Travis County Commissioners Court

June 5, 2007
Item 20

We will call up the item that we announced we would take up at two, the item number 20, which is to consider and take appropriate action on the expansion application and related documentation of bfi-allied waste filed with the Texas commission on environmental quality. A couple of preliminary things. In addition to the e-mailed comments that we distributed yesterday, we did receive today a couple. I think one was sent directly to member of the court. So I did not copy that one. That was from mr. Rimert. (audio trouble) we distributed to the offices during the lunch hour. In addition we received there bfi a couple of documents, a letter from mr. Motley, dated may 14, 2007, and we were told that this was distributed, from that office. Also there is a letter from mr. Motley to capcog dated June 5, 2007, that was distributed to court members also. Now, the Commissioners court released a draft letter to the tceq regarding the expansion application of bfi and advertised that we would accept comments today at two o'clock. We did get comments from several residents by e-mail, and those that were sent to me were distributed to court members yesterday, and the other two today. This is basically an opportunity for residents to give additional comments to the Commissioners court. We don't use the citizen's communication forum, but we basically have an open mike. Like karaoke. We have an open mike with six chairs and six microphones. Basically, we are here to receive comments. Our intention is to take action on some letter to the tceq today. And the reason for that is we will have three members of the court present next week and three members present a week after. And the deadline for tceq comments is June 8, as I recall.

>> 18.

>> June 18, right. So it is much better on an action like this to have a full complement of court members than a bear majority majority. Our goal is to stay as long as we can today. But to leave with some idea of comments that we will send to tceq. And depending on how much time the meeting takes, it may be that we give directions to the county attorney's office to make some changes to what we have been calling option 8 , and put those in final shape for signature either by the court or county judge on behalf of the court for the submission to tceq. So without further delay, the makes are are--the mikes are open. Any other preliminary comments from the court ?

>> judge, I would like to say this. I really do appreciate the persons coming out in the number that you have come out in today. The meeting that was held on March, sorry, the 19th of last month I think kind of demonstrated a lot of enthuse enthuse iasm and interest in the concerns that we are dealing with. The school was packed and I think there were of there was a lot of good testimony there from the children, from parents and all involved. And thank goodness they were all in opposition to the expansion of the landfill. I don't know who all is in favor, a lot seem to be hero posing. Whatever comes--here, opposing. Whatever comes out, I want you to know that commission Commissioner Ron Davis is going to continue to the oppose. My opposition is not going to change. Of course the court is here to list ton what you have to say. My position is not going to change at all. Thank you.

>> mr. Snider or ms. Bets, lucky that we know you.

>> I'm executive director of Texas campaign for the environment. I wanted to comment on your letter. I thought your staff did a very good job of laying out many of the reasons why there are problems with an expansion of this landfill. From the compliance issues, the land use issues, and various other issues raised. What I would encourage you to do is to separate out the comments that you make to the tceq on the pending permit from the stand that you may or may not take regarding the contested case hearing and your stand, whether it's neutral, for or against. At this point on June 18, all you need to do is make your comments you are about what is before you and all the questions that you raise that are complicating this issue, especially around ownership issues. I would encourage to you separate out those issues, wait to see what the response to comments is, because that could change your stand on being for, against or neutral. So I would encourage you to separate out those issues. There will be another stage in the permit process, when you can vote to take party status or not and voice your opinion. I think it is clear, or you would not have so many attorneys from bfi who have spent so much time billing their clients that what you do matters. We have been here, you know, week after week over the last five years because your stance matters. You don't have the final say on whether this permit gets approved or not, but what you do does matter. Generally the tceq does not take into account land use compatibility, for instance, when they consider permits. But with landfills, they do. And because that is seen as a local issue, land use use use--patterns, what the local government bodies say is significant to the tceq Commissioners. I have been up there when they considered landfill permit, when they have denied permits in part because of land use issues. So I don't think you should underestimate the power that you have with regards to this permit, because of the special circumstances of landfill permits that make them distinct from other kinds of permits. As your memo states, there are a lot of questions, especially with the recent amend ments, some of which I still haven't seen and your staff said they hadn't seen in this letter. Maybe they have seen them now. But there have been recent amend mentsto this permit application that you should wait to get your comments and questions answered by the staff at the tceq, and then make your decision about where you're going to go with this. That would be my encourage encouragement to you. Clearly, we have seen time and time again a lot of community opposition, not just from the neighbors that live nearby, but from folks throughout this county. The decision of where the official account stand is in your hands, and we encourage to you take that responsibility seriously because it does matter. Thank you.

>> thank you.

>> I'm joyce beth from the northeast action group. You have received some e-mail comments from me, and I just have an additional brief comment. I want to reiterate my thanks to the court for allowing citizens to have this opportunity. We do appreciate it. And I hope that you have had time to carefully ponder all of the points that have been raised in the materials that you have received from citizens. I'm frustrated that after all of the citizen input the court has received on the expansions of the bfi and waste management landfills in northeast Austin, the resulting statement to tceq refrom opposing the bfi 75- 75-foot lateral expansion. Why after stating all the problems that the landfill has experienced and caused in the community, would the court not oppose the expansion? Their application does not match what you have gone on record as saying that you want. So you should have no qualms about opposing. You should oppose the expansion until the contested case hearing is finalized because bfi has filed for more capacity than they promised this court and the citizens. Community members who attend attended the public meeting on may 24 regarding the ex explanks heard and saw bfi's presentation on how well the bfi management thinks they are running the current operation. The bfi representative even showed a slide of what they would like the community to believe the site would look like after a 75-foot vertical expansion. The slide not only inaccurately represented what the current site looks like but also showed such a benign future expansion that it prompted laughter by many in the audience. The anne --angry statements made by citizens about the impact was clearly no laugh laughing matter. At this point bfi appears to have convinced several members of the court that in spite of their poor record in the past they are going to be model operators in the future. That would be laughable were it not so devastating to the citizens of northeast Austin and Travis County. Take your queue from--cue from the citizens and the people who do not trust bfi. The citizens do not trust bf bfi and neither should you.

>> joyce, on that meeting, I may have misspoke. It was the 4th. Did you--the 24th. Did you hear anyone during the course of that meeting get up and speak in support of expansion ?

>> if my recollection is correct, there were no citizens who spoke in support of the expansion.

>> okey doke. Thank you.

>> .

>> good afternoon, judge and Commissioners. My name is mark macaffey. I do appreciate you revisit revisiting this issue once again. The city of Austin came out very loudly and is now in our corner. Than than--unanimously they voted to oppose both the bfi and waste management expansions and further more to close down by 2015 if they have space in the present permit to close down by 2015, November 1. Possibly when we were talking about a compromise in the past, there was some leg to stand on, in terms of as we well know, the tceq is not very responsive to citizens. We talked about take many times up here, et cetera, et cetera. This was maybe the best deal we were going to get. So we don't believe that is the case at all. And when we heard the actual deal that was laid out for us and saw the language of the deal that was laid out for us with the corporations to be out by 2015 November 1 we didn't like the language of it and didn't want to go there. Not one single resident that I recall, please let me know if I have forgotten somebody that spoke in favor, but there was not one sickle resident out there--single resident that spoke in favor of making the deal after we found the terms of the deal. So especially now with the city in our corner, we need the county to be firmly in our corner just as well. We can make a better situation in terms of waste in Austin and Travis County. This is going to be a major factor in how far we take our waste, how far that we advance the way we handle our waste in this county and in this region. To allow the status quo, just putting more on top of poorly located, poorly run landfill, landfill with the largest fines in the state of Texas, this area at least the largest fines, as you all well know, of any in the state, and to allow them to continue landfilling on top of what they have already got, when the citizens are so firmly united in opposition to an expansion, would be a travesty. I do hope that you consider lopping off, as robin was saying, the part that suggests that they will have your blessing if they cross their t's and dot the I's a little better. I just, until you hear back from the tceq, I see no reason to show your hand at this point. It's bad bad--poker, and so, I sure hope you will reconsider, you know, take a stronger stand. Take the same stand that the city of Austin has taken now just to oppose any landfill expansions in this area, which is what we came originally out here to start talking about. Appreciate it. Thank you.

>> thank you, mark.

>> mark, let me ask you. You don't trust tceq that much, do you?

>> well, the tceq has a bad reputation, yeah.

>> nor do i.

>> right.

>> but I do trust a legal team over here, and I trust something that says 2015. I don't want the expansion. You know, if I didn't, if I were asking for some quid pro quo, I think this would be an easy deal. Somebody is going to be wrong in this deal. Either tceq is going to miraculously change something, in the five years that I've been up here I feel pretty much the same way. We reach out and try to get some decisions from tceq. I can't get them and I'm not comfortable with thatright.

>> so I get pushed into a corner where I go, okay, what is the certainty or the closest thing that I have to certainty.

>> I agree.

>> the growsest thing I have I know you--closest thing, I know you don't want 75 feet. I don't want that either. I sure like the fact that 20 2015 is on a legal document and I don't have to trust tc tceq.

>> but that legal document has a lot of loopholes in it by our take on it. And a future Commissioners court could rule a different way. You can't bind the hands of a future Commissioners court unless they put it in the document in their deed of trust on the property.

