SOLID WASTE MANAGEMENT ADVISORY COUNCIL MEETING

MINUTES*  October 21, 1999

These Minutes are a summary of the meeting held October 21, 1999, as required by the Open Meeting Act. The meeting was recorded and the tapes are available for inspection and copying at the Solid Waste Management Office located in Oklahoma City, Oklahoma, 405-702-5213.

This meeting was convened in accordance with the notice of regularly scheduled council meetings on file at the Office of the Secretary of State as required by the Open Meeting Act, Section 311 of Title 25 of the Oklahoma Statutes. This notice was filed with the Secretary of State by December 15, 1998. The agenda for this meeting was posted on the entrance of the Stillwater Public Library and the Oklahoma Department of Environmental Quality, 707 North Robinson, Oklahoma City, Oklahoma, 24 hours prior to the meeting in accordance with Section 311 of the Open Meeting Act. In the event that this meeting is convened or continued or reconvened public notice of the date, time and place of the continued meeting will be given by announcement at this meeting and the agenda for such continuation will remain the same as today’s agenda.

Agenda Items 1 and 2.

The meeting was called to order by Chairman Steve Mason, at approximately 9:15 am. Roll call was taken and the following council members were present: Steve Mason, Ken Purdy, David Griesel, Ralph Triplett, Jr., Jay Stout, Bill Torneten, Steve Landers, Wayne Hill, and Casey Elliott. Mr. Mason welcomed Mr. Elliott, a new council member, and also welcomed Jerry Johnston, representing the Environmental Quality Board.

Agenda Item 3. MINUTES OF JULY 15, 1999 MEETING

Motion was made by Jay Stout and seconded by Ralph Triplett to approve the minutes of the July 15, 1999 meeting. A roll call vote was taken and the motion passed unanimously.

Agenda Item 4. REPORT ON SEPTEMBER 28, 1999 EQ BOARD MEETING:

Steve Mason reported on the recent Environmental Quality Board meeting, held noting that the main solid waste issue involved a biomedical waste facility certificate of need proposal that had been forwarded to the Board by the council. He noted that representatives of the Department of Veterans Affairs, who had requested approval of the certificate of need, failed to appear at the Board meeting and the certificate was denied.

Agenda Item 5. SOLID WASTE PROGRAM REPORT:

Jon Roberts announced that Linda Cole of the Waste Management Division had been selected as the DEQ Employee-of-the-Year. He also stated that the financial assurance cost study being conducted by the DEQ through a private contractor was making good progress and that information from other state programs was being collected and analyzed. The council had asked, at its previous meeting, for information regarding the waste tire indemnity fund. Mr. Roberts noted that the fund, which had been reduced to approximately $130,000 due to the appropriation to other programs, was now at a level of approximately $500,000. Jon also stated that they were following up on the request made by the council to encourage the removal from state law of the requirement for a biomedical certificate of need.

Agenda Item 6. PUBLIC FORUM:

No comments were offered.

Agenda Item 7. RESOLUTION REGARDING SOLID WASTE PROGRAM FEES/EXPENDITURES

Steve Mason called upon Fenton Rood of the Waste Management Division to update the Council on the resolution. It is an annual duty of the Council to review the expenditure of solid waste fees and make a recommendation to the state legislature. Mr. Rood said that they had combined two issues into one resolution which is reflected in what had been sent to the Council. Mr. Purdy offered a motion, seconded by Wayne Hill to approve the resolution. A roll call vote was taken and the motion passed unanimously.

Agenda Item 8. CONSIDERATION OF FORMAL RULEMAKING PETITION FROM CLEAR CREEK COALITION

Mr. Mason, Council Chair, noted that as part of the rulemaking petition from the Clear Creek Coalition, they had asked that he recuse himself from the rulemaking proceeding due to a potential conflict of interest. The Clear Creek Coalition is an association of citizens opposed to the proposed Hidden Valley landfill near Tahlequah. Stating that he was not saying whether or not he agreed there was a conflict of interest, Mr. Mason elected to recuse himself from hearing the rulemaking proposal and turned the matter over to Ralph Triplett, the Council Vice Chair.

Councilman Mr. Torneton mentioned the September 10, 1999 memorandum developed by DEQ Attorney Sonny Johnson as previously requested by the Council. He specifically noted the analysis and summary of the petition and thanked Sonny Johnson for providing the information.

