Travis County Commissioners Court
August 16, 2005
Item 3, Morning Presentation
Number 3 is next. I suggest that we discuss number 3 today. What I tried to do late Friday was to address what I thought to be the key issues that surfaced last Tuesday. Some residents got the shail that she sent out Friday night. The Commissioners court got that information today. In response to number 5, on my little summary, justification for requested capacity, we received the numbers yesterday. Now, I have some extra copies of the backup information. Who did not receive copies or who would like to see a copy now?
>> [inaudible - no mic]
>> well, actually, there are three or four documents in the packet.
>> I have several of the items. I don't have the justification [indiscernible]
>> all right.
>> may I hand them out for you?
>> yes, sir, thank you very much. I was about to draft someone, but I didn't have the nerve to do it [laughter]
>> I volunteer.
>> thank you very much. My recommendation would be that we discuss these issues and any others any other court member might have. Then that we throw it open to full discussion. See if we are making any on progress or not. I知 going from my little summary here, where we have seven different points, and the paragraphs that are to the right should be the same numbers as in the memorandum of understand -- of agreement, the draft document. One objections was raised that was whether or not the operator would be able to transfer the permit to another operator and there be avoid the closing date of November 2015. Tom, do you want to tell us what we've got here?
>> you're talking about the provision at the end of paragraph 25 2:00 1.
>> > okay. This is what I would call a belt and suspenders provision. I don't think a transfer the just a permit would allow the transferee to escape the obligations of the contract because we are putting a restrictive covenant in place. And if b.f.i. Or giles transfer the permit without transferring any rights in the real estate, it means b.f.i. And giles still control the real estate and we can obtain an injunction against them to stop whoever they transferred the permit to from entering their property to dispose of waste. But to address this issue, there's a provision that's been added to the contract that says b.f.i. And giles agree that any sale, assignment or transfer of the landfill permit shall be made expressly subject to the terms of this contract. So the intention that is in the unlikely event that there is a transfer, the 20 -- November 2015 closure date, would go along with it.
>> sure.
>> absolutely.
>> that's the intention. Maybe we ought to go through these and then hear what residents have to say on the -- the next one was we heard the question about arbitration versus litigation. That was the county should not give up its right to go into district court and enforce the contract. Should not subject the -- all of the contract to arbitration. And so -- in paragraph 22, what we tried to do was deal with that concern. And what we ended up with, in the explanatory words of tom nuckols, [laughter]
>> is essentially a compromise where b.f.i. Is allowed to arbitrate certain issues but not what I regard as -- what I perceive to be the most important issues for y'all, which is whether Travis County has done anything in the way of a breach, which would allow b.f.i. To escape the 2015 date and secondly simply compliance with the 2015 date. My perception from you all are these are the most important issues, so those have been carved out of b.f.i.'s ability to arbitrate. Those could only be decided by -- by a district judge here in Travis County.
>> tom, why is it that we did not just simply subject all of the terms and conditions to a determination by a district court judge.
>> well, I think -- b.f.i. Has stated to me that they had a concern about sovereign immunity. If their only resource was to follow a lawsuit, Travis County could raise the issue of sovereign immunity, basically b.f.i. Would not be able to enforce any -- any requirements of the contract against Travis County. Because we would be immune from suit. So we believe this language basically addresses that concern of theirs, but at the same time give the county the right to go into district court on matters of importance to Travis County.
>> correct. So in that paragraph, certain dates that we refer to, November 1, 2015.
>> well, what I do is refer on back to paragraph 1, which contains the 2015 date or earlier than 2015 if they permit a green field site. Also paragraph 5 which basically says b.f.i. Will cease disposal if they reach their capacity before 2015. There's really three separate dates which b.f.i. Would have to stop disposing of waste. 2015 or earlier than that if we reach capacity or earlier than that if we get a green field site permit.
>> multiple pieces of this contract. Is there anything that b.f.i. Could say that's a breach of good faith or that constitutes bad faith that will ever trigger that they can walk away from the 2015 date or the transfer station issue.
>> well, b.f.i. Can claim whatever they want to claim. There's nothing that you can write in a contract that says that -- that requires the other party never to claim a breach. But the issue is, if b.f.i. Claims the contract has been terminated by breach, they have to go to the courthouse and convince a district judge of that. And only the district judge come -- will leave them of -- will relief them of their obligations under the contract.
>> let's continue down that path. If that's the case, in terms of whats the ultimate of that, would the issue of the transfer station and the 2015 date be subject to some district judge making a judgment at some point in the future that is contrary to where it seems on the surface both b.f.i., the landowner and Travis County are today in terms of rewriting conclusions?
>> well, I知 not sure that I understand your question.
>> can a district judge put back in play the 2015 date and/or the transfer station walk away?
>> what do you mean by put back in play?
>> a district judge come to some kind of conclusion related to a breach of this contract that would throw the contract out and therefore the two most important things that I think that are in this contract which are the 2015 date and the no transfer station ever, are all of a sudden, there is no contractual basis for those conclusions.
>> if a judge find that Travis County has breached the contract, then yes. If the -- if Travis County breaches the contract, b.f.i. Can go to a district judge and say judge, the other side has breached this contract, and therefore it's terminated and we're no longer com -- we're no longer required to comply with it.
