MINUTES OF THE METRO COUNCIL

REGIONAL ENVIRONMENTAL MANAGEMENT COMMITTEE MEETING

Tuesday, June 2, 1998

Council Chamber

Chair Morissette called the meeting to order at 11:08 AM.

1.  CONSIDERATION OF MINUTES OF MAY 5 AND 19, 1998

2.  REGIONAL ENVIRONMENTAL MANAGEMENT DIRECTOR’S UPDATE

Bruce Warner, Director of Regional Environmental Management, did not give an update today in order to accommodate the length of today’s agenda.

3.  ORDINANCE NO. 98-741, FOR THE PURPOSE OF GRANTING A YARD DEBRIS PROCESSING FACILITY LICENSE TO MCFARLANE’S BARK, INC. TO OPERATE A YARD DEBRIS PROCESSING FACILITY, AND DECLARING AN EMERGENCY

Mr. Warner introduced Bill Metzler, Associate Solid Waste Planner, who gave an overview of Ordinance No. 98-741, which would grant a yard debris processing facility to McFarlane’s Bark, Inc. An executive summary and staff report to the ordinance contain the substance of Mr. Metzler’s report and copies are included as part of the meeting record.

Councilor McFarland said she was eligible to vote on this matter as she is not related to McFarlane’s Bark.

Chair Morissette opened a public hearing.

• Brian Brophy, CR Brophy Machine Works, 77 SE Johnson Rd., Milwaukie, said McFarlane’s was queuing on a common roadway. He said they could not stripe, gravel, or blacktop the middle of the road. He said until the dispute was resolved there would be a problem with traffic. He added that the attorneys for both sides were negotiating.

Councilor McFarland asked whether Metro’s passing the ordinance would affect Mr. Brophy’s legal considerations. She questioned whether Metro had the power to give them the right to use public roadway. Marvin Mr. Fjordbeck, Senior Assistant Counsel, said it was a matter between the two parties and if they could not reach accommodation on the roadway the applicant would be unable to meet that condition. Mr. Warner said the intention is to maintain pressure on McFarlane’s to obtain closure with the adjacent property owner so they could comply. He said if they could not comply then they would be in violation and not able to live up to the standards for the license.

Councilor Washington asked why the process could be used to pressure citizens to reach agreement. He said he found it inappropriate to do so. Mr. Fjordbeck said staff was saying these were the conditions and requirements to be met in order to be granted a license for this type of facility. He said the parties were still negotiating. Councilor McFarland asked why the committee would vote on the contract before the conditions were met.

• Dan Chandler, 1727 NW Hoyt, Portland, representing McFarlane’s Bark, said they had made substantial progress with negotiations with Mr. Brophy but they were not done. His key point was that their performance was not dependent upon achieving this agreement and they could achieve their goal without paving by using cones and signs. He said he would ask for a continuance to work further if the Committee was inclined to vote no on the traffic issue at this time. He clarified that it was not a public road but a shared easement area.

• Brent Ahrend, Group McKenzie, 0690 Bancroft St., Portland, reiterated that traffic control can be accommodated with cones and signs as indicated.

Councilor Washington said he did not understand why they were asking for approval if they had not reached an agreement. Mr. Chandler repeated that it was not necessary to have the traffic controls approved before hand because they could control the traffic by signs and cones. Councilor Washington asked what the committee’s responsibility was if that was true. Could they operate with the gravel roadway.

Mr. Metzler responded that the following three conditions had been set: One, to install and maintain on-site directional signage within 30 days. This could be done with cones and signage. Two, implement long-term traffic management plans in a satisfactory manner by December 1, 1998.

Councilor McFarland asked if the franchise would be null and void if the parties were unable to reach an agreement by the deadline. Mr. Metzler said in this case McFarlane’s would be out of compliance and Metro would take additional measures to insure compliance with the traffic management provisions. Councilor McFarland said she was concerned that the franchisee may not feel compelled to honor requirements in future.

• Neil Alongi, Maul, Foster and Alongi, 7223 NE Hazel Dell, Vancouver, WA, appeared before the committee to answer questions about the composting plan or operational site of the proposal.

