Suggestions on What to Do About DC's Garbage and Trash transfer Stations

From: Myles Glasgow, 202 328 9572 on 3/10/98

Question: Who in the past ten years had the power and right to lead the District of Columbia away from the current crisis involving the improper siting, design, location, operation and monitoring of privately sited garbage and trash transfer crisis, which will probably cost the city several million dollars a year in tipping fees, devaluation of nearby commercial and residential property, flight of businesses from DC's CM and M districts and significant personnel and personal costs due to increased health problems of nearby workers and residents?

Answer: Ken Laden in DPW and Ms. Dennis and Mr. Colby in OP, the Zoning Commission members, Ms. Bennett and Mr. Parsons and Mr. Franklin and Ms. Kress and other leaders in the bureaucracy and elected government.

1. Replace each of the above persons with others much more proactive, perceptive, imaginative and resourceful and direct them to act accordingly in carrying out their duties.

2. Do every legal action that prevents the currently improperly sited garbage and trash transfer stations as well as any others from gaining any permanent rights to remain where they are located or at any place until the city government determines where in the city transfer activity can occur.

3. Institute public nuisance law suits against all four garbage and trash transfer stations.

4. Prevent the final zoning rules and regulations from becoming final until the regulations conform with the NCPC recommendations and until the fiscal impact of those regulations are fully studied.

5. Immediately and adequately fund Corporation Counsel to follow a coordinated legal strategy to achieve one clearly defined goal of locating transfer activities to one properly sited and designed area in the city.

Warning: Unless we dramatically change the persons responsible for this current crisis and the ways in which it is being handled, DC's CM and M districts will fail to have properly sited, designed, operated and managed garbage and trash transfer stations in either the private or the public sector.

1. A record of inactivity and lack of planning exists.

There is an official paper trail since 1988 that shows the story of how private and public solid waste transfer station activity has been ignored by the key decision makers responsible for the District of Columbia's public and private handling of solid waste as they pertain to planning, zoning and public works. Beginning with Eastern Trans Waste, then BFI and then Mike Perkins from North Carolina who joined with Waste Management, Inc., and then LG Industries which then joined with USA Waste, the largest companies have taken advantage of DC's lack of readiness to increase their control over the collection, transfer and disposal of waste from DC. Many small, DC based, garbage and trash haulers have been eliminated in the process, making DC's businesses, apartments and office buildings more dependent upon a few haulers with monopolistic-like controls over prices and services. These are decisions which are like casting a mold we are stuck with for forty and fifty years. The wrong decisions must be stopped now.

DC's CM and M workers, businesses and nearby residents have been and will be subjected to types of environmental intimidation, depression and terrorism because governmental agencies and courts have chosen to not protect them and to instead force them to tolerate the adverse impacts from these improperly sited, designed, operated and monitored sites. Few in our society take actions to be concerned with where our garbage and trash goes when we discard it or whose lives it affects. This public "denial" continues with the help of well meaning but na•ve Judges, environmentalists and negligent government bureaucrats from the President, Congress, Mayor, Corporation Counsel and the City Council down to the inspectors, apathetic business owners, inactive labor unions and a truly culpable legal profession. Many of these players are still on the job and your reliance on them to change the story is na•ve.

2. Garbage and trash transfer stations have long been necessary.

Solid waste transfer stations have been necessary parts of the urban regional solid waste system for a long time. Incinerators are no longer environmentally acceptable in most urban centers. Landfills have usually been far from the city core. Garbage and the trash from homes, businesses, offices, restaurants, schools, hospitals, factories, the street and everywhere else has to be hauled by truck or by rail to locations twenty to two hundred miles from these urban centers. The transfer station is where the compactor that you see pick up the garbage and trash from your home, work or elsewhere takes it to drop off on its way to final disposal. Although suburbanites and tourists cause most of the garbage and trash left in most big cities each day, most suburbs fail to help the urban core transfer that garbage and waste on its way to further final disposal sites. Nearby suburban landfills are either closed to the urban jurisdiction or themselves closed. Until this week, each transfer station in the abutting suburbs was closed to private waste from DC. Now, Fairfax County will accept private waste from DC at its I-66 transfer station. Perhaps Montgomery County and Prince Georges will follow suit if you or others encourage them to accept DC waste.

3. Engineers have designed proper sites all over the world.

Transfer stations are like airports, they may be necessary, but public health and safety demands that they have a certain space, design and package of protections before they can be properly located. However, most persons, including Judges, legislatures, government bureaucrats and the general public have little idea of what criteria should govern a properly designed garbage and trash transfer station. Neither the Zoning Commission, the Office of Planning or DPW have done anything in the past to obtain professional reports on what design criteria should govern a state of the art garbage and trash transfer station in DC. The companies in that industry have not produced such a report. The guiding principle has been don't do it properly if no one knows the difference.