>> then do we need some better definitions of what constitutes a breach? Or maybe what things don't constitute a breach? Some things that are a little more specific about what constitutes good faith and what -- what basically constitutes bad faith.
>> I致e got thoughts on that that I would like to share with you in executive session.
>> we are all trying to get to the same place of something that really means the words on the piece of paper and not somebody in the future that is not in this room today takes what are promises and totally turns this upside-down. On another day. Because those are the two most important covenants, I believe, to the neighborhood. 2015, that's it. And no transfer station. Ever. Ever.
>> right.
>> we did -- we did get a little additional information from the county attorney's office. Some would say last night or late yesterday. So we will share it in executive session. Let's address that in executive session.
>> I would like to say this. I知 very disappointed, I guess, in getting this information this morning. Right before we came down here to court. Kind of puts me in an awkward position. Even though I知 totally opposed to every word that's in this -- in these documents, I don't think that's -- that's nothing that hasn't been heard, but it's just a modification I guess as we go through these things, judge, in court, members, the separation of the -- of the restrictive covenant, which was a part of the agreement before, but now it's a separate document as persons said it would probably be more appropriate to put a restrictive covenant document separate from the agreement. Let it stand on its own merit and not be engulfed by the agreement itself. And I think the comfort level that -- that the residents are seeking, where they would be real comfortable in all of this is for us to -- to not vote thumbs up, but vote thumbs down on this contract. I think that's -- I think that's the most comfort level that they are looking for is no expansion for these particular landfills. But be that as it may, we are going to go through these things, but I have some suggestions that I would like to bring up later in these discussions to show where -- where precinct 1 is coming from. I would like to say precinct 4, but Margaret has to say what she have to say on her, but it is similarly related because the of -- because of the geological features that precinct 1 and 4 as far as showing favorable to rain to these such landfills. And when it really gets down to the bottom line of all of this, especially when [indiscernible] stuff as far as the condemnation proceedings in this thing, eminent domain power is being suggested in these particular documents and the county only having the authority to condemn for a solid waste facility or landfills only within these boundaries of only Travis County, that suggests to me that there are going to be a new green field site. That suggests to had he that they are going to hit us in precinct 1 or 4 if that is where we are going with this thing because it -- it does show this. If anyone can tell me any different, than that, then I think we need to put it on the table as far as the site after closure. So it's just a few things that I would like to lay out as far as we per receive this. Unfortunately I don't have a -- perceive this, I don't have a chance to go through this thoroughly because I just got it this morning at 9:00 a.m. Anyway, we will just go ahead and proceed the best we can, thank you.
>> it's my fault that the -- that these were give very much out so late. The residents need to I guess be aware, though, we had the discussion last Tuesday and court ended after 6:00. We have had budget discussions half the day every day since last Tuesday. And we will have budget discussions half a day all of this week, too. Either we have budget sessions in the morning and not afternoon or we have them in the afternoon, but every day last week and every day this week, except on Tuesday where it looks like all day we will be in court. But half a day we are really in court discussing the budget and to be honest, my meeting with the county attorney's office and b.f.i. Occurred late Friday afternoon and tom stayed over later than usual to incorporate our discussion and responses to really what residents raised last Tuesday into a revised draft that my staff sent out Friday evening and during that meeting I also asked b.f.i. To do the calculation about how they arrived at so many cubic yards. And I assume they did that over the weekend and Monday and I got that yesterday. And yesterday we were in budget session, also. Most of the afternoon. And when I got back I sent that out to residents. That's why I suggest that we discuss this today. Not take any action, give everybody an opportunity not only to hear the discussion, but give comments and absorb what's here. Last week we did discuss number 4. Nope, we discussed 3. Which is the condemnation, county's condemnation obligation and we tried to clarify that. Some residents expressed concerns and to be honest I received additional input from the county attorney's office late yesterday, which has not been incorporated into the Friday draft. But that we will need to -- to give some thought to. But in paragraph 12, tom, we did try to clarify circumstances in which the county would be obligated to use its eminent domain authority, right?
>> right.
>> and our wording says ...
>> well, basically the obligation would be if both -- if there's a site selected, that both Travis County and b.f.i. Each in their discretion find acceptable, that Travis County and b.f.i. Will then negotiate a contract whereby Travis County would condemn that site and make it available through a sale or a lease to b.f.i. For use as a landfill site. > okay. The suggestion given yesterday was kind of consistent with what Commissioner Sonleitner said a few minutes ago. We need to tie down specifically what Travis County is obligated to do. So if we don't do that, then it will be facial clear that we have breached our -- our part of the contract.
