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Public Comments - Mosher, JimFebruary 18, 2014, CMSD Agenda Item Comments The following comments on Costa Mesa Sanitary District Board of Directors study session agenda items a re submitted by: Jim Mosher ( jimmosher@yahoo.com ), 2210 Private R oad, Newport Beach 92660 (949 -548 -6229) Item 3 . Public Comments (non -agenda items) As part of Item 12 or 13 at its January 23, 2014, meeting, the Board voted to change the date and place of its February 27 regular meeting. In my view, this was a double violation of two core principles of the Brown Act. First, unless this was an action the need for which staff could not possibly have anticipated 72 hours in advance of the Jan uary 23 meeting, it was required to clearly notify the public on the posted ag enda that such a decision would be requested of the Board (California Government Code Section 54954.2). Second, in considering the item , and before voting , the Board was required to provide an opportunity for public comment (California Government Code Section 5 4954.3 ). To the best of my knowledge, neither of these very sensible protocols was observed, and instead the CMSD Board decided to change its February 27 regular meeting date to February 25 (the fourth Tuesday of the month), without any announcement it was contemplating doing so and without any opportunity for public comment on the idea (since the public had no idea a vote was about to be taken ). Had the matter been properly noticed and handled, the public might have been able to inform the Board that 7:00 pm on the fourth Tuesday of the month is the normal meeting schedule f or both the Newport Mesa Unified School District Board of Education and the Newport Beach City Council, at least the latter of which frequently precedes its 7:00 pm meetings with study sessions. As a result, the CMSD Board, in making its decision, could have weighed the fact that by meeting at 5:30 pm on February 25 th it might be forcing ratepayers in multiple jurisdictions (for example, those living in Santa Ana Heights) to decide between which of several meetings affecting them they might wish to participate in. Moreov er, the reason for the unanticipat ed decision to change the CMSD regular meeting date was the anticipated large amount of public interest in the pending decision to institute a separate organics collection program in the area for which CMSD provides solid waste collection. The idea the Board was properly prepared to act on that on January 23, or will be on February 25, may also be flawed. CMSD staff appears to acknowledge that before voting to direct CR&R to institute an organics program, the Board needs to make val id CEQA findings. In Item 12 at the January 23 regular meeting, the Board was asked to declare ―the proposed modifications to the trash collection program are not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (“the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment”) and 15060(c)(3) (“the activity is not a project as defined in Section 15378”) of the CEQA Guidelines, California Code of Regulations, because it has no potential for a change in the environment. Additionally, because the processing of organics will act to protect the environment, a Notice of Exemption should be filed under CEQA Guideline 15038 .‖ February 18, 2014, CMSD agenda item comments - Jim Mosher Page 2 of 6 In view of the public comments received by the Bo ard, I find it highly improbable that instigation of the organics program could be viewed as either ―not a project ‖ or a project that ―will not result in a direct or reasonably foreseeable indirect physical change in the environment .‖ Furthermore, n ot on ly is there no ―CEQA Guideline 15038 ‖ (possibly a typo for CEQA Guideline 15 3 0 8 , which exempts certain ―Actions by Regulatory Agencies for Protection of the Environment ‖), but a number of the ―facts‖ on which the Board based its January 23 rd decision do no t appear to be correct. Among those cited in the Item 12 staff report and repeated orally to the Board (and public) at the January 23 regular meeting: 1. ―The additional truck route will add 450 miles to the existing total mileage driven of 4,050 within the District’s service area . The environmental impact being reviewed by the District consists of the additional truck route from CR&R within the District’s service area.