Winnemucca News

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Review of lawsuit against Humboldt County & Humboldt County Board of Commissioners - 05-03-2010

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WINNEMUCCA — On April 22 Jungo Land and Investments filed suit against Humboldt County and the Humboldt County Commissioners.  The commissioners are being sued in their official and individual capacities.

Jungo is seeking judicial review of the actions taken by the commissioners, is seeking damages and financial compensation that stem from said actions, and is further asking the court to reinstate the decision made by the Regional Planning Commission to grant the company a five-year extension on the conditional use permit (CUP) necessary for Jungo to move forward with the development of a class 1 landfill on Jungo Rd. As to the damages, no exact dollar figure was given except to note it will be in excess of $10,000 and may include attorney fees and costs of bringing the suit. 

The lawsuit paints a picture of a commission who first voted to allow for out-of-district waste then bowed to political pressure and took away the permit Jungo needed to move forward – after the company spent three years and $1 million in development.

ED -- The defendants have not yet responded to the allegations in the lawsuit. SPJ will report on the response when it becomes available.  The lawsuit is lengthy and complex. What follows is a snapshot of the elements contained in the suit.

AT ISSUE #1:  The April 5 meeting of the Humboldt County Commission

On April 5, 2010 the Humboldt County Commission heard an appeal filed by Robert Dolan and Massey Mayo.  The two attorneys asked the commission to reverse the decision made by the Regional Planning Commission (RPC) in extending Jungo’s CUP for five years.

Commission Chairman Chuck Giordano announced the hearing would be conducted in a quasi-judicial manner and the rules of evidence would be followed.

Among Dolan and Mayo's arguments was an allegation that Jungo Land & Investments did not put forth the resources nor did they work in good faith to obtain the permitting necessary to begin construction of the landfill within the three years granted to them in the original CUP.

The commission agreed and reversed the RPC’s decision to extend Jungo's conditional use permit for five years.

In reference to the hearing Jungo argues in the lawsuit the appeal hearing was improperly conducted because:

• Judicial hearings should be fair and impartial. Acting against the advice of their own legal counsel, Commissioner Tom Fransway was permitted to participate in the appeal despite the fact he was on the record saying he would do whatever he had to do to kill the project and had urged NDEP not to issue the air quality permit necessary for Jungo's ability to construct a class 1 landfill. 
• Appeals are limited to information that is already on the record. Dolan was permitted to go outside of the record and introduce new evidence, which put Jungo at a disadvantage because they had no prior warning this would be allowed.
• Not only did they not follow judicial process, Jungo argued, but the commissioners weren’t in compliance with Nevada’s Open Meeting Laws, either. For example, no commissioners were allowed to make motions and the public was not allowed to comment. After testimony Giordano lead a general discussion then called for a vote on the questions he formulated. Commissioner Garley Amos expressed doubt and had to be encouraged to vote with the rest of the commissioners – calling into question the legality of the unanimous vote needed to reverse the RPC.
• The commissioners did not address the legal issue of whether or not Dolan and Mayo had standing on the issue. Jungo has repeatedly attempted to argue the two attorneys do not having standing on the issue of Jungo's CUP, but the commission never heard arguments on the matter.  The suit notes, “The Board of County Commissioners had no jurisdiction to hear the Dolan Appeal because Dolan lacked standing to file the Dolan Appeal.”

In reference to the commissioner’s decision to reverse the RPC the lawsuit argues the commissioners acted outside of the law:

• In Humboldt County, the commissioners review RPC decisions under an abuse of discretion standard.  So, the commissioners had to first determine whether or not the RPC abused their discretion in granting the CUP extension. This was never done.  The issue of whether or not the RPC abused their discretion, or in what way, was never under discussion.
• Jungo alleged the one and only fact referenced in the Notice of Decision issued by the commissioners was incorrect. The commissioners allege that Jungo failed to meet the terms of the CUP by waiting 22 months to begin the permitting process.  The suit notes, “Jungo filed its application for the Operating Permit 12 months after the CUP was issued and less than 5 months after the Board of County Commissioners approved the Amendment to the County’s Solid Waste Ordinance.” The air-quality permit had already been issued by the NDEP at the time of the April 5 meeting.

