Mountain View Paving back in court
Mountain View Paving was producing asphalt with approvals as it pursued land use actions to resolve whether its batch plant on Bear Creek in Talent was a legal operation, an attorney for the firm argued Wednesday in a Clean Air Act violations case heard by Judge Mark D. Clarke in Medford’s U.S. District Court.
Rogue Advocates has sued the firm alleging it violated the federal Clean Air Act on 908 days beginning in September 2010, because it lacked Jackson County land use approval to operate the plant.
The act allows fines of up to $3,750 for each day of violation. The case was filed in October 2015, and Rogue Advocates had unsuccessfully sought an injunction to halt operations then.
Mountain View Paving is seeking a summary judgment for dismissal of the case. Rogue Advocates asked for a partial summary judgment that the firm is liable for violating the Clean Air Act.
“There’s no evidence they ever polluted the sky,” said David Paradis, attorney for Mountain View Paving.
Oregon Department of Environmental Quality regulations require batch plants to have land use approval from the appropriate jurisdiction, in addition to meeting emissions standards.
Earlier this year, Mountain View Paving relocated the batch plant to Kirtland Road. On Jan. 11, the state Land Use Board of Appeals upheld the county’s September 2015 denial of land use approval. The firm moved after it failed to gain approval and has no plans to move the batch plant back to the Talent location, said Paradis.
“The land use system worked. The (Department of Environmental Quality) worked. The whole system worked,” said Paradis.
Several times during the process, Jackson County stated its general policy was to allow firms to continue operating while land use matters were resolved. DEQ in January 2015 and again in October 2015 issued orders to stop work, but rescinded them to allow the process to play out.
Eight applications were filed and none of those resulted in land use approval, lawyer Maura Fahey of Crag Law, Portland, argued for Rogue Advocates. LUBA considered the issue four times. Appeals were also filed in Jackson County Circuit Court by the firm.
“These are not the type of appeals envisioned by the Clean Air Act,” said Fahey, explaining that the law contemplates approval before operations. “There was no choice but to file through the Clean Air Act.”
Paradis noted that during the five-year process, Jackson County issued several approvals for the plant that were appealed by plant opponents. LUBA also issued stays that allowed operations while it considered appeals.
But Jackson County also issued several citations for land-use violations during that same time period, Fahey said.
“The defendant has established a record of violations of county rules,” she said.
Mountain View Paving was fined $21,700 by Jackson County for code violations at the site, lack of flood plain development approval and plant operation approval from Sept. 25 to Oct. 21, 2015.
The apparent grandfathered status of Mountain View Paving meant that owner-operator Paul Meyer assumed the plant was an existing, nonconforming use, said Paradis. Meyer started the asphalt batch plant in 2001 on the site that previously had a concrete plant.
Residents in Mountain View Estates across Bear Creek from the plant began to complain when operations increased in the first years of this decade, said Fahey.
“This is a tough case ... in terms of equities on both sides,” said Judge Clarke. “It is really complicated, both factually and legally.”
— Tony Boom is an Ashland freelance writer. Reach him at firstname.lastname@example.org