Judge orders Marysville to pay Cedar Grove $143,000

A judge finds that the city failed to turn over emails requested by Cedar Grove Composting as public records.


September10, 2013
By Bill Sheets, Herald Writer

EVERETT — The city of Marysville was ordered Monday by a judge to pay more than $143,000 to Cedar Grove Composting for violations of the state public disclosure law.

The Everett composting company last year sued Marysville in Snohomish County Superior Court over the city’s withholding of emails between it and a consultant.

In an unusual move, Judge Richard T. Okrent also ruled that the city should have disclosed emails related to Cedar Grove that were sent internally at the consulting firm, Strategies 360.

Cedar Grove officials did not respond Monday to an email seeking comment.

The city of Marysville, the Tulalip Tribes and many who live in Marysville and Everett have been battling Cedar Grove for several years over allegations that the company’s Smith Island plant has been emitting offensive odors in the area.

Strategies 360 was performing public relations work for Marysville related to the issue.

The consulting firm already had been hired by the city to lobby on transportation and other issues and had been paid a flat rate of $7,500 per year for all the combined work, according to city administrator Gloria Hirashima.

Last year, Cedar Grove filed a public disclosure request with the city for all written communications with Strategies 360 related to the composting company. The city supplied most of the emails but withheld a number of them, claiming they were exempt from public disclosure because of attorney-client privilege. The emails contained discussions of legal strategy, Hirashima said.

Okrent ruled that 15 of those emails did not meet that standard. Though Marysville released the emails before Cedar Grove filed the lawsuit, the city should have released them sooner, the judge ruled.

The emails contained possible strategies and approaches, some of which the city used and some it didn’t, Hirashima said. For example, the city acted on the consultants’ suggestion to have city and Tulalip tribal leaders send letters to elected officials, she said.

The emails also revealed that the city and Strategies 360 helped residents write letters to newspapers and with other activities, such as applying for grants, according to the original complaint by Cedar Grove.

Hirashima said there’s nothing wrong with that in itself.

“We had literally hundreds of citizens asking us for help on this issue,” she said.

Mike Davis, leader of the Cedar Grove opposition group Citizens for a Smell Free Snohomish County, acknowledged he had help with letter writing but said he took the initiative.

“Any implications that we were created by the city of Marysville or that they ran the citizens group is not true,” he said. “I went to my elected officials as any citizen should. We were offered and gladly accepted help from the city. Fix the smell, I go away, it’s that simple.”

Also, Okrent ruled the city was negligent in failing to track down 19 other emails in response to Cedar Grove’s disclosure request.

Marysville also should have released internal Strategies 360 emails pertaining to Cedar Grove, the judge wrote in the ruling signed on Monday. The firm was acting as an employee of the city on the matter, he said.

“Marysville knew what Strategies was doing, paid them for those activities, was generally aware that there were documents in Strategies’ possession created during those activities, and discussed the contents of some of those documents with Strategies,” Okrent wrote.

The attorney working on the case for Marysville, Jeff Myers of Olympia, said the ruling broke new legal ground.

“I think it caught everyone by surprise that the court did what we thought was an unprecedented extension of the public records act to records the city never had,” Myers said. “Those were things the city never saw, didn’t possess and some of it was done for other clients.”

Myers said he’s specialized in public disclosure law for nearly 10 years and “it’s the first time to my knowledge it’s been done anywhere,” he said of the ruling.

Hirashima said the ruling sets an ominous precedent in terms of how the city and other government agencies must respond to disclosure requests in the future.

“This is a distraction from trying to get the (odor) issue addressed,” she said. “There are tools Cedar Grove has to inflict punishment back.”

Cedar Grove two years ago was fined $119,000 by the Puget Sound Clean Air Agency for odor violations at its plants in Everett and Maple Valley in King County.

That amount was applied toward Cedar Grove’s $200,000 contribution to a $375,000 study of odors in the Snohomish River Delta run by the Clean Air Agency.

The city of Seattle and King County, both of which send yard and food waste to Cedar Grove, put up $100,000 and $50,000, respectively. The Clean Air Agency is spending $25,000.

Bill Sheets: 425-339-3439; sheets@heraldnet.com.

Cedar Grove cited for June odor violations



Marysville Globe Reporter
JULY 24, 2013 · 10:03 AM

EVERETT — Another summer marks another set of complaints about the odors allegedly emanating from Cedar Grove Composting’s Smith Island facility, which was cited for two odor violations on June 6 and another two on June 25 by the Puget Sound Clean Air Agency.

PSCAA spokesperson Joanne Todd explained that this makes 13 citations in the past five years for Cedar Grove at Smith Island, in addition to four written warnings within that time, although she also noted that the Smith Island composting plant had not received any citations for 2013 until the month of June.

Susan Thoman, director of public affairs for Cedar Grove, added that these PSCAA notices of violation were the first for the Smith Island plant in three years, and reported that their on-site electronic odor monitoring data for June 6 “clearly contradicts” the PSCAA’s findings, by showing no detectable odors leaving the plant during the times cited by those notices.