Mr. Stan Doyle, representing the Clear Creek Coalition, then addressed the Council. He introduced himself as a lawyer and part-time resident of the Clear Creek area. He mentioned that there were 28 individuals who had signed the petition and he indicated that represents many other residents of the area. He also noted that he had not reviewed the memo regarding the petition but would like to do that at some point. He also stated his appreciation toward Mr. Mason for recusing himself from consideration of this matter. Mr. Doyle noted that Mr. Mason’s firm, Cardinal Engineering, was the one that had been previously mentioned in connection with the landfill financial assurance study. He stated that the concept of conflict of interest can be traced back to Roman law and to something known as the London Ordinance which prohibited a lawyer from working for both sides in a case. Mr. Doyle also offered comments relative to financial assurance in general for solid waste landfills, indicating that he supported the requirement that landfills post an adequate bond to cover closure of the site should the owner be unable to do so. He then discussed topography in northeastern Oklahoma, specifically in the area of the proposed Hidden Valley landfill near Tahlequah. As he understands it, karst topography features a subsurface which is very uneven, rocky, and unpredictable, often involving springs and sinkholes. He asserted that in northwestern Arkansas, where karst terrain also exists, landfills had failed.

Mr. Doyle then went on to discuss the specific rules proposals in the rulemaking petition:

  1. a requirement that permit applicants be duly incorporated entities in good standing in the state of Oklahoma, so that the DEQ knows who they are dealing with, for purposes of financial assurance and otherwise;
  2. a prohibition on acceptance by a municipal waste landfill of industrial solid waste in a groundwater resource or recharge area;
  3. a requirement that the DEQ ensure that landfill permit application materials be placed in a suitable local area available for public review during normal business hours;
  4. a prohibition on members of the Environmental Quality Board or Councils performing work for entities seeking relief from the DEQ;
  5. a provision that any recusal should be limited to consideration of matters before the Council at that time and that after resolution of that matter the member would perform his or her normal role on the Council;
  6. a prohibition on the DEQ’s permitting of a landfill unless the permittee demonstrates financial responsibility sufficient to satisfy all financial assurances for remediation and closure of the landfill site at any given time and can satisfy any damages assessed against it by judgment to any person injured or threatened with injury during the period of the permit;
  7. a requirement that permitted landfills cease operations if the owner fails to demonstrate his continued ability to satisfy damages assessed against him by any person injured or threatened with injury;
  8. a requirement that the minimum separation between the lower portion of a landfill cell and the underlying groundwater be 100 feet, rather than the current distance of five feet;
  9. a restriction that landfills be at least one-quarter of a mile from streams and creeks. He explained that the proposed landfill is near the headwaters of an unnamed tributary of Spring Creek and flows into the much larger Spring Creek, Jane Dennis Creek, and other creeks, all of which are related to the same aquifer;
  10. (including item K) a requirement that the DEQ make a specific finding of necessity for proposed landfills and give deference to local authorities (such as county commissioners) in their making of similar determinations regarding proposed landfills.

Mr. Doyle then concluded his presentation by indicating that, having not reviewed the summary provided to the Council, in the future he would like the opportunity to respond to the summary. He also noted that the Council was in the process of a comprehensive review of the solid waste rules and he would like to become involved in that as well.

During the public discussion of the proposal, Mr. Triplett, acting as the Chair, noted that the comments made by Mr. Doyle may not have provided a complete explanation and he asked Ms. Sharp of the DEQ to update the Council regarding the goals and status of the financial assurance contract effort. Ms. Sharp said that most members of the Council are aware of the debate over how to apply the third party costs in financial assurance requirements for solid waste landfills. Because this had been a source of conflict and was often brought to the attention of the Council, the Council requested that the DEQ perform the research to determine legitimate third party costs for the services and tasks that are required under state law. The DEQ worked in conjunction with the Department of Central Services, the agency which handles contracting for the state of Oklahoma. Under the guidance of the Department of Central Services, a committee of persons, from outside and inside the DEQ, drafted specifications and received proposals from six firms. The specifications and selection criteria were made clear to firms interested in submitting proposals for this work. Following review and analysis of the proposals, the committee selected Cardinal Engineering, Inc. and the work is underway. It is hoped that the results of the research effort will enable all landfills to better estimate accurate third party closure and post-closure care costs. Mr. Triplett emphasized that the financial assurance effort is to determine accurate statewide costs and is not to determine financial assurance for any one particular landfill. Ms. Sharp stated that the study is a public process designed to gather and analyze information and has no specific bearing on an individual landfill.

Mr. Doyle, representing the Clear Creek Coalition, then provided to the Council a partial copy of the notice of award of the contract, calling their attention to the affidavit provided by firms submitting proposals. The affidavit states that there exists no conflict of interest on the part of the firm submitting a proposal. Mr. Doyle then indicated that Cardinal signed a later affidavit and that it had been revised from the original, without the conflict of interest clause and that there exists at least the appearance of a conflict of interest in this situation.

