Newton County — East Georgia Settlement and Newton County — Green Hill P3, LLLPLandfill Lease and Operating Agreement
Background
In April 2014, the Newton County Board of Commissioners and representatives of East Georgia Land and Development jointly retained the services of an attorney and environmental engineer. Both have substantial experience with all aspects of landfills, including contractual agreements between local governments and private landfill operators for municipal solid waste landfill development and operation. Such public-private partnerships can help local governments effectively meet the environmental, regulatory and financial obligations of municipal solid waste landfill design and operation. In addition, these arrangements can assure necessary waste disposal capacity and other benefits to local governments and their citizens.
Similar public-private partnership contractual arrangements in Georgia include Wayne County (through the Wayne County Solid Waste Management Authority) and Republic Services; Meriwether County and Greenbow/Waste Management; Lowndes County (through the Deep South Solid Waste Management Authority) and Advanced Disposal Services; and several others.
The purpose and objectives of those efforts by Newton County and East Georgia were to discuss, negotiate and develop a reasonable and workable framework to solve two significant problems. First, the County currently faces continuing litigation with East Georgia over its land adjoining the Newton County Landfill and its plan to permit and develop a competing private landfill. Second, the substantial financial and environmental problems created for the County by the current Newton County Landfill and associated operational and economic burdens. Additional details concerning these two main problems (and several associated issues) are summarized below:
Environmental
• Landfill odor and litter problems, and associated negative impacts to nearby community residents
• Negative impacts (leachate, litter, etc.) to the Yellow River due to unlined disposal cells
• Management and operational problems and related regulatory compliance difficulties
• Corrective action requirements for waste removal and relocation to lined cells
• Physical separation of landfill operation from Ellis Property, which was acquired by County for soil borrow needed for landfill construction and operation
• Required installation of landfill gas collection and control system
• County financial losses from Landfill operation requiring annual general fund allocation of $750,000 per year – estimated at $7.5 Million over past five years. Increasing costs and tax burden will be realized by County, as compliance and corrective action obligations require completion
• Corrective action to remove and relocate waste to lined cells and liner construction costs ($350,000+ per acre) will total approximately $6 Million
• Current County financial obligations for landfill closure and post-closure activities are estimated at more than $15 Million, including accrued, future and post-closure costs
• Ongoing Landfill operational costs continue to drain County budget, which prevents funding of needed community projects
East Georgia Litigation
• Adverse judgment by Georgia Supreme Court allows East Georgia to proceed with development of competing private landfill on adjoining land
• Continuing legal expenses of litigation adversely impact County budget
• Potential for substantial monetary judgment against County would accelerate financial losses.
• Increased likelihood of a competing private landfill being developed adjacent to County Landfill and its potential negative economic and community impacts
• East Georgia Land separates County Landfill from the soil borrow area on the Ellis Tract
Community
• Existing and future economic costs of landfill will penalize taxpayers and further drain County budget
• Nearby residents are experiencing issues with litter, odors and other environmental and quality of
life problems due to current landfill
• Competing private Landfill could be constructed in closer proximity to residents
• Existing problems with truck traffic on Lower River Road. Residents could experience increased truck traffic to move soil borrow material for cell construction and waste cover from Ellis Tract to Landfill, if East Georgia Land is not obtained
The solutions to these problems are set out in proposed contractual agreements. These agreements include a Settlement Agreement and Mutual Release (finally resolving the East Georgia litigation) and a Landfill Lease and Operating Agreement between Newton County and Green Hill P3, LLLP. Finally, a Lease and Purchase Agreement allows the county to temporarily lease land from East Georgia Land until it can be acquired by the Newton County Solid Waste Management Authority. Purchase of the East Georgia Land will be funded through a long term Purchase Money Promissory Note by the Solid Waste Authority payment of which will be funded through the lease payments received quarterly from the Operator equal to $1.00 per ton of waste deposited in the Landfill.