Councilor Washington said he wanted to make an amendment that this be resolved in 30 days. He did not want to wait until December, and if it was that important to the parties, they could get together and resolve their differences within the 30 days. He said he would then feel comfortable supporting it. He said he would not vote for this now because it was not Metro’s business.

Councilor McFarland asked if McFarlane’s was not following the same plan with some modifications as they had always followed as partners with Metro. She thought they had always done what was required of them as partners and asked if any modifications had been required of them.

Mr. Chandler said McFarlane’s wanted to make some modifications to make the site better. He felt the agreement was close. He asked for continuance of the hearing to see if they could make some further progress. He said the special conditions were 30 days from the date of the license to get the traffic problems resolved.

Councilor Washington asked Brian Brophy if the primary issue was traffic or other things. Mr. Brophy said the primary legal issue was the traffic. He thought Metro had done a lot of improvements and a lot of the issues were being resolved. He said McFarlane’s had done a lot of work to improve the site but he wanted to resolve this last issue because it had been ongoing for 3-4 years. He felt it needed to be resolved and he couldn’t allow this process to continue without some agreement.

Chair Morissette commented that this contractor had worked with Metro for a long time and he was uncomfortable requiring them to come to specific terms with someone if it would mean they would not have a negotiated position. He said they needed the license to operate and thousands of people used the facility. He said the goal was to find a conclusion that worked for both parties. He said yanking licenses because someone did not agree with the width of the asphalt would affect a lot of people as well as a contractor with an excellent history of recycling efforts in the region. He said since they were asking the contractor to make a better situation, they should make sure it worked for both sides. He felt it was too tight a time frame and would not necessarily accomplish that.

Councilor Washington asked why the parties were here asking for this if the Committee was not expected to take some kind of action. Chair Morissette said it was because Metro issued licensing. He said there had been discussions of the broader issue about whether this facility should be inside an Urban Growth Boundary at all. He said it was a nuisance to some people but the reality was that as growth occurred these types of facilities would become more difficult. There would be a commuting issue if the site was moved outside the UGB. He was worried about too tight a time frame.

Councilor Washington asked if under the current circumstances they had until December to resolve the issue. Mr. Warner said they had until December to implement the longer range plan which included the more intensive site improvements on the shared easement.

Councilor Washington asked about the 30-day reference and what would happen if the issue was not resolved in that time. Mr. Warner said the 30 days was to prevent traffic impacts onto the public right-of-way which was Johnson Road. The private easement issue was something that might take longer to resolve and that was the December date.

Councilor McFarland said in the past they had a procedure with franchisees who were not meeting all of the requirements. She said this discussion about traffic had been before the committee before. She said she would vote to send it on the full Council. She said she hoped McFarlane’s and Brophy would come at that time and say the problem had been solved.

Councilor Washington said he would not support it. His concern was he felt like he was in the middle of a long-standing situation. He did not want anyone to think he wanted to yank the license. He said he understood that if they did not meet the criteria by December they could be denied their license.

Mr. Warner said they would not deny the license but take additional measures to ensure the traffic was managed. He said continuing traffic problems would mean they were exceeding their capacity which would mean there would be limitations on the amount of material, thus the traffic at that site which would hurt their operations and business.

Councilor Washington asked what kind of limitations would be imposed and what would be done if there were continued complaints.

Mr. Warner responded it could be 25% of the compost would have to be further reduced or limit traffic so there would be absolutely no backup onto Johnson Road. He said further complaints would bring stepped up enforcement measures.

Councilor McFarland said Metro was not nearly as soft and cuddly about this kind of thing as they were 4-5 years ago. She felt everyone in the industry was aware of that.

Chair Morissette closed the public hearing.

Chair Morissette will carry the ordinance to full Council.

4.  ORDINANCE NO. 98-745, FOR THE PURPOSE OF GRANTING A FRANCHISE TO CITISTICS, INC. FOR THE PURPOSE OF OPERATING A COMBINED TRANSFER STATION AND SOLID WASTE MATERIALS RECOVERY FACILITY

Mr. Warner gave a report on Ordinance No. 98-745, which would grant a franchise to Citistics, Incorporated to operate a combined transfer station and solid waste materials recovery facility. An executive summary and staff report to the ordinance contains the substance of Mr. Warner’s report and copies are included as part of the meeting record.

