BILL ANALYSIS �
SB 833
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Date of Hearing: June 27, 2011
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Wesley Chesbro, Chair
SB 833 (Vargas) - As Amended: April 25, 2011
SENATE VOTE : 32-3
SUBJECT : Solid waste: disposal facilities permit: San Diego
County
SUMMARY : Prohibits the operation of a solid waste landfill in
San Diego County that is located within 1,000 feet of the San
Luis Rey River and within 1,000 feet of a Native American sacred
site.
EXISTING LAW:
1)Prohibits the deposition of solid waste at a solid waste
facility without a solid waste facility permit.
2)Prohibits a person from operating a solid waste facility
without obtaining a solid waste facilities permit. Requires
the local enforcement agency to immediately issue a cease and
desist order to immediately cease all activities for which a
solid waste facilities permit is required and desist from
those activities until the person obtains a valid solid waste
facilities permit.
3)Requires that any area or areas identified for the location of
a new solid waste transformation or disposal facility shall be
located in, coextensive with, or adjacent to, a land use area
authorized for a solid waste transformation or disposal
facility in the applicable city or county general plan.
4)Requires that if a county determines that existing capacity
will be exhausted within 15 years or additional capacity is
desired and that there is no area available for the location
of a new solid waste transformation or disposal facility or
the expansion of an existing solid waste transformation or
disposal facility which is consistent with any applicable city
or county general plan, the siting element shall include a
specific strategy for the transformation or disposal of solid
waste in excess of remaining capacity.
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5)Establishes the California Native American Heritage Commission
(NAHC) as the state's "trustee agency" for the protection and
preservation of Native American cultural resources, sacred
sites on public land and Native American burial sites. NAHC,
among other things, facilitates consultations between
California Native tribes and local governments.
THIS BILL: Prohibits a person from constructing or operating a
solid waste landfill disposal facility in San Diego County if
that facility meets both of the following conditions:
1)Any portion of the disposal facility is located on or within
1,000 feet of the San Luis Rey River or an aquifer that is
hydrologically connected to that river, and
2)The disposal facility is located on or within 1,000 feet of a
site that is considered sacred or of spiritual or cultural
importance to a tribe, as defined, and that is listed in the
California Native American Heritage Commission Sacred Lands
Inventory.
FISCAL EFFECT : According to the Senate Appropriations
Committee, there will be $1 million in lost revenue to
Caltrans's State Transportation Fund.
COMMENTS :
1) Purpose of the Bill. The purpose of this bill is to
prevent the proposed development of the Gregory Canyon
Landfill, a landfill and recycling center that will be
located at Gregory Canyon in San Diego County. The
proponents of the bill believe that preventing the
development of the Gregory Canyon Landfill will protect
critical drinking water sources, sensitive habitat, and
sacred Native American sites in northern San Diego County.
The opponents assert that the Gregory Canyon Landfill is
environmentally safe and that the bill thwarts the will of
San Diego voters who twice voted in support of the
landfill.
Gregory Canyon and the Surrounding Area. The proposed site of
the Gregory Canyon Landfill is located within an approximately
1,770 acre parcel in northern San Diego County along State
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Route 76, roughly 20 miles northeast of the coastal city of
Oceanside and approximately two miles southwest of the
community of Pala.
The site is situated on the western slope of Gregory Mountain
and on one of the tributary canyons to the Pala groundwater
basin. There have been 39 sensitive animal species observed
on the landfill site. Of the 39 species observed, three of
the species are federally endangered (i.e., southwestern
willow flycatcher, least Bell's vireo, and southwestern arroyo
toad) and one of the species is federally threatened (i.e.,
coastal California gnatcatcher). The vireo and flycatcher are
also listed by the state as endangered.
The eastern portion of Gregory Mountain is on the Pala Indian
Reservation, a 12,273-acre reservation, established for Cupe�o
and Luise�o Indians who now consider themselves as one people,
the Pala Band of Mission Indians. Gregory Mountain, called
"Chokla" by the Luise�o, is one of the most spiritually
important places in the Luise�o world. It is believed to be
one of the residing places of "Taakwic," a powerful and feared
spirit that is the guardian spirit of many Shoshonean shamans.
