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Landfill liability re: Contamination

Posted on: July 3rd, 2016
by David Ganje

The operation of a municipal landfill, also known as a solid waste facility, involves significant legal risks, such as damage caused from a landfill leaking or contamination of groundwater.

Modern landfills are created with liners and other collection systems designed to prevent contamination of the ground, groundwater and the air. Despite this protection, in 2003 the U.S. Geological Survey (citing the EPA) opined that “all landfills eventually will leak into the environment.” Many landfills in South Dakota are not insured for pollution losses that may occur while the landfill is operating. Rapid City carries landfill pollution insurance. By way of example, Belle Fourche, Sioux Falls, Brookings and Brown County do not have landfill pollution insurance. The state is currently monitoring a situation at the Brown County landfill related to a ground water underdrain collection system.

A state system of financial planning is in place for current operating contingencies, as well as closure and post-closure costs of landfills. Municipalities by rule are required to show their financial ability to take any corrective action. North Dakota has similar rules. These are the so-called unexpected contingencies, such as a leak into an aquifer.

South Dakota’s rules allow a municipality to keep a separate fund (money deposited in a bank account) to protect against the costs of a leaking landfill, or alternatively for coverage of such a leak by purchasing pollution insurance. To maintain a separate fund large enough to cover a landfill leak is beyond the financial capability of municipalities. Brown County, the third largest county in the state, maintains this separate fund in the amount of $240,000. That is not enough money to cover a possible leak. Brown County is one of the municipalities that does not carry landfill pollution insurance. To put this in financial perspective, the cost to clean up a leaking 150-acre landfill next to a drinking water supply in Burnsville, Minn., was recently estimated by the state at $64 million. These clean up events are the type addressed by landfill pollution insurance – yet few municipalities seem inclined to carry the insurance. This is akin to riding a motorcycle without a helmet. Landfills in the state are, in most cases, owned and run by cities and counties. These municipalities hold title to their landfills. Understand that municipal landfills are dutiful in complying with state and federal environmental regulations. State regulators and municipalities are following relevant statutes and rules. That is not the issue. The challenge is the risk of pollution liability, also called environmental liability – no small matter in today’s world, with costs that can reach into the millions.

The state is required by law to maintain a program of technical and financial assistance to encourage solid waste management. But the legislature has in reality foisted legal responsibly onto municipalities, and in doing so has eliminated any possible governmental immunity for local municipalities. The statutory language of this ‘dodge’ is extraordinary and absolute: “The owner or operator of a solid waste disposal facility … is responsible in perpetuity for the solid waste and liable in perpetuity for any pollution or other detrimental effect caused by the solid waste.” The state permit application for a party operating a landfill also requires the applicant acknowledge that the applicant (usually a city or county) is “liable in perpetuity.” Legal responsibility in perpetuity leaves no room for doubt. For a municipality it’s forever.

Despite the clarity of the law, and the significant costs that could come from an environmental cleanup, many municipalities remain unprotected against the kind of damages that could result from a leaking landfill.

David Ganje practices law in the area of natural resources, environmental and commercial law in South Dakota and North Dakota. His website is Lexenergy.net

Original Article at Argus Leader – My Voice

Brownfields-An Unused Part of North Dakota’s Environmental Law

Posted on: April 19th, 2014
by David Ganje

 

BROWNFIELDS – AN UNUSED PART OF NORTH DAKOTA’S ENVIRONMENTAL LAW

 

Laws by their nature create tension between different economic interests in a democratic society.  When the free market system includes environmental laws which affect the market­ability and development of contaminated or polluted property, the system must also include a mechanism to protect the owner’s ability to sell and develop such property.  Man-made ‘controls’ created by man-made regulations need man-made protections to reduce the affect of these ‘controls’.  Environmental laws and regulations are no exception.  Contemporary environmental laws contain many restrictions on transfer of property, as well as hazardous spill reporting and cleanup requirements.  Such laws affect the marketability of property.  State and federal agencies in recent years have focused attention on the cleanup and redevelopment of contaminated property sites in North Dakota.  These sites are called brownfields.

Brownfields are properties the use, expansion or redevelopment of which is complicated by the presence or potential presence of a hazardous substance.  Environmental laws now include financial assistance for the cleanup of such properties.  Brownfield cleanup can address mine-scarred lands, sites contaminated by petroleum, chemicals or sites contaminated as a result of manufacturing.

Environmental issues in North Dakota are primarily the jurisdiction of the state’s Department of Health, Environmental Health Section (EHS).  The EHS has significant management authority over environmental matters in the state and has had cooperative agreements in place with the U.S. Environmental Protection Agency (EPA) under which the EHS is the principal state government agency dealing with environmental matters.

North Dakotans are fortunate in that the EHS is generally accessible and open in its regulatory and management style.  Such accessibility is not always the norm among environmental agencies across the country.  EHS has established policies that promote the development of environmentally affected properties. The brownfields program is application based.  Cities, counties or local government groups may apply for assistance under the program.

Many North Dakota municipalities and local governments are missing the boat.  Not all environmental regulations are bad.  One useful but underused environmental program in the state is North Dakota’s State Response Program (Brownfields Program).  This program is a source of funding for site assessments and, if necessary, cleaning up qualified brownfield sites throughout the state.  Access is available to qualified property owners (counties and municipalities), community development organizations, and nonprofits.  The expenses of approved site assessment and environmental testing can be cost free to the property owner; The North Dakota Brownfield Program manages and pays for these expenses.

One can be fairly certain that in North Dakota many cities and counties, in both rural and urban areas, have abandoned, underutilized, or potentially contaminated properties.

EPA data indicates that only three North Dakota municipalities and five tribal organizations have received Brownfield Grants since 1998.

The prevailing view is that many people think that brownfield sites are only associated with abandoned manufacturing sites that were so prevalent in the rust belt states located east of the Mississippi River.  Brownfield sites exist in very state and they include but are not limited to abandoned gas stations, dry cleaners, factories, warehouses, bus facilities, parking lots, aircraft hangars and heavy equipment repair and storage centers.

In years to come we will probably see an increase in North Dakota brownfield sites due to the development of oil and gas resources in the Bakken Formation.  The state’s Brownfield Program will enable qualified property owners to clean up Brownfield sites so they can be put to better economic use for the benefit of investors and residents of North Dakota.

The EPA reports that qualified applicants are eligible for up to $200,000 in cleanup grants per property and that 3 out of 4 applications received in 2013 were successful.  The cleanup grant recipients are required to provide a 20% share (e.g. $200,000 Grant has a $40,000 match).  The cost share does not have to be money; it could be in the form of a contribution of labor, material, or services from a non-federal source.  Hardship waivers can also be requested.

That environmental problems with properties should remain hidden based upon a public misunderstanding is the old way of doing business.  EHS and affected communities and counties should partner up and pursue this course of action.  It would be in the economic interest of the communities in which such properties are located and the state.