POSTED:   09/17/2014 05:17:36 PM PDT1 COMMENT| UPDATED:   ABOUT A MONTH AGO

In order to stop persistent odors that waft toward the city, Milpitas officials are seeking an outside law firm to take on who they claim is the No. 1 odor generator nearby: the neighboring Newby Island Landfill and Resource Recovery Park.

Milpitas City Council voted 4-0 Tuesday to receive an update on a request for qualifications to hire environmental litigators to potentially force Republic Services of Santa Clara County to close its more than 70-year-old landfill on the San Jose-Milpitas border.

"We are seeking firms with expertise in environmental law," Milpitas City Attorney Mike Ogaz told the council prior to its vote. "The RFQ was initiated by council several months ago with the direction to the city attorney to create a request for proposal with the goal of seeking an end to the odor problem plaguing Milpitas."

Ogaz added outside counsel should specialize in environmental law or public nuisance litigation to create "a game plan" to get rid of odors here.

City reports state during a closed-session meeting in June the council considered various options to address odor problems affecting Milpitas residents. The mayor and council members say they've been approached periodically by citizens and asked what might be done to eliminate the odor problem.

For more than one year, city reports state the city attempted to negotiate with Newby Island Landfill and Resource Recovery Park operator Republic Services in the hopes of finding an acceptable solution to ongoing odors and the potential for greater odor emissions

"Those were confidential settlement negotiations so we can't discuss the outcome in public sufficient to say that no settlement was achieved and the discussions were terminated and we had no options," Ogaz said. "It appeared that the only option we'd have would be to look toward litigation in order to alleviate or control the odor problem."

In addition, while the city previously filed a lawsuit challenging the California Environmental Quality Act environmental impact report following a 2011 plan to expand the landfill -- that lawsuit is on appeal after a judge last December ruled against the city's claims.

Filed in Santa Clara County Superior Court in September 2012, the city's lawsuit followed a San Jose City Council vote to deny Milpitas an appeal to thwart plans to raise the height of the landfill by about 95 feet. That council instead upheld San Jose Planning Commission's prior certification of the expansion's final environmental impact report and its conformance with the California Environmental Quality Act for the facility at 1601 Dixon Landing Road in San Jose.

The expansion would allow landfill operator Republic Services to increase the dump's permitted top elevation from 150 feet above mean sea level to 245 feet, and allow an increase in its capacity by 15.12 million cubic yards.

San Jose's plans also sought permission to relocate various garbage-related activities including where and how it could receive, store, process and compost food waste and other organic materials and manage leachate liquids existing in or passing through the water.

With the San Jose council's approval, the Newby Island Landfill would be allowed to operate through approximately 2030.

Although the city has appealed it, the city attorney claimed there's no assurance the appeal will result in a long-term solution.

"It's not sure where the outcome will go, but even if we win that lawsuit defects on that (project) can be corrected and they can move forward," Ogaz said. —... The landfill can continue to get their permits to double the height."

The city attorney claimed other civil jurisdictions have fought and won similar fights against landfill operators due to malodorous impacts.

Ogaz noted the example of a city's successful abatement of landfill odors took place at the Fresh Kills Landfill located on Staten Island, N.Y. -- at one time deemed the world's largest landfill that largely served the refuse of New York City.

"It was many times larger than Newby Island, but nonetheless was a big problem and caused horrific odors and caused claimed health problems," Ogaz said.

In 2001, following more than 50 years of odor complaints from residents, government studies noting the landfill's air pollution negatively impacting Staten Island residents and successive lawsuits, then New York City Mayor Rudolph Giuliani, then New York Gov. George Pataki and former Staten Island Borough President Guy Molinari settled a 1996 lawsuit brought in federal district court by Molinari, Giuliani and Pataki that promised to close Fresh Kills by Dec. 31, 2001. In March of that year, the Fresh Kills Landfill accepted its last delivery of garbage.

Today, the former dump site is slowly being turned into park space, officially called Freshkills Park.

Once completed in the next 30 years, the $1.4 billion, 2,200-acre multi-phase project may create the largest park in New York City -- expected to be three times larger than New York's Central Park.

"With dedicated people it was successful in the end," Ogaz said. "So we're hoping that we can achieve eventually a similar result here in Milpitas and that's where we created the RFQ."

The request for qualifications is ready for publication and was expected to be available today (Sept. 19). The packet is already available online from the city's website -- www.ci.milpitas.ca.gov. It will request environmental law firms submit their qualifications for this undertaking to the city attorney by Friday, Oct. 31.

Review of the submittals will result in a limited number of interviews and finalist selection.

"We hope to receive numerous responses from the RFQ from qualified firms as a result of these outreach efforts," Ogaz said.

City staffers say they hope to provide a recommended firm to the council for interview in November.

Ogaz said the actual process involved depends on how many submittals the city will receive.