Mr. Warner said it had been reviewed against the code and since the applicant had submitted all of the materials specified in the code the application had been processed. He noted further tests that reviewed facility criteria. He said staff had found the applicant qualified. Mr. Warner said the applicant had done business since 1904 and had a good reputation. He said staff had also reviewed and found they did comply with the Regional Solid Waste Management Plan and the facility was needed. He said they had concluded that the applicant complied with all other applicable regulatory requirements. Mr. Warner said Beaverton had granted a conditional use permit in January 1977 and reconfirmed by the planning commission earlier this year. He said DEQ had issued a solid waste permit in May 1998. He said there were requirements regarding odor and other nuisances. He said there were issues and concerns with this franchise. Residents of the area were concerned about the nuisances and other negative impacts associated with the facility. He said an operations plan had been submitted in this regard and was reviewed and approved by staff and DEQ. Mr. Warner said two appeals had been filed with the Land Use Board of Appeals (LUBA) challenging the City of Beaverton’s conditional use permit. Because of a backlog, LUBA’s decision may not be available for several months.

Chair Morissette opened a public hearing.

• David Bennett, attorney, representing Sequoia Park Homeowners Assoc., 1300 SW 5th, Suite 3500, Portland, appeared before the committee asking that it postpone for 90 days to allow them to prepare testimony and evidence because they were unaware it was coming before Metro. His letter with reasons for asking for the postponement is included as part of meeting record. He asked for the opportunity to present the information to the Committee so they could make an intelligent decision on the impacts of this ordinance.

• Henry Kane, 12077 SW Camden Lane, Beaverton, an adversely affected neighbor, asked that application be denied because Citistics, Inc. must have an underlying permit from the City of Beaverton to apply and it did not. He invited the committee’s attention to the exhibit on the horrors of having a dump processing this material in an area heavily built up. He said the contaminants and air carried diseases would harm the entire city. He took exception to Mr. Warner’s comments saying the permit was issued in 1996 and prohibited receipt or processing of any garbage. He said there was a lot of backstage work done and they tried to all of a sudden to clarify it. He said the DEQ permit would be in court shortly and presented notice of intent to sue. He said he was a supporter of Metro and did not want them dragged down by doing something harmful to them and the community.

Councilor McFarland asked Mr. Fjordbeck if they had a license from Beaverton that was valid with Metro or not. Mr. Fjordbeck said Mr. Kane’s argument was that Miller Sanitary was the holder of a conditional use permit and the applicant was a subsidiary of them known as Citistics, Inc. He said generally speaking the conditional use permit went to the property and not to a particular owner. He said Mr. Sercombe as attorney for Citistics, Inc. and Miller Sanitary would have comments regarding the mechanism by which an agreement could be reached between those two companies to have the conditional use permit be held by Citistics, Inc. He said the City of Beaverton had granted the conditional use permit over the objections of some individuals.

Councilor McFarland asked if the operation changed and became a transfer station instead of a recycling center. Mr. Warner said no, it would not change the facility.

Mr. Bennet said it was his understanding that it had always taken in source separated recyclables and stored them for disposal to market. He said the facility had been a classic reload facility. The major change would be sorting, removal, and materials recovery at the site. Councilor McFarland said traditional recovery facilities had been very limited to the amount of residue that they could produce before it became a different operation. Mr. Warner said there were a number of facilities currently franchised that deal with material recovery and that there were limits on the types of wastes they could take in, mostly dry waste. He said they were looking closely at this facility because it would also take in contaminated waste.

Councilor McFarland said this was the first facility encountered on these terms. She mentioned a previous odor problem from a facility in north Portland and asked why transfer stations were suddenly being approved. Chair Morissette said those points would be discussed in the code update.

Councilor McLain said she felt it was important to remember what was happening and how it related to the work in the code update. She asked Mr. Warner for a brief description of what Metro’s franchise did for this particular applicant.

