11-05-02: St. Marys may be in for long fight over landfill

11-05-02: St. Marys may be in for long fight over landfill

By TIMOTHY COX
The Daily Standard

    ST. MARYS - In a sometimes-scathing 35-page court filing, St. Marys city officials argued against dismissal of its lawsuit against Auglaize County.
    The city also filed a separate motion seeking an additional 60 days to amend its original claim. City officials admitted Monday that the dispute over who should pay the costs of mandatory environmental monitoring at the St. Marys Municipal Landfill is not going away any time soon.
    "It appears this is going to be longer than we anticipated," St. Marys Safety-Service Director Mike Weadock said.
    The city sued the county in May after county commissioners stopped paying invoices for ongoing monitoring at the landfill. The costs - $115,000 during the past year - are part of a required 30-year testing period based on Ohio Environmental Protection Agency and federal environmental regulations. The county had paid the costs while the landfill was open and until a 12-year contract with the city expired in December 2000.
    By law, monitoring must be done for at least 30 years after the landfill is closed. The St. Marys landfill stopped accepting waste in 1998 and formal closure procedures are nearly finished.
    County officials have argued in court papers that their responsibility ended with the contract expiration. City attorneys argue that the county made promises in that deal that carry well beyond the life of the document.
    In a recent motion seeking dismissal of the city's claims, the county also alleged the parties never obtained proper certification from the county auditor when the contract was struck. That omission should render the contract void, the county's lawyers charged.
    It is that revelation about auditor certification that prompted the city to seek a 60-day window to gather more evidence and amend its original claim. Officials also want to investigate whether the county continues to collect fees earmarked for the monitoring. Nothing, however, is expected to change the city's legal stance on the issue, city Law Director Kraig Noble said.
    In the latest court filing, the city's attorney, Bruce Ingram of the Columbus firm Vorys, Sater, Seymour & Pease, argues that language in the contract binds the county to paying the monitoring costs.
    That contract was struck as part of Auglaize County's efforts to form a single-county solid waste district in 1988. To do so, the county had to have a facility with at least 10 years of solid waste capacity. The EPA-approved agreement with the city apparently gave the county what it needed and the deal was struck.
    A portion of generation fees from trash originating in the county and dumped at the city's landfill were to be held in a separate account by the county to pay for monitoring fees.
    "In order to induce St. Marys into this commitment, the county agreed to assume complete responsibility for all monitoring ... during both the 10-year period of operation and after closure of the landfill," Ingram wrote.
    Ingram also blasted the county for signing an agreement to meet EPA guidelines only to argue before the court that it has no responsibility in the matter.
    "Either the county's arguments to this court are erroneous or it lied to the EPA," Ingram said.
    As for the legal argument regarding the auditor's certification, the city offered several arguments as to why the state law should not apply in this case. The statute does not apply to contracts between public agencies and even if it did, the expenses of environmental monitoring would be exempt under another law, Ingram argued. The attorney also made a couple of other, more technical arguments against the county's claim.
    City officials noted in an interview with The Daily Standard that the certification should not have been required in 1988 because no money was being spent at that time.
    "There were no costs to certify," Weadock said.
    Though the court filing contains its share of typical legal terms and formal language, Ingram at times resorts to plain-speaking rebukes of the county's arguments.
    "Auglaize County wants to foist its financial obligations onto the citizens of St. Marys and the county is asking this court for help in doing so," Ingram wrote in the memorandum.
    At one point, he refers to the county's "novel arguments" and in another, "the county's fiction."
    In still another section, when arguing against the county's claim about the auditor certification, Ingram used a reference to Greek mythology. "The county is asking this court to construe (the law) so as to enshroud the city of St. Marys in the darkness of Erebus," he wrote.
    Erebus is known as the "embodiment of primordial darkness." In later legend, Erebus is the dark region under the earth that the dead must pass through.
    No timeline is set for when visiting Judge Charles Steele might rule on the city's motion. Steele is presiding over the case in place of Judge Frederick Pepple, who recused himself from the case.

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