MINUTES OF THE METRO COUNCIL

REGIONAL ENVIRONMENTAL MANAGEMENT COMMITTEE MEETING

Tuesday, June 16, 1998

Council Chamber

Chair Morissette called the meeting to order at 11:00 AM.

1.  CONSIDERATION OF MINUTES

Minutes of last meeting were not available for consideration at this time.

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. 98-764, FOR THE PURPOSE OF GRANTING A YARD DEBRIS PROCESSING LICENSE TO C.L. DANNAR NURSERY TO OPERATE A YARD DEBRIS PROCESSING FACILITY, AND DECLARING AN EMERGENCY

Mr. Warner introduced Bill Metzler, Associate Solid Waste Planner, to present the ordinance.

Mr. Metzler said C.L. Dannar Nursery was an existing yard debris composting operation located in Gresham. He said it was 30 acres zoned exclusive farm use with about 10 acres allocated to composting. They accept approximately 5,000 cubic yards of debris from commercial and residential sources. He said the zoning was an approved use by Multnomah County, provided the compost is used on-site for nursery operations. The license agreement contained conditions to prevent them from accepting yard debris inconsistent with the allowed use and stockpiling the compost that could not be used for the nursery operation. He said there would be a slight increase in revenues from the annual licensing fee.

Chair Morissette opened a public hearing. No one appeared to speak with regard to the ordinance. Chair Morissette closed the public hearing.

Councilor McFarland 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

Chair Morissette opened a public hearing.

• Daniel Cairns, attorney with Preston Gates & Ellis representing Tom Miller and Citistics, Inc. submitted a letter and attachments to Council in the mail, along with a DEQ permit and Beaverton’s local land use approval for the facility. He noted the important points of the letter. (A copy of that letter can be found in the permanent record of this meeting.) He said the family had been in the sold waste business for approximately 90 years and were proposing a recovery facility to cull out recyclable. He said a requirement of the permit was the waste would only be from their own business. The family was not proposing to build a transfer station. He felt they qualified for the franchise with what had been submitted. He said Mr. Miller had been in the land use process for this facility for a long time and a lot of the previous arguments had been reiterations of issues addressed by the local government. He asked for a recommendation of approval of the franchise and to move forth the recommendation to be adopted by an order which would make it immediately effective upon adoption of the Council. He said the 90 day delay was not justified in this case because it did not need to be referred to the voters as it was purely an administrative matter and the need for the 90 day delay did not exist. He said the Miller family would appreciate a quick resolution of the franchise. He said the issues the opponents raised did not pertain to the code criteria, they pertained to local land use issues. He said under the Metro franchise criteria there was nothing that said it must be locally popular. He said they had spent a tremendous amount of time going through the local land use process and the Beaverton City Council bent over backwards to address all of the concerns of the neighbors which was reflected by the lengthy local opinion which he provided to Councilors (a copy of which can be found in the permanent record of this meeting). He said they did their best to identify and address the problems and there was in place a mechanism to deal with any future problems. He said DEQ had added additional conditions but deferred to the local government as the primary land use authority to enforce the permit. He said the name on the permit was Miller Sanitary but it was not a problem since the CUPs run with the land. He reiterate that the facility would not be a transfer station. It would be a Miller family operation where the recyclable material would be culled from the waste collected on the Miller routes before it was sent to the Metro transfer station. He asked for a positive recommendation either by order or emergency clause.

• Megan Laidlaw, 5478 SW Alger #D4, Beaverton, homeowner at Sequoia Park Condominiums, addressed some issues she felt needed to be stated. She said there was no demonstrated need for this facility, especially in an overall community view. The facility operated to benefit Mr. Miller only. She said he had a large portion of domestic solid waste which was highly putrecible or organic which meant he would have a relatively low level of recovery from the facility. She said the facility had been opposed by the neighborhood since they found out about it. She said they had attempted to work with Mr. Miller and had asked him to go back to his original application for the CUP which stated he would not be bringing any domestic solid waste or putrecible waste on-site for process. His process was only going to consist of industrial and dry material waste. That was acceptable to the neighbors and something they were willing to work with since he had operated very well in their vicinity for a long time. Over the past 2 years the land use permit had changed radically and they could not work with the changes that included the domestic solid waste stream. She questioned Mr. Miller’s ability to operate and move the machinery around inside the building to move containers and keep the bay doors closed as he said he could.

