By Robert W. George
Northwest Arkansas Business Journal
Putting out the underground fire still smoldering at the property in Bella Vista known as the “Stump Dump” could be the easiest part of resolving a situation that has concerned residents for months.
A contractor from the Arkansas Department of Environmental Quality (ADEQ) estimates it will take at least eight months and $4 million to put out the fire. That is a lot of money and a long time for area residents to wait for progress. But those figures likely could seem trivial when compared to what those determined to be responsible for the fire are facing.
Unless ADEQ ignores its contractors’ advice and decides to leave the materials on site and smother the fire, the soil and debris burning at the Stump Dump will need to be excavated and relocated. ADEQ’s contractor says that process could require another 10 months and cost another $15 million to $20 million.
The landowners have indicated they can’t afford to clean up land that I’m sure they wish they didn’t own at this point. But ADEQ has determined a cleanup must occur because the fire presents a risk to public health and the environment. State monies from the Remedial Action Trust Fund will be used initially, but that fund currently has only $7.3 million in it and must also be used to remediate several other contaminated sites in Arkansas.
ADEQ has requested assistance — presumably financial assistance — from the U.S. Environmental Protection Agency (EPA). Under a statute known as the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), EPA administers a much larger fund for environmental cleanup projects, commonly referred to as “Superfund.” If the EPA steps in and puts the Stump Dump cleanup on the National Priorities List under CERCLA, significant federal dollars may also become available.
Whether the money comes from the state fund or the federal Superfund, a government agency will finance the cleanup. However, under our environmental laws, financial responsibility for these costs may ultimately be assigned to private parties like landowners and the individuals, businesses and associations who placed hazardous wastes on that site. Both the statute under which Arkansas’ Remedial Action Trust and the federal Superfund statute allow agencies to recover cleanup costs (including costs of investigation and for developing remediation plans) from landowners and others who contributed to the contamination.
The process of collecting cleanup costs from private parties is a lengthy one. It begins with warning letters and investigative reports, both of which we have already seen from ADEQ for the Stump Dump. Parties that recognize their potential liability and who have resources to contribute to the cleanup sometimes sign consent orders seeking to cap their liability. Those parties often then pursue contribution claims against other parties who are also allegedly responsible. The legal fights over financial liability for cleanup costs can last for decades as parties lawyer up and hunker down, waiting for enforcement actions and court dates.
The parties being chased for cleanup costs are sometimes also targeted for civil litigation by private lawyers seeking to recover money for alleged harm to the health or property values of neighbors or community members. Several law firms have already announced that they are evaluating this type of litigation in connection with the Stump Dump fire.
Hopefully, the fire will be put out soon. But the fire is just the beginning of this unfortunate situation. Northwest Arkansas residents are in for a litigation marathon, and we have not yet made it to the first mile marker.
This information is written the Attorney Robert W. George of Friday, Eldredge & Clark, LLP and was originally published for the Northwest Arkansas Business Journal (March 4, 2019). Robert’s focus consists of a multifaceted business litigation practice in both federal and state courts and includes defending clients against environmental and toxic tort claims, as well as commercial disputes or involving fraud, theft or unfair competition.
This is not a substitute for legal advice and should be considered for general guidance only. For more information or if you have further questions, please contact one of our attorneys.