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Commitments and Contingencies | 9 Months Ended
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Sep. 30, 2017
Commitments and Contingencies [Abstract] |
Commitments and Contingencies | 17.COMMITMENTS AND CONTINGENCIES In the normal course of its business and as a result of the extensive governmental regulation of the solid waste and E&P waste industries, the Company is subject to various judicial and administrative proceedings involving Canadian regulatory authorities as well as U.S. federal, state and local agencies. In these proceedings, an agency may seek to impose fines on the Company or to revoke or deny renewal of an authorization held by the Company, including an operating permit. From time to time, the Company may also be subject to actions brought by special interest or other groups, adjacent landowners or residents in connection with the permitting and licensing of landfills, transfer stations, and E&P waste treatment, recovery and disposal operations, or alleging environmental damage or violations of the permits and licenses pursuant to which the Company operates. In addition, the Company is a party to various claims and suits pending for alleged damages to persons and property, alleged violations of certain laws and alleged liabilities arising out of matters occurring during the normal operation of the waste management business. Except as noted in the matters described below, as of September 30, 2017, there is no current proceeding or litigation involving the Company or its property that the Company believes could have a material adverse impact on its business, financial condition, results of operations or cash flows. Lower Duwamish Waterway Superfund Site Allocation Process The Company’s subsidiary, Northwest Container Services, Inc. (“NWCS”), has been named by the U.S. Environmental Protection Agency, Region 10 (the “EPA”) as a potentially responsible party (“PRP”), along with more than 100 others, under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA” or the “Superfund” law) with respect to the Lower Duwamish Waterway Superfund Site (the “LDW Site”). Listed on the National Priorities List in 2001, the LDW Site is a five-mile stretch of the Duwamish River flowing into Elliott Bay in Seattle, Washington. A group of PRPs known as the Lower Duwamish Working Group (“LDWG”) and consisting of the City of Seattle, King County, the Port of Seattle, and Boeing Company conducted a Remedial Investigation/Feasibility Study for the LDW Site. On December 2, 2014, the EPA issued its Record of Decision (the “ROD”) describing the selected clean-up remedy, and therein estimated that clean-up costs (in present value dollars as of November 2014) should total about $342,000. However, it is possible that additional costs could be incurred based upon various factors. The EPA estimates that it will take seven years to implement the clean-up. The ROD also requires ten years of monitoring following the clean-up, and provides that if clean-up goals have not been met by the end of this period, then additional clean-up activities, at additional cost, may be required at that time. Implementation of the clean-up will not begin until after the ongoing Early Action Area (“EAA”) clean-ups have been completed. Typically, costs for monitoring may be in addition to those expended for the clean-up. While three of the EAA clean-ups have been completed to date, some work remains to be done on three other EAAs. Implementation of the clean-up also must await additional baseline sampling throughout the LDW Site and the preparation of a remedial design for performing the clean-up. On April 27, 2016, the LDWG entered into a third amendment of its Administrative Order on Consent with the EPA (the “AOC 3”) in which it agreed to perform the additional baseline sediment sampling and certain technical studies needed to prepare the actual remedial design. On November 9, 2016, the EPA and the Washington State Department of Ecology (“Ecology”) conducted a public stakeholder meeting regarding the LDW Site. During the public stakeholder meeting, the EPA provided an overview of the AOC 3 pre-remedial design work and the progress of the on-going work on the EAA cleanups. At the meeting, both the EPA and Ecology estimated that the pre-design studies being performed pursuant to the AOC 3 would not be completed until the end of 2019. The EPA and Ecology did not revise that estimate at the EPA stakeholder meeting on June 14, 2017. In August 2014, NWCS entered into an Alternative Dispute Resolution Memorandum of Agreement with several dozen other PRPs and a neutral allocator to conduct a confidential and non-binding allocation of certain past response costs allegedly incurred at the LDW Site as well as the anticipated future response costs associated with the clean-up. The allocation process is designed to develop evidence relating to each PRP’s nexus, if any, to the LDW Site (regardless of whether that PRP is participating in the allocation process), and to determine each PRP’s share of the past and future response costs. The goal of the allocation process is to reach agreement on a division of responsibility between and amongst the PRPs so that the PRPs then will be in a position to negotiate a global settlement with the EPA. On August 16, 2016, the EPA sent individual letters to each of the PRPs for the LDW Site, including NWCS, stating that it expects to initiate negotiations with all PRPs in early 2018 relating to a Remedial Design/Remedial Action (“RD/RA”) Consent Decree. An RD/RA Consent Decree provides for the cleanup of the entire site and is often referred to as a “global settlement.” In the letter the EPA explained this schedule, noting that it expected the pre-remedial design work under the AOC 3 to be completed