Hamilton County Commissioner Alicia Reece cut through all the muck of "deny and delay" and got straight to the point at the staff briefing meeting on landfills Tuesday. Reece gave the staff firm and direct marching orders:
- an open and transparent process;
- a timeline; and
- that the Rules Subcommittee meetings be on zoom to allow better public access.
However, the biggest directive from Reece related to the issue of whether or not, and to what extent the county has authority over landfill issues. Reece also questioned why the county has been misleading the public about its authority to promulgate rules regarding landfills for 6 months. That, there seemed to be no ambiguity in the statute cited and included in the PowerPoint, "Can you go back to the slide... what power do we have with this?" Reece raised eyebrows as to the obvious, after Michelle Balz, solid waste manager, continued to present the authority of the commissioners as somehow vague and uncertain. Reece states,
I'm reading this exactly how it's saying, that WE ...have the authority (referring to the statute). (It) gives us the power, and we've been saying we don't have the power"
Staff in county administration and the County Environmental Services Department, R3Source, have been misleading the commissioners, the Solid Waste Policy Committee (SWPC) and the public for months, incinuating that the proposal by Child Advocacy for Rights & Equity, Inc, (C.A.R.E.) is contrary to law. They have been blocking the 2 governing boards, the SWPC and the County Board of Commissioners, (BoCC), from understanding their unequivocal right to make rules and to have veto power over the Ohio EPA in approving landfill facilities.
A month ago, 3 members of the SWPC insisted the director of Environmental Services, his committee manager, and Commissioner Denise Driehaus put the issue of "rules" on the SWPC agenda. Driehaus bowed to the pressure of the 3 members, that were clearly frustrated that Driehaus and Balz failed to put "rules" on the September SWPC agenda. The trio issued a memo demanding that the topic be put up for discussion and a vote. When the issue was discussed, a majority was on board to move forward with better defining their powers and proposing rules. After deliberations on the matter, the rest of the committee joined them in voting to have the issue of rules pursued.
Tuesday, Balz gave her rendition of the county's authority to promulgate rules before the commissioners. She presented a PowerPoint. She explained that the county was able to pass rules under 4 categories:
1) Designations. Rules that control where trash can be imported from and to which landfills.
2) Authority. The power of the commissioners to require all landfill/solid waste activities to get the
permission from the BoCC.
3) Out of state waste. To create authority to inspect out of state waste brought into Hamilton county.
4) Zoning. The ability to exempt a landfill from zoning regulations on a case by case basis.
During the presentation, Balz claimed that, "That does not apply to us," pertaining to Designations because we have adequate facilities "even without considering Rumpke" to dispose of all our garbage. This is highly doubtful, since Rumpke takes in trash regionally to Colerain's Mt. Rumpke facility. Balz fails to include in her projections the impact of all the counties currently dumping in Colerain while Hamilton County has absolutely no agreements for "dibs" on landfill access if Mt. Rumpke had another accident that would disable the facility. This is a pet-peeve for Balz and she is deadset against it, despite the prosecutor's office opining otherwise, per the "summary" provided to the SWPC. However, the Environmental Service's department and Driehaus refuse to release the actual, full opinion to the committee - much less - to the public. What are they afraid of? They are not being open and transparent. And, the committee and subcommittee will have to work blind to the legal facts opined on by the prosecutor.
Balz claims that the charge of the subcommittee is to determine, "should Hamilton County have rules?" However, this issue was already asked and answered by the SWPC in September. The SWPC voted to better qualify their authority to make rules by seeking expert legal guidance on what rules to propose for adoption by the SWPC to then be forwarded to the commissioners for adoption. The memo issued by 3 members of the subcommittee actually put forth a few rules they would like considered. So, while the SWPC seeks to proceed with the rule proposals, Balz and her director, Brad Johnson, are attempting to steer the work backwards in hopes of finding cause for not passing regulations on the solid waste industry.
Balz further contends that in order for the commissioners to pass rules, that the process requires the Board of Commissioners to obtain recommendations for rules. She likewise claims this is the process if the cmmission asserts their authority in approving landfills. She is wrong. The Board of COunty Commissioners has unilateral authority to pass whatever rules they want, at any time, and without the permission of any other entity. However, Commissioner Driehaus prefers that the committee make recommendations. The other commissioners have not be informed of the means by which they can grasp the reigns on this issue and move it forward on their own.
"Time is of the essence." This means that there is expected future actions that could occur to usurp the impact of rules on the county. Since C.A.R.E. proposed the rulemaking, 3 permits have already been passed and the county has no means to clawback those actions. Commissioner Reece was highly in tune to this issue when she demanded a timeline for completion of the work. She said,
We do need to get some timeline... I don't want anyone to feel as though we're slowwalking something. And then, we get a rule that says we can have some power, and then we say, 'Oh! but if we just had known it 30 days ago you coulda (done) something; you missed the deadline...' So If there's any deadlines or timelines that we have to be sensitive to ... I'd like for us to be informed. If there is anything coming up that could be affected by this rulemaking process that we be (made) aware of it .. so that we, as a board, can make a determination if ...there's anything - something - on the calendar, so we don't miss any potential deadlines...
Any day now, Rumpke could file for a Permit to Install an expansion of the Bond Road landfill from a footprint of 150 acres to over 400 acres. While staff have denied and delayed action, Rumpke had their boundariey changed from that 150 acres to nearly 600, permitting the intake to go from 1 truckload of garbage per year, to about 30 truckloads, per day. So, yes, there is something on the calendar and we are running head on into it every day, holding our breath. So, the basic rule that gives the commissioners authority to require such proposals be approved by the county needs to be passed - yesterday.
Balz admits that most counties have 1 rule in common already, that was passed more than a decade ago. An example of that rule is in Franklon County,:
No person shall construct, enlarge, improve, modify, or replace any Solid Waste Facility until General Plans and Specifications of the proposed improvement or modification have been submitted to and approved by the Board as complying with the SWACO Solid Waste Management Plan
Often, these rules have additional criteria added, like in Butler County, they must:
- be installed, operated and mantained to be harmonious and appropriate in appearance and use with the existing or intended character of the areas;
- not be detrimental to the economic welfare of the community;
- not involve the excessive production of traffic, noise, smoke, fumes, or odors
- not result in the destruction, loss, or damage to a natural scenic, or historical feature of major importance, and
- not adversely affect property values within the surrounding community.
However, there are some limitations as defined in the precedent case law under Solid Waste v. Clarkco Landfill and in Stark v. Republic Waste. These cases, one from an Ohio Appellate Courts unanimously decision by a 3-judge panel and the latter, a Federal District Court decision, challenged and cited 16 times, hold that the commissioners and the SWPC, individually, have the authority to create rules, but they can not encroach on specific criteria in the sole domaine of the Ohio EPA. Good enough.
We've been advised by OEPA that these rules have not really been tested, legally, and that we would need to make sure that, that, we would want to see what kind of risk we were getting into...
Clearly, the rule making authority and parameters have been well defined and upheld, again and again and again. No legal opinion can reverse the decisions made by these courts.
Commissioner Reece understands the predicament and addressed the behaviors by making the process more open and transparent. Today, it was announced that the meetings would be put on zoom and that the public will be permitted to comment, despite the earlier decision by staff to not have public participation. Most of all, Reece doesn't want this juggling act to put the county behind the 8-ball with more deny and delay games.
It is time to move forward.