Ratepayers shouldn’t foot bill, DA says

By Tony Cook (contact)

Monday, Jan. 21, 2008 | 2 a.m.

As Clark County and garbage company Republic Services near an agreement with federal authorities on how to close the old Sunrise Landfill, a big question remains unanswered: Who will pay for the work?

Now a couple of long-awaited district attorney opinions suggest that if commissioners have the will, the answer is: Republic.

The agreement with federal authorities — called a consent decree — is being written.

It’s been more than eight years in the making, and federal authorities are eager to get signatures on the agreement as soon as possible. The feds don’t care who pays for the work, just that it gets done.

As a result, the county and Republic are locked in a tense game of posturing, with both sides staking out negotiating positions.

First, some back story.

Republic asked the county in April to add a 2.2 percent “environmental surcharge” to Clark County residents’ garbage bills to help pay for the remaining work on Sunrise. For most residents, that amounts to an additional 81 cents on their quarterly $36.60 garbage bill, but many vehemently oppose any increase because Republic agreed to do the work under a 1999 agreement with the county. As part of the deal, the county extended Republic’s lucrative garbage collection contract by 15 years to 2035.

Most commissioners, however, did not immediately see the issue in such black and white terms. That’s because the 1999 agreement estimated that the work would cost $36 million. If it costs more — and some now think the final price tag could be double that — the agreement said Republic could ask commissioners for a rate increase.

A decision on such a request, the agreement said, would be solely up to commissioners — phrasing that some commissioners worried made the question of who should pay for work beyond $36 million ambiguous.

The recently released district attorney opinions shed more light on the issue.

“It is the opinion of this office that the 1999 agreement is in no way ambiguous,” Deputy District Attorney Elizabeth Vibert wrote.

It is “quite clear that the language allowing Republic to request the environmental surcharge in no way acts as a limitation on Republic’s obligation to take all necessary actions to comply with the orders and to fully indemnify the county for actions incident to such compliance.”

The orders that Vibert refers to are those issued to the county and Republic by the U.S. Environmental Protection Agency in 1999, after a 1998 rainstorm washed away part of the closed dump’s cap and sent trash into the Las Vegas Wash.

Since then, Republic and the EPA have been negotiating over exactly what needs to be done to properly close the dump. Costs are now nearing the original $36 million estimate, with tens of millions of dollars of work remaining.

Vibert wrote that if Republic fails to do the work, the 1999 agreement allows the county to do it and seek reimbursement from Republic.

But at least one commissioner — Chip Maxfield — insists there still is ambiguity. He requested another opinion from the district attorney’s office.

“What could happen if Republic does not sign the anticipated Sunrise Landfill consent decree currently being negotiated by Republic, Clark County and the Environmental Protection Agency as a result of the failure by the county to approve Republic’s requested environmental surcharge?” Maxfield said.

Vibert responded that because the county and Republic were named in the EPA’s orders, the agency could seek civil penalties of $25,000 a day. However, the county’s agreement with Republic would require the company to defend and indemnify the county.

Maxfield also asked: “Is there a chance the county could fail in the event legal action is brought against it?”

Vibert said it’s possible that if the county had to take Republic to court to enforce the 1999 agreement, Republic could argue that the $36 million estimate limits its obligation.

Overall, the district attorney opinions suggest the county has strong legal grounds if it wants to reject Republic’s request and insist the company pay for the remaining work on the landfill.

That means commissioners may have to decide whether to enforce the 1999 agreement and risk a legal fight with Republic or avoid the conflict and risk backlash from ratepayers.

Republic Services Area President Bob Coyle said he has no opinion about the district attorney’s analysis. Asked whether Republic would sign the consent decree if the county turned down the company’s surcharge request, Coyle said, “I don’t know.”

But in a letter Republic sent to the county in November, Coyle suggested it might not be willing to sign the consent decree without a funding mechanism in place. Some county officials saw that as an attempt to pressure the county.

Maxfield, meanwhile, is talking to Las Vegas and North Las Vegas to see whether they would be willing to contribute financially to the Sunrise work, given that some of the trash came from their jurisdictions. So far, no agreements have been reached, Maxfield said.