Riverbend Requests Hearing

Hold on to your hats, folks, the Dump Express is taking off again.

Maybe we should say the Dump Roller Coaster.  Riverbend Landfill (RLI) has asked the Yamhill County Board of Commissioners (BOC) to reopen its hearing on the expansion RLI proposed back in 2014.

This is the plan we previously noted was approved by the BOC, appealed to the Land Use Board of Appeals (LUBA), remanded to the BOC and approved again, appealed again to LUBA and from there to the Court of Appeals (COA) and the state Supreme Court, which sent it back to LUBA, which remanded it to the BOC, which order was appealed to the COA, which upheld LUBA (pause here for breath).

Along that tortuous journey, many issues were resolved, so that if the BOC were to approve the expansion today, Riverbend could start dumping waste on 29 new acres adjacent to Highway 18, rising to 282' above sea level (or about 180' above the highway).  The berm surrounding this new "module" would come within 50' of the roadway, immediately rise 80' into the air, and be capped by an internal dump road.

Imagine driving into McMinnville on Highway 18 at dusk only to see headlights coming at you above your right shoulder!

The dump would also have to agree to install a "green technology" facility on the site at some nebulous time in the future.  Waste Management, Riverbend's Texas-based corporate owner, has had six years since filing its expansion application to develop this fantastic technology, with no progress in sight.  It might be that it's more lucrative for the company to promise the moon while seeking expansion and then close the dump before the requirement to actually deliver the moon kicks in.

If the BOC agrees to reopen the hearing, what would the Board hear?  Riverbend says there are two issues:  Whether a litter fence proposed by the dump catches enough plastic bags to ensure that nearby farms won't have to alter their farming practices in any significant way; and whether the minor adverse effects the expanded landfill would have on area farms add up to significant impacts.

Landfill opponents counter that the Supreme Court and LUBA (see above summary of the case so far) have already decided Q1 against Riverbend.  That is, the Supreme Court held that the only valid mitigation Riverbend proposed to minimize litter was that fence, and LUBA held that the evidence the BOC already heard in previous hearings was insufficient to show that the fence did any good.  Based on these judicial determinations, the only legal conclusion that can be reached is that Riverbend failed to prove it can expand without impacting farms significantly -- the standard it has to meet in order to win the right to expand.

Given that conclusion, the BOC doesn't have to consider Q2.  The roller coaster ride is over.  Riverbend loses.

Or are we dreaming again?

Waste Management Unveils New Proposal

By Ikidu Knott

This just in:  Waste Management, Texas-based owner of Riverbend Landfill, today asked the Yamhill County Board of Commissioners (BOC) to approve its landfill expansion application.

If you've followed the convoluted history of this proposed expansion, you know that the application was originally filed in 2014, approved by the BOC, appealed to the Land Use Board of Appeals (LUBA), remanded to the BOC and approved again, appealed again to LUBA and from there to the Court of Appeals (COA) and the state Supreme Court, which sent it back to LUBA, which remanded it to the BOC, which order was appealed to the COA, which upheld LUBA (pause here for breath).

The upshot is that the courts gave Waste Management until May 4, 2020, to pursue the current application with the BOC.

There's been a lot of speculation in garbage circles about when and if WM would take that big step.

Those Against Big Garbage (the so-called "zero wasters") have been crossing their fingers that WM will just walk away from Yamhill County and close Riverbend down for good.

The Pro Waste contingent, meanwhile, has also been hoping WM would forgo its current application.  They look to win a second pro-garbage seat on the BOC in the May 19, 2020, election.  With a majority squarely in offal's corner, the Trash Talkers believe approving a new application would be a picnic, with plenty of room in an expanded landfill for the leftovers.

So all sides were disappointed when WM submitted its proposal to the BOC this morning.

The proposal itself is even more surprising.  Rather than approve what remains of the original proposal, which had been shorn via various court orders of 10 acres, plastic bags, seagull poop, and malodorous emanations, WM has told the BOC it intends to rely on a 1991 County Counsel opinion to cover the existing waste mountain with green tarps and erect a giant, 100-foot-tall, internally-lit, blow-up acorn on the top.

Under the 1991 opinion, WM claims, the County has no choice but to allow this enhancement.  But even if the opinion doesn't apply, WM contends its proposal will have a significant positive impact on farming practices in the region, since everyone is planting filberts now.

As you can imagine, the proposal is driving the dump's neighbors nuts...or would be if this wasn't an April Fool!

Commissioners Revise SWAC Ordinance

The Yamhill County Board of Commissioners (BOC) held a workshop Tuesday, October 22, to consider revisions to the ordinance that governs the Solid Waste Advisory Committee (SWAC).  Most of the proposed revisions address SWAC membership.

SWAC is a combination of two state-mandated committees for counties hosting regional landfills.  One of the committees monitors the landfill, while the other is a citizens committee focused on solid waste in general.  Currently SWAC has seven members, two of which represent the two solid waste companies that serve the County, Waste Management and Recology.

The proposed revisions would expand citizen membership by two, with one of the additional slots reserved for a student.  Other members called out in the proposed revision include business and recycling representatives, in addition to the two County franchisees.  Citizen members are to be selected with "due regard" to geographic representation.