The entire mountain, including the area within the proposed
landfill boundary, is considered an important place for
fasting, praying, and conducting ceremonies by the Luise�o.
Medicine Rock, which is a historic resource as defined by the
California Environmental Quality Act (CEQA) Guidelines, is
three stories tall and located north of the project site. The
rock art at Medicine Rock is an important spiritual site to
the Luise�o people. Based upon ethnographic testimony and
ethnohistoric literature, some of the paintings at Medicine
Rock may have been made in association with female puberty or
Wakenish ceremonies held by the people of Pala.
Just east of Gregory Canyon is the Pala Casino Spa & Resort,
which consists of 10 restaurants, four entertainment venues, a
10-story, 507-room, AAA four-diamond hotel, and a
10,000-square-foot day spa. This establishment opened in 2001
and is maintained by the Pala Band of Mission Indians.
2) The Landfill Project. The entire Gregory Canyon
Landfill project comprises of approximately 308 acres. No
less than 1,313 acres of the remaining area on the landfill
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property will become permanent open space with
approximately 248 acres going toward habitat creation and
enhancement. The landfill, which has an estimated 30 year
life, will add approximately 30 million tons of landfill
capacity to the solid waste disposal system in San Diego
County.
Groundwater protection at the proposed landfill involves the
liner design (including a leachate collection system), a
subdrain system, and groundwater monitoring and extraction
wells. A multiple-layer liner and a leachate collection
system would be installed by the applicant to a design
approved by the Regional Water Quality Control Board (RWQCB).
The liner system to be installed at the proposed landfill
exceeds the prescriptive design standards required by RWQCB
the regulations. If leachate were to penetrate the top soil
layer, it would be collected in the upper leachate collection
and removal system. If leachate were to penetrate further,
through the three-layer membrane and clay barrier beneath the
leachate collection system, there is another nine inch thick
zone with gravel and drainage pipes to collect liquid, with a
membrane and clay barrier beneath that.
The facility also will have groundwater monitoring and water
production wells which are designed to detect contamination
and to intercept any contaminated groundwater and treat it in
a dedicated water treatment plant before it can reach the San
Luis Rey River. These wells will be regularly monitored for
contamination.
In addition to the financial assurance requirements provided
in the regulations, the applicant has agreed with the San Luis
Rey Municipal Water District to supply replacement water and
obtain a $100,000,000 environmental impact liability insurance
policy in the event of off-site pollution impacts.
3) Trash Wars. The proposed Gregory Canyon Landfill has
been the focus of a drawn-out legal and political battle
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dating back to the 1980s. Over the past four decades, the
proposed landfill has involved, among other things, two
local initiatives, state legislation, a governor's veto,
and continuous litigation.
In the 1980s, San Diego County conducted a North County
Landfill Siting Study to identify possible landfill sites.
Gregory Canyon was identified as a possible site; however, the
County of San Diego's Board of Supervisors was not supportive
of a landfill at that location. In a 1990 letter to the
Regional Planner, County staff stated its opposition to the
landfill by stating that "it would result in SIGNIFICANT AND
NOT MITIGABLE impacts, both to the archaeological and
ethnographic resources of the area." (emphasis not added)
In November 1994, the proponents of the Gregory Canyon
Landfill sponsored Proposition C, a county-wide initiative
that sought to bypass the Board of Supervisors in order to
facilitate the development of the landfill. Proposition C was
approved by the voters with 68% of the vote. The initiative
specifically amends the County's General Plan, Zoning
Ordinance, and other ordinances and policies to allow the
construction and operation of the Gregory Canyon Landfill.
Proposition C also requires the project to fully comply with
all environmental laws and regulations and the dedication of
more than 1,000 acres of land as permanent open space.
