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.