Landfill Lease on Indian Land Has Substandard Controls

Despite its pledge to meet or exceed state environmental standards, a Pittsburgh waste-management firm has negotiated a lease to build a dump on Indian land in North County that includes significantly looser environmental controls than those required under state rules.

Opponents of the project--a 500-acre landfill proposed for the Los Coyotes Indian Reservation--are worried that the company, Chambers Development, will be able to duck its environmental responsibilities because landfills situated on sovereign Indian land are exempt from all state regulation.

The Los Coyotes tribe is one of three in San Diego County that have signed formal agreements with out-of-state waste firms. Proponents of such reservation dumps say they are a perfect union in which cash-poor Indians get revenue and land-starved waste companies get acreage.

But the dumps’ opponents contend that the projects are part of a cynical nationwide strategy by waste firms to use Indian sovereignty as a loophole to evade strict state environmental regulations.

In San Diego County, the Los Coyotes lease has heightened those concerns. Critics say the 41-page agreement is proof that Chambers is exploiting the economically disadvantaged tribe and endangering the safety of its members.

A copy of the lease, dated October, 1990 and recently obtained by The Times, shows that, although the Indians could take in as much as $1 million a year in revenue, they would also be required to waive their legal immunity and return all the money if Chambers were to win a judgment for breach of contract.

If the Indians change their minds about the dump, they would be forced to buy out Chambers’ investment at full market value. And yet the company is free to sublease or expand its project without penalty, the document says.

But, beyond the financial arrangements, the environmental provisions Chambers has included in the lease have upset environmentalists, neighbors of the reservation and even some of the Los Coyotes tribe members themselves.

Chambers officials insist they will run an environmentally sound project.

“We will meet and exceed both the federal and state of California environmental standards, with regard to operation,” said Ed Wiles, manager of Chambers corporate development. “We’ve said that not only in writing to the band, but to the BIA (the federal Bureau of Indian Affairs) and said it repeatedly publicly.”

Yet the lease makes no such guarantees.

The lease specifies that:

* Chambers may delay the crucial task of planning for the closure of the Los Coyotes landfill. Instead of calling for a closure plan and financial commitment upfront, as required by state law, the lease allows Chambers--at its discretion--to put off those decisions until two years before it plans to close the Los Coyotes dump.

* Instead of following state guidelines that require a waste-management firm to monitor a closed landfill for 30 years to ensure there is no environmental fallout, Chambers will be required to maintain the Los Coyotes dump for just 20 years.

If the Los Coyotes dump was proposed on state land, those two points alone would keep it from being approved, said Don Dier, manager of the permitting division for the Integrated Waste Management Board, the state agency that regulates garbage dumps.

Dier said the upfront plans and financial commitment for landfill closure, for instance, are important to “guard the public.”

“What if they (Chambers) goes 15 years, and they turn it over to someone else? What if they sell the project? Then Chambers is off the hook. . . .,” he said.

Richard Wharton, a University of San Diego law professor who has completed a preliminary review of the lease, agreed.

“It’s an unconscionable contract,” he said. “If anything happens, they (the Indians) lose.”

Wiles, the Chambers spokesman, said federal law would eventually hold his company liable “in perpetuity” for any environmental problems caused by the Los Coyotes landfill. He said Chambers will not leave the tribe liable for damages because federal law would hold the firm as the “probable responsible party” for any environmental problems that ensue.

Opponents say that isn’t enough, because the Indians would have to file a lawsuit--and win it--before getting a penny from Chambers.

Wiles also disagreed with contentions that Chambers took advantage of the Indians.

“We certainly believe it is a lease and a contract that does provide the protection to, and fairly treats, the Indian band,” he said. “It is going to generate substantial revenues to this Indian band, which presently has a very, very minimal amount of income. . . .”

But Los Coyotes tribal chairman Banning Taylor, who negotiated and signed the lease, said in an interview with The Times that he thought the document only authorized preliminary environmental testing for a landfill--testing that he says the tribe had voted to authorize.

“They told me to, and then I signed it,” Taylor said. “It wasn’t (a) lease.”

The tribal chairman said the only attorney he consulted before signing the document was an Escondido lawyer whose name he couldn’t recall but who was recommended by Chambers--a contention the company denies. Wiles said Taylor negotiated the agreement along with several tribal attorneys, none of whom were suggested by Chambers.

Taylor also referred to his critics, on and off the reservation, when he expressed little concern about the fact that the lease commits Chambers to only 20 years of post-closure monitoring, instead of the state minimum of 30 years.

