Sunday, August 7, 2016

Prime Farm Soils Not Protected in Landfill Battle

Reading about Riverbend Landfill's battle with LUBA over farmland, I find it ironic that real farm issues are not addressed.  Instead we are arguing about birds and whether or not the litter on surrounding fields came from trucks hauling to the landfill or the landfill itself.

First, landfills require millions of cubic yards of soil  for construction of the perimeter berms, daily cover and final cover. This dirt has to come from somewhere, but no one is asking “from where”, and Waste Management isn't talking.

You would think that with our statewide land use goals, a local comprehensive plan and zoning regulations,  saving our top soil would be a concern, but this issue has not been on the radar of the Yamhill County Planning Department, the Yamhill County Planning Commission, and the Yamhill County Commissioners, even though Riverbend Landfill TWICE mined soils outside of its permitted boundary and TWICE did so without the required permit from the Oregon Department of Geology and Mineral Industries (DOGAMI).

Waste Management has just evicted 70 families from the Mulkey RV park next to the landfill, so if one puts two and two together, we in Yamhill County just traded 70 affordable housing units for several more acres of valuable farmland topsoil to be mined.

This should have been obvious to the Yamhill County decision makers because the plans the County approved show an access road across wetlands and a flood plain to provide a link between the park and the dump.

by Leonard A. Rydell

Thursday, August 4, 2016

Waste Management Appeals LUBA Decision

As previously reported, the Stop the Dump Coalition and allies recently appealed the Land Use Board of Appeals (LUBA) decision, which delays landfill expansion yet again, to the Oregon Court of Appeals.  Now Waste Management has joined the fray by filing a counter appeal.  Waste Management (WM) is the Texas-based corporate owner of Riverbend Landfill.

The LUBA decision was split, with some issues decided in WM's favor and one big issue decided in favor of landfill opponents. 

Issues Decided in WM's Favor
Basically, LUBA ruled that WM could compensate neighboring farmers in cash for the harm landfill expansion will cause to their farms.  Because state law prohibits siting uses like landfills on land zoned for agriculture if the use will significantly harm even one farm, WM offered to pay farmers instead.  LUBA's ruling was the first time an Oregon court had ruled that money compensation could be used to "mitigate" significant harm.

LUBA found in favor of WM on other issues, too, citing farmers' failure to submit evidence opposing some of WM's contentions -- such as that litter that fouled nearby fields came from the working face, not trucks hauling garbage, or that a second litter fence would help reduce litter or that birds that damage neighboring fields would come to those farms even if the landfill closed.  In reaching each of these conclusions, LUBA ignored the fact that the County Board of Commissioners (BOC) refused to take evidence on these points.

Landfill opponents will likely ask the Court of Appeals to find that LUBA made mistakes in deciding these and other points in WM's favor.

Issue Decided Against WM
LUBA found that the BOC had misconstrued the process for determining whether the cumulative harmful effects of the proposed expansion on farms are significant.  LUBA implied that the expansion could cause significant cumulative harm even if individual impacts are not significant when considered one at a time.  LUBA told the BOC to rethink its decision that the expansion will not result in significant cumulative harm.  This is the issue WM is appealing.

According to Jeff Kleinman, attorney for expansion opponents, WM will have the option of filing a separate brief in support of its cross-appeal within 14 days after opponents file their brief (which is due August 18) or combining their arguments with their written response to opponents' brief.  A combined brief would not be due until 21 days after opponents file their brief.  In either case, opponents will have 7 days to respond to WM.

Friday, July 29, 2016

STOP THE DUMP COALITION Appeals Landfill Decision

On July 8th, 2016, LUBA, the Oregon Land Use Board of Appeals, issued its second remand in less than 11 months of Yamhill County’s illegal approval of the expansion of Riverbend Landfill.  The remand returns the expansion to the County for further consideration.

LUBA ruled that County Commissioners Springer, Starrett, and Primozich had drawn conclusions “that no reasonable decision maker would conclude,” had once again improperly “shifted the burden of proof to the opponent/farmers,” and had voted to approve although many of their “key premises are not supported by substantial evidence.”

The dump, located in a seismically unstable area by the South Yamhill River subject to regular flooding, will reach capacity in mid-2017.  Waste Management (WM), the Texas-based corporate owner of the landfill, proposed to expand onto prime agricultural land despite the significant impacts to nearby commercial farms.

Jennifer Redmond Noble farms on her family’s 5th generation farm near the landfill.  She worries that her “children won't be able to continue to farm our property because of all the problems we have to deal with due to proximity to Riverbend Landfill.  Scavenger birds, horrific odors, and potential groundwater contamination all put the future of our farm in jeopardy.  We have already had to make changes in our farming practices because of the landfill."

While the latest ruling should clearly signal the end of the road for what is already the largest regional garbage dump in western Oregon, LUBA’s decision included new interpretations of law that need further clarification for future land use decisions as well as this one.

For example, LUBA suggested that a non-farm use in an exclusive farm use zone can cause significant harm to agricultural practices and farm production, so long as the corporation compensates the unwilling farmers.   “Oregon’s land use laws are designed to protect farm land and farm production; they are not a pay-to-harm-agriculture scheme,” said coalition attorney Jeff Kleinman.

For these reasons, the Stop the Dump Coalition, Ramsey McPhillips, who farms land adjacent to the landfill, the Willamette Valley Wineries Association, and Friends of Yamhill County have appealed the decision to the Oregon Court of Appeals.

-- press release dated July 28, 2016.   For more information contact Ilsa Perse, President, Stop the Dump Coalition or Sid Friedman, spokesperson for Friends of Yamhill County.

