IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

NATIONAL SOLID WASTES MANAGEMENT ASSOCIATION, BLUEBONNET WASTE CONTROL, INC., IESI TX CORPORATION, REPUBLIC WASTE SERVICES OF TEXAS, LTD, ALLIED WASTE SYSEM, INC., CAMELOT LANDFILL TX, LP, WASTE MANAGEMENT OF TEXAS INC., WM RECYCLE AMERICA, LLC, AND BUSINESSES AGAINST FLOW CONTROL, Plaintiffs,

v.

CIVIL ACTION NO. 3:11-cv-03200-O

THE CITY OF DALLAS, MIKE RAWLINGS, PAULINE MEDRANO, TENNELL ATKINS,

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DWAINE CARAWAY, MONICA ALANZO, CAROLYN DAVIS, JERRY ALLEN, LINDA KOOP, AND ANGELA HUNT, Defendants

BRIEF OF AMICUS CURIAE NORTH TEXAS ASSOCIATION OF PUBLIC EMPLOYEES (NTAPE) --An association of City of Dallas civilian employees Stephen Benavides Public Employee Advisor North Texas Association of Public Employees (NTAPE) 1408 N. Washington Ave. Suite 202 Dallas, TX 75204 Telephone: (214) 760-7422 Fax: (214) 760-7423 Steel.workers@sbcglobal.net

Susan Durham
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___________________ 2730 N. Stemmons Fwy. Suite 1000 Dallas, TX. 75207 State Bar No. 06281600 Attorney for NTAPE

CERTIFICATE OF INTERESTED PERSONS For Amicus Curiae NORTH TEXAS ASSOCIATION OF PUBLIC EMPLOYEES (NTAPE)

TABLE OF CONTENTS

Table of Authorities.

Interest of Amicus

I.

The Flow Control Ordinance No. 28427 poses

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imminent danger of serious bodily injury and/or death to civilian employees 2

II.

The Director of Sanitation for the City of Dallas is in violation of Flow Control Ordinance No. 28427 3

Conclusion

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TABLE OF AUTHORITIES

FEDERAL REGULATIONS 29 CFR 1903.13 .. 4 29 CFR 1952 ... 7 29 CFR 1953 ... 7 29 CFR 1954 ... 7 29 CFR 1956.1 .7 29 CFR 1975.5 .7

TEXAS CONSTITUTION

Article 1 19 .7

STATE STATUTES
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Texas Health & Safety Code Ann. 361.002(a) . 5

Texas Health & Safety Code Ann. 361.011(a)(b) .6

Texas Health & Safety Code Ann. 361.271 ..2

Texas Health & Safety Code Ann. 632.022 . 3

Texas Health & Safety Code Ann. 363.003(11) . 6

Texas Health & Safety Code Ann. 363.111 7 Tex. Civ. Prac. & Rem. Code 101.021 . 2

STATE REGULATIONS

30 Tex. Admin. Code 118.3 4

30 Tex. Admin. Code 330.105(a) 3

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INTEREST OF AMICUS The North Texas Association of Public Employees (NTAPE) is a nonprofit, nonpartisan, public sector employees association affiliated with the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (United Steelworkers or USW). NTAPE represents civilian, non-uniformed City of Dallas public sector employees by providing representation throughout civilian personnel proceedings, as well as advocating for higher standards of workplace health and safety conditions. For the last ten years NTAPE has fought to reconcile the disparities that exist between City of Dallas policies and procedures, and what benefits civilian employees and the public interest. On September 28, 2011 the City of Dallas (the City) voted 9-6 in favor of flow control Ordinance No. 28427 (the Ordinance), which forces all waste generated within City limits to be re-directed to the McCommas Bluff Landfill (the Landfill). The Ordinance is forecasted to increase traffic to the Landfill by twenty-five percent, or a daily increase of 360 to 400 waste haulers. It is of the utmost interest to our membership that the Ordinance be enjoined in such a way which allows for resolution of imminent danger to civilian employees due to this drastic increase in traffic, before implementation of the Ordinance. Anything less puts at risk the health and safety of our membership, non-association employees, as well as the Citys public interest to provide responsible sanitation services without undue costs or liabilities.

I.

