C-Rayed Again

It looks like the Chef Menteur Landfill won’t close:

In the latest twist in a controversy full of them, the Chef Menteur landfill in eastern New Orleans apparently will remain open next week as a result of a letter the Nagin administration sent to state regulators Thursday, saying the mayor's refusal to renew a zoning waiver for the landfill should not be interpreted as "opposition" to the facility.

C’mon, now. This is ridiculous.

This is Nagin’s landfill (the “C. Ray Nagin Dump,” if you will). He opened it and he can shut it down.

Nagin, according to his letter, is not in “opposition” to it. He originally opened it in the face of clear and warranted public protest. He conveniently shut it down temporarily for testing (which should have happened before it opened) less than two weeks before the election, but then allowed it to reopen “less than 24 hours” after winning the mayoral race. The Mayor then announced that he would not “renew or extend” the executive order allowing the landfill to operate, surprising both supporters and critics, only to leave a window for the state DEQ to keep it open with his latest letter.

Obviously, Nagin wants this landfill to stay open. He just doesn’t want the political fallout from plopping a landfill in a community that doesn’t want it. He wants to pin the final decision on the state: “Hey, man. It wasn’t me. It was the Big Bad LDEQ.”

Village de l’Est, you’ve been C-Rayed again.

How we got here:

February 23
After a settlement is reached limiting how much waste could be dumped in the Old Gentilly Landfill, the Chef Menteur site is proposed as an alternative:

Louisiana's environmental agency has settled a lawsuit over a New Orleans landfill [Old Gentilly] where debris has been dumped since Hurricane Katrina, but Mayor Ray Nagin recently ordered suspension of a zoning ordinance to allow a new landfill not far away [Chef Menteur], and close to a national wildlife area.

April 7
Village de l’Est residents protest the proposed Chef Menteur Landfill outside City Hall; City Council adopts a resolution asking Mayor not to allow landfill.

April 14
Chef Menteur Landfill is cleared to open:

The corps and DEQ approvals were the last remaining regulatory hurdles keeping the landfill from accepting waste, meaning the facility could open immediately.

***

Waste Management sought and received the conditional-use permit it needed for the new landfill from City Hall, courtesy of Mayor Ray Nagin, who in February invoked emergency powers after Katrina to waive the city's comprehensive zoning ordinance.

[Note that Nagin started this in February using his emergency powers.]

May 11
Mayor temporarily shuts down landfill (PDF) for testing.

Nagin promised to close the site if testing shows it to be "harmful" to nearby communities

May 19
Community and City disagree on how tests should be done.


May 21
Landfill reopens day after Nagin re-elected.

May 25
Community says testing is “waste of time”:

In a joint news release, the Louisiana Environmental Action Network and the Citizens for a Strong New Orleans East said their experts — who include a former secretary of the Louisiana Department of Environmental Quality — agreed that the testing protocol proposed by the city, state and Waste Management “would be a useless waste of time.” The protocol included testing debris piles yet to be brought to the landfill and viewing the landfill from the window of a bus, the groups said.

July 13
Mayor says he will not renew executive order past its original expiration date of August 14:

Today Mayor C. Ray Nagin announced the expiration of the Executive Order regarding the operation of the Chef Menteur Highway Landfill effective August 14, 2006.

Mayor Nagin will not renew or extend Executive Order CRN 06-03 for construction and demolition debris disposal at the Chef Menteur Highway Landfill.

The Mayor elaborates:

Nagin, however, said late Thursday in an e-mail response to inquiries that he could not understand why anyone was surprised by the decision to end the executive order. It was always envisioned as a six-month operation, he said.

July 15
Louisiana Dept. of Environmental Quality wants landfill to stay open.


July 19
LSU report claims landfill “inevitably will take in household hazardous wastes.”

July 26
LDEQ will accept whatever decision “New Orleans officials” make:

State environmental officials have promised not to challenge whatever decision is made by New Orleans officials about the future of a landfill opened in the eastern part of the city to handle debris from Hurricane Katrina.

***

But in a letter to the city, DEQ Assistant Secretary Chuck Carr said the state will accept the city's decision, although it disagrees with Nagin's action.

August 2
Waste Management sues state to allow landfill to open without executive order extension:

According to a Waste Management press release, the suit questions the DEQ’s authority to close the site and says that doing so unfairly punishes the company. Further, the suit challenges a city’s jurisdiction in permitting such facilities during official emergencies. Finally, in establishing the landfill, the company claims it was led to believe that the site would be permitted for a considerably longer period and were not aware of the temporary nature of the zoning commissioned by Nagin.

More insight on those three points from the T-P:

But the suit, filed in state court Monday in Baton Rouge, alleges that DEQ lacks the authority to revoke the emergency permit it granted. Doing so, the suit contends, would unfairly punish Waste Management, which had reason to believe the landfill would remain open far longer than the roughly four months it has been in business.

The suit also seeks to minimize the city's role in permitting landfills during official emergencies. It cites a state law that, according to Waste Management, gives DEQ officials wide latitude to make decisions "without regard to any prior, continuing or subsequent approval of local government."

Waste Management officials claim in the lawsuit that they were unaware of Nagin's Feb. 9 executive order granting the zoning waiver until months later, though the executive order refers repeatedly to Waste Management's plans for a landfill, and appeared to have been drafted at the company's request.

