CR 93-209 Landfill Gas Control District
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Decem er 1, 1993 0 P K I ~ CouncJ.l Report 93-209
~ LANDFILL GAS CONTROL DISTRICT
ProDosed Action.
Staff recommends the following motion: Move that Council direct
staff to prepare an ordinance concerning a landfill gas control
district and that the ordinance be considered for first readinq at
the December 21. 1993 meeting.
Overview.
Subsequent to the installation of the methane barrier system along
the east and south sides of the Seventh Street Landfill, the City's
Gas Control/Recovery Remedial Measures Plan and Alternatives Report
was filed with the MPCA in July 1991. This report in part cited
specific alternatives to address control of migrating methane gas
along the western and northern boundaries of the landfill. The
costs of a second membrane barrier system were discussed as well as
the less costly method of institutional controls, i.e., restricted
land use/development or outright City ownership of land adjacent to
the landfill. Recommendations concerning the west side of the
landfill were to continue monitoring, take no action as long as the
land remained undeveloped, and, should development take place,
coordinate with the City of Minnetonka for adequate setbacks. The
.. recommended alternative for the northwest side was to repurchase the
ABJ Enterprises and Rutledge Construction parcels and utilize the
Soo Line Railroad and the drainage ditch and ponds north of the
tracks as a natural barrier to gas migration.
This report will restrict itself to the issue of repurchase of the
ABJ and Rutledge parcels and what bearing a landfill gas control
district will have upon these parcels.
Primary Issues to Consider.
o MPCA position regarding institutional controls
o Negotiations for repurchase
o Terms of ordinance
o Property owner options
o Council options and staff recommendation.
SUDDortinq Information
o Location map
o city Attorney correspondence
o Draft ordinance
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es Gessele .
ngineering Superintendent
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Council Report 93-209
Page 2
Analvsis
. 0 MPCA position regarding institutional controls.
The MPCA accepted the concept of institutional controls as
outlined in the City's 1991 Alternative Report. The agency,
however, strongly urged the city to have permanent agreements
restricting development in place before MPCA formal approval
would be given to the concept, this short of outright purchase
of property. Now that the costs of a membrane barrier system
are known, it is almost certain that the agency prefers the
less costly means of remediation. In addition, the agency
staff is unhappy with the city for having sold actual
landfilled property without notifying the MPCA, and their
favored position is for the City to repurchase the parcels.
The minimum agency requirement to initiate institutional
controls is to enact a landfill gas control ordinance.
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0 Negotiations for repurchase.
Two parcels of land, currently in private ownership, were part
of the permitted Seventh street Landfill. Solid waste
materials were buried on these parcels. The City sold these
two tracts in the following manner: (a) .69 acre tract to
Rutledge Construction in 1980 for approximately $12,000; (b)
. 1.93 acre tract to ABJ Enterprises in 1981 for approximately
$44,000.
In December 1992 the City Attorney addressed purchase offers of
the two parcels to the respective owners. Mr. Miller outlined
the City's obligation to remediate environmental problems
stemming from the landfill, the owner's liability in any needed
remediation efforts, the MPCA's strong recommendation that the
City reacquire the property, and a purchase offer representing
the current market value established by the City Assessor.
No response was forthcoming and the city Attorney sent a
reminder letter in February 1993 and sought a response. This
second letter made very clear the owner's liability in any
remediation efforts and counseled the owners that it was highly
unlikely that they could seek indemnity from the city for their
share of the costs in complying with MPCA directives.
After still no response from either party, the attorney sent a
third communication in May 1993, notifying them that the MPCA
was to receive notice of the City's inability to purchase the
property and directing the agency to outline its requirements
of the owners in a joint effort with the City to remediate the
landfill problems.
. On June 22, 1993 a joint meeting with the respective owners and
their legal counsel was held at city Hall. All previous issues
as outlined in past communications were discussed. Purchase
offers as tendered in December 1992 were resubmitted and the
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council Report 93-209
Page 3
property owners countered with demands substantially higher .
than the City was prepared to accept. The City's legal counsel
followed up with a written reply to the allegations that the
buyers were not aware of purchasing landfilled property in 1980
and 1981. He also dashed any notions on the owner's part that
the MPCA would allow buildings to be constructed on the
parcels. Lastly, the attorney extended the terms of a purchase
offer with September 27, 1993 as a deadline.
The city has received no response from either party, the
deadline has passed and the purchase offer has been withdrawn.
In the interim the City has come under considerable pressure
from the agency to do something. Staff proposes an ordinance
creating a landfill gas control district.