4. DC government policy planners have failed to plan properly.

Since 1988, no one in the DC government's Judiciary, Legislature or Administration has paid any, let alone the best, independent experts for a baseline report that establishes acceptable models and controlling criteria for the private sector's properly sited , designed, operated and monitored garbage and trash transfer stations in Washington, DC. Instead, government decision makers from the Office of Planning, the Zoning Commission, the Department of Public Works and elsewhere have ignored the pleas of the City Council and DC's citizens.

On June 15, 1992, in Zoning Case 91-17, the then Zoning Commissioners Tersh Boasberg, John G. Parsons, Maybelle Taylor Bennett and William Ensign, with the assistance of David Colby and Al Dobbins of the Office of Planning, refused to adopt regulations governing garbage and trash transfer stations. Witnesses who opposed the weak regulations proposed then by the Office of Planning to allow recycling centers, testified that strong regulations were needed to protect the health of the DC community from the health risks posed by recycling and garbage and trash transfer stations. In over 148 pages of testimony, DC residents' wisdom and insights were ignored by Ms. Taylor Bennett and Mr. Parson and the others. They ignored the testimony of Kathryn A. Pearson-West, President of the Upper Northeast Community Coalition and Andrea Ferster of the Sierra Club, Mr. Paul Washington and others who asked the Zoning Commission to include garbage and trash transfer stations under strong regulations at the same time recycling regulations were adopted. The Washington Post articles of 9/17/91 showed that this waste included snakes and the article of 4/16/92 showed that community fears about health issues were well known but ignored. The DPW report of 7/31/92 noted that many in the community complained that recycling and garbage and trash transfer stations had many of the same aspects: separation of waste, materials compacting, storage, heavy truck traffic, public health and safety concerns". The record of that ZC 91-17 on June 15, 1992 shows that DPW, OP and the Zoning Commission ignored the complaints and warnings from the residents near the BFI site, Ms. Jacqueline Johnson of 2327 14th St. NE pages 93 to 96, Mrs. Ruth Wilson of 13th St. NE. pages 96 to 99 and the hydrogeologist, Mr. Gustav Jackson of Shadyside, Md. pages 99 through 106 who warned that dust blowing from these transfer activities can carry lead and mercury to a radius of 3,500 feet. He stated: My studies of the locations and facilities around that site (the BFI site then considered only a Tony Lash and CWI site) suggest that the radius of influence of any contaminants on the community should at least be 3,500 feet." At page 102. He recommended that an independent risk assessment study be undertaken and must include "exposure assessment, risk exposure evaluation, exposure pathways for receptors, exposure levels for receptors, evaluation of current and future potential risk to human receptors, and evaluation of current and future potential risk to the environment."

As of today, no independent expert studies were done by DPW, OP or the Zoning Commission on any of these points.

ZC 91-17 arose in part because the Board of Zoning Adjustment failed to have the wisdom of the then Zoning Administrator, Mr. Joseph Botner. Mr. Botner had issued a written decision that consolidated industrial processing proposed by Mr. Lash at the site now occupied by BFI could not occur in a CM district in the city unless it was approved for a variance by the BZA. The rest of the government failed to support Mr. Botner. The BZA on its own motion overruled Mr. Botner, arguing that the Zoning Commission's open ended loophole regulation which allows "any light processing" as of right in any CM district should be read to allow even solid waste processing of inorganic recyclables. The Office of Planning responded with proposed regulations to govern recycling facilities in Zoning Case 91-17 but refused to propose that the Zoning Commission adopt regulations to govern the much worse activity of garbage and trash transfer stations. Two of the current Zoning Commission members, Ms. Bennett and Mr. Parsons, also denied the above referenced 1992 oral requests from citizen witnesses in ZC 91-17, who asked the Zoning Commission to include garbage and trash transfer stations under the proposed regulations. In that 1992 Zoning Hearing, key staff from the Office of Planning, including Mr. Colby, DCRA and DPW, including Ken Laden, encouraged the Zoning Commission to deny those citizen requests for zoning regulations to govern garbage and trash transfer stations. Instead these government policy makers told the Zoning Commission they would and wanted to control garbage and trash transfer stations only through "licensing regulations". Following soon after the Zoning Commission chose to not adopt zoning regulations governing garbage and trash transfer stations in Zoning Case 91-17, the DC Court of Appeals upheld the BZA's earlier interpretation in the case of Tony Lash and his company CWI, that the Zoning Regulations' above referenced loophole-allowance of "any light processing" in a CM district meant that industrial processing involving the sorting, bailing and shipping of inorganic recyclables as well as disposal of a residue was that kind of processing which was entitled as a matter of right in DC's CM districts. That December 22, 1993 decision was used by the waste industry entrepreneurs to claim that DC's law, as interpreted by DC's BZA, the Zoning Commission and the Courts, opened up all of DC's CM and M districts as authorized places where garbage and trash transfer activity could occur as a matter of right. During the Mayoral term of Sharon Pratt Kelly, DC's Office of Planning and Department of Public Works and DCRA promised to produce licensing regulations to govern garbage and trash transfer stations. At their urging, no zoning regulations were adopted even though citizen witnesses had begged the zoning commission for the necessary protection. The key staff person for the City Council's Committee on Public Works, Craig Paschal, followed the lead of these agencies, thereby allowing a regulatory vacuum to occur from 1991 to 1995. Mr. Paschal helped the DC City Council adopt various pieces of legislation aimed at controlling garbage and trash transfer stations, but allowed the regulatory vacuum to continue by acquiescing to DPW, OP and DCRA staff pressure to let them regulate through licensing important issues such as what criteria should govern siting, design, operation and monitoring.

