Council Blindsided on Landfill Deal

Laura Morrison (Photo by John Anderson)

The city's legal department is under a microscope after the City Council requested hiring outside counsel to see if its in-house lawyers overstepped their powers in reversing the city's opposition to expanding the BFI landfill.

At its Dec. 11 meeting, the council unanimously passed a resolution ordering City Manager Marc Ott to investigate whether the city is bound by what is known as a Rule 11 agreement, signed by city legal on Oct. 31. In it, the city agreed to drop its opposition to BFI's application to expand the northeast Travis County landfill even though the council unanimously passed a resolution against it in 2007. The council has asked Ott to present a preliminary report on his findings this Thurs­day (Dec. 18). Time is of the essence: The Texas Commission on Environmental Quality is scheduled to hold an administrative hearing on the application Jan. 20. "That's why we said in the resolution that there was a timeline that has to be met," said Council Member Laura Morrison, who authored the resolution.

At stake is the question of why city legal thought it could sign the deal without telling City Council or other entities that oppose the application. The Northeast Neighborhood Coalition heard about the agreement from BFI's lawyers, and the council heard the news from the coalition's lawyers. On Nov. 12, the citizens' Solid Waste Advisory Commis­sion (see "Solid Waste: Who's Driving the Train?" Nov. 21) requested a review of the agreement and the decision process, since legal made this de facto policy decision without informing council. Morrison said that, while she understands such settlements are part of the legal process, "The problem is that the agreement didn't conform to the city policy."

Coalition attorney Jim Blackburn is also baffled by legal's unilateral decision, but he's most concerned about how its timing affects the agreement he and the city struck on providing expert testimony to TCEQ. Under the agreement, Blackburn would handle how the dump would damage his clients' quality of life; Texas Justice for All would cover technical, geological, and chemical questions; and the city would address land use and storm-water ordinances. Blackburn was first told of the deal on Oct. 31 – four days before the filing deadline for expert testimony and too late to find his own replacement experts. Now, he said, he finds himself applauding council's stance while knowing that, if the agreement stands, "The city will become an opposing party, and they will be subject to cross-examination."