not address the Court of Appeal finding that the position of the cities and WMD was unconstitutional.
So while some recyclers were glad that the Court recognized that exclusive franchises could not cover all material, the recyclers that had to charge a collection service fee were faced with seemingly insurmountable legal problems in jurisdictions where the broadest possible franchise was granted.
An aggrieved recycler could file a state court case, but a trial court and a Court of Appeal were required to respect the Supreme Court precedent. A recycler could file a case and be resigned to losing in the trial court and court of appeal, in an effort to reach the Supreme Court again and request reconsideration. But the state Supreme Court is not required to hear all cases and in fact accepts less than 4% of those state cases that it is asked to review. One recycler in San Marcos tried this route and the Court would not hear the case.
An aggrieved recycler could try to file a federal law claim in federal court, but federal courts are required to defer to precedent established by a state Supreme Court deciding an issue of state law.
An aggrieved recycler could try to ask the state Legislature to change the statute to undo the state Supreme Court holding. Right after the Rancho Mirage case was decided, a waste hauler sponsored bill, SB 450, was introduced that would have allowed for exclusive franchising of all materials. NCRA and others mobilized to fight this bill and narrowly succeeded to defeat it. It was out of the question to think the Legislature would pass a recycler-supported bill to undo the Rancho Mirage case.
So mixed C&D recyclers were stuck. They could lobby local government politically to grant non-exclusive franchises that included C&D, like cities such as Oakland had. Local waste haulers often wielded a lot of local political clout. Political efforts to keep mixed C&D collection nonexclusive in Sonoma, San Mateo, and Contra Costa Counties failed.
Creative litigation strategies were tried. Since the legislature had declared landfilling harmful to the environment, the grant of a franchise inclusive of mixed C&D could be said to result in more landfilling and therefore environmental review under CEQA was required. This approach worked in Mendocino County. The threat of it worked in Napa County.
A Portland, Oregon, attorney specializing in transportation law argued successfully in the local federal court that a federal transportation statute, the FAAAA, preempted local exclusive franchises that included C&D (asbestos shingles in that case). But the Ninth Circuit reversed that case on procedural grounds. A California court of appeal case considered the same issue but the Court found that there was no preemption. The recycler in that case testified at deposition under oath with minimal preparation that what he hauled was “solid waste”, not recyclables, and that was enough for the Court.
An Alameda County fee for service paper collector defeated a challenge by a franchised hauler on the basis that the paper collector provided service – shredding- in addition to collection. Other C&D haulers looked at this possible way around the Rancho Mirage decision and found that the litigation cost and the uncertainty of success was not worth the fight. Deconstruction companies were not challenged to the best of the author’s knowledge. 1-800-Got-Junk franchises did not get targeted. The bait to get targeted by an exclusive franchisee was a roll off or debris box with signage listing the owner.
And so hope dimmed for C&D recyclers. Then, in 2010, the United States Supreme Court opened a door. In a plurality decision where there was a majority vote for the outcome but less than a majority approved any of the several grounds for the outcome, stated that a state Supreme Court, like any other government entity, could be found to act unconstitutionally where it impinged established property rights. This part of the decision was written by the late Justice Antonin Scalia, respected as a scholar even by his political opponents, and was joined by 3 other justices. If this was theoretically possible, then a federal court might be able to judge the constitutionality of a state Supreme Court action without being required to defer to it, if the decision impaired property rights that had been established previously. However no federal court so far has ever found that a state Supreme Court acted unconstitutionally in this manner.
Premier Recycling is a mixed C&D collector that has a fully permitted C&D recycling facility in San Jose. San Jose allows open competition for C&D while many of the smaller surrounding cities like Sunnyvale and Mountain View have exclusive franchises that cover C&D. It is difficult for a business to grow where it is limited geographically. It is like a plant in a planter box. Sonrise Consolidated was an early C&D collector in Alameda County that helped promote the mandatory C&D recycling laws passed in that County only to be forced out of business by a checkerboard of cities within the County where it was blocked from doing business by an exclusive franchise. Licensed contractors required by their building permit to document diversion could be tempted by a service provider that understood diversion to document it. Franchised haulers were not always as flexible about box delivery and pickup times as desired by the contractors.
Premier began to be targeted by cities within Santa Clara County for administrative fines where the city, acting for the franchised hauler, presented its case to a hearing officer employed by the City. Sunnyvale, whose SMART recovery center is a direct competitor of Premier’s C&D facility in San Jose, brought some of these actions.
Sunnyvale’s ordinance requires a permit to collect certain materials, C&D probably, but not clearly, among them. The ordinance speaks in terms of multiple licensees. Premier applied for a permit and was denied on the basis that Sunnyvale has an exclusive permitee. AB 939 allows exclusivity only where public health and welfare so require. The Sunnyvale City Council never made a public decision that the public health and welfare in Sunnyvale require exclusivity.
Premier filed suit in federal court asserting that its constitutional rights were deprived by Sunnyvale’s refusal to issue it a permit. Premier argued that Sunnyvale never made the finding required by law to grant exclusivity and that any action to grant exclusivity was void in light of the unconstitutionality of the Rancho Mirage decision as applied to a C&D fee for service collector in 2017. The District Court dismissed the case finding that Premier had not properly alleged a cognizable claim. Premier appealed. Squarely before the Ninth Circuit is whether or not the Court in Rancho Mirage ignored clearly established law and impinged on established property rights. While it is hard to predict that the Ninth Circuit will void a 25 year old state Supreme Court decision, Premier, never a party in the original Rancho Mirage case, at least will get its say about the jurisprudence of the case. Premier could also prevail on the issue that Sunnyvale never made the required finding before it granted an exclusive. Review of documents as part of a Public Records Act request makes clear that the exclusivity decision was made by staff working with the local hauler, not made by the City Council as required by the Brown Act.
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We Cannot Recycle Our Way Out Of Plastic Pollution