“In 20 years, they’ll all be dead anyway, all these old people who are crabbing right now,” said Taylor.

Those complaints could reach a crescendo today at a tribal meeting, where Indian opponents to the proposed landfill intend to argue that Taylor was not authorized to sign the lease. They have joined forces with Warner Springs homeowners, who live next to the reservation and say the planned landfill could endanger their underground water supply.

“It’s never gone before the tribe. He signed it on his own,” said Constance Maxey, a Los Coyotes Indian who added that Chambers officials have begun “wining and dining” some fellow tribe members to solidify support. “They’re offering houses, a health facility, a museum. But we don’t want that.”

Catherine Saubel, an Indian elder born on the reservation 71 years ago, said she was visited by a Chambers representative who promised her cash “bonuses” in exchange for her support, which she would not give.

“That sounded like a bribe to me,” she said.

According to Dier, of the state’s Integrated Waste Management Board, Chambers stands to save thousands of dollars in state fees and surcharges by building its landfill on Indian land.

One fee Chambers would avoid is a $1-a-ton assessment to fund the waste board, which is responsible for overseeing the dumps. Based on an estimated intake of 3,000 tons a day, that exemption would save Chambers more than $900,000 a year at the current tipping rate charged in San Diego County.

Another surcharge Chambers would not pay is a 75-cent-a-ton, non-refundable assessment that is deposited in a special state fund to pay for environmental mitigation at problem dumps around the state. The surcharge is in effect for five years and could cost Chambers nearly $680,000 annually, Dier said.

Instead, Chambers has agreed in its lease to establish a $1-million fund of its own to take care of any problems at Los Coyotes. But the document allows Chambers to get back all of that, with interest. Chambers is allowed to withdraw $500,000 in five years and the balance in 10 years.

The $1-million mitigation fund may not be sufficient or last long enough to help with an environmental disaster, said Jim Goodrich, an Orange County Water District employee who has been hired as an outside consultant by dump opponents in nearby Warner Springs.

“Just because it doesn’t leak in 10 years doesn’t mean it isn’t going to leak in 15, 20, 30 years,” said Goodrich, adding that he believes Chambers should bankroll at least $6.5 million indefinitely to cover a disaster. “And, if it leaks in 30 years, it is going to have to be fixed.”

Under terms of the lease, which becomes effective upon approval by the U.S. Department of Interior, Chambers has exclusive permission to build and run an unspecified landfill for up to 50 years on the northeast corner of its reservation, situated near the Cleveland National Forest.

In return, Chambers has been paying the tribe a monthly retainer of $5,000, since the lease was signed in October. It also promises to pay the tribe up to $120,000 as a bonus if federal officials approve the project.

Once the dump opens, however, the tribe will receive 6% to 10% of its gross revenues, according to the lease, which also requires the landfill to be open from “dawn to dusk” for about 300 days a year.

In all, the Los Coyotes band could receive at least $980,000 a year, based on an average receipt of 3,000 tons a day at the county’s current tipping fee of $18 a ton. That would mean $7,828 for each of the tribe’s 125 adult members, who Chairman Taylor said are eligible to draw an equal share of the money.

The lease says Chambers will give the Indians periodic reports on landfill operations, but requires the tribe to pay for any independent audits unless the review turns up a mistake by the firm.

Chambers also has agreed to pay the salary for a $40,000-a-year “on-site landfill inspector” to be chosen by the tribe. “They could hire anybody they want,” said Wiles, acknowledging there are no written job requirements for the position.

Patricia Schifferle, a San Francisco-based environmentalist, has been hired by rural San Diegans fighting the Los Coyotes project, as well as a similar landfill planned by the Campo Band of Mission Indians and a toxic-waste incinerator proposed on land owned by the La Posta band. She said the Los Coyotes lease is a “blank check for Chambers.”

“To me, these are shuck and jive, slick salesmen, with a lot of PR pronouncements, a lot of talk and flashing money at this tribe,” she said. “And I think when the public is allowed to have some scrutiny of it, they can see what a raw deal, a terrible deal, this is for the tribe.

“The people who are going to be left holding the bag, paying the long-term price, are the Native Americans and the taxpayers,” she said.

Before the Los Coyotes landfill can go forward, however, the federal government requires that a full environmental assessment be completed, including public hearings at which private citizens may air their concerns.

Gil Stewart of the Bureau of Indian Affairs’ Riverside office said those hearings will probably be scheduled soon, to be followed by about a year of studies. Only then will the BIA consider approval of the project.