Western Renewable Resources has again filed a lawsuit in Linn County Circuit Court against the Oregon Department of Environmental Quality, asking a judge to decide whether the fibers stored on its Sweet Home properties are trash or inventory.
The question is the crux of a dispute between Western Renewable Resources and the DEQ. The DEQ issued an enforcement order at the end of 2008 requiring the company to get rid of the fiber and to pay fines.
In an order finalized on Dec. 29, The DEQ named Western Renewable, Western Trucking and Dan Desler, managing partner of Western Renewable, when it issued a fine of $134,306 for “operating a solid waste disposal site without a permit” at 28389 Hwy. 20.
The DEQ issued a second fine, for $58,037, for “operating a solid waste disposal site without a permit” at 2210 Tamarack St., located at the north end of 24th Avenue. The DEQ named Western Renewable, Western Trucking, Desler and Western States Land Reliance Trust, which owns the property.
“They haven’t paid the fines, but they, in fact, are due,” DEQ Environmental Law Specialist Regina Cutler said. The DEQ inspected both properties on April 1 and determined that the removal of the material had not been accomplished.
The DEQ recently filed liens against 18 Western States Land Reliance Trust properties in Sweet Home for the 24th Avenue fine, Cutler said. For the Highway 20 fine, the DEQ filed liens against three properties owned by the respondents, two in Linn County and one in Lane County.
WSLRT is the landlord to Western Renewable Resources. Desler is the managing trustee for WSLRT.
Beginning March 17, the fines are accruing interest at 9 percent, Cutler said.
The DEQ is weighing options to enforce the removal of the fibers, Cutler said.
At this point, the property is in violation of the enforcement order, which is a violation, Cutler said. The DEQ could fine up to $10,000 per day of the violation.
“We’re considering that and other options to encourage Mr. Desler and his various companies to remove the material from the site,” Cutler said.
Another option is for the DEQ to remove the material, she said. “Because the material is primarily inert €“ it is not toxic €“ we haven’t exercised this option yet, but it is under consideration.”
For DEQ to remove the material, it would have to ask a judge for an injunction and show that the material poses a threat of imminent harm to the environment, Cutler said.
The enforcement is based on a determination that the material is solid waste, but Desler has insisted throughout the process that it is inventory. Western Renewable received the fibers, mostly cardboard with some plastics mixed in, under contract with Weyerhaeuser to recycle them into other uses, primarily waste to energy as hog fuels. Some of the material has been used as animal bedding, according to Desler.
Western Renewable filed a previous lawsuit in September seeking the same declaratory judgment. Desler said then he needed to file again in a different jurisdiction, possibly federal court.
“The DEQ asked my attorney to withdraw his original action,” Desler said. The DEQ had asked to work through the disagreement, but it made no effort to get together.
“We wanted to negotiate this issue of waste versus inventory,” he said. His company has $900,000 invested in the inventory and at one point, had it sold, he added.
“They want us to haul $900,000 to the dump because they say it’s garbage,” Desler said. And that’s what he’s asking a judge to decide.
The company had been recycling this material for six years prior to his involvement beginning in November 2004, Desler said.
“We want to know if it’s garbage subject to landfills or if it is, in fact, inventory,” he said. “Once we understand what the material is and a court tells us what it is, then we’ll know what to do with it. We’ve researched the case law, and we believe we’re right, and we’re still not unwilling to go to the table and negotiate an agreement.”
An agreement would have to recognize what the material really is, Desler said.
As for the liens, the company will probably have to seek a stay on those, he said.
Desler’s goal has been to create well-paying jobs and diversify the economy of Sweet Home in keeping with former Gov. John Kitzhaber’s platform of converting waste to energy, he said; but the DEQ’s action has cost the community 17 jobs with the closure of the operation last year.
“We were excited for the community,” Desler said. “In fact, I haven’t earned a nickel.”
And he’s not sure how much he’s going to lose in the end, he said.
“They don’t care about the community issues. Their job is enforcement and fines. I said, ‘I’m happy to get that material out of there in the ordinary course of business.”