By John Douglas Moore, Co-Chair, NCRA Zero Waste Advocacy Committee

Please watch the 15 minute segment of Sunday, January 3’s edition of “60 Minutes” which first focused on Boyan Slat’s enterprise to clean-up large ocean plastic gyres by using a large net to collect it, and then segued to the global problem of plastic pollution, painting a pretty grim picture.

The show did not question Slat about what he intended to do with the collected plastic and gave a light brush to any current performance flaws in the technology. China’s National Sword was highlighted as impacting plastics recycling but did not address impacts on collected contaminated paper, cans, and bottles, and did not confront the big lie of single stream collection long advocated by monopolistic trash haulers.

An intelligent adult watching the show asked me “does this mean my plastic Starbucks cup does not get recycled when I put it in the store’s recycling bin?”

Lest you have any doubt that we cannot recycle our way out of plastic pollution and need to up our efforts to reduce plastic use and pollution, please watch this show segment. […]

 

What Does Brett Kavanaugh Have To Do With Zero Waste?

WHAT DOES BRETT KAVANAUGH HAVE TO DO WITH ZERO WASTE?
In case you have not read or heard enough about Brett Kavanagh
By John D. Moore, NCRA Vice President and Legal Counsel

Before being nominated to the Supreme Court, Brett Kavanagh was a judge of the US Court of Appeals for the DC Circuit. This Court frequently is asked to decide issues involving federal agencies, like EPA. EPA has extensive rules and regulations defining what is “recycling” or “recyclable” as distinct from solid waste. Hazardous waste is simply a subset of solid waste. EPA’s definitions have been used by other Courts in a variety of circumstances. Trust me that these regulations are difficult to follow with exceptions, exceptions to the exceptions, and tables purporting to summarize all these rules that are found in at least 10 places. On the other hand, “Solid waste” has never been defined by the Supreme Court notwithstanding that the Court has long declared solid waste to be an article of commerce for purposes of applying the Commerce Clause of the Constitution to local government actions involving flow control. Since Judge Kavanagh may have opportunity to shape the definitions of recycling and solid was a member of the Supreme Court, it is worth looking at Court decisions he has participated in which EPA’s definitions were challenged. EPA’s remit under the federal Resource Conservation and Recovery Act (RCRA) is to regulate landfill standards and to regulate disposal of hazardous waste. When a collector wants to salvage recyclable material from a hazardous item of waste, such as a foundry sand containing lead, this intersects with EPA’s regulatory oversight. For this purpose EPA has tried to distinguish and define “sham recycling.”

