On Feb. 14 -- Valentine's Day -- Waste Management gave the City of New Orleans a sweet gift: a signed "act of donation" whereby the waste-disposal company agreed to give the city 22 percent of all revenues generated by a landfill -- projected to haul in more than $30 million worth of Katrina-related debris -- located off Chef Menteur Highway in eastern New Orleans.
But there was little time for a honeymoon in the relationship this agreement created, as the landfill has been mired in controversy since its inception. Community protests, politics, disputes over environmental impact and lawsuits have cumulatively acted as an on-off switch for the landfill, which has been opened, temporarily closed, and then reopened. Its fate appeared to be sealed last month when Mayor Ray Nagin issued a statement that he would not renew or extend the executive order that created the landfill past its Aug. 14 expiration date.
Last week, however, Waste Management filed suit in state court in Baton Rouge seeking an order that would allow the company to continue operations at the Chef Menteur site. In what appears to be a legal stratagem, Waste Management sued the state Department of Environmental Quality (DEQ), a staunch advocate for the Chef Menteur landfill since its inception, but not the city or the mayor.
The City of New Orleans and Nagin are the true "adverse parties" to the landfill's continued operation and could be deemed by the court to be "indispensable parties" -- if Nagin, the city, or someone else were to intervene or object to Waste Management's failure to name the landfill's true opponents in the suit. A suit can be dismissed if an indispensable party is not joined, but someone has to raise the issue. The court on its own could raise the issue, but that leaves the matter to chance. If the city and/or the mayor were to intervene, another issue could be raised -- whether the most appropriate venue for the suit would be New Orleans, not Baton Rouge. The mayor's office did not return calls for comment.
The first court hearing is scheduled for Tuesday, Aug. 8.
Until the court issues an order, the landfill's future -- plus solutions for how, when and where to dispose of all the Katrina-related debris -- remains in doubt.
"[The Chef Menteur landfill] is essential to the cleanup and recovery of New Orleans," says Waste Management spokesman Marc Ehrhardt. "Without it in operation, the city will see the effects of that in multiple waves. First, it will take even longer to have all this debris taken off the curb and away from people's homes. Then, there won't be a plan to handle debris once demolition and renovation begins on a larger scale. After that, what about the debris from new home construction? Wave after wave, this debris is really going to pile up and hinder progress without the landfill open."
Community activists and environmentalists oppose the landfill for several reasons, including the area's recovery efforts. The landfill site is located less than a mile from a predominately Vietnamese neighborhood anchored by a stretch of businesses on Alcee Fortier Boulevard and nearby Mary Queen of Vietnam Catholic Church. The church, led by Father Vien Nguyen, has operated as the epicenter of opposition to the landfill. The neighborhood earned kudos for its fast pace of recovery as it quickly re-established businesses, gutted and restored homes and repopulated the area.
On the seemingly wiped-clean post-Katrina slate, the Vietnamese neighborhood looked toward the future, drawing plans with the Bring New Orleans Back Commission to attract tourism, enhance its infrastructure with a series of pedestrian bridges and construct a senior/community center.
While saying he remains "cautiously optimistic" that the landfill will ultimately be shut down, James Bui, regional director of National Alliance of Vietnamese-American Service Agencies, calls Waste Management's lawsuit "a means to an end."
"It's in the interest of Waste Management and DEQ to have the landfill open," Bui says. "They have devised a legal strategy to do whatever they need to do to bypass Nagin's non-renewal of his executive order."
DEQ SPOKESMAN DARIN MANN SAYS, "IT will be interesting to see what happens," in response to a question on how Waste Management's lawsuit against the state agency will affect the landfill's future.
In the lawsuit, Waste Management claims it has honored all of the conditions in its contract with DEQ to operate the Chef Menteur landfill. The suit claims that the permit is being revoked for a condition -- the executive order's non-renewal -- that does not exist in the contract. How or whether DEQ can allow the landfill to continue its operations without a permit from the city remains in question.
"It is the practice of DEQ, based on existing laws and regulations, to develop partnerships with local governments to respond to disasters that impact their cities and parishes," the agency says in a statement released by Mann. "The Chef Menteur landfill is one such facility authorized to operate by DEQ because it was environmentally suitable and the location had local government approval. We no longer have local concurrence, and therefore the agency will respect local government's decision."
Beyond issues of social justice that cite the landfill as adversely affecting marginalized communities of color striving to rebuild in eastern New Orleans, landfill opponents also object to DEQ's claim that the site is "environmentally suitable." The Chef Menteur landfill is one of four "C&D" (construction and demolition) landfills operating in the metro area, though it is the only one created specifically to handle Katrina-related debris. C&D landfills differ from municipal solid-waste landfills, which handle household garbage, in terms of permitting, regulation, construction and the types of trash taken in.