Only after Mayor Barry took office in 1995 did there slowly appear some of the proposed licensing laws that DC's agencies had promised in 1992 when they discouraged the Zoning Commission from adopting zoning regulations to control garbage and trash transfer stations. The agencies were totally unprepared for the quick appearance of the numerous garbage and trash transfer stations in 1993 and 1994.

In July of 1994, DCRA led an effort to revoke the Certificate of Occupancy issued in March 21, 1994 for 2160 Queens Chapel Rd. NE. because although the C of O allowed processing and manufacturing of steel products, the site was being used as a garbage and trash transfer station. The operators argued that they had been in the business of hauling garbage and trash for a year or more from Tony Lash's site at Brentwood and W St. NE and from the 1500 block of 1St St. SE operated by ETW, and that the Court of Appeals decision in the Tony Lash, CWI case made it clear that DC's CM districts were fair territory for garbage and trash activity. the city's DPW headed up a coordinated agency effort the leading policy planner in DPW testified in the first court case testing the city's power to close one of the new sites that the city's desire to close it was to capture the tipping fees it was loosing. No mention was made of the right of the city to enforce its zoning laws. No effort was made to enforce the city's zoning law as it was being violated by everyone of these sites according to the then Zoning Administrator. Neither the BZA nor the DC Court of Appeals had decided that garbage and trash transfer stations were processing or that they were entitled as a matter of right to be in a CM district. Judge Mitchell Rankin, a DC Superior Court Judge, who heard no evidence about the city's zoning laws, volunteered in her declaratory judgment and permanent injunction that the processing provision of the zoning regulations entitled garbage and trash transfer stations to operate as a matter of right. That judicial activism absent an evidentiary record to justify the excursion seriously encouraged the waste industry to dig in and to boldly expand and defend their use of the city's CM district as garbage and trash territory. "winged it" and exhibited what might be charitably described as good intentions wrapped with no knowledge, research or follow through and have bungled nearly every governmental effort to deal with the problems garbage and trash transfer stations have presented. This includes the Zoning Commission, the Board of Zoning Adjustment, the Office of Planning, the Department of Public Works, the Department of Consumer and Regulatory Affairs, the Corporation Counsel, the Mayor's office and the City Council.

The only agency that rose to the occasion was the Commission of Public Health, which was studiously ignored by each of the other governmental agencies. Most recently, Ken Laden told me that he was convening a "scope" meeting of "volunteers" from the waste industry to scope the parameters for the City's RFP for proposals for a citywide transfer station site. I told him that there are great, independent experts available for from $125 an hour to $1,000 a day and that it pays to focus on getting a core group of such experts to scope such an RFP, yet he rejected that approach for the "freebee" one. His record on transfer stations disqualifies him in my mind from being one whom the city can entrust the job of developing its present or future policies regarding garbage and trash transfer activities for private or public uses. For that reason, let me begin with DPW.

5. DPW's record is a waste.

The Department of Public Works is the wrong DC agency to monitor the environmental impacts of garbage and trash transfer stations, and the job should go to the Department of Public Health's Environmental Regulatory Administration, presently under Ted Gordon, because:

1. DPW violates environmental protections everyday at Fort Totten and lacks credibility

2. DPW's enforcement against private transfer stations is viewed as an attempt to cripple potential competitors.

3. Private Waste companies routinely hire DPW and other regulatory staff, which undermines the independence of DPW staff who are inclined to not enforce the environmental laws against these private companies.

4. DPW staff are not trained in public health protection skills.

5. DC's Department of Public Health has the public health as its mission and has the staff to enforce the city's environmental protections against diesel fuel particulates, fugitive dust, disease carrying vectors and other problems which garbage and trash transfer stations cause.

6. DPH has the independence to equally cite both DPW and private garbage and trash sources for violations.

7. Courts are much more likely to be responsive and sensitive to DC's Department of Public Health's complaints against garbage and trash sources than to complaints by DPW.

8. Department of Public Health administrators are much better trained in public health problems and better trained to supervise their staff's knowledge of health problems caused by garbage and trash transfer stations than are the DPW administrators.

9. DPH administrators are much better trained to follow the literature and the public health initiatives surrounding garbage and trash transfer stations than are DPW administrators.