Councilor McFarland asked Ms. Laidlaw how far from this facility was there already a facility that dealt with putrecible waste. Ms. Laidlaw thought Forest Grove was the nearest transfer station and Hillsboro had a landfill but it not take putrecible waste.

• Henry Kane, 12077 SW Camden Lane, Beaverton, submitted an incomplete LUBA appeal. He said the draft map showed the area in a floodplain with extensive flooding about 300 yards down the road at Allen Blvd. He said he had seen water all over the area and the testimony had been that the area flooded. He said the flooding problem had not been addressed. He stated the City of Beaverton’s zoning code said even the storage containers had to be in the building and there must be a site obscuring fence which it was not. He said businesses in the area were going to lose their business because of the odor.

Councilor McFarland referred to the map showing standing water along where the garbage would be sorted. She asked if it had been classified on anybody’s map as a wetland. Mr. Kane said he had trouble getting any information on that but it was a 100 year floodplain. He thought it was wetland. Councilor McFarland said she only asked if it had been classified. She said if it had cattails in it, it was a wetland by definition and not by somebody’s decision to call it or not call it a wetland. She said if they had not dealt with the wetland issue, they had not dealt with one of the facts that were laid out.

Councilor Washington asked for an explanation of a part of the exhibit. Henry Shafer said he had drawn the picture and described what it signified. Councilor Washington asked where the trucks would enter the Miller property. Mr. Shafer pointed to the drawing and showed 5th and Alger Avenue. He said the trucks did not go past the condominiums. The wall was approximately 7’ tall and the building and the condos were 2 stories tall.

Ms. Laidlaw said she lived in the building in question. She showed where the trucks would come in and be washed. She pointed out the front of the queue for the sort line and where the materials would be sorted and pulled out of the bay doors. She said the Miller building must be higher than two stories because she was on the second floor of the condominium the building well crested the top of her unit.

Councilor Washington asked if there was a lot of noise and pests such as bugs, flies, rats, Ms. Laidlaw said she did not hear noise during the day because trucks left and came back at the end of the day. She said she had not seen anything as yet. She said Mr. Miller had queued all of his storage containers virtually every part of the operation along the fence as close to the homes as possible. She felt there would be a pest problem as soon as the operation started up.

Councilor McFarland asked how much land was there and could Mr. Miller have put the facility in a different area and still have room on his property to do it. Ms. Laidlaw said she did not know the total acreage of the facility. She said she had asked the city planner why it was that Mr. Miller had chosen the spot he did. They explained that it was the existing site of a building that had been torn down so they replaced the building with this one.

• Thane Jensen, attorney on behalf of the homeowners association, added reasons why he felt it would be inappropriate to grant the application. He said the fact was that when Mr. Miller constructed the building after the CUP, he knew full well the permit was conditioned expressly on getting Metro authorization and DEQ approval. He felt Mr. Miller had taken a huge risk building when he did and he was now using it as an argument as to why he should be granted the application. He felt that was wholly inappropriate. He said the functional part of the 5.5 acres was probably no more than 2 acres because some of it was leased out and some was used for parking. He said the residents of the condos would unquestionably feel the impact of the garbage sorting facility once it came on-line. He submitted that flies and rodents were inevitable and there was no question that the livability of the neighborhood would decline dramatically. He said a legal issue glossed over by the opposing counsel was the vertical integration ordinance. He said the application in front of the committee was made on behalf of Citistics, Inc., and the hauler was Miller Sanitary.