AT ISSUE #2:  The actions of the Humboldt County Board of Commissioners

• The suit also alleges Commissioner Tom Fransway worked in his official and individual capacities to block the landfill – at a time when Jungo held a valid permit from Humboldt County to pursue the project.
• The suit alleges Fransway attended an RPC meeting against the advice of legal counsel where he obtained information and formed opinions that tainted his ability to fairly hear the Dolan appeal.
• The suit alleges Fransway acted outside of his duties as a commissioner by seeking assistance from US Senator Harry Reid and Nevada Governor Jim Gibbons to block the project – at a time when Jungo had a valid permit from Humboldt County to pursue the project.
• The suit alleges Fransway used his position as Chairman of the Humboldt County Commission to incite public discontent.  The suit notes, "Defendant Fransway, acting as chairman of the Board of County Commissioners, authorized, promoted, encouraged, and orchestrated abusive treatment" of Jungo's representatives "including cross-examination by lawyers, shouting and disparaging comments and unfounded and unsubstantiated accusations against Jungo."
• As a result of Fransway's actions, the suit continues, significant public opposition was created against the company.
• In consideration of all this, Jungo could not receive a fair hearing at the April 5 appeal. The suit notes, "Defendants failed to provide a fair, independent and impartial tribunal to hear the Dolan Appeal, and both the hearing and the Board of County Commission decision was improperty tainted and unduly influenced by Defendant Fransway's inappropriate participation."
• The suit notes the vote taken by the Humboldt County Commission to change the solid-waste ordinance to allow for out-of-district garbage was unanimous and included a yes vote from Fransway.
• The suite alleges the commissioners themselves acted in ways that delayed the permitting process then took away the company’s CUP extension when construction didn't begin on time. For example,  the suit notes the Humboldt County Board of Commissioners requested NDEP hold a hearing in Winnemucca on the air-quality permit.  NDEP policy requires the agency to respond to each and every comment obtained at the public hearing last August – a very lengthy process.

AT ISSUE #3:  Zoning Law

The suit argues the Humboldt County Code puts the authority to grant CUP extensions entirely within the jurisdiction of the Regional Planning Commission, and the county commission did not have the authority to either review or reverse the RPC on this particular matter.

• Quoting from condition #7 of Jungo's CUP, “The activity for which this Conditional Use Permit is issued (long term solid waste disposal site) shall commence operation within three (3) years of the date of the final approval or becomes null void, unless an extension request has been approved by the Regional Planning Commission.”

Dolan and Mayo are referred to in the suit as “non parties” because, the suit argues, they lack the necessary standing to appeal the decision as they had no property or legal interest relating to Jungo’s CUP.

The suit alleges the county commission has never heard an appeal from the RPC’s grant of a conditional use permit … except in the Jungo matter.

Jungo argued it had good cause for extension and submitted the following on its permitting efforts (with special note the Humboldt County ordinance allowing out-of-district garbage was not amended until October 2007):

Nevada Division of Environmental Protection’s Bureau of Air Pollution Control Class 1 Air Quality Permit

• Ongoing throughout 2008, Jungo and the environmental consultant it retained, worked on the air quality permit application.
• Application submitted to NDEP on January 8, 2009.
• On February 25, 2009, the Bureau of Air Pollution Control (BAPC) determined that the application was complete.
• In March 2009, BAPC commenced technical review.
• On May 22, 2009, NDEP issued the draft permit and opened the public comment period on its intent to issue the Air Quality Permit AP4953-2525, made the draft permit available at the Humboldt County Library and accepted public comments.
• Pursuant to the request of the Humboldt County Commission, NDEP held a hearing on the draft permit on August 19, 2009.
• NDEP is completing its response to the public comments received, and it is anticipated that the permit will be issued by the end of 2009 (The permit has since been issued).

Nevada Division of Environmental Protection’s Bureau of Waste Management Municipal Solid Waste Disposal Site Permit

