Share This Article
As Baxter County residents await the news over the potential sale of the NABORS landfill to Illinois-based company Lakeshore Recycling Systems, the Observer has been at work reading hundreds of pages of documents surrounding the landfill and its controversial closing.
Earlier last week, a source who wished to remain anonymous, approached the Observer with a binder full of legal documentation surrounding the various lawsuits against the Ozark Mountain Solid Waste District for its mismanagement of the site.
This binder included lawsuits from the Bank of the Ozarks, the trustee of the district’s bonds, ADEQ’s intervention into the landfill, and documentation from the district’s attempt to file for bankruptcy. These documents contain testimony given during depositions, bank statements, and internal memos.
While the end results of these lawsuits are already known, the public has a right to see what was said and filed during these lawsuits. Because of this, the Observer will be publishing these documents periodically as we work through them.
Here are some of the highlights that we have already read through.
Environmental problems from the start
In 2014, during a May hearing in the bankruptcy case for the Ozark Mountain Solid Waste District, District board member Tim McKinney testified that part of the district’s responsibilities included overseeing grant programs, recycling programs, and waste programs.
Those responsibilities did not include the purchase and operation of the NABORS landfill in Baxter County, Arkansas. Instead, the district’s board made a business decision to purchase the landfill, and the liabilities that came with it, outside of their legally required duties.
McKinney testified that the board purchased the landfill through a temporary bond issued by the Bank of the Ozarks in the amount of $9,800,000. A second bond in the amount of $2,500,000 was then issued for the purchase of equipment and assets needed to run the landfill.
According to McKinney’s own testimony during that hearing, the district immediately began to experience issues with the ADEQ over portions of the landfill that were “improperly constructed, resulting in the risk that leachate would contaminate the ground water if the district did not undertake remedial measures.”
He further testified that the grants received by the district, along with the $2 per ton tipping fee that the landfill collected, were exhausted each month trying to combat the leachate problem within the landfill.
An affidavit signed by Jeff Crockett, the former chairman of the district during the case between ADEQ and OMSWD, states that the cost of the leachate to the district was generally between $15,000-20,000 per month. According to the affidavit, the landfill was only bringing in roughly $15,000 a month in fees.
Because of this, Crockett swore that it was “impossible for the Solid Waste District to comply with the matters and requirements raised by the [ADEQ] in its complaint.” A judge would ultimately rule that running a landfill in compliance with the law was not impossible.
While the landfill and its leachate problem were costing the board money, the board made no real moves to rectify its cash flow problem. McKinney testified that “the board never seriously considered levying the service fee authorized by Arkansas Code Annotated Section 8-6-714(d).”
It’s unknown if service fees could have solved the district’s money problems, but at the time the board was concerned that “the statutorily authorized service fee might be considered an illegal exaction.” McKinney said, “the fee was discarded as a source of revenue primarily because the board considered it a politically unacceptable solution that would likely result in the District board members not being re-elected to the offices they held in their respective counties.”
Instead, the board waited until after they lost their respective cases in court to hit the public with an $18 a year waste service fee to recoup their losses. That fee was partially defeated in court, with a ruling that the district would have to repay property owners a portion of the fees they were forced to pay, but fee repayments were put on hold by another court in the middle of last year.
ADEQ v. Ozark Mountain Solid Waste District
The case of ADEQ v. Ozark Mountain Solid Waste District is a relatively simple one.
When the Bank of the Ozarks sued the district in court over its failures to pay back its debts, ADEQ intervened in the case, a move that was quickly signed off by the Circuit Court in Baxter County.
The complaint, which sought relief for the state and to compel compliance with the state’s environmental regulations and orders, laid out the case against the district and how it had repeatedly failed to comply with the rules surrounding its issued permits.
It should be noted that when issuing permits, ADEQ requires terms and conditions in accordance with state law that “protect the health and safety of residents of the state and the environment.”
These conditions include, “engineering and construction requirements, operational details, monitoring and reporting requirements, and financial assurance requirements.”
In its complaint against the district, ADEQ stated that between 2009 and 2012, the district was found to have committed various violations of its permits, state statues and APC&EC regulations. Those failures resulted in the district having to enter three different Consent Administrative Orders that were designed to attempt to rectify the violations.
The district struggled to comply with those CAO’s.
For instance, ADEQ had found that the district had allowed several of its landfill cells to become overfilled with garbage. To rectify that, in its efforts to close those cells, ADEQ required that the district begin transporting the overfill to other locations.
In the case of Area 1-2 of the landfill, the district agreed to remove its overfill within 180 days of receiving a CAO but was ultimately found to not even have started the process by the end of the 180 days.
In Area 1-3, the district noted in its 2009 annual engineering report that its area had entered an overfill condition and was in violation of its permit. The district’s permit included a closure plan for Area 1-3 but failed to submit an overfill management plan to the state. ADEQ charged the district with violating the Arkansas Solid Waste Management Act because of that failure.
ADEQ also claimed that the district broke the same law again after failing to remove excess fill within 30 days of discovering the overfill.
Another instance of overfill was found in the district’s Class 4 landfill.
Overfill problems weren’t the only problem that plagued the landfill between 2009-2014. In its complaint, ADEQ noted the district failed to update its Annual Engineering Inspection Report in 2011, another violation of the Arkansas Solid Waste Management Act.
And that’s not all. Again in 2011, the district failed to conduct its required aerial survey of its Class 1 landfill as required by ADEQ. Another violation of the waste management act.
In the fourth quarter of 2012, the district failed to conduct its required ground water monitoring of potential toxic substances in the groundwater. Previous groundwater monitoring events before the missed monitoring event “detected five monitoring constituents at statistically significant levels above the groundwater protection standards.”
The district was also found to be out of compliance with the Arkansas Water and Air Pollution Control Act by “causing pollutions to water of the state.” That part of the complaint states that the district failed to complete corrective action within 90 days of finding pollutants in its runoff water.
ADEQ stated that as far back as 2007, the district was aware of high levels of Arsenic, Vinyl Chloride, Cobalt, 1,1-Dichloroethane, and Lead. The very same contaminants that were still being listed at high levels in ADEQ’s October 2022 survey of the NABORS landfill.
ADEQ also found that the district failed to conduct gas monitoring of its Class 1 landfill in the fourth quarter of 2012.
Each and every one of these complaints was admitted too by the Ozark Mountain Solid Waste District in its reply to ADEQ’s complaints. But while the district admitted to what they were accused of, the board still had the gall to repeatedly assert that it “denies that it has violated the Arkansas Solid Waste Management Act or APC&EC Reg.22.209(c).”
ADEQ would ultimately be awarded a summary judgement in its case against Ozark Mountain Solid Waste District.
The Silver Lining
As the sale of the NABORS landfill continues to weigh on the local population here in Baxter County, it’s has become clear that the landfill, whether sold or not, will continue to be a major environmental concern for those that live here.
Document after document shows that those managing the site, whether past or present, had no real plan to stop the leaking of toxic substances into Baxter County’s streams and lakes.
Now, the public is faced with a potential re-opening, allowing even more waste and garbage to flood a region that prides itself on its natural beauty and its water sources.
The silver lining to the situation is that those living in Baxter County are beginning to band together to fight the district over the sale of the landfill. That process has started at the local level here in Baxter County, with both the county’s quorum court and largest city passing resolutions against the sale of the landfill.
And those government bodies are not alone, organizations and individuals in the county are standing up and have promised to fight the re-opening of the landfill at the state level if needed.
This continues to be a developing story, the Observer will continue to dig through documents and monitor any new developments with the NABORS landfill.