10. Much of today's District of Columbia problems with private garbage and trash transfer stations arose because of the current DPW director for Policy and Planning, Ken Laden.

a. In her July 12, 1994 Order granting a Declaratory Judgment and Permanent Injunctive Relief against the District of Columbia's efforts to close the illegal garbage and trash transfer station at 2160 Queens Chapel Rd., NE, Judge Zinora Mitchell-Rankin based her Declaratory Judgment that the city's solid waste regulations were not intended and therefore did not apply to garbage and trash transfer stations on Ken Laden's testimony when she wrote at page 15 of her Corrected and Reissued Memorandum Opinion and Order, that "This Court is persuaded that the plaintiffs have demonstrated that Title 21, Chapter 7 of the District of Columbia Municipal Regulations (1987 edition) does not specifically apply to private solid waste transfer and processing stations. The Court is particularly persuaded in that regard by the testimony of Mr. Ken Laden, Chief of the Environmental Policy division, who testified that there are currently no regulations in effect which specifically regulate or address private solid waste transfer and processing facilities; that to interpret Chapter 7 in that way is strained and is the product of a very liberal and expansive definition, and that prior to June 13, 1994, the regulations had not been so interpreted. A literal reading of Chapter 7 clearly identifies haulers and collectors of solid waste as the intended persons to be regulated by title 21, Chapter 7."

b. Around July of 1993, Ken Laden allegedly caused the origins of what has become 2160 Queens Chapel Road being illegally used as a garbage and trash transfer station. According to 1994 testimony of John Nelson in the Administrative hearing where the issue was the revocation of the certificate of occupancy to 2160 Queens Chapel, Rd. NE, John Nelson testified that Ken Laden led him and his then associates to believe that it was ok to set up a garbage and trash transfer station at 2160 Queens Chapel Rd. Th Ken Laden has not denied this account in that case so the case as it appears before the DC Court of Appeals treats this account as uncontested and presumably true. This seriously undermined and contradicted what he knew or should have known in 1994 to be the city's Zoning Administrator, Joseph Botner, long standing, very clear policy that DC's Zoning Regulations did not allow garbage and trash transfer stations. Mr. Botner's clear position was that to open a garbage and trash transfer station, an applicant first had to apply to have a BZA hearing on the application and to let the BZA decide whether to grant the application. Mr. Nelson and his associates knew that after Mr. Laden had spoken with them, Mr. Botner had issued an October 1993 letter that denied an application for a garbage and trash transfer station on Howard Road. That application was submitted in 1993 by Shervelle Jackson, the DC based person who wanted to use and open up 2160 Queens Chapel Rd. NE as a garbage and trash transfer station. That 1993 letter by the Zoning Administrator Botner, clearly stated that no certificate of occupancy could or would be issued to operate a garbage and trash transfer station in DC unless the Board of Zoning Adjustment approved a site for that use. The problem was that Mr. Laden's words undermine the Zoning Administrator's, according to the record of that case as it sits today before the DC Court of Appeals. That record is in the hearing before Judge Sharon T. Nelson in the Matter of Mike Perkins, OAD 94-29-M, Testimony on Wednesday, September 7, 1994 and more fully set forth as follows:

c. John W. Nelson, who helped Mike Perkins and Shervelle Jackson find and use 2160 Queens Chapel Rd. as a transfer station, testified on September 7, 1994 at the DCRA hearing to revoke the certificate of occupancy for 2160 Queens Chapel Rd. NE. At page 268 he described what Ken Laden told Mike Perkins and himself around July of 1993 when they went to find out the District of Columbia government's policy with regard to garbage and trash transfer stations. He stated: "The one person that we met with directly, if I may refer to my notes, Kim Layton is I believe his title is Office of Policy of Planning for the Department of Public Works. I think he's in that office. I'm not exactly sure what his title was. But he's who we were referred to talk and ask questions relative to planning as to what Washington wants to do. " At page 270 he continued:" In the meeting we specifically asked what was the possibility of getting some waste to go through Mike's landfill that they're trying to close within the city of Washington. And specifically we asked what was the District's policy relative to transfer station operation."

"Q. And what did he say?"

" A. Of which he said they did not recognize that term. He said we have a lot of people that are actually operating outside on the ground. We don't like that. We've got to close them. Those are problems. For lots of reasons, we don't like it. There are people that are operating inside and at this as far as we're concerned that makes us happy. There is intended to be some pending legislation or draft documents or rules or regulations or whatever they were going to turn out to be that was going to be forthcoming sometime down the road. But as far as he was concerned at that time, if we were inside as opposed to the people that are doing it outside, they were pretty happy."

"Q. Inside meaning inside of a building?"

"A. Yes, as opposed to operating outside in the elements. This was, at the time that we came down here was around mid-July and it was pretty hot and of course that activates a lot of that aroma."

"Q. That was in '93?"

"A. Yes it was in '93"É."

"Q. During that meeting with Ken Layton, did any other District official participate?"

