TONTITOWN — A lawsuit filed Friday accuses the city of Tontitown and its mayor of unlawfully using public money to pay for private legal representation in a lawsuit opposing the expansion of the Eco-Vista landfill.

The Arkansas Pollution Control and Ecology Commission approved a permit March 17, 2023, for a 12-acre expansion of the landfill in Tontitown owned by WM Inc. for its Class IV landfill space. Class IV waste is nonhazardous, sanitary construction and demolition debris such as wood, metal, brick and plaster.

Eighteen residents in the vicinity of the landfill filed an administrative appeal opposing the Class IV expansion on April 14, 2023. The appeal cited a Nov. 2, 2022, resolution by the city of Tontitown stating the city no longer supported expansion of the Class IV operation.

The 18 residents were represented by the Richard Mays Law Firm, according to a lawsuit filed Friday on behalf of Washington County resident Mick Wagner. The lawsuit claims Tontitown Mayor Angela Russell owns land near the landfill and was one of the 18 who appealed the ruling.

Russell and the city filed a separate appeal of the commission’s ruling April 15, 2023, opposing the expansion.

Wagner’s lawsuit says the city was represented by Ross Noland with the Noland Law Firm in that appeal.

Both appeals said the landfill is a nuisance to residents and contend the expansion needed the city’s support to proceed under state law.

“Following these filings, extensive litigation ensued, including substantial discovery, multiple depositions and numerous pleadings,” Wagner’s lawsuit states.

The lawsuit was filed by Fort Smith attorney Joey McCutchen on Wagner’s behalf and has been assigned to Circuit Judge Doug Martin.

Russell said Wednesday she had no comment on Wagner’s suit.

Wagner claims he obtained an invoice dated July 6, 2023, from the Richard Mays Law Firm directed to the city of Tontitown for services rendered in connection with the Eco-Vista litigation even though the Noland Law Firm was the city’s attorney of record.

“The invoice details substantial work performed exclusively on behalf of the individual petitioners, including preparation and participation in strategy meetings with Mayor Angela Russell and others, drafting and finalizing responses to discovery requests, taking and defending depositions, conducting legal research on regulatory matters and drafting a motion for summary judgment on behalf of the individual petitioners,” the lawsuit states.

The total billed amount was $15,079, which was paid using money from the city’s general fund, the lawsuit states.

The lawsuit claims the city never entered into a contract or agreement with the Richard Mays Law Firm to represent the city in the matter, meaning the money paid by the city was performed solely for the benefit of the 18 residents, not the city.

Wagner’s lawsuit cites Article 12, Section 5 of the Arkansas Constitution, which prohibits municipalities from appropriating public funds for private purposes.

The lawsuit states the city’s payment to the Richard Mays Law Firm was unlawful because it is the responsibility of private parties to pay for the attorneys representing their interests in the lawsuit, not the city.

The lawsuit seeks declaratory judgement that the $15,079 payment to the Mays Law Firm was in violation of the state Constitution. It also seeks a permanent injunction against the city and the mayor using public funds for private purposes or in violation of the state Constitution. Finally, the lawsuit requests an order requiring the defendants to reimburse the city’s general fund.

Tontitown has appealed the state Pollution Control and Ecology Commission’s decision to allow the landfill expansion to the state court system, Washington County Circuit Court documents show.

The Eco-Vista landfill is the only state-permitted landfill in Northwest Arkansas. The expansion would give the landfill another 10 to 15 years of use in accepting nontoxic household and commercial waste, according to the permit application.

The city has the right to rescind permission to expand a landfill, its appeal argues. Such permission is required to get a permit from the state for expansion. WM requested and received zoning approval from Tontitown in 2018 and 2021 for the expansion, but the city revoked its permission after the city changed mayors and some members of its City Council in the 2022 elections.

Residents near the landfill complain of odors and fires at the landfill and trash strewn along the roads leading to the site. The state has conducted three rounds of air quality tests. The tests found benzene and other pollutants, but also found those pollutants at testing sites away from the landfill. The state Department of Health recommends more extensive testing, which the state Department of Energy and Environment is considering.

Shane Khoury, secretary of the Department of Energy and Environment, said during a budget hearing in November the next round of air testing near the Tontitown landfill could cost $500,000 to $600,000 — five to six times more than the original rounds of testing.

Khoury reiterated at that hearing what other department staffers had said previously — that the rounds of air testing done around Tontitown in the spring did not indicate the source of certain pollutants. He said that as a result, design and planning was required for the next larger round of testing so the source could be better identified.