>> I understand.

>> we have problems with the way it is being done.

>> and also, just to expand on that for a moment also.

>> sure.

>> the possibility of a re resticktive covenant on the property would place enforcement in the hands of Travis County but only if the covenant is rock solid, if it can't be terminated on a single party's decision. Would a restrictive covenant running with the land be something that we would feel comfortable with, that you would feel comfortable with.

>> I think we would feel at this point in time that our chances have significantly improved on winning this deal. As I was saying at the start of this, I think the big money, if you all come out strongly against the expansion, the big money is on our side. We're going to win. And one time when our odds looked less favorable, then I maybe could see, like I say, negotiating with them. So if we have to end up negotiating with them, if that ends up happening, then I think that that would be much, from my understanding, a much better way to go than the language that we have seen to date. Anything we have seen to date.

>> do you think the language of the proposed permit binds bfi to a 2015 close date?

>> you know, I believe that with their slick legal team they could bind things up in court while they continue to fill it up past that date, and by the time we got them to stop, we'd have spent a lot of money and they would be beyond their day, yes. If I were guessing that we go down this road, if I were guessing what is in our future, I would just almost bet on that, yeah. So, another thing that I failed to mention a moment ago, in this letter, you know, at the tceq meeting we were told that the main thing that the county has in its possession to take a difference is the land use. So, and he also further more said that historic has a bearing. And the bar mansion is not mentioned on the letter and we are within one mile and on the national register of historic places.

>> as a matter of fact, I think the technical specifications included with the application state that there is nothing archeologi archeologiel or historical.

>> I'm glad to know we are so valueless.

>> but for about 1500 couple couples, we have a lot of value. Among other clients. So, Austin unfortunately doesn't have have many of these places left. We need to hang on to the few that we have. If you knock out the under underpinnings that keep an old place like this alive, they don't get repainted, re reroofed, they fall apart. They need a lot of maintenance, I'm here to tell you. This town is not from gotham gotham. So.

>> well, mark, I wanted to assure you and everyone else that I think everybody who is in here has, I've been here for the whole time, I think six years. Listening to what each of you has said. I want to assure you that I have listened very carefully and that I remember what you all have said in the past. I think I remember telling you, as well, that I would have an open mind up until, you know, the decision is made. Because it's a tremendous decision. A very complex decision. If it were easy, obviously, I think we would have made a decision sometime back. But it's rather complex. It involves the entire population of Travis County. But I think that, I understand your position, and I think I have probably walked in your shoes many times in terms of frustration of feeling that people weren't listening to what I had to say or my community had to say. I fully understand what that frustration feels like. And yet, I can't help but come back to the fact that we are all in this together. The entire community in Travis County, this is one of those issues that ties us all together. I wish that we could re reeducate ourselves, and I really look forward to that, to where we won't throw away as much stuff as we do, than we change our way of dealing with things. Sometime back someone said that we had indeed become a throw-away society. And so we need to back off of that, obviously, because this is an issue touching everybody in such a way that only we can control the amount of waste that goes into landfills. And so that is on each and every one of us. And so, it's given me lots of room for thote in weighing issues. But I did want to assure you that I think I know what your pain feels like. (change in captioners). Captioners).. Do you think this particular landfill site has the -- has the -- the ability to -- to raise the standard on the disposition of -- of waste?

>> you know, history has a way of repeating itself. Every year they have water pouring out through the -- through the finance into the drainage ditch on the side of the road with trash in it, heading down toward lake walter e. Long. You know what's going to happen after they get their permit. If they can't control it now, they have been promising us that for years, for decades, maybe control it. That they are about to get it controlled. It happens again. I have to say their reputation precedes them. This is not the only site they have problems with.

>> in regard to the supplemental technical report, I found the site, no known archaeological, historical and sites with exception

>> [indiscernible] qualities adjacent to the site. Of course adjacent to the site is probably.

>> touching it.

>> the wiggle room.

>> yeah right and the tceq has a shorter distance than really what is necessary. So many of these regulations were set up in the past when landfills never got this gigantic. This is, you know, like a regional airport that you don't have the same parking lot for a regional airport as you do for a local airport. These things are gigantics. We've an elementary school school within half a mile, a daycare center within a quarter of a mile. This is not what you want for your buffer. You plan -- we need to plan these kinds of facilities out. You're right. This is something that everyone participates in. We all throw away trash and that's why it is such an important problem to deal with is because it's magnified by that many people. If there were just 10,000 people doing it, it wouldn't be nearly the environmental problem that it is.

>> all of the people who will continue to move here. And buy homes.

>> that's right. This -- the way to get recycling up is to force these folks to get a new place and then to force it to be done correctly. They have no room out there for recycling effort. They have no room to set it up. They could have bought buffers, but they chose to buy land and expand it to it instead of buy buffers. Now, there's another landfill in town and they have gone around buying buffers. And, you know, these guys, they will only do what they are forced to do. They are not going to do anything.

>> well, mark I hear where you're coming from. Again I just want to show the public all of these e-mails, there's more of them, that's asking us to -- to oppose this expansion application, for this --

>> absolutely. I want to cut in real quick and say how appreciative we are of you being always, absolutely firmly in our --

>> you know, it's very clear in my mind there are some things that you just don't compromise. There are some things that you can't compromise. This is one of 'em. We hear in the testimony you hear bluebonnet elementary school, that's a terrible situation there. I don't believe those kids would

>> [indiscernible] that, nor do I believe the parents of those children would -- would lie and say that -- that those kids are restricted from recess because of odors and things like that. I don't think there's a school here in Travis County that has to endure what bluebonnet elementary school has had to endure, I don't think that there's a school in Travis County that would put up with what's being put up here now. Casis or any of those big high profile schools, the parking lot from here to wherever. Folks coming in here protesting this type of expansion and also the owed --the odors that are generated from this particular landfill. All of these violations, all of these citations are encompassed in this letter. It appears to me just based on those performances, those things, the testimony here from the community, the neighborhood groups, the -- the growth potential there, the businesses, samsung, many neighborhood groups, these things, it's -- it stands to reason why this ought to be exposed -- this expansion should be opposed. There are some things you don't compromise, this is one of them. Probably many more. I know this is one when it comes to the health, welfare, public safety of our citizens, we shouldn't put anything else in front of that. Regardless of who it is. This person may have to be a victim of circumstance because the circumstances that according to the sources and according to our data, according to what we have here has unveiled and exposed to all of us by letter. There's no way in the world that anybody here should walk away supporting an expansion of the 290 east landfill of b.f.i. There's no way in the world someone should support that. If we don't say that in this letter, that's not said here,, it should, we should send a clear message to tceq that we oppose the expansion of b.f.i. Landfill. I'm going to make a motion to that after a while, there's nowhere in the world that I can support, anything from the type of constituents coming from all over the place, saying that this is not a good idea to allow them to expand. Now, what happens down the road is something else. It goes before the tceq. But I think Travis County's position ought to be oppose it right off the top.

>> well, I appreciate appreciatr clear vision of the problem. Thank you.

>> three or four years ago, I think that I learned from y'all, correct me if I'm wrong, that to our acknowledge tceq had never turned down an expansion application. Do we know that to be true.

>> no.

>> I believe at this point that they have?

>> turned down new ones. I don't know about turning down expansions. I could research that for you.

>> three or four years ago when I was introduced to landfill operations and pros and cons, that -- we heard that a whole lot. We also heard residents really complaining about the way that the two in northeast Travis County performed. Odors, trash, mud on the road, et cetera. Our first assignment I thought was to -- to help them improve performance. So my question is do you think that b.f.i. Operates better today than it did three or four years ago when the county got involved in this?

>> you know, probably I would say just the same answer I said a moment ago. They do when they are asking for a permit to expand. They always get on their best behavior. They plant grass on the old closed part of the landfill. You see green up there this year, don't you? It ain't like that very often.

>> the answer is yes, but they have another motivation.

>> let's give you a chance to finish. Then we will hear ms. Mcafee.

>> which one

>> [laughter]

>> melanie first

>> [laughter]

>> I want you to know she's here with severe back pain and probably visited upon her by waste management and b.f.i.

>> [laughter]

>> the stress from such anyway.

>> let's see, I mentioned that I think that bar mansion should be listed in that letter as well because I think we are worth saving for this community and --, they should not warrant them any special consideration, there is plenty of landfill space. If we were worried about landfill space it might be one thing, but we are just not worried about landfill space in this community. We have got plenty to go around. What will help with the recycling effort is if we start getting a little bit more of a shortage in landfill space. What will hurt is if we get a glut of landfill space in the area. Not only does it hurt recycling efforts, but it ends up meaning that the communities that get a glut of landfill space become importers of waste. It's happened all over the nation. Suddenly they get a big glut of landfill space in pennsylvania, pretty soon all of the waste from new york is going to pea. Pennsylvaniaians get fed up with it, a glut of space in virginia, they are off barging it down to virginia. Distances mean nothing. The waste from hawaii is taken to idaho. I didn't get to listen to all of what robin said. But the landfill space in Texas, there are some landfills with 2,000 years left on their permit. That's obnoxious to have a 2,000 year lifetime on a permit. What on earth? Is that some kind of great, great, great grandfathering -- I don't want to counts the greats. That's great grandfathering, though. So we need to stand up to these corporations. It's time to do it say flat no. No we will not put up with the waste in this county being done so poorly.

