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Tuesday, March 28, 2017

Legislature Asked to Exempt Landfills from DOGAMI Permits

The Oregon legislature is holding a hearing on April 3 to consider a legal change that would greatly benefit Waste Management (WM).  WM is the Texas-based corporate owner of Riverbend Landfill.

Under existing law, landowners must obtain a permit from the Department of Geology and Mineral Industries (DOGAMI) before engaging in "surface mining."  Surface mining is exactly what it sounds like -- stripping away the top of the earth in order to use that material or to reach what's underneath.

WM, you might recall, has frequently engaged in surface mining in the floodplain between the dump and the South Yamhill River.  WM is presumed to use the soil from this area for daily and permanent cover on the landfill and for landfill construction work such as the perimeter berm.

At least once previously, WM mined this area without first obtaining the necessary DOGAMI permit.  WM received a slap on the hand for that error because DOGAMI's website hadn't been updated to reflect the latest permit requirements (and because nobody expects a multi-national corporation like WM to pick up the phone and call).

Permit requirements include restrictions on the amount of material that may be extracted as well as the total area in which mining may occur.  Currently DOGAMI limits mining to 5,000 cubic yards of excavation or disturbance of no more than one acre in any 12-month period unless an Operating Permit is obtained or the activity is exempt.

To obtain an Operating Permit, the landowner must have local land use approval (in Riverbend's case, a Land Use Compatibility Statement, or LUCS, issued by the County) and pay a fee (currently $1,750).  The applicant must also submit a reclamation plan for the land being mined and security to ensure the reclamation occurs. Operators must renew permits annually and must file reports with DOGAMI until mining and reclamation are complete.

Operations in a floodplain, such as that around Riverbend, require additional studies.

Riverbend's current DOGAMI permit (called "Old River") allows unlimited material extraction and requires both a reclamation plan and reclamation security.  If this new legislation passes, Riverbend will be exempt from these rules.  In other words, Riverbend will be able to extract as much soil as it wants without having to reclaim the site.

It's been estimated that Riverbend will need as much as 540,000 cubic yards of soil to cover the landfill.  Some experts have questioned whether that much soil can be removed from the floodplain without threatening the channel of the South Yamhill River.

You can stop this free give-away to Waste Management.  The proposed legislation, Senate Bill 1036, will be heard by the Senate Committee On Environment and Natural Resources at 3:00 pm Monday, April 3, in Hearing Room C in the State Capitol in Salem.  You can attend the hearing and sign up to testify (though the numbers of people allowed to testify may be limited).  And you can submit comments in writing to the committee at senr.exhibits@oregonlegislature.gov.  Michael Dembrow of Portland is the committee chair.  Learn more about the bill here.

Sunday, March 26, 2017

Court of Appeals Upholds LUBA

Landfill Expansion to Return to County Commissioners Yet Again

Last Wednesday, March 22, the Oregon Court of Appeals (COA) released its decision affirming the Land Use Board of Appeals (LUBA) ruling from last July.  In that opinion, LUBA found that Yamhill County had improperly determined that cumulative impacts from the proposed expansion of Riverbend Landfill would not significantly affect area farmers.  First LUBA, and now the COA, have directed the County to reconsider the effects of multiple impacts on local farms.

While this is good news for area farmers and other neighbors of the landfill, the COA also upheld the County's findings that Riverbend's expansion plan successfully mitigated any negative individual farm impacts in a decision that was confusing and contradictory.

Expanding Riverbend will have multiple impacts on multiple farms.  Farmers complained about litter in their fields, birds (especially seagulls) damaging their crops and animals, noise frightening poultry and horses, and customers staying away due to odors and perceived effects on water and air quality.  In approving expansion, the County dismissed these complaints, saying that farmers could be fully compensated for any losses from these impacts by cash payouts from Waste Management, Riverbend's multi-national, Texas-based corporate owner.


Although the COA laid out a strong argument that the purpose of Oregon land use law in EFU zones is to preserve agricultural land and to prevent that land from being hijacked for nonagricultural uses, the Court ultimately agreed with the County.
In earlier decisions, the COA had held that "state and local provisions [defining nonfarm uses permitted in farm zones] must be construed, to the extent possible, as being consistent with the overriding policy of preventing agricultural land from being diverted to non-agricultural use."

This time, the COA also cited ORS 215.243(2) and Statewide Planning Goal 3, which provide:


ORS 215.243(2):  "The preservation of a maximum amount of the limited supply of agricultural land is necessary to the conservation of the state’s economic resources and the preservation of such land in large blocks is necessary in maintaining the agricultural economy of the state and for the assurance of adequate, healthful and nutritious food for the people of this state and nation." 

Goal 3:  "Agricultural lands shall be preserved and maintained for farm use, consistent with existing and future needs for agricultural products, forest and open space and with the state’s agricultural land use policy expressed in ORS 215.243...."
Based on this state law, the COA concluded, "[w]hether a change in an accepted farm practice or the cost of that practice is 'significant,' then, is determined by whether the change affects the preservation of agricultural land for productive use."


