Judge sympathetic to landfill opponents' request for restraining order

Chris Brook (left), who represents landfill opponents, conferred with Greensboro Assistant City Attorney Jim Clark (right) and George House, outside counsel for the city, after a hearing before Superior Court Judge Patrice Hinnant today.

Guilford County Superior Court Judge Patrice Hinnant today urged the city of Greensboro to go slow on contracting with a private company to operate the White Street Landfill, cautioning that she wanted to avoid future litigation between the two parties over due diligence required before permitting additional sections of the landfill.

The judge made the remarks during a hearing today to consider a motion for a temporary restraining order filed by opponents, including five residents who live near the landfill and citizens groups. According to a preliminary schedule, the city could initiate a contract with a private company to reopen the landfill as early as July 1.

Represented by the Southern Coalition for Social Justice in Durham, the opponents have said in a lawsuit filed yesterday that the city must abide by a North Carolina statute requiring consideration of alternate sites, review of socio-economic data and a public hearing before a new landfill site can be selected.

Lawyers for the city argued today that the responsibility to meet the requirements of the statute would fall on whichever company is selected to operate the landfill, and that the city is only trying to execute a contract not select a site for a new landfill.

Chris Brook, a lawyer with the Southern Coalition for Social Justice, noted that both companies on the short list to reopen the landfill — Waste Industries and Gate City Waste Services — have explicitly mentioned using Phase VI and Phase V of the landfill, arguing that the city’s act of executing a contract will effectively result in a site selection. Brook said everyone agrees that Phase III, the only portion of the landfill that is currently permitted, holds between two and six years of useful life.

Judge Hinnant appeared to agree.

“These contractors have already identified Phase IV and Phase V as where that’s going to take place,” she said.

She interjected in Assistant City Attorney Jim Clark's argument at one point.

“The purpose of the TRO is to make sure that you have time to make sure that you’re not dealing with contractors that never intend to present an alternative site,” the judge said, adding that she wanted to prevent unnecessary litigation.

“That’s the rule of law,” she added. “That’s what this court abides by.”

Phil Carter, governmental affairs director for Waste Industries, has said that he does not believe the statute applies to the expansion of the White Street Landfill.

“It is a real stretch to classify Phase 4 as a ‘proposed new site’ as opposed to an ‘existing site’ especially if Phase 4 is within the overall approved facility plan,” he said in a comment on the YES! Weekly blog last month. “The question is: Is the next phase within an approved facility plan considered a new landfill or an extension of the existing landfill? I don’t believe their claim will hold up. Our engineers are confident that these future phases can be permitted if they are within the facility plan boundary. We would not have spent the time and the money to submit our proposal if we didn’t believe this.”

The NC Court of Appeals ruled in Grassy Creek Neighborhood Alliance et al v. city of Winston-Salem in 2001: “It is uncontested that the expansion of the landfill constitutes a ‘new sanitary landfill’ under NCGS 160A-135.”

Brook noted that the area around the landfill is disproportionately African American compared with the city’s overall population.

“There has not been any data brought forward for the public such that they can comment, such that public employees understand the consequences of this decision," Brook said. "This is exactly what the statute is trying to empower plaintiffs to do. This statute comes out of the Warren County PCB landfill case in the early ’80s. It was the first environmental justice case. Therein the North Carolina General Assembly recognized a problem — that we have sanitary landfills in neighborhoods that are disproportionately African American or Latino. They said, ‘We’re going to do something about it. And we’re not going to say that just because you have disproportionate populations you can’t site landfills there, but you’ve got to consider it. You’ve got to let your constituents know and hear about it in a public hearing.’

“And they’ve not done that even though they’ve been provided preliminary data saying — grab ’em by their lapels — ‘Listen, this could be a problem. You need to pay attention to this.’”

If the contract is signed before a public hearing is held, Brook said the residents who live near the White Street Landfill would be denied their rights under state law.

“This is irreparable harm because any consideration of alternative sites and compilation of demographic and socio-economic data would be a sham after the defendant enters into a contract with a private contractor who immediately turns around and starts the permitting process,” he said.

Clark argued that the plaintiffs were putting the car before the horse.

“We’re not selecting a site," he said. "We’re selecting a contractor. As you can see, the scope of services for the Request for Proposals calls for the contractor to engage in a process that’s like what we’re asking for. We’re at Step 2; they’re at Step 34. Is this a remote possibility that could happen far down the road? Perhaps. I don’t know."

George House, who is serving as outside counsel for the city, said if the contract comes back signed with a stipulation that the contractor must use phases IV and V of the landfill, then the plaintiffs might have a claim, but if the contract requires the contractor to study alternatives for future landfill sites, then there would be no problem.

The judge advised the city to take contract negotiations slow and get it right the first time to avoid unnecessary future litigation between the city and a private operator.

“I’m asking all these questions to determine where the mischief for damage lies,” she said.

“The court’s emphasis is on avoiding unnecessary litigation and encouraging parties to put out fires and smooth out rough edges,” she later added.

Hinnant referenced a section of the landfill opponents’ lawsuit quoting representatives of Waste Industries and Gate City Waste Services discussing plans to initiate permitting to expand the landfill and to build phases VI and V.

“So they’ve settled pretty much on that site as well,” she said.

House questioned the standing of some of the individual plaintiffs who live near the landfill, noting that in the 1990s the city settled with the Nealtown Homeowners Association with the city buying out residents in return for their agreement to waive all future claims.

Brook said none of the plaintiffs in the current lawsuit were parties to the city's settlement with the Nealtown Homeowners Association, specifically referencing Roosevelt and Josephine Neal Ferguson.

“The Fergusons have lived in that house since the 1950s," he said. "They’re not part of the Nealtown Farms subdivision…. They’ve been living there long before that subdivision was there. They’re not one of the named plaintiffs that Mr. House is referencing.

“Your honor referred to the selection of Phase IV as ‘a foregone conclusion.’ I think that is a very apt description of what Gate City and Waste Industries have in mind," Brook continued. "The idea that there’s some kind of lack of clarity about what’s going on — Gate City and Waste Industries have been very clear: They’re going to reopen going to reopen the landfill. They’re going to build phases IV and V. And the council people asked them questions about it, because they understood that.”

During Brook’s rebuttal, House leaned back in his seat, his hands draped over the armrests as if part of Salvador Dali’s “drooping clocks” painting. A veteran attorney who helped the city with landfill permitting back in the 1990s, he took Brook’s insistent remarks in stride, while Clark appeared to grow visibly frustrated with the judge’s lack of accord.

City Manager Rashad Young said in a formal statement today that staff is scheduled clarify terms and potential contract details to city council on June 21.

“The city will always follow the letter of the law,” he said, adding that any final decision will be made by city council.

Hinnant said she will likely have a decision on whether to issue a temporary restraining order by the end of the day or by early tomorrow. A temporary restraining order is good for 10 days. Regardless, both sides expect a preliminary injunction hearing to be held.