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THE CITY REBORN FROM THE ASHES OF AMERICA'S MOST DISASTROUS FOREST FIRE
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DNR Orders Litter Pickup Begin At Mar-Oco Landfill

Issue Date: April 24, 2013

As a result of a petition signed by 39 neighbors of Mar-Oco in June of 2011, the Wisconsin Department of Natural Resources (DNR) is calling for several specific actions to control windblown debris from the facility, and has promised more stringent inspections over the next two years to be sure the plans, including adequate application of daily cover, are carried out.

The 18-acre landfill, located on Shaffer Road seven miles west of Crivitz, is jointly owned by Marinette and Oconto counties and Marinette County Land Information Administrator John LeFebvre manages it on their behalf.

In a letter dated Monday, April 22, James A. Zellmer, Waste and Material Management Program Supervisor for the DNR’s Northeast Region, informed LeFebvre that the department intends to implement actions suggested by Administrative Law Judge Jeffrey D. Boldt in response to a Petition for Enforcement action filed nearly two years ago, on June 11, 2011, by Charles and Colleen De Smidt and 37 others who either live nearby or were customers of the golf course and supper club.

Testimony on the petition was heard by Boldt on Nov. 14 and 15 of 2012, and his formal Findings of Fact and Conclusions of Law and Order document was issued on Tuesday, March 5.

To insure Mar-Oco’s ongoing compliance with code and permit requirements, the DNR intends to increase its inspection frequency at the landfill up to a quarterly basis for a period of no less than two years, Zellmer’s letter stated. That also is in accord with Judge Boldt’s recommendations.

We want to provide the Mar-Oco Landfill with an opportunity to voluntarily address this issue, Zellmer wrote to LeFebvre. Please provide the Department with a written response no later than May 22, 2013, with a proposed plan to assure that windblown debris is properly controlled and collected at the Mar-Oco Landfill.

This plan should include, at a minimum, additional fencing to confine windblown material within the active disposal area and additional personnel, as necessary, to collect windblown material deposited outside of the active disposal area and properly dispose of it in the active area at the conclusion of each day of operation, Zellmer stated.

The Contested Case petition hearing was one of two actions that had been pending against the landfill. The other is a civil suit brought by the De Smidts in December of 2010 on behalf of themselves and their businesses, De Smidt’s Golf Course and Country Club, Inc., and their Fairway Estates residential subdivision, individually and jointly seeking injunctive relief and a total of $640,000 in damages for what they alleged were losses caused by improper operation of the landfill.

In response to questions at a meeting of the Marinette County Unit of Wisconsin Towns Association Thursday, April 18, LeFebvre explained that the first of the two landfill actions, the contested case petition, went to a DNR hearing in mid-November and resulted in the state administrative decision that the landfill must do a better job of controlling litter, whether it is by using more cover, providing more fencing, or hiring additional staff to pick up wind-blown litter.

The civil suit also is divided into two parts, LeFebvre explained.

He said the first part of that suit is an allegation of taking, in which the complainants allege they have been deprived of full use and enjoyment of their property. That portion falls under Federal law as a Constitutional issue, and has been moved to Federal Court. LeFebvre predicted resolution of that knotty legal issue may take a considerable amount of time, possibly several years.

Second part is an allegation that the landfill has created a nuisance, which would be a violation of local ordinances and will be handled through the local court system, most likely on a shorter timetable.

LeFebvre explained that the taking allegation could be compared to a zoning law so dire that owners would have no reasonable use of the property, but in this case the De Smidts allege that existence and operation of the landfill itself deprives them of use and enjoyment of their property, an issue which may have no precedents in the courts.

Notices of claim in the civil suit were filed Dec. 29, 2010, with both Marinette and Oconto counties by Atty. Herbert C. Liebmann IV of the firm Liebmann, Conway, Olejniczak & Jerry, S.C. of Green Bay, on behalf of the De Smidts.

The two counties, as owners of the landfill, are represented in both actions by attorneys for Wisconsin Counties Mutual Insurance.

In the civil suit, the De Smidts allege injury through an unconstitutional taking, as a result of odors and litter emanating from the landfill. They say periodically through the last few years (prior to the filing in 2010) they noticed significant odors and fumes on their golf course and Fairways Estates property and that the odors typically were alleviated shortly after they made calls to LeFebvre.

