Judge tells city to put brakes on negotiations to reopen landfill

by Jordan Green

Chris Brook (left), who represents landfill opponents, conferred with Greensboro Assistant City Attorney Jim Clark (right) and George House, outside counsel for the city, after a hearing before Superior Court Judge Patrice Hinnant last week. (photo by Jordan Green)

Lawyers for the city of Greensboro expect to be in court next week to argue they should be allowed to move forward with negotiations to select a contractor to handle the city’s solid waste.

The city officials contend they have the right to negotiate a contract with a solid waste company without holding a public hearing, considering alternative sites or reviewing socioeconomic data. Its lawyers have argued that executing a contract does not amount to selecting a site, although the two companies under consideration have said they would reopen the White Street Landfill, the city’s Request For Proposals references a contract of at least 15 years and city officials have said that the section of the landfill that is currently permitted is expected to fill to capacity in two to six years.

Landfill opponents obtained a temporary restraining order against the city on June 3. Signed by Guilford County Superior Court Patrice Hinnant, the order enjoins the city from “taking any further steps that would result in the selection of a site” for a new landfill within a mile of the currently permitted portion of the White Street site, including negotiating payment for closure costs or for opening additional phases. Phase III, which is permitted, currently accepts a small amount of what is euphemistically termed “screening,” which includes any non-biodegradable matter that is flushed down any toilet in Greensboro. It stopped accepting large amounts of residential waste in 2006.

Assistant City Manager Denise Turner said the city still plans to stick to a timetable set earlier this year that would have a contract signed by June 21 and ready to go into effect by July 1. That could result in garbage trucks loaded with residential waste entering the gates at White Street Landfill at the beginning of next month.

Lawyers for the city argued on June 1 that the responsibility for meeting the public-hearing requirements under state law would fall on whichever company is selected to handle the city’s solid waste, and that the city was only trying to negotiate a contract, not select a site for a new landfill.

“We’re not selecting a site,” Assistant City Attorney Jim Clark argued. “We’re selecting a contractor. As you can see, the scope of services for the Request For Proposals calls for the contractor to engage in a process that’s like what we’re asking for. We’re at Step 2; they’re at Step 34. Is this a remote possibility that could happen far down the road? Perhaps.

I don’t know.”

Chris Brook, a lawyer with the Southern Coalition for Social Justice in Durham who is representing landfill opponents free of charge, noted in his arguments that representatives of the two companies vying for the contract have discussed plans to obtain additional permitting for phases IV and V and the cost of closing Phase III in public exchanges with city council members.

“The idea that there’s some kind of lack of clarity about what’s going on — Gate City [Waste Services] and Waste Industries have been very clear,” Brook said. “They’re going to reopen the landfill. They’re going to build phases IV and V. And the council people asked them questions about it because they understood that.”

Brook argued that holding a public hearing on expanding the landfill after a contractor has already been selected to operate White Street would essentially amount to a sham.

Contradicting the city’s argument that landfill opponents are getting ahead of themselves, a representative of Waste Industries has contended that the statute requiring a public hearing doesn’t apply to future permitting of landfill space at White Street at all.

Phil Carter, governmental affairs director for Waste Industries, said in an e-mail to YES! Weekly last month: “It’s a real stretch to classify Phase 4 as a ‘proposed new site’ as opposed to an ‘existing site’ especially if Phase 4 is within the overall approved facility plan. The question is: Is the next phase within an approved facility plan considered a new landfill or an extension of the existing landfill? I don’t believe their claim will hold up. Our engineers are confident that these future phases can be permitted if they are within the facility plan boundary. We would not have spent the time and money to submit our proposal if we did not believe this.”

The statute cited by landfill opponents holds that “the governing board of a city shall consider alternative sites and socioeconomic data and shall hold a public hearing prior to selecting or approving a site for a new sanitary landfill that receives residential solid waste that is located within one mile of an existing sanitary landfill within the state.”

In a decision regarding residents living near the Hanes Mill Road Landfill in Winston- Salem, the NC Court of Appeals ruled in 2001 that “it is uncontested that the expansion of the landfill constitutes a ‘new sanitary landfill’” under the statute.

Carter could not be reached for comment for this story.

“The purpose of the TRO is to make sure you have time to make sure that you’re not dealing with contractors that never intend to present an alternative site,” said Hinnant in courtroom remarks on June 1.

She also appeared to agree with Brook that the selection of the site has already been made, averring, “These contractors have already identified Phase IV and Phase V as where that’s going to take place.”

The judge urged the city take it slow on negotiating a solid waste contract, urging due diligence to avoid a lawsuit with a contractor down the road.

“I’m asking all these questions to determine where the mischief for damage lies,” she said.

“The court’s emphasis is on avoiding unnecessary litigation and encouraging parties to put out fires and smooth out rough edges,” she later added.

For the time being, the only lawsuit related to the landfill is the one filed by opponents who contend the city cannot reopen the landfill until it has met its obligations under state law. Plaintiffs include Citizens for Economic and Environmental Justice, an organization led by former District 2 Councilwoman Goldie Wells, and the League of Women Voters of the Piedmont Triad, along with five individual residents. One plaintiff, Betty Crite, affirmed in an affidavit that she lives on property her grandfather purchased in the early 1900s — long before the landfill was originally opened.

Another, Marlina Scales, said she bought property adjacent to the landfill without understanding the consequences. All individual plaintiffs said reopening the landfill would depress the value of their properties. The plaintiffs cite health problems associated with the landfill, including chronic bronchitis, rheumatic fever, migraines, nausea and cancer.

Brook noted in his arguments that the area around the landfill is disproportionately African American compared with the city’s overall population, adding that the city has not given consideration to who will bear the negative consequences of reopening the landfill. “This is exactly what the statute is trying to empower plaintiffs to do,” he said. “This statute comes out of the Warren County PCB landfill case in the early ’80s. It was the first environmental justice case. Therein the North Carolina General Assembly recognized a problem — that we have sanitary landfills in neighborhoods that are disproportionately African American or Latino. They said, ‘We’re going to do something about it. And we’re not going to say that just because you have disproportionate populations you can’t site landfills there, but you’ve got to consider it. You’ve got to let your constituents know and hear about it in a public hearing.’ “And they’ve not done that even though they’ve been provided preliminary data saying — grab ’em by their lapels — ‘Listen, this could be a problem. You need to pay attention to this.’”