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Despite opposition, Waste Management moves closer to OK for expansion

Thursday, October 8, 2009 by Kimberly Reeves

Since members of the Texas Commission on Environmental Quality seemed to agree to just about everything landfill operator Waste Management-Texas (WMT) requested Wednesday, Travis County Commissioners can declare themselves unhappily vindicated for agreeing not to oppose expansion for another landfill operator, Browning Ferris Industries (BFI).

It appears – although the case was remanded back for further clarification concerning operating hours – that Waste Management-Texas is just as entitled to an expansion permit for its Northeast Austin landfill as BFI was last month.

Travis County leaders have dealt with landfills for five tortuous years, and local environmentalists have frequently assailed county leaders for agreeing to negotiate with BFI in exchange for an agreement not to oppose BFI’s landfill-expansion permit.

Environmentalists considered it a sell-out. Why not simply oppose the permit, given the burden it put on local residents? County Judge Sam Biscoe, however, has said that getting BFI to agree to a closure date of 2015 was more than the county could expect under the circumstances, given that state law still gives counties limited land-use authority and practically no zoning regulation.

On Wednesday, TCEQ commissioners all but granted WMT’s request to expand laterally by 74 acre-feet, despite some major missteps in the past that led to significant fines. And, as one opponent pointed out, this lateral expansion would be using a technique – layering new waste over old liner – that has yet to be tried in Texas. The concern is how much the existing waste pile would sink, which the opponent group, with alleged ties to competitor Texas Disposal Systems, questioned. TDS, of all the county landfill operators, is considered the good actor when it comes to following guidelines and being responsive to the community.

Commissioner Buddy Garcia, who had to quiet the audience on more than one occasion, noted that the commission’s job was to consider whether the permit was conforming or not. And while some might not want the expansion to happen, he said, it would if the landfill met certain thresholds set out in state law.

“We need to place solid-waste disposal in a safe place, and to the extent of our regulations, we are required to consider all these goals and try and consider the best way to move forward,” Garcia told the audience. “I look at this as a situation where we have this jurisdiction that has agreed this is not appropriate here, but it meets all our regulations. I realize you don’t agree with that, but I think the only confusion we have is over operating hours.”

In simple terms, BFI had the silence of the Commissioners Court, a decent record of response to neighborhood concerns on odor and trash, and an agreement to close by 2015, so it got its expansion permit. WMT had the opposition of the city and county, significant problems with the TCEQ that led to a substantial fine, and no agreement on a closure date for the landfill, but it will likely get a permit.

The county wins, of course, and loses. State Administrative Law Judge Roy Scudday ruled in favor of Waste Management after a two-week hearing, noting that the operator had addressed all deficiencies and met all measures to apply for the expansion. And, Scudday noted, this landfill pre-dated development in the area.

Well-known environmental attorney Jim Blackburn, who has represented the Northeast Action Coalition in both the BFI and WMT cases, noted that, at some point, precedence should not be the deciding factor. People did not choose to locate next to the landfill, but they continue to suffer from the noise, odor, and traffic associated with it.

Vinson & Elkins represented Waste Management at the TCEQ hearing, rather than long-time attorney John Joseph Sr. The V&E lawyers won an argument that additional monitoring wells were not needed because the landfill in question is in a quadrant that existed before new monitoring requirements were put in place.

Waste Management did agree to follow the guidelines of the revised permit requirements, which went into effect in 2006, although the changes to the permit process are reportedly minor.

As it did in the case of the BFI permit, the Office of Public Utility Counsel argued against the expansion due to compatibility issues with local neighborhoods. Commissioners, however, noted that the applicant predated local development and had met the burden of proof to receive an expansion permit.

New Commissioner Carlos Rubinstein made a motion, however, to remand the case back to the hearings officer on the issue of operating hours. Scudday said Waste Management had failed to make its case on 24-hour operation and that operations should be limited to between the hours of 7am and 7pm. Rubinstein’s motion also struck down the need for additional monitoring wells, given the age of the property landfill.

The case will return after additional feedback on operating hours, although the rest of the permit appeared to be locked in place.

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