>> let me ask this question, tom, because you brought up what I commented on earlier. And that is the condemnation proceeding. Right now, we do not have a -- a solid waste siting ordinance for landfills on the books, so we -- we do not have any way of protecting the neighborhoods, the harris branches, the -- the colonies, anything out there. We have no way to protect them. The Briarcliff subdivision, I could go on and on, I知 just speaking of pntd 1. But -- but we have no way to protect that. Because we don't have an ordinance. Now, if we were to -- to embark upon -- if the court decides to support an agreement between b.f.i. And Travis County, and a site is selected, by b.f.i., without an ordinance in place, to have setback that's govern the distance from schools, churches, neighborhoods, all of those things that the ordinance requires, water wells, drinking water sources, hospitals, all of the future growth things that are coming up in precinct 1 and 4 -- I have to say that, because the geology. And what's over there now. If the ordinance is not in place, then it looks like it's open season on precinct 1 and 4 for a site to be permitted. [indiscernible] Travis County landfill site as far as locating that, I think we are kind of putting the cart before the horse, in my opinion. But again, there is not enough clarity to me to subject to me to make me believe that this is not going to be the case. That precinct 1 or 4 will end up receiving this particular site. Especially if it's not out of Travis County as far as what they are looking at. We have no way of protecting the neighborhoods, we have no way of protect being the precincts from -- we have no way to protect the business community with the landfill because of no setbacks. That's what the ordinance was basically intended to do. We have adopted an ordinance. As you know, we have adopted a solid waste site ordinance for things other than landfills. We have done that. Which has set backs, we are talking about like composting operations, recycling facilities, all of these other kind of things we looked at as major and minor facilities. But for landfills, for landfills we have not adopted an ordinance yet. We have no protection, we are talking about now about condemning, if we are talking about condemning and using eminent domain powers that the county has, then we are putting ours in jeopardy without having any governor advance of location and distances at this time. And that in my opinion is kind of offensive.
>>
>> [one moment please for change in captioners]
>>
>> ...i do know that we have struggled hard to get the little authority that tceq granted the county from the floodplain regulations, and also the solid waste siting ordinance, the section 331.2 is a part of that. So those are just the particular things that -- the protection things that we have. And to say that who is going to be at jeopardy and who is going to be jeopardized, whether it be somebody in precinct 1 or 4. And another situation where we've got to come back again and do the same stuff and the stuff with an ordinance to keep these things from happening. In other words, everybody knows where they can go and where they need to go as far as the location. And that's what needs to happen in my mind. Anyway, that's my opinion, and so if this thing does not give us that guarantee of what I知 looking for, it's a setback and a location of where these things can go and can't go. And I think these persons in the community of Travis County ought to have those kind of protections giend lines in -- guidelines in place.
>> Commissioner, I agree with you. I think there are no guarantees. I think we all have to accept some responsibility here. Is this the contract -- does a contract obligate all of us to do something about the future in waste? Are we all obligated -- was this contract obligated to address zero waste and what does that mean? What does that do to each individual in Travis County who lives west of i-35 so that we don't have more landfills that go east of i-35? It's a responsibility on the part of a lot of people, all of us who live in Travis County. And especially if we're not going to be able to condemn anything outside of Travis County. So we're all in this together, and perhaps everybody in Travis County can hear our plea of no more landfills east of i-35 but it's a step that we would take and what would help us get to those steps. Will this contract do it? And I think we're here to try to go through the -- this proposed contract and let's see what it does to fulfill all of your wishes. And I壇 like to see zero waste, but what does it mean, how does it obligate us? I would like to continue going through here and let's see if this obligates us in any way. All of us. Not just us today, but future courts and future citizens.
>> well, barbara, just looking at the history and looking at the history, I致e been dealing with this stuff a long time.
>> I understand.
>> I was dealing with this before I even became an elected official and those kind of things have been really overwhelming in eastern Travis County. So there's been a long history, over 20 some-odd years. But what I知 trying to say is if you go and look at the permits that tceq has allowed as far as the big ticket -- big don't want them in your backyard type things, they both reside in your precinct and mine, from landfills to sludge operations, I知 talking about septic sewage, all this kind of stuff. All of those kind of things that are in your precinct and mine. What I知 trying to say is they're talking about a green fill site in this contract. And if they can condemn for a new site and we have the power to go along with them and condemn, the court may change a year from today. It may not be the same court. It may change 10 years from today. It may not be the same court.
>> of course it will change.
>> and in the face the county government has changed. And I致e got significant proof of that. It's not the same as it used to be. So what I知 trying to say is we need to have as much protection as possible, and I just think, as I stated, the ordinance is only one vehicle of many since we have limited land use ility and authority to deal with these particular situations. We have no zoning, per se, but dealing with the ordinance we can have setbacks. So I知 just forecasting something that will happen in my mind if this thing comes to pass, and that is that somewhere in precinct 1 or precinct 4 in Travis County if there's any condemnation that takes place, believe me, it will be in precinct 1 or precinct 4. That's my argument.
>> number 4 --
>> [inaudible - no mic].
>> everybody wants it picked up, but nobody wants to put it down. I certainly have expectations that the garbage that gets picked up in my neighborhood on Thursday has to wind up someplace. And so that has also got to be a part of this solution is that we have to talk about where is Travis County going to put its garbage? Where are the citizens of this who on a daily basis create garbage that is not repsychable, it just winds up in the waste stream? Where is it going to go? And at the same time we say no more in precinct 1 and 4, we have another landfill operator down in precinct 4 who is going to be asking at some point for an expansion. So if we say no more landfills in precinct 4, just because it's preexisting doesn't mean that taking up more space is not an issue. And I知 not at all closing the door on tds coming in and asking for an expansion at that appropriate time. If we keep saying it's not going to be in Travis County, fine. At what point is that letter or phone call going to be made to judges powers, doerfler and mcdonald saying the Travis County garbage is coming to Williamson, bastrop and haze, and what -- heys. And what right do those citizens and those neighbors have some saying we don't want the garbage from Travis County coming into our neighborhood. So it isn't pleasant.