0 Terms of the ordinance.
The draft ordinance for Council's review is a declaration of
public policy that in the interest,.of the safety and welfare of
the community and to remain in compliance with directives and
regulations of the MPCA as they all pertain to landfill gas
emissions on the Seventh Street Landfill site, certain
controls, restrictions or prohibitions on that site are
necessary. In summary, a landfill district composed of all
land used in landfilling purposes (including the ABJ and
Rutledge parcels) will be created. Improvements, including .
erection of buildings will be prohibited or regulated within
the district. The prohibitions or regulations will fall under
the umbrella regulations of the MPCA. The city also reserves
the right to remove prohibited property at the owner's cost.
0 Property owner options.
The owners of the two parcels under scrutiny could request
purchase of their property at the city's earlier offer. This
would be at the discretion of the City because of the offer's
expiration in September. A sale would still offer
indemnification to the owners as to their liability in
environmental issues.
The owners could accept the regulations and prohibitions of the
ordinance and choose to taylor.use of their properties to what
the MPCA would ultimately permit. The owners would need to
participate in a proportional share of the costs for monitoring
and remediation at the landfill.
The owners could choose to not accept either of the above
alternatives and seek redress in the courts for inverse
condemnation. In such an action the city Attorney advises that
suit would need to be brought against both the MPCA and the .
city.
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Council Report 93-209
Page 4
0 council options and staff recommendations.
. council can authorize staff to draw up an ordinance concerning
a landfill gas control district. The ordinance would be
subject to first and second readings and the affected property
owners would be invited to the Council deliberations.
council can opt to initiate legal proceedings for purposes of
condemning the property.
Council can elect to postpone action for further information.
Staff recommends the first alternative. There is no need for
the city to do aggressive posturing at this point with
condemnation proceedings. There is also little to gain but the
increased ire of the agency should the City elect to postpone
action.
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FOLDER NO. &
VESELY, MILLER & STEINER
PROFESSIONAL ASSOCIATION INITIALS .jJZ;
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ATIORNEYS AT LAW
JERRE A. MILLER 400 NORWEST BANK BUILDING JOSEPH C. VESELY (1905-1989)
JEREMY S. STEINER* 1011 FIRST STREET SOUTH
WYNN CURTISS HOPKINS. MINNESOTA 55343
. Real Property Law Spocwist, 612-938-7635
certified by tho MintacIo<a Stale FAX 612-938-7670
Bar Anociaoon. December 9, 1992
Art B. Johnson
ABJ Enterprises
250 Prairie Center Drive
Eden Prairie, MN 55344
Dear Mr'. Johnson:
On June 1, 1981 the City of Hopkins sold you 1.93 acres on or
adjacent to an area then used by the CitYqfor a sanitary
landfill.
The City has been ,involved for a long period of ,time
concerning remediation processes following a 1988 Closure
Order of the landfill demanded by the Minnesota Pollution
Control Authority.
. A critical aspect of the Closure Order is the requirement
that the environmental problems concerning the landfill,be
remediated. Unfortunately, the State and Federal Superfund
Statutes look to both seller and purchaser for liability from
contamination and costly remediation of such contamination.
The PCA has strongly recommended the City reacquire your
property in order to include it within the remediation plan
and process negotiated between the City and the Authority.
In reacquiring your property, it would be the intent of the
City to release and hold you harmless from any costs involved
in the remediation efforts.
For this reason, the City is prepared to offer you the sum of
$44,100.00 which represents the current market value
established for the property by the City Assessor.
If you have' no intention to allow the City to reacquire the
property, it will be necessary to meet with you in order for
your company to become actively engaged in cooperative
compliance with the Pollution Control Authority which may
, require razing structures, inserting and monitoring wells on
the property and other expenses that may be imposed by the
Authority.
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If you have no intention to allow the City to reacquire the .'
property, it will be necessary to meet with you in order for
your company. to become actively engaged in cooperative
compliance with the Pollution Control Authority which may
require razing structures, inserting and monitoring wells on
the property and other ~xpenses that may be imposed by the
Authority.
Please let me know as soon as you can because we must
promptly inform the PCA of your response.
Sincerely,
Jerre A. Miller
Hopkins City Attorney
JAM/jw
cc James Gessele
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VESELY, MILLER & STEINER FOLD:H NO. (p
PROFESSIONAL ASSOCIATION
. tN/TIALS JitJ
A TIORNEYS AT LAW -
JERRE A. MILLER 400 NORWEST BANK BUll..OING JOSEPH C. VESELY (1905-1989)
JEREMY S. STEINER* 1011 FIRST STREET SOUTH
WYNN CURTISS HOPKINS, MINNESOTA 55343
. ~a1 Propcrt)' Law Special;.t, 612-938-7635
certified by the Mimtc.ota SlsIC FAX 612-938-7670
Bit Association.