However, they said, during the summer of 2010 the noxious and offensive odors were more frequent, sometimes daily, and were detected throughout the entire subdivision as well as from inside the De Smidt home, which is located there. The De Smidts stated they were attempting to sell both their home and the undeveloped parcels in their subdivision, and claimed the odors and blowing and exposed trash prevented that.

In mid-July of 2010 the De Smidts hosted an open house with more than 50 potential contractors, builders, construction industry and members of the public interested in purchasing lots or building homes in Fairways Estates.

Upon smelling the noxious odors and witnessing trash blowing about, the potential buyers and industry representatives ceased negotiations and have not expressed any further interest in purchasing and/or developing the lots whatsoever, the suit states. Some individuals even expressly indicated they had been interested until they smelled the odor and saw the exposed trash, it went on.

Intermittent reports by LeFebvre to the Mar-Oco governing committee at the time indicated that part of the odor problems may have resulted from recirculating leachate through the debris, which results in better compaction and less cost for leachate disposal but perhaps more odor. Eventually that practice was halted, in an effort to stop the odor problems, and this apparently did help eliminate some of the complaints.

The suit alleges the blowing trash problems resulted from failure to place the required six inches of cover over the Mar-Oco site at the end of each day of operation.

The De Smidts alleged they had contacted Zellmer, who advised them that the Mar-Oco Landfill had not been operating according to the state rules and regulations for quite some time and had been the subject of previous enforcement actions by the state.

Letters had been sent to both county boards in August of 2010 informing them of the landfill issues and requesting a resolution, but the suit stated the problems had not been resolved and the landfill operators still failed to place the required daily cover and otherwise continued to operate in a manner that failed to alleviate, or at least minimize, the odors emanating from it.

Attempts to negotiate a settlement of the suit after it was filed apparently fell through and now the matter is proceeding to court. Unconfirmed reports are that proposals for the counties to buy the De Smidt properties were among settlements considered, but the parties were unable to agree on a price.

For the Contested Case hearing before Judge Boldt on Nov. 14 and 15 of 2012, the DNR was represented by Atty. Cheryl Widder Heilmann and Atty. Michael G. Szabo of Madison. The De Smidts and other petitioners were represented by Atty. Jodi L. Arndt of firm Liebmann, Conway, Olejniczak & Jerry, S.C. of Green Bay, and Mar-Oco was represented by Atty. Andrew P. Smith and Atty. Phillips Borowski, S.C.

At the hearing the petitioners withdrew their allegations relating to operation of the gas extraction system and in closing arguments they did not allege a violation of specific regulations regarding dust or odor, and did not allege that the landfill failed to take effective means to control birds and therefore those alleged violations were dismissed.

That left allegations that daily cover and intermediate cover were not handled in accord with Mar-Oco’s Plan of Operation, nor was control of windblown debris. These were found to be valid complaints.

The plan of operations requires that six inches of cover material must be applied at the end of each working day. Wastes are to be spread and compacted immediately after unloading to reduce blowing litter and keep the unloading area clear for additional loads.

Daily and intermediate cover is to be obtained from excavation for future fill areas or from stockpiles. Once intermediate grades are achieved the area is to be covered with a foot of the proper soil and then seeded.

The plan states one of the most important aspects of periodic landfill maintenance is litter control. Blowing litter can be minimized by: maintaining a small working face, covering portions of the cell as they are constructed, and taking advantage of prevailing wind direction and orienting daily landfill operations accordingly. Temporary fences and portable wind screens can be positioned around the working face to intercept blowing paper and plastic and personnel should clean up litter on an as needed basis.

The Plan of Operation further states that litter is to be collected from the perimeter of the site, along with the entrance roads, fences and within the landfill itself on an as needed basis. The active working face should be kept as small as possible. Lighter waste materials should be covered by heavier refuse as soon as possible to minimize blowing problems.

The Findings of Fact recognizes that periodically, prior to 2010, the petitioners noted odors and fumes originating from the landfill, and on several occasions De Smidt complained to LeFebvre, and those calls typically resulted in the smell being alleviated shortly thereafter.

The document goes on to say that a DNR compliance monitoring form dated March 20, 2009 noted a violation with respect to the landfill’s efforts to collect windblown debris and mentioned a significant amount of windblown litter beyond the lined area of the landfill.

