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The fight to keep Baxter County’s most notorious landfill closed still isn’t over.
While advocates against the sale of NABORS landfill were able to take a victory lap after Governor Sarah Huckabee Sanders signed a new bill into law that would force companies seeking to reopen landfills to repay the state in full if any state funding in remediation or closure, the sale of the landfill between Illinois based Lakeshore Recycling Systems (LRS) and the Ozark Mountain Solid Waste District may still be on.
In a Thursday meeting in Harrison, Mountain Home Mayor Hillrey Adams attempted to have the OMSWD pass a resolution to default on the sale, but ultimately failed after pushback from the district’s attorney, who warned that the resolution could open the waste district to litigation from LRS.
Adams said he would be working to amend the language in the resolution to make it more palatable for the district’s attorney. He said he would be pushing for another district meeting within the next few weeks to give the resolution a second attempt.
“I think you’re going to maybe see a request for another board meeting here in the next couple of weeks,” Adams said. “I think there’s either going to be some language changes in it that the board attorney was not comfortable with or there’s going to be another action put before the board. I think it’s going to happen fairly quickly.”
Last month, Governor Sanders signed HB 1774 into law.
The bill, which took effect immediately upon signing, requires any landfill that pulled funds from the state’s Landfill Post-Closure Trust Fund for remediation or closure to remain closed until a series of new conditions are met.
Those conditions include a full reimbursement to the trust fund for any money used for remediation or closure, approval of a new certificate of need for the landfill from the regional solid waste management board, and at least one public hearing concerning the opening of the landfill by the regional waste management district.
As it stands now, LRS is looking to purchase NABORS landfill for a relatively cheap $500,000. The state paid $13 million to close the landfill following ADEQ’s lawsuit against OMSWD.
OMSWD attempted to pay back the $13 million in funds used by the state to close the landfill by instituting an $18 dollar a year fee on residents living within the waste district, but that fee was challenged in court, where it still lingers today. The court case surrounding the $18 fee is expected to go all the way to Arkansas State’s Supreme Court, but that could be years away.
The waste district still owes Bank OZK some $17 million. If LRS moves forward with the sale, then they will be on the hook for the full $13 million paid out by ADEQ to close NABORS landfill, as well as funds used to collect leachate and monitor the various wells around the site.
In a phone conversation with the Observer, Baxter County Judge Kevin Litty said LRS’s attempts to purchase and reopen the landfill no longer make financial sense, citing LRS’s comments on investing a significant amount of cash above the asking price to upgrade the landfills waste collection equipment.
In that meeting, officials also estimated that the landfill only had a lifespan of some 10 years if it were to reopen.
“If they gave $500,000 for the landfill and if it only had a 10 year lifespan, and it wasn’t going to profitable for five years because of the money they’ll have to put in on top of the $500,000, how could it ever be profitable if the life of the landfill is only 10 years,” said Litty.
HB1744 is another blow to OMSWD’s attempts to seal the deal with LRS. The district’s first blow came after it failed to close the deal in December, before new members of the waste district could be seated on its board. Instead, the district has been forced to wait as LRS continues to work through its due diligence in conducting surveys on the landfill.
The second blow, which came in January after the district’s new board members were seated, saw Mountain Home Mayor Hillrey Adams push to reverse the board’s decision to sell the landfill following severe public outcry. The board unanimously agreed to use the legal out placed in the sale agreement by its lawyer to indefinitely postpone the sale of the landfill.
That agreement appeared to have been waved off in February during a publicly held meeting at the landfill. That meeting, which had representatives of LRS in attendance, saw Ozark Mountain Solid Waste District’s Board Director Fred Woehl state that the board had zero say in whether the sale went through or not.
Representatives from LRS went on to state their intentions to purchase and re-open the landfill, promising to upgrade the site’s wastewater collection system after they took over. Rusty Janssen, regional SVP for Lakeshore Recycling Systems, further claimed the company could begin taking on new garbage at the landfill some six months after closing the deal.
Janssen also downplayed toxic chemicals found in leachate at the site and made claims that the landfill was not built on karst topography, despite ADEQ reports stating otherwise.
Things seemed dire for proponents of keeping the landfill closed, until the Baxter County Quorum Court delivered a third blow to the sale by passing an ordinance banning the opening or re-opening of landfills within the county limits.
That ordinance resulted in Janssen writing a guest column in The Baxter Bulletin targeting the court and opponents against the sale of the landfill.