Since the passage of Proposition C, the proponents of the
landfill have been working to obtain all necessary permits and
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to meet all regulatory requirements.<1> Opponents of the
landfill have filed several lawsuits challenging the project,
one of which reached the California Supreme Court (for a more
detailed explanation of the permit and litigation history
associated with the Gregory Canyon Landfill, see the Senate
Committee on Environmental Quality's May 2, 2011 bill
analysis). Despite challenges and setbacks caused by lawsuits
and the regulatory process, the proponents of the landfill are
still pursuing the project.
There have also been a few attempts to nullify Proposition C
through state legislation. The most notable up until this
year was AB 2752 (Cardoza) of 2000, which would have
prohibited the California Integrated Waste Management Board
(now DRRR) from concurring in a permit for a proposed solid
waste landfill for which a petition has been received by the
board from an Indian Tribe. Governor Davis vetoed the bill
explaining that he was compelled to give deference to the San
Diego voters and the regulatory process.
--------------------------
<1> The siting, construction, and operation of a solid waste
landfill is a complex process. The solid waste facility permit
is just one of potentially a dozen or more local, state, and
federal permits required to construct and operate a landfill.
Generally, basic requirements include compliance with CEQA and
local operation, land use and siting rules, including
conformance with the General Plan. Permits must also be
obtained from the state and regional water quality board and
local air district. Federal permits are often required by the
Clean Water Act for water quality and US Fish and Wildlife
Service. A solid waste facility permit issued by the Department
of Resource Recovery and Recycling (DRRR) is the focus of SB
833, but is just one of many permits and processes that must be
complied with before construction and operation can commence.
No single approval by itself is enough to allow the project to
go forward. Denial of a required permit or approval would
prevent the project from going forward as currently proposed,
unless there was a successful litigation challenge to the
denial, or unless the project was modified and approved in a
modified form.
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In 2004, the opponents of the landfill sponsored Proposition B
in San Diego County, which was an initiative to repeal
Proposition C. The voters rejected the proposition with 64%
of the vote. This marked the second time the electorate in
San Diego County expressed its support for the Gregory Canyon
Landfill.
The bill at hand is one of the latest attempts to stop the
Gregory Canyon Landfill project. On May 10, 2011, the San
Diego County Board of Supervisors, which was originally
against the landfill project, voted four to one to oppose the
bill because, among other things, it negates "the will of San
Diego County voters."
4)Is there a need for the landfill? In 1999, approximately 24%
of the solid waste generated in San Diego County was generated
in northern San Diego County (North County). The Gregory
Canyon Landfill will be the only landfill located in North
County-the major landfills in the county are located in
central and south county. According to the San Diego County
Solid Waste Local Enforcement Agency, North County's waste
generation will likely be similar to or in excess of the
annual maximum permitted tonnage at Gregory Canyon Landfill.
If North County is able to utilize the Gregory Canyon
Landfill, there could be less greenhouse gas emissions because
there would be fewer vehicle miles traveled to dispose waste.
Additionally, the proponents of the project state that the
Gregory Canyon Landfill would provide cost-effective disposal
for North County.
On the other hand, San Diego County as a whole has
approximately 78 million tons of solid waste capacity
remaining. Sycamore Canyon Landfill is currently pursuing an
expansion to its facility that would increase capacity by
approximately 100 million tons. Additionally, in 2010, voters
in San Diego County approved Proposition A, which proposes to
develop a 340 acre site in eastern Otay Mesa into a landfill
facility with a solid waste disposal capacity far greater than
the Gregory Canyon Landfill.
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It should be noted that several North County cities that will
allegedly benefit from the Gregory Canyon Landfill, including
Oceanside, Solana Beach, and Del Mar, oppose the project. The
main concern these cities have is regarding groundwater
contamination.
5) Groundwater Contamination Arguments. According to the
supporters of the bill:
The proposed landfill would be built next to the San
Luis Rey River and over fractured bedrock that is
connected to an aquifer system under the river. This
aquifer system is a major source of drinking water for
the City of Oceanside and other communities and
residents along the river and would be seriously
impacted by a leak from the proposed landfill and the
30 million tons of garbage that would be buried would
forever threaten these critical water resources. In
addition, the need for blasting of bedrock to
construct the proposed landfill for heavy garbage
trucks to access the site across two San Diego County
Water Authority pipelines could damage those pipelines
and seriously disrupt the County's supply of drinking
water.
