May 30, 2017 On Tuesday May 30, 2017, after a regular and Special Session of the Minnesota Legislature, Governor Mark Dayton signed a bill that is intended to benefit over 180 Minnesota businesses and local units of government who faced liability under the federal Superfund law for the investigation and cleanup of the Freeway Landfill and Freeway Dump in Burnsville, Minnesota. Current cleanup cost estimates for the Freeway Landfill range from $65 to $140 million or more.
The Omnibus Environment and Natural Resources bill, funds environmental agencies including the Minnesota Pollution Control Agency ("MPCA") and contains provisions that shift liability away from private parties and public entities who had received notices from the U.S. Environmental Protection Agency ("EPA") that they were potentially responsible parties ("PRPs") at Freeway Landfill and Freeway Dump Sites. Under the new law, cleanup liability for the Freeway Landfill and Freeway Dump rests with the owner and operator of the facilities and/or the State of Minnesota.
Previous efforts to negotiate a settlement between the owner/operator and the MPCA failed. After the breakdown in negotiations, the MPCA referred the disputed matter to the EPA for resolution. The EPA responded by issuing notices to private parties - ranging from prominent Minnesota companies to small businesses, including construction companies and waste haulers - and local units of government - municipalities and school districts - whose wastes were disposed of at the Freeway Landfill and Freeway Dump.
The notices from the EPA threatened the named parties with liability under the federal Superfund law, the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"). CERCLA provides that a generator of waste that was disposed of at a facility where there has been a release of hazardous substances can be held jointly and severally liable for the investigation and remediation of that facility. In the case of the Freeway Landfill, the preferred remedy is removal of 5 million cubic yards of waste dumped at the site between 1969 until the 1980s, lining and capping the landfill, returning the waste to the landfill and conducting long term monitoring at a currently estimated cost of $65 million. The remedy for the nearby older Freeway Dump site has yet be developed. The additional cost of this cleanup is unknown.
The law is designed to forestall an EPA cost recovery action and place responsibility for future actions on the owner and operator of the Freeway Landfill and Freeway Dump and the State. If the owner and operator continues to be uncooperative, the MPCA must to step in and the State will assume all responsibility for the cleanup of both facilities.
The law provides that:
- Within thirty (30) days of enactment the MPCA must notify the owner and operator of its obligations under the new Minnesota law.
- Within sixty (60) days of transmission of that notice, the liability or the private parties and local units of government identified by the EPA for the investigation and remediation of the Freeway Landfill and Freeway Dump is intended to be eliminated.
- On the same date the MPCA must have entered into a binding agreement with the owner and operator to transfer both the Freeway Landfill and Freeway Dump sites into the State's Closed Landfill Program. If an agreement is not entered into by that date, the MPCA will directly assume all obligations under the federal Superfund law and Minnesota law for environmental response actions at the site, including any obligations under the federal Superfund law, CERCLA, that may be imposed by the EPA.
- The state may seek to recover civil penalties of up to $20,000 per day from the owner/owner operator if the entity does not enter into an agreement with the MPCA within the prescribed 60 day period.
- The law appropriates $3 million to cover the costs of "settling obligations with the federal government, remedial investigations, feasibility studies, engineering, and cleanup-related activities for purposes of environmental response actions" which is designed to fully fund MPCA activities for the next two years. The MPCA must report to the Minnesota Legislature early in 2018 on the use of the funds.
- The Minnesota Legislature may consider a bonding request in the future to fund needed remediation activities in later years.
- The MPCA may not seek recovery of its costs at the sites from the named parties and local units of government.
- The owner and operator is prohibited from bringing a variety of claims that might otherwise be available arising from the site.
Under the provisions of the law the cleanups of the Freeway Landfill and Freeway Dump are handled in a manner consistent with cleanups at other Minnesota solid waste disposal facilities. under Minnesota's Closed Landfill Program. The State of Minnesota has assumed cleanup responsibility at permitted disposal facilities across the State. The Minnesota Legislature provided the State with the direct right to pursue insurance proceeds on policies issued to responsible parties whose waste was hauled to those facilities for disposal to cover the costs of cleaning up permitted landfills. A copy of the final bill adopted by the Minnesota Legislature in the 2017 Legislative Session and signed into law by Governor Dayton can be found below.