He said the application made no mention of the commonality of interest between the 2 closely held corporations, it only said Mr. Miller was the president of both and ownership was not noted. He said it was flatly illegal to not comply with the provisions. He felt Mr. Miller set up the 2 separate corporations knowing full well that there were some advantages to be gained by it. He said 2 companies were not necessary to comply with the code and secure the exemption. In adding the extra company, he imperiled his application. The public need criteria was also one he urged Council to consider because despite the assessment by staff the public need for the facility was not demonstrated. He said this was the first facility of its kind to apply before Metro and for that reason it took on some important significance because of the power of precedent. He noted that Mr. Miller took his waste to the Metro South facility which Metro had just approved for significant improvements. He said the revenue impact should not be overlooked. Staff estimated roughly 10,000 tons of waste that would have otherwise gone to the Metro facility. He said a conservative estimate was that Metro would lose about $70,000 a year including the excise taxes and in reality it would probably be about $150,000 a year which would have to be made up elsewhere. He said the recyclability issue also needed analysis and scrutiny because the representation in the application was they would recycle 8,500 tons annually. He said that did not compute. The nuisance issue was one that could be considered properly under the determinations that Metro was required under goal 15. He submitted the application should not be granted if all of those things were considered.

• Henry Shafer, 5470 SW Alger #A1 Beaverton OR said when he bought his condo in 1995 and he had not received any notification of this until 1996. He said the people who lived in the condos were of modest income and had saved a long time to buy there. He said the value of his property had gone down along with the livability of the area.

Councilor McFarland asked if the plan was to operate the facility with the doors open Ms. Laidlaw said she did not believe they could operate with the doors closed as they had stated at numerous council meetings and planning commission meetings. Mr. Jensen said one of the other issues was because of the limited space available it was likely that there would be some storage outside. He said it was not true that all of the conditions set forth by the City of Beaverton were incorporated in the application. He said the putrecible waste had been limited by the City of Beaverton to 25% by weight. He said Metro’s experience had been about 37% by weight. He said that just reinforced the justifiable fears of these folks.

Mr. Cairns, applicant’s attorney, said Mr. Kane had raised some important points about local land use in Senate Bill 100. He pointed out that the property in question had been zoned industrial before the Millers owned it. He said they had been operating on the site for over 20 years and predated the residential neighbors. He said this was the most intense industrial zone Beaverton had and the use was permitted under the zoning ordinance. He said the problem had not just cropped up overnight. The franchise had been pending with Metro since October 1996. He said they were not asking for special favors from Metro to move the process along but would like to get the process any other franchisee trying to conduct business would get and not delay the franchise, for 2 years now. The facility fulfills Metro solid waste plan. He said the 30% recovery rate was not for the mixed municipal solid waste stream, the putrecible waste loads would be excluded from the facility. The revenues that would be lost to Metro would be recyclable materials that would not be landfilled. The said facility would be a responsible hauling company that would cull out the recyclable. There are not wetlands on this property. The gray line at the top of the map is a railroad. He said the property had a self contained waste water capture and storm drain system. He introduced Mr. Miller, the applicant.

• Tom Miller, 5350 SW Alger Ave., Beaverton, OR felt there had been many misstated facts at this meeting. He resented the fact the he had been depicted as less than honorable in behavior and intent. He said he had been working hard to do this correctly. He referred to the site obscuring wall and said that although it had been constructed according to BDR requirements he felt after it was completed that it was inadequate so he worked with the condo owners and split the cost to extend the wall another 3’ above the original dimension. That was acceptable to them at that time. He said the risk he took was a calculated one because DEQ and Metro both had specific criteria requirements which he knew they could meet and did. Mr. Cairns added that they also had their local land use approval with industrial use allowed in Beaverton.

