Arkansas environmental regulators can now access millions of dollars to help extinguish an underground landfill fire that has burned for six months in Bella Vista, but the state Department of Environmental Quality can't spend the estimated $7.3 million just yet.
The Arkansas Pollution Control and Ecology Commission approved the department's expanded access to the Arkansas Remedial Action Trust Fund at its January meeting Friday. By statute, Ark. Code Ann. § 8-7-508, the department can access only $250,000 without commission approval.
But Chief of Staff Mitch Rouse said Friday that the department can't yet spend the $7.3 million, which is far below the estimated total cost of the fire site cleanup, because cleanup contractor EnSafe isn't authorized to receive more than $1 million from the agency.
The commission's Friday decision is the latest in a string of ramped-up efforts by state officials to extinguish the fire, which was first reported to the department Aug. 2.
Department Director Becky Keogh said she and others were discussing what legislative or regulatory remedies may be needed to prevent such an event from occurring again.
"As we've said there's nothing normal about this situation," Keogh said.
The department can spend the money from the trust fund, but only until $1 million remains in the account, the commission decided Friday. That would be about $7.3 million. The projected cost of cleanup ranges from $21 million to $37 million, the department said last week.
Keogh said she is looking to first prepare the site for cleanup and will approach Gov. Asa Hutchinson's office to proceed beyond that. Last week, the department announced that the estimated cost of site preparation would range from $1 million to $1.3 million.
Hutchinson set aside $990,000 for the project in December.
Workers started digging an exploratory trench Thursday. They plan to create a 15-foot break in the trees and hope to lower costs by building an access road to ease remediation work.
Commissioner Wesley Stites said he was uncomfortable allowing the department to use an unlimited amount of money from the fund, given that the department is already obligated to spend trust fund money on certain projects.
"Also, there's the potential for something else to happen somewhere else in the state," Stites said.
He said he wants the department to be paid back by the responsible parties.
"Somebody did something they weren't supposed to, that is clear," Stites said.
Rouse said the department is required by law to seek reimbursement for the fund's expenditures, but after the meeting he said, "That's a long process."
Commissioner Doug Melton, who lives in Bella Vista, said he was grateful for the department's help.
"The quality of life for those folks living up there is horrible," he said, adding that he's lucky to not live downwind of the fire, where the smell from the underground blaze is foul.
Engineers estimate that the burning debris is between 25 feet and 80 feet underground, and weighs from 115,000 tons to 175,000 tons, Rouse said.
"In terms of what is on fire and how much is on fire, we won't know until we get down there," he said.
Rouse said there did not appear to be another department fund that could be tapped to put toward the cleanup.
The Remedial Action Trust Fund is used to clean up and maintain Superfund sites, which are contaminated sites considered a priority by the U.S. Environmental Protection Agency. Arkansas has 15 such sites and another 11 that the state considers priorities. About $3.2 million was used to address the Exxon Mobil oil spill in Mayflower in 2013.
The department typically has about $500,000 to $1 million in annual obligations from that fund.
The fund is replenished regularly through hazardous-waste generation fees, penalties and investment earnings, according to the department. The department has received less in penalties in recent years, down from $910,066.86 in fiscal 2013 to $452,234.20 in fiscal 2018, according to state revenue data.
When asked about the decline, officials said they did not know why it had occurred but that the department "has focused on expediting enforcement actions to allow for faster return to compliance with a lower penalty impact."
In 2018, hazardous-waste fees collected under Ark. Code Ann. § 8-7-509 were $390,750. Investment earnings totaled $357,174.18.
It was unclear Friday whether the fees, penalties and earnings are used only for the trust fund, or if they are also distributed to other funds or programs.
The department doesn't yet have a final cleanup contract with EnSafe.
Rouse said EnSafe is an "emergency contractor," meaning it is kept on contract in case of emergencies. In this case, the contract would need to be amended in order to perform the estimated $21 million to $37 million work to extinguish the fire and clean up the site.
The amendment would need to be approved by the Arkansas Department of Finance and Administration and reviewed by the Legislature.
The department has not formally solicited bids, but Keogh said the agency has been contacted with proposals from all over the country.
The Bella Vista "stump dump" originated as a place for people to dump brush and similar debris in the early 2000s. Department officials visited the site in 2008, after receiving a complaint. At the time, an inspector instructed a representative from Cooper Redi-Mix not to discard four concrete drums in the dump, as the representative had planned to do.
The department did not again inspect the site, which did not have a permit, until the fire was reported last summer.
Stump dumps are allowed as long as only approved materials are discarded in them. Department officials have suspected that waste other than from wood products was being discarded in the dump, which with the fire has led to high benzene levels in the air.
The Bella Vista Property Owners Association operated the dump from 2003 until covering it with dirt in 2016. The association then sold the land to Brown's Tree Care.
Keogh said Friday that the most recent air quality tests showed no pollutants above healthy limits. Monitors have been placed at a nearby fire stations and a nearby city transfer station, which is also near Cooper Elementary School.
A Section on 01/26/2019