Cincinnati, OH

Rumpke lawyer claims rule is, "Fruit of the poisonous tree". Landfill rules to be voted on Monday; public welcome.

The Cincinnati Post
Rumpke's legal counsel claims the rules are the "fruit of the poisonous tree"The Cincinnati Post, 2021

The second of 3 votes scheduled to promulgate rules to regulate the landfill industry in Hamilton County is set for Monday, December 6 at 1 PM at 250 Wm. Howard Taft Road, in Clifton. The public is encouraged to participate in person or via Zoom. The Solid Waste Policy Committee will debate and vote on whether to support the 1st rule draft recommended by the Rules Subcommittee.

On Thursday, the Rules Subcommittee made history in voting to recommend the first-ever rule to be adopted by the Hamilton County Board of Commissioners. That rule will be sent to the Policy Committee for any changes on Monday and expected ratification. It is likely to pass because a majority of this Policy Committee has already expressed support for rule adoption. It then goes to the Hamilton County Commissioners for final consideration. The likelihood of it passing is high.

At the subcommittee meeting, Sharon Lutz, owner of Green Acres Canoe and public representative advisor on the subcommittee, reminded everyone of what the core problem is, "Hamilton County should have a voice ... We can't just have the state run us and not the county."

The subcommittee has only met 3 times. The consensus of the 3-member subcommittee with numerous appointed advisors without voting authority, was unambiguous, immediately. Sue Magness, representing the City of Cincinnati, and Robert Gedert, the public representative, had received significant information through the Policy Committee meetings and after pouring over hundreds of pages of communications from the public and nonprofits - they agreed, it was time to pass rules to rein in the unfettered operation of the garbage industry within the county.

The vast majority of people in the area were incensed by the prospect of hosting Mt. Rumpke 2.0. Despite assurances from Rumpke that there would be no actions taken for at least a couple of years, neighbors witnessed a project on the fast track. Now, Rumpke admits they plan on expanding the facility to host 4,000 tons of garbage a day. That could mean up to 400 truckloads of garbage a day in a residential area. A handful of nonprofits, Child Advocacy for Rights & Equity, Inc., Oxbow, Inc., Rivers Unlimited, the Sierra Club, the League of Women Voters, and a grassroots organization called Ditch the Dump, all zealously sought out a means to stop the landfill expansion. Emails were written to the Ohio EPA and county commissioners, well-over a thousand signatures were collected on a petition to stop the landfill, and citizens reached out to local elected officials to pursue any avenue that could stop the landfill expansion.

There seemed to be no answer. That was the problem. That - is always the problem.

The director of Child Advocacy for Rights & Equity, Inc. described the process everyone was pursuing as, "an octopus with many tentacles, using a process of elimination to determine a means to an end." Issues explored included: the existence of an airport within close range, the Whitewater River that lies just downhill from the landfill, zoning (which could delay, but not prevent expansion, despite being sorely needed in the host township), and local authorities.

Being rational meant, none would work. They never do.

However, Child Advocacy for Rights & Equity, Inc. (C.A.R.E.) focused on legal remedies. C.A.R.E. specializes in "conducting legal research of governmental entities' compliance with state and federal law and policy and procedure." By May of 2021, C.A.R.E. was in pursuit of a totally unheard-of remedy in the county - the passage of rules to regulate landfills. It took C.A.R.E. almost 5 months of persistent and often-annoying outreach to Solid Waste Policy Committee members and the public to overcome the obstruction of the solid waste department's staff, who opposes C.A.R.E.'s solution.

The director of C.AR.E. filed a complaint with the Environmental Services Director, Brad Johnson, on September 23 alleging that staff was obstructing government business through "deny and delay" tactics. The complaint, that was treated dismissively, stated staff "acted in many ways to interfere with and prevent (the) initiative from coming forward." Those tactics included disparaging C.A.R.E. and misinforming the public and elected officials that the proposed rule was inconsistent with law. Through a public records request, it was found that Rumpke staff was sending what C.A.R.E. describes as "opposition research" to the committee staff. Staff even went so far as to send a mass email (County employee sabotaging rules for landfills) to over 300 government officials accusing C.A.R.E. and its leadership of "misrepresentation" and spreading "misinformation". Staff denied that the county had the power to pass rules that could wrestle exclusive control over landfill operations from the Ohio EPA to protect county residents.

Finally, C.A.R.E.'s proposal went forward and was up for a vote thanks to the efforts of a trio, Karen Hurley, Sue Magness, and Robert Gedert from the Policy Committee, shepherding the proposal forward despite resistence and with the public support from Ditch the Dump and Oxbow, Inc. backing the proposal. At one point in mid-September, the trio of renegades who bucked the advise of their own staff, sent a memo demanding the proposal to create rules be put on the agenda. Commissioners Driehaus, chair of the Policy Committee, and Alicia Reece threw their support for the initiative and the momentum immediately changed.

Commissioner Reece demanded an open and transparent process and that the public be able to voice their opinion. And the floodgates opened.

A resident from Whitewater Township that lives just downhill from the landfill, stated at that public hearing on Thursday,

I think it is quite amazing that Rumpke has been able to convince the EPA that they can somehow suspend the principles of physics and gravity and put a dump on a hillside. Their past history has shown that they are fraught with landslides on flat (surfaces) ... Why would anyone deliberately pollute a Class A Stream?"

Tom Tepe, legal counsel for Rumpke, complained that Rumpke has been excluded from the process, despite Larry Riddle, a representative of Rumpke, sitting on the Policy Committee in violation of law and being privy to all information shared publicly with the committee. Tepe alleges that the subcommittee, itself, and the rules are "contrary" to Ohio law. Tepe asserts,

The proposed rules, in many instances, are contrary to Ohio law. ... If you don't slow down and fix it, everything that comes out from this committee is, what us lawyers like to say, 'fruit of the poisonous tree'

The Policy Committee has agreed to allow Rumpke to do a 15-minute presentation at the meeting. It's a peculiar and obvious conflict of interest for Rumpke to be sitting on the panel evaluating their own presentation on a matter that directly impacts their own business. However, staff at the solid waste office have not been inclined to remove Rumpke from the committee for the last 6 months nor to ask for their recusal from this meeting. Fortunately, Rumpke is a non-voting member of the Policy Committee and while they can use their position to exert special privileges they are prohibited from voting on the matter.

According to C.A.R.E., "Who cares? They are wrong on the law. They are wrong on their policies. And, in the end, citizens will be granted a voice because we finally have a solution."

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