"Is Driehaus corrupt; or is she just ignorant?" asks advocate regarding Rumpke settlement

Commissioner Driehaus backs Rumpke in Settlement Agreement; rescinds rule she proposed dumps citizen groups.The Cincinnati Post, 2022

The Director of Child Advocacy for Rights & Equity, Inc. is asking a hard question in response to Commissioner Denise Driehaus proposing a settlement agreement with Rumpke. “Is Driehaus corrupt; or is she just ignorant?”

The settlement agreement rescinds the rule Driehaus claimed to support last December which, for the first time in county history, regulated landfills in Hamilton County. Last week, Hamilton County became the Trash Capital of the United States, housing the most acres of trash dumped on the county from as far away as Illinois.

Driehaus’ proposal creates a new rule filled with loopholes that protect Rumpke. Most importantly, by rescinding the original rule, she lets Rumpke restart the clock on the highly contentious Bond Road landfill expansion. By rescinding the rule, it strips the public of the ability to contest the landfill.

Otherwise, the new rule is substantially similar to the original rule.

Carrie Davis, an advocate who has been deemed an expert witness in administrative law by an Ohio court, states,

The original rule has a provision which permits the editing of the rule to remove any section that the court finds exceeds the powers and authority of the board of commissioners in order to preserve the remainder of the rule and, most importantly - the onset date. So there is no need to rescind the rule other than to give Rumpke an escape clause to evade their responsibilities under the existing rule.”

Stephanie Wright, who lives in the shadow of “Mt. Rumpke” in Colerain is an advocate for clean communities. She has worked tirelessly to expose the problem of open dumping in her township. Wright has often complained about the stench from Mt. Rumpke permeating through her community. When learning of this proposed settlement agreement, she posted,

This smells like a backroom deal.”

The Solid Waste Caucus, a group of nonprofits including the League of Women Voters, Sierra Club, Ditch the Dump, Oxbow, and other organizations representing nearly 10,000 citizens in the county who oppose the expansion of the Bond Road landfill, have wondered the same thing. Members of the ad hoc group have appeared at the Solid Waste Policy Committee meetings contesting the appointment of a Rumpke consultant to that committee when the committee is charged with developing policies that reduce the county’s reliance on landfills.

A position that could seriously undermine the revenues of Rumpke, who holds a monopoly on trash in the region.

Likewise, some of the Policy Committee members, themselves, have demanded - to no avail – that they be provided the legal opinion Driehaus claims allows someone employed by the company they oversee to sit on the oversight committee. Until last year, Driehaus insisted that Bill Rumpke himself be allowed on the committee. It took a threat of a lawsuit to get Rumpke’s resignation. The board of commissioners voted to not approve the consultant’s appointment, but Driehaus back-doored him by asserting that her fellow commissioners didn’t have any authority over the board they created despite 20 years of the commissioners serving as the oversight directors of the committee.

The statute states that the commissioners are to convene a committee. Somehow, Driehaus believes they have no authority over the committee they have the power to convene - or dissolve. The commissioners serve as the “board of directors” for the committee, but Driehaus relies on the unsubstantiated premise that the committee operates autonomously.

There's another mysterious missing legal opinion.

Driehaus also refuses to release a legal opinion to the committee that has been sought-after since May by both the health commissioner, Greg Kesterman and the City of Cincinnati’s representative, Sue Magness.

Sue Magness begins her inquiry at the September solid waste policy committee meeting by making it clear that she wanted to consult with city administration but was told she wasn’t permitted to speak to the members of the body she is actually representing on the committee by Hamilton County Assistant Prosecutor Michael Friedman. She states,

At one point, I wanted to share some information with city administration, but I was told by Mr. Friedman that I could not because it was under client-attorney privilege… Am I now allowed to discuss things with the city manager”

referring to other staffers substituting for members on the committee and demonstrating how the client-attorney privilege has already been breached.

Clearly, Magness has the right to consult with the city solicitor, the mayor, the vice-mayor, and city council on matters wherein she is their designee.