Mr. Warner said there was small amount of impact but since the facility would haul any residual to an appropriate facility or to a transfer station there would be no fiscal impact to the solid waste system. He said goals and objectives of the solid waste system dealt with transportation efficiencies, trying to minimize the amount of trips going to transfer stations and deal with facilities that were somewhat distant from the existing transfer stations. He said they were trying to encourage and help facilities become franchised and/or licensed, which covered materials, in an attempt to meet recycling and recovery goals. He said the franchise for this facility would make sure the material was properly disposed of and had goals in place for the processing to reduce the nuisance impacts of the facility. He said Metro had the ability to dictate to the operator additional control measures to put in place.

Councilor McLain asked about the issue of the timing of this franchise. She mentioned there were two appeals at the state level and asked what kind of certainty legal staff had as far as the timing of the process. She said her opinion was they had gone forward with the land use issue knowing if an appeal stood adjustments would have to be made to the system, the contracts, and their work. She asked for legal opinion regarding whether or not that could still be done.

Mr. Warner said the item could go on for quite some time and there was no certainty. With regard to the second question, he said the council was always free, and the franchise provided for modification of the terms as operations warranted, requested either by the applicant, staff or government. He said it was not uncommon for governments to take legal action notwithstanding the effect of land use appeals and the risk of the land use appeal being granted runs to the applicant not to the government. Councilor McLain commented that this was related to the code update. She mentioned the timeline for that update decision was June 25.

Henry Kane distributed a report from the Beaverton City Council regarding flooding that occurred about two blocks from the Miller Sanitary site. He said the city was deluged with similar documents.

• Timothy Sercombe, Preston Gates and Ellis, 111 SW 5th Ave Portland, appeared before the committee to speak on behalf of Citistics. He said the approval standards were very narrow and largely to the question of how the facility would fit in with Metro’s solid waste management plan. He said there were no issues raised on that question or the question of whether the applicant was qualified or the facility needed. He said the focus of the opposition had been directed at the fourth criterion for the issuance of the franchise which was whether or not the applicant had or could comply with other applicable regulatory requirements which were the land use approvals for the operation of the facility by the general purpose government with land use planning authority, in this case the City of Beaverton, and a solid waste facility permit from DEQ. He reported that both of those approvals had been granted. He said the conditional use permit had been granted by the city of Beaverton in 1996 and had modified and clarified a condition of that CUP earlier this spring. He said the notion that the opponents had insufficient time to prepare was a total sham done only to delay and cause economic harm to the applicant. He responded to Councilor McLain’s question regarding the land use permit. He said as a land use lawyer and city attorney his understanding was that they were not personal to the applicant but went with the land. They set up conditions for operations on land, there may be more enforcement rights against the applicant for the permit but the CUP goes with the property. Operations could occur on the property by permission, license, lease or fee transfer to anyone without further consent of the city or issuer of the CUP. He emphasized the real issue here was whether or not the waste reduction from this facility was consistent with Metro’s solid waste management plan. He said there had been no question raised about that and he thought the franchise should be granted.

• Megan Laidlaw, 5478 SW Alger #D4, Beaverton, homeowner at Sequoia Park Condominiums, presented written testimony and said she said she took great offense at the comment from Mr. Miller’s attorney that the opposition were shamsters. She pointed out that some of the solid waste the City of Beaverton had approved for processing included normal domestic solid waste that could produce odors and health hazards. She said the putricible waste would be a magnet for all sorts of pests with the potential to pass infectious agents to the nearby residents. Her specific concern was for airborne contaminants emanating from the imported wastes and stored recovered materials that would be on site. She said there was no documented proof that the risk of contamination could be eliminated in the nearby vicinity. She said consideration must also be given to the insects and rodents that could spread disease. She said there was no substantial evidence that the underground liquid storage facility would not compromise the groundwater quality of the area. She said her background was in recycling. She asked the committee to take a look at the issues raised in Mr. Bennet’s letter including franchise variance issues. She said they had not established a variance was appropriate or that it violated code.

