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HomeMy WebLinkAboutPublic Works July 30 20021 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 DISCLAIMER: This document contains the Whatcom County Council or Committee minutes, as approved. However, unless an attested signature page is attached, they are not the final approved minutes. WHATCOM COUNTY COUNCIL Public Works and Capital Projects Committee July 30, 2002 The meeting was called to order at 1:30 p.m. by Committee Chair Barbara Brenner in the Council Chambers, 311 Grand Avenue, Bellingham, Washington, Present: Laurie Caskey- Schreiber Also Present: Dan McShane Absent: Sam Crawford COMMITTEE DISCUSSION AND RECOMMENDATION TO COUNCIL 1. ORDINANCE AMENDING WHATCOM COUNTY CODE SECTION 2.78 MODIFYING THE MEMBERSHIP MAKEUP OF THE SOLID WASTE ADVISORY COMMITTEE (AB2002 -279) Caskey- Schreiber moved to recommend approval. Motion carried unanimously. COMMITTEE DISCUSSION 1. DISCUSSION REGARDING STENCH COMING FROM RECOMP (AB2002- 284) Regina Delahunt, Health and Human Services Department Director, introduced Don Vesper, Environmental Health Manager. They all agree that it does smell. The County and City of Ferndale signed a consent decree. Brenner stated the consent decree does not allow Recomp to continue doing this with impunity. They were supposed to fix a piece of equipment, and the stench was supposed to go away. Delahunt stated the consent decree specified several things that Recomp needed to do. The Health Department has been monitoring their compliance with the consent decree. The City of Ferndale and the Northwest Air Pollution Authority (NWAPA) went to the site. Essentially, Recomp is in compliance with the consent decree. However, it still smells. Brenner stated the attorney told her that the consent decree does not allow Recomp to keep the stench going for two years. Delahunt stated that is something they need to talk about with the attorney. Dave Grant was going to talk to the attorney for the City of Ferndale and make a determination as to whether there are Public Works and Capital Projects Committee, 7/30/2002, Page 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 DISCLAIMER: This document contains the Whatcom County Council or Committee minutes, as approved. However, unless an attested signature page is attached, they are not the final approved minutes. any further actions the City and /or the County could take, under the consent decree. When NWAPA was out there last, there were other odor sources related to composting. NWAPA feels additional things can be done on those sources to mitigate this odor. It remains to be seen whether or not the smell will entirely go away. Brenner stated the smell is unbearable. She would be sick all the time if she had to smell it. It's not an odor or nuisance. It makes one sick. Caskey- Schreiber asked how soon they can get the new penalties approved that change the law to make it a misdemeanor. Delahunt stated Recomp is not in violation of any health code because they are not permitted under health regulations. They would not apply. NWAPA has been fining Recomp, which has received almost $54,000 in penalties since May 1999. That's a lot of money, but it hasn't made much of a difference in Recomp's willingness to reduce the odor. There are other things NWAPA believes can be done to mitigate some of the odor. Unfortunately, those things are not specified in the consent decree. In the past, NWAPA, when it issues a fine, can go through a process called An Assurance of Discontinuance. In that process, the company would agree to use the fine money to put in certain mitigation measures rather than have to pay a fine. There may be some latitude in the upcoming fines. Caskey- Schreiber asked if they can stall it for a couple of years and let it go bankrupt. Delahunt stated they could just pay the fine and not do anything. NWAPA is trying to negotiate with Recomp. The City of Ferndale was also going to talk to the facility operators to see if they would be willing to do some additional measures. Brenner stated she can't believe they can enter into a consent decree that causes neighbors to not be able to breathe on their property. Caskey- Schreiber asked if the neighbors could file a nuisance lawsuit against Recomp. Delahunt stated they could. The County and City of Ferndale are limited in what they can do because they have entered into this consent decree. Brenner stated it was up to the County's lawyers to make sure the kind of consent decree they entered into couldn't tie the County's hands and let Recomp pollute with impunity for two years. She was assured the consent decree wouldn't tie the County's hands. That's why some of the councilmembers voted for it. If a lawsuit is filed, there could be a suit against the County. The County is responsible for enforcing against nuisances and pollution that causes people to not be able to come out of their