Landfill expansion vote rescinded
Opponents pleased with move, but lawyers have grave concerns
August 31, 2011 - By Joe St. Henry
By a count of 6-1, the Orion Township Board on Monday night elected to rescind its April 18, 2011 approval of Waste Management, Inc.'s request to begin the process for expanding the Eagle Valley landfill.
Prior to the vote, a confusing and sometimes contentious debate took place between the board members and 70-plus township residents in attendance. Many in the audience shared their deep concerns about the expansion.
Residents also expressed their displeasure with the board's earlier decision to amend a 20-year-old consent agreement between Orion Township and Waste Management that limited expansion. A few members of the board and many of the residents thought this decision was hastily made.
The agenda item for funding a new environmental study of the controversial landfill expansion turned testy when Treasurer Alice Young motioned to rescind the April 18 vote, with Trustee Neal Porter supporting.
"We had no time for remorse (last spring)," Young said. "The ink wasn't even dry on the agreement before it was sent to the court . . . Let's start over and do the right thing."
The motion to rescind the amended consent agreement drew cheers from many in the crowd. "We want the process stopped," said resident Mary Ann Ryan. "It has to be done logically this time."
It may have also sent the township on course for protracted and expensive litigation, with limited chance of winning, according to Trustee Mark Crane.
The roots of the board's concerns with expansion can be traced to late 2009. It was then the township was approached by Waste Management to consider amending the original 1991 operational agreement between the township and waste company.
According to documents obtained by The Review, Waste Management made the request as more of a "courtesy", claiming it did not need township approval to expand its landfill operations at Eagle Valley by 50 acres, adding another 30 years to its life.
Prior to Monday's board meeting, Township Supervisor JoAnn Van Tassel said this claim was based on the 2000 Solid Waste Management Plan prepared by Oakland County and, based on her understanding, approved by Orion Township.
The plan indicates all 330 acres of the landfill property were "sited" for use. This conflicts with the original agreement between Orion Township and Waste Management that clearly stated township approval was needed before the "footprint" of the landfill could be expanded beyond the cited 103 acres of the site.
A long-time landfill opponent, Ryan was a member of the county's Solid Waste Planning Committee in 2000 and still is today. She said this group never was given the opportunity to review the county plan.
Hi Hill subdivision resident and fellow opponent Joe Geraci does not think the township reviewed the county plan, either. (Geraci also said he was told the 330-acre reference in the county's plan was a "clerical error".)
The state compounded the confusion in 1994, when it issued ACT 451. This law essentially gave the state control of the "location and development" of solid waste disposal areas not consistent with the approved solid waste management plan of a county, Van Tassel said.
Flash forward to 2010, when an environmental lawyer working for the township's law firm advised the Board that ACT 451 would nullify the township approval provisions in the 1991 agreement. (Ironically, the state's Department of Environmental Quality made the county place specific wording to the contrary -- reiterating the township's ultimate say -- in a revision of the solid waste management plan in 2002.)
Relying on the information provided by the environmental lawyer, the board formed a committee to negotiate an amended agreement with Waste Management, Van Tassel said.
"We worked with what was presented to us and had to make a decision," she explained.
"We could've said 'no' (in April) and not allowed Eagle Valley to proceed with the permitting, but we were told Waste Management would likely sue and the township would be forced to develop supporting rationale for the denial," she added. "The board decided to negotiate the best deal possible."
Geraci and his fellow activists adamantly disagree with the decision by the board. "The attorneys we've talked to say the 103-acre footprint in the original 1991 agreement is unbreakable," he said last week.
Crane on Monday firmly supported the work of the environmental lawyer and township attorney Dan Kelly. "Legal analysis is subjective, from one attorney to the next," he said, an attorney himself. "Kelly provided his legal opinion on how the law applied based on the facts available."
Township Clerk Penny Shults understood Crane's concerns and knew in April a board NO vote on an amended consent agreement could have led to litigation then. However, she had questions last spring and wanted them answered.
"I wanted more time to review (the proposed consent agreement last April) and talk to people to better understand what was going on," she said. The deal was ultimately approved by a 4-3 vote.
The New Agreement
Former Township Supervisor Matt Gibb played a key role in negotiating the amended consent agreement earlier this year. In exchange for the board's approval, Gibb said Eagle Valley agreed to provide the township with an immediate $100,000 payment and, upon successful completion of the permitting process, another $894,000. In addition, the township would receive an extra $100,000 per year for a decade.
The host-fee arrangement would pay the township an amount equal to five percent of the total tip fees Eagle Valley charged for each truckload of waste disposed at the landfill, with a negotiated minimum of $175,000 annually for ten years, Gibb added.