>> ms. Melanie mcafee.

>> I hadn't planned on coming up because I can't move. A couple of comments were made that I can't let go by. Two things. One is a comment that Gerald made regarding that the best deal get the time certain that your attorneys have looked and seen -- have advised that -- that it can be -- that it can be for sure. That there's no way they can get out of it, whatever. I guess that I just am really baffled that -- that although the community has said over and over that they would rather you do nothing than to allow that date with the amount of capacity on the permit, that question has been asked of the community many times. So I just don't understand -- it appears if you are doing that for the community. Yet the community doesn't want it. We would rather you do nothing. So -- so I don't know where you are going with that. It's hard for me to understand. I guess I had hoped to maybe hear some discussion today to try to understand that. The -- the other point is that a point that Margaret said about -- about, you know, we all had to be responsible for the trash. I have spent so many hours looking at this zero waste concept. And more landfills, just every single time it comes back to stop permitting more landfills. That if we want to do something about how we deal with trash we don't make more landfills. You are hurting zero waste.

>> ms. Mcafee is it really a matter of whether or not we permit more landfills or what kind of and what standard of operation we allow landfills to operate with?

>> it's both. You have two things going on. One is that -- that landfilling is cheap, so these other industries don't have an opportunity to get off the ground. And the other is that it's not done right and you can't have the eco park and do things to where these things would happen naturally faster, easier. So it's a two thing. So you are defeating it on two levels. And it also was discouraging to me that, you know, you say that you have looked at this issue a long time and you really want to do the right thing and yet at the -- only Ron Davis was there at the public hearing. You know, I found that disappointing that here we're neighbors in the community and outside the community talking about what to do with this big issue before and if you do have concerns, you know, why weren't you there at the meeting?

>> I did go to meet with that -- professional, I can't remember what his name was, the speaker who came out. I spent long hours out there listening to everything that he said. So --

>> well, to hear the children, to hear fabians children and what it's like to be on the playground, to hear it from the people who are experiencing it, I think that you missed, you know, something important that you needed to hear.

>> well, I read all of the e-mails, you know, I can -- I think that I can imagine what it's like.

>> well -- maybe so.

>> ms. Anne mac afee.

>> thank you, judge. And members of the Commissioners court. To me it was just appalling to hear, you know, I had heard a lot of other testimony about the bad odors that people have experienced and how many times they can complained to b.f.i. And waste management about the odors and gotten no response. But this is the first time that I had ever heard from the parents of kids who go to bluebonnet school and the kids themselves. Some of those kids got up and they told about how awful it was to smell those bad odors. Worse than that was that they didn't even want to go out and play on the playground at recess because they said that the scavenger birds that flew over the landfill would swarm across their playground and leave a lot of droppings and so that was needless to say a very unpleasant situation which repelled them enough, you know, I've never been in a place where kids didn't want to run out and play during recess, but this was apparently thanks to the poor operation of b.f.i. And waste management, that's exactly what's happening with bluebonnet school. The other thing is I remember that -- how surprised I was when scott mclellan was still the white house spokesman, when he had his wedding in Austin, he had his wedding reception at tds place. You know, to me that's just amazing that the place is that nice, they have gone to all of the trouble to butt a buffer around it -- to put a buffer around it, have exotic animals there. They care enough to really make a point of having a -- an environmentally safe place for our trash. So they have standards, they care, they -- they made a point when they originally set out to -- to establish the Texas disposal system, they made a point of getting a geologist to find the right kind of land. They also have buffers of all kinds and every night they put dirt on top of the trash that's been brought in during the day. They don't have the problem with the birds swarming. But also that's what -- that's what b.f.i. Is supposed to do, they are supposed to cover up with dirt every day. They don't do it. The big problem I think with b.f.i. They just -- people can't trust them, they don't feel like they can trust their attorneys who write in loopholes for them, over and over again, when people came up to testify out at the manor school hearing, it was a matter of saying, you know, explaining their people's reaction, what their -- what they have tried to accomplish talking to b.f.i., over and over and over again, they found out they could not rely on what b.f.i. Said to them. They do not trust them under any circumstances. To me to me you cannot give them this kind of a permit. If you keep them where they are, they have got room right now, with nothing further to expand for several years longer than now. So they have got plenty of room, space to expand and so they don't need the extra 75 feet. If you give them the extra 75 feet, they are going to bring in a whole lot more trash to fill it up. Anyway, I sure hope that you all will take another look at this and decide to -- to shut them down as soon as possible. Thank.

>> ms. Mcafee, do you really think that we -- that this Commissioners court can shut them down?

>> I don't --

>> if we could shut them down, you may have -- an opportunity here that that might have been voted on three years ago. Tceq is the permitting agency. We don't --

>> right.

>> we can't shut them down.

>> I agree with you. And your point is very well taken. I just think that you strengthen the hand of the people who would like to see them leave in 2015 like they claim they will do, like they have promised to do verbally, but in fact I don't expect that they will do it. Unless they are put on a short leash and the only way that's going to happen I think is if you all will do what the Austin city council did, they voted unanimously to -- to try to put them on a very short leash, to oppose the landfill expansion. That will strengthen the hand of the people who go up before tceq to make the appeal to stop the 75-foot expansion from happening.

>> when I spoke with the lady that sent me one of the e-mails, aim sure she would have been representative of the people that would have been at the meeting in may, I asked her, I said are you aware that b.f.i. With stay where they are until 2011 or 2012. She wasn't real sure of that. But I said well they can. I said they can. She said okay. I said here is the gamble that I'm taking. We can either oppose them and not get in 2015, what I fear the most is that they will stay until the coming. Because there's one thing that's clear in the industry. If you can't cut a deal with them, I think that tceq is more than likely to -- to let 2015 blow past and -- and at least got the lady to say oh, well okay Commissioner, I'm not so sure that I like the expansion. I said nor do i. But if the quid pro your that I'm getting -- quo that I'm getting is that I think that I have a fairly decent better than decent chance legally, if they put 2015, but she didn't understand that. She said well I can see why you are at least thinking the way that you are thinking Commissioner. She said I didn't know that. I think that most people in this community, I'm not saying that the people that came to the meeting are wrong in the way that they feel. I wish that I could miraculously do something with the odors, people could go on the playgrounds. What I fear the most is if I don't cut some deal with them, somebody is going to come in 2018 why didn't you cut a deal so that they were gone in 2015. This is a deal that you all aren't wrong, we aren't wrong, however we go. I'm put in a spot where I'm trying to make an intelligent decision and it's a spot that I don't -- I wish that I didn't have to make. It will be easy, whenever it comes time to vote the reason that I will vote to not oppose this thing is because I feel like I can get 2015 and on a page and another three years I have more certainty in that.

>> can I respond to that Gerald.

>> I know you all don't trust them. I can understand why you don't trust them. If I lived out there I would probably feel the same way.

>> ms. Mcafee, we will come back to you.

>> ms. Anne mcafee, let her get done. Second round for ms. Matter, then ms. Oceveda. If you are down here on this item, wish to give comments come forward. Two chairs available right now, as these speakers conclude, if they would vacate their chair and give others an opportunity to come forth we can give others an opportunity.

>> I just want to say that I agree with Gerald Daugherty that cutting a deal is a good thing to do. But only if you can depend on their honesty and integrity. You can't do that with this particular group of people.

>> ms. Schnieder, ms. Aceveda, back to ms. Mcafee for a second round. Come fort if you wish to give comments during this discussion.

>> I have a few comments. Commissioner Daugherty, the person that you spoke to the phone may not have known what the terms of the deal that you have been considering is. There were three meetings in the summer of 2005, judge Biscoe was there at one or two of them. Commissioner Davis was there at I think all three of them. And at those meetings the deal was laid out in full. Mr. Gosling laid it out, different people laid it out. At each meeting when the deal was laid out, the community voted. There was not one person who supported the deal when it was laid out time after time. I also want to remind you of another community that tried to cut a deal with b.f.i. They felt -- they were in a similar situation. They didn't want a new landfill with b.f.i., but they felt they could not win if they flat out opposed it. This is in donna, Texas. And they got a deal to have the landfill be of a certain height. I'm -- I don't know that -- the particulars off the top of my head. I have it in my files.

>> actually, it was a date certain closure. Their deal was for a date certain closure, I believe.

