On Jan 5th, 2010, an unprecedented coalition of organizations and individuals, led by Waste Not of Yamhill County filed a Notice of Intent to Appeal to the Oregon Land Use Board of Appeals (LUBA) to overturn the Yamhill County Board of Commissioners approval of Ordinance 849. This ordinance allows the rezoning of Exclusive Farm Use (EFU) land to accommodate the un-necessary and destructive expansion of Riverbend Landflll in McMinnville, Oregon.
According to William Kabeiseman, attorney for Waste Not, the Findings for Approval adopted by the Commissioners ignore evidence detailing the negative impacts both the existing landfill and the proposed expansion have already had on County residents, farms and businesses and ignore evidence that Riverbend is not the only viable solid waste disposal system available to Yamhill County. Those Findings, Kabeiseman says, do not support setting aside state Land Use Goals to allow for expansion of the landfill onto high-value farmland.
Waste Not is being joined in its appeal by the Yamhill County Soil and Water Conservation District, the Yamhill County Farm Bureau, Willamette Riverkeeper, Yamhill Valley Vineyards Association, and 14 other businesses, organizations, and individuals. Mr. Kabeisman will be presenting the case to LUBA on behalf of all the co-petitioners.
We expect that LUBA will hear and decide the appeal before the end of the calendar year.
Waste Not and its co-petitioners take heart in the fact that the anti-agricultural – anti environmental job creation voting block of Commissioners Leslie Lewis and Kathy George is often overturned at LUBA. Inevitably, I believe this strong collation of elected officials, long standing businesses and dedicated stewards of the land and water shall prevail at LUBA to protect the aquifer, farms, jobs and garbage rates of Yamhill County.
Full list of C0-Petitioners:
Waste Not Of Yamhill County
Yamhill County Soil and Water Conservation District
Yamhill County Farm Bureau
Willamette Valley Wineries Association
Willamette Riverkeeper
Momtazi Family LLC
Rob Stuart & R. Stuart Co.
The Eyrie Vineyards
Bill Hanson & Panther Creek Cellars
Wayne Bailey & Youngberg Hill Vineyards & Inn
Denis Burger & Yamhill Valley Vineyards
Erin Rainey, Shannon Cox, & Haley Cox
McPhillips Farms, INC.
View official "Notice of Intent to appeal" (PDF)
REQUEST FOR THE
ENFORCEMENT OF ODOR NUSIANCE LAWS RELATING TO
RIVERBEND LANDFILL.
McMINNVILLE, OREGON
DECEMBER 12, 2009
Attorney General John Kroger
Oregon Department of Justice
1162 Court Street NE
Salem, OR 97301
Bill Blosser
Chairman Environmental Quality Commission
811 SW 6th Avenue
Portland, OR 97204
Dear Attorney General Kroger and Chairman Blosser,
We the undersigned 24 farms respectfully request the permit renewal for Riverbend Landfill’s title V 5-year permit be stayed until a thorough and complete analysis of the nuisance of landfill gas odor, which is entering our McMinnville homes and properties on a regular and ever increasing volume, is completed and the intolerable situation is abated.
This is not a comment under the expired public hearing period for a Title V permit. This is a demand for compliance based on our understanding of nuisance law, as described by the Oregon Department of Justice and the Environmental Quality Commission.
We have been made aware of the DOJ memorandum dated Sept 2, 2009 from Assistant Attorney General, Larry Knudsen (exhibit 1) that clearly defines excessive odors caused by an operation that is subject to a standard air contaminant discharge permit or Oregon Title V operating permit as a legal nuisance.
This opinion states, “The definition of “air contaminant” in Oregon’s air quality statutes expressly includes odor. OR 468A.005(3); see also OAR 340-200-0020(8) and 340-208-0010(2). Air pollution in turn, is defined as the presence of air contaminants in sufficient quantity or character to be “injurious to public welfare, to heath of human, plant or animal life or the property or to interfere unreasonably with enjoyment of life and property.” ORS 468A.005(5) (emphasis added).
Mr. Knudson goes on to point out that:
The Principle that some activities may be prohibited because they unreasonably interfere with public rights or the rightful use of private property is the foundation for laws prohibiting and regulating public and private nuisance. Portland v. Redwood Sanitary Sewer Service District: 156 Or app 3111 (1998):
Further Mr. Knudson states:
“Acting under the express statutory authority, the EQC has adopted rules governing both odor per se (in the Portland Metropolitan area) and the odor as a source of nuisance air pollution (statewide).”
The direct regulation of odor is authorized under OAR 340-208-0550(1). That rules states:
- Control apparatus and equipment using the highest and best practicable treatment currently available, must be installed and operated to reduce to a minimum odor-bearing gases or odor-bearing particulate matter emitted into the atmosphere.”