homes or open their windows. Caskey- Schreiber asked if the City of Ferndale has considered amending their nuisance laws. Delahunt stated there is a limitation of how much they can fine. There is a State law that limits it. The City's penalties are whatever the State law allows. It's not much. NWAPA's fines are significant. Public Works and Capital Projects Committee, 7/30/2002, Page 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 DISCLAIMER: This document contains the Whatcom County Council or Committee minutes, as approved. However, unless an attested signature page is attached, they are not the final approved minutes. Brenner stated it's not about fines. The County has the power to do an injunction. All they had to do was bring the judge out there one time, and the judge would have definitely granted the injunction. Caskey- Schreiber stated the problem is that the County has entered into this decree. They need to figure out a way to help these folks without jeopardizing the County in that agreement. Brenner stated they need to hear from the attorney, who gave his word that this does not allow Recomp to continue creating that kind of stench. Delahunt stated she doesn't know that the County can't do anything. The attorney was going to talk to the attorney for the City of Ferndale and see what latitude they have. The consent decree does limit what the County can do. The County cannot file a lawsuit at this point. Brenner stated she understood that if the stench doesn't become more bearable after Recomp installs the new equipment, the County still has the ability to file an injunction. This is why people don't take the County seriously at all. If the County can't do something about a glaring problem, then the question is why people should have any respect for County government at all. Marianne Elgart, City of Ferndale Council Member, stated she's been involved in this issue for 3 Y2 years. There is a consent decree. She also understands that this does not give Recomp a license to continue to offend to the levels that are punitive and adversarial. A week and a half ago, there was a tour during which NWAPA participated with eight people from her administrative staff. They discovered that part of the mitigation has been completed. There are over 36 points that are required to keep their part of the consent decree viable. In the composting room, they have replaced a main fan, which creates a good deal of negative pressure and is compensating for that air. What it is doing, and what they haven't done in the interim, is improve the bioswale filters. Now that the air is being rotated in the room more efficiently, the bioswales are overloaded and putting out tremendous amounts of ammonia. In the mixing room, which is adjacent, there are very bad odors. When NWAPA investigated, they found that there are no filters at all on the fans that vent straight out to the atmosphere. She asked her department heads if there is any resolution to this problem. She was told that the problem was only discussed. Clearly, more enforcement pressure needs to come from both the County and the City of Ferndale to amend this. Apparently this smell is overwhelming because the bioswales have to take on more than what they can. The mixing room is horrendous. There is definitely some gray area that can be played with legally. There is a good deal of time between now and March 2004. She supports that effort. Brenner stated she voted against the consent decree. She expected nothing to happen, which has happened. According to Dave Grant, that consent decree does not allow Recomp to continue to pollute with impunity. The stench has gotten Public Works and Capital Projects Committee, 7/30/2002, Page 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 DISCLAIMER: This document contains the Whatcom County Council or Committee minutes, as approved. However, unless an attested signature page is attached, they are not the final approved minutes. worse. Elgart agreed. The stench is more offensive now than it has ever been. Fixing the one problem has exacerbated several other problems. There are problems they haven't even begun to fix. Robert French, 5044 La Bounty Road, Ferndale, stated he and Dick Parks are the default representatives of the neighborhood. The smells are not becoming more apparent. They are becoming stronger. They've reached a point where they've had to leave their home because the smell is gagging. It is difficult to live in a home where they can't open their windows. They can't live in a house. They are being denied the use of their own property. He discussed this with Dan McShane the other day at a Solid Waste Advisory Committee meeting. Mr. McShane said he's done all they can do. Perhaps that's true, but there was a report given to the Ferndale City Council from a consultant who was hired to pinpoint the sources of the odor. That wasn't used in the mitigation process. He