Ms. Sharp clarified that there is no conflict relative to the affidavits as both were required as part of the state contracting process. It was explained that all firms proposing to be considered for the contract signed an affidavit provided by the Department of Central Services. At the time the contract was finalized an affidavit was provided as part of the standard package of documents utilized by the DEQ. One document does not replace another; rather both affidavits became part of the final binding contract.

In response to an additional question relative to a potential conflict of interest, Councilman Torneton stated that the issue had no relevance to this particular contract. He further explained that in order to eliminate absolutely all perceptions of conflict of interest one would have to select council members with no dealings in the area of solid waste. Many matters heard by the Council impact individuals or entities in the solid waste field. Individuals serving on the Council should have some knowledge or expertise in the specific fields.

Kirk Bowers, representing the Clear Creek Coalition, asked if the Council had a role in approving the selection of Cardinal Engineering and the Council indicated it did not. He also noted that the Hidden Valley permit application was the subject of one notice of deficiency and that another was pending and that, therefore, the firm preparing the application may be inept. Councilman Torneton explained that he had personally prepared several permit applications and due to the technical complexity of such a document there is nothing unusual about a notice of deficiency. Moreover, he added, it would be unusual for an application not to receive a notice of deficiency.

Mr. Bowers and Mr. Doyle also alleged that the permit applicant has been placing his own waste on his site for approximately fifteen years and that during heavy rainfall events the waste washes down the creek. Mr. Doyle noted that they may be getting off the primary issue and instead encouraged the Council to return to consideration of drafting rules which address when a board member should step away from an issue.

Flint Kyler, representing the Oklahoma Association of Solid Waste Professionals, noted that, with respect to the financial assurance contract effort, the results will be in the form of a researched recommendation and will not actually affix closure costs that would be binding on landfills; that would require rulemaking. Cardinal would not set any specific costs for any specific landfills, but results of the effort might be brought forward to the Council and ultimately to the Board for rulemaking which could affect costs.

Vice Chair Triplett agreed with the suggestion that they get back to the rulemaking subject. Dale Barrington, a landowner, asked if Cardinal was the low bidder on the contract effort. It was explained that there was no bidding relative to cost in this contract. This was a professional services contract which was awarded based upon the detailed proposals and how each firm approached the problem.

Councilman Stout stated that the Council had heard adequate information regarding financial assurance and suggested that they hear from DEQ staff relative to other factors.

Following a short break, Mr. Triplett asked Sonny Johnson, Attorney for the DEQ, to address the Clear Creek petition. Mr. Johnson pointed out that the role of the Council is in an advisory capacity. It has no decision-making power regarding permits. As stipulated by state law, the Council also does not have final say relative to rules, but makes recommendations to the Environmental Quality Board on rulemaking. He noted that DEQ had performed an analysis of the petition in light of the existing statute and rules, which had been provided to the Council. The analysis noted that some portions of the petition run counter to specific statutory language and therefore cannot be addressed by the DEQ, citing for example the limitations on the DEQ with respect to consideration of local zoning ordinances which may impact landfills.

Mr. Triplett asked for additional comments. Councilman Stout suggested that it might be useful for council members to state their respective appointing authorities and each member did so. Mr. Bob Kellogg, representing the law firm of Shipley, Jennings and Champlin, then addressed the Council. He noted that he could perhaps provide a historical perspective and help explain matters to the public. He was General Counsel to the DEQ when the DEQ was created and he noted that the laws were written specifically addressing certain separations of powers. The Council, by design, is completely removed from the actions of the DEQ and is appointed because of its expertise in solid waste. He mentioned other rulemaking councils whose roles are similar; that role being limited to the recommending of rules to the Environmental Quality Board, not involving contracting or permitting decisions.

Bob Rabatine, representing Environmental Management, Inc. addressed the Council and noted that the discussion had gotten off track and that they should refocus on the matter at hand.

Jay Stout, noting that the role of the Council had now been well defined, stated that he saw no reason to further consider the rulemaking petition, and offered that as a motion. Wayne Hill seconded the motion. It was clarified that the motion specifically meant that the Council take no further action on the rulemaking items. Mr. Triplett asked if there was further discussion and there was none. A roll call vote was taken; all members except Mr. Torneton (voting no) and Mr. Mason (recused) voted in favor and the motion passed.

