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Oregon Court of Appeals decision means commission must hear Waste Management's request again, unless the company withdraws its application

GRAPHIC FILE PHOTO - Many of Riverbend Landfill's customers have stopped shipping their waste to McMinnville over the past several years.

Waste Management's now decade-long quest to expand its Riverbend Landfill near McMinnville by 29 acres was struck another blow recently by a state court.

The Oregon Court of Appeals, in an opinion issued Sept. 11, found that a Land Use Board of Appeals' ruling on the landfill was proper and could not be overturned.

The crux of the issue is a 2016 decision by the Yamhill County Board of Commissioners that expansion of the landfill would neither substantially change farm practices in the vicinity of the landfill, nor make farming in the area more expensive.

The county's decision was appealed to LUBA by the Stop the Dump Coalition, a consortium of the Willamette Valley Wineries Association, Friends of Yamhill County and Ramsey McPhillips, owner of a farm adjacent to the landfill. LUBA, in effect, returned the issue back to the county and ordered them to address it once again.

That return trip was circuitous, though, as LUBA's decision was appealed by Waste Management to the Oregon Supreme Court, which ruled in February that the landfill's expansion would indeed adversely affect the facility's agrarian neighbors and that Waste Management couldn't simply mitigate the problem by financially compensating the farmers. The court ordered that the county's approval of the expansion be returned to a lower court and, ultimately, the county.

The recent Court of Appeals' decision was heralded by the petitioners in the case.

"This decision strongly affirmed that it is long past time to shut down Riverbend's leaking mound of garbage on the banks of the Yamhill River, upstream from Newberg's well fields," said Sid Friedman, board member of Friends of Yamhill County. "It not only pollutes, the garbage that flies off onto neighboring farm fields is an unacceptable trespass that is not allowed under Oregon's land use laws."

In its two-page ruling, the Court of Appeals was succinct: "Our task in reviewing LUBA's application of the substantial evidence standard is to determine whether LUBA correctly understood its role on substantial evidence review. … If LUBA correctly articulates its standard of review, we cannot reverse LUBA's decision unless there is no evidence to support a finding that it has upheld or unless the evidence in the case is 'so at odds with LUBA's evaluation' that it is inferable that LUBA misunderstood or misapplied its scope or review.

"Having considered LUBA's order within the context of its procedural history and the record, we are unable to say that LUBA's determination of the question before it on remand is 'at odds' with the evidence in the case that LUBA misunderstood its scope of review."

Friedman said the court's concise ruling indicates that the appeal was without merit.

"The brevity of the decision highlights the lack of substance in Waste Management's appeal of the LUBA decision," he said. "They have repeatedly lost at LUBA, the Court of Appeals and even at the Oregon Supreme Court. They are rapidly running out of options and are simply stalling to delay the cost of closing the dump and cleaning up the mess they have made. The matter will now come back to the county for a final decision in accord with the court rulings."

When reached for comment on Friday, Jackie Lang, Waste Management's senior area manager for public affairs and communications in the Pacific Northwest and British Columbia, said only "We are assessing our options. I don't have information beyond that at this time, but I'll let you know when I do."

Expansion of landfill fought from the onset

The coalition's fight against expansion of the landfill has been a long one, including an earlier ruling by LUBA that remanded back to the Board of Commissioners a portion of their approval of the expansion. The coalition took the case to the Court of Appeals before the Board of Commissioners was able to schedule a rehearing on the issue, then the coalition approached the Oregon Supreme Court with its argument against the Court of Appeals decision.

Complexion of board has changed substantially

The latest court decision comes as the Board of Commissioners has changed complexion considerably since 2017: Rick Olson replaced landfill proponent Allen Springer on the commission several months before the issue came to a head. In November 2018, county voters replaced Commissioner Stan Primozich, a proponent of the landfill's expansion, with organic farmer Casey Kulla. The remaining commissioner who voted in favor of the expansion, Mary Starrett, could now be outnumbered by her new cohorts.

The complexion of the landfill itself has also changed in the more than two years since the case was filed. The city of McMinnville and Metro in Portland will cease sending their garbage to Riverbend in 2020, choosing to truck it to Waste Management's Coffin Butte facility in Corvallis instead. The former WestRock paper mill in Newberg, which in its earlier incarnations sent tons of boiler ash to the facility weekly, closed in January 2016.

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