Park City contaminated soils facility: Who would be held responsible if it fails?
City Hall-retained law firm outlines potential municipal liabilities if repository built
A City Hall-retained law firm has outlined potential municipal liabilities should officials develop a controversial facility to store soils containing contaminants dating to Park City’s silver-mining era, a list that includes the prospects of a failure of the facility.
The potential liabilities were included in a three-page document classified as a regulatory and legal fact sheet. The document was made public last week in anticipation of a Park City Council meeting. The potential liability section is especially intriguing amid community concern about the safety of a facility, known as a repository.
The national law firm Kaplan Kirsch & Rockwell LLP drafted the document at the request of City Hall. The municipal government made the request on May 28, as the controversy continued regarding the project. City Hall has previously tapped the firm for assistance with environmental issues.
Some of the critics of the repository concept have indicated they are concerned about the safety of storing contaminated soils at the proposed location, which is along the S.R. 248 entryway. They worry about the impact on human health and the environment. City Hall argues there will be a variety of safety features, including a lining that would be designed to guard against the materials leaching from the repository into the surrounding water table.
In a key point of the potential liability section of the document, the firm addresses that sort of scenario. It notes an important federal environmental law, commonly called CERCLA, in the explanation.
“Theoretically, if the Soils Management Facility failed AND constituents of the mining contaminated soils disposed of at the Facility that are defined as ‘hazardous substances’ under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), such as lead or arsenic, are released into the environment, the City could be liable for the costs of cleanup,” the Kaplan Kirsch & Rockwell LLP submittal says.
Two other points are especially important amid the discussions. They are:
• “Under CERCLA, the federal government has the authority to require disposal facility owners as well as parties responsible for sending waste to a disposal facility that results in actual or threatened releases of hazardous substances to pay for or conduct cleanup and remediation. So, theoretically, the City faces some level of potential liability for mining contaminated soils generated by City projects whether it operates a facility or sends those materials elsewhere for disposal,” the document says.
• “If the Soils Management Facility failed, the City also would be required to take corrective action under (the federal Resource Conservation and Recovery Act) and, in an unlikely scenario, could possibly be subject to some liability to private parties damaged by the release.”
The document, meanwhile, outlines that a repository would include measures like the protective lining and monitoring “to protect against failure and release of constituents to the environment.” It also says City Hall would purchase insurance, “which would be expected to cover the majority of costs associated with cleanup and any private party claims in the unlikely event any constituents qualifying as ‘hazardous substances’ are released into the environment.”
City Hall says the document is one of several that will be prepared for an important City Council meeting about the repository concept, slated for July 15. The documents are intended to address community questions or provide expertise from outside the municipal ranks to supplement the work of City Hall staffers.
The repository proposal involves municipal land located at the intersection of S.R. 248 and Richardson Flat Road. The permit application envisions a repository that could ultimately hold up to 140,000 cubic yards of material containing contaminants like arsenic and lead.
City Hall wants to use the repository to hold materials excavated from municipal projects like a planned arts and culture district and housing developments. The facility would also be made available for use by private homeowners for noncommercial purposes.
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