#05 Enter Agreements to Accept Deer Carcasses at Landfill
DEPARTMENT OF PUBLIC WORKS MEMORANDUM
October 29, 2009
TO: City Council
FROM: John Whitcomb, Operations Director
SUBJECT: Authorization for the City Manager to Enter into Intergovernmental
Agreements with the State of Wisconsin Department of Natural
Resources (WDNR) Indemnifying the City of Janesville for
Accepting Deer Carcasses for Disposal at the Janesville Municipal
Landfill.
Summary
This memo provides information regarding proposed indemnification agreements
with the Wisconsin Department of Natural Resources (WDNR) pertaining to the
landfill disposal of deer carcasses possibly affected with chronic wasting disease
(CWD). The indemnification agreements cover disposal operations at the City’s
landfill and treatment of landfill leachate at the City’s wastewater treatment
facility.
Staff Recommendation
Given that CWD has not been shown to be transmissible to humans, staff
believes continuing to accept deer carcasses for disposal at the landfill presents
a lower level of environmental and human health risk than other materials
commonly deposited in municipal solid waste disposal facilities. Further, in the
absence of a landfill disposal option, meat processors and residents processing
their own deer have no other appropriate disposal options.
Following Council discussion, staff recommends the City Council authorize the
City Manager to enter into both the landfill and wastewater treatment facility
indemnification agreements with the WDNR.
Recommended Motion
I move to authorize the City Manager to enter into the proposed indemnification
agreements as recommended by staff.
City Manager Recommendation
I concur with the Operations Director’s recommendation.
Background
CWD is a fatal nervous system disease known to naturally infect whitetail deer
and other specific deer populations. CWD belongs to a family of nervous system
diseases known as transmissible spongiform encephalopothies (TSE) or prion
diseases. Though it has common features with other prion diseases, like mad
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cow disease in cattle and scrapie in sheep, it is distinct and known only to infect
specific members of the deer family. Like scrapie in sheep, there is no evidence
showing CWD in deer is transmissible to humans. This is unlike mad cow
disease which has been shown to be transmissible to humans.
CWD was first discovered in Wisconsin in 1999. Since then, extensive statewide
sampling has indicated the disease remains confined to the southern region of
the state, primarily in Iowa and Dane Counties. Given the rich history of deer
hunting in Wisconsin, the discovery of CWD was a paramount event.
The City has continued to accept deer carcasses from residents and current
customers for disposal at its landfill, adopting special handling and disposal
procedures. Landfill disposal remains the recommended disposal option by
WDNR based on various studies.
Some landfills have stopped accepting deer carcasses for disposal, for various
reasons, but primarily over concern about potential future regulation of the prions
causing CWD, not necessarily health-related concerns. Some of these landfills
had to stop accepting deer carcasses because the wastewater treatment facilities
treating their leachate required the landfills stop accepting deer carcasses.
These wastewater treatment facilities had similar concerns over potential future
regulation of prions.
In response, DNR has developed indemnification agreements for landfills willing
to accommodate deer carcass disposal and for wastewater facilities treating
leachate from these landfills. Under these agreements, the WDNR indemnifies
landfills and treatment facilities from future liability directly related to the disposal
of CWD affected deer carcasses, provided certain conditions are met. The City
Attorney has reviewed and approved the proposed indemnification agreements.
On a final note, the City’s wastewater treatment plant staff has indicated they will
continue to allow landfill disposal of deer carcasses on condition the Council
authorizes, at a minimum, the proposed wastewater treatment plant
indemnification agreement. Without this indemnification agreement, the landfill
will be unable to continue to accept deer carcasses.