doesn't know what parameters were used. Certainly, Recomp is not complying with any odor mitigation. NWAPA has given Recomp the option in times past of a mitigation process to avert a fine. They've done things like this before, to no avail. As far as the fans go and improving the fans and biofilter, they've been trying to deal with the same odor since 1994. Nothing has changed. It has become worse. They need some relief. They know they can sue. However, they have the same reluctance to sue as the County does. They know they would be locked up in court for a long time trying to mitigate this thing. Ferndale is reluctant to make tighter odor and noise laws. The neighbors are turning to the County officials to help them. If there haven't been any strong words put in the consent decree that allows them to operate for the next two years, they have no intention of changing. He has no faith that anything will change at the end of two years. They will appeal. Caskey- Schreiber asked if tougher nuisance laws in the County would allow an opportunity for citizens to file. Delahunt stated it is already a nuisance. If the County had filed suit, it would have been as a public nuisance. The County didn't file suit because it would take much longer to get that suit through the civil system than it did just to do the consent decree. With the consent decree, they know they have an ending date. That's why they didn't file suit. The laws are in place for anyone to file a suit. Brenner stated the suit could take a long time. The County should have filed an injunction. No judge would deny an injunction for something that smells so horrendous in people's houses. Caskey- Schreiber stated she came across information on the Ostrum mushroom problem near Lacey. That was a similar situation. The residents filed lawsuits. There might be some records of a successful lawsuit in that case. Like Mr. French, these neighbors were not able to enjoy their properties, which is an infringement on their rights. The property can't be sold. There is legal ground that Recomp is taking something away from the neighbors. She doesn't know how they can help. Public Works and Capital Projects Committee, 7/30/2002, Page 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 DISCLAIMER: This document contains the Whatcom County Council or Committee minutes, as approved. However, unless an attested signature page is attached, they are not the final approved minutes. Brenner moved to request that the Council get a legal opinion about the County's options. The problem is worse than it has been before. Mr. Grant told her that the consent decree does not allow Recomp to pollute with impunity, and the County can file an injunction. The County is not allowed to put people in harm's way for two years. (Clerk's Note: The motion was not voted on.) Dave Grant, Senior Civil Deputy Prosecutor, stated they are not putting people in harm's way. It is a nuisance. French stated the odor is strong enough where he can't breathe. They are in harm's way. He needs to know from the Health Department whether or not this is a health risk. No assessment has been done. The stink drives them right out of their home. Grant stated he has to look at the legal realities of the situation. Mr. French has a private right of action. He can file a lawsuit on his own. The legal remedy to the County is the powers that NWAPA continues to exercise, which is the best bet for the continued problems that arise from this composting operation. The consent decree is not being violated and the County can't do anything unless and until there is proof Recomp has violated the consent decree. Brenner stated that according to the Ferndale City Council Member, Recomp has not complied with the consent decree. Grant stated that is different than what he has heard. As of last week, when the Health Department met with officials of Ferndale and NWAPA, there was no indication that the consent decree was being violated. There is nothing to do in regard to the consent degree. He urged the neighbors to continue their complaints to NWAPA, which is not a party to the consent decree. NWAPA has independent legal authority and power to sanction this operation if it is creating a nuisance. The County doesn't have the legal authority anymore because it is bound by the consent decree. Of the options, the most productive thing is to focus on getting NWAPA , the County Health Department, and the City of Ferndale representatives out to the site to look at what has happened to -date, look at what still exists, and brainstorm with Recomp officials to come up with a solution. Steps have already been taken to that objective. Recomp is apparently willing to go further than what they agreed to in their consent decree because NWAPA is threatening to impose more fines. NWAPA can impose fines. In lieu of paying fines to NWAPA, NWAPA will allow the business to install the mitigation