"A. Well, he called someone else, and I at one time knew that name, and I do not know the name now. He actually called to verify whether I guess rules or regulations had been put into effect at that time. He didn't know what the status was. He just had heard or knew or something that there was some forthcoming down the road, and undefined period of time, and he called to see if they were in place. The person on the other end of the line -- and he had him on a speaker -- said no, they are not in place. At the present time and so that was that. The one piece of advice he did tell us is to go around to another area and look at the zoning map and that they were true that it was going to be at least in a CM zone or M zone. CM1 or CM2 or M, something like is what its called. But not residential______."

"Q. OK. So Mr. Layton's recommendation to you was what?"

"A. Well his recommendation was maybe he was or was not an official capacity to recommend. He basically said we got a problem in Washington, D. C. We've got people operating outside on the ground, and it's a problem and we as a District will not put up with this and we're going to stop it. There will be things come into play. We don't want that. We don't want that image. We don't want to have anything to do with it. We ultimately want to get into recycling, just like the rest of the country, but right now what we want is people to get inside and would welcome the opportunity if you guys opened up on the inside in whatever it is you have to do. To which I told him at the time that I couldn't imagine anybody operating outside. Period. The end. It just was not anything I would ever agree to do because it's unprofessional in that regard. You may have to do it, _____, but it's very unprofessional."

At page 291, Mr. Nelson was asked:

"Q. Why is it that you just didn't go in and apply for a C of O that said trash transfer C of O?"

"A. Because the City of Washington said they did not recognize the terminology. That was on our first visit they said -- because that's what I came down and asked about a transfer station and they said no, we don't recognize that terminology."

"Q. Who was it that told you that?"

"A. Ken Layton."

"Q. He told you that they don't recognize what terminology?

"A. In other words, when we asked about transfer stations we might as well have been asking about a space ships on the moon or something. He said we don't have that terminology. It's not an issue for us. We don't ____transfer stations."

"Q. Where is Mr. Layton's office located? Or who does he work for?"

"A. He works for the Department of Public Works. I think he's in the planning area for the city and that was particularly the planning area was why we had one to see that area. We wanted to see zoning and we need to understand what type of zoning these places had to be put in to satisfy Washington and we also needed to understand what are the restrictions out there right now. What's out there today."

At page 296, Mr. Nelson was asked:

"Q. When you spoke to Mr. Layton at DPW did he indicate that the District does not recognize transfer stations because private stations were not allowed in the District?"

"A. No, he did not."

"Q. Did he indicate one way or the other whether transfer stations were allowed?"

"A. He said it was the terminology -- we don't have anything to do with transfer stations. We don't know -- I guess it's just like whenever you set up a business you set up a chart of accounts and those chart of accounts you basically are going to assign every expense to some that on that chart of accounts. Well if transfer station's not on your chart of account, you can't assign it to that. You've got to assign to something else if you've got an expense there to it. So that's what I assumed that it was. I don't know. They just said we don't. That's not necessarily uncommon, OK, across the nation. That's not necessarily uncommon. Most people if you ask the general public what a transfer station is, they don't know. If you ask the general public what a transfer station is, they don't know. If you ask them recycle, of course they know recycle because that's been a popular word. We all want to contribute in saving the planet and helping and therefore we're all ready to grab onto that word. But there's not a lot of difference between recycling and processing and transferring, guys."

At page 299, Mr. Nelson was asked:

"Q. Do you remember specifically what it was that you told Mr. Layton you were going to be doing other than operating a transfer station?"

"A. We told Mr. Layton that our first goal was to get waste for the landfill. We were trying to find out. Mike had received waste, Mike Perkins, had received waste out of Washington for some time and you guys were complaining about the renegade operations or the ones without a proper C of O or whatever, OK. So our first goal here is to get waste to the landfill. Our second goals where is to fit into the long term plan and strategy for the city of Washington because we know that Lorton and so forth has got it's problems. Environmentally it has its problems and so we're looking to try to see what we can do in getting a long term waste. We're willing to work any way we need to do this. We need new equipment, used equipment, sometimes equipment. You know, whatever. We're just here on a fact finding mission is what we were here. Just talk to them about things. It wasn't a deal where you call a press conference and you've got a big meeting with the City of Washington. It wasn't that sort of a deal. We just came on a fact finding mission."

d. The City Council called for a Comprehensive Solid Waste Management Plan when it passed the D.C. Solid Waste Management and Multi-Material Recycling Act of 1988 (D.C. Law 7-226) which Plan finally appeared in a two volume Preliminary Draft, in October, 1994. Even though Ken Layden might have orally advised private solid waste transfer operators, that publicly paid for 1994 Plan had nothing to say about private transfer stations, but a lot to say about public transfer stations. It lacked any discussion about the need for private transfer stations in the District of Columbia, what zoning was necessary to support them, or what siting and similar standards should apply. In effect, DPW's policy and planning has wasted the ten years since 1988 and failed to articulate a comprehensive solid waste plan involving private and public transfer station sites, standards, space, services, etc.

e. The Zoning Commission, the Office of Planning, the Department of Public Works and the Department of Consumer and Regulatory Affairs essentially stonewalled the NCPC's best efforts, and totally ignored the testimony submitted a year earlier from the city's Commission of Public Health and have instead ended up with totally ineffective Zoning Regulations which will do the following:

(E) Allow garbage and trash transfer stations to locate in any C-M 1, C-M 2, C-M 3 and M district.

