**The EPA has issued a general notice letter and request for information to more than 100 entities. These entities include cities, school districts, private companies, and public companies. The letter is one of the preliminary steps in the EPA’s Superfund process. The purpose of the letter is to assist the EPA in identifying potentially responsible parties, which may be required to contribute to the clean up of the Freeway Landfill**
The Freeway Landfill is a former landfill located in Burnsville, Minnesota near Interstate 35W, the Minnesota River, and the Kraemer Quarry. The Freeway Landfill was in operation and accepted waste from 1969 until 1990, at which time it permanently closed due to a change in Minnesota laws regulating landfills. Currently, a portion of the Freeway Landfill site is being used as a garbage transfer station and the owners, the McGowan Family, hope to eventually redevelop part of the land. Due to a recent breakdown in negotiations between the McGowan Family and the Minnesota Pollution Control Agency (MPCA), the Freeway Landfill is being added to the EPA’s Superfund program. This is an important development as parties whose waste was disposed of in the landfill to now face liability under federal environmental law for the cleanup costs of the landfill.
In 1969, the Freeway Landfill was developed on land that was a wetland immediately adjacent to the Minnesota River. Back in 1969 there was little regulation of landfill siting and what types of waste landfills could accept. The landfill’s location close to the Twin Cities with convenient access to major transportation routes made it a favored disposal facility for many local haulers. During the 1960s and into the 1980s many types of hazardous materials were brought with other solid wastes and disposed of at the Freeway Landfill. Waste was delivered by local haulers, placed in cells and then covered with fill. However, in the late 1970s through the late 1980s, landfill regulations changed dramatically requiring landfills to be properly lined to prevent water and air pollution. Eventually these regulatory changes caused the Freeway Landfill to cease accepting waste. During its 30 year period of operations, Freeway Landfill accepted an estimated 5 million cubic yards of solid and hazardous wastes. Hazardous wastes were commingled with other trash and remain present at the site.
Two quarries operated near the Freeway Landfill. One of those quarries is still operating, Kraemer Quarry. Kraemer Quarry is currently pumping water out of the aquifer underneath the Freeway Landfill. The continuous pumping of water at the quarry prevents groundwater water from rising to natural levels where it would commingle with the buried waste. Since the Freeway Landfill was built on top of a wetland, the natural water table is very high. Governmental authorities are concerned that once the Kraemer Quarry ceases operations (estimated to be in the next 15 to 20 years) and stops pumping water from the aquifer, the water level will rise and groundwater will come into contact with the pollutants associated with the buried wastes in the Freeway Landfill. Once the groundwater becomes contaminated authorities are concerned about possible contamination of the Minnesota River and the drinking water of nearby cities such as Burnsville.
Due to the risks to human health and the environment, the MPCA attempted to negotiate with the McGowan Family to join the State of Minnesota’s Closed Landfill Program. This program would have used $65 million of taxpayer money to clean up the site. However, negotiations between the MPCA and the McGowan Family broke down due to the fact that participation in the Closed Landfill Program could have affected the current operations of the garbage transfer station and future development opportunities.
On July 28, 2016, the MPCA announced that the State was stepping aside and that the federal government would step in and take over the Freeway Landfill cleanup. The Freeway Landfill will be added to the U.S. Environmental Protection Agency’s (EPA’s) Superfund Program, meaning that the EPA will pay for the initial cost of the investigation and planned cleanup and then seek contribution from persons or companies who used the landfill in order to recoup those costs. Several hundred – perhaps thousands – of parties, including large and small businesses and units of local government who generated waste that was hauled to and disposed of in the Freeway Landfill, may be asked to share in paying for the cleanup of the site.
Due to the long-term use of the site and the volume and types of waste dumped at the Freeway Landfill, the investigation and cleanup of the site will undoubtedly be expensive. The MPCA developed five possible scenarios for cleaning up the site. The MPCA is required by law to consider the option of not taking any action. This option is listed but not viewed as a viable option. Four remaining options could possibly be used now that the site has been added to the EPA’s Superfund program. The first remaining option is to replace the cover or cap at the landfill at a cost of $29 million. The second option, which is listed as the preferred alternative of the MPCA, is to dig up the waste, line the existing landfill and return the waste to the landfill at a cost of $64.4 million. The third option is to dig up the waste, line the existing landfill and part of the closed quarry and return the waste to the landfill at a cost of $71 million. Finally, the fourth option is to remove the waste and haul it to the nearby operating Burnsville landfill at a cost of $135.5 million.
Since the Freeway Landfill has now entered the Superfund program, any person or company who disposed of waste at the Freeway Landfill is subject to a contribution action by the EPA. Any party whose waste was disposed of at the Freeway Landfill may be liable for a portion of the clean up cost associated with the site.
Please see the disclaimer at the bottom of this page that relates to limitations on this blog and to legal advice. If you have any questions about defending an EPA contribution action please contact:
Hessian & McKasy, P.A.