State has extra teeth to bring property into Closed Landfill Program
A long standoff between the Freeway Landfill in Burnsville and the Minnesota Pollution Control Agency may be nearing an end.
Before adjourning last month, the Legislature approved law changes requiring the landfill owner to sign a binding agreement entering the property into the state’s Closed Landfill Program.
The changes to Minnesota’s landfill-cleanup law give closed landfills targeted for cleanup 60 days after notification to sign the agreement. Noncompliance carries the threat of court-ordered civil penalties.
The MPCA also gained authority to acquire those “priority qualified facilities” through eminent domain. The agency didn’t previously have the authority through its Closed Landfill Program, according to Assistant Commissioner Kirk Koudelka.
The changes are also meant to halt a federal Superfund action seeking recovery from about 180 parties to fund a cleanup estimated at $70 million.
The new legislation is “targeted and discriminatory,” affecting only one party — Freeway Landfill, said Michael McGowan, son of the late owner, Richard B. McGowan.
“Based on the language in the bill, they’re violating the due process clause and equal protection clause of the U.S. Constitution,” said McGowan, who said he hasn’t decided on a response to the legislation.
Koudelka acknowledged that Freeway Landfill is the only Minnesota landfill currently affected by the legislation. That’s because the owners of 109 others are already in the Closed Landfill Program or are working voluntarily with the MPCA to get there, he said.
Through the Closed Landfill Program, the MPCA will assume cleanup costs for the 183-acre property west of Interstate 35W and south of the Minnesota River, a federal Superfund site.
The MPCA must tell the U.S. Environmental Protection Agency it’s taking over the cleanup. In February the EPA began a lengthy process to try to recover cleanup costs from “potentially responsible parties” including trash haulers, local governments and businesses large and small.
“That legislation will empower the state to do some things that they haven’t been able to do in the past,” said Steve Mielke, physical development director for Dakota County, which has been involved in talks with the city of Burnsville, landfill trustee Michael McGowan and the MPCA. “It will set in motion a series of actions that will be required of the property owner that if not completed, the state will do. And it goes further and says if the state is unable to get cooperaton, they’ll have the authority then to use the power of eminent domain to acquire the property to do that.”
Meanwhile, the county has been trying to facilitate a possible purchase of the property. That could be a less “confrontational” approach to getting the landfill cleaned up than the legislative edicts, Mielke said.
“We’re trying to facilitate a discussion between the property owner and the state and potentially local parties. It doesn’t identify who,” Mielke said.
The MPCA has a plan to unearth waste at the unlined landfill, which accepted trash from 1969 to 1990, and bury it on the west side of the property atop a new liner. That would leave about 40 prime acres for development along the freeway, the MPCA says.
Without the remedy, the MPCA says a source of drinking water for Burnsville and Savage will be threatened when dewatering ceases at an adjacent limestone quarry because groundwater will rise to the level of the landfill, which has many contaminants. Contaminants would also enter the river, the MPCA says.
Michael McGowan rejects those claims. Years of bad blood between the McGowans and the MPCA were followed by renewed negotiations to bring the landfill into the Closed Landfill Program. McGowan rejected the MPCA’s remedy last July, saying it removed more developable land from the site than the MPCA claimed and threatened his continued operation of the Freeway Transfer Station, also located on the property.
The EPA, which had tried to impose deadlines on the parties for getting the landfill into the Closed Landfill Program, began its Superfund action after negotiations collapsed.
State Rep. Roz Peterson, R-Lakeville, whose district includes much of Burnsville, said she’s especially gratified the threat of financial liability from potentially responsible parties will be removed. Many were informed years ago that their liability was covered by a $400 million cleanup settlement between the state and landfill insurers, Peterson said.
Securing the law changes was a “bipartisan, bicameral” effort, said Peterson, who co-sponsored the House legislation with Rep. Rick Hansen, DFL-South St. Paul. She said she hopes eminent domain can be avoided and a purchase deal worked out through the county.
“I think eminent domain would be a last resort,” Peterson said. “What we’re trying to find is a balance between property rights and taking care of what could be an environmental concern.”
The legislation allows civil penalties to be sought through the courts if McGowan doesn’t enter the Closed Landfill Program, Koudelka said. A fine of up to $20,000 per day is possible after the 60 days expire.
Failure to comply also disqualifies owners and operators from obtaining or renewing a permit to run a solid-waste business — such as the Freeway Transfer Station, Koudelka said.
The state bonding bill legislators approved last month provides $3 million for further investigation of the property before the cleanup plan is finalized, Koudelka said. The MPCA will seek bonding money for the full cost next year, he said.
The investigation will include McGowan family property on the east side of I-35W once used as a “dump” site, Koudelka said. It’s now a dormant driving range.
“We know less about what’s on the east side in the dump,” he said. “We do know mixed municipal waste was taken there, along with other things.”
The McGowans said they wanted to enter the program after the Legislature created it in 1994 and didn’t opt out by a Feb. 1, 1995 deadline, according to Koudelka.
They “never closed the deal,” he said.