cc: Jay Winzenz, Director of Administrative Services/Assistant City Manager
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INDEMNIFICATION AGREEMENT BETWEEN THE CITY OF JANESVILLE
SANITARY LANDFILL, THE STATE OF WISCONSIN AND THE WISCONSIN
DEPARTMENT OF NATURAL RESOURCES FOR DISPOSAL OF DEER THAT HAVE
CHRONIC WASTING DISEASE
WHEREAS, the Wisconsin Department of Natural Resources (the Department)
may manage chronic wasting disease (CWD) in cervids, and ;
WHEREAS, the Department must properly handle, process and dispose of
cervids that have or may have CWD, and that it may utilize a landfill for such purposes,
and;
WHEREAS, pursuant to sec. 29.063(6)(b), Wis. Stats., the Department may
enter into indemnification agreements with persons who own or operate landfills in
which the state agrees to indemnify those persons and their employees, officers, and
agents against liability for damage to persons, property, or the environment resulting
from the disposal of carcasses of cervids that have chronic wasting disease, and;
WHEREAS, the Department desires to use the landfill owned or operated by the
City of Janesville to dispose of cervids that are to be disposed of in conjunction with the
CWD program, and said animals may have CWD, and;
WHEREAS, the City of Janesville has agreed to accept the cervids that are to be
disposed of pursuant to the CWD Program, and recognize that said animals may have
CWD.
Now, therefore, the parties hereto agree as follows:
1. The State hereby agrees to indemnify the City of Janesville and its employees,
officers, and agents against liability for damage to persons, property, or the
environment resulting from the processing or disposal of carcasses of cervids
that have chronic wasting disease, if the City of Janesville has operated the
landfill in compliance with paragraph 6.
2. The method for determining whether the City of Janesville is liable for
damages described in paragraph 1 is as follows:
a. by final judgment of a court having jurisdiction over the matter, after any
appeals have been exhausted;
b. by settlement accepted in writing by the Governor and approved by a
court having jurisdiction over the matter, or
c. by written agreement of the City of Janesville, the Department and the
Governor.
3. The City of Janesville landfill shall notify the Department and the Attorney
General in writing within 10 days of receiving the notice of a claim or service of a
lawsuit to which the Agreement may apply. It is understood that this Agreement
authorizes the Attorney General to intervene in any lawsuit on behalf of the City of
Janesville landfill and the State to which this Agreement may apply.
4. The Department agrees that pursuant to WIS. STATS. ss. 803.03(1) it is a
necessary party for the just and complete adjudication of any action filed against
the City of Janesville landfill alleging liability for damage to persons, property or
the environment resulting from the processing or disposal of deer that may have
had CWD at the City of Janesville’s landfill. If the Department is not originally
named as a party to such an action, the Department agrees and consents to
joinder as a third-party defendant pursuant to WIS. STATS. ss. 803.05(1); and
further agrees to fully defend all claims arising out of the same transaction,
occurrence, or series of transactions or occurrences that is the subject of the
plaintiff’s complaint, so long as such transactions or occurrences relate to the
conditions under the indemnification agreement for which the State would
indemnify.
5. The City of Janesville landfill agrees that it shall minimize risks related to
processing or disposal of carcasses of cervids that may have chronic wasting
disease.
6. In order to minimize risks related to disposal of carcasses of cervids that may
have chronic wasting disease, the City of Janesville landfill shall operate the
landfill in the following manner when disposing of said animals:
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Place deer at least 20 feet above the base of the landfill
?
Dig a shallow trench at least 3 feet deep into existing waste (similar to
asbestos disposal)
?
Place absorbent material acceptable to the Department at the base of the
trench
?
Deposit deer into trench
?
Cover with additional absorbent material accept to the Department
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Fill remainder of trench with municipal solid waste (MSW) or soil
?
Cover with soil at the end of the work day
?
Use Global Positioning System (GPS) equipment to record coordinates of
the trench location and put into landfill record
?
The landfill record shall be maintained during the operating life and the 40
year long-term care period of the landfill
7. This agreement may not be construed as consent to sue this state.
8. This agreement is for purposes of providing indemnification to the City of
Janesville landfill only. If the landfill is sold or otherwise transferred to another
owner or operator, the agreement shall continue to indemnify the previous owner
or operator and shall not ensue to the new owner or operator.