February 24, 1993
Art B. Johnson
ABJ Enterprises
250 Prairie Center Drive
Eden Prairie, MN 55344
Dear Mr. Johnson:
On December 9, 1992, I notified you of the
environmental issues involving the City of Hopkins and the
Minnesota Pollution Control Authority, the latter of which
had directed the City to acquire your property. A purchase
agreement was furnished you at that time for your
consideration and signature.
. Since that date I have received no communication from
you.
It has become necessary for the City to report its
inability to acquire your property to the MPCA in order to
allow that agency to determine what enforcement actions it
wishes to take. Such action may require placing monitoring
wells on your property, protecting existing structures and
possibly restraining all use presently associated with the
property.
The City has employed special cou~sel concerning these
environmental issues and they have determined it would be
unlikely you could look to the City of Hopkins for
contribution or indemnity for costs you may incur to comply
with MPCA directives. The property was obtained with actual
knowledge of the potential condition of the property and the
effect upon it of the landfill. Under both common law and
Federal and State statutes you would likely experience joint
and several liability with the City for contamination on the
site. This means your property is burdened with the
obligation to take necessary environmental remedial steps
that may rise. "
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Because the City is presently under considerable
pressure from the MPCA to show progress concerning this
acquisition before further action is directed, your prompt
response one way or the other would certainly be appreciated.
Sincerely,
Jerre A. Miller
JAMjlz
CC: Jim Gessele
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VESELY, MILLER & STEINER Fill r~o ~in (p
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PROFESSIONAL ASSOCIATION -
. ATTORNEYS AT LAW !NITIALS JT1
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JERRE A. MILLER . 400 NORWEST BANK BUILDING JOSEPH C. VESELY (1905-1989)
JEREMY S. STEINER* 1011 FIRST STREET SOUTH
WYNN CURTISS HOPKINS, MINNESOTA 55343
. RJ:al Property LawSpeciali<1, .612-938-7635
certified by the Minncso<a Stale FAX 612-938-7670
Bar Association. . May 11, 1993
Mr. Thomas Rutledge
Rutledge Corporation
1409 7th Street South
Hopkins, MN 55343
Dear Mr. Rutledge:
On December 9, 1993, I first contacted you at the insistence
of the Minnesota Pollution Control Agency concerning your
involvement and contribution to achieving compliance with the
continuing directi ves. of the PCA in the. cleanup process. My
previous letters indicated the extent of this involvement and
in order to remove you from the umbrella of responsibility
the peA has unfolded, the Agency suggested we reacquire your
property. Offers to this extent have been submitted to you
without response. As a result and by a copy of .this letter
. to the representative for the PCA, the Agency will be given
notice that the City is unable to acquire your property and
relieve you of responsibility concerning landfill cleanup.
I expect a representative from the PCA to contact you
directly with its requirements to join with Hopkins in
remediation of the landfill waste. as applied to your
property.
Sincerely,
Jerre A. Miller
Hopkins City Attorney
JAM/jw
cc James Gessele /'
Kenneth Meyer - PCA
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VESELY, MILLEIt& STEINER :';: .~.~ " : :~";" "___ G_.
PROFESSIONAL ASSOCIATION _. .
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ATIORNEYS AT LAW .:: ' ,,' ,---,.-::.-----
JERRE A. MILLER 400 NORWEST BANK BUILDING JOSEPH C. VESELY (1905-1989)
JEREMY S. STEINER* 1011 FIRST STREEf SOUTH
WYNN CURTISS HOPKINS. MINNESOTA 55343
. Rloal Property Law Sp:cialisl, 612-938-7635
ccrtiilCdBby1:~St&lc FAX 612-938-7670
or bon.
August 26, 1993
Mr. David Lillehaug
Leonard, Street & Deinard
150 South Fifth Street
Suite 2300
Minneapolis, MN 55402
Re: ABJ and Rutledge
Dear Dave:
I have now had the opportunity to discuss the matter involving your
clients Mr. Rutledge and Mr. ..Johnson with the Hopkins staff and Jon .
Scoll who is the City's . attorney for matters pertaining to the
Hopkins landfill. .
As I indicated earlier, Mr. Rutledge had actual notice at the time
of his purchase by reference in his deed to deposits of compact
organic matters and refuse affecting his property.
Mr. Johnson purchased his property following notice of termination
of the sanitary landfill which notice included the Johnson parcel
and was filed of record on September 19, 1980, several months prior
to Mr. Johnson's acquisition.