>> it was -- it might have had a date certain closure, but it definitely had a height limit. B.f.i. Agreed to that and the big concern was that there -- the local folks had come together to form a water district because there were water issues, this is in south Texas. They formed a deal where they would only go up so high. This was very close to this water reservoir. It was surface water that would be spread for people and to agricultural uses. They got the deal with b.f.i., the local governments were involved with the deal, and including the Commissioners court, down in hildago county. B.f.i. Broke that deal. It is still in the courts. Mr. Gosling probably knows, I believe it went to the supreme court, the Texas supreme court, it's been in the court of appeals and in corpus christi, b.f.i. Does not have a history and they continue to pile it up in the meantime. And of course -- they actually said in the court because the jury voted against them to uphold the old agreement, there were discussions about how they were going to take all of that trash down because they went over the limit. They said it would cost us too much. They only had a $5 million bond. They said it was going to cost them too much to take it down and comply with the agreement they made with the community. So you -- that is why people do not support entering into an agreement and maybe they didn't do all of the legal things that your legal team might do. But this company is -- has a lot of resources when it comes to this. They are the number two trash company in the world. They unfortunately don't have a good reputation because of all of the deals -- because of all of this history of poor landfilling operations and breaking deals with the community. I wanted to respond to judge Biscoe to your comment about one of the things that kind of set you on this journey was your knowledge that no landfill expansion had ever been denied.

>> not my knowledge, I heard that from residents.

>> I want to research that more fully, but two years ago we did have an experience where a landfill was planning to expand and the staff had granted the expansion and they had granted it not even as a permanent amendment. As a permanent modification. Which we had a lot of issues with. It wasn't b.f.i. I don't want to mislead you. It wasn't b.f.i. But this is -- but the Commissioners voted in favor of hearing a motion to overturn that expansion of an existing landfill. In the end, we cut a deal with that landfill company. But they were willing to grant the motion to overturn and I believe in my heart of hearts that they would have voted to deny that expansion. And that was only two years ago. We have been working very intensively, actually since getting involved with these neighbors, Texas campaign for the environment has made this a major effort on our part. Before we have been dealing with air pollution issue. Some of you will remember on alcoa that's when we first started dealing with the Commissioners court on environmental issues. We've been educating the Commissioners about these issues, bringing the neighbors to meet with them, much more. I think there's a much more interest in these issues, they have been paying much more attention to them than they did in the past. We know that it's a gamble, Commissioner Daugherty. We know there's no guarantees. Either way you go. If everyone opposes it, we still might lose. If you cut a deal, many of us believe we are still going to lose. Because we can't trust them. Because 75 feet is too high of a price to pay for the deal. I wanted to really hone in on Commissioner Gomez's concerns, everyone has to own this issue, I could not agree with you more. When you have landfills in Texas, more capacity than any other state in the country right now. It's very can cheap to lil here in Texas because -- it's very cheap to landfill here in Texas, imagine that you are putting garbage in a hole, more likely on a hill these days, and covering it with dirt. What could be cheaper than that? Actually something is cheap are than that, which is to not cover it with dirt because actually dirt is somewhat expensive. So b.f.i. Does not cover it with dirt all of the time. In fact they use alternative daily cover that's another example of how they are cutting corners because dirt six inches of dirt is a lot better than a lot of these alternative daily covers. Sometimes they just use tarps like in Williamson county they just use tarps to cover over trash waste management at the Williamson county landfill. These companies cut corners all the time. Most of them do. Luckily we do have another model in our community, doesn't have to be done that way. Whether quoferg it with six inches of dirt or daily cover, it's hard for recycling to compete with that when landfilling is so cheap. If we really want to take the responsibility of our trash, we have to stop this -- this -- this cheap method of landfilling. Because what it does, it doesn't take into account all of the other costs of the pollution that is happening whether it the odors, long-term problems with water quality, runoff, any leaks that might happen, those costs are not factored in when people are deciding are we going to recycle or landfill, you look at the immediate costs and the immediate cost it's hard to compete. When it so cheap because it's done so poorly. If we really want to take responsibility, many of us serve on a long-term task force that the city has set up. We are going to hire a consultant. We have met with the consultant. We want to go down that path. If the county does not stand with us, we will not go down that past very quickly. Having too much landfill space, that what we will have, is a drag on choosing the right path. Communities that have chosen to really reduce waste are doing it in part because they know that there are limits to the landfill space. If we want to do that and that that responsibility, I talk to Travis County residents all of the time who are frustrated because waste management just like week stopped recycling in their Travis County neighborhood. They won't provide it. We have to require the companies to provide recycling. We have to require apartments to do the recycling. Right now unless you have 100 units, there's no requirement for recycling. You have a great person on your staff that does an incredible job of recycling the county's waste. We need him to be involved with this task force and make it a region-wide effort. Starting at the city, it needs to be region wide. If that's the path, I think it is where we all want to, please do your best to not create the drag on that. That's what we want is inspired leadership from you.

>> thank you, ms. Schnieder.

>> thank you.

>> mr. Oceveda.

>> thank you, judge. I'm here with the Texas environmental democrats, representing that organization. Just a quick part that I will go back to, sierra blanca, legal defense fund were highly involved with that. It took years to come to a conclusion. So Commissioners we do have a major concern with -- with the -- how we handle our contracts with waste, whether it's county waste, city waste, any waste. Sure, we would have to make sure that all concerns are met. That -- that our Commissioners and our city -- city council members do the right thing for the right reasons. Robin mentioned the -- a whole bunch, I tell you what, there's technology out there that -- that these folks don't even attempt to use. Does it cost us money? Yes it will. And there's no question in my mind that it costs us money to go into the -- into the better ways of disposing of our wastes. But we are looking at the future. We are looking at more people coming into the area. Certainly we are going to put a label of it, it's going to be a regional type of site. I don't think 290 will meet it. It won't meet our expansion needs that we need up there. I agree with Commissioner Daugherty that perhaps right now it's not the best of the things that we could hope for. However, I mean we don't know what the future is going to hold for us. Okay? Do we trust tceq? Absolutely not. I agree with you, I agree with all of us here in this room that tceq is not to be trusted, but some of us don't trust attorneys either, whether they are your attorneys or their attorneys. So -- so yeah we have to see if -- if the word is is is really what we are after or "or". In a particular application. I just want for the record that I compliment Ron Davis for making a clear stand that we should go forward through the tceq, Margaret, Gerald, sam, sarah and ron, say look we agree that we have a problem. Which would be unanimous in saying no expansion to this. Saying we shot them down. But -- say we shut them down. We are going to have to use somebody somewhere's, but we don't need to go and build a mount everest out of already a height higher than mount bonnell out there. I will leave with you this and in our culture we have a great saying, mi casa, sucasa. I would ask you to test that water soils. If we had a salamander that we could turn out there. It wouldn't survive. This room with would be packed with salamander lovers. I happen to love salamanders. Likewise, we don't have a canary out there that can tell us this. But certainly pollution is taking place. If I have learned anything from working at i.b.m., you have those test wells. And test that water resource because it is our water. And you are our wise

>> [indiscernible] and we ought to treat it

>> [indiscernible], I appreciate it, sir.

>> thank you.

>> mr. -- ms. Mcafee do you remember the comments that you had a while ago?

>> just barely, it will be brief. I remembered at the question period in response to Gerald, representative mark strama was there, he was asking many good quality questions and one of the questions he said, asked was exactly what you just said is, is there a chance of defeating the landfills and got into this whole matter about the deal and is there a chance? The tceq representative that the land use matters were very important, were a big part of the decision, and landfill applications had been overturned. So that was his response back to strama. So I think what the landfill operators it feels like have been hammering on you guys is that it can't be stopped, it can't be stopped. But I -- I think that it can. And all -- second comment and then I will finish is this summer, I take issues of -- of bio cycle that I read every month about the future of the landfilling and -- and composting and recycling. The future is that our waste will turn into our energy streams, that there are wonderful articles about exploring how we can turn our waste into bio fuels. There are things that have not didn't bun that are on the horizon, to continue this old school of just trying to hide our trash is not the wave of the future. So -- so that is not discussed, but it is out there.

>> that's it, thank you, I will try to get out of my chair.

>> let me throw this out, it hasn't come up yet. I know so so much of the public comment, it was such amazingly rich public comment. Really, really fruitful stuff. One of the comment, just one of many of the extremely useful comments that came out was that we had left off one of the capcog conditions, there were six, not five. And just y'all's dogged and unwaving pursuit of this we really do have -- we really do have the power, I don't want to hide behind tceq's reputation or opinions of staff attorneys who work for us. It is our decision. If we need more evidence of how much power this decision has, we need only to look at the audience see who is in attendance. We have attorneys, we have consultants, a lot of folks in regular attendance from b.f.i. Making it very clear that that decision does matter to the tceq. Otherwise they would not be here.

>> [indiscernible]

>> no, anne.

>> are you mr. Martinez.

>> yes, sir.

>> my name is --

>> this is the last call. For those wishes to give testimony today.

>> my name is david martinez, I would like to ask you to -- to oppose any contract, 75-foot expansion at the b.f.i. Landfill s. I think that -- that you are right, it is everybody's responsibility on this issue. Including b.f.i. I think that -- that they have been in their business for a very long time. I think they know exactly how long it takes to get a landfill site started. To say this date snuck up on them, they can't do nothing about it, they need more time I think is just another way of them getting what they want. I think pretty much everybody agreed 75 feet is more than they need to get them to 215, which is a very good compromise I think. I think that by denying them -- obviously you guys do not make the decision on their permit. But by you guys saying or asking them to resubmit their permit, ask for a 20-foot scpaks by 2015, then by strongly opposing that shows their unwillingness to compromise in maybe what they really want to do. I think they are sending a message basically by not wanting to compromise to what we want. Their permit lasted what to 2011. We are asking them to go to 215. Instead of 75, 20 feet, which would get them to that point, they seem to not want to do that. Why? Why do think need 75 feet if they don't plan on using it?

