Newsletter – Page 32 – Northern California Recycling Association

The AD Lawsuit You May Not Know About

Editors Note: Have you heard about the pending lawsuit challenging City of San Leandro and Alameda County Waste Management Authority’s CEQA approval of the proposed Waste Management of Alameda County Mixed Waste Anaerobic Digestion facility? If built, the facility will have a huge impact on how discards are handled in Alameda County – and this region, for decades to come. Is the digestion of mixed waste the highest and best use of these discards? Does this approach qualify as Zero Waste? Could that money be better spent on outreach and public education? Why hasn’t this been covered by the press? This is an issue that NCRA members should be discussing and debating

By Arthur R. Boone, Center For Recycling Research and Total Recycling Associates
Petitioners Stein and Boone filed a lawsuit in late April challenging the CEQA duties of the parties. After finding counsel in early May, the petition was rewritten and filed in early August. There is no pre-trial discovery but simply analysis of the administrative record to find (or oppose those findings) in the petitioners’ complaint. The moving parties filed their briefs at the end of October, citing many shortcoming in the proceedings. (Due to the high cost of pre-paid counsel, Boone withdrew from the Stein-led lawsuit in late October and filed his own brief.) Defendants briefs are due December 10th (although not released at press time, saying no doubt that they followed CEQA exactly) with the petitioners having a chance to rebut any arguments by January 10th before the show-down before the judge on January 30th.

The most interesting arguments against the proceedings are that:
1) City of San Leandro and Alameda County Waste Management Authority voted on two different proposals.
2) Defendant Waste Management of Alameda County changed its plans with inadequate documentation.
3) The various approving agencies failed to consider a “no project” alternative before starting their approval processes.
4) Alameda County’s ban on incineration includes gas produced from waste materials that is burned for energy, even though the facility is located within the City of San Leandro and not on county land, and
5) The changed status of the project’s area (a piece of the Davis Street Transfer Station) by adding a definition of non-attainment to the air in that space between the projects first light (2011) and its final approval (2017) is a “changed circumstance” which under CEQA would require more staff work.

Recycle Bicycle – West Oakland Tour

By Tim Dewey-Mattia, NCRA Co-Chair – Membership, Engagement and Activities Committee, 12/5/17

Postponed a month due to the smoke from the North Bay fires, the new date for the West Oakland Recycle Bicycle tour brought sunny skies and a dozen NCRA bicyclists out to Frank Ogawa Plaza. The group set out up San Pablo Avenue and over to the now-shuttered site of Alliance Recycling, a buyback center – the focus of the movie Dogtown Redemption – that recently closed due to neighborhood opposition. We discussed the compounding pressures on buyback centers – unsustainably low state processing payments, skyrocketing rents and rapid gentrification of neighborhoods like West Oakland.

Down Peralta Street at the West Oakland Farm Park, it was a much more uplifting scene. Here City Slickers Farm has a community farm, kitchen and playground that provides food and a gathering space to the community. We enjoyed some bites of fresh veggies before cruising just around the block to marvel at the massive metal piles at CASS Inc, aka Custom Alloy, which processes both ferrous and non-ferrous metals.

Next was a quick peek in the gates of Oakland’s single-stream recycling MRF, California Waste Solutions (not open on the weekend). With China’s dramatic announcements to cut back on imports and the proliferation of random plastic packaging, curbside collectors are feeling the squeeze. Investment in recycling infrastructure and domestic markets would certainly be appreciated.

Down Mandela Parkway and over to Magnolia St, we came to the highlight of the tour – the O2 Artisans Aggregate Eco-Industrial Park. Such an impressive and cool spot – with tons of cool reuse and recycling industry going on. Aitan Mizrahi gave us an hour tour, as we poked our heads in on a sake factory, a soldier fly larvae to animal feed operation, salvaged woodworking, aquaponics…and of course, the Don Bugito “pre-hispanic snackeria”, where they grow edible insects inside a tidy old shipping container.

We hopped back on our bikes and passed the only open buyback center left in West Oakland, National Recycling, then headed past the EBMUD digesters and out to the Port of Oakland. The Middle Harbor Shoreline Park is an under-the-radar and amazing park with panoramic views of the bay, the bridge, the San Francisco Skyline and the port around you. The Port of Oakland is the 5^th biggest container port in the US, and recyclables make up about a quarter of total exports – that comes to approximately 2 million tons of recyclables shipped out in 2016 alone. We had a discussion of the impending moves by China and the impacts on markets.… and a quick snack of tasty chocolate covered crickets and spicy mealworms that we picked up from Don Bugito.