measures. Brenner asked how much in fines they've paid since 1999. Caskey- Schreiber stated they've paid close to $20,000. Brenner stated that is just a cost of doing business. Public Works and Capital Projects Committee, 7/30/2002, Page 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 DISCLAIMER: This document contains the Whatcom County Council or Committee minutes, as approved. However, unless an attested signature page is attached, they are not the final approved minutes. Delahunt stated that since May 1999, the amount of penalties levied is $54,000. Of that amount, the amount suspended was about $14,150. They've paid about $40,000. Caskey- Schreiber stated she is on the NWAPA board. Recomp has paid about $20,000, and has $14,000 pending. The rest was suspended because Recomp fixed the filter system. Delahunt stated that when all of the discussions about fines comes to pass, they will pay the fine. Grant stated the best and only action the committee might want to take is to suggest that they attempt to facilitate a meeting with Recomp and NWAPA. Encourage NWAPA to do what it needs to do to continue its enforcement efforts. Hopefully, that would eliminate the need for residents to file a private action. Given the information he has, he doesn't believe they have a reason to go back into court. Brenner stated she was assured that the consent decree does not allow Recomp to pollute with impunity. She asked why there wouldn't be some clause in the consent decree that allows the County to do something if the problem gets worse. Otherwise, they are shifting all their responsibility to NWAPA. Grant stated the principal objective was to affect a permanent solution, which was an agreement for Recomp to leave. Looking at the consent decree, this is a great victory for the County because the people know this operation will be gone in two years. In the interim, they have assurances from Recomp that they are following an operational plan, which they are doing. And if there is a problem, NWAPA is the independent authority to go forward on their nuisance actions. Brenner stated she doesn't see how they call this a victory when this industry is doing this to the community. Residents expect to be protected. Caskey- Schreiber asked if the residents would have a chance for relief if they pooled their resources. Grant stated it makes sense for the neighbors to pool resources. The odds of them to gain any relief in a complete form before the course of this consent decree is done are remote. That's why the County thought the consent decree would be a good resolution. Brenner stated the option is for the residents to sue the County to do enforcement. She doesn't believe the County can enter into a consent decree that harms residents for two years. Grant suggested that the residents talk to legal counsel of their own choosing. French stated this is permitted by the City of Ferndale, and there is a Health Department to look after their health, but there has not been any health risk assessment. No one wants to deal with it. The residents were in favor of the consent decree at the time. The reality is that it is not working. It is getting worse. Public Works and Capital Projects Committee, 7/30/2002, Page 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 DISCLAIMER: This document contains the Whatcom County Council or Committee minutes, as approved. However, unless an attested signature page is attached, they are not the final approved minutes. Brenner stated a judge might say the consent decree is unenforceable and illegal. The County cannot say that the residents are out of luck, and force them to put up with the odors for two years. What the County has done is put people at harm's way. It is harm. When someone can't breathe, it is harmful. Grant stated he looked at the consent decree with an eye on the County's options. Given what he learned, he was told that Recomp has been abiding by its interim plan of operation. The consent decree has not been violated, so there is no action to take at this point. He urged Mr. French and the other neighbors to not abandon their efforts. He urged the residents to continue to call NWAPA and speak to an attorney. French stated that hiring an attorney is cost - prohibitive. The County government should protect the welfare of its citizens. This is not being done. Brenner stated that everyone, including the County Health Director, has said on the record that it is a nuisance. She asked if they've ever done something like this before, where there was such an outrageous impact going on. Grant stated he couldn't answer that question. OTHER BUSINESS There was no other business. ADJOURN The meeting adjourned at 2:15 p.m. Jill Nixon, Minutes Transcription ATTEST: Dana Brown - Davis, Council Clerk WHATCOM COUNTY COUNCIL WHATCOM COUNTY, WASHINGTON Barbara Brenner, Committee Chair Public Works and Capital Projects Committee, 7/30/2002, Page 7