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Tuesday, April 18, 2017

New Location for Vertical Expansion Hearing

The state Department of Environmental Quality (DEQ) has reissued the public notice for the upcoming hearing on a permit that would allow Waste Management (WM) to increase the height of Riverbend Landfill.

The new notice moves the May 2nd information meeting and public hearing to the Falls Event Center (aka Evergreen Aviation Museum campus), 510 NE Captain Michael King Smith Way, Main Hall, McMinnville.  A short informational meeting on the proposal will begin at 6 p.m., to be followed by the formal public hearing.

The proposed permit would modify WM's existing landfill operating permit by allowing WM to change the final grading plan for a 20-acre portion of the 87-acre landfill.  If the permit is modified as proposed, WM will be able to add an additional 400,000 tons of garbage to the landfill and to remain open about another year before reaching capacity.  The 20 acres affected include the original three landfill cells, which are not lined and which lie in the floodplain of the South Yamhill River and fill with water each year when the river floods.

A larger, 29-acre expansion proposal remains in the courts.  That expansion would bring a 90-foot high swath of the landfill to within 50 feet of Highway 18 and also cover the original three cells.

To comment on the proposed vertical expansion, you can testify at the public hearing or you can submit written comments for the public record by mail, fax, or email to the Riverbend DEQ permit writer:

Bob Schwarz
Oregon DEQ
400 E. Scenic Drive, Suite 307
The Dalles, Oregon 97058                                       

Email: schwarz.bob@deq.state.or.us

Phone: 541-298-7255, ext. 230
Fax: 541-298-7330

Written comments are due not later than 5:00 pm, May 8, 2017.

Sunday, April 9, 2017

Vertical Expansion, Air Quality Set for Hearings

The next few weeks promise to be busy for Waste Management, Riverbend Landfill's Texas-based corporate owner (WM), and the Stop the Dump Coalition (STDC).

First up is another court hearing, this one in Yamhill County Circuit Court in McMinnville.  STDC has asked the Court to void a land use compatibility statement (LUCS) the County issued in support of Waste Management's effort to expand the dump vertically.  The hearing is set for 8:30 AM on Wednesday, April 12.  Audience members cannot testify, but STDC would certainly appreciate your support!

The very next day, Thursday, April 13, WM will host the dump's semi-annual Air Quality meeting at Chemeketa Community College in McMinnville.  The meeting begins at 7:00 pm (or come earlier for pizza).  Although WM will lead the meeting, representatives of the state Department of Environmental Quality (DEQ) usually attend and will answer your questions.  As you know if you read this blog, DEQ is in the midst of a year-long investigation into odors at the dump.

Then on Tuesday, May 2, at 6:00 pm at the McMinnville Senior Center there will be an actual "hearing," held by DEQ, regarding the proposed vertical expansion.  STDC has so far stymied WM's plans to expand on 29 acres next to Highway 18, so WM is now trying to grow "up."  DEQ is prepared to approve this expansion, which will add 400,000 tons of waste to the top of the existing dump, including atop the original three unlined cells.  No word on how adding this additional garbage will protect neighbors or the South Yamhill River when the M9 Cascadia Subduction Zone earthquake strikes.

Everyone can weigh in on the proposed "up" expansion, and we encourage you to.  Attend the meeting to speak in person or submit written testimony or send your comments in.  The deadline to comment is May 8 at 5:00 pm.  To learn more about this hearing, read the DEQ notice.  To learn more about the vertical expansion (which WM has convinced DEQ to call a "final grading plan"), read our March 20 comment below.

The LUCS at issue in the April 12 Circuit Court hearing is required before DEQ can approve a permit for the vertical expansion.  If the Circuit Court rules against the County, DEQ might have to reschedule or even cancel the May 2nd hearing.

STDC and WM have also been busy in Salem.  You may have heard about the legislative bill WM proposed to exempt landfills from having to "reclaim" land they strip from the vicinity of their dumps in order to cover the waste (daily and permanently).  If the bill passes, Waste Management can mine the heck out of the land around the dump, including the wetlands between the dump and the river, without restoring the area.

Many members of Stop the Dump Coalition and others testified against this bill.  You can learn more about this at https://olis.leg.state.or.us/liz/2017R1/Measures/Exhibits/SB1036, where you can read testimony that has been submitted against this measure by Friends of Yamhill County, the Yamhill County Soil and Water Conservation District, and others.  A work session on this bill is scheduled for April 13 at 1:00 pm, but no testimony will be taken.