Agenda Item 9. DISCUSSION OF PROPOSED CHANGES TO OAC 252:530; SOLID WASTE RULE RE-RIGHT & DE-WRONG

Mr. Mason resumed his place with the Council, noting to members of the Clear Creek Coalition that the work on Chapter 530 was a comprehensive re-write of the rules and it also would afford an opportunity to make suggested changes to the solid waste rules. He then asked Jon Roberts to brief the Council regarding the new proposed solid waste rules, Chapter 530. Jon explained that the changes, which are part of the DEQ’s rule re-write/de-wrong effort, were an attempt to eliminate redundancies and make the requirements more clear. It was determined that it would be clearer to DEQ’s customers to merge what had been two separate chapters of solid waste rules, OAC 252:510 and 252:520, into one chapter (i.e. OAC 252:530). Jon called the Council’s attention to a summary document outlining the differences that came about as a result of this rather large rulemaking proposal. He also explained that at the appropriate time the Council will be taking two actions: one recommending approval of the new rules and one revoking the former rules. Mr. Roberts and other DEQ staff then listed the changes, briefly covering each subchapter.

At the conclusion of the briefing council members then asked questions about certain portions of the rules. Mr. Torneton asked about the formula for calculating the life of a site in OAC 252:530-1-6. Staff explained that the formula allows for consideration of site-specific facts in computing the projected life of a landfill. Mr. Torneton thought this rule might be better as a recommended option for such a computation, instead of a required method. He also asked if using recycled paper for applications was a statutory requirement, as some copy shops felt there were some problems with using recycled paper, including the expense. Mr. Rood stated that the DEQ utilizes only recycled paper and has very few problems, the cost is comparable, and that major copy shops such as Kinko’s offer a recycled paper option.

Steve Landers asked about 252:530-1-5 regarding the timing of certain operational requirements. The rule deals with facilities operating under old requirements and what they will be subject to under the new rules. Several council members noted that the scope of this rule was not clear. DEQ staff will revisit this section to clarify its applicability.

Jeff Shepherd of Waste Management, Inc. asked about the deletion of a requirement that nonhazardous incinerator ash be disposed in municipal solid waste landfills. Jon Roberts explained that while that specific rule may have been deleted, that waste is now covered as a nonhazardous industrial waste, the management of which is discussed in another subchapter.

Bob Kellogg stated that his comments address the issue of cost and areas where the proposed rules appear to be more stringent than current rules or analogous federal rules. He explained that state law requires environmental agencies to evaluate the economic impact and environmental benefit of rules that are more stringent than the corresponding federal rules. He described several areas which, in his view, were more stringent than the federal requirements. Specifically he mentioned the definition of leachate, spacing of methane gas probes, and height increase proposals near airports, among others. Mr. Kellogg provided a letter describing his view on these matters and offered to later provide other similar discrepancies that he finds. Mr. Mason asked the DEQ legal staff for an opinion and Sonny Johnson indicated that he and Mr. Kellogg had discussed the matter and that they didn’t completely agree. The DEQ was asked to examine its interpretation of the specific statutory clause regarding stringency and new rules and report back to the Council.

The Council discussed its options for managing the variety and volume of comments it will likely receive on chapter 530. Council Chair Mason stated that they have a few options for how to proceed. November 18th having been set aside for a potential continuance, that date could be used for an informal working session to hear and discuss comments on the rules. Alternatively, the current meeting could be continued until December and in the interim, interested individuals could submit their comments to the DEQ. During this time the DEQ would also address the stringency issues that have been raised. Council member Steve Landers stated that he hoped those individuals with comments would get them in writing to the DEQ well ahead of the next meeting so that issues may be resolved. Mr. Mason directed the DEQ staff to continue to collect input from interested parties and work to resolve issues, redrafting a document for the Council’s consideration at its December meeting. Mr. Mason asked several people for input regarding the appropriate period of time to extend the written comment period. It was agreed that the deadline for submittal of written comments would be extended until November 12, 1999 and the Council elected to continue this agenda item until a later date, specifically electing to meet at 9:00 a.m. on December 16, 1999 in Oklahoma City. It was stressed that the quickest way to access the proposed rules was by using the Internet. The Council discussed potential meeting dates and locations and agreed to set its 2000 meeting dates as follows: February 3rd in Oklahoma City, April 13th in Norman, July 13th in Grove, and October 12th in Woodward. A motion to that effect was offered by David Griesel and seconded by Ken Purdy. There was a roll call vote and the motion passed unanimously.

Agenda Item 10. NEW BUSINESS

There was no new business.

Agenda Item 11: PUBLIC FORUM

No comments were offered.

Agenda Item 12. ADJOURNMENT

Mr. Mason thanked everyone attending the meeting for their support and the meeting adjourned at 3:30 P.M.