>> thank you.

>> thank you. Yes, sir?

>> judge, Commissioners, brad dugas with allied waste, district manager for south central Texas district of allied here in Texas. I'm going to apologize to you right up front. I just got here from corpus christi so I didn't hear all of the comments that were made and that I could report back to you on and try to clarify if I can. Paul and -- and paul gosling our attorney of record, ray shaw the attorney of record for the permit application. They have been here for the whole time, they can probably answer it. There are a couple of items that I can address and will address in regard to the 20-foot incremental expansion permit. That was brought up first at one of the public meetings held at bluebonnet elementary school from the northeast action group. We addressed that with them there, that -- that their compromise that day or proposal that day to us was to expand the landfill, seek a permit only to expand 20 feet at a time until we could find a green field site and abandon. We can't really do that. It's a one-time deal. It's a one-shot effort to get the permit amendment. This amendment has taken us three years to prepare and it's probably going to take a contested case hearing at this point in time of another year to get through that process. And -- 20-foot lift would probably give us about 18 months, ballpark more or less. We just couldn't go through that process over and over again, we would be right back before you one more time, asking for another 20-foot incremental deal. Expansion. We are asking for the maximum capacity that we would possibly need to -- to get the 2015. In fact we think that it's probably going to be really close, and possibly short of November 1st of 2015 at today's current intake of waste there.

>> you are asking for a one percent increase per year, correct?

>> that's what we are indicating, judge, Commissioner eckhardt in regard to -- we are not asking for that. We are giving our best guess. We've had meetings with many of you individually. We are giving you our best estimate of what's coming in there. That's our best level of what's going forward, probably get us at 2015. Therein lies the comment that we would probably be out of there before November 1st of 2015. If it followed -- today's volume intake is probably running in the 3% range from a year over year standpoint based on numbers from 2004 to 2005 to 2006 growth of volumes that are coming in there. Isn't it dependent on you, isn't it b.f.i. That decides how much they are going to take, how they would dispose of it? So you can say it's our best guess, we don't have any control over it. Or it could be a 3%. Isn't that increment dependent upon your practices?

>> no, no, judge, Commissioners eckhardt. That depends on our customer base, the citizens of Travis County and the capcog area at large. Actually, I was reading some documents during

>> [indiscernible] the law so -- breaking the law of reading and driving at the same time on the way up here. Saw an item that said that in our -- in our 1994 subtitle d element that this landfill would go to 2016 at that time. That was at the intake at that time. There's been substantial growth in the area here as well that has increased the volume intake on what's going to sunset farms landfill as well as other landfills in the area, the waste generation at large has gone there. We don't dictate how many trucks come in in a day. It's just a customer base of where they are going to dispose of their waste. A large portion comes in on a daily basis is our trucks.

>> tceq -- the commitment is November 1, 2015, you run out of capacity before that date, you just have to close early.

>> that's correct.

>> that is correct.

>> who came up with this date of 2015?

>> I have never heard any community pepper say they have agreed to a 2015 daylight. Of course that's something that appears that came through a whole organization set aside from this, I guess capcog. And it mentioned it several times that, you know, some type of -- of I guess good faith effort and some promise of compliance from you guys that you look at the -- at the conditions that were set forth, conform actually through a capcog letter dated August 23rd 2006. That was some kind of dealing between you and them stipulated in this particular letter, but I haven't heard any resident say they have agreed to a 2015 date.

>> judge and Commissioner, if we can answer that. I haven't been here through the whole process, paul has been. I know several iterations and of several different dates. I think that particular date has fallen out through all of the negotiations to date. I will turn that over to paul to answer more eloquently.

>> for the record he's not an attorney, he's an engineer, he wanted me to clarify that. Commissioner Davis, that date came out of the negotiations in the never finalized memorandum of agreement. It was a date that we were forced to by the negotiations we had with the county by the county.

>> negotiated by whom?

>> the legal was saying Biscoe, the Travis County judge.

>> [multiple voices]

>> john kuhl -- let me finish. I have been patiently waiting all day. The date we started with was much longer than that.

>> 2025.

>> I remember we stayed in the 2018, 2019 range for a long time. This Commissioners court, including the precinct 1 Commissioner, numerous times looked at that date, knew bit, by a 4-1 excluding with the Commissioner of precinct 1 voting against it, the majority of the Commissioners court basically approved that date numerous times over a three-year period. That the latest vote was taken up to probably the fall of '06. Capcog got that 2015 date from Travis County. They didn't come up with it on its own.

>> my point then -- let me get to my point then judge.

>> let me -- I just -- let somebody else on the court have a say, too, Commissioner Davis.

>> I have some questions, I haven't finished --

>> that was the answer. Impart of the answer and the Commissioners court is too.

>> let me --

>> that's the deal for three years the Commissioners court knew about the date. By a vote of 4-1 approved it. To be honest you voted against it every time it came up, you knew about it for three years. There's plenty of documentation, official records that contain that date. There's no surprise there. No surprise either that capcog got the date from us because the Commissioners court on two or three occasions approved my taking that date after capcog and trying to get their agreement on it. This doesn't start yesterday. It started three or four years ago. We started with the date much longer and negotiated down to 2015. We being the -- a majority of the Commissioners court. I -- I accept full responsibility for that, I was trying to do the best thing. But each time -- each step of the way the Commissioners court approved it. By more than 41. Now, I am on the Commissioners court, I'm simply one vote on it. You voted against it every time, no problem about that. Clearly that is the date that we have been dealing with now, it's got to be three or four years. We arrived at that date with b.f.i. Starting higher, Travis County starting lower, basically working up to it.

>> my point, though, judge, thank you for that explanation. I appreciate it. My point that is the community, I never did hear them agree to any arrangement such as -- I'm basically speaking from the community's point of view. Because I feel that that's who I represent. I'm not here to represent inappropriate land users that appear to have caused a lot of havoc and disorientation of a community. Now we have been through this song and dance several times, I mean, from jump street. And I can go back and talk about a whole bunch of historical things if we want to go into history, but I don't think that will merit anything here today. But what I am concerned about is the money that we had given -- when I submitted by information to tceq option b letter, that asks for immediate -- immediate shut down of your operations there, based on the -- the b letter, of course the court didn't approve that, but it was based on the -- the circumstances of events that had taken place, number one, looking for green fill sites, number two, the county wanting to assist you financially. In locating and looking for green fill sites. Those two things, there never was any indication of -- every once in a while you report to us and learn more there was no green fill site. Number 3 that take it toes three to five years according to sources to -- to locate and get permitted and get a new green fill site as far as going through the permit process. We have been struggling with this thing since early 2000, 2001. It appears to me there's been a sufficient time with the complaints that you have received, veetions, all of the other things -- violations all of the other things going on out there, an effort could have been made, maybe it has been made, but I do know that the situation still hasn't improved. So those are basically my concerns, based on those things. When I say 2015 I know that it's a date that, that the public community didn't agree on. This court may have voted on, but not by the will of the people. Now the will of the people that's asking this question -- they would like to see that we oppose your expansion and again let's say, let's look at the expansion -- let's say they deny the expansion or permit, let's say that happens, what time are you willing to start looking for a site to relocate from the site that you located now?

>> judge, Commissioner Davis, we continue to search on an ongoing basis for a new site. It's been an ongoing process and just been unsuccessful today. Finding a piece of land that is close enough to make -- make geologic technical sense for us and economic sense for us to -- to come to closure on a single property holder out there with recent setback requirements and -- in the new regulations, the property has gotten bigger. The requirement for that. I will tell you that we have a success story. I came in about the time mr. Schnieder was talking about a situation, unfortunate situation in the valley. Whereby there's a disagreement. It's been resolved. We have worked with the community for down there. In particular the county and recently received the uncontested permit for a 608 -- well -- 6,000-acre, 600 permitted for about 100 million yards in the reed grand valley. We have done -- in the rio grande valley. We have done and reached out to be a good neighbor.

>> that wasn't the la donna landfill, that was a 131-acre landfill in donna, Texas that's a separate issue.

>> > we have four years of life let at that. But the process that I'm getting to in regard to that comerkt is that we have been pursuing additional -- Commissioner eckhardt, we had several properties, all of them eliminated. A long drawn out process, I'm going to say probably a 15 year process before we found the land and were able to pursue the permit and get it. We were ultimately -- ultimately successful in getting that. The process doesn't just fall out of the tree so to speak. We are pursuing it here. Certainly isn't the valley. In the capcog reason. We continue to pursue that site on an ongoing basis, we are looking at it now if the tceq denies this, we will continue to look for it. We want to be an economic provider of solid waste services in the Travis County capcog area. In regard to -- I think there was a monetary search, I don't know -- I really don't know anything about that.