Solid waste management authorities were created by the Georgia Solid Waste Management Act to provide local governments the flexibility and legal authority for solid waste management obligations and facilities (including the ability to enter into long-term debt obligations, necessary in this case to settle the litigation). A Solid Waste Authority may consist of some or all of the current County Commissioners, or a combination of elected Commissioners and citizens. In this case, the County will transfer the contracts/agreements and ownership of the landfill to the Solid Waste Authority within several months of the anticipated April Commencement Date. (Lease and Operating Agreement, Para.
5 and Exhibit “K” (Intergovernmental Agreement)) The Solid Waste Authority will oversee the Operator and landfill operation according to the Lease and Operating Agreement, and will have the same supervisory and enforcement rights as the County Board of Commissioners would have under that Agreement.
The proposed solutions to be implemented through these binding contractual agreements are summarized as follows:
Environmental
• Lease and operation of County Landfill by experienced private Operator, controlled by Newton County and Newton County Solid Waste Authority through contractual terms and requirements in Landfill Lease and Operating Agreement (Lease and Operating Agreement, Para. 7 “Operation of Landfill and Ancillary Facilities”)
• Substantial private investment to conduct all compliance and corrective action activities required at
Landfill (Lease and Operating Agreement, Para. 3(b), and (c), 8(c), 11(h))
• Private investment by Operator to bring Landfill into compliance and maintain it within environmental regulations (Lease and Operating Agreement)
• Control and prevention of odor and litter problems by Operator and upgrade of Landfill to full compliance with regulations, and additional requirements in Lease and Operating Agreement (Lease and Operating Agreement, Para. 7(f) “compliance with law”, (b) “litter control”, (q) “odor control”)
• Private investment to improve recycling efforts (Lease and Operating Agreement, Para. 7(e) (recycling facility))
• Use of additional East Georgia Land – to be acquired by County/Newton County Solid Waste Authority – to improve future Landfill operations and create and maintain more substantial buffers from community residents (Lease and Operating Agreement, “Leased Property” as shown in Exhibit “D” (copy attached), Para. 7(b) and (c) – enhanced buffer distances)
• Geographic limitation on sources of waste and other uses of Leased Property to uses associated with Landfill Operation (Lease and Operating Agreements, Para. 7(c) and definition of “Permitted Uses”, Para. (d))
• County assumption of equipment leases and opportunity to purchase other landfill equipment
(Lease and Operating Agreement, Para. 6)
• Additional protections to Yellow River through improved litter control and buffer maintenance,
lined cell construction with leachate control, and corrective action for current groundwater concerns
• Installation of Landfill gas collection and control system to prevent odors and potential for methane migration, and eliminate other Landfill gas constituents (Lease and Operating Agreement, Para.
8(a))
• Direct access to Ellis Tract to obtain soil borrow for proper daily and required monthly waste cover purposes for better odor and litter control (Lease and Purchase Agreement to acquire title and control to East Georgia property, referred to in Lease and Operating Agreement as “Tract One Purchase Agreement”)
Economic
• Landfill is brought into compliance with all federal and state regulations, which will be funded by
Operator (Lease and Operating Agreement)
• Operator assumes financial burden for required corrective action activities to remove and relocate waste to lined cell areas (Lease and Operating Agreement)
• Operator bears all costs of construction and operating lined waste cells (Lease and Operating
Agreement)
• County budget is relieved of annual Landfill costs of $750,000 to $1 Million, which is expected to increase considerably in following years.