‖ It h as since been acknowledged (including at a February 8, 2014, CMSD Townhall presentation ) that instituting the organics program will not add a single additional route of 450 miles , but rather will require the CR&R fleet to cover every street twice , adding 4,050 miles to those already driven each week by heavy trash collection vehicles within the District’s service area . This could have environmentally negative effects on traffic, noise, emissions and wear and tear on the civic infrastructure, which were not considered in the Board’s January 23 decision even though some of them had already bee n questioned by the Costa Mesa Mayor and CEO at the December 13, 2013, Liaison Committee Meeting. 2. ―Routes from Stanton to Perris are considered part of CR&R’s Perris analysis .‖ Without having read the EIR for the Perris facility, this is not obvious. I be lieve the Perris City Council was told approval of the facility would generate only a small number of additional truck trips on their streets. If CR&R is proposing that the local CMSD fleet , and those from other southland cities, will be driving to Perris to refuel, that could be significantly different from what was analyzed. 3. ―RNG will be used to fuel CR&R’s fleet servicing the District’s service area .‖ This statement has been made repeatedly, and although it is true the CMSD organics will be used to pro duce RNG, it is not at all clear the RNG produced in Perris will actually be used to fuel the collection trucks operating within the District’s service area . CR&R acknowledged at the February 8 Townhall that the local trucks collecting the organics will n ot normally be going to Perris. Instead, most of the organics will be transported from Stanton to Perris by diesel -fueled semi -trucks and trailers. I believe CR&R has also said the RNG produced in Perris will be compressed and dispensed through an existi ng CNG fueling station there. I n continuation of the previous comment, i t is not at all clear to me how CR&R plans to get the Perris -produced RNG to CMSD (or Stanton) to fuel the local fleet in an environmentally friendly manner. To me, an environmentall y more sound possibility would be to pipe the Perris -produced fuel into the general February 18, 2014, CMSD agenda item comments - Jim Mosher Page 3 of 6 natural gas distribution infrastructure, from which it could be dispensed locally (much as excess solar power is fed into the general electrical distribution grid), but that see ms fundamentally different from how the public has been told the program will operate. 4. ―Since the entire CR&R fleet servicing the District burns RNG, there is no potential for change in the environment based on vehicle emissions .‖ It is news to me that th e local CR&R fleet already burns RNG. I thought that the conversion from CNG to RNG was being touted as an environmental benefit of the new program . If this statement was instead intended to imply that burning RNG produces ―negative‖ emissions, I believe that is factually i ncorrect as well. The negative carbon footprint cited by CR&R refers to a complete lifecycle analysis from growing crops to transportation to consumption of the resulting fuel. It does not apply to the local burning of R NG fuel as an isolated activity. The latter obviously produces emissions, probably very similar to those produced by burning other forms of ―natural gas.‖ 5. In addition to the environmental concerns brought to the Board’s attention in the January 23 rd Item 12 staff report , and although CMSD staff anticipates no increase in the total tonnage collected , the program as propos ed offers free additional waste carts to consumers . At the townhalls , ratepayers have repeatedly raised questions about the additional visual clutter and other problems those extra carts cou ld produce , as well as whether they will encourage a greater volume of waste to be discarded , producing a result counterproductive to the intended purpose of the program . 6. Finally, a fundamental purpose of environmental analysis is to objectively and creati vely explore alternative ways to achieve the objectives of the program being proposed. In the present case many alternatives can easily be imagined, including trucks with partitioned compartments allowing collection of both waste streams in a single pass, and disposal of the organics at a facility other than the one being built by CR&R in Perris (with less haulage and perhaps other advantages : see, for example, Item 4.f , below ). All the above environmental concerns could prove to be unwarranted and /or be found to result in no ―significant‖ degradation by CEQA standards , and the alternatives may prove ―infeasible .