The Minnesota Superfund Program is used to identify, investigate, and ultimately clean up property where a release of the hazardous waste poses what authorities believe is a risk to human health or the environment. The sites controlled under the Minnesota Superfund program range from current dry cleaners to old, decommissioned landfills and other dump sites. However, within the past few years, the Minnesota Pollution Control Agency has been focusing the Superfund program on vapor sites where vapor intrusion is a concern. Ultimately, the Minnesota Pollution Control Agency (“MPCA”) can use the Superfund program in many ways, however, under the process mandated by the state law, the MPCA is required to follow certain steps to cleanup of polluted sites throughout the State of Minnesota.
The formal steps in the Superfund process are as follows. After a potential site is discovered, it first must be scored. The score indicates the level of risk that a particular site poses to public health and the environment. After the site is scored and a public comment period, the site can be placed on the State of Minnesota’s Superfund list, which is also known as the Permanent List of Priorities (“PLP”). Once a site is placed on the Superfund list, the MPCA can use State Superfund monies to test and clean up the site. After a site is listed, the MPCA has the option of identifying potentially responsible parties (“PRPs”). Those parties can include past and present owners of the property where the release has occurred, the operator of the facility, a transporter of the waste to the site, and/or a generator of the waste. After the PRPs are identified, a notice may then be sent to the PRPs informing them of their responsibilities and the cleanup actions that the MPCA has determined must be taken at the site. This notice, which is mandated by State law, is also known as a Request for Response Action (“RFRA”). At this point, the parties have two options. Under the first option the party or parties can agree to follow the terms of the RFRA and clean up the site. A binding agreement known as a Consent Order which spells out the terms of the investigation and cleanup is typically negotiated between the PRPs and the MPCA. Under the second option, the party or parties may elect to decline to follow the RFRA. If the parties choose the second option, the MPCA may then move forward using Superfund dollars to clean up the site. Then, the State of Minnesota may proceed to court initiating legal action against the party or parties names as PRPs seeking recovery of the MPCA’s response costs. Depending on the nature and extent of the release and site-specific characteristics, the investigation and cleanup of a site may take years to complete. Once a site is fully investigated and cleaned up, the site can be removed from the Superfund list.
In June 2016 the MPCA proposed to add 10 sites to the Superfund list. According to the MPCA these sites are contaminated by releases of trichloroethylene (“TCE”) and perchloroethyene (“PCE”), along with other hazardous substances. Locations where past or present dry cleaning operations were housed and where cleanup needs to be undertaken are now commonly named to the State PLP due to the toxic chemicals used in the dry cleaning process. A number of the new sites are current or former dry cleaning operations where releases of solvents including PCE have been documented. According to the MPCA and the Minnesota Department of Health (“MDH”) dry cleaning operations with documented releases pose a serious risk when chemicals enter groundwater and move away from the dry cleaning site. At many of these new sites the MPCA is investigating contaminant plumes and potential vapor intrusion into nearby buildings and homes, which is a growing concern in Minnesota. When vapor intrusion is identified as a concern, mitigation systems often need to be placed inside structures. For more information about the Minnesota sites that are under investigation please see: http://www.enviroattorney.net/mpca-superfund-expansion-ten-new-superfund-sites-to-be-added-in-2016/
The U.S. Environmental Protection Agency (“EPA”) follows a similar process as the MPCA of investigating sites where there have been releases of hazardous substances under the authority of the federal Superfund law. The EPA typically adds sites with which pose greater threats to public health or the environment or where the cost of investigation and cleanup exceeds that which the State can bear on its own.
Because Minnesota’s Superfund list has now been amended to include these additional 10 sites, any past or present owners of the properties, any operators of the listed sites, any transporters of the hazardous substances, or any generator of the hazardous substances may be subject to substantial environmental liabilities. For more information on the MPCA’s Superfund list please visit: https://www.pca.state.mn.us/waste/state-superfund-site-summaries.
Please see the disclaimer at the bottom of this page that relates to limitations on this blog and to legal advice. For advice on avoiding Superfund designation and for advice on navigating the Superfund Program please contact:
Hessian & McKasy, P.A.