Sunday, July 24, 2016

Landfill Odors Trigger Investigation

Landfill neighbors and those who merely pass by the dump have complained for years about the stink emanating from waste deposited at Riverbend Landfill.  Now the state Department of Environmental Quality (DEQ) will have to do something about it.

Under DEQ's Nuisance Odor Strategy, once the agency receives at least 10 complaints from different home or business addresses within a 60-day period, DEQ must investigate.  According to Alex Haulman, Natural Resource Specialist with DEQ, the agency received at least 10 complaints within the 60-day period ending July 22.

Haulman and his supervisor Claudia Davis met with landfill neighbors and others in McMinnville just two days prior, on July 20th, to discuss the dump's continuing odor problem.  Haulman is new to this assignment, brought in partly because of his experience with bacterial solutions to odor problems in other industries, including dairies.

Haulman and Davis had already talked to Waste Management (WM), Riverbend Landfill's Texas-based corporate owner, about possible use of bacterial agents to literally eat odor-causing elements in the landfill.  According to them, WM has agreed to study the possibility.

Currently, WM uses "best practices" to control odors, with little success.  Those practices include efforts to keep the working face small (a relative term), covering the face every evening with a thick layer of dirt (something previous WM management did not always do), and capturing as much landfill gas as possible to burn in electricity-generating engines or to flare off.

Because there is no way to measure how much gas escapes the landfill without being captured, there is no real way to tell if WM's efforts are working -- except to smell the results.  Neighbors, passing tourists and commuters, and farmers working nearby fields will tell you that the results are damning.  Especially in cooler months, the stink lies like a blanket across the valley on both sides of the landfill and the South Yamhill River.

If bacteria prove able to control odors better than current practices, use of bacteria will become the "best practice," and DEQ will require WM to use the technique.

In the meantime, DEQ will send investigators into the field to determine the source (known in this case) and the frequency, intensity, duration, and offensiveness of the odors people are complaining about.

Other sites that have triggered investigations include Daimler Trucks in Portland and Amerities in the Dalles.  The Daimler investigation went to a DEQ odor panel to determine whether a legal nuisance had occurred.  Based on over 700 attempts to detect an offensive odor with only a 3.2% success rate, DEQ staff recommended a "no nuisance" finding.  Neighbors, however, pointed to a contemporaneous private study that turned up a 20% odor rate out of 24,000 attempts.

As representative for the district containing Daimler, Speaker of the House Tina Kotek intervened, and DEQ may reconsider.  Unfortunately, Riverbend neighbors have only Mike Nearman to assist them.

For a good look at the process DEQ uses in investigating (or ignoring) odor complaints, read this OPB Earthfix article.

Saturday, July 9, 2016

LUBA Splits the Baby

The Oregon Land Use Board of Appeals (LUBA) has issued its latest decision in the ongoing fight over expansion of Riverbend Landfill.  The Yamhill County Board of Commissioners (BOC) approved expansion last spring after finding that the landfill would not significantly impact area farming practices.  Stop the Dump Coalition and others appealed.

Major impacts cited by farmers include litter, especially plastic waste, escaping from the dump to contaminate nearby grain fields and predation by the many birds attracted to the landfill as a food source.

Although LUBA's decision stopped short of determining that the County was correct in finding that expansion would not adversely affect local farmers, LUBA decided that mitigation measures proposed by the landfill's Texas-based owner, Waste Management (WM), would reduce any adverse impacts to legally acceptable levels.

However, because LUBA also ruled that the County had not correctly determined that the impacts, even as mitigated, would not cumulatively affect area farm practices, the matter was once again remanded back to the County for further consideration.

Currently WM attempts to control litter with a fence and an occasional patrol along Hwy 18 and deploys falcons to haze birds off the landfill about twice weekly.  These measures have not kept plastic waste from fouling fields and harvesting equipment or prevented birds from regrouping on neighboring fields.  Birds are especially harmful to young grass fields, which are at their most vulnerable during the same time of year that most birds visit the dump.

With the proposed mitigation, a second litter fence will be installed and WM will pay for litter patrols on neighboring McPhillips Farms.  The measures are not specific about either the frequency of patrols or their cost and, except for the fence, do not extend to other farmers.  The BOC just heard a few days ago from farmers out in the Carlton area that waste haulers en route home from the dump are spewing plastic waste into their fields with the same adverse consequences for harvesting and baling hay.  The mitigation measures do nothing to protect them.

To control birds, WM must increase the number of days falcons are flown at the dump.  The thought is that the more falcons, the fewer birds, but the BOC's approval does not set limits on the maximum number of birds that can be allowed to visit neighboring farms or the time period over which their numbers, which can now reach 1,000 a day, must be reduced.  Given that the expansion is expected to provide only another ten or so years of landfill life, the latter is a significant issue.

LUBA found that other impacts on farmers caused by the dump would also be cured by mitigation.  However, before expansion approval can be finalized, the County must reconsider the "question ... whether multiple insignificant impacts to each particular farm operation, considered together, reach the threshold of significance for that particular farming operation."  LUBA noted that "The county never attempts to answer that question."

LUBA directed the county to "consider and determine whether individual insignificant impacts, some of which may be additive and some which may not be, are cumulatively significant with respect to each farm that alleged multiple impacts to their farm practices....  [O]n remand ..., the county should not take as a given that all individual impacts are insignificant without conditions." 

Any appeal of LUBA's decision to the Oregon Court of Appeals must be filed by July 29.