From July 19 to Oct. 10, 2012, the DNR received approximately 12 complaints about the landfill related to odors and lack of appropriate cover. Testimony from Zellmer at the hearing was that partly in response to those complaints, the DNR conducted compliance inspections in May, September and November of 2010.

The DNR received one complaint about the landfill in 2011 and one in 2012.

Findings of Fact state the DNR found the landfill was not in compliance with litter collection and intermediate cover provisions on May 6, 2010. This was confirmed with photographic documentation by Zellmer and a notation, It doesn’t appear that the site operator is able to keep up with windblown litter collection.

The landfill was in compliance on Sept. 7, 2010, but out of compliance again on Nov. 4, when a reminder was issued that windblown litter needs to be collected on a daily basis.

The landfill again was in compliance during inspections in May and November of 2011, out of compliance in May of 2012 (partly due to problems with the compactor). The report noted that problems do happen, but there should be a better backup plan in place. Windblown debris was documented outside of the landfill limits, including on the De Smidt property.

According to the report, problems with windblown debris, particularly plastic bags, are common at all landfills during windy periods and after the spring snow melt, However, other landfills have done a far better job than Mar-Oco in managing windblown debris, including hiring part time personnel to collect it on a daily basis, installing more redundant fencing, and having part time employees solely dedicated to litter collection. The report said landfill operator, Mr. Dal Santo, has numerous other responsibilities that make it difficult for him to put in the time required for litter control.

The petitioners have established by a clear preponderance of the credible evidence that the landfill has repeatedly disregarded its permit requirement to collect windblown debris on a daily or even on an ‘as needed’ basis...The landfill has fallen far short of this obligation, Boldt found.

A consultant for the petitioners concluded that photographs and inspection forms indicate areas of exposed waste were left uncovered for extended periods of time, and Boldt agreed. The exposed waste directly results in nuisance odors and the presence of windblown material which impacts the quality of life in the surrounding community, he wrote. The pattern of poor operating practices followed by WDNR Inspection Reports and subsequent improvements in site conditions suggests that if the WDNR was not regularly conducting site evaluations, there would be no improvement in site operations.

The Finding continues, The report filed by the Petitioners’ experts accurately identified a disturbing pattern of the landfill doing the minimum, resulting in numerous citations by the DNR, then remedial action being taken by the landfill to finally bring it into compliance...There has been a long history of non-compliance by the landfill, dating back to 1988...

Boldt wrote that interest in De Smidt’s Fairway Estates subdivision was seriously harmed due to the timing of their open house with respect to conditions at the landfill. Heat and humidity, as well as the prevailing winds, led to an offensive odor and blowing trash permeating the open house.

Boldt’s document goes on to state that landfills are by their very nature dirty, smelly neighbors. However, the petitioners have a right to expect that the landfill will follow all relevant Wisconsin Statutes...without repeated violations and without being repeatedly ordered to comply by the DNR. The landfill has failed to do so as it relates to both addressing problems with windblown debris and maintaining daily cover over disturbed areas.

Both the landfill manager, Mr. LeFebvre, and the on-site operator, Mr. Dal Santo, appeared to be highly motivated and extremely competent county employees. However, their good-faith successful efforts to deliver low cost services to the two counties appear to have led to some short-cuts and patterns which have contributed to the repeated violations. Mr. LeFebvre’s own testimony indicated a concerning pattern of ignoring permit and code requirements that he considered unreasonable.

Boldt concluded that efforts to comply have not been enough, and the DNR must consider new permit requirements including redundant fencing, additional screening and/or hiring part time personnel to collect windblown waste every day as the code requires. It’s time for the landfill and the DNR to work together to develop an effective pro-active strategy of containing windblown debris and resolving the ongoing problems, Boldt wrote.

The judge found that other violations established by the petitioners appear to have improved since 2010. He expressed hope the DNR will conduct regular and aggressive inspections over the next two years to ensure that these problems are now in the past, and that in future the landfill will better plan for equipment maintenance and outages. Because of some glitches in the law, his findings were offered as suggestions rather than commands to the department, but Zellmer, in his April 22 letter to LeFebvre, said the DNR intends to implement the suggested actions.

Neighbors said things have gotten better in the area east of the landfill since the fall of 2012 when the old cell was closed and a new one put into operation.


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