The Sutta Company and Schnitzer Steel are both visible from the Adeline overpass, as we headed back from the port and over to our final destination – Old Kan Beer & Co, for beer and food. The fish & chips are highly recommended.

All in all, it was a very enjoyable and interesting few hours exploring the Zero Waste landscape of West Oakland – where the scope and range of different recycling businesses is quite remarkable and always changing.

Thanks again to board member Hilary Near for planning out the route and for being a superb tour guide – and if you missed it, keep posted for another West Oakland Recycle Bicycle tour coming up in 2018!

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Should This Genie Be Let Out Of The Bottle?

Should electronic signatures be allowed to count to place initiatives on the statwide ballot?

By John Douglas Moore, co-chair NCRA Zero Waste Advocacy Committee

Feedback invited: jmoore@recyclelaw.com

California has a citizen form of government. Its citizens may pass laws (initiatives), strike down laws that have been passed (referenda), and remove from office those lawmakers passing offensive laws. (recall). California also has a recycling-friendly electorate- witness the defeat of the plastic bag business on the two referenda against bag bans in 2016. Closer to home, Alameda County Measure D with its 75% diversion mandate, landfill surcharge, and agency creation (Stopwaste) passed with over 60 % of the vote in 1990.

There is big catch to the idea of placing a statewide initiative on the ballot: To place a statewide initiative on the ballot one must collect 365,880 (5% of the total votes cast in the last gubernatorial election) signatures “personally affixed” by registered voters and witnessed by a “circulator” of the petition collecting the signatures.

Big business can place initiatives and referenda on the ballot because they can pay signature gatherers the market rate per signature, a cost in millions of dollars. Plastic bag makers, waste haulers and landfill owners, and beverage manufacturers and distributors all have the resources to put laws before the voters. In many situations it is all the opponents can do to fight against initiative and referenda, leaving those opponents so tapped of energy and resources that they cannot fight to pass laws they support. Last year’s Proposition 67 battle is a good example. Outspent by many millions of dollars, the recycling community including NCRA and CAW mounted an effective campaign to keep California’s plastic bag ban. But proposing a statewide law itself- say banning disposal of organic material at landfill, or constructing a new bottle bill that works- is too much to contemplate, mainly the required 365,880 signatures. (585,045 signatures to pass a Constitutional amendment).

But what if the signature gathering process was made easier? In the Twitter age is it too arcane to require “wet” signatures witnessed by a circulator. Can’t the internet be used to equalize the strength of opponents as it does it many ways already?

In 2011 a California Court of Appeals held in Ni v. Slocum that an e-signature drawn on a smartphone could not be counted towards the requisite number of votes in a county-wide (San Mateo County) initiative campaign to legalize marijuana. No California appellate court has taken up the issue since. One Utah court decision before Ni and one West Virginia court decision following Ni have held electronic signatures to be adequate for electoral purposes. Each Court examined the Uniform Electronic Transaction Act that was adopted by both states and California that gives e-signatures the same binding effect as wet signatures.

The Court in Ni found that the UETA did not supplant a more specific provision of the state Elections Code that does not provide for e-signatures. The Court also held that the state statutory requirement of a circulator to witness the signature of the registered voter negated the validity of e-signatures obtained on the internet and not through circulators. The Court further pointed out that a law to permit e-signatures to be used on electoral documents was passed by the state Legislature in 1997-98 only to be vetoed by then Governor Pete Wilson. Perhaps it will be technically possible in the future to satisfy the need for a “circulator” of petitions collecting signatures. Since the Ni decision is hostile to the very idea of sanctioning judicially the collection of signatures on the internet, it seems doubtful that a technology change rather than a law change would change the result in Ni. A non-profit, Electronic Signature Records Association and a for-profit technology vendor, Verafirma, are active in this field.

So Zero Waste advocates frustrated with the mills of the Legislature grinding slowly (if ever they grind at all)[1] could focus on legalizing the use of e-signatures to place statewide initiatives. The Legislature could again be convinced to pass such a law with the idea that Governor Brown would not veto it. The issue of permitting e-signatures itself could be made the subject of a statewide initiative. These pathways would require massive energy and time.

Which leads to the question- would this even be a good idea? Making the process to pass new laws easier for positions that one likes also makes it easier for positions one does not like. Look how many votes our current President received. Would letting this genie out of the bottle make for not a citizen government but for a CocaCola Government or a Waste Management government?

The political commentator, Kathleen Moore, says that “Our technology is moving faster than our morality”

I solicit your views.

[1] Henry Wadsworth Longfellow