• Henry Shafer, 5470 SW Alger #A1, Beaverton, agreed that recycling was desirable and appreciated Metro’s efforts but said they had to use some sense. He said he had not received notice of intent for this project. He said the reload station which was tolerated by the neighborhood would be turned into a garbage processing unit which was unacceptable to his high density neighborhood. He said there would be negative impact to the neighborhood because many people who lived there would move and rent their units to Section 8 families. He asked that the application be thoroughly reviewed and studied because he did not know of anyplace where there was a garbage processing station within 200 feet of residences. He presented three letters from his neighbors to be included in the record..

Councilor Washington asked where property is located in relation to the site. He asked why Mr. Shafer thought there would be all bad people if his condo turned to Section 8 housing. Henry Shafer said it would be the kind of people who would own the homes.

Chair Morissette closed the public hearing.

Councilor McLain said it was important to remember the staff report said compliance with code requirements. As the recycling efforts grew and became better, it was not economically feasible for the recycling centers to do only one thing. She said the applicant did have a conditional land use permit and the DEQ had reviewed it for the past few months. She felt that when it became an issue in front of a government body there was a need to make sure the public thought they had done a good job in reviewing it. She said she felt before the committee voted on it today or any other day that they should be able to say on the record that they were comfortable that the nuisance issues had been addressed and could be taken care of.

Chair Morissette said he was sure staff had done the analysis and asked for review of the specific points. Mr. Warner said they had done as thorough a job as they felt necessary to be sure the nuisances would be dealt with. He said if things did not function as outlined there was adequate ability and authority to impose additional requirements for dealing with the nuisances.

Chair Morissette asked for the conclusions of the City of Beaverton. Mr. Warner said they concluded that this was an acceptable location from a land use standpoint for this type of facility. He said they had established limitations on the amount of waste and putrecible waste that would go through the facility and had included checks for noise, odor and dust.

Councilor McLain thanked staff for doing that and said it was not the first time they had asked for updates. She said it was important for the committee to consider that Mr. Warner had indicated that they knew there needed to be limitations of waste and tonnage and both had been addressed in the franchise language. She said they had also indicated they would be more than willing to work with the neighborhood if there was noise, odor or dust issues. She said the compliance for code requirements had been met by the applicant and had been reviewed by the City of Beaverton and Metro staff.

Councilor Washington said he would vote no on this item. He said he would take some time to do some extensive review of his general concerns. He said his no vote did not mean he felt staff had not done a good job. He asked how long the facility had been there and was told since 1978 as a reload station, as consolidation and truck storage for vehicles and separated material. Councilor Washington asked if there had been concerns raised by the neighborhood for the last 20 years about the facility. He did not feel comfortable enough to support the vote.

Councilor McFarland suggested the item be held over until the next committee meeting. She felt she wanted further opportunity to discuss it also, she said she had misgivings about transfer stations over and above the ones that were already operating.

Chair Morissette and Councilor Washington agreed to hold over to the next meeting.

Mr. Sercombe asked if there would be public testimony and ex parte contacts allowed with the Councilors about the issue. He asked what opportunity the applicant would have to respond to the concerns. Mr. Fjordbeck said ex parte contacts were inapplicable because it was not a judicial forum. He said further they were free to conduct further hearings in any manner he chose as long as a public hearing was opened in the next meeting. He expected the committee would welcome further discussion from the parties. Mr. Sercombe said an adjudicative process should be used. He felt it would be helpful to that process if the Councilors would identify the concerns that needed more information. He said he could provide a lot of information from other deliberations already.

Councilor Washington said what was of concern to him was the response from the neighbors. He invited Mr. Sercombe and/or others to phone him to discuss it. Councilor McFarland commented that Metro had a requirement for public hearing for Ordinances. She said she needed to think about the issue some more.

Mr. Sercombe said the code said if there was a denial of the franchise then that brought a contested case process in front of the Council on the part of the applicant. He said he was trying to save some time or process. He said he was not sure bow some of the issues being raised were being processed.

Councilor McLain said it was important to know Metro was an inclusive process. She said Council felt it was important to be open to the people and vendors they had contracts with. She said they would do the best they could to hold up all of the codes. Nothing had been denied today. She pointed out there was a relationship between the code update and this franchise.

