As reported last fall, Waste Management has taken Yamhill County's decision to deny its application to expand Riverbend Landfill to court. Now the Oregon Land Use Board of Appeals (LUBA) has set a briefing schedule for that appeal. Riverbend must file its opening arguments by January 15, with the County's response due by February 10. The County will most likely rely on landfill opponents, including the Stop the Dump Coalition, to prepare the legal arguments.
Waste Management (WM) is expected to make the same unsuccessful arguments it used to try to persuade the County Board of Commissioners to approve expansion. WM attorney Tommy Brooks argued then that most of the facts had been decided by previous Boards, including the benefit and necessity of having a local landfill and the appropriateness of the landfill at its present site.
According to Brooks, this particular iteration of the landfill fight involved only two issues: whether Riverbend could control litter escaping from the landfill to the point where it had a less-than-significant impact on the neighboring McPhillips farm; and whether various minor impacts to area farms, when added together, amounted to a "significant" impact on any single farm.
To solve the litter problem, Riverbend devised a new litter management plan. Expansion opponents, however, shredded the so-called plan, pointing out that all the "evidence" that the plan would work despite vagaries of wind and weather was gathered during 80 minutes over 6 days in one two-week
period in April, 2020. Despite nearly half a year passing since the most recent court decision, WM made no effort to measure any parameter affecting litter escape at other times of year.
Moreover, the so-called "evidence" consisted only of wind speed readings, with no data provided about location (other than generalized descriptions, eg, "haul road above plant"), elevation, topography, wind direction, or wind speed before or after the time of the reading. This despite WM's own submittals showing that each of these factors can contribute to litter escape.
With respect to the cumulative effect of various insignificant impacts, WM ducked its legally-mandated burden of proof as it has tried to do throughout these proceedings. Instead of pointing to specific evidence in the record to support the claim that various impacts were not cumulatively significant, WM asked the County to require farmers to prove that such impacts when added together were significant.
Burden of proof is an important legal tenet. A party with this burden must produce evidence to support its claims. Contrary to WM's argument, opposing parties have no obligation to produce evidence to dispute the claims.
Unless WM can come up with more cogent arguments, based on material and legal theories presented to the County, it should lose this appeal.
