Court of Appeals Hears LUCS Arguments

by Susan Watkins

Neighbors faced off against the landfill on the last day of January in the Oregon Court of Appeals.  At issue is the validity of a land use compatibility statement (LUCS) issued by Yamhill County in support of the 40-foot high wall Waste Management wants to construct on the Highway 18 side of the dump.  The wall will allow the landfill to accept an additional 1,000,000 tons of garbage and to remain open an additional two years, until 2016.  The County did not participate in the hearing.

The Justices asked pointed questions of both sides, focusing on a state law that exempts from appeals LUCS issued in cases where the parties have other opportunities to challenge a land use decision.

In this case, the neighbors pointed out that the County failed to hold a hearing before issuing the LUCS, relying instead on 20-year-old data.  The landfill countered with the claim that the proposed wall is no more than an extension of an existing flood control berm that the County approved in 1980.  The neighbors responded that the County also imposed a 20-acre maximum size limit on working parts of the landfill, with filled cells to be returned to farm uses, back in 1980.

The Court did not get to learn that the "perimeter berm" the landfill relied on doesn't actually exist.  That kind of information won't come out unless the Court orders Yamhill County to hold a hearing.

The Court is expected to rule within the next three months.  DEQ stated in 2012 that lack of a timely decision in the courts would not hold up a decision on whether to approve construction of the wall.  However, that decision is on hold for at least a few days pending further meetings between DEQ and the state Department of Geology and Mineral Industries (DOGAMI) about whether DEQ must use the magnitude 9.0 earthquake standard that other state agencies use when approving construction permits.

DEQ Chooses Defiance

by Susan Watkins

Update:  DEQ and DOGAMI met Tuesday, January 29, and plan to meet again soon.  Also Tuesday, Paul Burns of Waste Management told landfill opponents that WM was holding internal discussions about the 9.0 standard.

 

As you know, western Oregon is expecting to be hit by a Cascadia subduction zone earthquake that could strike at any time.  Everybody--except DEQ--knows that this earthquake will be devastating.  Oregon will need landfill capacity following the Cascadia earthquake and tsunami, but Riverbend Landfill is more likely to be part of the problem than part of the solution.

Riverbend sits on the banks of the South Yamhill River.  DOGAMI's "hazard vu" website shows the south half of the landfill (closest to the river) in the "severe" shaking zone.  This includes portions of the oldest cells of the landfill, which date from the early 1980's and are unlined.  We expect this part of the landfill to fail during an M9.0 quake, yet Waste Management, the landfill's owner, is asking DEQ to approve an expansion of capacity at the landfill--and DEQ wants to issue this permit.

The M9.0 standard was adopted over a year ago by the Oregon Seismic Safety Policy Advisory Committee (OSSPAC) and its member agencies, including DOGAMI (the state's seismic experts), ODOT, the state Office of Emergency Management, the Department of State Lands, and DLCD, for earthquake preparedness and recovery.  But DEQ does not believe it is required to use that standard.

At a special EQC meeting on January 22, DEQ staff told the EQC that federal regulations allow landfills to be evaluated using only an 8.5 standard, and that Waste Management's engineering consultants have assured DEQ that the proposed expansion will satisfy that lower standard.  DEQ made very clear to the Commission that it wants to act now to authorize the Landfill to expand its capacity.

Despite an appeal from State Geologist Vickie McConnell, chief of DOGAMI, that DEQ "consider" the magnitude 9.0 standard, the EQC acquiesced in staff's evaluation--without asking staff whether the M8.5 standard sufficiently protects Oregon resources or why DEQ stands alone in rejecting the likelihood of an M9.0 quake. 

We are concerned that engineering to an magnitude 8.5 earthquake will not adequately protect the citizens, businesses, and natural resources of the State of Oregon.

According to Lissa Druback of DEQ, DEQ will be meeting with DOGAMI during the week of January 28th "to discuss what the recommendation in their January 16th letter to us means not only for the site specific seismic hazard analysis that has been completed for Riverbend Landfill [using the 8.5 standard] but also how the recommendation potentially impacts the design of all landfills that are subject to the Cascadia Subduction Zone Earthquake."

Ms. Druback informed us that her office will not make a decision on the Riverbend permit modification without first talking to DOGAMI.  She also assured us that DEQ will report back to the EQC on the outcome of the discussion with DOGAMI.

As it turns out, federal standards do allow agencies discretion in adopting standards.  Our attorney, Bill Kabeiseman of Garvey Schubert Barer in Portland, has prepared a Seismic Evaluation, which we will share with DEQ.  The Evaluation makes clear that federal regs allow DEQ to use the standard that best protects Oregon and Oregonians.

Please contact DOGAMI and DEQ to let them know we want them to use the standard that protects us and our lands best!  Contact me for a copy of DOGAMI's letter or attorney Kabeiseman's Seismic Evaluation.

EQC to Hear Riverbend Earthquake Info January 22

by Susan Watkins

The state Environmental Quality Commission (the EQC) will receive a report from its staff at a special meeting January 22.  The report was requested by the EQC after Stop the Dump supporters detailed problems at the dump at the EQC's December 2012 meeting.

DEQ has been reviewing Waste Management's proposal to construct a 40-foot high wall on the Highway 18 side of the dump.  In the EQC report, DEQ landfill permit writer Bob Schwarz states that the Department "is currently considering allowing a berm design based on a magnitude 8.5 earthquake."  He adds, "DEQ's seismic consultant recommends approval of the design based on this site-specific assessment."

But other State of Oregon agencies rely on a magnitude 9.0 earthquake standard, which is 15-18 times stronger than 8.5.

As State Geologist Vicki McConnell points out to DEQ and the EQC in a letter dated January 16, 2013, "[T]he state-of-practice in seismic engineering design of major structures in Oregon includes a magnitude 9.0 Cascadia earthquake."  ODOT, the Department of State Lands, the state Office of Emergency Management, the Department of Land Conservation and Development, and the Oregon Seismic Safety Policy Advisory Committee--even the Yamhill County Office of Emergency Management--all rely on the 9.0 standard.

DEQ points to federal requirements for use of 8.5.  But we have been told by staff at the Environmental Protection Agency that their regulations refer to slip-strike earthquakes, like those that bedevil California, not subduction earthquakes such as the "Big One" that will inevitably strike western Oregon.

We have notified the EQC that we expect them to join their sister agencies in adopting magnitude 9.0 as the construction standard.  We don't want the landfill to slide downhill into the South Yamhill River -- though 13,000,000 tons of garbage are already headed that way.

Allowing Riverbend to close when it reaches capacity in mid-2014 is the sanest way to address safety issues at the dump.  Please let DEQ know how you feel.  Contact them here.