>> well paul has been here long enough, he probably recalls about the money that we set aside. This Commissioners court, in fact I made the motion in fact if I can recall, maybe I didn't, I seconded or made the motion in one of our budget requests to -- in fact we had a solid waste reserve I guess for a location, to help and assist you in finding another site because of the havoc that's been caused out here. 290 east landfill site. $100,000. It rolled over and we lost about $2,000. But it rolled over at the end of the day $98,000 had been left on the table because of the fact that -- that I don't know what really happened to you. In other words it was there to assist you for relocation for the green fill site. When I saw that. Of course that raised another red flag for me. Do they really intend to go anywhere.

>> is there a response to -- is there a response?

>> yes. There's a response to this. Commissioner, I'm going to respectfully remember it differently. I believe $100,000 was set aside for the county to use, for whatever purposes the county felt it was appropriate, to use it for. That included a capcog solid waste summit, I believe the money was used in part to bring the recycling expert that ms. Mcafee wanted. --

>> [indiscernible]

>> [multiple voices]

>> to offer to assist you in a relocation site. But you never did --

>> I do not recall that. I do not believe it happened that way. Maybe the other members of the court would have a better recollection.

>> I think that's the way it was.

>> do you have any additional comments, let's let them finish, then

>> [indiscernible] has comments. After that we will let the court have any comments court members have. I will have a few. Then we need to go into executive session. I have three or four legal questions I would like to have answered. Then we return to court and if there is a motion Commissioner Davis has requested the right to make the motion. We will recognize him for that. Move on from there, okay.

>> all right.

>> if the money -- is the money -- if the money is stale available Commissioner Davis we would like to appeal for some of that.

>> I don't think

>> [laughter]

>> I have got to jump in there. That money is not available.

>> [laughter]

>> it was there for two years, though. Two years. And we never did get a chance to use it to assist you in moving, you know, in closing a new location. Didn't hear from ya.

>> the comments that I think that I would like to address to the court include the concern that we have heard over the past several months and years about enforceability of the agreement that we seek to make to leave by 2015 and to have no transfer station. There are various ways to have an agreement for us to enforce those terms upon us. One special condition in tceq permit. That special condition was written by the tceq, they believe that it's fully enforceable as written. The criticism has been that -- that it's tied to the capcog letter which b.f.i. Agreed to. But which -- but which giles holding did not agree to. I have handed you over the lunch hour a letter from -- from mr. Motley, authorized representative of giles holding, expressly agreeing to be bound by the very same terms. I think that addresses one of the criticisms that has been made. Second criticism that has been addressed is -- is the concept that -- that b.f.i. And giles holding applied for as co-applicants a permit to the tceq. And that's been recited in several of the comments that have been presented to you. That's not accurate. I'm going to present you now with copies of the actual application which make it very clear that the only applicant was b.f.i. And that the site owner was giles holding and b.f.i. B.f.i. Has been quite satisfied with the present permitting arrangement where it's the permittee and giles holding and b.f.i. Are the site owners. That's the way we intended to continue it. That's the way we applied for it. The tceq on its own motion decided that they would make us co-permittees. We didn't want to be co-permittees. When it became -- it didn't really matter to us that much. But when it became an issue, we have also given you a letter which we have circulated to anyone who is interesting from both b.f.i. And giles holding requesting that the tceq convert to what we asked for, which is b.f.i. Is the permittee and the site owners are both giles holding and b.f.i. As to the issue of whether or not this affects enforceability, it's going to be remedied because it was an administrative error on the part of the tceq? It was not anything that we asked for, it's not anything that we want. I hope that addresses this issue and puts it to bed. If I could approach the dais and provide you with these documents. I have a question in regard to one of the earlier statements, regarding the permit conditions, the permit incorporating the capcog conditions and the opinion that they are enforceable, I -- that's a wonderful thing. If the conditions were enforceable, why not enter into what would then be a redundant covenant without any strings attached.

>> we are prepared to into into a restrictive covenant and have offered to do that, I believe that's up to the county to decide whether they would like us to enter into a restrictive covenant.

>> when I say restrictive covenant with no strings attached I mean one that doesn't have a termination letter. Take a position that you will deem oppositional to your interests in a contested hearing.

>> I would have two answers to that. The first is if we're going to enter into an agreement that -- that we'll provide our promises in -- in response to -- to the county to you, that the county would say okay because you have made the promises that you have -- that you have indeed the county has negotiated us into, in response we would say please participate to make sure that we keep our promise. We -- we need to also have some measure of understanding in the end of the day in the 8th day of the hearing, you didn't decide after all you would like to oppose us full force. If that happens that far into the -- into the exercise, we would have -- no remedy, really, except the possibility of -- of removing the restrictive covenant so that we could have a transfer station there if we needed to.

>> so -- so to recap, the restrictive covenant is only available to us if Travis County commits to not taking any position in opposition and if we were to fail to -- to commit to that, one option that you would have available to you is to remove the conditions included in your draft permit that incorporate the capcog conditions, correct?

>> I will answer it this way.

>> well, I think that you already did. I'm just -- no, what I'm saying is that I am --

>> interpretation.

>> we are attempting to negotiate with the county on what a restrictive covenant should look like. We have offered to have a restrictive covenant.

>> offered to have a restrictive covenant holding a termination letter in he is scow in the event -- escrow in the event that Travis County does something in opposition to your interests.

>> that would be our concern. As I sit here and listen to you and Commissioner Davis I think that's a valid basis to be concerned.

>> and --

>> [indiscernible]

>> I'm going through the record here, I've got like binders out the I didn't ying-yi have hearing from you and mr. Dugas that awl's opinion is that the draft application as it's written, because it incorporates the capcog conditions, binds you all to a 2015 close date. If you fail to get the extension you are relegated to probably around a 2011 close date. I think that's what the record reflects. Am I incorrect about that.

>> yes, you are incorrect about that.

>> correct me please.

>> if we make an application, it's denied, it will be denied in 29. At which point we will have a certain amount of volume left in our landfill. If there's no restrictive covenant on the land, we would have the -- the business discretion to determine what we wanted to do with that land. Because we had no agreement with the county and because we receive no permit to expand. We can --

>> we can adjust our waste vietnam.

>> you could extend the life under the current restrictions under the current scriptures on how much -- strictures on how much this will allow. Of course tceq has always gone by capacity, not closure date. You would be restricted to the capacity under the present permit. That could extend beyond 2011 depending on -- goes back to what we were discussing earlier, depends on your procedures that you implement, how much, what volume you would choose to accept.

>> that is correct.

>> again, I'm left wondering why you believe the permit as it stands binds you, you would not be filing a restrictive covenant without strings attached? I hear what you are saying, you would like to hold it over our heads.

>> I would like to reserve the opportunity should we lose in the permit hearing that we have some business option to remain in the market while we continue to look for the other site. Your program would have us gone under that scenario by -- by 2029. That's worse than we are now.

>> right now I -- and again this is sort of a recap. You all are -- from a business standpoint, I do not blame you for this, we have talked about this before. You all are trying to preserve market share while -- while exploring possible green field sites in the region, whether it's Travis County or not. I get that. I just don't know if it's travis counties obligation to help you with that. Given the compatible --

>> it's in the memorandum of agreement

>> [indiscernible] that didn't happen. Now we are simply saying if we abide by our promise to leave on 2015 and it's enforceable, I believe that we have hopefully plugged the enforceability question holes, that we are not asking you to help us, we are asking you to make sure that we can abide by our promise, that's all that we are asking you to do.

>> there is one enforceability hole that you cannot fill. Again I don't hold this against you, it's a fact. The enforceability of the covenants -- of the conditions included in the permit, the entity that would be doing the enforcing is tceq and we would therefore have to rely on tceq's willingness to enforce that close date in a -- with a history of never having used a date certain as their closure -- owe a permit before.

>> I don't believe they have ever had a date certain before coming in the front door, but I believe that they've had agreements and -- to do certain things including closing, including not taking certain waste, including a whole variety of special conditions, are very common.

>> did the donna land bill include the closure date in the -- in the accepted application expansion.

>> I'm going to finish answering the first question, okay.

>> the Commissioners have made it exceptionally clear if any private landfill company enters into any type of agreement, whether included in a special condition or not, but especially if included in a special condition, it's going to be enforced. We have no question in our mind that we are never getting out of that. So that's the answer to the first question. Now I'm going to let mr. Dugas speak to the second question.

>> judge, Commissioner he eckhardt, it has no ties to the

>> [indiscernible] it's capacity only. You might chime in here.

>> the question on the county's ability to enforce a restrictive covenant, whatever official announcement made for tceq for executive session, okay. Yes, sir?

>> I believe just as a rule of thumb that we have a self notification of a pending closure capacity reached to tceq. So I -- I e if we were at 2014 we said, we identify we have six months left, we need to give tceq notice that we think that there's only six months left. And you guys might be looking at closure grades, start monitoring that.

>> any other comments?

>> brad, do you all have daily cover.

>> we do cover daily.

>> what do you cover with?

>> we cover with soil on site.

>> so it's not -- it's always soil?

>> that's correct. That is correct.

>> daily?

>> it's within a 24 hour period, the rolling face we do consider what would be considered the working face daily, right, even though we are a 24 hour operation.

>> soil on site what's the difference between that and I guess off-site soil is when you purchase soils, you deliver it there for use when necessary?

