182 parties potentially liable for cleanup
After last year’s collapse of a deal to finally clean up the old Freeway Landfill in Burnsville, the federal government has begun the process of trying to collect cleanup costs from landfill customers.
Letters to 182 “potentially responsible parties” were sent this month. Under the federal Superfund law, the Environmental Protection Agency is seeking joint payment from among a group that includes trash haulers, other businesses large and small and local governments. The city of Burnsville and Burnsville-Eagan-Savage School District 191 are among the parties.
The Minnesota Pollution Control Agency was hoping to avoid a prolonged Superfund action with a $64.4 million cleanup plan to be funded not by landfill customers, but by the state’s voluntary Closed Landfill Program.
After years of inaction followed by renewed negotiations to bring the landfill into the program, landfill trustee Michael McGowan rejected the cleanup plan last July. He said it removed too much prime development acreage from the site, located west of Interstate 35W on the Minnesota River, and threatened continued operation of his Freeway Transfer Station on the property.
The MPCA then declared the deal dead and threw the matter to the EPA, which had been pressuring the state and McGowan to reach a deal on a landfill that has been in McGowan’s family since the mid-1960s and collected trash from 1969 to 1990.
The 150-acre landfill site has been on the EPA’s National Priorities List for cleanup since 1986. Negotiations between the state and McGowan continued even after the EPA issued a Dec. 15, 2015, deadline for reaching a deal.
Under Superfund, “It will take several years to do the (environmental) investigation, to develop the cleanup alternatives,” said Leslie Patterson, regional project manager in the EPA’s Region 5 Superfund Division. “At which point the EPA will propose and issue a decision regarding a cleanup option.”
McGowan, who claims the MPCA treated the family business unfairly for decades, continues to insist the landfill needs no environmental remedy.
“There is no factual or empirical information that demonstrates that Freeway Landfill is violating any applicable state of Minnesota groundwater or surface water or methane standards,” McGowan said.
The landfill is causing groundwater contamination, which is of particular concern because of its proximity to the river and some city wells, Patterson said.
Regulators’ biggest concern is the eventual cessation of dewatering at the Kraemer Mining and Materials quarry south of the landfill. Dewatering will end when mining ends, which city officials say could be 20 years from now. At that point, the water table will rise to the level of the landfill, leaving some of the waste sitting in groundwater that will be exposed to contaminants such as heavy metals, medical waste, volatile organic compounds and cobalt, according to the MPCA.
The pumping creates a “cone of influence that pulls the water toward it,” Patterson said. “The issue would become much more critical if the quarry were to stop pumping.”
Until the EPA does its own investigation, Patterson said she doesn’t know the agency’s remedy or its cost. The MPCA had proposed digging up waste in the unlined landfill and moving it to the west side of the property atop a liner to separate contaminants from groundwater.
Superfund liabilities are “joint and several,” Patterson said.
“That means that unless a potentially responsible party can provide information that specifically documents that they didn’t contribute to the contamination that EPA is trying to clean up, then everybody who is potentially responsible is kind of responsible for all the contamination,” she said.
That includes trash haulers who chose the Freeway Landfill as well as their customers who made that choice, she said.
The EPA encourages the parties to form a committee to work out their response, Patterson said.
“Our role at this point is really to encourage them to start talking with each other,” she said. “We work with the PRPs that come to the table and agree to work with us. But a lot of it is the PRPs forming that committee and working out how they are going to coordinate amongst themselves.”
As long as cleanup costs are covered, “We’re OK with all of them signing up, we’re OK with some of them signing up, we’re OK with one of them signing up,” added Joan Tanaka, remedial response Branch 1 chief in the Region 5 Superfund Division.
Often, the parties “figure out a way to compel each other” to pay their share, she said.
The agency’s last recourse is to use its authority to recover costs from responsible parties, according to Tanaka.
She acknowledged that some parties may no longer be in business or have little ability to pay.
Under the agency’s “ability-to-pay policy,” those who demonstrate hardship can resolve their liabilities “pretty cheaply,” Tanaka said. “They might write us a small check. We’re not in the business to bankrupt people.”
McGowan, whose Freeway Transfer is one of the potentially responsible parties, predicted their ranks will “grow exponentially.”
“It is most unfortunate that the city, the county and the state have chosen to pursue this path involving numerous municipalities, numerous school districts and many businesses in the metropolitan area,” he said.
McGowan disagrees with the post-dewatering water levels predicted by the MPCA, saying that groundwater would need to “run uphill 10 to 12 feet” to reach the garbage in the landfill.
He accuses the MPCA of fabricating test results for chemicals such as mercury after it drilled new monitoring wells at the landfill in the summer of 2015.
McGowan also charges that the unlined Burnsville Sanitary Landfill west of I-35W, which is still operating, doesn’t get the same scrutiny as the Freeway Landfill even through it has nearly as large a footprint and has accepted the same kinds of waste.
The EPA is also seeking information on the old Freeway “dump site” — McGowan property on the other side of I-35W where garbage was also dumped.
All told, his late father’s trust controls 230 acres of “potentially prime real estate” straddling the freeway, “and I’m not going to sit idly by and let the state take the land under false pretense,” said McGowan, one of two trustees.