The proposed ordinance amendments would also require SWAC to make its minutes and agenda available at least 72 hours before meetings, which would now be monthly instead of quarterly.

The proposed amendments were not made available to the public, but interested persons in attendance were invited to address the Commissioners.  Both Susan Watkins and Maggie Cross urged the BOC to make industry representatives non-voting.  Commissioners, however, noted that the ordinance already prohibits the two members from voting on matters that "directly" affect their companies' bottom lines.

Though Watkins and Cross both pointed out that everything SWAC does affects waste haulers and the landfill in some way, the BOC expressed the hope that the addition of two community members would dilute industry's dominance on the committee.

The BOC also relied on the fact that SWAC is an advisory committee, with no power to take action on its own.  However, as Watkins pointed out, industry members have dominated the process for nominating new SWAC members, thus retaining a strangle hold on the committee.

County Counsel was asked to revise the proposed amendments and return them to the BOC for action at a meeting in early December.  The BOC will vote on the measure as an emergency ordinance, ie, one that will take effect immediately, allowing new members to be appointed to SWAC in early January.

In the meantime, five candidates' names have been on hold since last spring.  No one from the County has contacted them, though Solid Waste Manager Ashley Watkins said she would soon.

What Next for Riverbend?

Now that the Court of Appeals has rejected Riverbend Landfill's appeal in the never-ending effort to expand the dump, what happens next?

The timing is controlled by ORS 215.435, which establishes a basic 120-day window for the County to act on a land use application (eg, to expand the dump) when, as here, the case has been remanded to the County by the Land Use Board of Appeal.  If, however, Riverbend appeals the latest Court of Appeals (COA) decision to the state Supreme Court, the 120 days will start to run from the date of final resolution of the judicial review.

The COA will not formally enter judgment before 35 days after the date the Court issued its decision (September 11) in order to give appellants time to appeal.  In Riverbend's case, the 35 days expires October 16th.  Even if Riverbend doesn’t appeal, the judgment could be entered as late as November 20.

But--even once there is an appellate judgment, the 120-day period for County action still does not begin until the applicant requests in writing that the County proceed with the application.  The applicant--Riverbend--has 180 days in which to file this request.  Only if no request is submitted within the 180 days may the County consider the application terminated.

The ball is therefore in Riverbend's court (so to speak).  Only Riverbend can move the application forward; the County cannot begin the process on its own. The landfill could appeal to the Supreme Court, request County action on its existing application, withdraw that application and perhaps file a new one, or let the 180 days expire and perhaps submit a new application.

Assuming Riverbend does not appeal and the COA enters its judgment on October 16, the 180-day period would end April 13, 2020.  The 2020 primary for County Commissioner--a position currently held by someone skeptical about the dump's continued viability--falls in May.  Depending upon the outcome of that primary, we may see a "new and improved" application to expand Riverbend filed the following January, when a new Commissioner might be taking office.

County Board to Review New SWAC Bylaws

On Tuesday, October 22, the County Board of Commissioners (BOC) will hold a work session to review proposed new bylaws for the County's Solid Waste Advisory Committee (SWAC).  SWAC, a citizens' committee mandated by state law, advises the BOC about waste hauling and disposal rates and other matters related to solid waste collection and disposal.

Currently, SWAC operates under provisions in state and County law.  The new bylaws are expected to "fill in the gaps" between those statutory requirements and operational practice, such as filling vacancies.  In the past, the County has often filled SWAC vacancies by soliciting recommendations from industry members on the committee.  This has led to a committee weighted in favor of industry interests.

By local ordinance, industry representatives fill two voting positions on the committee.  The other five positions are reserved for citizens, who must fit into one of several broadly described slots, such as "local organizations" whose members are electors or property owners in the County or "residents residing near or adjacent to a regional disposal site."  Nothing in the ordinance requires citizens to have demonstrated any knowledge of or interest in solid waste issues.

In fact, when members of Stop the Dump Coalition, a local organization whose members are County electors who own property in the County, applied to fill SWAC vacancies, industry representatives led a move to reject their applications precisely because they know a lot about solid waste issues.

Other membership issues that bylaws could address are holding over and attendance at meetings.  County ordinance calls for three-year terms, but members are often allowed to remain in office for many years beyond that.  And members who seldom show up for SWAC meetings (only four a year, one of which traditionally is a tour of Riverbend Landfill or other waste-related facility) are not called to task for their absences.

Adopting bylaws could encourage SWAC to move more aggressively to recruit candidates with a demonstrated interest in SWAC's agenda and to populate the committee with citizens who oppose as well as support industry measures.  The BOC could also be asked to amend the ordinance to make industry representatives ex officio rather than voting members.

With changes like these, SWAC could become the serious, thoughtful review board that state law contemplates.

The work session on the proposed bylaws will be held Tuesday, October 22, at 1:30 in Room 32 of the County Courthouse at the corner of 5th and Evans in McMinnville.  Note:  This is a discussion session only, and public testimony is not normally allowed.