“We understand the community’s frustrations, and we care deeply about talking to people about them,” Thoman said. “We’ve begun a review of these findings and our data with Puget Sound Clean Air Agency officials, to try and resolve any disagreements.”

As of Monday, July 22, Cedar Grove had yet to receive the two PSCAA violation notices for June 25, and thus, Thoman declined to comment upon them specifically.

Todd acknowledged that Cedar Grove might not necessarily be subject to disciplinary action as a result of the PSCAA notices, especially since the company can choose to appeal them, but she also clarified that the odor complaints are independent from the agency’s ongoing odor study employing “e-noses” from Odotech similar to those already installed by Cedar Grove at Smith Island.

“With complaints, the public calls in bad odors, and our inspectors work to trace those smells back from those residences to their sources,” Todd said. “The Odotech e-noses have nothing to do with those notices of violation. Cedar Grove owns their own e-noses, and we’ve installed a number of e-noses in other locations to help scientifically identify the source of the odor that so many people in Marysville and North Everett have smelled, but we’re not using them for compliance.”

Todd elaborated that the data from those 10 e-noses will be combined with observations from trained area residents, meteorological factors and other information after the study wraps up, which Todd expects will occur around November of this year.

“It’s going to give us a ton of data, which will take a lot longer than a month to go through,” Todd said.

In the meantime, Thoman relayed the number of positive comments she’s received from the community about Cedar Grove’s composting work, while urging the public to consider the other potential sources of the odor, and Marysville Mayor Jon Nehring reiterated his concerns about the PSCAA study.

“We were always opposed to the e-noses,” Nehring said. “Cedar Grove had a contract with Odotech before the study started, so we believed they would be a bit biased, and our Public Works Director Kevin Nielsen pointed out that the e-noses are not qualified to deal with compost because they can only pick up very defined odors. We don’t have any illusions that the e-noses will say that Cedar Grove is the culprit behind the odor, but without even saying for certain where the odor is coming from, we just want it to away, and we think Cedar Grove could help out with that.”

Cedar Grove odor complaints return

By Bill Sheets, the Herald

EVERETT — As the weather keeps heating up, so again are the complaints against Cedar Grove Composting.

The Smith Island business was cited for four odor violations last month by the Puget Sound Clean Air Agency.

Inspectors for the agency recently traced the smells from residences in Marysville to the composting plant, twice June 6 and twice again June 25, agency spokeswoman Joanne Todd said.

The citations bring the total to 13 in the past five years for Cedar Grove. The plant has received numerous other odor complaints during that time from people living in Marysville and north Everett. The company also has received four written warnings in those five years.

A Cedar Grove official said information from its odor monitors contradict the clean air agency’s information regarding the June 6 complaints. As of Friday the company hadn’t yet received the violation notices for June 25, company spokeswoman Susan Thoman said in an email.

“Our on-site electronic odor monitoring system indicated that no detectable odors left our property during the time cited by the (notices for June 6),” Thoman wrote. “We plan to share this monitoring information with the agency.”

The notices won’t necessarily result in disciplinary action against the company.

“It’s up to our supervisors to be able to work through that with Cedar Grove,” Todd said. “And they can appeal it.”

These citations were the first for Cedar Grove in 2013, Todd said.

In 2011, the company was fined $169,000 for odor violations going back several years at both its Everett plant and its plant in Maple Valley, King County.

The company appealed those fines to the Puget Sound Growth Management Hearings Board, a state regulatory panel. The fines were upheld but the board knocked $50,000 off in deference to Cedar Grove’s expenditures on measures to curb the odors.

The board said Cedar Grove to that point had spent $6.5 million on odor control at the two locations combined, some of it voluntarily and some as a result of earlier violations.

Cedar Grove collects yard and food waste from hauling companies in much of Snohomish and King counties and grinds it, cures it and sells it for compost in gardens.

In past years, complaints often have spiked early in the summer, corresponding with an increase in volume of waste being brought to the plant at Smith Island.

Cedar Grove officials have said other sources could be causing the odors. The remainder of Cedar Grove’s fine from 2011 — $119,000 — was put toward an odor study last year by the clean air agency.

The study will combine information from 10 electronic odor monitors, called “e-noses,” and recorded impressions from volunteers in an attempt to scientifically determine the source of the offensive stench.

The total cost of the study is $375,000.The city of Seattle and King County, which both have sent yard and food waste to Cedar Grove for composting, are putting up $100,000 and $50,000, respectively. The city of Seattle recently decided to end its arrangement with Cedar Grove effective next spring. The clean air agency is spending $25,000 on the study.

Four monitors are located at Cedar Grove, having been purchased previously by the company. One monitor each also has been placed at the wastewater treatment plants operated by Everett and Lake Stevens; the Cemex plant in north Everett; the clean air agency’s weather station in central Marysville; one at a volunteer’s home in Marysville and another at a home in Everett.

The results of the study are expected later this year.