Tuesday, March 28, 2017

Legislature Asked to Exempt Landfills from DOGAMI Permits

The Oregon legislature is holding a hearing on April 3 to consider a legal change that would greatly benefit Waste Management (WM).  WM is the Texas-based corporate owner of Riverbend Landfill.

Under existing law, landowners must obtain a permit from the Department of Geology and Mineral Industries (DOGAMI) before engaging in "surface mining."  Surface mining is exactly what it sounds like -- stripping away the top of the earth in order to use that material or to reach what's underneath.

WM, you might recall, has frequently engaged in surface mining in the floodplain between the dump and the South Yamhill River.  WM is presumed to use the soil from this area for daily and permanent cover on the landfill and for landfill construction work such as the perimeter berm.

At least once previously, WM mined this area without first obtaining the necessary DOGAMI permit.  WM received a slap on the hand for that error because DOGAMI's website hadn't been updated to reflect the latest permit requirements (and because nobody expects a multi-national corporation like WM to pick up the phone and call).

Permit requirements include restrictions on the amount of material that may be extracted as well as the total area in which mining may occur.  Currently DOGAMI limits mining to 5,000 cubic yards of excavation or disturbance of no more than one acre in any 12-month period unless an Operating Permit is obtained or the activity is exempt.

To obtain an Operating Permit, the landowner must have local land use approval (in Riverbend's case, a Land Use Compatibility Statement, or LUCS, issued by the County) and pay a fee (currently $1,750).  The applicant must also submit a reclamation plan for the land being mined and security to ensure the reclamation occurs. Operators must renew permits annually and must file reports with DOGAMI until mining and reclamation are complete.

Operations in a floodplain, such as that around Riverbend, require additional studies.

Riverbend's current DOGAMI permit (called "Old River") allows unlimited material extraction and requires both a reclamation plan and reclamation security.  If this new legislation passes, Riverbend will be exempt from these rules.  In other words, Riverbend will be able to extract as much soil as it wants without having to reclaim the site.

It's been estimated that Riverbend will need as much as 540,000 cubic yards of soil to cover the landfill.  Some experts have questioned whether that much soil can be removed from the floodplain without threatening the channel of the South Yamhill River.

You can stop this free give-away to Waste Management.  The proposed legislation, Senate Bill 1036, will be heard by the Senate Committee On Environment and Natural Resources at 3:00 pm Monday, April 3, in Hearing Room C in the State Capitol in Salem.  You can attend the hearing and sign up to testify (though the numbers of people allowed to testify may be limited).  And you can submit comments in writing to the committee at senr.exhibits@oregonlegislature.gov.  Michael Dembrow of Portland is the committee chair.  Learn more about the bill here.

Sunday, March 26, 2017

Court of Appeals Upholds LUBA

Landfill Expansion to Return to County Commissioners Yet Again

Last Wednesday, March 22, the Oregon Court of Appeals (COA) released its decision affirming the Land Use Board of Appeals (LUBA) ruling from last July.  In that opinion, LUBA found that Yamhill County had improperly determined that cumulative impacts from the proposed expansion of Riverbend Landfill would not significantly affect area farmers.  First LUBA, and now the COA, have directed the County to reconsider the effects of multiple impacts on local farms.

While this is good news for area farmers and other neighbors of the landfill, the COA also upheld the County's findings that Riverbend's expansion plan successfully mitigated any negative individual farm impacts in a decision that was confusing and contradictory.

Expanding Riverbend will have multiple impacts on multiple farms.  Farmers complained about litter in their fields, birds (especially seagulls) damaging their crops and animals, noise frightening poultry and horses, and customers staying away due to odors and perceived effects on water and air quality.  In approving expansion, the County dismissed these complaints, saying that farmers could be fully compensated for any losses from these impacts by cash payouts from Waste Management, Riverbend's multi-national, Texas-based corporate owner.


Although the COA laid out a strong argument that the purpose of Oregon land use law in EFU zones is to preserve agricultural land and to prevent that land from being hijacked for nonagricultural uses, the Court ultimately agreed with the County.
In earlier decisions, the COA had held that "state and local provisions [defining nonfarm uses permitted in farm zones] must be construed, to the extent possible, as being consistent with the overriding policy of preventing agricultural land from being diverted to non-agricultural use."

This time, the COA also cited ORS 215.243(2) and Statewide Planning Goal 3, which provide:


ORS 215.243(2):  "The preservation of a maximum amount of the limited supply of agricultural land is necessary to the conservation of the state’s economic resources and the preservation of such land in large blocks is necessary in maintaining the agricultural economy of the state and for the assurance of adequate, healthful and nutritious food for the people of this state and nation." 