The Flow Control Ordinance No. 28427 poses imminent danger of health issues, serious bodily injury and/or fatality to civilian employees. A. The death of Roderick Terrell at the Landfill on May 10, 2010 resulted from failure to minimize health and safety hazards. On May 10, 2010 Roderick Hot Rod Terrell was reported missing after checking in for work at the Landfill around 1pm. Later that day, a fellow Department of Sanitation (the Department) worker found Mr. Terrells waste hauler running and
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abandoned on the working face of the Landfill. It was not until the next day, after Fire and Rescue teams had spent hours searching for Mr. Terrells missing body, that it was found amidst layers of garbage. The scene was so emotionally traumatizing that the City sent grief counselors to the Landfill to assist fellow workers in coping with the circumstances surrounding discovery of Mr. Terrells body, and with the manner in which he died.1 The City is responsible for managing its municipal solid waste facilities2, and is liable for personal injury and fatality caused by negligence when that fatality arose from the operation or use of a motor-driven vehicle or motor-driven equipment.3 The death of Mr. Terrell may have been avoided if the City operated and maintained all vehicles and equipment used for collection and transportation of municipal solid waste in a manner which minimized health and safety hazards to solid waste management personnel, the public, and the environment, as required by the Texas Commission on Environmental Quality (the Commission).4 The situation at the Landfill is no isolated event, but rather a national pattern. According to the Bureau of Labor Statistics-Census of Fatal Occupational Injuries (CFOI), there have been approximately twenty fatalities at other municipal solid waste facilities over the last four years.5

The City forecasts that the Ordinance will increase waste hauler traffic to the Landfill by twenty-five percent, or three hundred and sixty to four hundred additionally waste haulers dumping per day.6 Such a drastic increase in waste hauler traffic increases the likelihood of serious bodily injury or fatality for civilian
1

City Worker found dead at municipal landfill indentified The Dallas Morning News; May 11, 2010; < http://www.dallasnews.com/news/community-news/dallas/headlines/20100511-City-worker-found-dead-at-Dallas-2646.ece>
2 3

Texas Health & Safety Code Ann. 361.271(a) PERSONS RESPONSIBLE FOR SOLID WASTE Tex. Civ. Prac. & Rem. Code 101.021(1)(a)(b)(2) GOVERNMENT LIABILITY 4 30 TAC Rule 330.105(a) COLLECTION VEHICLES AND EQUIPMENT 5 Bureau of Labor Statistics; <http://www.bls.gov/iif/oshcfoi1.htm#charts> 6 The Future of Dallas Waste; < http://www.thefutureofdallaswaste.com/faq.html>

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employees on the working face of the Landfill, and would seem to require a good faith effort by the City to review or amend Permit No. MSW 62, issued by the Commission. An investigation initiated by NTAPE into pre-emptive correspondence or pro-active actions on behalf of the City to minimize these workplace hazards before passage of the Ordinance has revealed little to no evidence of any efforts to protect municipal solid waste employees or the public.7

Additionally, a twenty-five percent in waste hauler traffic to the Landfill may cause an imminent danger to human health and safety due to a localized air pollution episode.8 The Ordinance does not provide additional health or environmental benefits, according to the Environmental Protection Agencies (the EPA) study of flow control. The EPA also said that enforcement of federal and state regulations, not flow control, protects the public health and the environment. The Ordinance could reasonably be expected to cause death or serious physical harm, and that conditions or practices exist which would allow for a recommendation of civil action to restrain such conditions or practices and for other appropriate relief in accordance with 29 CFR 1903.13. The City contracts out to private sector waste haulers to supplement sanitation services, and these private sector waste haulers work at the Landfill, which is owned and operated by the City. Private sector employees are provided protections under the Occupational Safety and Health Act of 1970, while public sector employees are not. In essence, there are two classes of employees, whereby private sector employees are protected under federal regulation, while civilian employees of the City suffer due to mismanagement and inadequate oversight by relevant authorities.

7 8

See Appendix for Investigation 30 Tex. Admin. Code 118.3 LOCALIZED AIR POLLUTION EPISODES

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II.

