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.