>> I know it's not pleasant and it's a hard pill to swallow, but the facts are facts, and the fact is that -- I知 talking about the hard-core permit that tceq allows, 74 of them, 56 of them are in precinct 1 and 4. That's reality. My whole point and what I知 trying to get across is I heard testimony from mr. Kvue news who sat -- from mr. Kuhns who sat there and said five or six active landfills are in Travis County. Now, we serve 10, 11 county area. I think I also heard that recycling is the way of reducing the waste stream and options we can look at instead of expanding options. So we have to look at all of this. And I just don't think me in my opinion we should tie Travis County down -- and I知 going to ask the folks here who are representing in a little bit, I知 going to ask them questions because we shouldn't tie the hands and the folks in Travis County who have been toting the load for a long time.
>> well, related to the environment, when we asked robin for the specific, give us that mythical site, what does that mythical site look like, she said that the soil needs to be eastern Travis County. So in terms of the wish list of tceq in terms of what is that mythical site, even she conceded that it is unfortunately the land that is located only east of the interstate. I think Gerald and I said how we wish we had that soil someplace else, but we don't. But even she conceded that that's where it ought to be in terms of the mythical site of what makes a good landfill.
>> well, the contour of the soil doesn't stop at the boundary line of Travis County. The geology that exists as far as being favorable for landfills in precinct 1 and 4, that geology also is in -- outside of Travis County.
>> I agree.
>> it goes all the way up to dallas and all the way up to --
>> and we will inform the judges that Travis County --
>> [overlapping speakers].
>> we aren't the only ones with the jeelg. Let's not say that Travis County is the only place in the world that can have landfills. It's not. There's other places that have similar geology to one and four and this is something we need to deal with tceq about.
>> I look forward to those phone conversations.
>> speaking of questions, number four allows us to address one, and that was what about restrictive covenant over the complex? So we sent out and attached a restrictive covenant that is tailored to, I guess, the circumstances before us, tom, and what does it say? And this note says, tom knuckles advice contract is better. Can you explain that to us? And by the way, if we could get a b.f.i. Representative to start toward the table there, we need some explanation of number five. In the meantime, what about four, tom?
>> well, the purpose of filing a document in the deed records is to put subsequent purchasers of any interest in land on notice that the land has been legalry restricted. My issue with this draft restrictive covenant is that it really only has about seven lines describing the obligations that b.f.i. And giles are imposing on their land. So when someone who is thinking about acquiring that land sees this, they're on notice of what's in this seven lines or so. The contract is eight pages long. In my view, if you're going to put someone on notice, put them on notice of every single thing that's not in the contract and not some seven-line summary because that gives them the argument that they were only on notice of these seven lines that were in this document. I would just as soon file something in the records that describes the contract or maybe even has the contract attached as an exhibit so that every person is on notice of every single item that's in that contract.
>> the country boy in me wonders why we wouldn't sign both.
>> that's why I知 saying file a document you call a restrictive covenant, but attach the contract as an exhibit. And simply say, on such and such date, b.f.i. And giles entered into these restrictions. They are in exhibit a. Exhibit a is all eight pages of the contract.
>> so incorporate one into the other.
>> incorporate one into the other.
>> let me go back to where we were a few steps ago in terms of talking about could a district judge, unless we lock things down more, reverse something. So what happens if you've got a restrictive covenant that says this is the gig, can a restrictive covenant be overturned by a district judge in terms of encumbrances on a particular piece of property?
>> well, a restrictive covenant is just another form of contract. And ultimately any contract you enter into ultimately can be ruled valid or invalid by a district judge. It just comes down to you draft the best contract you can draft knowing that a district judge, an independent third party who is obligated to apply the law will apply the law fairly to that contract. I mean, that's inherent in every contract you enter into.
>> this restrictive covenant, help us out in terms here. Sometimes we use the term plat note. Are these basically the same kinds of things that are basically subject to change?
>> how do you mean subject to change?
>> nobody can change what you enter into on one day on some future date.
>> it's a contract and it is an agreement between two parties, and the two parties to the contract can always agree to change it later.
>> I知 going to ask a question about that in executive session.
>> the restriction here would be the obligation to close in November 2015 if contractual terms and conditions are complied with by the county basically.
>> to closing 2015, to close sooner if they reach capacity, to close sooner if their permitted a green fill site, also not to have a transfer station, etcetera, etcetera, etcetera. That's why I知 saying put them on notice of everything in the contract just by filing a restrictive covenant that basically says the whole contract is a restrictive covenant and attach that contract as an exhibit.
>> okay.
>> now, we did get questions about why so much aren't they really asking for capacity way beyond 2015? And I put that question to b.f.i., and I said show us in writing your calculation. And yesterday, we did get a summary of sunset farms capacity calculations and design capacity selection that I e-mailed to the residents that I had been sending information to. And so can you walk us through basically the assumptions here, the rationale, how you arrived at these numbers?