by the beginning of 2018, and also that it understood that several PRPs are participating in a neutral allocation, which the EPA was hopeful would be completed by early 2018. The EPA encouraged the PRPs to complete the allocation on a schedule consistent with the EPA’s intended negotiation schedule, adding that it expects to initiate the RD/RA negotiations on schedule regardless of the status of the allocation. The pre-remedial design work under the AOC 3 is now not expected to conclude until the end of 2019, and in March 2017, the PRPs provided the EPA with notice that the allocation is not scheduled to conclude until mid-2019. In June 2017, attorneys for the EPA informed attorneys for several PRPs that it now expects to begin RD/RA negotiations in the late summer or early fall of 2018. The Company cannot provide assurance that the EPA’s schedule can be met or will be adjusted. NWCS is defending itself vigorously in this confidential allocation process. At this point, the Company is not able to determine the likelihood of the allocation process being completed as intended by the participating PRPs, its specific allocation, or the likelihood of the parties then negotiating a global settlement with the EPA. Thus, NWCS cannot reasonably determine the likelihood of any outcome in this matter, including its potential liability. Under CERCLA, certain Federal, State and Indian Tribe officials are designated as natural resource trustees and have responsibility for ensuring the restoration of injured natural resources. On February 11, 2016, NWCS received a letter (the “Letter”) from the United States Department of Commerce, National Oceanic and Atmospheric Administration (“NOAA”), describing certain investigatory activities conducted by the Elliott Bay Trustee Council (the “Council”). The Council consists of all of the natural resources trustees for the LDW Site as well as two nearby Superfund sites, the Harbor Island site and the Lockheed West site. The members of the Council include the United States, on behalf of the U.S. National Oceanic and Atmospheric Administration and the U.S. Department of the Interior, the Washington State Department of Ecology, and the Suquamish and Muckleshoot Indian Tribes (together, the “Trustees”). The Letter appears to allege that NWCS may be a potentially liable party that allegedly contributed to the release of hazardous substances that have injured natural resources at the LDW Site. Damages to natural resources are in addition to clean-up costs. The Letter, versions of which NWCS believes were sent to all or a group of the PRPs for the LDW Site, also notified its recipients of their opportunity to participate in the Trustees’ development of an Assessment Plan and the performance of a Natural Resources Damages Assessment (“NRDA”) in accordance with the Assessment Plan for both the LDW Site and the east and west waterways of the Harbor Island site. NWCS timely responded with correspondence to the NOAA Office of General Counsel, dated March 9, 2016, in which it declined the invitation at that time. NWCS does not know how other PRPs responded to the Letter, and has not received any further communication from NOAA or the Trustees. The Trustees have not responded to NWCS’ letter and NWCS is not aware of any further action by the Trustees with respect to the Assessment Plan and NRDA. At this point, the Company is not able to determine the likelihood or amount of an assessment of natural resource damages against NWCS in connection with this matter. Some work is being done with respect to natural resource damages (“NRD”) at the LDW Site. On September 22, 2016, a proposed consent decree settlement was announced between the City of Seattle (the “City”) and NOAA and the other natural resource trustees for the LDW Site. The proposed NRD settlement that the City has entered into at the LDW Site, if approved, will generally provide that the City will fund the development of restoration projects by purchasing restoration credits from Bluefield Holdings, a company that develops such projects. At this time, NWCS has not been approached by either the Council or the trustees for the LDW Site regarding participation in any similar NRD settlements. In December 2016, the Lower Duwamish Fishers Study Data Report was released, which was the first step towards developing institutional controls specific to resident fish and shellfish consumption in the area. Los Angeles County, California Landfill Expansion Litigation In October 2004, the Company’s subsidiary, Chiquita Canyon, LLC (“CCL”), filed an application (the “Application”) with the County of Los Angeles (the “County”) Department of Regional Planning (the “Department”) for a conditional use permit (“CUP”) to authorize the continued operation and expansion of the Chiquita Canyon Landfill (the “Landfill”). The Landfill has operated since 1972, and as a regional landfill, accepted approximately three million tons of materials for disposal and beneficial use in 2016. The Application requested expansion of the existing waste footprint on CCL’s contiguous property, an increase in maximum elevation, creation of a new entrance and new support facilities, construction of a facility for the County or another third-party operator to host household hazardous waste collection events, designation of an area for mixed organics/composting, and other modifications. Over the ensuing 12 and-a-half years, the County conducted a lengthy Permitting and Environmental Impact Review (the “Review”) of the Application, which Review was funded by the Company at substantial expense as required by the County. The County released a draft Environmental Impact Report in 2014, and subsequently revised and recirculated several chapters of that report in 2016. Upon the recommendation of County staff, and over