The ink isn't even dry yet, and Waste Management (WM) is already in a huff about the state Court of Appeals' (COA) handling of the Stop the Dump Coalition's (SDC) current appeal.
As anticipated, SDC and its allies filed their opening brief with the COA on August 18. The opening brief begins the process of appealing the Land Use Board of Appeals' (LUBA) decision to OK most of Yamhill County's recent effort to approve expansion of Riverbend Landfill. (To learn more about the LUBA decision, see "LUBA Splits the Baby," below.)
The COA has strict page and word limits on briefs; SDC's brief was too long. The COA nevertheless accepted the brief but asked SDC to shorten it. Though SDC shortened the brief, SDC also asked the COA to allow more words than usually accepted, and the COA agreed. The COA accepted the amended brief on August 23. To avoid having two opening briefs in the case, the COA also noted that the original (long) brief "is withdrawn."
The COA's decision got WM's dander up. The Texas-based garbage conglomerate that owns the dump filed its own motion with the COA asking the Court to "strike [SDC's] ... opening briefs" (yes, both of them) and "to dismiss [SDC's] petition for judicial review in its entirety." In other words, WM wanted the COA to reverse its decision and throw out SDC's appeal. According to the August 30th Yamhill County News Register, WM actually told the COA it had no power to accept the longer brief.
In response to the News Register story, Ilsa Perse, SDC President, wrote, "Today the News Register printed a story in which they quoted Waste Management's attorney as claiming that Stop the Dump Coalition had missed the deadline for filing our brief to the Court of Appeals. This is not true. Our brief was filed on time.
"This afternoon, one day after Waste Management asked that our appeal be dismissed, Judge Timothy Sercombe, presiding Judge of the Court of Appeals, denied Waste Management's motions.
"This is a yet another example of why we depend on our supporters to keep this fight going. This giant Texas garbage company will try whatever they can think of to make us go away. Their latest attempt failed, but our attorney had to spend time (and our money) dealing with Waste Management's bogus motion.
"We never know what Waste Management will try next, but we are here to stay! Waste Management hopes to wear us down, but with the community's help, we will not give up until Riverbend Landfill shuts down."
WM has until September 8 to file its own brief in the appeal. In that brief, WM can both answer SDC's arguments and file its own appeal (of LUBA's decision to send a key aspect of the County's decision back to the Board of Commissioners for further action). If WM elects to appeal that part of LUBA's decision, the SDC can file another brief in response to that argument.
UPDATE: stopthedumpcoalition.org has been assured that it is not at all unusual for the COA to grant requests to file longer-than-normal briefs (so long as they aren't too long). And there was never any question so far as the Court was concerned that the original brief was filed on time.
Also, WM has filed its brief in support of its own appeal. WM is challenging the part of the LUBA decision that told the County to take yet another look at the cumulative impacts of the dump. If those impacts are significant, the dump cannot expand.
WM and SDC have until September 8 to respond to each other's briefs. The COA will hear oral argument on September 27.
Wednesday, August 31, 2016
Thursday, August 25, 2016
McMinnville to Include Landfill in Emergency Planning
The McMinnville City Council heard a report from Chief Rich Leipfert and Doug Cummings of the City Fire Department regarding the City's emergency management plan last Tuesday night. The report initially made no mention of Riverbend Landfill or the impact damage to the dump by a severe earthquake could have on the South Yamhill River and Highway 18.
None of the existing landfill is built to withstand the magnitude 9.0 Cascadia Subduction Zone (CSZ) earthquake expected to shake Oregon's coast within the next few decades. This "Big One" strikes offshore every 300 years or so -- and it's already been longer than that since the last large quake. An earthquake of this size is expected to damage bridges, buildings, and other structures even farther inland than McMinnville and Riverbend. In fact, one expert has been widely quoted as saying that "Everything west of I-5 will be toast."
The landfill is riddled with gas pipes and wells (for venting gas or directing it to electricity generators) and is protected from the river by only a low earthen berm. River water already washes through several unlined cells during frequent floods. The earthquake is likely to tear apart the dump's internal structures and breach the berms, releasing millions of tons of waste, gas, and leachate, much of it toxic, into the river channel.
This waste could flow downstream, contaminating the Willamette River, and also dam the channel, creating upstream flooding. Large waste materials may also hang up on collapsed bridge structures downstream, further complicating rescue and recovery operations.
Audience members were surprised to hear no mention of Riverbend during the planning report, but pleased with the immediate attention given to the landfill once the matter was brought to the Council's attention. Mayor Rick Olson agreed that the landfill posed a serious threat and thanked the audience for raising the issue. Fire Chief Leipfert, who leads the emergency response effort, immediately promised to add the landfill to the "hazard list."
It was also suggested that the City ask Waste Management, Riverbend's Texas-based corporate owner, to develop a disaster plan to assist the city in preparing for the coming emergency.
None of the existing landfill is built to withstand the magnitude 9.0 Cascadia Subduction Zone (CSZ) earthquake expected to shake Oregon's coast within the next few decades. This "Big One" strikes offshore every 300 years or so -- and it's already been longer than that since the last large quake. An earthquake of this size is expected to damage bridges, buildings, and other structures even farther inland than McMinnville and Riverbend. In fact, one expert has been widely quoted as saying that "Everything west of I-5 will be toast."
The landfill is riddled with gas pipes and wells (for venting gas or directing it to electricity generators) and is protected from the river by only a low earthen berm. River water already washes through several unlined cells during frequent floods. The earthquake is likely to tear apart the dump's internal structures and breach the berms, releasing millions of tons of waste, gas, and leachate, much of it toxic, into the river channel.
This waste could flow downstream, contaminating the Willamette River, and also dam the channel, creating upstream flooding. Large waste materials may also hang up on collapsed bridge structures downstream, further complicating rescue and recovery operations.
Audience members were surprised to hear no mention of Riverbend during the planning report, but pleased with the immediate attention given to the landfill once the matter was brought to the Council's attention. Mayor Rick Olson agreed that the landfill posed a serious threat and thanked the audience for raising the issue. Fire Chief Leipfert, who leads the emergency response effort, immediately promised to add the landfill to the "hazard list."
It was also suggested that the City ask Waste Management, Riverbend's Texas-based corporate owner, to develop a disaster plan to assist the city in preparing for the coming emergency.
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
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.
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.
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