>> or is hauled in off of construction job off the area.

>> once it's so site, stocked piled, we use it as soil on site.

>> I would like to add the existing permit does allow the use of alternative daily cover. It is not being used at the site. Hasn't been used I think for over five years. The proposed permit does not allow the use of alternative daily cover.

>> which means that you go to dirt.

>> only dirt, that's correct.

>> the so I am balance does reflect a negative balance, which is not uncommon. Right now that negative number is significantly reduced as reflected by the various large soil stockpiles on top of the landfill at this moment. It's easy to get soil in central Texas now. People are trying to find places, it's -- it's like of buildings, we are working with our neighbor west management that soil is not the problem for us.

>> okay. I have a couple of other comments if I can, judge. Just for the record. We have been in operation for almost 27 years. We have received one administrative order. One penalty in that entire time. We received it when we were making an application, it was unfortunate, we received a fine for it. That's it. It was not the largest fine ever received by any landfill in Texas. We were -- it was not even the largest find every received by any landfill in Austin for that matter. We did not get that big find. We need to be -- b.f.i. Is thents tee before you seeking the expansion and the only entity. It is not a northeast landfill's joint application. There are -- there is lots of landfill life in Texas. That is of no use in Travis County to Austin. Only thing is what is in the capcog region, that is 11 years, that is not a long period of time. That is in fact well within the mandatory planning time frame set out by capcog and their consultants. The fact that some landfill somewhere may have submitted a document that says they have 2,000 years of life is an interesting an next dote, but it has no bearing on what's going on here.

>> 11 years based on permanent landfills, irrespective of where that trash is coming from. When you consider the extremes are coming from how many different counties that's 11 years of life if the market is open to 30 different counties. At only the currently permanented.

>> the capcog studies established that remaining life, I believe about 89% of the volume at the current landfills came from with the capcog region.

>> no questions. We are the largest producers of trash in the capcog region.

>> even though waste was identified coming from 30 counties, many of those counties are very small portions of their waste I go is coming here, we don't take all of the waste from all 30 counties coming here, not even close.

>> the statement is true that 11 years is based on the then currently permitted landfills which is --

>> current waste volumes.

>> at current waste volumes irrespective of their origin.

>> that's true.

>> > that was about a year old.

>> also I wanted to ask you quickly about the compliance history. While I see your point in regard to -- in regards to the number of yeahed orders, which is one, I -- I wonder, the characterization of that one order, about the characterization of that one order, I suppose that it goes to b.f.i.'s credibility, for instance in my short time here even considering a contract proposal, b.f.i. Chose not to -- not to put down on their application their compliance history. It was simply not disclosed. Perhaps it wasn't disclosed because we all should know. I found it curious it was not disclosed in the bid for the contract. Judge, Commissioner, I'm unfamiliar with the particular bid that you are talking of. It was probably identified as a hauling bid only and contemplated as a hauling bid.

>> I see.

>> had no bearing on the landfill at the time.

>> so even though it's the same corporate entity, they do have a compliance history within the last five years, between whether it's a hauling or a disposing contract?

>> that is correct, typically seen as significant entities as operating business units.

>> I appreciate that the comments have been directed corporately, for the most part is to b.f.i. Can't be trusted by the protestants who come up here. I would like to say for the record that I don't believe any individual seated here at the table has ever represented anything to anyone in this case to you, to any Commissioner or to anyone of the protestants. They may not have agreed with us, we have looked them in the eye and told them what we thought.

>> [indiscernible] same thing to you, look you in the world and told you what I thought.

>> that's fair enough, Commissioner.

>> I have always told you that.

>> it could simply be there's a gulf between us that can't be filled in regard to y'all's desire to maintain market share, our desire to have compatible land use.

>> if I could, Commissioner, it's not necessarily a business desire to keep market share. We understand it may well decline, we were doing some economic features to do -- see some decline there at the landfill. We see it as a service that we provide to the community at large of providing disposal capacity here. Based on what we currently take, we are just projecting that out. If that winds up being something less than that, again we walk away from air space, that we permit through this amendment, we will walk away from it and clearly at the date certain and hopefully, quite hopefully it would be to a green field site. So that is not necessarily economically driven desire to get there. That's the way that the volumes are falling today and probably will fall for some time.

>> the last point that I would like to make, if you would like to hear more about it mr. Shannon from the recycling department is here. The concept that we do not recycle needs to be corrected. We are the largest recycler in the state of Texas, the largest recycler in central Texas. Consequently the largest recycler in Austin, the concept that we don't recycle is not correct. I just wanted to make sure that you all understood that. So the 2015 closure date, if we get the owners commitment which we think that we have, all waste related operations in northeast Travis County site would terminate.

>> that's correct.

>> we are prepared to make that in variety of ways. Through a restrictive covenant, separate agreement

>> [indiscernible] all three, we want to be bound on our program.

>> that would include the trans -- to our promise.

>> that would include a transfer station plus recycling.

>> yes, it would.

>> david, do you think that Travis County can go to court and enforce a 2015 closure of this landfill, if it is in a legal document that we -- that we sign-off on?

>> what you are asking is can we succeed in going to court. And that would depend on what the architect is going to be. I think the real question that you would rather do is do we think that we can draft a document that would protect us giving all that we know about current case law and enforceable of restrictive covenants, yes, we could. Do we have that document now? No. Am I confident that your lawyers can reach that point and look at you and address to you and say this document should we get there would give you these protections, there's never -- you know, all this can change, precedent can change, anything can happen. But based on what we know about the law at that time and the document that we have, I think we can look at you and give you, tell you what the assurances that you will have that the document that we present you can be enforceable. But again we don't have that right now.

>> judge, can we please try to come to some sort of a closure with this? I mean after five --

>> [multiple voices] after five years, let's please.

>> six for me.

>> move forward.

>> okay. David I guess -- if -- can we come up with that document in two to three weeks.

>> either that and say we don't think that it's possible, it's going to take x amount of time. Two to three weeks is a reasonable period to present something to you with full negotiation, if you authorize us to negotiate it. I would come back to you with a copy.

>> the deadline for comments is June 18th is why I said two or three weeks. Any additional comments?

>> I have one comment on that. The restrictive covenant there is no deadline for the restrictive covenant. We don't have a deadline of June 18th for a restrictive covenant agreement.

>> right. The only dead line is the cough napt period. What I'm saying is that it seems to me that shortly after the end of the comment period we ought to try to have official documents executed between Travis County and b.f.i., if we go in that direction.

>> that's right.

>> there are other time lines that will probably last at least another what, six or 12 months. That -- before there's a formal contested hearing, assuming that we get to that point, right?

>> yes, sir.

>> so there's some time, but why take all of that time. Clearly we need additional time so if we focus on two to three weeks for the -- for whatever documents we come up with, whether it's a restrictive covenant or what have you, the other thing is that if we cannot satisfy ourselves about the enforceability of our documents, then we have to conclude that this is not a good strategy and back off of it.

>> [indiscernible] how much merit does the agreed special conditions if Travis County continues to refrain from a

>> [indiscernible] opposing this expansion of b.f.i.? Because of one applicant's promise, promise now to comply. Promise to comply. How much grit, how much merit does promise have, promise comply.

>> I'm sorry, I didn't -- I didn't pick up the question.

>> well

>> [multiple voices]

>> did you get it?

>> in the agreement special conditions, Travis County continues to refrain from opposing the b.f.i. Expansion because of -- of one applicant -- I guess they assume b.f.i., because one applicant's promised

>> [indiscernible] promised. Compliance. What does promise compliance. In other words a promise because this is embedded in this letter. If Travis County is going to refrain from opposing based on the -- the expansion based on a promise to comply, from the applicant, what grit does that have or what binding situation does that pose for Travis County?

>> let me just see if I can understand. If all that we have is your letter that you are quoting from and it's -- it's an offer that's not accepted and there would be no enforceability. Down the line if all that we have is that, if we agreed, somehow we agreed in our record, we argued that we had an enforceable agreement, all that we had was a promise. Then if they breach that promise, then they would be liable for damages. And I think what the court is interested in is not damages. What we want is specific performance.

>> I understand.

>> we want to take extra means to give you a greater sense of comfort that you can get that specific performance. That performance would be more than just based on the written promise. It would be based on -- on something that you hold a property right to. And that would be you have -- beneficiary of a restrictive covenant. That you could enforce that. So it's not just the mere promise that you see there in writing. That's backed up by -- by a restrictive covenant that you would have rights to enforce. But even that has limitations, there are other things that we could do as well to give you greater, but each of that, that's all of the negotiating point of where the line is that you finally feel if you ever do that that gives you comfort enough that you can -- you will get compliance and -- and that they will meet their obligations in 2015.

>> [one moment please for change in captioners] I just don't think we should put ourselves in a position based on a promise. I think we need to look at this straight up, either oppose it or look at conditions where by we will not oppose it such as stated in the letter. I think everybody knows my position. I don't think I have to go much farther than what I stated earlier.

>> any brief closing comments.

>> judge, we would like steve shannon, if we can, just to show you a brief, give you a brief story of our recycling efforts in the capcog area in central Texas.