CCL’s objections, the County’s Regional Planning Commission (the “Commission”) approved CCL’s Application, but with operating conditions, fees and exactions that substantially reduce the historical landfill operations and represent a dramatic increase in per-ton taxes and other fees, and include currently unquantifiable future costs that CCL would be forced to expend at the County’s direction and discretion. CCL appealed the Commission’s decision to the County Board of Supervisors. Four separate appeals were also filed by opponents of the Landfill expansion project. The Board of Supervisors conducted a public hearing on all of the appeals on June 27, 2017. At a subsequent hearing, on July 25, 2017, the Board of Supervisors approved the CUP. The revised conditions approved by the Board of Supervisors do provide some modest relief on the original taxes and fees and the limits on material s that may be received at the Landfill on a daily, monthly, and annual basis. However, the CUP, as revised, also includes many of the Commission’s objectionable conditions and imposes additional requirements beyond those that were required by the Commission, and still includes numerous operational restrictions and taxes and fees that will likely make the continued operation of the Landfill less profitable for the Company. On October 20, 2017, CCL filed in the Superior Court of Los Angeles County a verified petition for writ of mandate and complaint against the County and the County Board of Supervisors captioned Chiquita Canyon, LLC vs. County of Los Angeles; Los Angeles County Board of Supervisors challenging many unlaw ful terms of the CUP. CCL’s petition and complaint seeks (a) an injunction against certain of the CUP’s operational restrictions, taxes and fees, (b) a declaration that the challenged conditions are unconstitutional and in violation of state and federal statutes, (c) reimbursement for any such illegal fees paid under protest, (d) damages, and (e) attorney fees. The petition and complaint details the exemplary 40-plus year operating history of the Landfill, and the many unreasonable and unlawful conditions being forced upon CCL pursuant to the CUP, which harm both CCL and its many customers and others who depend on economical waste management options for Southern California. The petition and complaint estimates that the CUP’s new fees and other new taxes on CCL will total more than $250,000 over the 30-year lifetime of the CUP. CCL’s petition and complaint explains that the CUP’s conditions violate several state statutes, and state and federal constitutional provisions. The statutory challenges include (a) violations of California’s Mitigation Fee Act, which requires a reasonable relationship between fees imposed by the County and the Landfill’s impacts, and (b) California’s Integrated Waste Management Act, which establishes a comprehensive program for solid waste management and requires certain waste diversion and recycling goals. The constitutional challenges include:
| · |  | violations of Article XIII of the California Constitution, which prohibits a local government from imposing a tax without appropriate voter approval;
| · |  | violations of state and federal constitutional prohibitions on discrimination against waste based on its place of origin; and
| · |  | violations of substantive due process rights guaranteed by the state and federal constitutions.
One condition of the CUP requires CCL to support the County in its legislative efforts related to amendment of certain waste laws and regulations. This condition is challenged as a clear affront to the free speech protections of the state and federal constitutions. Another onerous condition requires CCL to establish a public park on its land upon closure of the Landfill, and dedicate this land to the County upon request. This condition, among others, is challenged as a taking of private property for public use without just compensation. The petition and complaint also alleges that the County’s actions in enacting these illegal conditions were ultra vires and an abuse of its exercise of police power. The federal constitutional claims provide a basis for violations of 42 U.S.C. Section 1983, which, if successful, will entitle CCL to damages and attorneys’ fees. The County is required to answer the petition and complaint or move to dismiss. CCL will vigorously prosecute the lawsuit and plans to seek discovery from the County regarding what evidence, if any, supports the objectionable conditions in the CUP. A separate lawsuit involving CCL and the Landfill was recently filed by activists alleging that the Review underlying the CUP was inadequate under state law. CCL was named as real party in interest in a petition for writ of mandate filed on August 24, 2017 in the Superior Court of California, County of Los Angeles, against the County of Los Angeles by Val Verde Civic Association, Citizens for Chiquita Canyon Landfill Compliance, and the Santa Clarita Organization for Planning the Environment. The lawsuit seeks to overturn the County’s approval of the CUP for the expansion of the Landfill and the certification of the final Environmental Impact Report, arguing that the report violates the California Environmental Quality Act. Pursuant to Condition No. 6 of the CUP, which requires CCL to defend, indemnify, and hold harmless the County, its agents, officers, and employees from any claim or proceeding against the County brought by any third party to attack, set aside, void, or annul the CUP approval, the County by letter dated September 12, 2017 tendered the defense of the lawsuit to CCL. CCL intends to vigorously defend the lawsuit. At this point, the Company is not able to determine the likelihood of any outcome in this matter. ﻿

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