(F) Allow any applicant to seek variances under the Zoning Regulations from any "impractical" zoning requirement.

(G) Don't require access to or use of rail to remove the waste.

(H) Require only 50 feet between the facility and another use outside of a residential district.

(I) Allow facility doors and foul air to open to the public air everytime a truck enters or exits, thereby defeating the requirement that tipping of waste occur only in a "fully enclosed" building.

(J) Fail to cure any of the problems in the Zoning Regulations which have given rise to the existence of illegal garbage and trash transfer stations, such as but not only, still allowing as a matter of right any "processing" in C-M districts; failure to define the meaning of "light" as it is used and applies to "processing" as in only "light processing" is allowed in C-M districts; and failure to make it clear that up to this time the zoning regulations did not allow garbage and trash transfer stations in the District of Columbia because they fall within the general clause of prohibited activities that have characteristics similar to those of slaughter houses and bone rendering plants.

f. In Ken Laden's October 21, 1997 letter to Madeline Dobbins at the Zoning Commission, the city's Acting Director of the Department of Public Works' Office of Policy and Planning opposed some of the National Capital Planning Commission's most important recommendations with the clear intent of protecting the existing solid waste transfer stations. When did that become a city policy?

g. He wrote that "the recommendation that the applicant prepare an economic analysis" appears to exceed Zoning Commission and BZA authority." The NCPC called for the city to do that but the head of DPW's planning misunderstood.

h. He misrepresented facts when he then stated that "an environmental analysis is required as part of the solid waste facility permitting process." The regulations, 21 DCMR 730 through 741, amended and adopted more than a year earlier on 12/20/96 at DCR Vol. 43, No. 51, only call for "A completed District of Columbia Government Environmental Impact Screening Form" not an analysis or an environmental impact statement. The form is a joke and DCRA has totally ignored citizens who have filed written requests for hearings and written challenges to the inadequacy of the information DCRA requested and provided by the applicants.

i. He stated "We recommend that the market place, and the limited amount of land which meets the zoning and environmental permit restrictions define the number of facilities located in the District." His DPW planning policy is to pit the wealth and disrespect these four Waste companies have displayed over the past four years in DC against the weakness and intimidation felt by their neighbors and to let the "market place and limited land" control the battle. Why do we pay salaries for planners if they don't want to plan? The clear result is that these companies will overuse and exceed the reasonable capacity of the limited land and space they choose to purchase, while endangering and depleting the values and businesses of their neighbors. By the city allowing them to purchase improperly small and inadequate sites, the city is helping these companies shift their capital costs to the shoulders of their neighbors against the consent of their neighbors. This is DC's best land use planning.

j. He opposed NCPC's advice to spread out the transfer stations even though that would avoid concentration and the environmental injustice they currently cause. Again, DPW's best policy planner relied on, in his words, "market demand, plus the limited amount of properly zoned land and environmental permit restrictions will provide a natural limit to the number of solid waste handling facilities located in the District." There are no measurable "environmental permit restrictions" governing solid waste transfer stations and the only "market place" power is the bold, illegal efforts of those who opened up garbage and trash transfer stations before going to the BZA to ask for a special exception and permission to open one up, as was the clearly known and stated policy of the Zoning Administrator, Mr. Botner, in 1993 and 1994.