In the end, however, the COA paid only lip service to these maxims, looking instead to an entirely different statute to determine that the most important factor in preserving EFU land was for a farm "to obtain a profit in money."  The Court reasoned, therefore, that where a nonfarm activity merely imposes additional costs on a farmer, even where those costs are tantamount to removing land from productive agricultural use, the impact of that cost increase, no matter how significant, can be mitigated by cash payouts to the farmer.
This is true, according to the COA, even when a farmer cannot sell any of her crop on the open market due to impacts from the proposed nonfarm useSuch intense impacts can be successfully and legally mitigated, in the COA's view, by payments equal to the market value of the crop -- the same result as paying the farmer not to farm.  Similarly, under the COA's ruling, where impacts render a field impossible to harvest without extensive additional work, payments for the cost of the additional work are acceptable.

In effect, the Court is telling nonfarm uses that, if their pockets are deep enough, they can buy their way onto EFU land.
The COA also ruled that a second litter fence would be adequate to control litter from the landfill even though the evidence showed that the first litter fence did not work.  The Court had a similar opinion of increasing days of falcon use to haze seagulls, despite evidence that the 2-3 days a week falcons were now used did not keep birds off fields in crucial winter months.  Said the Court, "any temporary effect of nuisance birds on farm practices has no long-term effect of inhibiting the use of agricultural land for profit. The issue is not whether the effects of nuisance birds are significant, but rather whether those effects will force a change in farm practices that significantly inhibits the use of agricultural land for profit."

Stop the Dump Coalition, Friends of Yamhill County, the Willamette Valley Wineries Association, and McPhillips Farms are reviewing the decision to see if there are any grounds for appeal to the Oregon Supreme Court.  If not, then it is back to the County for a new review of cumulative impacts.

Monday, March 20, 2017

DEQ to Process Riverbend Vertical Expansion Despite Lack of Court Ruling

DEQ, the Oregon Department of Environmental Quality, is proceeding with its review of Waste Management's proposed vertical expansion despite a court order requiring Yamhill County to justify its assessment that the expansion meets current zoning requirements.

Bob Schwarz, DEQ permit writer for Riverbend Landfill's operating permit, wrote on March 17:

"Regarding the final grading plan modification application that you mentioned, we will get that application and supplemental information provided by the applicant on the website in the next week or so.

"DEQ reviewed this application with the help of our seismic consultant, and we have concluded that it meets state and federal regulatory requirements, including those for seismic stability. We therefore plan to schedule a public comment period for this proposal in the near future which will include a public hearing.

"The application was accompanied by a Land Use Compatibility Statement dated November 16, 2016, which was subsequently challenged in Circuit Court under a Writ of Review. DEQ is moving forward with this permitting action as required under OAR 340-018-0050(2)(a)(G), which states that 'the Department shall continue to process the action unless ordered otherwise by LUBA or a court of law stays or invalidates a local action.'"


The "final grading plan modification" is Waste Management's euphemism for adding an additional year's worth of garbage to the existing landfill by flattening out its more or less hill-shaped structure.  The website Schwarz references is DEQ's program/project web page for Riverbend Landfill.  The November 16, 2016, "Land Use Compatibility Statement" (LUCS) is the document the County issued affirming that the proposal satisfied County land use requirements.

Landfill neighbors and expansion opponents sued to stop the County from issuing the November 16 LUCS while the larger expansion question is still under consideration by the Court of Appeals (COA).  (The COA is reviewing LUBA's 2016 ruling that the landfill can expand provided the County Board of Commissioners finds that the expansion will not have significant adverse cumulative impacts on area farming.)  The COA's decision will determine whether the landfill can legally expand up in the same area covered by the November 16 LUCS.

Lawyers for expansion opponents argue that neither the County nor DEQ can approve deposit of waste in this area until the COA rules.  The COA could issue its decision at any time.

The initial hearing in Circuit Court on the November 16 LUCS is scheduled for April 12, 2017.



Hazardous Waste Drop-Off May 20 in Newberg

Yamhill County Solid Waste will hold its semi-annual household hazardous waste collection Saturday, May 20, 2017, at the Newberg Transfer Station (2904 Wynooski Street in Newberg).  Waste will be accepted from 9am to 1pm.  The event is for household, not business, waste.

These events are extremely popular and lines are often long, so plan to expect some delay in dropping off your waste.

Hazardous waste can include pesticides, paints, solvents, and other household poisons -- anything with the words "Caution, Warning, Poison, or Danger" anywhere on the label.  Note that 80% of the material Yamhill County collects during these events is paint, though paint can now be taken at any time during regular business hours to any PaintCare facility, including Sherwin-Williams paint stores in both McMinnville and Newberg, Parr Lumber in Newberg, and the Habitat ReStore in McMinnville.  For more information about paint recycling, including locating PaintCare sites, visit PaintCare online.

According to YCSW coordinator Sherrie Mathison, unneeded and outdated medications will also be accepted on May 20, though, as with paint, unwanted medications can always be taken to any local police department or to the Amity Fire Department or Carlton, Dayton, Lafayette, and Sheridan City Hall, at any time during regular business hours.

Thanks to Ms. Mathison for details on this important event.
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