Goal 3:  "Agricultural lands shall be preserved and maintained for farm use, consistent with existing and future needs for agricultural products, forest and open space and with the state’s agricultural land use policy expressed in ORS 215.243...."
Based on this state law, the COA concluded, "[w]hether a change in an accepted farm practice or the cost of that practice is 'significant,' then, is determined by whether the change affects the preservation of agricultural land for productive use."


In the end, however, the COA paid only lip service to these maxims, looking instead to an entirely different statute to determine that the most important factor in preserving EFU land was for a farm "to obtain a profit in money."  The Court reasoned, therefore, that where a nonfarm activity merely imposes additional costs on a farmer, even where those costs are tantamount to removing land from productive agricultural use, the impact of that cost increase, no matter how significant, can be mitigated by cash payouts to the farmer.
This is true, according to the COA, even when a farmer cannot sell any of her crop on the open market due to impacts from the proposed nonfarm useSuch intense impacts can be successfully and legally mitigated, in the COA's view, by payments equal to the market value of the crop -- the same result as paying the farmer not to farm.  Similarly, under the COA's ruling, where impacts render a field impossible to harvest without extensive additional work, payments for the cost of the additional work are acceptable.

In effect, the Court is telling nonfarm uses that, if their pockets are deep enough, they can buy their way onto EFU land.
The COA also ruled that a second litter fence would be adequate to control litter from the landfill even though the evidence showed that the first litter fence did not work.  The Court had a similar opinion of increasing days of falcon use to haze seagulls, despite evidence that the 2-3 days a week falcons were now used did not keep birds off fields in crucial winter months.  Said the Court, "any temporary effect of nuisance birds on farm practices has no long-term effect of inhibiting the use of agricultural land for profit. The issue is not whether the effects of nuisance birds are significant, but rather whether those effects will force a change in farm practices that significantly inhibits the use of agricultural land for profit."

Stop the Dump Coalition, Friends of Yamhill County, the Willamette Valley Wineries Association, and McPhillips Farms are reviewing the decision to see if there are any grounds for appeal to the Oregon Supreme Court.  If not, then it is back to the County for a new review of cumulative impacts.

Monday, March 20, 2017

DEQ to Process Riverbend Vertical Expansion Despite Lack of Court Ruling

DEQ, the Oregon Department of Environmental Quality, is proceeding with its review of Waste Management's proposed vertical expansion despite a court order requiring Yamhill County to justify its assessment that the expansion meets current zoning requirements.

Bob Schwarz, DEQ permit writer for Riverbend Landfill's operating permit, wrote on March 17:

"Regarding the final grading plan modification application that you mentioned, we will get that application and supplemental information provided by the applicant on the website in the next week or so.

"DEQ reviewed this application with the help of our seismic consultant, and we have concluded that it meets state and federal regulatory requirements, including those for seismic stability. We therefore plan to schedule a public comment period for this proposal in the near future which will include a public hearing.

"The application was accompanied by a Land Use Compatibility Statement dated November 16, 2016, which was subsequently challenged in Circuit Court under a Writ of Review. DEQ is moving forward with this permitting action as required under OAR 340-018-0050(2)(a)(G), which states that 'the Department shall continue to process the action unless ordered otherwise by LUBA or a court of law stays or invalidates a local action.'"


The "final grading plan modification" is Waste Management's euphemism for adding an additional year's worth of garbage to the existing landfill by flattening out its more or less hill-shaped structure.  The website Schwarz references is DEQ's program/project web page for Riverbend Landfill.  The November 16, 2016, "Land Use Compatibility Statement" (LUCS) is the document the County issued affirming that the proposal satisfied County land use requirements.

Landfill neighbors and expansion opponents sued to stop the County from issuing the November 16 LUCS while the larger expansion question is still under consideration by the Court of Appeals (COA).  (The COA is reviewing LUBA's 2016 ruling that the landfill can expand provided the County Board of Commissioners finds that the expansion will not have significant adverse cumulative impacts on area farming.)  The COA's decision will determine whether the landfill can legally expand up in the same area covered by the November 16 LUCS.

Lawyers for expansion opponents argue that neither the County nor DEQ can approve deposit of waste in this area until the COA rules.  The COA could issue its decision at any time.

The initial hearing in Circuit Court on the November 16 LUCS is scheduled for April 12, 2017.