>> good morning, judge. I知 with the south central Texas district manager for b.f.i. In addition to what we sent you yesterday, judge, we printed out something. What we gave you yesterday was a four and a half percent growth in volume over the next 10 years. I also have here to hand out, if you would mind giving it to the court and I値l pass it to the residents, zero percent growth at any volume over the next 10 years. In our annual report filed in August, we had about 9.1 million cubic yards of air space remaining. Estimated through this August we'll have about 7.9 million cubic yards remaining. We're using about 1.3 million cubic yards a year of air space. If you can see on the one we e-mailed you was a four and a half percent growth, which we did basically a decline in balance starting in 2005 and running through 2015. At the end of 2015, we would have approximately 200,000 yards of air space remaining in in fact there was a four and a half percent growth. The subsequent document that I just gave you has zero percent growth, which we all I think realize that Austin area, the capco area took a hit in the late '90's and early 2000, but it seems to be pretty vibrant lately, a lot of growth going on right new in our communities. But with zero percent growth, if you follow the same scenario down, same 9.2 million cubic yards last August, about 7.9, million 3 cubic yards used a year, at the end of 2015 we would have about 3.9 million cubic yards remaining, which that air space, if we weren't under contract with the county, could carry us through the end of 2018, but we as a company don't think it's fair to assume that there will be no growth in volume over the next 10 years.
>> I was going to say, it's probably not realistic to say that there will be zero growth. Probably -- with the subdivisions that are being developed around Travis County, and we know that each household generates how much waste per day per person?
>> eight or eight and a half pounds.
>> per day, per person.
>> and that rate is increasing according to capco's numbers.
>> and that's what we need to really target and see what kind of obligations that we each have to reduce that amount of waste that we generate per day. Per person. And so -- thank you.
>> I have a question. There was a question that ms. Clark raised related to concern that somehow part of that 4.5 or whatever the number is, the growth, new contracts, perhaps could be out of state customers, other places where they are having similar kinds of problems. And we could wind uf being the dumping ground. Forget about the region, but for clients who are out of the cap cog region, out of state, perhaps even out of country. Could you please address anything related to where your contracts will be coming from or whether you are not going to have any contracts coming, say, from out of state?
>> I read the e-mail on that, and what I can tell you, b.f.i.'s position would be we would not take any other waste from anywhere other than where we are taking it from now, any county other than where we are taking it from now in the future.
>> is that something that you would be willing to put down in some kind of a document?
>> yes, ma'am.
>> in terms of that also would constitute good faith on y'all's part as well on what's a breach or not.
>> yes, ma'am, we would gladly put that in the contract.
>> how many counties do you take from now?
>> cap cog counties, plus --
>> we have the capcog counties and we also bring in volume from the killeen transfer station. We used to bring volume from the browning transfer station. We get little from there now. That is actually returned and brought to the houston market.
>> how many counties?
>> that's 11. 10 in capcog.
>> 10, and I値l have to get back. I don't know the exact number of counties that may dump it into the killeen transfer station.
>> let me ask you this: if you need 9 million cubic yards of capacity, is there a way for you to adopt a configuration that would allow you to expand I guess laterally rather than vertically?
>> do you want me to take that? I think as y'all are aware, the current configuration with the nine million cubic yard capacity has a reduction of 25 acres of the landfill footprint. If we were to put that 25 acres, 11 acres as currently permitted, 14 acres was planned as a lateral expansion. If we put that back in, that would really only allow us to lower the landfill height by a little less than 10 feet. So we'd still need a vertical expansion. Almost the same one that we have now. The landfill footprint is about 250 acres approximately. So when you only add 25 acres, you really can't reduce the vertical expansion a significant amount. Does that answer your question?
>> it does. I guess how significant is 10 feet if you're standing back looking at it?
>> I think all of our land use consultants would say you couldn't even perceive that.
>> I think one other place -- this is one of the questions generated by ms. Clark and I want to make sure that all of her questions do indeed get asked in a public setting. It's just the disbelief that anyone would leave capacity on the table on November first, 2015, whether it's 200,000 yards or we all get into it on zero waste and that there would be five million cubic feet -- yards, excuse me, of capacity left on the table. A disbelief in the community that anyone would have a business plan that would leave capacity on the table on a given date.
>> I guess I知 not sure what the question there. Why would we do that?
>> there is -- there is suspicion and disbelief in the community that if you leave -- that you might leave capacity on the table either because you have hit the November first date or the green fill site. There are folks that just don't believe it, they're not going to leave capacity on the table on that 2015 date or move into a green fill site. They just don't believe it. That somehow that capacity is somehow going to put back in play or it's going to be maxed out no matter what.
>> well, if we reach an agreement with the county, we can't utilize that space. And again on the calculations that we needed to get us through to that point, try not to leave any on the table if possible, unless we get a green fill, and we're ready to walk away from that air space.
>> well, I think you could probably make up for that air space on any green field. So -- and in fact, transferring whatever capacity you have left at the old one over to the new one. And it would be kind of like starting over. That's kind of the way I see it.