Councilor McFarland asked Mr. Miller how close he was to another facility that would accept putrecible waste. Mr. Miller said Forest Grove was the closest in miles, but it took longer to get there than to the one in Oregon City. He said his facility would be of benefit to the citizen rate payers also. Mr. Cairns said the corporate entities was forced entirely by the rate making process at the local government and Metro. He said the basis for the rates was cost of service and Miller’s had to be a separate entity in order to make that kind of calculation. He said the City of Beaverton had already said if there were documented complaints regarding noise, dust, pests, etc., that “Miller shall”. The pick line facility had to be cleaned out completely every day so if it did flood, it wouldn’t involve anything stored there and besides all the material was stored in enclosed containers. He said the pick line residue would be hauled to a Metro facility.

Mr. Miller said the corporate structures had been in place at the time they acquired the property and had no bearing on the manipulation of the process. Mr. Cairns said these were all land use issues that they had addressed very exhaustively. He asked the Committee to follow the franchise criteria.

Councilor McFarland said she knew they had been there for 20 years but thought they were not using it as a dry waste facility only. Mr. Miller said this was the first recovery type activity there but they had done reloading.

Chair Morissette said this was obviously a contentious proposal and emotions were running high. He said Metro Council’s job was to review the proposed facility and operations against the criteria and standards in the Metro code and regulations. He said the code was straightforward and clear. He said the applicant had provided a complete application and staff had concluded that the applicant met all the specific criteria. He said the opponents had attempted to demonstrate that the site was not acceptable for this use due to its proximity to residential uses. He said he was sympathetic to that but the applicability of this use at this site was a land use decision made by the City of Beaverton City Council. The opponents other issues were under the purview of the DEQ and they had already issued their permit to the facility. He said he believed the franchise should be forwarded to Council with a recommendation of approval. He said they would rely on the city to revoke their approvals and permits if the appeals were successful. He said when an applicant clearly follows the rules that had been agreed on by Metro and met the goals he did not see how the request could be denied. He felt if they did not approve the franchise they would be changing the rules they had set forth.

Mr. Warner said the staff review of the application resulted in recommendation to issue the franchise.

Councilor McFarland recalled the problems with putting the Oregon City transfer station in place. She said some of the problems they had predicted had come true but some of them had not. She related her experience with this kind of operation. She said the volume of mail received from opponents of the facility could not be disregarded. She felt very uncomfortable about this and was not convinced there was a need. She said she would not support the application.

Councilor Washington asked staff if they had encountered reactions like these as they went through the process prior to coming to Council. Mr. Warner said this committee was really the first formal public notice given. He said staff had been reacting to an application and had done their review. He said they knew this was a contentious issue with the neighborhood as a result of the people who showed up at the DEQ hearings. He said they made sure to address the code carefully when they did their work.

Councilor Washington understood that the public hearing at the Beaverton City Council had lasted until 3 in the morning. He asked why it went that long and how many people were involved. Ms. Laidlaw answered that there were approximately 150-250 people along with the press. She said the people stayed until they got to testify. She said there was a great concern about siting this facility in the neighborhood. She felt they were all pro recovery and wanted to work together. They did not believe it was a proper site for a recovery operation. The neighborhood was fine with what Mr. Miller had wanted as long as he eliminated the domestic solid waste which by Metro’s own reports could have as much as high a content as 7% diapers, 50% organics. She said please do not put this their homes, they did not want to live with that.

Mr. Cairns said what took most of the hearing was testimony from the opponents. If you lived next door you would be concerned as well. He said the city council throughout the profess was evaluate what was specifically likely to happen to ensure the fears did not come to pass. A good several hours was spent by the city council dealing with the concerns and conditions. The City of Beaverton voted to approve the land use process with one against.

Ms. Laidlaw said the City of Beaverton heard this matter start out as a dry waste facility, then added domestic solid waste, then used oil, now they wanted a transfer station. She asked the committee to not allow the matter to escalate any farther. Councilor Washington asked about Ms. Laidlaw’s comment. He asked what the application was for in the beginning.

