Mike Miller, Cherokee Nation spokesperson, confirmed Tuesday that the tribe's landfill, located near Stilwell in Adair County, closed either Friday or Saturday.
"It's closed today," Miller said Tuesday. "We're no longer accepting trash at the landfill."
Miller said the reason for the closure is that the tribe's landfill, which is operated by Norman-based Indian Country Investments LLC (ICI), is full. The tribe's only landfill opened in 1982, and ICI took over operations of the landfill in 2005, agreeing to pay the tribe royalties in exchange for operating the facility.
Leading up to the closure, inquiries were made to the city of Sallisaw from cities and companies seeking to discard trash in Sallisaw, officials said. But until Sallisaw expands its landfill, the city is saying no to Cherokee Nation Landfill customers. See related story in this edition of Your TIMES about the Sallisaw Landfill.
Miller said permits have been issued to build a new cell for trash at the tribe's landfill, but no decision has been made to do that.
"Until they have a cell, the landfill is full."
Under the contract, ICI is responsible for building the new cell, if a new cell was to be built, Miller said.
"They (ICI) agreed in the contract to move forward with any new construction," Miller noted.
As for a rumor that ICI planned to build another cell, but couldn't get financing, Miller referred Your TIMES to ICI. Gary Pitchlynn, president of ICI, did not return phone calls to Your TIMES.
Since 2005, the tribe and ICI have contracted with a number of businesses and cities, including Fayetteville, Ark., to dispose of trash at the tribe's landfill, a move that some say led to the landfill's recent closure.
When asked what the lifespan of the landfill was at the time that ICI took over operations in 2005, Miller said that was not his area of expertise.
A message left for Doug Bane, landfill manager, to answer that question was not returned to Your TIMES.
Despite the landfill's closure, Miller said the tribe does plan to honor its obligations to the city of Fayetteville. "We're honoring that contract."
According to tribal documents, Fayetteville pays the tribe $24.47 per ton for trash disposal. The tribe keeps $2 per ton and ICI gets the remainder. ICI employees are also considered tribal employees and get the benefits that come along with being a tribal employee, but ICI reimburses the tribe for the workers' wages.
He said the tribe is working with the city of Fayetteville and has found an alternate place to dispose of trash - a landfill in Tontitown, Ark.
"It's not coming to Sallisaw," Miller said.
Why the tribe is responsible for the trash when ICI was operating the landfill is another issue. Miller said the contract between Cherokee Nation and Fayetteville was at Fayetteville's request, but he didn't know why.
Anna Knight, acting group leader for the tribe's Commerce Group, submitted the bid for trash service to Fayetteville from the tribe. ICI was not mentioned in that bid. Your TIMES was unable to reach Knight for comment about why the tribe entered into the agreement with Fayetteville, instead of ICI.
ENVIRONMENTAL FINES LEVIED
While the decision to close the landfill stemmed from space issues, ICI is currently facing over a million dollars in fines relating to environmental violations at the landfill.
Miller said the fines against ICI that were levied by the Cherokee Nation Environmental Protection Commission (EPC) last month were about issues related to how the landfill was operated on a day-to-day basis.
"It was closed because it ran out of space," Miller said, adding that the closure and the fines are not related.
"When it's full, it's full," Miller said.
The violations that the EPC handed down to ICI included:
- failing to maintain complete daily cover
- allowing the landfill's leachate pond to overflow
- acceptance of industrial waste in violation of permit
- methane levels at monitoring wells exceeding regulatory limits
- use of an unauthorized, unlined stormwater detention basin
As for the environmental issues, Miller emphasized he wants people to understand accurately that no harm was done to the environment of any neighboring properties of the landfill.
"There is no evidence that any property beyond the landfill was adversely affected. Also, there are groundwater monitoring wells at the landfill that are monitored regularly and they are not showing any problems," Jeannine Hale, administrator of the tribe's environmental programs, said in a prepared statement.
Miller said the fines are in place because the EPC believes in not waiting until a lot of harm is done to the environment before acting.
Miller said the EPC asked ICI for certain things to be done, but those things were not done, resulting in fines.
Miller confirmed Tuesday that ICI is appealing those fines.
Mark Green, an attorney in Muskogee who is an EPC commissioner, also said on Tuesday there will be an administrative law judge appointed to hear ICI's appeal. Green did not know when the appeal would be heard.
