City threatened with injunction to block landfill expansion

by Jordan Green

Northeast Greensboro resident Harold C. Fields asks for the human relations commission’s assistance in blocking the reopening of the White Street Landfill. (photo by Jordan Green)

As the city of Greensboro moves forward to vet three private companies before selecting one in June to privately operate the White Street Landfill, a question mark remains about possible legal hurdles in about four years when the city would have to obtain additional permitting to expand the landfill.

Chris Brook, a staff attorney with the Southern Coalition for Social Justice in Durham, warned Greensboro City Attorney J. Rita Danish in a letter last week that North Carolina law requires the city to consider alternative sites, review socioeconomic data and hold a public hearing before it obtains a permit for additional phases of the White Street Landfill, after the permitted portion fills to capacity in an estimated four years. The Request For Proposals issued by the city specifies that the duration of a contract to operate the landfill would last “a minimum term of 15 years and a maximum term of 30 years.”

Brook writes that “the city of Greensboro has failed to comply with NCGS ‘§ 160A- 325 in its efforts to expand the White Street Landfill. If Greensboro does not articulate a plan for complying with this statutory obligation by May 16, 20011, then [Citizens for Economic and Environmental Justice] and SCSJ will seek to enjoin the city from moving forward with a 15-30-year contract to expand the White Street Landfill in Guilford County Superior Court.” Brook, a staff attorney at the Southern Coalition for Social Justice who is providing free representation to landfill opponents, said in an interview that the landfill has limited capacity that is currently permitted and would have to clear additional regulatory hurdles to continue to accept municipal solid waste after about four years.

“There is no permit for Phase IV or Phase V, both of which are within a mile of Phase III,” he said. “If the plan was just to reopen Phase III, then this would not apply, but as has become clear in recent city council meetings, the plan is a 15-year contract, and after Year 4, they’ll need Phase 4 and Phase 5 because Phase 3 will have reached capacity, and Phase 4 and Phase 5 qualify as a new sanitary landfill under the statute.

“They have not considered alternative sanitary sites, they have not compiled socioeconomic data for phases 4 and 5, and they have not held a public hearing,” Brook added. “Three pitches down the middle, and they’ve not swung at any of them.”

Having been notified about the Southern Coalition for Social Justice’s concerns Danish said recently that her office is reviewing the matter. “First, is it applicable?” she said. “Secondly, is it applicable currently or is applicable now or in the future?” At-large Councilman Robbie Perkins, who voted against reopening the landfill, said he is concerned about the landfill’s legal liability. He has proposed that staff prepare a cost estimate for the Greensboro to publicly operate the landfill, so the city is not locked into a 15-year contract that doesn’t allow for flexibility if permits to expand are not approved or if the city wants to pursue an alternative such as shipping trash to a proposed regional landfill in Randolph County.

“If the city of Greensboro can’t deliver the permitting then if I’m a private contractor operating the landfill I’m going to have to have some kind of penalty clause if I’m not going to be able to use the landfill for 15 years,” Perkins said. “I’m going to be looking to recover my costs. That’s just something you do as a prudent business person.”

Phil Carter, governmental affairs director for Waste Industries, said the city shouldn’t sweat the permitting question. Waste Industries is one of three companies contending for a contract to operate the landfill.

“There would be some very simple language in [the contract] based on a mutual agreement between the city and the contractor,” he said. “If there was something that occurred and didn’t allow you based on state denial of a permit or a lawsuit that took hold, something that wasn’t our fault or wasn’t their fault, it would be simple language to agree to do what you do up to that point. You might want to get some engineering fees back.

Carter also said he doesn’t think the statute cited by the Southern Coalition for Social Justice applies to the White Street Landfill. “Any contiguous property is grandfathered in,” he said. “I don’t think that would apply, as it’s not a brand new site. It’s still part of the overall footprint of the facility. I could be wrong.”

Ed Mussler, permitting branch head for the solid-waste section of the NC Department of Environment and Natural Resources, said his agency is also reviewing state law to determine whether the city would be required to consider alternatives, review socioeconomic data and hold a public hearing before obtaining permits to expand the landfill.

“I believe it’s highly likely that it would apply at that time because anything they do for the next phases is a substantial change and would require new government approval and you could argue it meets the definition of ‘proposed.’” Carter characterized Brook’s classification of Phase 4 as a “proposed new site” as opposed to an existing site as “a real stretch” in a comment posted on the YES! Weekly blog.

“I believe this is an attempt to muddy the water,” he said. “The goal is to introduce doubt and fear of lawsuits into the process. This is standard fare by opposition groups. Before it’s all over, they’ll throw everything possible on the wall in an attempt to stall and obfuscate hoping something will stick.”