Landfill opponents object to the site's close proximity to residents; its entrance is 1.6 miles from the neighborhood's hub at the intersection of Alcee Fortier and Chef Menteur Highway. However, state regulations only require a buffer of 50 feet between residents and a C&D landfill. DEQ maps also illustrate that the Chef Menteur site is more remote than the other three area C&D landfills, which are located in Slidell, off Old Gentilly Road in eastern New Orleans and off Highway 90 near Waggaman on the West Bank.
Environmental concerns with the Chef Menteur landfill include its proximity to the Maxent Canal, a waterway originating close to the landfill and running behind the neighborhood, where it is used to water gardens, among other things. There's also concern about the dump housing sheetrock, which, when it breaks down, releases the gas hydrogen sulfide. The gas is malodorous and has been proven to cause headaches even in low quantities.
Opposing sides also have disputed the methods employed to test the safety of the Chef Menteur landfill as well as the results of those tests.
"We were trying to plan a joint sampling effort, but negotiations broke down over what we wanted to measure and what they would allow us to measure," says LSU engineer Dr. John Pardue, whose research led to the "White Paper," an article critical of the landfill's environmental impact. "The water DEQ tested came not from the landfill, but rather an impoundment filled with groundwater next to the landfill. That's not really an honest measurement -- they didn't measure what they had in the landfill."
Another concern area residents have about the landfill's safety is the lack of a protective lining to prevent toxins from seeping into the ground. C&D landfills are not required to have the protective lining. Toxins come primarily from household items such as oil, batteries and ink toner -- things that landfill opponents say would inevitably end up in a landfill designed only for construction materials. DEQ officials disagree, saying the debris headed for C&D landfills is separated from household trash curbside, and then is monitored as it enters the site. Household items not allowed in the C&D landfill are removed in that process, both DEQ and Waste Management officials say.
"Our complaint is that DEQ didn't put any kind of monitoring protocol in place to protect the residents," Pardue says. "Their decision was made by the desire to do this as quickly as possible."
"If the primary mission is to clean up," Mann counters, "then why would you advocate to close a landfill that's environmentally sound?"
LAST MONTH, MAYOR NAGIN'S OFFICE released two statements regarding the controversial Chef Menteur landfill. The first supported DEQ's claim that the site was environmentally safe as shown by results of water, air and soil analyses ordered by the city. The next stated that the mayor would not extend or renew his executive order, thus effectively closing the landfill on the day it expires: Aug. 14.
Landfill opponents applaud Nagin's decision not to permit the landfill to continue operations, though many claim political motives as the inspiration. The landfill was first closed in the week before the mayor's election, during which hundreds of citizens from the local Vietnamese community held protests outside City Hall. Dumping at the site resumed the morning after Nagin won another four years as mayor. Public pressure to close the Chef Menteur landfill continued with an organized and effective campaign that attracted attention from national media outlets such as The New York Times and NBC.
The day after Nagin's announcement that the landfill would close, DEQ Assistant Secretary Chuck Carr Brown responded with a letter outlining why the agency was opposed to its closure. Brown cited concerns over the sheer volume of debris involved with cleaning up the city after Hurricane Katrina.
Brown says the Chef Menteur landfill's 6.5 million-cubic-yard capacity is crucial to an estimated total of 20 million cubic yards of demolition debris that will need to be disposed of in the New Orleans area. Brown points out that the reduced pace of cleanup will threaten a Dec. 31 deadline FEMA has imposed in order for federal money to pay 90 percent of the total cost of debris removal. Local governments must cover the remaining 10 percent. In addition, Brown raises safety concerns, including dangers posed by debris languishing curbside and not being picked up, and trucks hauling the debris being forced to drive through more populated areas of the city.
It remains to be seen how DEQ's support for the landfill will play out in light of Waste Management's lawsuit and Nagin's decision. Meanwhile, the rebuilding effort in eastern New Orleans continues.
"We've had two community forums about the issue, including one after Nagin's announcement that would close the landfill," Bui says. "There is a community consensus that we will not stop lobbying hard to have the landfill shut down. And then, after that, have the debris removed."
- Tracie Morris Schaefer
- The controversial on-again, off-again Chef Menteur landfill in eastern New Orleans was closed by Mayor Ray Nagin last month. However, a lawsuit by Waste Management seeks to reopen the debris disposal site.