City of Milpitas filed a lawsuit against City of San Jose last week for "critical errors" in the environmental impact report related to odor impacts governing the planned expansion of Newby Island Landfill and Resource Recovery Park on the Milpitas-San Jose border.
Filed in Santa Clara County Superior Court Sept. 27, the lawsuit follows San Jose City Council's denial of Milpitas' appeal in August to thwart plans to raise the height of Newby Island Landfill by about 95 feet.
On Aug. 14, the San Jose City Council voted to uphold 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 dump expansion will allow the landfill, operated by Republic Services of Santa Clara County to increase the permitted top elevation from 150 feet above mean sea level to 245 feet above mean sea level, and allows an increase in the capacity by 15.12 million cubic yards.
San Jose's plans also sought permission to relocate various garbage-related activities where and how it could receive, store, process and compost odor-causing food waste and other organic materials and manage leachate.
With the council approval, the Newby Island Landfill will be allowed to operate through approximately 2030.
"The draft EIR gave very little attention to the massive increase in odors that would emanate from the landfill, composting and recycling operations at Newby Island if the proposed changes were implemented," a Milpitas City Attorney's Office written statement released Sept. 27 reads. "Remarkably, the report falsely claimed that odors currently emanating from the Newby Island Sanitary Landfill are insignificant and that the odor impact from the huge expansion and change of planned operations would go unnoticed by the community."
With no apparent agreement with Republic in place regarding odor mitigation measures, Milpitas officials say they had "no choice but to file a lawsuit to seek a court order forcing San Jose to redo the EIR and give serious consideration" to the odor issues.
Milpitas City Manager Tom Williams said the city regrets taking legal action.
"We tried to negotiate reasonable mitigation terms with the landfill operator, but could not get them to commit to any concrete odor reducing measures," Williams said. "With more time perhaps terms could have been agreed upon, but San Jose and Republic decided to go forward with approvals this summer and that left Milpitas with little choice but to sue. We do not take such action lightly."
City of San Jose will be required to file a response to Milpitas' lawsuit within 30 days.
Richard Doyle, San Jose's city attorney, could not be reached for comment about Milpitas' lawsuit.
Milpitas' latest legal action adds to existing litigation against San Jose and the Newby Island Landfill. In recent months, the landfill has become the target of a class action lawsuit over residents' complaints about odors allegedly emanating from the dump.
<i>Contact Ian Bauer at ibauer@themilpitaspost.com or 408-262-2454. Visit us on our social media sites at facebook.com/milpitas post and twitter.com/milpitaspost.</