In addition, Waste Management would pay for two hazardous waste disposal days for township residents annually for ten years, at no cost to the township. The waste company also would pay for two "No Haz" days for the community at a cost of $25,000 per year for ten years.
The new agreement called for Waste Management to provide property valuation guarantees to some 120 nearby homeowners on Waldon Road, although many are reluctant to sign such contracts.
Gibb said the agreement made Waste Management contractually obligated to close one-third of Eagle Valley in 2016. "Isn't that what the people want?" he asked.
"I've talked to other communities with landfills this size and people ask me how did we negotiate such a good deal," Gibb added.
No matter what was presented to the board to convince them to negotiate, Geraci says Gibb and the board are guilty of failing to order a public hearing so residents could voice their concerns.
"We voted this board into office," he said. "We have a right to have our voices heard."
In hindsight, Van Tassel agreed the residents have a legitimate gripe.
"Not holding a public hearing is not a legal violation," she said at the board meeting. "But, it's against the public trust."
A public hearing last spring, Van Tassel explained, would have provided notice to the community and given residents the chance to see what was being proposed and express their concerns, which may have led to changes in the process.
Geraci also said Gibb failed to obtain the board's approval to pay $60,000 in legal fees to its law firm for handling the initial landfill work prior to the landfill committee being formed. Gibb defended the move last spring by claiming the sensitive nature of the situation required a degree of secrecy.
The move by the board this week directed township attorney Kelly to file a court motion to set aside the April 18 consent agreement between the township and Waste Management.
Trustee Mark Crane strongly objected to the motion to rescind, voicing "grave concerns" with the likelihood of success and the real possibility of protracted litigation. He said the township's legal position would be "tenuous at best."
"A consent agreement is between multiple parties," Crane said. "Changing it is extraordinarily difficult to accomplish if only one party wants to amend it and the other side wants it enforced.
"We face a long, uphill road ahead of us. I'm not necessarily against trying, but everyone needs to know this."
Community members at the meeting, nevertheless, told the board it was their duty as elected officials to represent the wishes of the public – and they want to fight the landfill expansion at all costs.
"If Waste Management wants to sue us, then let them sue us," Ryan said. "Rescind the vote and we'll go from there."
Not everyone in the audience agreed with such a move, however, without more thought.
"We don't know how much the township will have to put out – how much will this cost?" said township resident Lil Hutchison. "What if we lose and Eagle Valley expands, anyways."
Gibb said the township's legal costs could run upwards of $300,000.
At the very least, Crane said, the township has a legal obligation to refund the $100,000 that Waste Management paid to the township when it approved the expansion process last spring. "If we're going to undo the agreement, to perfect our legal standing we must refund the money."
Shults agreed, "We have to return the $100,000 as an act of good faith."
Crane also argued vociferously that it made more sense to conduct the proposed environmental study first, as well as secure a second legal opinion on the enforceability of the 1991 consent agreement, before voting on a motion to rescind the agreement.
"There's no question of fact in this situation," he said. "It's a matter of legal interpretation."
Crane did succeed in passing a motion for a second legal opinion to evaluate the township's position on the landfill expansion. He also wants the attorney to evaluate the township's legal vulnerabilities if it tries to set aside the amended consent agreement from earlier this year and determine what options the township has to affect the state's permitting process.
The board agreed to solicit bids for the new environmental study of Eagle Valley's impact on the environment. This is the first such study on the landfill since 1997. Holcomb Environmental Services of Olivet, Mich., completed the report for the township six years after Waste Management assumed responsibility for its operation.
The Holcomb report outlined concerns with landfill monitoring systems, as well as recommended the township closely monitor Eagle Valley operations moving forward. Its conclusions also questioned the landfill's commitment to providing "comprehensive protection of the environment." The report did clearly state, based on the company's review of records, that Eagle Valley addressed reported incidents promptly and appropriately.
Crane worries the vote to rescind may make this information useless. "The ship has sailed," he said. "Now the question is how much exposure is there and how much hot water did (the township) get into?"
The board's decision also sparked shock from Gibb, who not only defended the work of Kelly and the township's law firm, but also questioned the judgment of the board.
He wondered if they are willing to accept responsibility for Monday's decisions when township budget issues come to a head in 2012.
"Next year, when there are police layoffs and cuts to township services, I wonder which board members will have the integrity to question the money spent on an environmental report that the Michigan Department of Environmental Quality will ignore anyways."
The board hopes to have bids from environmental consulting firms in-hand by September 13.
A document from Waste Management to Orion Township indicates that it hopes to obtain a solid waste construction permit to proceed with the Eagle Valley landfill expansion by Aug. 31, 2012.