In that column, Janssen claimed “misleading information” and “blatant disinformation” had been disseminated that “could potentially result in long-term physical and environmental harm to the community,” before stating that “facts are powerful” and “assumptions are dangerous.”
“If the Baxter County Quorum Court is serious about the claim that, ‘protection of the health, safety, wellbeing, environmental quality and economic prosperity of the citizens of Baxter County’ is its ‘primary duty and responsibility,’ then I would urge its members to reconsider their stance. LRS is exactly the partner that Baxter County needs to properly manage the NABORS landfill and its impact on the future.
In the meantime, our plans are unchanged. We will continue to come alongside the people of Baxter County by investing in the NABORS landfill, transforming it from an environmental liability to a force for environmental and economic prosperity.”
While Thursday’s meeting in Harrison was filled with barbs and jabs between members of the OMSWD board, the standout information from the meeting came after Adams proposed his resolution to default on the sale of NABORS landfill.
After introducing the resolution, and fielding complaints from Woehl who did not receive a copy due to not having correct contact information on file with the board, Adams received strong push back from John Verkamp, the board’s attorney.
The resolution, which can be found below, goes on to make several claims as to why the sale agreement between LRS and OMSWD is no longer valid.
Section C of the resolution notes that under, “paragraph 10(a)(viii) of the agreement, containing representations, warranties and covenants of the parties to the agreement, states in part: ‘Seller had obtained permits for opening of additional landfill cells.’”
“Contrary to such wording, as LRS is or should have been aware, permits had not, at the time of the signing of the agreement, been obtained by seller for the opening of additional landfill cells and have not been obtained since such signing. Because NABORS landfill was at the time of signing of the agreement, closed and capped as required by ADEQ pursuant to litigation with OMSWD, and because NABORS continues to pose a threat to the environment, obtaining a permit for additional landfilling at the site would be improbable.”
The resolution would further have the board state that the district was unaware of the date on which LRS commenced with its due diligence of the environmental conditions at the landfill. It would also allege that LRS was not informing the board of its due diligence activities and findings.
According to work plans filed with the state, LRS appears to have begun its due diligence in October of last year, with an additional dye tracing test scheduled in January. According to the sale agreement, LRS’s due diligence period was to be for a period of 90 days from and after the effective date of the agreement. Any extensions for due diligence were supposed to be filed with the board. The resolution alleges that no extension was requested, and that the due diligence period has expired.
Lastly, Adam’s resolution states that the sale agreement stated that the closing of the sale was to occur within 30 days of the due diligence period. Both of those periods have now expired, with no official word on whether LRS wants to finalize the sale.
Both Adams and Litty confirmed that LRS has not reached out to the board about finalizing the sale. In Thursday’s meeting, Verkamp said he would request an update from LRS officials regarding the sale.
Verkamp’s official position on the resolution, which was drafted with help from Richard Mays, a Little Rock based attorney who is working with the Friends of the North Fork and White Rives, was that the resolution was ultimately unneeded due to the board’s vote earlier in the year that the sale would have to come back before the board before being finalized.
The attorney also noted that the sale was in a current state of limbo, with Judge Fox having to sign off on the deal before it could return to the board for approval. The $17 million lien against the property would also have to be removed before the sale could move forward.
He ultimately warned that the resolution could open the board up to legal action from LRS.
Following his comments, Woehl proceeded to once again take shots at Baxter County and its officials by telling Adams to take over the landfill themselves. Woehl has repeatedly attempted to lay the NABORS situation at the feet of Baxter County, despite the fact that board members from every county within the waste district voting not only on the purchase of the landfill all those years ago, but on defaulting on repayment of its bonds to the Bank of OZK.
LRS currently operates as a trash hauler in Boone County, who Woehl represents on the board for the waste district.
The meeting ended before Steve Blumreich, a member of the Friends of the North Fork and White Rivers, and Richard Mays could address the boards questions surrounding the language of Adam’s resolution.
“The objective of the resolution was to look at the sale contract and say, well, the terms of the contract have not been fulfilled and so it allows the solid waste district board to say that it is no longer valid,” Blumreich said of the resolution.
“We believe the Ozark Mountain Solid Waste District board has a responsibility to their citizens to use the same criteria when considering a potential buyer for the property. They should not consider selling the land to anyone that would reopen the landfill which would be in direct conflict with the reasons it was closed to new trash in 2012, capped in 2018 and certified closed in 2020.”