Six weeks ago, Navarro County officials did not have a say in the location of solid waste facilities within county lines. Today they do. The county laid down the law on Oct. 11, 2005, passing an ordinance designating where such a facility can and cannot break county ground.
“We’ve got a lot of development going on in our county, and we thought that was a good way to be protective of our developments,” said Navarro County Judge Alan Bristol.
Health and Safety Code Section 364.012 provides an opportunity for counties to implement a policy on the location of solid waste sites in the county by adopting an ordinance to prohibit disposal in certain areas, said Jim Allison, general counsel for the County Judges and Commissioners Association of Texas.
According to the statute, “A county may prohibit disposal of solid waste in the county if the disposal of solid waste is a threat to public health, safety, and welfare.”
The commissioners court must also designate an area where solid waste disposal is not prohibited, Allison said.
Several Texas counties have adopted such an ordinance including Brazoria, Chambers, Fort Bend, Grimes, Kerr, McMullen, Navarro, Red River, Travis and Willacy.
The Red River County Commissioners Court passed the ordinance to safeguard the health and welfare of all citizens of Red River County, said County Judge Powell W. Peek.
“We were not attempting to ban landfills in the county but to regulate their location away from schools and populated areas,” Peek said. “I definitely urge other counties to pass ordinances to isolate landfills from high concentrations of population by creating reasonable buffer zones.”
Act or React?
Navarro County is home to the third-largest lake in the state, the Richland Chambers Reservoir, said Vicki Stoecklein, director of planning and development for Navarro County. The county also houses Navarro Mills, which is the water supply for the city of Corsicana.
“We wanted to protect this water supply,” said Stoecklein. The ordinance prohibits anyone from placing a solid waste facility in these vicinities or in areas of projected future development.
The odds of a developer wanting to place a facility, specifically a landfill, in Navarro County are slim, Bristol said, as the city of Corsicana has its own landfill. However, in order to ensure the county maintains some control, Navarro County wanted to have an ordinance in place.
“We just felt it was better to be proactive than reactive,” Bristol said.
Timing is actually a key issue when it comes to passing this type of ordinance. When an application for a disposal site has been filed with the Texas Commission on Environmental Quality (TCEQ), the county loses the authority to prohibit disposal in that particular site, said Allison, of Allison, Bass & Associates, L.L.P., in Austin. The county must act on the ordinance before the application is filed.
Allison’s firm prepared the first county ordinance adopted under the Health and Safety Code provisions for McMullen County and later prepared ordinances for Chambers and Grimes counties. Each of these ordinances has been successfully defended in both state and federal court.
Pilot Project
Navarro County’s ordinance resulted from a pilot project conducted by the North Central Texas Council of Governments (NCTCOG). The TCEQ has designated councils of governments as the regional planning agencies for solid waste management.
The TCEQ has directed the COGs to develop a process for reviewing municipal solid waste facility applications and incorporate this process into the COG’s regional solid waste management plan, said John Promise, director of the department of environment and development for NCTCOG. COGs will use this process to make recommendations to the TCEQ, which ultimately approves or denies solid waste facility applications.
In order to meet the TCEQ’s requirements, NCTCOG commissioned a study performed by R.W. Beck Inc. titled “Regional and Local Review of MSW Facility Applications.” A portion of this study identified and evaluated potential options for counties regarding the siting of municipal solid waste facilities:
County solid waste facility ordinance;
Local solid waste management plan that would address land use goals/objectives and siting criteria;
Pre-application process by a local review committee; and
“No action” by a commissioners court.
The study discussed the pros and cons of each of the above options along with development processes, legal issues, timelines, cost and implementations. (To read the study in its entirety, go to http://www.nctcog.org/envir/sw/facilities/Final_facilities_report.pdf.)
According to the study, the pros and cons of option No. 1, a county solid waste facility ordinance, are:
Pros
Allows land use issues to be decided at the county level.
Provides delineation of areas that are either acceptable or unacceptable for a solid waste facility.
Only option that allows a county to implement process independent of the TCEQ or NCTCOG.
TCEQ cannot approve a solid waste facility in areas where the county has legally prohibited the disposal of waste by ordinance.
Cons
Adopting an ordinance may be difficult due to political pressures.
Suitable areas must be identified in the ordinance, which could limit the development of facilities in other suitable locations.
Acceptable areas may be defined based on political, instead of land use or technical, issues.
Cannot apply to areas that are within the city limits or in the extraterritorial jurisdiction of a city.
Limits the ability to oppose facilities that are located within the areas allowed in the ordinance.
Researchers also performed case studies of other counties that have passed siting ordinances. For example, the study offers the following synopsis:
Chambers County adopted an ordinance in March 1998 to prohibit waste disposal in specific locations of the county. Through this ordinance, the county designated 10,400 acres in the center of the county as suitable for future landfills. The basis for this ordinance was concern over threats to public health, safety and welfare, as well as the belief that sufficient disposal capacity existed. The county expressed concerns about the impact from landfills due to geology and proximity to groundwater.
The 113-page study culminated in a set of recommendations which includes the following: “The adoption of county solid waste facility siting ordinances (consistent with ?364.012 of the Texas Health and Safety Code) is currently the most viable option for integrating specific county land use into the regional solid waste planning and decision-making process.”
The preference of the NCTCOG is to receive the recommendation from the county level in the form of the ordinance, said Scott Pasternak, manager in the solid waste practice with R.W. Beck Inc. in Austin.
NCTCOG has decided that where a facility is proposed within a county that has an existing solid waste facility siting ordinance, the COG will defer to the local siting ordinance in developing their recommendation for TCEQ so long as the ordinance has been developed in accordance with state law, Pasternak said. This gives counties with an ordinance in place much greater local control in the application/approval process for municipal solid waste facilities.
“If counties take the prerogative and move forward on this, then it’s something they can control,” Pasternak continued. “Otherwise, counties are relying on decisions made at the COG or state level.”
Along these lines, Navarro County took the initiative to develop its ordinance. As a part of the NCTCOG project, R. W. Beck assisted Navarro County in evaluating areas of the county where it would and would not be appropriate to site a solid waste facility.
“We helped the county focus on objective evaluation criteria that should withstand any future legal scrutiny,” said Pasternak. This analysis served as the basis for the ordinance recently adopted by Navarro County and can also be used as a case study for other Texas counties that have an interest in developing an ordinance.
Bristol said he encourages other counties to consider the adoption of a solid waste facility ordinance.
“If you don’t,” Bristol said, “any place will be fair game.”
Key Points of Consideration
Allison said counties considering a solid waste facility siting ordinance should be sure and consider the following:
The procedures and language for the ordinance are very specific and technical. Any failure to follow these requirements precisely may result in a void ordinance.
To minimize liability, the county should prepare and adopt a Takings Impact Assessment under the Private Real Property Rights Preservation Act (Chapter 2007, Government Code), before adoption of the solid waste ordinance. The procedures and requirements for a Takings Impact Assessment are also very specific and technical.
The county should expect litigation. The potential profits from solid waste disposal sites are very large. Consequently, any entity that attempts to initiate a site will likely be prepared to contest the ordinance in court. Litigation requires expensive expert testimony. It is often not covered by county insurance.
An alternative strategy would involve contesting the suitability of a proposed site before the Texas Commission of Environmental Quality. It is also expensive and may not be successful, but it can be initiated after the application is filed.
Julie Anderson, Editor