Mr. Cairns said two years ago the applicant had received a CUP from the City of Beaverton to operate the facility. There was some lack of clarity in the decision regarding putrecible waste. He thought some of the neighborhood may have interpreted it as dry waste only. That issue came up at the DEQ hearings and it was returned to the planning commission where they reaffirmed that it was to allow both dry and putrecible waste.

Councilor Washington asked how long the process was between the misunderstanding and the reaffirmation of the planning commission. Mr. Miller answered that the only way to get to the bottom of what was intended at the first night at the planning commission was to invite them to speak here. He said it was made explicitly clear that the operation could not be run without the putrecible waste component. If it had been rejected at that time he would not have made application because it would not have been economically feasible. He said it took several weeks to clear up the wording and misunderstanding.

Councilor Washington asked if the putrecible waste was not involved, they would not be having this protracted hearing and was told that was correct.

Councilor McFarland asked if it was not understood that any kind of operation would have some kind of residue. She asked if the putrecible waste of this facility complied with the percentages allowed. Mr. Warner answered that up to 5% contamination for source separated materials. Mr. Miller said they would not accept more than 25% by weight of putrecible materials and they had the capability to adjust that content by directing the flow of materials that were undesirable. He said they had no need to bring materials in just to push it out the other end. Their intent was to monitor the loads and bring in the most recoverable content component they could within the system. In response to a question from Councilor Washington he said in the original application that the operations would take place in an enclosed building. That did not necessarily mean the doors would never be open. They would operate with the doors closed as much as they could.

Mr. Warner said the original date on the CUP was September 27, 1996. He commented that the entire process had been very confusing for a number of people.

Chair Morissette closed the public hearing.

Vice Chair McFarland took the chair to permit Chair Morissette to make a motion.

5.  ORDINANCE NO. 98-761, FOR THE PURPOSE OF AMENDING THE REGIONAL SOLID WASTE MANAGEMENT PLAN

Mr. Warner explained the ordinance dealt with regional solid waste management plan amendments. He said the amendments dealt with how reloads and direct hauling could be used to deal with growing demand for disposal without building new transfer stations in the area. He explained Amendment A clarified the purposes of dry waste processing for business waste reduction practices, Amendment B was a correction of a typographical error, and Amendment C was a clarification of reload facilities.

Chair Morissette opened a public hearing.

• Susan Robinson, BFI Waste Systems said the first she had heard of the Amendment C which allowed the siting of reload facilities for consolidation of loads to be hauled to appropriate disposal facilities was a couple of days previous to this meeting. She commented that she did not feel there was enough time to discuss the specific amendment in the piece. She said she would like to have more discussion.

Councilor McFarland asked what her misgivings were. Ms. Robinson said she wanted to see further discussion on the need for the change. Mr. Warner said this set the stage for discussion on the next agenda item and if the council wanted to get into the merits of how to implement the plan prior to voting it could be appropriate.

Chair Morissette closed the public hearing.

Councilor Washington did not feel one issue could be dealt with without the other one. He said this was a good example of how the previous problems had come up. He said he was not prepared to discuss or vote on one without the other. No action was taken on the ordinance.

6.  ORDINANCE NO. 98-762, FOR THE PURPOSE OF AMENDING METRO CODE CHAPTER 5.01 REGARDING SOLID WASTE FACILITY REGULATION AND MAKING RELATED ADJUSTMENTS TO CHAPTER 5.02.

Mr. Warner described the proposed updates of the solid waste regulatory code that would implement the changes from the previous agenda item. He said passage of this ordinance would results in significant changes to Metro Code Chapter 5.01. He said it was the first comprehensive revision of this section of the code since 1981. The reasons for the changes would improve the flexibility of accommodating a changing industry and regulatory environment to reflect the system management policies of the Regional Solid Waste Management plan, to improve and clarify Metro’s regulatory structure, to provide a level playing field for the solid waste industry and streamline administration, to implement the recommendations of the Regional Solid Waste Advisory Committee (SWAC) and remove some restrictions on current franchise holders so Metro’s new rate structure and incentive based recovery program could be fully implemented. He said SWAC had focused on ways to implement the RSWMP emphasis and guidance to rely on the private sector. He said the efforts also recognized the industry was moving towards multipurpose facilities. He said consensus was achieved on most of the issues the group confronted. He pointed out 4 areas of disagreement: entry requirements for selected facilities, the 10% requirements, the removal of tonnage limitations on local transfer stations, or the direct hauling to Columbia Ridge.