"We could get three, we could get 300, we could get 3,000 but in any case the first step would be winnowing the ones who aren't really qualified," Ogaz said, adding the selected few would undergo council interviews in closed-session meetings. "But again the council doesn't have to choose anybody or may choose two different firms to come up with a concept plan and move forward. So we're very excited about the possibility to actually take action to alleviate the odor problem in Milpitas."

At the meeting, residents also had comments about the odor issues they continually face.

Pradip Radhakrishnan, a five-year resident who lives with his family near Dixon Landing Road, thanked the council for pursing this plan.

"I really appreciate this," he said. —... I want to start by offering help and assistance; if there is any way that we can rally the troops on our side and help you or the legal firm that you hire."

Mayor Jose Esteves thanked the resident.

"We might need your contact information because hopefully it will be a litigation issue but maybe it will be a community issue where we would need the whole community acting together for a common cause, we don't know yet," Esteves said.

In response, Radhakrishnan, 42, said about a week ago he and his two children -- a 10-year-old and a 5-year-old -- were lounging outside their home before they perceived a strong landfill odor.

"We were enjoying the summer and just about to eat and then the smell comes and we had to run inside; that's the quality of life we are experiencing," he said. "I'm sure all of us experience that."

Afterward, agreeing that experience was common for many residents here, Esteves said the litigation process may lead to the potential of closing the landfill.

"Because after all (a landfill) should not be in the middle of the population, it should be far, far away from the population and people," Esteves said.

Rob Means, a city council candidate this November, said the city seemed to be targeting Newby Island Landfill only and not other possible odor producers including a nearby composting facility, the San Jose/Santa Clara Water Pollution Control Plant and even San Francisco Bay at low tide.

"I guess I'm just not real confident that the dump is our only problem, we may have other problems going on here," Means said.

He added if the dump is closed then the city's garbage would likely have to be hauled to a much farther location.

"That is going to be a financial burden on the residents of Milpitas because that means the garbage rates are going to go up," Means said. "Perhaps we should take a different approach and try to reduce our flow of stuff to the dump in the South Bay area...we're going to have to become more sustainable at some point in time and the less garbage we have the less odors we'll have to deal with."

In response to Means' comments, Esteves said the initial feedback he'd heard from residents was that they would rather pay more in garbage rates than "having garbage in their back yard."

"Obviously, if a home is worth $1 and there is garbage in the back yard I will not buy that home for a $1," Esteves said, adding the city and residents have been struggling with this problem for some time. "I think it's about time to do more drastic actions."

The mayor claimed the odor problem has also created many "lost opportunities for the city" as businesses may not want to locate here due to odors.

"Some homebuyers may not want to come to Milpitas because of those issues," Esteves said. "But the scary part is there may be a potential for health issues with our residents. We cannot afford to take a chance talking about health issues for residents."

Councilwoman Carmen Montano noted she has lived in Milpitas since 1964 and experienced the odor from the landfill back then.

"And it's gotten worse because the mounds have gotten bigger and bigger," she said. —...It's been an ongoing source."

Voltaire Montemayor, a council candidate this fall, said the city needs help from above.

"We need rain," he said. "I think water will neutralize the odor if we have enough water, the rain."

Esteves replied, "I'm not sure about that; if it's wet it could be more serious."

Although Republic Services representatives did not appear at Tuesday's council meeting, on Wednesday Newby Island Landfill Division Manager Augustin Moreno said the dump was not the only source of odor near Milpitas.

"We certainly have more than eight sources of odor in this area here," Moreno said.

He noted the sewage treatment plant and composting beds are among the many odor producers in the South Bay.

Moreno, who could not comment about the city's actions directly, claimed his company would fight the city if need be.

"We have our lawyers and will have a defense for that," Moreno said.

Councilman Armando Gomez recused himself from Tuesday's vote on this item because he works for San Jose Mayor Chuck Reed.

LANDFILL AWARD

Republic Services recently touted an award they'd received that their refuse operation achieved "World Class Landfill Status."

"This coveted recognition is based on a vigorous scoring system created to standardize landfill operations across the company," reads a Sept. 5 written statement from Republic Services.

The statement asserts that a comprehensive, 18-page evaluation measured the identified landfill standards and best practices in environmental compliance; equipment and maintenance standards; operations; public image; nuisance control; and planning and training.

"The scoring ranges from 0 to 100, with anything above 92 considered World Class Status. Newby Island Landfill received an evaluation score of 95, one of the highest scores achieved to date," the Republic Services statement reads.

Newby Island Landfill also received hand-signed certificates from Chief Executive Officer Don Slager certifying the facility as a world class operation.

"Employees were rewarded with a gourmet barbecue, glass trophies, Republic's backpacks, personalized key rings and an official letter sent to each employee's home announcing the recognition and Republic's gratitude to not only each employee but their supportive families," Republic Services' statement reads. "The main entrance of the NIRRP also boosts a welcome sign indicating World Class Landfill Status."

Newby Island General Manager Marc Fitzsimmons agreed.

"You can't have a world class operation without world class employees. We are fortunate to have such a focused and dedicated team," Fitzsimmons