k. He opposed the 300-foot buffer by alarming language stating that unless carefully defined "all solid waste handling facilities (including government owned facilities) could be excluded from the District." He nevertheless did not object to the 300-foot buffer, as did the city's Office of Planning. Ms. Jill C. Dennis, Director of the city's Office of Planning and the proponent of these very weak zoning regulations in the first place, encouraged the Zoning Commission to ignore the National Capital Planning Commission's call to limit transfer stations to M and C-M 3 districts or to do an overlay and zone just one are for solid waste transfer activity. At pages 2 and 3 in her October 1997 letter to the NCPC's Secretary, Ray Allen. DC's Office of Planning, Ms. Dennis defended her plan to allow solid waste anywhere in the city's C-M or M districts. She wanted all C-M districts in the city to be subject to the economic threat of a garbage and trash transfer station so that DC Village's 99 acres and the 50 acres alongside New York Avenue, North of Montana Avenue, could be eligible for solid waste transfer activities. These are two of the last places in the city that any such activity could or should occur, yet the head of the city's Office of Planning is reasoning that the entire land mass of C-M districts should be subject to the economic threat of solid waste transfer stations so that two of the most unlikely areas could be in the "abstract" possible category. There is no thinking here. She also opposed the 300-foot buffer on the grounds that: "A 300-foot buffer zone added to a nominal 200-foot square handling facility site would result in an 800 foot in diameter "site" requirement (including streets and alleys). This adds up to approximately 15 acres. Not only would the District government's existing facilities not meet this test, it would be a good way to ensure that no new transfer facilities locate in the District. This essentially puts the burden for eliminating potential impacts almost solely on zoning, not on licensing where a substantial amount of the burden logically belongs". In fact, 15 acres is exactly the acreage recommended for 1,000 tons a day transfer station in Chapter 9 of the McGraw Hill, Handbook on Solid Waste, page 198, authored by Laurence T. Schaper, then Vice President of Black & Veatch, Engineers and Architects and now with Sarasota Florida's Public Works. Black and Veatch is one of the leading designers of transfer stations world wide, including one in Hong Kong. The 1995 EPA publication 600, written by solid waste engineer-professors, Phillip R. O'Leary and Patrick W. Walsh, then of the University of Wisconsin and entitled: "Decision Maker's Guide to Solid Waste Management, Volume 11, page 4-23, table 4-8, also supports a 15 acre site as a proper size for 1,000 tons or more of solid waste being dumped on a flat tipping floor in a congested building as occurs in all four sites in DC. They determine this by means of a formula they use and publish to calculate the daily tonnage capacity of transfer stations. Neither the Office of Planning's Ms. Dennis nor her staff, Mr. Colby, chose to provide or review this as guidance to the Zoning Commission even after I gave it to them. Now that the City Council has adopted a 500 foot buffer requirement as a licensing criteria, the Zoning Commission and maybe the Office of Planning will object to "licensing" interfering with "Zoning". Ms. Dennis and her staff, Mr. Colby, refused to do or present for the Zoning Commission any independent research on the issue of properly sited and designed urban based garbage and trash transfer stations and have instead taken very passive positions and simply opposed logical conclusions which might require change in the improper way things are being done in DC. This disgraces the name of any Office of Planning, but it is what DC has had to deal with. Once Zoning and the Office of Planning refused to adopt siting criteria to protect nearby businesses from the economic losses resulting from overly congested and intense uses of totally inappropriately sized sites as garbage and trash transfer stations, it became the duty of the City Council to step in. DCRA has deliberately refused to enforce any significant part of the licensing regulations and are on record that enforcement at DCRA will do nothing to enforce the law unless transfer stations act outrageously.

l. In that same September 7, 1994 hearing, Mark Griffin, the attorney for the garbage and trash transfer station operator, stressed what he thought was very significant, and is still true four years later today in 1998, i.e. the continued failure of the Zoning Commission to correct the loophole weakness in the Zoning Regulations which allows "any light processing" as a matter of right in a CM district, even after the 1991 BZA decision and the 1993 Court of Appeals decision in the Concerned Citizens of Brentwood case that held that the Recycling at what is now used by BFI to do solid waste transfer was then, when only recycling of inorganic materials "processing" and a legal use.

Community groups in the Brentwood area of Northeast DC were so offended when the BZA ruled that a recycling plant was entitled to operate as a matter of right as "processing" that they caused Zoning Commission hearings in Zoning Case 91-17, on proposed text amendments to govern recycling facilities as "intermediate materials recycling facilities". At those hearings, members of the community begged the Zoning Commission to pass the same or similar regulations to govern garbage and trash transfer stations, but three of the same members on the Zoning Commission seven years later today, refused. They are Mr. Parsons, Mr. Franklin and Ms. Bennett. Even in 1998 these same members of the Zoning Commission have not learned from the community witnesses who have pleaded with them to eliminate the broad loophole of "processing" from 11 DCMR 801.7(j). On June 15, 1992 at the June 15, 1992 hearing in ZC 91-17 witnesses Kathryn A. Pearson-West, Paul Washington of the Upper Northeast Community Coalition, and Andrea Ferster of the Sierra Club, asked the Zoning Commission to include transfer stations in the scope of the recycling regulations then being considered. The Office of Planning and the Department of Public Works led the opposition to these requests. The then Chairperson, Tersh Boasberg, acknowledged that transfer stations were popping up and needed zoning regulation. Nothing then or now has been done to eliminate the "processing" loophole. Instead, in September, 1992, Albert G. Dobbins, the then head of the Office of Planning, whose wife now is the director for the Zoning Commission office, filed a report which stated that after consultations with the " Department of Public Works, the DPW office of Recycling, the Department of Consumer and Regulatory Affairs on the merits of using D.C. environmental, health and safety codes to enforce proper facility operation and maintenance as against incorporating necessary performance standards in the Zoning Regulations, OP has concluded that it would be better to use the appropriate code enforcement measures to achieve operation and maintenance objectives, and recommends that this approach be used in the regulations to be adopted. To do otherwise could lead to technical and legal problems, including potential differences in interpretation as to what is permissible because of delays in keeping these proposed regulations up to date, questions of enforcement or enforceability and other points of confusion arising from differences." That nonsense sounds very similar to what the Office of Planning has said in 1996, 1997 and 1998 in Zoning Case 96-5 where they have opposed every effort to develop comprehensive zoning regulations governing solid waste transfer stations. As a direct result of this 1992 procrastination by these DC agencies and the personnel who mostly are still with us, the city is a part to at least six court cases in the DC court of appeals and others that are headed for trial and businesses and neighborhoods have lost significant value because transfer stations have been improperly sited, located, designed and operated while DC government agencies have no clue as to how to correct the situation. Solid waste transfer stations can still claim that they are entitled to operate as a matter of right as processing in CM districts.