>> you wouldn't be really, I guess as you say, replacing it. You wouldn't be starting over with a whole new facility with however many million air feet of space permitted. I guess we never really looked at it as training, we looked at it as stability to get out of northeast Travis County and go to a new facility somewhere else.
>> I have a couple of questions. Margaret? Can you -- basically I知 trying to put this into maybe another snare scenario. You have had expansion relationships as far as facility in the fort bend county area, harris county. Could you basically go into that? I understand that this particular permit was I think issued in 1985, and I understand that y'all have a relationship with those folks now and they're also, quote, hauling fees that are being assessed. My question to you is those folks over there, did they pass an ordinance? Did the ordinance actually get passed as far as dealing with solid waste facilities?
>> are you speaking in haisht, mr. Davis? -- harris county?
>> yes, the expansion that b.f.i. Has a relationship with under permit number 1505.
>> I don't know the answer to that question, mr. Davis. I don't have any thing to do with --
>> fort bend county. The reason why I知 asking is because it appears -- and I guess you can go to the website and find this information, I guess, but in this w permit number 1505, which is part of that fort bend county deal there where you are actually collecting a hauling fee in exchange for expansion, right now it's, what, about .12 per cubic yard, but after the expansion was granted, the volume of that has increased and I think the numbers have changed. I guess my point is that you are in the expansion business and of course you've assessed hauling fees. Were you going to look at that as far as Travis County was concerned and charge a hauling fee for upcoming future endeavors for your expansion operation for b.f.i.?
>> I guess you're referring to host fees.
>> yeah, hauling fees, host fees, whatever.
>> I can't speak to fort bend county, mr. Davis. Paul can maybe clarify what we have done in fort bend county with the expansion of I believe it's blue ridge landfill.
>> yes, exactly. You're exactly right, blue ridge landfill. Go ahead. I understand that there has been something in exchange on that particular situation, almost what Travis County is in right now, per se, as far as what's going on there as far as what's happening here. So I知 just trying to get some clarity on that.
>> in fort bend county, b.f.i. Reached and agreement with fort bend county.
>> what the agreement?
>> which involved the ability for b.f.i. To expand. Probably the most important aspect from fort bend county's point of view was a host fee, which means that the county receives money for every turn or cubic yard of waste that's received at the gate at that landfill, which they used to fund significant public works projects. And that's the economic arrangement that was reached there. And we have discussed the concept that that seems to be a workable arrangement and are anticipating doing that in this case. With you, if you would like.
>> no, I知 not going to support the contract at all, but it would just -- it was just a way of generating revenue, since we do serve -- since you do serve a 10-county area, 11-county area as far as bringing in waste. Of course, I was wondering if you had made arrangement with those other counties that you're suffering to maybe have a situation set up with them as far as generating host fees. So it's just another avenue of getting you to go away into some other area other than staying here in Travis County. I want to make sure that there are other possibilities other than Travis County. And since you know now that if there is going to be any condemnation and you receive a new site, which we call green field site, if that's achieved, then it means that you have to go to the most geological setting in Travis County. And that's east of i-35. So I wanted to bring those things out to you. And at least have another option on the table that you can actually do that in another county since you're doing it in fort bend county. That's what I want to get across to you. Thank you.
>> somebody remind me in terms of the sunset farms site, how much in terms of the contract's related to that site is from trash being generated from Travis County citizens? How much of it is Travis County to Travis County?
>>
>> I forgot to identify myself before, ray showfield for b.f.i. (indiscernible).
>> is it possible to crunch that a little bit more in terms of what is the Travis County east as opposed to anything -- is that at all possible?
>> we don't have that information now because there's a lot of hauling routes that actually across the county line. If that was real important, I think we could get a pretty close estimate on that. I couldn't get that, but we could probably get closer to what just comes from Travis County.
>> I think that would be a helpful statistic, any bit of extra.
>> and point number six we try to tighten up the responsibility to seize disposal of waste by November one, 2005. Tom, we came up with additional language in paragraph 10. What does it say?
>> paragraph 10 is the paragraph that essentially deals with the tceq permitting process, and the language that has been in the contract for a long time was that b.f.i. And giles shall include and support the conditioning of the tceq approval on design and operational parameters at least as strict as those set out in this contract. And to add specificity, we added, including permit provisions specifically addressing the requirement to cease disposal of waste by November first, 2015, or earlier, and any prior measures that must be taken to comply with that date. So in other words, if b.f.i. And giles are agreeing that they will tell tceq, we've entered into this contract with Travis County that requires closure by 2015 and other things. We request you, tceq, to put those requirements in the permit, so that they are enforceable as a tceq permit condition, which not only tceq can enforce, but you, the Commissioners court, has the statutory authority to enforce tceq permit requirements. So again, it's sort of belt and suspenders on enhancing your enforcement capacity on the 2015 date and other requirements of the contract.
>> okay. We have b.f.i. Representatives right before us. Any questions or comments from the court or any comments from b.f.i. Reps before we give residents an opportunity to provide input?
>> [inaudible - no mic].