Chair Morissette interrupted the testimony due to the lateness of the hour, and after conferring with the councilors he found they were not prepared to take action on the matter today. He said the item would be continued to the next meeting. Councilor McFarland said she needed to study the item more and fully supported holding it over to the next hearing. Councilor Washington said his not wanting to take action had nothing to do with the time, it was the content. He respected the Chair for wanting to hold it over because of the discussion that he knew would take place on the issue.

Mr. Warner concluded by saying that BFI and STS were concerned the proposals would allow waste to go to other places other than the transfer stations which would result in decreased revenues for those contractors. He said he had some alternate ways to deal with the issues. He recommended pieces be pulled out and put into a separate ordinance in addition to amending the existing ones.

Chair Morissette opened a public hearing.

• Dean Kempfer, 554 N. Columbia Blvd., representing USA Waste of Oregon, acknowledged involvement in the process and thanked staff for their hard work and timeliness. He supported adoption of the ordinance as good for the region.

• Doug DeVries, representing Specialty Transportation Service, noted the current ordinance amendments did not address the contractual obligations of Metro under the current contract. He mentioned a letter his attorney had sent to Council. He said RSWMP codes as drafted in 1995 reserved the public initiative and franchises for major system components including the STS contract. He said STS was not included in the code revisions. He said under the STS contract Metro had certain obligations with respect to the minimum annual volume of solid waste to be provided to STS for transport, specifically Section 8.1 of the contract.

Councilor McFarland asked staff if it was an oversight that STS was not included. Mr. Warner answered that the code introduced before council did not have a provision that STS had wanted which required direct haulers to use STS. The staff proposal did not include that provision. He said they had informed STS that it was their opinion that the contract did not require direct haulers to use STS but any contractor they wished to use.

Councilor McFarland asked if they still had to have 90% of the putrecible waste going to the Columbia Ridge landfill whether it went by STS or another way. Mr. Warner said that was accurate. The dispute was the amount that Metro delivered. Councilor McFarland commented that this was another thorny and difficult question that arose from the increase in self hauling.

Councilor Washington asked if there had been conversation about this before this meeting and was told there had, with both legal counsel and staff. He asked how long this dispute had been going on and was told the disagreement had been presented to staff and council in February 1998. Chair Morissette said it was important to know that the agreement put forward by SWAC had overwhelming support to the participants.

Councilor McFarland said they had been working the STS very successfully and they were not strangers to the regulations and difficulties.

• Susan Keil, Manager of Industrial and Solid Waste for the City of Portland, member of SWAC commented that the STS contract had come up at SWAC. She said it had been a surprise because it had not been an issue before. She said SWAC felt poorly equipped to deal with a legal matter. She pointed out that both BFI and STS had been at the table for the RSWMP change. She believed there had been extraordinary cooperation between Metro, local government representatives, the hauling community and the public. She said overriding all of the deliberations had been the best interests of the ultimate rate payer. She said the amendments were consistent with the Regional Solid Waste Management plan and established a better framework to help strengthen the relationship between Metro and the local governments. She recommended approval of the code as amended.

Chair Morissette closed the public hearing.

Chair Morissette deferred action on Ordinance No. 98-761 and Ordinance No. 98-762 to the next REM Committee meeting.

7.  COUNCILOR COMMUNICATIONS

None.

There being no further business before the committee, Chair Morissette adjourned the meeting at approximately 1:00 PM.

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

Respectfully submitted,

Lindsey Ray

Senior Council Assistant

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