•  In August 2007, Jungo met with Bureau of Waste Management (BWM) staff to discuss requirements for solid waste disposal site permit.
• Ongoing throughout the end of 2007 and into 2008, Jungo and Golder & Associates prepared the solid waste disposal site permit application, including design plan, operations plan and monitoring plan. In preparation for these applications, Jungo/Golder performed hydrogeologic and geotechnical investigations which included the following activities:
  • Golder installed five groundwater wells to determine groundwater parameters, including depth to groundwater and groundwater flow direction.
  • Golder took groundwater samples to establish background water quality conditions, which will be used to verify that groundwater quality is maintained throughout the life of the landfill.
  • Golder took soil slug tests to determine in-site hydraulic conductivity of site soils.
  • Golder installed a transducer into one of the groundwater monitoring wells to measure groundwater levels on a daily basis.
  • Golder has reviewed various reports about the regional geology and hydrogeology to determine basin geologic and hydrogeologic conditions.
  • Golder has reviewed the State of Nevada Water Well Database to identify regional wells and review historic groundwater levels.
  • Golder performed geologic logging of five borings to depths of 100-145 feet below the ground surface to determine soil types and conditions below the ground surface.
  • Golder performed laboratory testing on the soil samples to measure key geotechnical engineering properties.
  • Golder reviewed USGS reports and maps to determine the location of known active regional faults.
  • Golder reviewed the USGS earthquake database to determine peak ground accelerations at the site and design a potential earthquake event.
•  Jungo submitted the application for the Solid Waste Disposal Site Permit to NDEP on April 2, 2008.
• On April 29, 2008, BWM determined that the application was incomplete.
• On December 24, 2008, Jungo resubmitted the application to NDEP.
• On January 15, 2009, the application was determined complete by BWM and BWM’s technical review commenced.
• On March 4, 2009, BWM provided its first round of technical comments.
• Pursuant to BWM’s first round of technical comments, Jungo and Golder worked on design modifications, and on May 29,2009, Jungo submitted its response to BWM.
• BWM estimates that it will proceed to the public comment period in the first or second quarter of 2010.

 Stormwater Permit

• Throughout 2008, Jungo along with its environmental consultant, worked on the preparation of the Stormwater Plan.
• The Stormwater Plan and subsequent filing of the Notice of Intent is pending receipt of comments from BWM on the solid waste permit.

 

Dust Control Plan

The Dust Control Plan is part of the Class 1 Air Quality Operating Permit. See status under Condition #1 above. Jungo will submit the Dust Control Plan to the Planning Department once it is approved by NDEP.

 

Jungo also provided the following to the Planning Department:

Payments on Lease Option for Purchase of Landfill Property: Jungo has a lease option agreement for the property APN 05-411-11 and has been making annual lease payments since 2006.

Intermodal Facility in Bay Area:  Jungo has been working with the Union Pacific Railroad in locating a site for an intermodal truck-to-rail loading/unloading facility. A site has been identified and design/engineer work by both UPRR and Jungo’s consultants has commenced for the location.

Negotiations with Union Pacific:  Jungo has been negotiating with Union Pacific Railroad Company for the transport of refuse and construction of the spur lines and other railroad improvements needed for the Jungo site.

Host Agreement:  The host community agreement would provide revenue for Humboldt County based upon the volume of waste being disposed of at Jungo landfill. Since submitting a proposed host community agreement with its CUP application in March 2007, Jungo has been working with counsel for Humboldt County on the language of that agreement.  Between March and September 2009, counsel for Jungo exchanged multiple drafts, comments and revisions to the proposed host agreement with Humboldt County District Attorney’s Office.

Legal Services:  Jungo has retained Nevada counsel for the purpose of assisting with the land use process and state permitting process, drafting and negotiating the host agreement, drafting the trust agreement for post-closure financial assurances and negotiating a water rights purchase.  Jungo’s legal fees have increased significantly as a result of recent efforts to obstruct the landfill project.  These efforts include, but are not limited to:  (1) petitions to revoke the CUP that were filed over two years after the CUP was granted and appeals of the decisions by the Planning Commission and County Commission regarding those petitions; (2) public meetings in Humboldt and neighboring counties at which the Jungo project has been discussed and/or placed on the agenda; (3) interference with the state permitting process; and (4) federal efforts at additional oversight over the state permitting process.

Economic Impact Information:  Jungo has worked with Lindsay Anderson, Director of Business Development & Research at the Nevada Commission on Economic Development, to obtain an economic impact analysis regarding the Jungo project.  Jungo has presented that information to the Humboldt County Economic  Development Authority.

While the company pursued the legal requirements to operate a class 1 landfill, after June 2009 it had to simultaneously defend itself from actions taken by anti-landfill groups.  The suit notes the public discontent came two and a half years after the CUP became final on April 23. There were multiple meetings where the landfill was discussed (Regional Planning Commission, the Landfill Committee, Winnemucca City Council, Humboldt County Commission whose board members changed ordinance to allow out-of-district garbage). As Jungo notes, all of these meetings were agendized and the proposed landfill was front-page news.

Yet, no one came forward at the time to oppose the landfill -- including Dolan.  It would be another two and a half years before public discontent began to surface.

Written by Dee Holzel - Silver Pinyon Journal - 5/3/10

• Winnemucca News