The Director of Sanitation for the City of Dallas is in violation of State Law and Flow Control Ordinance No. 28427 A. The Director of Sanitation and the Ordinance violate the Texas Health and Safety Code, Title 5-Sanitation and Environmental Quality, Chapter 361Solid Waste Disposal Act Texas Health & Safety Code Ann. 361.002(a) authorizes the Commission to safeguard the health, welfare, and physical property of the people and to protect the environment by controlling the management of solid waste. NTAPE, taking into account the interests of civilian municipal solid waste employees, the death of Mr. Terrell at the Landfill, and the lack of specific procedures defined or applied before passage of Ordinance; find that the Director of Sanitation and the City have failed to fulfill the requirements of safeguarding the health and welfare of the people. Sec.1810. SCOPE OF CHAPTER, as amended, assumes that the Ordinance will be for the benefit and protection of the city and its citizens and the Citys solid waste collection and disposal utility.9. NTAPE would disagree on this fact. In the City memo, Answers to Questions from September 7, 2011, The Green Path for Dallas10, the City outlines a timeline and respective implementation stages, with January 2, 2012 being the set date of implementation for the Ordinance11. Between September and December 2011 the City would prepare the citys solid waste facilities for the acceptance of additional waste. Video surveillance for roadways and working areas at the Landfill and the Northwest (Bachmann) Transfer Station requested and forthcoming from the City by NTAPE, will show that there has been no preparation to speak of. Informal questioning and examination by NTAPE members of the Landfill working areas, and the lack of correspondence with, or review or inspection by, relevant regulatory agencies, support the allegation that the

Dallas Flow Control Ordinance No. 28427 Memo: Answers to Questions from September 7, 2011, The Green path for Dallas 11 This date has changed due to the Join Motion for Continuance filed with this Court, but none-the-less shows the rash nature in which the City and Director of Sanitation sought to force the Ordinance on civilian employees and citizens.
10

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City and Director of Sanitation have violated the Ordinance. The City has provided no additional training on hazard minimizing procedures, literature to the fact, additional civilian employees to mitigate the drastic increase in waste hauler traffic, nor physical modifications to the working area of the Landfill. Furthermore, Sec. 2-139(2) Duties of the Director of Sanitation Services, as amended by the Ordinance, consolidates the supervision and administration of the Citys municipal solid waste collection and disposal system, into the hands of a single individual. The Commission alone is granted the responsibility of managing and coordinating municipal solid waste, excluding hazardous waste by Texas Health & Safety Code Ann. 361.011(a)(b). Sec. 18-10(b)(2)-(3) gives the Director of Sanitation discretionary powers to temporarily suspend, or permanently halt, until in the directors judgment, adequate measures are taken ensure the public health, safety and welfare. In addition to this arbitrary power, the Director of Sanitation may reject, for any reason, the processing of disagreeable solid waste. These portions of the Ordinance may be construed as a Power Grab by the City, voiding its legality under state law. This argument is further supported by Texas Health & Safety Code Ann. 363.003(11), which states that the problems of solid waste management have become a matter of state concern and require financial assistance to plan and implement solid waste management practices that encourage the safe disposal of solid waste and the recovery of material and energy resources from solid waste;

CONCLUSION The City may adopt rules for regulating solid waste collection, handling, transportation, storage processing and disposal. However, these rules may not authorize any activity, method of operation, or procedure prohibited by Chapter 361 (Solid Waste Disposal Act), or by rules or

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regulations of the Commission or other state or federal agencies.12 It is the opinion of NTAPE, that the City and the Director of Sanitation have violated, or failed to come into compliance with local, state, and federal regulations in order to minimize the imminent danger posed by implementation of the Ordinance. Dallas City Council members approved this measure without first requiring health and safety procedures be described and made public, or enforcing the requirements outlined in the Ordinance that sanitation facilities would be prepared. By doing so, the City has disenfranchised and deprived civilian employees of due course of the law of the land.13 It is the specific interest of NTAPE to protect the health and safety of our membership, and all civilian employees for the City. In order to guarantee civilian employee and association membership interests, we pray that the Court enjoin the Ordinance and require the City to initiate appropriate and voluntary risk assessment inspections of the Landfill, and all relevant transfer stations.

Certificate of Service I hereby certify that on the 10th day of January 2012, I served the foregoing amicus curie brief on defendants and to Chris Caso, Assistant City Attorney for the City of Dallas, at Dallas City Hall. Stephen Benavides Public Employee Advisor North Texas Association of Public Employees (NTAPE)
12

Texas Health & Safety Code Ann. 363.111 ADOPTION OF RULES BY PUBLIC ANGENCY

13

Texas Constitution Article 1 Sec. 19

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United Steelworkers Local 9479 1408 North Washington Ave. Ste. 202 Dallas, TX 75204
STATE OF TEXAS COUNTY OF DALLAS WITNESS THE HAND AND THE SEAL OF THE UNDERSIGNED; SIGNED under oath before me on this _____ day of _____________, _________ A. D. By _______________________ Stephen Benavides

Notary Public, State of Texas Signature: Notary Public, State of Texas Printed Name: My Commission Expires:

______________________ ______________________ ______________________

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