The PCA has informed me of their prohibition on buildings located
on landfill property which means your clients would not be
permitted to construct one on their property. This is in keeping
with their demand that the City remove an existing structure on
City property.
The offer to purchase your client's property will be extended for
30 days at the end of'which time the Purchase Agreements forwarded
to them earlier will be deemed to be null and void and the offer
withdrawn.
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. I will look forward to hearing from you.
Sincerely,
Jerre A. Miller
Hopkins, City A:ttorney
JAM/jw I
cc Jim Gessele
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ORDINANCE NO. 93 ... 735 .
An Ordinance relating to Public Safety; amending Chapter IX of
the Hopkins City Code by adding Section 945 - Landfill Gas Control
- District.
THE CITY COUNCIL OF THE CITY OF HOPKINS DOES ORDAIN:
Section 1. Declaration Of Public Policy And Purpose. The
Council of the City of Hopkins hereby declares as a matter of
public policy that compliance by the City of Hopkins with
applicable orders, directives or regulations of the Minnesota
Pollution Control Agency regarding landfill gas emissions from the
7th Street Landfill is in the interest of the health, safety and
welfare of the people of the City of Hopkins in the regulation of
activities thereon. Accordingly, the purpose of this chapter is to
impose certain controls on certain' property, for so long as
required by the Minnesota Pollution Control Agency pursuant to the
Closure Order and other applicable orders, directives and
regulations respecting the 7th Street Landfill.
Section 2. Definitions. ~ ~ ~ ~
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(1) Closure Order: The Crosure Order by Consent dated June 13,
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1988 between the Minnesota Pollution Control Agency and the
City with respect to the Landfill, as from time to time .
amended, and all directives, oral or written by the MPCA
pursuant thereto.
(2) Landfill: The former 7th Street Landfill located in the South
1/2 of Section 25, Township 117, Range 22, Hennepin County,
Minnesota.
(3) Landfill Gas: Any gaseous or volatile organic compound
generated or emitted on or adjacent to the Landfill,
including, without limitation, methane, by reason of
decomposition of landfill waste.
(4) MPCA: The Minnesota Pollution Control Agency or any successor
agency performing the functions of the Minnesota Pollution
Control Agency.
Section 3. Property Included In District. The following
described property is included within the designated Landfill Gas
Control District. The boundary of the district is as follows:
(To be Described At A Later Date)
Section 4. Entry By City. The City, and persons claiming
under or through the City, shall have a right of entry onto any
parcel contained within the Landfill Gas Control District, for the
purpose of conducting drilling, boring or otherwise sampling, .
testing the soil or groundwater of any such parcel, or testing,
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. measuring or monitoring Landfill Gas emissions thereon or for the
installation or.. maintenance of wells, monitoring or measuring
, devices, or the carrying .out of any.remedial activity required by
the MPCA. Any such entry shall be made at reasonable times and
upon reasonable advance notice to any owner or person in
possession.
Section 5. Activities Prohibited In Landfill Gas Control
District. No building or structure shall be erected, occupied or
maintained in or upon any property located within the Landfill Gas
Control District; nor shall any trade or business be conducted
therein or thereon nor shall any personal property, fixtures or
equipment be placed,. located or stored therein or thereon in...
violation of such orders, directives, regulations and requirements
issued or promulgated from time to time by the MPCA and unless the
City of. Hopkins .shall have issued a license therefor duly applied
for to said city subject to such terms, conditions, restrictions
and for such duration as maybe established by the MPCA and such
addi tional terms and conditions .. as may be imposed by the . Ci ty.
Section 6. Removal Of Prohibi ted Propertv. Upon
determination by the City that a violation exists, the City shall
direct abatement of such violation by written order served
personally or by certified. mail upon the owner or party in
possession specifying the violation, the action necessary to cure
the violation, the time frame in which the violation must be abated
, . and notice that the City will undertake such abatement required
, ..' unless otherwise corrected wi thin the period indicated in the
notice and charge .all costs incurred by the City against the real
estate as.a, special assessment or against the responsible party.
Abatement may include without .limi tation, . removal of existing
structures or other improvements or removal of personal property,
fixtures or equipment located thereon. .
Section 7. This ordinance~i~~ effective subject to the
following: \S . '0
First Reading ~@ ~ December 21, 1993
Second Reading \~ ~ January 4, 1994
Date of Publication January 12, 1994
Effective Date of Ordinance February 1, 1994
CharlesD. Redepenning, Mayor
Attest:
.~ James A. Genellie, City Clerk