According to the opponents of the bill:
The Gregory Canyon liner system will prevent any
release of contaminants making this a virtual
non-issue, but beyond that additional protections are
in place. A drainage layer immediately below the
liner would convey any liquids via pipe out of the
landfill for containment and treatment/disposal.
Continuous pumping of the monitoring wells screened in
fractured bedrock at the toe of the landfill will
create an effective groundwater barrier between the
landfill and the alluvial aquifers. A dedicated water
treatment plant will be constructed before receipt of
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any waste and will be ready to use at any time if
needed.
Even if there were a release, only very small amounts
of contaminated water would be transported from the
fractured bedrock to the very large alluvial aquifer
used for drinking water, not enough to even be
detectible beyond a short distance within Gregory
Canyon's property.
Dr. David Huntley, Professor Emeritus, San Diego State
University, an expert in fractured rock hydrogeology,
stated in a 2009 technical memorandum: "It is very
likely that, if any release occurs to the fracture
rock system, contaminants would be rapidly diluted to
below the detection limit in the adjacent alluvial
system. I am unaware of any alluvial aquifer which
has been contaminated by releases to an adjacent
fractured rock aquifer."
Even beyond that, Gregory Canyon has agreed to obtain
a $100 million environmental liability insurance
policy to address any pollution occurring off site in
the very unlikely event it would be required. This
could include large-scale pump and treat facilities.
6) San Diego County's Resource Protection Ordinance. The
County of San Diego has adopted a "Resource Protection
Ordinance," that, among other things, prohibits the
development, trenching, grading, clearing and grubbing, or
any other activity or use damaging to significant
prehistoric or historic sites, which include lands having
religious or other ethnic value of local, regional, state,
or federal importance. The terms of Proposition C allow
the Gregory Canyon Landfill project to avoid the Resource
Protection Ordinance.
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7) Is Legislative action appropriate?: While the
Legislature generally has the authority to override a local
initiative, it should exercise this power sparingly.
Initiatives represent one of the most democratic processes
available to the citizens of local governments in
California. As such, local initiatives should be given
great respect and deference.
There is precedence, however, of the Legislature acting to
negate local initiatives. Most recently, on April 25, 2011,
this committee supported AB 1178, a bill that will nullify
Measure E in Solano County by prohibiting a local government
from restricting or limiting the importation of solid waste
based on the place of origin. One of the compelling reasons
why the committee supported AB 1178 is that ensuring adequate
and appropriate capacity for disposal of solid waste is a
matter of state and regional concern that should not be
subjugated by local government. Measure E interferes with
regional and state management of solid waste by significantly
limiting the flow of solid waste into Solano County, which is
a county that handles a large amount of solid waste for
northern California. The committee, however, was very
specific, as indicated in the committee amendments, that AB
1178 should not prevent a city or county from exercising its
land use authority, including making a zoning, permitting, or
other land use determination, as this is a matter of local
concern.
Unlike AB 1178, Proposition C does not interfere, in anyway,
with the regional and state interests in ensuring adequate and
appropriate capacity for disposal of solid waste. In fact,
Proposition C will help the state and region of southern
California by increasing the capacity for disposal of solid
waste. Additionally, Proposition C seems to be solely about
local land use planning, which the committee amendments for AB
1178 indicate is a matter of local concern. As such, the
committee's rationale for overriding Measure E in Solano
County does not seem to apply to Proposition C.
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With Proposition C, however, there is an issue of state
concern that was not at issue in Measure E-land use planning
that negatively affects Native American tribes.
