Agenda - 03-13-2012 - 8b - Laserfiche WebLink

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p- RachmeM- 3 6 ORANGE COUNTY P.O. BOX 8181 Office of the County 200 S. CAMERON STREET Attorney HILLSBOROUGH, NC 27278 TO: Frank Clifton FROM: John Roberts DATE: March 1, 2012 RE: Potential liability related to Rogers Road area illegal landfill sites This memorandum is in response to your questions about the extent to which the county may be liable in any efforts to clean up the two sites that may have been operated in the past as illegal for - profit landfills. Negligent hiring: The County must ensure that the contractor hired for the project has an exemplary safety record and adequate insurance, especially if we anticipate that the illegal landfills could contain hazardous materials. Even if the contractor were to indemnify the county for its negligence, the county would still be liable for its failure to hire a competent and qualified contractor for the project. Many of the potential problems such as the failure to properly manage waste, or damage to persons, environment or property may be avoided by hiring the proper firm. Failure to properly manage waste from landfill sites: The County must comply with several state and federal regulations while clearing up and transporting the debris from the illegal landfills. The County may be liable for its failure to remediate any spills, discharges or releases of hazardous substances during the clearing activities. Additionally, if hazardous substances are found on the properties, the County would be responsible for proper classification, treatment, storage and disposal of the hazardous waste at a licensed hazardous waste facility and hauled to this facility by a licensed hauler. The County would be liable for inadvertent discharge of such material. Further, the disturbance of the landfill may release toxic gases and chemicals. The County would be liable for the harmful health effects, which could be attributed to the release of these gases if not properly contained. Failure to properly remediate the contaminated properties may cause the County to run afoul of federal and state environmental regulations, including, the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9601 et seq., as amended (CERCLA), the Resource Conversation and Recovery Act, as amended 42. U.S.C. 6901 et seq., the Clean Water Act, 33 U.S.C. 1251 et seq., the Clean Air Act, 42 U.S.C. 7401 et seq., the Toxic Substance Control Act, 15 U.S.C. 2601 et seq., and the Safe Drinking Water Act, 42 U.S.C. 300f through 300j, and all state equivalents of these federal laws. Damage to property: The County may be liable for damage to the property during the process of clearing the illegal landfill or remediation. The damage could be to the house, the septic system, the drain fields, any driveways or equipment. The clean -up efforts could aggravate any existing defects in the property or cause new problems especially when the properties are not fully or properly remediated. For instance, if the illegal landfill was acting as some sort of erosion control device, altering the topography of the property could cause the stormwater to flow in