• Closure and post-closure care “Financial Assurance Trust Fund” is established through Operator waste disposal. The operator fund will eliminate the current County closure and post-closure care obligations. This will be funded by Operator based on an amount per ton paid into Trust Fund (Lease and Operating Agreement, Para. 9)
• Installation of Landfill gas collection and control system jointly by Operator and County. Initial funding by County for design and construction and all other costs of future operation and maintenance will be funded by Operator (Lease and Operating Agreement, Para. 8(a))
• Substantial savings to County of approximately $500,000 per year for first three years in disposal costs for County residential waste (Lease and Operating Agreement, Para. 10(c)). These savings will fund Landfill gas system installation, for which reimbursement also is available to County from State Solid Waste Trust Fund
• Long-term assurance of waste disposal capacity for County and municipality residential and commercial solid waste. County and municipality future waste disposal costs to be controlled through terms of Lease and Operating Agreement (Lease and Operating Agreement, Para. 10(a) and
10(c)(v))
• Retention of County landfill employees with experienced Landfill Manager appointed by Operator
(Lease and Operating Agreement, Para. 7(h))
• Operator to contribute $125,000 at beginning of agreement for $250,000 fund to support short-term projects for neighborhoods and residents nearest the Landfill facility (Lease and Operating Agreement, Para. 4(d))
• Operator pays County a Community Project Fee of $.10 for every ton of waste deposited in the Landfill. This amounts to approximately $30,000 by beginning of Year 5 for community projects (Lease and Operating Agreement, Para. 4(d))
• County will receive a $1.00 per ton Host Fee for all waste deposited in the Landfill after initial volume. Host Fees paid to County will amount to nearly $300,000 per year after satisfaction by Operator of Year 4 waste volume guarantee (Lease and Operating Agreement, Paras. 4(b) and 7(d) (ii))
• Newton County Solid Waste Management Authority receives payment of $.25 for every ton of
waste disposed in the Landfill after initial volume, which will amount to approximately $70,000 annually after Year 4. The money provides funding for Solid Waste Authority
• County through Newton County Solid Waste Authority will retain ownership of all land, the Landfill, and the Landfill Permit, subject to the terms and contractual rights and obligations of Operator in the Lease and Operating Agreement
• Long-term lease and operating agreement enables the large private investment necessary to remove
County economic burdens of Landfill and acquisition of East Georgia Land through Operator lease payments (Lease and Operating Agreement, Paras. 12, 4(a))
• Public-private partnership through Landfill Lease and Operating Agreement between Newton
County Solid Waste Authority and Green Hill P3 brings to the project an Operator with necessary experience and financial abilities to carry out the terms and objectives of the Lease and Operating
Agreement
• Public-private partnership through Lease and Operating Agreement with Green Hill P3 brings the only qualified Operator able to accomplish the County-East Georgia litigation settlement and acquisition of the East Georgia Land. Also, the only Operator with access rights and land to construct new Landfill entrance and facilities off of Covington Bypass Road
East Georgia Litigation
• County accomplishes final settlement of East Georgia litigation, thereby avoiding additional litigation expenses and potential for substantial monetary judgment against County (Settlement Agreement and Mutual Release)
• Agreed settlement amount to resolve County-East Georgia litigation and acquire East Georgia Land, funded entirely by lease payments to Newton County and Newton County Solid Waste Authority by Operator under terms of Lease and Operating Agreement (Settlement Agreement and Mutual Release, Para. 3-5, and Lease and Operating Agreement, Para. 4(a))
• County/Solid Waste Authority acquisition of East Georgia Land pursuant to “Lease and Purchase
Agreement” prevents possibility of competing private landfill on adjoining land
• Southern portion of acquired East Georgia Land between Landfill Operation and Ellis Tract becomes available for direct access from Landfill Operation to soil borrow area without use of Lower River Road. Also, provides space for addition of beneficial ancillary facilities such as a recycling facility, Landfill gas power generation facility, or similar facility benefiting from proximity to Landfill. Additional land also creates enhanced buffer from area residential community
Community
• Reduction or elimination of adverse Landfill impacts from litter, odors and traffic/safety concerns
• Long term financial resources for community projects in neighborhoods near the Landfill facility and throughout the County
• Eliminates possibility of another, privately operated Landfill in the County
• Removes tax burden of Landfill and its continuing operation from Newton County citizens
• Provides County with necessary infrastructure for present and future industries and businesses through a modern, compliant solid waste disposal facility with enough future disposal
• Provides a new Landfill entrance from Covington Bypass Road without substantially increasing traffic volumes or congestion from additional waste transport vehicles. Traffic Study found truck
traffic to Landfill will increase on access roads and highways by no more than 5 percent, and concludes those roads and highways have adequate current capacity for anticipated additional truck traffic
• The Newton County Solid Waste Management Authority will be responsible for day-to-day oversight of the Landfill and the receipt of the Operator lease payments which enable purchase of the East Georgia Land and settlement of the litigation
