BFI Dustup: 'Council Has Done Nothing Helpful'

It's less than a month before the Texas Commission for Environmental Quality opens hearings on the proposed BFI landfill expansion in Northeast Austin. Yet, Austin City Council members still don't know if they can oppose the expansion or whether city legal already made the decision for them.

On Dec. 11, council members instructed City Manager Marc Ott to use outside counsel to explore breaking the agreement, signed without their knowledge or consent by the city's legal department, effectively ending the city's opposition to the application (see "Council Blindsided on Landfill Deal," Dec. 19). Council was expected to hear a preliminary report at the Dec. 18 meeting – the last of the year – but after a lengthy discussion in closed session, they decided to move the item to the next scheduled meeting, Jan. 15. Unless council calls an emergency meeting before then, there will only be two business days between a council decision and the TCEQ hearing on Jan. 20.

Now questions are being asked about the legal staff's decision-making process. Because of the relatively small contract (only $25,000), council could not select the attorneys, thus giving city legal the enviable job of picking its own lawyers. Rather than picking council's original and fully vetted choice of local firm Allison, Bass & Associates, the legal department hired three different firms, adding attorneys from Austin-based Andrews Kurth, and Dallas-based Strasburger & Price to the list.

Timing is another issue. Council on Dec. 11 passed the resolution to retain Allison, Bass & Associates. But the actual selection of attorneys was not confirmed until Dec. 16. Fewer than two days before council met, outside lawyers were still waiting on essential documents.

Now there are concerns that the city's expert testimony filed as part of the BFI agreement may backfire in a separate TCEQ application, this time for the Waste Man­age­ment Industries landfill near Hutto. That hearing starts on Jan. 12 – three days before council's Jan. 15 meeting. Council staff is examining whether the city can withdraw the testimony.

If so, the Northeast Neighborhood Coa­li­tion, the city's partner against the application, would be left in limbo. The group's attorney, Jim Blackburn, called council's nondecision "the worst of all worlds for us because we don't know where to go. If the agreement is illegal, that's one way to go. If it's legal, that's another." By deciding to punt a decision until the new year, he said, "In terms of my clients, council has done nothing helpful to this point."