A lot of EPA’s rules were challenged by Industry Groups and the Sierra Club. Judge Kavanagh concurred in the majority (2-1) opinion. It really isn’t possible to summarize this case with any brevity since there were several discreet issues in interpreting interlocking regulations with extensive legislative and regulatory history found in the Federal Register. This cannot be quickly outlined. But there were two aspects of this opinion, API v. EPA 862 F.3d 50 (DC Cir 2017), that I thought reflected on Judge Kavanagh’s suitability to serve on the Supreme Court. One, the majority was able to comprehend an enormous regulatory scheme; and 2) the opinion reflects an understanding that RCRA and EPA regulations are not aimed at “materials that otherwise would become solid waste.”

This first impression relates to “qualification” to serve on the Supreme Court. As we have seen, these “qualifications” are not defined or even commonly understood, let alone uniformly applied. It’s a little like voting for the MVP in professional sport; it’s in the eye of the beholder and reflects the values of the beholder. I have observed in law practice a similar definitional problem. In child custody disputes, the overriding concern is the “best interests of the child.” And who could argue with that? But divorcing parents often have dissimilar views of what this means and their view is often colored by their perception of the other contestant for custody. In a no-fault divorce state like California there is no forum for a divorcing spouse to say why the other spouse is so bad. So that need for emotional outlet gets transferred unfortunately onto a fight over what is best for the child; with ugly results. You could make a good case that the framers of the Constitution intended that the selection of a Supreme Court justice with the “advise and consent of the Senate” be a political process and that the political party with the majority power got to use its own interpretation of qualifications for the office. And if the Senate majority decides that a past sexual assault and lying to the Senate were not disqualifiers, the framers would say “so be it”.

If one likes Judge Kavanagh’s views about distinguishing solid waste from recyclable and that “like” satisfies the “qualification” requirement, this is using a political view to make a political decision. And just like tribal societies in Central Asia, history is a cycle of those who are in and those who are out and where those that are in take what they want without regard to the overall health of the nation. I am sure that the framers did not intend this to happen. Many writers have opined how our country got to this state but few propose a solution to return to democracy and polite discourse in favor of the best interests of the country. When our leaders behave like spoiled children they are not acting in the best interests of the country.

Politics works in different and strange ways. Most blue state voters would agree that Earl Warren was among our greatest Supreme Court justices. But his appointment, having a very California flavor, was as political as any. There were 3 prominent Republican politicians who coveted the Presidency in the early 1950s. One was Warren, a popular 3 term Governor of California (and former Alameda County District Attorney who sought the death penalty), Senator William Knowland of Oakland (and owner of the Tribune then) who was the Senate Majority leader (the Mitch McConnell position) and Vice-President Richard Nixon of Whittier. The popular version of this story is that Knowland and Nixon went to President Eisenhower and asked that Warren be made Chief Justice to get him out of California politics. Many Republicans came to regret that choice and campaigned in the 1960s to have Warren impeached. Through this terribly political process came the one Justice with the skill to insist that Brown v. Board of Education end racial segregation and that the Court so rule unanimously to preempt any question of its legitimacy. Another Justice on that Court was Hugo Black of Mississippi who was a member of the Ku Klux Klan at the same age that Judge Kavanagh was throwing down brewskis. If either Warren or Black’s confirmation hearing resulted in them yelling about Democratic party conspiracies, I am not aware of it and seems unlikely given their temperament.

It’s a scary time. Foreign countries may be influencing our elections by subterfuge, questioning what information and which news broadcaster can you trust. Or maybe they haven’t been and that is part of the subterfuge. And who has the skill to figure that out? This country has weathered many crises. It should have the resilience to withstand Donald Trump and Brett Kavanagh. But maybe Kavanagh will surprise like Earl Warren did. You may not want to see either politics or sausage being made but you can hope the output is palatable.

 

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Boone/Stein v. Alameda County Waste Management Authority

What Happened and Why
By John D. Moore, NCRA Vice President and Legal Counsel, and Alameda County Source Reduction and Recycling Board Environmental Organization Member

Editors note: The opinions expressed in this article are the author’s own and do not reflect the view of NCRA or the Recycling Board.