Cincinnati representative on Solid Waste Committee pleading for a copy of legal opinion from DriehausThe Cincinnati Post, 2022 adapted from public meeting video of Hamilton County, OH

Magness pushed forward at the September meeting with an air of frustration in her voice asking Driehaus and their legal counsel, Nee Fong Chin,

“Will we get the legal opinion?”

Chin: “You’ve got the opinion.”

Magness: “This isn’t a legal opinion. It doesn’t have any references to laws or statutes, or even the attorney who wrote it… will we get the actual (legal) opinion?” referring to a brief memo provided by Deters’ staff.

Chin: “What is your question?”

Magness: “Will we get the legal opinion Mr. Kesterman asked for (back in July)? …signed by an attorney. This is not a legal opinion – this is a memo. I want a legal opinion!”

Driehaus: “That’s what’s in front of us.”

Magness: “No, it’s not!” flustered and frustrated after waiting since May. “No, it’s not. I want the whole thing! I want to see our own opinion.”

Chin: Referring to Jeff Alutto, “He chose not to give you the opinion.”

Magness: “I just want to see it -- the real thing.”

Watch the entire video (@1:47:23 here )

Driehaus has taken numerous actions of her own accord: she agreed to waive Rumpke’s requirement to adhere to the new rule without any input from the committee or commissioners and in violation of the Open Meetings Act, she terminated the committee’s legal counsel unilaterally, she waived that counsel working on behalf of Rumpke without the consent of the committee, and now – well, the Settlement Agreement she has proposed eliminates the county’s committee from the entire process.

The Settlement Agreement reads like an admission that the claims by Rumpke were without merit.

Rumpke acknowledges via the agreement that the commissioners have the authority to impose rules on the solid waste industry. They agree the authority is broad. The documents the commissioners requested, including the swath of materials provided to the Ohio EPA in a permit request, both were not excessive, but most importantly, the agreement makes clear that the time of which Rumpke submits their documents to the Ohio EPA has absolutely no bearing whatsoever on the applicability of the rules. The formal passage of the rules is not contingent on any processes of the Ohio EPA.

As demonstrated by the Settlement Agreement, the commissioners have the full authority to establish any reasonable process by which an applicant who wants to establish or modify a landfill is processed.

Key to the agreement is the broad language, “the proposed project reasonably avoids or mitigates adverse impacts on the environment, health, and safety of the District and its residents in compliance with the Plan”

This is where the agreement goes into the woods. Unlike the original rule, which requires the commissioners to consider specific key aspects such as:

· The economic impact on the area including the reduction in property values; and

· The possible risks to people and the environment common to landfill operations

The new agreement sets a much higher standard. The agreement diverts from the language in the Ohio Revised Code which states that the rules passed by commissioners must be “consistent” with the plan, to “in compliance with the Plan”. This distinction hampers the commissioners’ rule-making authority.

Driehaus’ proposed Settlement Agreement strips the committee charged with oversight of solid waste and the operation of the county plan of all responsibility or input on both the assessment of the proposed alterations and the ability to propose future rules. Driehaus puts the director of Environmental Services, solely, in charge of assessing the proposed landfill. Furthermore, Rumpke succeeded in getting Driehaus to agree to allow a 3-member team, of which 1 is Rumpke, 1 is a public member, and 1 is a staffer from environmental services, exclusive authority to propose any rules in the future.

The agreement also strips the board of commissioners of their statutory duties and authority and hands them off to the director of environmental services and the whims or preferences of the county administrator and the 3-person panel. Under this agreement, the commissioners would be at the discretion of their own administrator whether to put a new rule on the agenda.

Driehaus’ Settlement Agreement guts the work of the committee and the public and returns the county to the decades of abuse and corruption these very laws were designed to thwart. The agreement contradicts the expressed intent and purpose of the federal and state statutes vesting this authority in the commissioners and the solid waste policy committee.

"It’s a power grab" says Davis, "it's part of the campaign to 'deny and delay'".

One Driehaus is too willing to forfeit according to half the members of the solid waste committee, the solid waste caucus, and thousands of residents who have been writing letters, calling, and attending meetings for the last 18 months.

Driehaus is ready to settle. However, residents of Hamilton County have had enough.

As one resident, Richie Corns, posted on social media, “It’s time to move!”