A legislative directive that in a state agency’s eyes omitted a word or two is an example of what can go wrong when attempting to carry out the letter of the law.
The fuss began six years ago when perfluorochemicals (PFCs) were found in groundwater that had leaked from a closed Washington County landfill. The City of Lake Elmo had to close 200 household wells and spent $6 million to bring water services to the low-density area.
“My community is really a poster-child for what happens when things go wrong,” Lake Elmo Mayor Dean Johnston said.
In 2008, the Legislature gave the Pollution Control Agency 18 months to write stricter rules about where landfills can be placed and how their owners must provide financial assurances against leaks. The rules are intended to protect groundwater and to ensure that taxpayers are not stuck with hefty cleanup costs.
Stakeholders got a look at the draft rules last summer and began questioning legislative intent. Were the new stricter rules supposed to apply to existing landfills or just new ones?
“There was no question in our mind. We thought the legislation was clear that it directed us to write rules for both existing and new,” said Lisa Thorvig, PCA municipal division director. “It didn’t say the rules were for new solid waste disposal, and generally when we’re directed to write rules that only pertain to new, or new and expanded, there’s some kind of qualifier in the language, and that wasn’t there.”
However, the rules may have created more problems than they sought to address.
“Virtually every existing facility would have an exception, or a variance would be required,” said Mike Robertson, a Minnesota Chamber of Commerce lobbyist. “We think this kind of policy would really be unprecedented. It’s regulating through variance which is bad policy.”
“You’ve got to assume (variances) are going to get turned down,” said Rep. Denny McNamara (R-Hastings).
Rep. Julie Bunn (DFL-Lake Elmo), who worked on drafting the legislation, said it was never the intent to include existing landfills under the new siting rules.
She sponsors HF3367 to clarify the language. As amended, her fix states, “The financial assurance and siting modifications to the rules specified in this bill, when it becomes law, shall not apply to solid waste facilities initially permitted before Jan. 1, 2011, including future contiguous expansions and noncontiguous expansions within 600 yards of a permitted boundary.”
The bill was approved by the House Environment Policy and Oversight Committee March 11 and referred to the House Finance Committee with the recommendation that it be re-referred to the House Environment and Natural Resources Finance Division. A companion, SF3003, sponsored by Sen. Kathy Saltzman (DFL-Woodbury), awaits action by the full Senate.
The second directive, to ensure taxpayers are not stuck with cleanup costs, also produced objections and landfill owners predicted their increased costs would trickle down to the taxpayer anyway.
After a landfill closes, it can be voluntarily turned over to the care of the Pollution Control Agency. Money to maintain closed landfills and to clean up leaky ones comes from a remediation fund. Several entities contribute to the fund, such as a state tax that shows up on homeowner’s garbage bills and financial assurances paid by landfill owners.
Homeowners are assessed a 9.75 percent solid waste tax, while commercial businesses pay 17 percent. Last year, the tax generated $66.1 million. The majority, 70 percent, is used to manage 109 state-owned, closed landfills. The rest goes into the General Fund.
Landfill operators may be required to pay financial assurances for up to 30 years after a landfill closes. According to the draft rules, the PCA seeks authority to extend that responsibility beyond the 30-year cap. Again, stakeholders objected.
“I’ve worked in 25 states and Canada. There’s not been one leachate in a modern-lined facility,” said Fred Doran, an engineer serving seven counties . He said current rules are protective of the environment.
Bunn’s bill would require the PCA to consult with “experts and interested persons on financial assurance adequacy for solid waste facilities … to determine the adequacy of existing financial assurance rules to address environmental risks.”
A 2008 moratorium was placed on new solid waste landfills until the new PCA rules are adopted. With the moratorium still in place, four industrial landfill applicants have either been denied or put on hold during the interim; 63 permits for existing landfills, unaffected by the moratorium, were renewed, according to the PCA.