Miller said Cherokee Nation has a strong interest in regulating what happens on its land. The EPC, he noted, is appointed by the chief and approved by the council to make environmental decisions.
"We rely on them to protect the tribe and our environment," Miller said. "The fines are there because that's what the EPC agency is there to do."
EPC MEETING
The EPC met on Oct. 2 to discuss the landfill, including the permit, compliance and enforcement issues, according to the agenda. Establishing a deadline for ICI's master site plan - which was part of ICI's contract with the tribe - was also on the agenda.
Green did not know if a vote was cast on that agenda item and said he would have to refer to the meeting minutes, which have not yet been approved.
When asked if ICI ever submitted a master plan, Green said, "I hesitate to get involved in that conversation." He added that a master plan has not been approved.
"We're volunteers who deal with it once a month," Green explained. "It's not what I do every day. I don't have all the details all the time."
ICI CONTRACT
According to the terms of ICI's agreement with the tribe, ICI is solely responsible for bringing the landfill into compliance with and maintaining the landfill in full compliance with various federal, state and tribal laws.
According to the agreement, ICI agreed to provide the tribe with management, operation, environmental engineering, design and construction services at the landfill... "to insure the safe and profitable expansion and operation of the landfill in future years." ICI also agreed to pay the tribe the host fees and other compensation, per the agreement.
According to the agreement, ICI signed a $3 million contract with the tribe to operate the landfill. It paid the tribe $300,000 down and was to have paid the tribe $2.7 million when the tribe's EPC accepted its master plan. That master plan was never accepted.
At the time of the 2005 agreement, ICI agreed to correct and address the following deficiencies at the landfill:
- provide and carry out an acceptable landfill design modification that will provide for disposal capacity expansion during the first two years of operation
- provide an updated storm water pollution prevention plan
- provide a site master plan
- provide an engineer's report on the volume of methane emitted by one of the landfill cells
In exchange, the tribe did agree to assist ICI in the recovery of ICI's initial costs of the acquisition of the operating rights of the landfill, along with the financing of the future expansions and improvements made to the landfill site, as well as any equipment or machinery determined by ICI as necessary to the profitable operation of the landfill upon the issuance of the permit by the EPC, according to the contract.
"Bond indebtedness will be repaid from the earnings of ICI from the operation of the landfill, but shall not have priority over the royalties to the tribe," the contract stated.
Despite the concessions that the tribe made in doing business with ICI, Miller said the relationship between ICI and the tribe was not a partnership.
"We didn't invest any money," he said. "This is an outside company doing business with us."
Miller pointed to the "big picture." He said ICI would assume all costs of operating the landfill and administration and do all the marketing, including getting new customers, and in exchange the tribe would give ICI the opportunity to operate the landfill, with the tribe receiving royalties.
The agreement with ICI would take the tribe's burden of operating costs away. Previously the tribe's government operated the landfill, and the agreement with ICI was an opportunity for the tribe's government to let a for-profit industry run the business and take out the risk of the government losing money, Miller explained.
"Government tends to be very conservative with money. Operating a business isn't low-risk."
By taking the low-risk avenue of contracting with ICI, the tribe would not have to invest money to build a new cell, for instance, Miller said.
He explained that while Cherokee Nation government does a lot of things very well, including health care, scholarships, and services, running a landfill for profit didn't fit into that strategy.
When asked why a small start-up company like ICI was chosen, Miller didn't know the history or the circumstances surrounding the contract.
COUNCILORS WEIGH IN
In the meantime, tribal councilor members are studying the issue. The resources committee of the council is planning a 2 p.m. meeting Oct. 16 to discuss the landfill issues.
Janelle Fullbright, Sequoyah County tribal councilor, and Jodie Fishinghawk, Adair County tribal councilor, both plan to be on hand for that meeting.
Fishinghawk, who is a lifelong Adair County resident, said she is most concerned with the industrial waste that the landfill accepted but was not permitted to take.
She said the landfill was first opened to take household waste from Cherokee, Adair, Sequoyah and Delaware Counties, and questions why the landfill accepted so much waste from other towns and businesses from outside those four counties.
Fullbright is also concerned with the industrial waste that was dumped at the landfill, although testing has indicated that there has been no contamination outside the landfill.
"We've gotta have landfills," Fishinghawk said. "I have a problem with being a dumping ground..."
