Features & Columns

Newby Island Landfill

City of San Jose weighs expansion of Newby Island Landfill
while some Milpitas residents fight back in court
Newby Island Landfill WHO DEALT IT? Residents of Milpitas have complained for years about awful smells, but last week a lawsuit filed by a San Francisco law firm claimed that the alleged stench is coming from a landfill in San Jose.

Something smells funny in Milpitas, and it's not just the odors from the Newby Island Landfill. A San Francisco law firm filed a class-action lawsuit last week against the operators of the South Bay trash Mecca, and some Milpitas residents and city officials are wondering who stands to gain most from the legal action: the affected citizens of a small city or opportunistic attorneys.

Just three weeks prior to filing the lawsuit on July 17 in Santa Clara County Superior Court, the Evans Law Firm—in conjunction with the Detroit-based Macuga, Liddle & Dubin PC—mailed 800 advertisements to residents of Milpitas, inviting support of legal action against the 84-year-old landfill, which serves multiple communities across the South Bay and peninsula.

Dolly Wu received one of the letters and subsequently joined the suit. A resident of Milpitas for 14 years, Wu spoke with Metro by phone while Ingrid Evans, a founding partner of the San Francisco law firm, attempted to direct the conversation. Asked how she became involved in the lawsuit, Wu said she received a letter in the mail before Evans quickly cut in to say "these sorts of lawsuits are generally filed in response to complaints."

The complaint seeks to garner support and court approval for a full-fledged class action lawsuit, and Evans says the Milpitas community is behind her. "Everybody is thrilled that somebody is doing something about this," she says. "We received a lot of complaints about this."

The lawsuit alleges that managers of Newby Island Landfill, which is actually located in San Jose's city limits, have failed for years to mitigate problems relating to noxious odors and airborne pollutants and particulates, like dust and soot, despite numerous complaints from residents of Milpitas. The suit says that the defendant, landfill operator Republic Services, acted "intentionally, recklessly, willfully, wantonly, maliciously, grossly and negligently" in properly operating the landfill, in effect diminishing the quality of life for locals.

The Evans Law Firm currently names just two people as plaintiffs of the 30,000 residing within the two-mile radius odor range of the landfill. Some critics have suggested that the suit does not reflect the sentiments of Milpitas residents but, rather, the ambitions of the Evans Law Firm, which specializes, in part, in cases of breached environmental law and poor landfill management.

The situation seems to have been sparked on June 6, when the San Jose Planning Commission voted to recommend that the San Jose City Council approve Republic Services' bid to extend operations of the Newby Island facilities. The city of Milpitas subsequently appealed the Planning Commission's vote and is now waiting to see what the San Jose City Council decides at a meeting most likely to be held Aug. 14.

There is no doubt that Milpitas residents have been complaining for years about the smells supposedly wafting over from the landfill. Andrew Crabtree, environmental manager with the San Jose Planning Division, said that 155 odor complaints were received by the Bay Area Air Quality and Management District from 2005 to 2008, though only three were confirmed as coming from the landfill at Newby Island. The city of Milpitas recently hired a law firm—Jarvis, Fay, Doporto & Gibson, LLP, in Oakland—to help negotiate a compromise between Republic Services and the city about the odor problems associated with the landfill.

But whether authorities have ever taken steps to reduce the offending odors is unclear. The managers of the landfill, Republic Services, refused to answer questions pertaining to the operation of the landfill, instead deferring all inquiries to the company's public relations office in Phoenix, Ariz. Media relations manager Peg Mulloy said she could not comment on the odor problem "due to pending litigation."

The lawsuit's timing coincides with Republic Services' application to extend its permit to operate the facility. Currently, the landfill is expected to reach its capacity around 2025, according to Crabtree, who says that a rejection of the permit application would mean diverting local waste to a landfill in Manteca.

But if the permit extension is granted, the legal maximum height of the waste pile will be increased to 245 feet, from the current limit of 150 feet. This would allow an extra 15 million cubic yards—enough trash to fill 4,750 Olympic size swimming pools—to the volume capacity of the landfill. Such expansion would not change current operations, according to Mulloy, of Republic Services. She explains that rather than allow more waste per day to enter the landfill, the proposed extension of the permit simply "allows us to do what we are already doing, just for a longer time."

According to a June staff report from the San Jose Planning Commission, an extension to the permit would not worsen any existing odor problems. The document states: "While the project would allow more waste to be deposited at the landfill, the project would not result in more waste being exposed at once than occurs under existing conditions due to the implementation of several odor control measuresÉ"

In other words, the smell can't get any worse.

But Wu, the plaintiff in the Evans lawsuit, says the stench is already intolerable, especially in the summertime, when she says it grows stronger through the afternoon and often dissuades her husband and their 13-year-old son from leaving home unless absolutely necessary. "We never spend time outside, and we've abandoned the use of our lawn and our lawn chairs," Wu says.

It was about 10 years ago that the aromas of Newby Island began to grow noticeable, according to Wu. In subsequent years, it became a nuisance. Now, she says the smell is an embarrassment when friends and family are in town. Wu adds that her home's value has decreased due to the smell. On top of everything, literally, is a layer of soot and dust that drifts from the landfill and settles upon Milpitas.

But Ed Blake, a Milpitas resident of 40 years and chair of the Milpitas Recycling and Source Reduction Advisory Commission, says Evans Law Firm exaggerates the odor issue.

"I've been here since 1972, and since then the odors have declined by orders of magnitude," he says. "I occasionally catch a whiff of something, but it's not a day to day event."

Blake says odors in the air may likely be from other sources, like the Fremont Recycling and Transfer Station and the San Jose-Santa Clara Water Pollution Control Plant, which receives raw sewage from more than a million people. "I don't remember hearing anyone complaining about the landfill," he adds. "I'm unsure what inspired Evans to do this."

Crabtree, with San Jose's Planning Division, says that Milpitas residents who complain of landfill odors may actually smell the sewage treatment plant or the muddy shores of San Francisco Bay. And Republic Services has reported that of 160 odor-related complaints in the last year, only one was verified as originating in the landfill.

Crabtree warns that the impacts of finding a new site could be much greater than a daily breeze of foul air.

"If the landfill had to close, we would be taking the trash by truck to a site in Manteca, which would create transportation-related impacts," Crabtree says. "Basically, we'd have more heavy trucks on the road, which would have environmental impacts of its own."