City of Milpitas' lawsuit against City of San Jose related to odor impacts from the planned expansion of Newby Island Landfill and Resource Recovery Park on the Milpitas-San Jose border is pursuing a possible settlement.
Although the city's lawsuit is still being prepared by Oakland law firm Jarvis, Fay, Doporto & Gibson LLP, Milpitas City Attorney Mike Ogaz said a parallel track to seek an out-of-court agreement to remediate odor issues at the dump is taking place between Milpitas officials and the landfill's operator, Republic Services of Santa Clara County.
"The city is working with Republic; we're working with them directly," Ogaz said. "We are still trying to achieve settlement."
Ogaz stressed, however, that if an odor remediation settlement is not reached with the company, the city will continue its litigation.
Filed in Santa Clara County Superior Court on Sept. 27, Milpitas' suit follows San Jose City Council's denial of Milpitas' appeal last August to thwart plans to raise the height of Newby Island Landfill by about 95 feet. On Aug. 14, the council voted to uphold San Jose Planning Commission's prior certification of the expansion's final environmental impact report and its conformance with the California Environmental Quality Act for the facility at 1601 Dixon Landing Road in San Jose.
The dump expansion will allow Republic to increase the permitted top elevation from 150 feet above mean sea level to 245 feet above mean sea level, and allows an increase in the capacity by 15.12 million cubic yards.
San Jose's plans also sought permission to relocate various garbage-related activities including where and how it could receive, store, process and compost odor-causing food waste and other organic materials and manage leachate.
With the council approval, the Newby Island Landfill will be allowed to operate through approximately 2030.
"The draft EIR gave very little attention to the massive increase in odors that would emanate from the landfill, composting and recycling operations at Newby Island if the proposed changes were implemented," a Milpitas City Attorney's Office written statement released Sept. 27 reads. "Remarkably, the report falsely claimed that odors currently emanating from the Newby Island Sanitary Landfill are insignificant and that the odor impact from the huge expansion and change of planned operations would go unnoticed by the community."
The city further asserted they had "no choice but to file a lawsuit to seek a court order forcing San Jose to redo the EIR and give serious consideration" to the odor issues.
Richard Doyle, San Jose's city attorney, could not be reached for comment regarding Milpitas' lawsuit.
"The City of San Jose has not filed a response yet on the suit," Ogaz said.
Last May, the council approved an amendment to a 2010 contract with Jarvis, Fay & Doporto for attorney services and to increase the contract compensation amount by $90,000, to a total not-to-exceed amount of $109,950.
According to Ogaz, the firm is expected to finalize the lawsuit for court review by the end of this month, prior to a court hearing in front of a judge this spring.
The landfill is also the target of a class action lawsuit over residents' complaints about odors allegedly emanating from the dump.