In 2011, Waste Management (WM) obtained a permit from the City of San Leandro for expanded composting and anaerobic digestion at its Davis Street Transfer Station (DSTS). For California Environmental Quality Act (CEQA) compliance in 2011, San Leandro issued a negative declaration. As part of the 2011 permitting process WM obtained an amendment to the County Integrated Waste Management Plan (CoIWMP) that describes its 2011 plans. In 2017, WM decided it wanted to perform mixed waste composting at DSTS instead of what was approved in 2011. WM needed another amendment to the CoIWMP that described its 2017 plans and needed the Alameda County Waste Management Authority (ACWMA and StopWaste) to approve that amendment. In conjunction with this proposed CoIWMP amendment, the ACWMA was required to consider CEQA again and decide whether or not to require environmental review resulting from the project changes since 2011 and whether these changes posed significant potential adverse environmental impact. Stopwaste found that there had been no changes to the project since 2011 so that no further CEQA review was required. Arthur Boone and Dr. Toni Stein objected to the CEQA determination before the ACWMA, hired private counsel at their own expense and filed suit under CEQA for the ACWMA’s refusal to perform further environmental review.

First, the Court tentatively ruled in favor of Boone and Stein although its tentative ruling did not read like much of an endorsement of their suit. After oral argument the Court changed its mind and ruled in favor of the County and WM. Then, Boone/Stein asked Judge Ronni McLaren to reconsider her ruling, which she did. In Judge McLaren’s reconsidered ruling she again tentatively ruled in favor of Boone/Stein; this time in a more committed fashion. But, after oral argument, Judge McLaren changed her mind yet again and ruled in favor of the County and WM.

Why did Judge McLaren change her mind so much? There is no way to know for sure. At the start of the first hearing Judge McLaren announced that this was the first CEQA case that she had ever decided. That said, it appeared that Judge McLaren spent a lot of time and effort reviewing and considering the law. CEQA has two competing underlying policies: one is for full public transparency and disclosure of potential significant environmental impacts of proposed projects; the other is finality of public agency decisions about the project. CEQA requires the Court to give a lot of deference to public agency fact finding concerning CEQA evaluations. Stopwaste found that there had been no change in the project since 2011. I think Judge McLaren realized that this was just untrue and that the current proposed project never had a full CEQA review, but could not see what potential environmental impacts would result from the project changes that had been raised before the ACWMA. Judge McLaren had to follow the law requiring deference to Stopwaste’s determination of no project changes. The Court’s review was also limited to objections actually made at the agency hearing which focused more on air emissions than zero waste issues. .

Boone and Stein could appeal and argue that Judge McLaren applied the wrong legal standard in her decision. Courts of Appeal likewise give much deference to a trial court’s factual finding, i.e. that the administrative record before the ACWMA did not show potential significant environmental impacts from the changes in the project. Statistically, I think that the odds are very high that Boone/Stein would lose in a court of appeal.

Any other ways to challenge the WM project? WM has a 2011 permit from the City of San Leandro. The DSTS is also bound by a master plan including the site, which was approved by the City of San Leandro in 1998. If the current project violates either of these approvals, a possible challenge exists but a very quick statute of limitations is running on such a challenge.

What sort of further environmental review should have occurred? Recognizing that the project did change from 2011 and that mixed waste composting had not yet been tried in the US, potential environmental impacts of poor quality of output compost and the possible negative impact on source separation are things I think should have been studied. After the ACWMA hearing there was media coverage of the dissatisfaction of several European countries with mixed waste composting because of claimed poor quality of the output. A press release in connection with these reports coined the phrase “Compost-like output” or CLOs when discussing compost made from mixed waste.

Would that have made any difference, if known by the ACWMA? To me that seems unlikely. The ACWMA is a joint powers agency made up of all of the cities within the county plus two sanitary districts that provide for solid waste and recyclables collection. As a political body, its decisions are sometimes made for political reasons and it is possible under CEQA for a public agency to approve a project no matter how bad the disclosed environmental impacts would be. That said, one member of the ACWMA, the City of Oakland, was heavily invested in the approval of the mixed waste composting facility at DSTS because it is part of its franchise agreement with WM. Do I think that a majority of the ACWMA members would have voted to deny approval of a project so important to the largest city within the County? I think that is unlikely. The realistic best outcome would have been to impose some quality requirements in the compost output. WM told the ACWMA that its compost would meet certification requirements of one of the NGOs that certify compost. But this promise is not stated in any of the permits.

In hindsight, NCRA should have appeared at the ACWMA CoIWMP amendment hearing and raised concerns about source separation and compost quality, if only to ask the ACWMA to impose permit conditions relating to these concerns. I feel like in hindsight I should have pushed more in that direction. These concerns might ultimately have convinced Judge McLaren to insist upon more environmental review of the mixed waste processing component. But in the end I think the ACWMA would have approved the project anyway.

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