5.  RESOLUTION NO. 98-2649, FOR THE PURPOSE OF AUTHORIZING THE RELEASE OF RFB 98B-32-REM, FOR THE CONSTRUCTION OF AN EXTENSION OF THE MAIN TRANSFER BUILDING AT METRO SOUTH STATION

Mr. Warner referred to his executive summary and staff report to the resolution. Copies of both are included as part of the meeting record. He said the floor had needed expansion for a long time.

Councilor Washington will carry the resolution to full Council.

6.  RESOLUTION NO. 98-2650, FOR THE PURPOSE OF AUTHORIZING THE RELEASE OF RFB # 98B-33-REM, FOR THE CONSTRUCTION OF A TRUCK WASH AT METRO SOUTH STATION

Mr. Warner reported on Resolution No, 98-2650, which would authorize issuance of an RFB for construction of a truck wash at Metro South Station. He said this was a replacement for the truck wash that received severe damage in the 1996 windstorm. He said the truck washing service was to keep materials from washing into the storm drains and sewer systems.

Councilor Washington asked if there was machinery involved with this or if it was a hosing down situation. He was told it was hoses and drains and nozzles which allowed the trucks to be cleaned inside and out. It was not like a mechanized car wash. Councilor Washington asked how the debris that came out of the truck was recovered. Mr. Warner said there were catch basins and separators for the oil and grease.

Councilor McFarland will carry the resolution to full Council.

7.  RESOLUTION NO. 98-2654, FOR THE PURPOSE OF AUTHORIZING CHANGE ORDER NO. 1 TO THE CONTRACT FOR OPERATING METRO CENTRAL AND SOUTH TRANSFER STATIONS

Mr. Warner reported on the change order with Browning Ferris Industries to operate both transfer stations to deal with a few changes in the operations facilities since the contract was initiated. The scalehouse had been automated and could receive at any time of day. He said, in fact, they encouraged the haulers to use the off hours. He explained they felt the medical waste should be handled separately even though the hospitals had started to sterilize the waste before it was dumped. Public unloading was a big problem they had been working on. He said it was an increased service level. He said instead of contracting with the Multnomah County DOC for landscape maintenance on the central facility, they would allow the existing contract to do the work on off times.

Councilor Washington asked what non-infectious waste meant and was told it had already been sterilized. He asked what guarantee they had that it actually had been treated and if anyone had actually been to see what the process was. Staff said they had a good relationship with the hospitals and felt they had a very good inspection program.

Councilor McLain will carry the resolution to full Council.

8.  RESOLUTION NO. 98-2656, FOR THE PURPOSE OF AUTHORIZING THE RELEASE OF RFB #98-35-REM, FOR THE PROVISION OF DIESEL FUEL

Mr. Warner said at the May 5, 1998 meeting the committee had declined to extend contract without competitive process. He said this was the bid document. He said things had changed a bit and the proposed Request for Bid had been circulated. He said a test of the Hattenhauer cardlock facility had been conducted and the concerns were two vehicles could not access the Hattenhauer site from the north entrance and fuel simultaneously as required by the RFB. They were also expressing some safety concerns. He said his staff agreed. He said when the RFB was approved a clarifying letter requiring a site plan would be sent to the bidders.

Councilor McFarland asked if they are low bidder, if safety requirements, etc., could not be met they would not receive the bid. She said she was a little surprised to see it was a bid and not a referral.

Doug Devries, Regional Terminal Manager for STS, 32234 11th Ave SW, Federal Way, WA, appeared before the committee to testify. He said staff had presentation safety concerns and he concurred. He reiterated that they had their on paper. He said their concerns were safety related in nature and not biased toward any vendor. He said they had serious concerns for the safety of their drivers as well as the public.

Chair Morissette asked Councilor McLain to carry the resolution.

9.  COUNCILOR COMMUNICATIONS

None.

There being no further business before the committee, Chair Morissette adjourned the meeting at 1:05 PM.

The minutes were prepared by Metro Council staff member Cheryl Grant.

Respectfully submitted,

Lindsey Ray

Senior Council Assistant

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