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Lawyers advise Council but not quite enough for action on BFI case

Friday, December 19, 2008 by Mark Richardson

City Council members spent an hour behind closed doors Thursday hearing from a trio of law firms concerning the city’s predicament related to a settlement agreement with BFI Waste Disposal. Council members came back into open session, and promptly decided not to say or do anything in regards to the matter – which did not make them any new friends.


“If I was an Iraqi journalist, I’d be tossing a shoe at you right now,” said Robin Schneider, director of the Texas Campaign for the Environment. Mayor Will Wynn could not resist telling her that they might not be quite as quick to duck as President Bush was last week when faced with an actual Iraqi throwing shoes. “Those of you who were here last year remember how hard we worked to get the Council to come out against expanding the landfill. And now you’ve let the staff undermine our efforts.”


Council members voted on Thursday to postpone consideration of the issue until Jan. 15. However, Council Member Mike Martinez left the door open just a crack that some action could be taken, even as soon as today.


“We listened to the attorneys and got some good advice on the matter,” he said. “But we have asked for information from a number of people and we expect to hear back on that soon.” Asked if that meant something could be happening before Jan. 15, he said, “Anything is possible.” He indicated that the Council was hoping to receive information, possibly as early as today. If that information leads several Council Members to conclude that they should act before the next meeting, they could call a special meeting.


A conflict arose between the Council and the Law Department when the city’s legal staff negotiated an agreement with BFI pledging that the city would not oppose its request for a vertical expansion of a northeast Austin landfill in exchange for an agreement to close the landfill in 2015. City staff filed the document on Oct. 31 with the State Office of Administrative Hearings as a Rule 11 agreement, and on Nov 5, filed depositions made with its expert witnesses in the case.


The problem was that the City Council had passed a resolution in 2007 specifically stating its opposition to the expansion of the landfill. The City Attorney, however, interpreted language in the resolution as giving his office direction to negotiate the agreement.


City staff hired outside counsel from three law firms this week to advise the Counsel on the best course of action.


Schneider’s organization is the leader of a coalition against expanding the BFI landfill, as well as another one next door, managed by Waste Management Inc. The second landfill has filed for a similar expansion permit, and its hearing is set three months after BFI’s.


After the Council’s inaction on the issue, In Fact Daily asked Schneider whether she was surprised that the Council did not take action.


“It’s a complicated legal morass and the City Attorney’s office didn’t hire attorneys right away, like Friday when they should have—so no, I am not surprised,” she said. “Hopefully this will lead to some serious discussion and probes. This is only the beginning of what is needed to get to the bottom of what’s happened. Jan. 15 is after a key date for the Waste Management thing. The city has done so poorly by its citizens it has no good options. But we’re glad that the Council’s at least trying to get on top of this.”


Schneider was referring to Jan. 12 as a key date in which submissions are due to the State Office for Administrative Hearings in the WMI landfill’s contested case hearing.

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