9. This agreement is effective upon approval by the Governor.
Wisconsin Department of Natural Resources:
By: ________________________ Dated: __________________
Matthew J. Frank, Secretary
City of Janesville Sanitary Landfill:
By: ________________________ Dated: __________________
Jacob J. Winzenz, Director of Administrative Services/Assistant City Manager
Approved:
___________________________ Dated: ___________________
Jim Doyle
Governor, State of Wisconsin
Approved as to form:
Wald Klimczyk, City Attorney
CWD Indemnification Agreement Between the
City of Janesville Wastewater Utility (JWWTP)
and the Wisconsin Department of Natural Resources
Regarding the Treatment of Leachate from the
Rock County/City of Janesville Sanitary Landfill
WHEREAS, the Wisconsin Department of Natural Resources (the Department)
may manage Chronic Wasting Disease (CWD) in cervids, and
WHEREAS, The Department must properly handle, process, and dispose of
cervids that have or may have CWD, and such handling and disposal of cervids in a
landfill may generate leachate that is sent to and treated by a Wastewater Treatment
Facility; and
WHEREAS, pursuant to sec. 29.063 (6) (b), Wis. Stats., the Department may
enter into indemnification agreements with persons who own or operate wastewater
treatment facilities in which the State agrees to indemnify those persons and their
employees, officers, and agents against liability for damage to persons, property, or the
environmental resulting from the processing or disposal of carcasses of cervids that
have Chronic Wasting Disease; and
WHEREAS, the wastewater treatment facility owned or operated by JWWTP
treats leachate from the landfill or landfills that may have been disposed of CWD-
infected cervid carcasses; and
WHEREAS, JWWTP has agreed to treat the leachate that has, or may have
been, in contact with cervids that have been processed or handled in conjunction with
the CWD Program, and said animals may have CWD.
NOW, THEREFORE, the parties hereto agree as follows:
1. The State hereby agrees to indemnify JWWTP and it employees, officers, and
agents against liability for damage to persons, property, or the environment
resulting from the treatment and disposal of leachate from a landfill or landfills
that have disposed of CWD infected cervid carcasses if the JWWTP has
operated the wastewater treatment facility in compliance with Paragraph 6.
2. The method for determining whether the JWWTP is liable for damages
described in Paragraph 1 is as follows:
a. By final judgment of a court having jurisdiction over the matter, after
any appeals have been exhausted;
b. By settlement accepted in writing by the Governor and approved by a
court having jurisdiction over the matter; or
c. By written agreement of JWWTP, the Department, and the Governor.
3. JWWTP shall notify the Department and the Attorney General in writing within
10 days when a claim or lawsuit to which the Agreement may apply is filed.
Moreover, this Agreement authorizes the Attorney General to intervene on
behalf of JWWTP and this State in any lawsuit to which the Agreement may
apply.
4. The Department agrees that pursuant to WIS STAT. ss. 803.03 (1) it is a
necessary party for the just and complete adjudication of any action files
against JWWTP alleging liability for damage to persons, property, or the
environment resulting from the processing or disposal of leachate that may
have come from a landfill that had disposed of CWD infected cervid
carcasses. If the Department is not originally named as a party to such an
action, the Department agrees and consents to joinder as a third-party
defendant to WIS STAT. ss. 803.05 (1); and further agrees to fully defend all
claims arising out of the same transaction, occurrence, or series of
transactions or occurrences that is the subject of the plaintiff’s complaint, so
long as such transactions or occurrences relate to the conditions under the
indemnification agreement for which the State would indemnify.
5. JWWTP agrees that it shall minimize risks related to treatment, processing
and disposal of leachate from landfills that contain potentially CWD-infected
cervid carcasses.
6. In order to minimize risks related to the treatment of leachate generated by
landfills containing CWD infected cervid carcasses JWWTP shall operate the
wastewater treatment facility and land apply biosolids in compliance with the
WPDES permit and all applicable rules, including Chapter NR 204.
7. This Agreement may not be construed as consent to sue this state.
8. This Agreement is effective upon signature by the Governor.
Wisconsin Department of Natural Resources
By: ________________________ Dated: __________________
Matthew J. Frank, Secretary
City of Janesville Wastewater Treatment Plant
By: ________________________ Dated: __________________
Jacob J. Winzenz, Director of Administrative Services/Assistant City Manager
Approved:
___________________________ Dated: ___________________
Jim Doyle
Governor, State of Wisconsin
Approved as to form
y
Wald Klimczyk, City Attorney
J:\Services\Wastewater Utility\Administration – Wastewater Utility\Documentation\Special Projects\CWD Cervids Disposal\CWD
Indemnification Agreement 062309.docx