Arkansas Solid Waste Landfill Post-Closure Trust Fund/Eligibility Updates: Clark McWilliams (Star Valley Consulting) Arkansas Environmental Federation Land Seminar Presentation

Clark McWilliams undertook a presentation at the Arkansas Environmental Federation (“AEF”) Land Seminar titled:

Arkansas Solid Waste Landfill Post-Closure Trust Fund – Eligibility and Updates (“Presentation”)

Clark is a principal with Star Valley Consulting.

The Arkansas General Assembly enacted Act 747 in 1991 which established the Landfill Post-Closure Trust Fund (“Trust Fund”). See Ark. Code Ann. 8-6-1001 et seq. The Trust Fund is described by the Arkansas Department of Energy & Environment – Division of Environmental Quality (“DEQ”) as a:

. . . separate form of financial assurance that provides a funding mechanism for performing post-closure corrective action at a closed solid waste landfill that is causing groundwater or some other type of contamination.

DEQ states that the Trust Fund has two purposes:

• Provide for the operators of active facilities to establish financial assurance of 20% of the projected sum total costs for post-closure maintenance, as opposed to 100% of the sum total projected costs
• Provide funding for corrective action in the case of a closed landfill that is causing groundwater contamination or some other type of contamination that poses a hazard to public health or the environment.

Landfill disposal fees generate revenue to support the Trust Fund.

Clark’s Presentation addressed topics such as:

• How does it relate/affect you and your clients.
• A little history for a perspective of why.
• A lot of what the Trust Fund is not.

The overview addressed the following topics:

1. Need for Solid Waste Management (federal laws  – 1970’s and 1980’s)
2. Origins of Better Solid Waste Management (sustainability)
3. State’s Response to Federal Requirements
4. Trust Fund Eligibility – Broad View
5. Eligibilty and Prioritization
6. Changes and Updates

The Presentation specifically addressed:

• Trust Fund Origins (Role of the 1984 Resource Conservation and Recovery Act amendments and landfill design standards)
• Reference to Arkansas laws passed in the 1990s to develop and establish relevant regulations
• Design and operational standards
• Design and operational standards were paired with landfill closure and post-closure standards
• Many sites were classified as open dumps or unpermitted landfills
• Trust Fund established to perform corrective action at a site to prevent or abate contamination
• Legislative changes included:
  • Appropriation changes
  • Funding changes
  • Fund use changes
  • Impact to solid waste management as a whole
• Description of what does not constitute post-closure care
• Description of federal solid waste regulations at 40 CFR 257 and 258 (location restriction, design and operating, financial assurance, closure and post-closure, etc.)
• Post-closure care for 30 years (municipal waste) after closure
• By late 1990s most landfills have either closed with a shorter post-closure care period because they met the deadline or complied with the new permitting closure and post-closure standards
• Trust Fund is described as:
  • Not a fund for routine use
  • Primarily for use by DEQ
  • Not for sites other than landfills and waste tires
  • Not a release of responsibility for owner/operator
• Landfill eligibility criteria are stated to include:
  • Previously operated as a landfill
  • Certified closed regardless when it ceased operation
  • Must not be contiguous to operating unit
• Waste tire facility eligibility criteria addressed
• Discussion of key legislation
  • Act 1282 of 2007 (any action over $50,000 per site at closed landfills had to be prioritized and approved by Arkansas Pollution Control & Ecology Commission (“APC&EC”)
  • Act 757 of 2009 (restricted maximum correction action expense to $2 million per fiscal year)
• Discussion of eligibility and prioritization
  • APC&EC approved the prioritization in 2011.
  • 145 closed sites with environmental concerns were identified.
  • Almost immediately, work began in earnest on corrective action at landfills
• Changes/Updates
  • Changes have been made in the availability of the Trust Fund for broader use
  • DEQ’s Appropriation Act made the Trust Fund available for "closure" at sites owned/operated by solid waste management districts (District had to meet certain criteria)
  • Waste tire processing and disposal facilities all owned by solid waste districts
• Act 249 reemphasized the lifting of fund use restrictions by clarifying “nevertheless”
• Act 89 removed the option of DEQ taking civil action against solid waste districts to recover costs for closure or post-closure, but noting there is still an overall caveat in the statute for post-closure care and DEQ may pursue collection and recovery
• Act 1000 raised the $50,000 prioritization to $2 million per site and remove the $2 million maximum limit from the fund

A copy of the slides can be downloaded here.