WM says foes overstating landfill impacts

By NICOLE MONTESANO<br/>Of the News-Register

Waste Management Inc. has submitted a rebuttal to opponents trying to block expansion of its Riverbend Landfill.

In November, the state Land Use Board of Appeals remanded the county’s authorization of the expansion for re-hearing.

While upholding the county’s decision on other points, LUBA said the county had favored the landfill over foes when it came to the landfill’s impact on neighboring farm operations. The agency said the county had effectively shifted the burden of proof to the opposition and discounted much of its testimony for failing to meet that standard.

Assistant County Counsel Todd Sadlo, who generally handles land use matters, characterized the remand as limited largely to narrow technical issues, and Riverbend attorneys agreed.

The landfill’s Houston-based parent company termed the remaining issues “minor,” saying they did not “mandate, or even suggest, that the board reverse its earlier decision.”

They said, “Rather, LUBA’s remand requires that the board look again at information related to a short and specific list of issues. ... In the few areas where LUBA identified a basis for remand, it was not because the evidence presented by opponents was persuasive, but rather because LUBA believed the county may not have applied the correct analysis to all of the evidence.”

The county framed its written-testimony-only re-hearing in that context, warning witnesses that their briefs would be rejected if they did not focus on the farm impact issue identified by LUBA in the remand.

In its rebuttal, the company urged the county to toss out 14 submissions for failing to meet the specified criteria.

The company also took issue with testimony it alleged to lack foundation.

For example, it challenged testimony from farmer Lillian Frease, asserting she ceased direct sale of cherries and berries from her farm after contracting amoebic dysentery from bird droppings. The company submitted a letter from Dr. Ruth Rabinovitch, a physician with Asante, which operates hospital and clinic facilities in Medford and Grants Pass, saying human beings do not contract amoebic dysentery from birds.

Waste Management attorney Tommy Brooks went on to question Frease’s omission of details like the size of her orchards, the species of cherries she cultivated and the sanitation and bird control practices she employed. He also questioned the amount of loss Frease claimed as a result of discontinuing direct sales.

The company did not address E. coli in bird droppings, which the land use advocacy group Friends of Yamhill County argued was the main issue on the Frease farm.

Waste Management also challenged arguments raised by three farmers that seagulls driven from the landfill by its falconry program damage newly planted grass seed shoots.

Farmers Ramsey McPhillips and Dave Kauer were joined by farmer Paul Kuehne, who rents some of his land from McPhillips, in testifying about seagull damage.

Kauer wrote, “We know they are destroying our fields for two simple reasons. 1) We can see them pull out the grass plugs, leaving bald spots in the rows, and 2) Because they are selective as to the fields they sit in, meaning only the fields that there is food for them to eat.”

He continued, “We have newly planted grass seed fields elsewhere in the county, and only on the fields next to Riverbend Landfill do we have to significantly change the way we farm to counter the seagulls.”

Waste Management countered with a letter from its vice president of business development, Joe Cassin, saying, “I spoke this week with a local farmer who, for more than 15 years, has farmed properties adjacent to Riverbend Landfill, as well as properties further away from Riverbend.” He said the farmer, who grows hazelnuts as well as grass seed, has not experienced any problems with seagulls.

“In fact,” Cassin wrote, “he said he would not be at all surprised if the ‘whole story was fabricated by landfill opponents as a strategy to get Waste Management to pay for seed that did not germinate.’” But he said, “This farmer, whom I have known for years, was unwilling to write his own letter, or allow me to use his name, because of fear of retaliation from landfill opponents.”

Riverbend spokeswoman Jackie Lang also wrote a letter, reporting a conversation with Derek Brooks, who farms “within sight of Riverbend Landfill.” He indicated he did not have any problem with “seagulls on his grass seed fields,” she wrote.

Berger baits for slugs, she said, and thinks that the lack of slugs probably deters seagulls.

Lang also submitted a letter recounting an exchange she said she had with a branch manager for Crop Production Services, an agricultural chemical and fertilizer supplier, who said he had not heard of seagulls damaging grass seed fields.

Waste Management also argued that opponents had “grossly overstated the actual number of gulls they see.” The company said, for example, that opponents had submitted comments describing ‘thousands’ of gulls in one instance and ‘1,200’ in another, when accompanying visual evidence showed there were, in fact, “fewer than 200 gulls.”

It questioned whether the damage shown in photos was actually caused by seagulls, and if so, whether it could fairly be described as “significant.”

The landfill’s contract falconer, Kort Clayton, submitted a letter of rebuttal to opposition video of seagulls in nearby farm fields.

He said the clips submitted by opponents were “very misleading.” He said they were “not representative of the number of seagulls typically present, or the amount of time they spend in neighboring fields.”

He acknowledged the falconry program displaces gulls onto adjacent grass seed fields, and the gulls favor newly planted acreage.

But he said it is “an accepted tenet of the falconry-based bird abatement industry” that driving the birds off “for an extended period of time” eventually causes them to “leave the area and revert to natural and more dispersed foraging behaviors” on a long-term basis. And he said that matches his experience.

He said gulls like young fields because they provide good visibility and plenty of bare ground to pull worms and insects. But he said landfill abatement efforts serve to reduce gull presence on both the landfill itself and on nearby fields over the long run.

Clayton recounted a conversation with Brian Thomas, whom he described as “a USDA-APHIS biologist who specializes in nuisance bird control and travels throughout rural Willamette Valley on an almost daily basis.” He said Thomas told him that in a 29-year career with APHIS, the USDA’s animal and plant health inspection service, “he was not aware of any complaints from landowners about gulls damaging grass seed crops.”

County commissioners had been scheduled to deliberate at their Feb. 18 meeting. The county staff informed the News-Register on Feb. 12 that the commissioners would not be meeting on the 18th after all, but the county website still lists the meeting on the county’s official schedule.

The staff indicated the commissioners would instead be holding their formal weekly business session at 2 p.m. Tuesday in the small conference room at Fenton House, situated across from the courthouse at 434 N.E. Evans St. The posted agenda for that meeting does not list the landfill as an item due to come before the commissioners.