IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

NATIONAL SOLID WASTES

MANAGEMENT ASSOCIATION,
Etc. et al.,
Plaintiffs,
v. CIVIL ACTION NO.
3:11-CV-03200-O
THE CITY OF DALLAS, MIKE RAWLINGS,
PAULINE MEDRANO, TENNELL ATKINS,
DWAINE CARAWAY, MONICA ALANZO,
CAROLYN DAVIS, JERRY ALLEN,
LINDA KOOP, AND ANGELA HUNT,
Defendants
BRIEF OF AMICUS CURIAE

On behalf of:

NORTH TEXAS ASSOCIATION OF PUBLIC EMPLOYEES (NTAPE)

--An association of City of Dallas civilian employees

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 Ernestor Pena-President
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 Helena Durham, Attorney at Law

TX Bar No. 06281600

2730 N. Stemmons Fwy., Suite 1000

Dallas, TX. 75207

Attorney for NTAPE

CERTIFICATE OF INTERESTED PERSONS

For Amicus Curiae NORTH TEXAS ASSOCIATION OF PUBLIC

EMPLOYEES (NTAPE)

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 Request for Conditional Filing

Amicus North Texas Association of Public Employees hereby requests

permission to file an amicus brief in the above-captioned action. Amicus is an

interested party, and the decision of the Judge in this matter will directly affect its

members. Accordingly, North Texas Association of Public Employees files this

brief, and resquests permission from the Honorable Court to consider it in making

its decision.

Respectfully Submitted,

Susan Helena Durham, Attorney

(Request for Leave to File Amicus Brief previously sent by FAX to His Honor,

Judge Reed O'Connor, by Stephen Benavides, copy attached.)

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 TABLE OF CONTENTS

Table of Authorities……………………………………………………………. 5

Interest of Amicus…………………………………………………………….. 7

I. The Flow Control Ordinance No. 28427 poses

imminent danger of serious bodily injury and/or death to civilian
employees…………………………………………………………… 8

II. The Director of Sanitation for the City of Dallas is in violation

of Flow Control Ordinance No. 28427……………………………… 11

Conclusion……………………………………………………………………… 13

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 TABLE OF AUTHORITIES

FEDERAL REGULATIONS

29 CFR § 1903.13 …..............................................................................10

TEXAS CONSTITUTION

Article 1 § 19 …………………………………………………………... 13

STATE STATUTES

Texas Health & Safety Code Ann. § 361.002(a) ………...............……. 11

Texas Health & Safety Code Ann. § 361.011(a)(b) ………........……....13

Texas Health & Safety Code Ann. § 361.271 ….......................……........8

Texas Health & Safety Code Ann. § 363.003…...................................... 13

Texas Health & Safety Code Ann. § 363.011.................……………......13

Tex. Civ. Prac. & Rem. Code § 101.021..............................……….......... 8

STATE REGULATIONS

30 Tex. Admin. Code § 118.3…………………..........................……..... 10

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30 Tex. Admin. Code § 330.105(a)..............................……………......... 9

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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.

FACTS

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 this Court enjoin the activities

prescribed in the Ordinance for a time to allow 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 City’s public interest to provide responsible sanitation services

without undue costs or liabilities.

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 I. The Flow Control Ordinance No. 28427 poses imminent danger of 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. Terrell’s waste hauler running and

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. Terrell’s 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. Terrell’s 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

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>

2Texas Health & Safety Code Ann. § 361.271(a) PERSONS RESPONSIBLE FOR SOLID WASTE

3Tex. Civ. Prac. & Rem. Code § 101.021(1)(a)(b)(2) GOVERNMENT LIABILITY

Page 8 of 14
 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. Such a drastic increase in waste hauler

traffic increases the likelihood of serious bodily injury or fatality for civilian

employees on the working face of the Landfill, and requires 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

430 TAC Rule 330.105(a) COLLECTION VEHICLES AND EQUIPMENT

5Bureau of Labor Statistics; <http://www.bls.gov/iif/oshcfoi1.htm#charts>

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 the Ordinance has revealed little to no evidence of any efforts to protect municipal

solid waste employees or the public.6

Additionally, a twenty-five percent increase in waste hauler traffic to the Landfill

may cause an imminent danger to human health and safety due to localized air

pollution episodes.7 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.

6See Appendix for Investigation

730 Tex. Admin. Code § 118.3 LOCALIZED AIR POLLUTION EPISODES

Page 10 of 14
 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 361-Solid 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, believes that the Director of Sanitation and the City have failed

to fulfill the requirements of safeguarding the health and welfare of the people.

Sec.18-10. “SCOPE OF CHAPTER”, as amended, assumes that the Ordinance will

be for the “benefit and protection of the city and its citizens and the City’s solid waste

collection and disposal utility.” (Emphasis added.)8. NTAPE disagrees on this

premise.

8Dallas Flow Control Ordinance No. 28427

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 In the City memo, “Answers to Questions from September 7, 2011, “The Green

Path for Dallas”9, the City outlines a timeline and respective implementation stages,

with January 2, 2012 being the set date of implementation for the Ordinance10.

Between September and December 2011 the City would “prepare the city’s 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, will support the allegation that

the 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

City’s 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 &
9Memo: “Answers to Questions from September 7, 2011, “The Green path for Dallas””

10This 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.

Page 12 of 14
 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 director’s 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

On behalf of NTAPE, there are problems with safety in the way the Director of Sanitation

is implementing the Ordinance. NTAPE has presented Freedom of Information requests to

various governmental entities to get information on the implementation of the Ordinance,

including requesting correspondence between the various governmental agencies. NTAPE

needs additional time to receive and evaluate the information that it receives pursuant to the

FOIA requests, and it is asking this Honorable Court to maintain a restraint on implementation

of the Ordinance until the safety problems can be evaluated and proper restraints and

procedures, if any, may be required to safeguard the public health and safety.

Page 13 of 14
 Respectfully submitted,

SUSAN HELENA DURHAM

/S/

Attorney for NTAPE

Certificate of Service

I hereby certify that on the 10th day of January 2012, an electronic copy of the foregoing

document was filed with the Clerk of the Court for the US District Court for the Northern

District of Texas, using the Court's CM/ECF system. I further certify that all participants in the

case are registered CM/ECF users and that service will be accomplished by the CM/ECF

system.

/s/ Susan Helena Durham

________________________
Susan Helena Durham

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