The state has articulated through Legislation that protecting
Native American tribes from adverse effects that may be caused
by local government land use planning is a matter of state
concern. Specifically, in SB 18 (Burton), Chapter 905,
Statutes of 2004, the state expressed its intent to establish
meaningful consultation between California Native American
tribal governments and California local governments at the
earliest possible point in the local government land use
planning process so that Native American prehistoric,
archaeological, cultural, spiritual, and ceremonial places can
be identified and considered. SB 18 codified this intent by,
among other things, requiring cities and counties to conduct
consultations with California Native American tribes before
the local officials adopt or amend their general plans. These
consultations are for preserving or mitigating impacts to
Native American historic, cultural, sacred sites, features,
and objects located within the city or county. "Consultation"
is defined as:
The meaningful and timely process of seeking,
discussing, and considering carefully the views of
others, in a manner that is cognizant of all parties'
cultural values and, where feasible, seeking
agreement. Consultation between government agencies
and Native American tribes shall be conducted in a way
that is mutually respectful of each party's
sovereignty?
Since Proposition C was adopted before 2004 and since it was
not a part of the County's general plan update process, an SB
18 consultation regarding Gregory Canyon never occurred.
There were, however, discussions between the County and the
Luiseno Tribe with regard to the CEQA process for the project.
According to the project's Final Environmental Impact Report
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(FEIR), the ongoing landfill operations could permanently
disrupt any ongoing traditional Native American activities
associated with Gregory Canyon Mountain and Medicine Rock
(e.g., conduct ceremonies, smoke tobacco, pray). According to
members of the Luise�o Tribe interviewed, additional impacts
would include increased noise and traffic problems; potential
contamination of groundwater basins, wells, and the San Luis
Rey River; and aesthetic impacts. The FEIR explains that the
Luise�o believe in the "circle of life." This belief suggests
that water contamination from the landfill would occur not
only downstream from the project site but upstream as well.
Because of the "circle of life," all contamination that leaks
into the San Luis Rey River and reaches the ocean would
evaporate and then be deposited in the mountains with the
rain. As a result, no impacts to Gregory Mountain as a result
of the landfill project are considered acceptable by the
Luise�o tribe.
REGISTERED SUPPORT / OPPOSITION :
Support
Agua Caliente Band of Cahuilla Indians
Barona Band of Mission Indians
California Coastal Protection Network
California Native American Heritage Commission
California Tribal Business Alliance
Californians Against Waste
City of Oceanside
Endangered Habitats League
Environmental Health Coalition
Habematolel Pomo of Upper Lake
Inaja Cosmit Band of Mission Indians
Jackson Rancheria Band of Miwuk Indians
Los Coyotes Band of Indians
Manzanita Band of Kumeyaay Nation
Native American Heritage Commission
Natural Resources Defense Council
Pala Band of Mission Indians
Pala-Pauma Sponsor Group
Pam Slater-Price, 3rd District San Diego County Board of
Supervisors
Planning and Conservation League
Ramona Band of Cahuilla
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Rincon Band of Luise�o Indians
RiverWatch
San Diego Chapter of the Sierra Club
San Diego and Imperial Counties Labor Council
San Luis Rey Band of Mission Indians
San Pasqual Band of Mission Indians
Santa Ynez Band of Chumash Indians
Sierra Club California
Southern California Tribal Chairmen's Association
Surfrider Foundation
United Auburn Indian Community
Unit-Here
Viejas Band of Kumeyaay Indians
Yocha Dehe Wintun Nation
Opposition
Associated General Contractors of America, San Diego Chapter,
Inc.
California Chapters of the Associated General Contractors
California-Nevada Conference of Operating Engineers
California State Association of Counties
Gregory Canyon Landfill, LLC
Herzog Contracting Corp.
Los Angeles County Solid Waste Management Committee
Mayor Jim Desmond, City of San Marcos
Regional Council of Rural Counties
Ron Roberts, 4th District San Diego County Board of Supervisors
San Diego County Board of Supervisors
San Diego County Taxpayers Association
San Diego Regional Chamber of Commerce
San Diego Regional Economic Development Corporation
Solid Waste Association of North America
Waste Management
Analysis Prepared by : Mario DeBernardo / NAT. RES. / (916)
319-2092