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TCEQ grants Northeast Austin landfill expansion

Thursday, September 10, 2009 by Austin Monitor

Local opponents to the expansion of BFI Waste Management’s Northeast Austin landfill weren’t just defeated at yesterday’s Texas Commission on Environmental Quality hearing. They were steamrolled by the commission. Commissioners didn’t yield to any single legal point argued by opponents to granting a 75-foot expansion permit for the existing BFI landfill.

Administrative Law Judge William Newcastle, who presided over an earlier two-week hearing on the landfill expansion, told the commission members upfront: BFI had prevailed on its burden of proof for its permit and implied that the permit should be granted.

The dominant issue for opponents was compatibility with the neighborhood, Newcastle acknowledged. It was Newcastle’s finding, however, that the landfill was compatible with the immediate surrounding uses. And, although the commission could have considered zoning as a mitigating issue, Travis County has no zoning. So there was little to protect the neighboring Harris Branch subdivision if the landfill was shown to have met all the standards set out by the state for operation.

And, if the issue of compatibility was to arise, then it should be pointed out that the landfill came first, not the surrounding neighborhoods, said Newcastle.

“This landfill facility has been the dominant land use in the immediate area for decades,” Newcastle said. “Not only have these landfills been here since the ‘80s, there is a history of this type of land use. There’s no significant argument with the open land uses in this area, which have been industrial or landfill.”

As BFI Attorney Paul Gosselink told the three-member commission, BFI had prevailed on all 26 issues raised by opponents. Gosselink quoted the administrative law judge’s opinion that many of the opposing science experts were unpersuasive and made no sense, labeling their findings “junk science.”

The key point that appeared to sell Newcastle was that BFI had agreed to a closure date with the city and county. It was the reason why Travis County Commissioners declined to actively oppose the permit. In all his cases as an administrative law judge, Newcastle could not recall a case in which the operator had agreed to a guaranteed closure date on a landfill.

Complaints about the noise and stench of the landfill also did not appear to hold water with the commission. While not perfect, both BFI and Waste Management seem to have made progress in those areas over the last two years, significantly decreasing complaints with additional investments in their aging facilities, which are expected to have some kind of smell after two decades of use.

In his comments, opponents’ attorney Jim Blackburn noted the two years of progress coincided with the two years that BFI’s application had been on file at the TCEQ, implying that improvements might not continue once an expansion permit was granted.

The agency staff argued in favor of the permit. Opponents noted the presence of 49 businesses, a school and a day care within a one-mile radius, as well as 1,887 residences. This was a desired high-growth area, despite the landfills’ residence, and that growth should be encouraged. In fact, this area was the highest growth area in Travis County.

The decision, when it came, was swift. Chair Buddy Garcia said BFI had met the burden of proof and argued that the fact that growth had continued in the area, in spite of a landfill, was a point that favored the landfill operator. Garcia also noted that 83 percent of the surrounding properties were either open or industrial space.

Bryan Shaw made the motion for the permit. He acknowledged the compatibility concerns, but reiterated the applicant had met its burden of proof.

The permit was approved unanimously.

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