>> I have one. Anybody else -- [inaudible - no mic]. It was another question raised by ms. English and others was why are folks making an assumption that whatever is shipped off to the tceq will be approved? Why are we thinking that tceq could take, whether it's this application, one that is far greater or one that is far lesser, and that it's just a given that they will say yes?
>> well, from my perspective, I would say that tceq's track record is not to approve every expansion that's requested, but they approve most of them.
>> but part 2 on this is what does occur if, let's just say this particular request moves forward and goes through the permitting process at tceq, what if they turn it down? Does that mean, like I知 looking here, that if you guys are at a zero waste stream, when you hit we're at o space sometime between 2011 and 2012, and that would be a sooner date, somewhere between 2010 and 2011 in terms of what you've got right now, in terms of what -- that's what your understanding is of reality?
>> that's reality.
>> and if the tceq turns you down, the other pieces of the puzzle related to no transfer station, that's not a breach on our part if tceq says sorry, no.
>> that's correct.
>> anything else from the court?
>> one final question, judge. I don't know how this court is going to land on this particular agreement that's before us now. I know I知 voting no against it. I知 not supporting it. But be that as it may, would you have any objection to picking a new green field site and all these other things that's been contained within this particular contract prior to the Travis County -- hopefully we can get a landfill siting facilities ordinance on the table that governs landfills. I知 not talking about anything governing you. Would you have any objections to that coming forward whereby we will have a chance to protect the community with some type of ordinance that gives some distance? Because really when you really look at it, residents and commercial as far as you guys, it's tough for the peaceful type co-existence to be there. It just doesn't exist and you're in competition. So what's a -- once a solid waste ordinance in place adopted by this Commissioners court, would you have any objection to holding up on any type of green field site deal if this was to come to pass? That would govern where you can locate in probably eastern Travis County?
>> I知 not sure I followed your question completely, mr. Davis.
>> well, let me say it again. I don't know why it wasn't clear to you. It's clear to me. Would you hold up on any proceedings that are taking place here now in going before tceq, because tceq is going to grant the permit, your expansion and anything else. Because I don't know how this court is going to vote, but let's say it's a 4-1 vote. Commissioners Davis is the only one voigting against it. Now, if that is the case, would you hold up for the number of required days for the Travis County to adopt a solid waste siting ordinance for landfills before you go to tceq to file your expansion application with the accompanying agreement if the court decides to go that direction?
>> I understand your question, Commissioner Davis, and as you know, as we have said for almost two years, we have been prepared to file our application if we have to. If you want to pass a siting ordinance that would prevent us from being in business, which is what you have said is your goal, we wouldn't sit still. And for that to happen I think is a fair response to us.
>> now, you've put words out there that I didn't say. I didn't say to get you to go. What I did say was protecting the residents. That the ordinance itself is to give protections to residents and businesses in the community. That and that is where you cannot locate right next door to somebody as you are now in the new green field site. It's a distant setting --
>> I answered with regard to the -- [overlapping speakers].
>> that's the question I asked. Would you expect to it. -- would you object to it? You understand now. The question is do you object to it or not? Would you support it or oppose it?
>> we would not be in a business to oppose that --
>> do what now?
>> we would not be in a position to oppose the county's action to pass a siting ordinance as it relates to future sites. We have been in a position with the county with regard to this expansion that we've been trying to work out an attempted understanding about whether this application could go forward or not. And the county has gone forward with their siting ordinance in an effort on their part to see if something can be worked out? That's where we have jointly been and that's where we still are as it relates to the expansion. As it relates to the green field site, we have had no such agreement between us and the county can do what it wants to or needs to.
>> I guess that means that the county can proceed with a solid waste siting ordinance to govern new locations of landfills, if I知 understanding you correctly.
>> if you're asking me whether the county has the legal authority to do that, of course the county has the legal authority to do that.
>> no, I didn't say that.
>> if you're asking me will I forebear filing an application, we don't have a site yet, much less an application. It's going to -- the timing on that is there's a very long period of time between the time we would be ready to file an application and the amount of time you would have to pass a siting ordinance. It's a long time between those two points as it relates to a new site. Pardon me, judge?
>> the siting ordinance and a green field site?
>> for the green field site as it relates to this site, we have tried to make it clear that we would file our application rather than have you legislate us out of existence.
>> Commissioner Sonleitner?
>> there is just one other question that came up during my meeting with residents, and that is that they are under the impression that there is a rush to get to tceq. That the rules are changing relating to applications and expansions on January first. And if you get there now, there will be a different set of rules about how that application will be evaluated, but after January 1 it is their impression that there will be a different set of rules and it will be much tougher and there will be much more stringent radio rules related to liners, related to putting it on top of an existing landfill, etcetera, etcetera. And somebody address that, please.
>> our interest in filing this application, as the court knows, has been ongoing for more than two years. It has been driven primarily by the fact that we're running out of capacity. The fact that along the way a new set of rules has been proposed, but not yet passed, that's a fact. They have been proposed that it really had nothing to do with our motivation then and still has nothing to do with our motivation now. And in fact, any prudent landfill applicant will take into account the reality that the Commissioners when they see the application will see it with a mindset and probably with precedence already having occurred that will obligate an applicant to anticipatorily satisfy the new rules.
