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City to hire outside counsel to look into BFI agreement

Monday, December 8, 2008 by Mark Richardson

After a bit of behind-the-scenes scrambling last week, City Manager Marc Ott began looking for ways to undo the damage done by an agreement between the city and BFI Waste Management that left opponents of expanding a northeast Austin landfill – and some City Council members – feeling blindsided.


Council Members Mike Martinez, Laura Morrison and Lee Leffingwell are sponsoring a resolution on Thursday’s Council agenda instructing Ott to hire an outside law firm to investigate how a shift in city policy was accomplished without explicit direction from the Council. The firm will also look at ways to extricate the city from the Rule 11 agreement.


The agreement, filed Oct. 31 with the State Office of Administrative Hearings, states that the City of Austin will not oppose BFI in a contested case hearing over its request for a permit to expand a landfill on Giles Road at US 290 East upward to 795 feet. In exchange, BFI agreed to close the landfill by Nov. 2016, along with adhering to some additional environmental concerns.


The agreement, negotiated by the City Attorney’s office, appeared to catch a number of people in a coalition fighting the landfill expansion by surprise, particularly since, at the time, they considered the City of Austin a partner in their fight.  


Robin Schneider, director of the Texas Campaign for the Environment, said it appears that the city is once again moving in the right direction on the landfill.


“We are very happy that the City of Austin is taking steps to reconsider its position with BFI on the landfill,” she said.  “We were stunned when the city dropped its opposition to the expansion without at least notifying us that it was talking with them (BFI). I think some Council members found themselves on the wrong side of the debate.”


Ott sent a memo to Council members Friday, noting that at least two groups from the Council had approached him on the issue, seeking to change what the city had done. 


“I apologize for the flawed processing of this agreement,” Ott wrote. “It was absolutely our intent to carry out what we thought was the City Council’s directive. I hope you see that the intent of our communications was to ensure that staff was indeed carrying out your policy direction. The intent was right on, the flawed process caused the stumble and confusion.”


City Attorney David Smith, in a memo to Ott, outlined the city’s options.


“I believe that to change our position at this point, we would have to ask the (SOAH) Judge to not enforce the Rule 11 agreement, or allow us to withdraw it, and also allow us to supplement our pre-filed testimony to include additional testimony, and/or to cross- examine all other witnesses,” he wrote.


However, he disagreed with the notion that anyone was taken by surprise by the agreement.


“In terms of the question as to the Rule 11 agreement coming as a surprise, thereby hampering other protestants ability to present their own cases, it is my understanding that the lawyer for the neighbors knew about the negotiations with BFI a month in advance of the agreement being reached, and all other protestants knew at least two weeks in advance.” 


Council members will vote on the following item on Thursday:


“Direct the City Manager to enter into a contract on December 12, 2008 with Allison, Bass & Associates, L.L.P. to provide legal Counsel regarding of the current BFI/City of Austin settlement agreement and other issues related to the State Administrative Law Hearing, in an amount not to exceed $25,000.”


Council Members Laura Morrison, Mike Martinez, and Lee Leffingwell are sponsoring the item.

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