‖ However, unless CMSD can find a statutory or categorical exemption that clearly applies to the prop o sed project, I believe the potential for negative environmental impacts and bet ter projects means the CEQA procedures require the filing , at a minimum , of a Negative Declaration (or Mitigated Negative Declaration) based on an Initial Study. In addition, one would assume prudence dictates that notice sh ould be circulated to other loc al agencies for their comments. As explained in Article 6 (Sections 15070 to 15075 ) of the State CEQA Guidelines , the adoption of a Negative Declaration requires published notice and a mandatory 20 day public review period before the Board can approve the project in question. Since to the best of my knowledge the public has not been informed that a decision on a Negative Declaration (or MND) is pending, it is hard for me to understand how (in the absence of a valid CEQA exemption) the CMSD Board could appr ove the organics program at its February 25 special meeting. February 18, 2014, CMSD agenda item comments - Jim Mosher Page 4 of 6 Note b y way of further explanation regarding the previously mentioned Brown Act issues : The January 23 agenda definitely contained no hint the Board would be voting to change the date , time or p lace of its February 27 regular meeting . Indeed, one of the two possible alternative action s listed under Item 13 (―Direct staff to organize additional Town Hall meetings and report back to the Board on February 27, 2014 ‖) appears to acknowledge that Febr uary 27 would be the Board’s normal meeting date. In my view, if staff or the Board wanted to select a different ―report back‖ date as a variant of the recommended action on Item 13 , that new date should have been for the sole purpose of continuing the co nsideration of Item 13 . It should not have affected the entire next regular meeting, where the Board would be expected to deal with issues unrelated to Item 13. In addition , the fact that a date other than the one clearly listed on the agenda might be co nsidered to hold a special meeting for continued action on Item 13 should have been announced in such a way that the public interested in Item 13 had an opportunity to comment on the pros and cons of various dates, times and locations . Item 4.a. Rec ycling & Waste Diversion Report At its November 12, 2013 , Study Session, the Board received a ―CR&R Diversion Estimation Report ‖ prepared by Michael Balliet Consulting, LLC , (―MBC‖) and dated September 20, 2013 , with a recommendation to ―accept the new diversion methodolog y and require CR&R to use this method in all future sorts .‖ The present agenda item appears to be the first Recycling & Waste Diversion Reports incorporating the results of the new MBC methodology, at least for ―Area 9‖ (the categories and percentages used fo r ―Area 11‖ [Santa Ana Heights] appear unchanged from those used in earlier reports). I n my view, CR&R has completely failed to understand the MBC results, and the reporting has gone from bad to worse. CR&R appears to be operating under the assu mption that 57.84% of the 3 ,239.15 ton total collected in ―Area 9‖ in January was diverted from the landfill, and that those 1,873.52 tons were diverted in the ―Commodity ‖ categories and percentages shown, which no longer include s uch previously reported things as PET, HDPE and aluminum cans. I am unable to find anything in the MBC report to support the assumption that 57.84% is diverted, or that the part that was diverted was diverted in the proportions show. Indeed, the percentages shown under ―Commodity ‖ result from a misap plication of numbers shown in the ―6” Minus from Hand Sort ‖ table at the bottom of page 18 of the MBC report. There are many things I can’t fully follow in the MBC report, but as best I can tell 6‖ minus material is not normally hand sorted and the ―6” M inus from Hand Sort ‖ table represents an experiment conducted on the very tiny sample of debris shown lying in a small heap in the last photo on page 18. My understanding is that this was somehow regarded as a ―representative sample ‖ of all the material between 2‖ an d 6‖ in size , and the purpose of the experiment was to estimate what the fate of this material would be when it was put through CR&R’s mechanical separator . The use of the table is illustrated at the bottom of page 21 and the top of page 24, where it will be noted that MBC assumes none of the material in several of these categories (textiles, food waste, concrete and wood) will be successfully diverted from the landfill . February 18, 2014, CMSD agenda item comments - Jim Mosher Page 5 of 6 CR&R is misapplying these percentages (which bear no relation to the expected or measured diversions from the 6‖ pl us materi al that is