>> can you do recycling at the sunset farms landfill ?

>> no, well, yes, you can. We do some white goods drop-off which would be washers, driers, water heaters that periodically are picked up on a quarterly basis.

>> drop-off but you are not actually processing it there.

>> that is correct.

>> I would submit that his comments would be irrelevant to or would not have sufficient relevancy to what we are dealing with today.

>> only to the point--

>> go ahead and make your comments. We have heard so much.

>> only to the point and degree that we don't on it on the sunset farms landfill landfill. The claim is that we don't do anything to recycling. And therein I think there's a lot of relevance in that we are the largest recycler in the capcog area. To that point, I think there is a lot of relevance. Steve, if you could.

>> yes, sir. As has been stated we are the largest recycler in the state of Texas. We recycle to the maximum extent that we can. The idea that landfill volume stifles has some small bearing, but relatively speaking small in market support and recycle policy, state of Texas re recycling laws are extremely week. We recycle more than 50,000 tons a month right here in Travis County and serve 50 50,000 homes in Travis County and many hundreds of businesses that we serve with our facility. I think as pertains to this particular facility, -- --noteworthy that the sunset farmland fill is the only one in central Texas that does the vent the ga is to the atmosphere. We capture, recycle and provide energy to over 3,000 homes in Travis County.

>> thanks, steve.

>> thank you, steve.

>> judge, just a follow-up, we are committed to 2015. We appreciate the negotiations and to the point of Commissioner Daugherty, it's been a long path. To county commission and Davis's point, to the restrictive covenant and why we would have anything in an escrow development, we have had several compromises to those of you on the commission that have been through the whole process. I think bfi-allied has made a tremendous amount of commitments and conditional changes and amendments to the permit that we put in. And we are trying to get to some element of that agreement that we tried to get to through that restrictive covenant that would bind us to the 2015.

>> more closing comments ?

>> we are, thank you very much, we can see that you are ready to enter deliberations.

>> thank you all.

>> two brief comments regarding mr. Dugas's statement. First of all, I believe mr. Dugas has misstated the discussion that took place between the citizens and the bfi representatives at the meeting that he mentions in 2005. In the interest of brevity I would ask that you read the comments that ms. English submitted to you. I think that statement very succinctly expresses what that discussion was. Second, I have in front of me the transcript from the Travis County Commissioners court meeting held on December 12 of 2006. That is a little less than six months ago. Not a matter of years. The statement by mr. Dugas is quite lengthy, by but I invite you to go back and read the transcript carefully so that you are convinced that I am not taking his comments out of context. The comment I want to read to you says, and with regard to the proposed expansion and the capacity, and I now quote, while our capacity would allow us to go beyond 2010, even today under our permit, we could reduce our intake and take this permit out to 2020 or 2021. End of quote. So apparently they do in the need an expansion of any sort to 2015, to get to 2015 according to his statement, and secondly, apparently they are able to control the amount of their intake if they can reduce it and extend the permit. So, now I'm going to look you straight in the eye and tell what you I think. It's a matter of trust. Thank you.

>> very briefly.

>> at the point, at that point in time in the discussion, the question was asked, you know, are you restricted to a time line or anything else here. And the point to that is, if we cut the volumes down today, we are taking in 3500 to 4,000 tons a day, if we cut that down to 200 tons a day, which we couldn't economically live on that, it wouldn't function for the headache, not headache, but the operations that are there. This facility could go on to whatever capacity that would lead to. No restriction on time. That was the question at the time. How long can you go. And without an expansion. We could go to 2021 potentially if we did 100 tons a day today.

>> didn't your attorney just say that if huh the permit denied--if you had the permit denied your closure date would not be 2011 because you could slow down the rate of acceptance and extend beyond 2011? Isn't that in agreement with your statement in December ?

>> that is true. Same story, same issue. We have economic obligations obligations--

>> although the context that he was placing it in was don't be too sure that if we gent denied we are gone gone gone--in 2011 because we could state. Isn't that the implication ?

>> I think it was in the restrictive covenant aspect and the business issues and the potential of the transfer station, to slow the operation dunn and continue operations until a potentially transfer station to be constructed and there would be in interrupted service. To that point if we were de dethide the permit here, there's a chance that it would extend out. Now, we have financial obligations through other commitments that we have certain flows that have to come in there. But from a physical standpoint at the time, the citizens were saying no capacity. We don't care about time. And the reality is we could go to 2020 and they repeated repeatedly said we want you out today, and that was all that that was about.

>> okay. Thank you. Court members? Here are my comments. I've been trying to ask questions rather give a whole lot of comments. Here is mine. When I got involves in this three, four, five years ago, the request really was to help get the operators to operate better. And that was the the first focus. The next focus at the request of residents really was to get the landfill operators out of there, both of them. That is when we started negotiating closure dates. The date that the operators had was much much longer than 2015, and ours was shorter, but through a process of negotiation, basically, we ended up here. The other thing that I think is real important is from the beginning, in order to provide total relief, both landfills should be closed. And waste management today has probably enough capacity to get through 2015, 2016 or so, which is why 2015 made sense to me. But if waste management un units current permit can get there, let's adopt a strategy to get bfi out at roughly the same time. In my dream world, we would have both bfi and waste management terminating landfill operations in northeast Travis County. It is true that when way look at the memorandum of an understanding that I thought made a whole lot of sense, I back off of that because residents did not want us to do that. They didn't want the formal agreement. The advantage of it was that the property owner had agre agreed to participate in that agreement if we did it. But when residents were clearly so much against it, then I backed off too. My position for the last three years has been supportive of a November 1, 2015 date. Ap I must say that as a member of capcog, I advocat advocated that date at capcog and they agreed to it it. I don't know what their position would have been had Travis County not asked that they pretty much support us. And at that time the vote of the Commissioners court was 4:1. Maybe they would have opposed the operation, maybe they would not have done it. To be honest, I didn't hear thib commenting in such a way that I was left with the conclusion that without 2015 capcog would have just opposed any extension by bfi bfi. I think that a definite closure date is important and beneficial. Under the current permit bfi get to 2011 or 2012 and we effectively add three to four years to the current permit with a November 1, 20 2015, date. Ultimately I have to rely on the account attorney's office to tell us whether or not this can be enforceable. There are three ways to shoot at it, the permit and tceq, the restrictive covenant, and something close to an agreement contained in the restrictive covenant, and who knows how creative we can be otherwise otherwise. The way I understand the commitment is the property owner would be committed, and that is bfi, and I do think that is important. You know, the way I see this unfolding is we would go to tceq and be there and bfi would basically say November 1, 2015, is what we are looking for, than would be the same position as capcog and Travis County and hopefully the city of Austin Austin. We will know at the beginning of the formal process whether tceq agrees or not and if tceq does in the agree to the November 1, 20 2015 date, then we are free to go ahead and poe pose the application as much as we want to. At the same time if we oppose the application, then there's no reason why bfi should be obligated to keep the November 1, 2015, commitment. So in my view, the status and the strategy that we should pursue up until it becomes clear to us that tceq is going to the go along with the November 1, 2015 date. If it becomes clear that date is not workable, then we are free to oppose in any manner that we see fit.

>> that leaves the operating conditions, operating standards up to the 2015 date, we will not be commenting at all on operat operating standards.

>> no, but I think we have worked with bfi on those and to the extent that we come up with additional ones that we want to chat with them about, then I think we ought to feel free to do that.

>> but by this position that you are laying out, a 2015 date would be, would take us away from the table in regard to any input on operating standards up to that 2015 date.

>> I think that if you have operating standards ideas, that we ought to try to get those ironed out before we go to tceq. If you go over there and oppose the expansion because of operating standards, there's opposition. If you know in advance that the inability to reach some sort of accord on operating standards tells us that we ought not go with the November 1, 2015, date, then we back off it. But do you that before the end. In reason the wait until the end and do thatlve you do that now. We look at operating standards as part of the mou you know, they weren't perfect. I thought we were making progress. If you talk to 100 people, you have 100 experts on mou mou's and each one wants to do something slightly different. So I don't know. At some point we stop making progress because we yearyear yearyear--clearly could not please everyone. So I just left the mt. O--mo o--mou alone and I think the entire Commissioners court felt comfortable leaving it alone. My point about operating standards, if we are over there opposing because of operating standards, that is still opposition and that is not the deal. So if we have specific operating standards that we want in place, I'd get about the business of trying to negotiate those immediately. I wouldn't wait until the end. Every time I've tried to chat with bfi about operat operating standards, they have chatted with me, not to say they have always conced conceded what I requested, mostly what I requested didn't come from me, came from residents, so I'm assuming that they are still agreeable to doing that. Those are my comments. Court members. Comments.

The Closed Caption log for this Commissioners Court agenda item is provided by Travis County Internet Services. Since this file is derived from the Closed Captions created during live cablecasts, there are occasional spelling and grammatical errors. This Closed Caption log is not an official record the Commissioners Court Meeting and cannot be relied on for official purposes. For official records please contact the County Clerk at (512) 854-4722.

Last Modified: Wednesday, June 6, 2007, 8:00 AM

June 5, 2007 Item 20

June 5, 2007
Item 20