Instead, the suit contends, company officials were under the impression that a second document, an "Emergency Disaster Cleanup Site Request" form signed by Nagin on Feb. 14, was the one that mattered. That form indicated the landfill would be open for "the duration of Hurricane Katrina disaster cleanup efforts, at this time estimated to be 12 months."

August 2
LDEQ releases statement “that seemed to hold to the agency's position that it will not seek to allow landfills in communities whose elected officials don't sign on”:

"It is the practice of DEQ . . . to develop partnerships with local governments to respond to disasters that impact their cities and parishes," the release said in part. "The Chef Menteur Landfill is one such facility authorized to operate by DEQ because it was environmentally suitable and the location had local government approval. We no longer have local concurrence, and therefore the agency will respect local government's decision."

August 2
Secretary of the LDEQ Mike D. McDaniel writes opinion letter “responding” to LSU report on landfill:

In the current cleanup operations, great effort is being expended to separate hazardous and nonhazardous wastes for appropriate disposal.

August 9
Lawsuit filed against LDEQ claiming some landfills, including Chef, “violate federal clean air and water laws”:

None of the landfills is lined to keep chemicals from seeping into the ground, making them unsuitable for waste that includes household hazardous wastes, it said.

It said that since the landfills did not have to get water pollution permits, the orders violate the Clean Water Act. And because much of the debris is likely to include asbestos, they violate the Clean Air Act, the lawsuit said.

August 11
The debris hits the fan. The Chef Menteur Landfill is planned to stop operations Monday, August 14. However, city attorney Penya Moses-Fields penned a letter “saying the mayor's refusal to renew a zoning waiver for the landfill should not be interpreted as ‘opposition’ to the facility.” This lack of opposition to the Chef Menteur Landfill is interpreted by the LDEQ as “local concurrence” by the city government:

DEQ officials said they had planned to revoke the landfill's permit Monday because of their previous belief that Nagin would not support keeping the landfill open. But after this week's letter from Nagin's attorney, they said there's no reason to suspend the landfill's permit.

In keeping with the tradition of a good C-Raying, the letter states something without really making a statement:

For starters, the city's letter does not articulate a clear position on the landfill; it merely states that Nagin's refusal to extend his emergency order should not be taken as opposition. The letter does say that the administration believes the "findings, recommendations and conclusions" that DEQ cited in granting the landfill permit were "justified."

And, as happens in all C-Rayings, one can not let a nebulous statement go without an equally nebulous clarification:

In a press statement Friday, Moses-Fields said her letter "was not a letter of support" for the landfill, as DEQ officials are interpreting it.

So, the Mayor’s official position as expressed by his attorney is Nagin doesn’t support or oppose the landfill.

Because he can effectively stop the landfill by clearly stating that he opposes it, thereby taking away any "local concurrence" and providing a combined City Hall-City Council-Neighborhood front against LDEQ intervention, I can only assume that he supports it. He just won't say it.

What about the City Council’s role in all this? They would normally have to approve a zoning change for a landfill and the Council has already stated they do not support the Chef Menteur Landfill.

The LDEQ says they don’t need a permit:

DEQ, however, has indicated that the emergency wrought by Katrina trumps the requirement for a local permit. It's DEQ policy -- but not law -- that local elected officials must agree to any landfill placements, state officials have said. On Friday they said Moses-Fields' letter this week constitutes that assent, making a local permit unnecessary.

"The department's position is that in an emergency, we're not required to have that waiver for zoning," Buatt said. "It's our practice that we have to have local government concurrence."

He said the city's letter provides that concurrence.

Waste Management doesn’t think it needs a permit, either:

Gerard Sonnier, a Waste Management lawyer, said the company intends to operate the landfill until Katrina cleanup efforts cease. The company has argued that once Nagin issued his initial waiver, the landfill can remain open for Katrina cleanup even if the mayor does not renew the waiver. After all Katrina debris is collected, Waste Management will seek a conditional-use permit for future operations through the City Council, Sonnier said.

Monday, look for a last minute “temporary shut down” in the face of popular opposition. That way the city, LDEQ, and WM can figure things out... I mean, can figure out another loophole to keep the landfill up and running.

UPDATE
Nagin on WWL-TV today said he wants the landfill to close on Monday. If the state steps in and allows WM to continue operating it, he will send another letter, this time a cease and desist order. If the state ignores it, he says it would become a legal matter.

If it goes to the courts, the landfill might continue operating until a decision is made. As one lawyer put it when referring to the lawsuits filed to close down the landfill, "While legal battles rage, he said, the Chef landfill will fill up."

I might seem a little hard on the Mayor. But, if he truly wanted the landfill closed on Monday, he could have made his message clear way before today. Way before.

Instead, he talked about how much the city needed it, how it was justified, and how long the recovery would take if we didn't have it. He only modified his position when confronted by popular protest.

I hope he does what he says and it works. But it should have been done already.

UPDATE 2 8/13/06
T-P linkage:

A day after Mayor Ray Nagin suggested he would allow a controversial landfill in eastern New Orleans to stay open after its temporary zoning waiver expires Monday, Nagin said Saturday that he will take legal action to halt dumping at the site beginning Monday morning.

Mayoral spokeswoman Ceeon Quiett said the city's lawyers are preparing a cease-and-desist order to be delivered Monday to the landfill's operator, Waste Management of Louisiana.