Thursday, April 22, 2004

Battle Creek still closed

Tonnage still an issue between DEQ and NWS

By Jamie Turner
Staff Writer

The gates to Battle Creek Landfill remain closed despite a Richmond court order earlier this month that called for the disposal facility to reopen as early as April 19.

But this week the only traffic entering and exiting Battle Creek are county employees and those working for landfill operators National Waste Services (NWS) of Virginia.

On April 6 Richmond City Circuit Court Judge Theodore J. Markow granted a temporary restraining order on NWS’ behalf. The court ruling called for the landfill to reopen because the company was suffering financially after the landfill was closed by the state Department of Environmental Quality March 10.

The DEQ pulled the landfill’s operating permit and the facility was shut down.

Markow said the facility should reopen once DEQ and NWS reached an agreement on how to safely operate the landfill. Markow’s ruling called for an agreement by April 19. But as of early this week, there was no compromise between DEQ and NWS.

The big hang up in the negotiations revolves around tonnage limits. It is the same contentious issue that was cited when the state began permit revocation proceedings eight months ago.

DEQ agrees to reopen Battle Creek if NWS accepts only 250 tons of waste per day, a limit the state says is spelled out in the landfill’s operating permit. The state is also requesting that NWS invest further in financial assurances.

NWS is opposed to both conditions.

In the meantime, Page County filed a motion to intervene in the negotiations. As the permit holder, Page wants to be included in the ruling.

Since DEQ and NWS could not reach an agreement by April 19, both parties submitted separate lists of conditions and assurances for Battle Creek to renew operations. Now Markow must choose which set of rules NWS will follow when the landfill reopens, which could happen within the next two weeks.

Tonnage

DEQ officials came up with a list of operating rules for NWS. NWS has agreed to most of them, except a tonnage limit.

The state is calling for a 250-ton limit on the intake of waste at Battle Creek, a figure they say is included in Page County’s current operating permit.

NWS disagrees.

“In order for the landfill to break even financially it must accept, on average, nearly 1,200 tons of waste per day,” states an April 16 letter from NWS attorney Patrick Cavanaugh to Markow. “The state has suggested that the landfill should be limited to accepting but a fraction of that amount, namely 250 tons per day. The amount proposed by the state is a restriction it has fabricated, and it is one that NWS has sought to contest in a declaratory judgment action that is pending with this court.”

One month prior to the landfill closure, NWS was averaging about 1,500 tons of waste per day. The high amounts of trash hauled into Battle Creek was one of DEQ’s main argument for shutting down the facility.

DEQ officials did not want to comment on the debate with NWS over tonnage.

NWS said they cannot viably operate Battle Creek by dumping just 250 tons per day.

Financing

DEQ is also requesting NWS to add an additional $2 million onto its existing $4.3 million closure and post-closure assurance bond.

The state is asking for another $2 million performance bond  as well. This is in addition to the current $1 million performance bond the company with Page County.

“Aside from the fact that DEQ itself deemed NWS’s $4.3 million bonding sufficient less than two months ago, and no changes have been made to the site, there is no engineering evidence that DEQ could now offer to support its position,” NWS’s Cavanaugh said. “The notion that DEQ should now be allowed to impose an additional $2 million in closure and post-closure financial protections, or another $2 million in performance bonds, cannot be justified and should be rejected.”

The request for additional assurance bonds from NWS comes after the Delaware-based company filed for Chapter 11 bankruptcy this April.

NWS says its bankruptcy filing was a way to protect its business from the state. And in recent court documents, NWS said it made a $3.8 million profit in 2003.

Intervention

As the negotiation plays out between DEQ and NWS, Page County’s landfill attorney James E. Cornwell Jr. recently filed a motion to intervene in the case. Cornwell said county officials want to be included in the Richmond court proceedings.

“If the judge allows it, we will be making comments on DEQ’s and NWS’s orders,” Cornwell said.

Both the landfill permit and property Battle Creek sits on belong to Page County. Cornwell said the county should be privy to any decisions made involving Battle Creek.

Cornwell met with NWS attorneys April 19 to discuss the company’s future plans at Battle Creek after the facility reopens.

For its part, NWS aims to use the negotiations to rebuild its partnership with Page County and the state.

“Our goal is to try if possible to build a new relationship with the county and DEQ,” said Scott Andrews, of Winston-Partners, the McLean-based company with controlling interest in NWS. “We are trying to come up with a resolution that works with everybody. And I believe there have been signs of progress in the past 10 days.”

Andrews said NWS has been working with DEQ and Page County for the past two weeks ironing out differences.

While NWS is hoping to mend the fence, Andrews said there final goal is to reopen Battle Creek.

“We believe it is in the best interest for the citizens of Page County to have the landfill reopen in the near future,” he said.

In the meantime, Page County landfill inspectors reported Tuesday that Battle Creek’s leachate system was leaking. The leak was reported to the state.

We can be reached at pagenews@shentel.net.