>> are you doing exactly that in terms of anticipating what the new rules will be?
>> we are trying to.
>> Commissioner Daugherty?
>> paul, I know you can't speak for tceq, but give me a reasonable assumption on your part as to how long you all would anticipate if you're filing your application with tceq that it would be before you know whether you got the expansion. Is that a month thing or is that a six-month deal, and what has history shown?
>> I would -- if I had to pick a number, I would pick approximately two years because we file it, it has to be reviewed, you will get intense interest on the part of the people who have been intentional l.i. Interested in it so far. What we will probably receive deficiencies in our application in some regard, which we will have to address. That's a very common event that would not be unique to this application. I知 sure the tceq will take everyday that they're allowed to review this application. We would then go through a process before the Commissioners to determine when to go to public hearing. We would then go in to begin the public hearing stage, which we would expect to be hotly contested. There would be a discovery schedule set out, which I would anticipate would last perhaps nine months. And there would be a hearing within a year. After that there would be three to five months of post-hearing activities, including a decision -- including final argument before the Commissioners. There would then be up to 45 days for the Commissioners to make a final decision. After that I would anticipate that whatever happens, especially if we are granted our permit, there would be an appeal. And the time period would continue.
>> Commissioner Gomez?
>> well, it did occur to me during the week that this is a real classic conflict between neighbors. And normally what you do when the conflict comes up, at least for those in the legal community, is that the two parties to the conflict go to mediation to try to work out the issues. My concern with that thought at this point is -- and I guess I need to hear from the folks when they address the contract, if it's better to have it in a contract that can be enforceable or is it best to leave it up to the two neighbors to just the issues and work something out, but then how enforceable is that agreement. And so I do want to protect the citizens. It's a question of how best to achieve that. And so I致e listened very intently for I think five years now, and I get it. And I guess the owe on there are questions in my mind about what is most enforceable to make sure that the parties to this conflict, all parties to this conflict, especially the two parties that I知 talking about residents and b.f.i. To reach some agreement on the issue is that if it will protect -- will protect you. I know that I wouldn't want to live close to odors. I know that we all need to do something about reducing the waste that we generate. And I知 willing to go there with recycling, and I think we recycle as much as we can, at least we do at my house, but that's just one person. So what else do we need to do to make sure that everybody in Travis County does? The zero waste, what does that mean? Does that mean that we get to the point of generating no waste? And so what are the steps that we take to doing that and how committed are we? And I agreed with a lot of the things that Commissioner Davis says. The only dilemma with me is we're all generating this waste. And I still have that thought, even though that was an early thought that I had when we started discussing this issue. And so it is a decision that we all share in. And so I think I want to hear from the citizens and see what is most enforceable to alleviate your issues and then how do we make whatever agreement we come to really enforceable, whichever route we take?
>> two quick questions and then let's hear from residents. One is when did Travis County and b.f.i. Start discussing a memorandum of understanding or agreement?
>> I think you have that.
>> well, I actually went back and looked that up, and I didn't bring that piece of paper with me. We started discussing an operating agreement almost three years ago. It then became a memorandum of understanding and has since been turned into a memorandum of agreement. And the memorandum of agreement has been I want to say about a year and a half.
>> okay. If tceq turns down an application to expand at the current location in northeast Travis County, what do you do with that land?
>> we have to close the landfill in accordance with our closure plan set out in our existing permit, which is what governs our operations at this time.
>> close to type 1 waste?
>> close to everything. Closed. Period. We will have run out -- when we fill it, we will have run out of authority to do anything else there.
>> but there are other options with the land. So you would simply close and vacate?
>> yes, after the post closure. We have a 25 year at least after that period of time where we have to monitor, maintain and keep the site in its permitted condition as a post-closure site. So we really can't do anything for 25 years. After that period of time, if we can demonstrate that it's a safe site, you can't just walk away from it, but it can be used for something else. And there are also other land uses you could try to implement even during the post-closure period. There's no plans for anything like that now, but we will consider those.
>> okay. Yes, sir?
>> judge, steve mobly with giles holdings. We are the property owner out there. To actually clarify what they just said. And it's true, if we conclude an moa with the county, if we don't conclude an moa with the county, we will be free to pursue a transfer station and probably will.
>> okay. Thank y'all very much. Don't leave. We may need you further. Now, for residents comment, there will be five seats up there. In my view I need to take the issues that were raised during last Tuesday's discussion and on do some follow-up information, gathering and incorporate those ideas into the contract. So today we're discussing basically if an agreement, what terms and conditions. Obviously if there's no agreement, then the terms and conditions are irrelevant. My recommendation to the court would be for us to take two weeks and decide what we will do on this issue once and for all. But that we hear from residents who are here today who have information to share with us. And that we have a discussion with tom knuckles in executive session when we reach executive session this afternoon. That will be to get legal advice. So no action in my view is anticipated today. In two weeks, though, the court will decide once and for all for residents, b.f.i. And our own sanity what we will do as to a memorandum of understanding with b.f.i. Now, should we start left and go right or right and go left? Let's start left.
>> I think I致e gotten permission to go first.
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Last Modified:
Wednesday, August 17, 2005 10:52 AM