We have been made aware that Riverbend landfill has installed “apparatus and equipment, using the highest and best practicable treatment currently available…” to contain the smells and yet the odors are INCREASING in both duration and potency. Several farming families have moved or sold their properties due to the smells. Many more are contemplating the same due to the accelerating nuisance. The landfill has utilized “best case” equipment to reach a “minimum” that does not reduce the odor to a level compatible with surrounding use or enjoyment of our lives and property.
EQC adopted general air nuisance rules in 2001. OAR 340-208-0300…
- No person may cause or allow air contaminants from any source subject to regulation by the department to cause a nuisance.
“Under the Commission’s rules, a nuisance exists if there is a substantial and unreasonable interference with another’s use and enjoyment of real property,…” Lost property values and forced odor related evacuations are a reality on many properties around the landfill.
A related EQC rule establishes seven factors that DEQ may consider when determining whether air emissions create a nuisance. They are:
- Frequency of emissions; EVERY DAY AND NIGHT.
- Duration of the emission; At any given time you can find the smell, depending on wind currents and wet weather inversions, permeating the homes of the surrounding property owners.
- Strength of intensity of the emissions, odors or other offending properties; these smells are entering our homes each day therefore the intensity is strong. Property owners have noted an increase in the smell as the landfill has grown to its present size and height.
- Number of people impacted; We have surveyed the population that is surrounding the dump; 120 people claim odor nuisance.
- The suitability of each party’s use to the character of the locality in which it is conducted; The land-use law is clear. The landfill must be “compatible with surrounding farm use.” Dropping property values, lost grape sales, pasture land let go barren because of the proximity of the landfill and lost hay sales. Many families shave sold out, those who have retained ownership have moved away and rented out their farms and farm homes… many of which have fallen in disrepair.
- Extent and character of the harm to complainants. The harm is lost property value, lost livability, daily psychological trauma of not being able to enjoy our properties many of which pre-exist the landfill that is causing the harm. The landfill has been trying to buy a buffer but unless they buy us all, there will always be a population in peril. The aggressive pursuit of property as this buffer is proof that the landfill also realizes the smells are a legal nuisance.
(g) The source’s ability to prevent or avoid harm. In Question. All to-date attempts to quell the smell to a tolerable level have failed. The landfill will grow in size and thus the nuisance will grow with it.
And to continue, Mr. Knudsen opinion states:
“A permit condition that merely requires the reduction or elimination of offending odors probably could not be defended.”
Thus we are asking that a specific plan to remedy the odor nuisance be structured and implemented BEFORE you issue a new 5-year permit for the Landfill. Verification that this plan has succeeding in returning the air shed to a situation where the surrounding property owners may once again enjoy their lives and property in a manor consistent with the law is paramount to assuring the permitting process works to protect the public and private sectors of the State.
The question of whether a nuisance that interferes with the reasonable use of our lives and property has been confirmed. If this plan does not quell the recognized nuisance we ask that you then analysis the environmental efficacy of a wet climate landfill that has grown too big, now due to grow 2 times larger, as weighted against our legal rights to live on our homes and farms without the landfill interfering unreasonably with the enjoyment of our lives and our property.
What makes DOJ think Riverbend, in its ever-increasing size, is something that EQC and DEQ can rationally regulate as anything other than an out of control legal nuisance? Would EQC direct policy to site a new landfill of this magnitude surrounded by this population base? The answer is no. Then why is the current landfill, which is growing both in height and breadth, given a permit to affect the surrounding lands so adversely? Is it Oregon’s policy to let this landfill (now the second biggest single source of man made GHG in the State) to grow to proportions such that it continues to causes a violation of the State nuisance laws? The “Please quell the smells the best you can do” permitting method needs to be replaced with a “comply with the nuisance laws or no permit renewal” policy. The farm homes were here first.
If you do not see the smells decreasing even though the size and intensity of those smells is increasing than DOJ has no choice but to determine whether Riverbend Landfill has a legal right to exist at all. That is the framework by which the permitting system rests. Is the landfill in compliance with Oregon laws regarding nuisance? According to Assistant Attorney General Knudson’s opinion – no. Then why are you issuing a permit? We are not asking you to close a freeway; we are asking you to regulate a Texas owned Private Corporation. Waste Management has another facility to take the trash where this nuisance does not exist. This corporation is a growing nuisance and needs to conform to the permitting process and be regulated as such.
In conclusion, we are asking you to declare that Riverbend landfill is a legal nuisance based on the ongoing and ever increasing odors that it creates. To issue an air containment permit for five years knowing the landfill has not meet all the legal requirements would be a dereliction of your statutory duty to uphold the laws to protect the public. We request that you require that the Landfill articulate a plan to fix the problem and make sure that it has worked before DEQ issues the permit. For DOJ, EQC and DEQ to continue to regulate Riverbend Landfill as though it has the right to grow and ruin so many lives and livelihoods is not in keeping with Oregon laws or values.
We have attached an analysis of the Psychological Impact of Offensive Odors of landfills from Fred Lee, PHD. We are living proof that his study and opinion has merit with regard to the findings of EQC when it adopted regulations relating to odor.