actually hand sorted ) as if they applied to the entire waste stream and as if all of each category is diverted from the landfill. This leads to completely erroneous results, such as the statement to the Board that in January 148.38 ton s of Costa Mesa residential food waste was diverted from the landfill. MBC’s actual estimates of the diversion of samples collected on September 10 (―Sort 1‖) and 12 (―Sort 2‖), 2013, are shown on pages 20 and 23 of the MBC report. Their conclusion is th at zero food waste is being recycled, and instead it is all being disposed of at the landfill. Likewise, the CR&R report indicates 360.09 tons of ―fines‖ were recycled. Even if the total were correct, which it is not, MBC estimates that only 5% of the ―fi nes‖ can be recycled, and the remaining 95% is disposed of at the landfill. In the largest category by weight , CR&R reports 842.52 tons of green waste being recycled (including fines), amounting to 26.01% of the total waste stream. By contrast, MBC’s results (on wh ich the current CR&R estimates are supposedly based) were that 36.2% of Sample 1 (1,416.88 of 3,913.46 tons) and 33.3% of Sample 2 (421.97 of 1,265.92 tons) consisted of recyclable green waste (including fines). The remaining numbers are similarly unrefle ctive of the MBC study. Item 4.h. Sewer Manhole Inspection Program – Update The report seems very sensible and well -written, however s ince much of Costa Mesa and Newport Beach was undeveloped when CMSD was formed in 1944, it is surprising to hear (at least by implication) that the entire sewer infrastructure is 70 years old. Aren’t there significant portions that that are newer than that – say 40 or 50 years old , or perhaps even less (see, for example, Item 4.j)? Item 4.f. OC Waste & Recycling Meeting Report Item 3 of the Analysis se ems particularly pertinent since it suggests there is already an Anaerobic Digestion Facility operating in Irvine . The presentations at the recent CMSD townhall meetings have suggested the one being built by CR&R in Perris will be unique. Since it has bee n established that a residential organics collection program will require separate containers and separate trucks , the use of a different facility or a different hauler would seem ―on the table.‖ February 18, 2014, CMSD agenda item comments - Jim Mosher Page 6 of 6 Item 4.i. South Coast Plaza Hydrogen Sulfide Reduction Prog ram The administrative citation fine of $250 seems like it is at a level that could be easily ignored by a successful business . Is it a onetime charge? Or can it be applied repeatedly if the situation is not corrected? Section 1.06.070 of the CMSD Opera tions Code suggests it can be re -issued every 30 days on an escalating scale? On page 29 of the staff report, the letter to March Moderne starts ―Dear Boudin Bakery,‖ which may have been off -putting. The letters also notified the recipients of a 15 -day appeal period. Is it safe to assume that no appeals have been filed? Item 4.j. Project #202 – Elden Valve Replacement I t is good to read the plans will be shown on the projector screen at the Study Session , but i n the copy of the staff report I downloaded on February 13 th , I was unable to find ―the construction plans for Project #202 ‖ which are said to be ―complete and attached hereto for reference.‖ Closed Session Notice The Closed Sess ion announcement s provided near the end of the Study Session agenda seem well written to me, and generally provide more information than the minimum required by law, although the Board may wish to know that most agencies more closely follow the ―safe harbo r‖ language of Government Code Section 54954.5, which would s et these items off with all capital title lines highlighting the topics to be addressed (in this case ―CONFERENCE WITH REAL PROPERTY NEGOTIATORS ‖ and ―CONFERENCE WITH LEGAL COUNSEL —ANTICIPATED LITIGATION ’). It al so seems unusual to not assign agenda item numbers to the closed session decisions. A final minor note: the safe harbor recommendation for the first item is to identify the property under negotiation by a street address, or if there is none, by an Assesso rs Parcel Number. I assume it is also understood that Mr. Hodges , the attorney for the property owner, would not be allowed to participate in the closed session . The purpose of the closed session is solely to provide instruction to the agency negotiator(s ) regarding price. It is not to complete the negotiation, and Mr. Hodges’ status with respect to the closed session is the same as that of any other member of the public: he can provide comment beforehand, but he is not invited in.