m. These agencies with diverse assistants corporation counsel make the problem worse, by not pursuing uniformity with Prince Georges' County, which is immediately adjacent to that Eastern part of DC where these transfer stations have located. If DC is more inviting and less stringent than Prince George's County, it will attract an unfair share of these transfer stations. Today, four years after Prince George's adopted its 500 foot buffer requirement, there are no legal transfer stations in Prince George's County and at least four in DC. The DC City Council's 500-foot buffer should be adopted by DC's Zoning Commission for uniformity. Not once in six years has the Office of Planning, DCRA or DPW identified adequate cultural and community standards and experts to guide the Zoning Commission and the City Council toward an adequate and uniform regulatory scheme consistent with the needs of the communities affected by these sites. From 1994 the Office of Planning, DPW and DCRA have actively undermined community efforts to bring DC into parity with Prince George's' County's 500 foot buffer requirement. None of those three agencies has produced, as have volunteers in the community, any expert report on the impact that improperly sited, designed, located, operated and monitored private transfer stations are having on the community. None of these agencies have articulated the cultural and technical standards that DC's neighborhoods need to be protected from these negligent sites and operations. Instead, Ken Laden of DPW's solid waste planning leads the charge to let the "private market" i.e. money and lots of it, decide where, how and how many solid waste transfer stations will "take over" DC's light processing, C-M neighborhoods. None of them will do any substantive work at the countless and expensive BZA hearings where totally unfunded neighborhood groups vie for BZA board opposition to claims from 3 billion dollar a year waste corporations. These three agencies have forced the City Council and the Zoning Commission to rely totally on what either the transfer station operators chose to say or what totally unfunded community volunteers were able to provide.

n. Mr. Botner testified in the same case, pages 91 to 140, he confirmed that he had been Zoning Administrator for DC for seven years, which meant since 1987. He testified that on October 7, 1993 he sent a letter in which he denied an application for a solid waste transfer station on Howard Rd, page 133, line 7, rd., because a solid waste transfer station did not constitute processing , page 135 line 11; that the DC Court of Appeals issued its opinion in the Concerned Citizens of Brentwood Case on December 22, 1993 which held that consolidated industrial processing center involved in recycling non organic materials was "processing" and therefore a legal use as a matter of right in CM districts, page 136, line 4; that taking in and removing trash was not a legal use under the terms of 2160 Queens Chapel's Certificate of Occupancy which allowed light processing of steel products; Page 04, line 13: that taking in and removing trash at 2160 Queens Chapel Rd. NE is not processing. Page 99 line 1, nor was it recycling page 99 line 21; that a use not found in the Zoning Regulations will be denied and referred to the Board of Zoning Adjustment, page 107, line 17; what was on 2160's permit covered everything allowed in the CM zone, page 108, line 8; but referred only to processing of steel, p. 108, line 12; that an application to process garbage and trash would not be approved or approvable, at page 110, line 4; because he had no provision in the zoning regulation for approving a trash processing business, page 110, line 6; since the new application said it was to continue the same use as under the prior certificate of occupancy, i.e. processing of steel, there was no need to obtain more information from the applicant, p. 112, line 19; that at the time there were no other solid waste transfer stations in DC, he thought, page 126, line 20 except for the city's transfer station; that he denied the CWI application for a "consolidated industrial processing center" page 128, line 4; that the BZA sua sponte disagreed with him and declared that recycling was processing and entitled as a right of use in a CM district, page 129, line 1; that the important difference was that they sorted or segregated the materials, page 131, line 19, page 132, line 1;

o. Mr. Botner repeated his policy in a November 30, 1994 letter to me in which he stated: " As Zoning Administrator, I have always taken the position that a garbage/trash transfer station is not provided for within the D.C. Zoning Regulations; consequently, the applicants have been advised that they have the need to seek a variance from the use provisions of the respective zone in which they plan to locate, or request the Zoning commission to amend the Zoning Regulations to provide guidance for a garbage/transfer station."

Conclusion: Unless we change the personnel responsible for this dismal failure to take proper action in the Zoning Commission, the Office of Planning and DPW, we face a future much like our past. Ineffective, inadequate and unprepared. Citizens have demonstrated wisdom and forsight only to be regularly ignored by a cadre of bureaucrats who have led the city into a policy of failed solid waste planning.

Sincerely,

Myles Glasgow