Memo/Review of Henn. Co Proposal Temp. Store Incinerator Ash08/03/1989 14 :28 DOHERTY RUMBLE & BUTLER
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MEMORANDUM
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TO: City of Hopkins Planning Commission
and City Council ?/embers
FRONT; Dick Nowlin, Doherty Rumble & Butler, P.A.
DAM July 26, 1989
RE: Review of Hennepih County Proposal to
Temporarily Store Incinerator Ash at the
Hennepin County Public Works Facility in Hopkins
Hennepin County has proposed to store up to 20,000 tons
of ash produced at the Minneapolis Incinerator (the incinerator)
in a; storage building currently used for storing salt on its
Publlic Works Facility Site in Hopkins (the Proposal). The
Proposal is now being reviewed by the Minnesota Pollution Control
Agency (MPCA) and the Metropolitan Council for purposes of
issuing a temporary ash storage permit to Hennepin County.
Question has arisen as to the City of Hopkins' review
respDnsibility and authority with respect to the Proposal. This
memo is written to provide background and comments regarding the
legal. framework applicable to the City's review. It has been
written with assistance from City staff.
I. GENERAL BACKGROUND
Hennepin County indicated at that the Metropolitan
Council's Environmental Committee Hearing on July 19th that it
began developing the Proposal in early July because of delays
experienced in securing authorization to dispose of the
incinerator's ash at the'Woodlake Landfill in Medina. BFI is
requesting the issuance of Type I and Type II Ash Storage Permits
for he incinerator's ash at the Woodlake Landfill. These
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applications have been in process since February, 1989 and have
thus far only received Planning Commission review. County staff
indiicated that the earliest a Type I Permit could be issued would
be November. The County indicated that they were also discussing
the !possibility of disposing the ash outside the Metropolitan
Area with Olmsted County which has an Ash Disposal Facility in
Dodge County. Dodge County has now vetoed this alternative.
It is extremely difficult to predict the date by which
thelWoodlake Ash Storage Permit will be issued due to the
numerous opportunities for delay built into the State and local
permitting process. Both the environmental review process and
theIMPCA permitting process together with litigation could delay
ash !disposal at Woodlake by more than a year beyond the November
1989' target date. A Contested Case Hearing Request on the permit
has !already been received by the MPCA for the Woodlake
proposal. If the MPCA Board were to order a contested case
hearing, a one year delay could be experienced in securing either
the Type I or Type II Storage Facility Permits.
The MPCA's regulatory program vis -a -vis incinerator ash
disposal is currently being developed. A law was passed in 1988,
Minn;. Stat. §115A.97, which classed incinerator ash as a "special
waste" and required the preparation of regulations for ash
disposal management by June 30, 1990. A temporary regulatory
program governing ash storage was approved by the MPCA in
Septjember, 1988. This program authorizes the issuance of Type I
and !Type II Storage Permits. A Type I Permit is a temporary
storage authorization which requires the removal of ash from the
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permitted location within a specific time frame. A Type II
Permit: requires storage at a facility constructed with a liner
andleachate collection system. These facilities could become
permanent disposal locations. The proposed storage in the Public
Works Building in Hopkins will involve the issuance of a Type I
Storage Permit.
II. GENERAL MUNICIPAL AUTHORITY
Though solid and hazardous waste treatment, storage and
disOosal facilities are subject to extensive State and, in some
instances Federal regulation, whether temporary or permanent in
nature, these facilities also can be subject to local (municipal
andicounty) land use and environmental regulatory controls.
Minnesota law does not pre - empt local regulation of these
facilities, and as a result, such facilities are subject to the
normal land use regulatory powers authorized by the Municipal
Planning Act including zoning ordinances. As with other
facilities which are regulated by both State agencies and local
authorities, the regulatory interaction is governed by certain
common law principals. Local permit provisions governing state
regulated facilities cannot conflict with the state regulatory
and permit provisions. An Attorney General's opinion discussing
the !Conflict principal in relation to a landfill is attached as
Appekdix I. Local authority, vis -a -vis the regulation of waste
facilities was recently reaffirmed by the Minnesota Court of
Appeals in the case of Peter Sherner, et al, v. Ambrose Culliton,
et al., 382 N.W. 2d, 562 (Minn.app. 1986) which sustained the
power of a township to preclude the disposal of sewage sludge
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within its jurisdiction. This opinion is also attached. Because
of this legal context, the City of Hopkins has the authority and
responsibility to review Hennepin County's proposal in relation
to tfhe provisions of its zoning ordinance and other official
controls.
III. CHARACTERIZATION OF THE PROPOSAL
To determine the type of local review which must be
performed in relation to the Proposal, it must be characterized
oz defined Characterization clearly depends on the facts and
impacts associated with the proposal, some of which are at this
point unknown. As a result the following discussion is somewhat
tentiative and is based on current information.
Special Waste
Both Federal and State legislators and regulatory
authorities have been for some time in a quandary as
to how to classify incinerator ash in relation to
solid and hazardous waste treatment, storage, and
disposal rules. Some incinerator ash from certain
facilities has been tested to be a hazardous waste
under leachate toxicity tests. Generally, this ash
has contained relatively large concentrations of
heavy metals (lead and cadmium) as well as other
contaminents. It is also generally established that
fly ash exhibits more toxicity characteristics than
does bottom ash. Incinerator proponents and others,
however, have questioned the legitimacy of the
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various testing measures used for incinerator ash.
Thus far, ash has not been officially characterized
as a hazardous waste. As mentioned, Minnesota, by
law, treats incinerator ash as a special waste which
is neither a hazardous nor solid waste for the
purpose of applying treatment, storage, and disposal
regulatory requirements.
"Waste Facility "?
There is a legitimate question as to whether the
temporary storage of incinerator ash within a
building is a "waste facility ". The City's zoning
ordinance provides no definition of "waste
facility." "Waste facility" in common terminology
would imply some sort of permanent facility designed
exclusively for the storage or disposal of ash. The
primary state definition of "waste facility" is
contained in Minn. Stat. §115A.03, subd. 35 and
reads as follows:
"Waste facility means all property, read, or
personal, including negative and positive
easements and water and air rights, which is or
may be needed or useful for the processing or
disposal of waste, except property for the
collection of the waste and property used
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primarily for the manufacture of scrap metal or
paper. Waste facility includes but is not
limited to transfer stations, processing
facilities, and disposal sites and facilities."
Since this definition references treatment and
disposal (not storage) facilities, and includes
facilities of a permanent nature, it could be
concluded that the temporary ash storage site is not
a "waste facility" for purposes of the City's zoning
ordinance.
c. Temporary Storage Site
Regardless of how long Hennepin County has to store
the ash at this location, it must under MPCA's
existing procedures and new regulations, eventually
be removed and placed elsewhere. The ash disposal
procedures currently in existence and those being
developed require a lined facility, and a leachate
collection system to capture any liquids emanating
from the waste deposit. The Hennepin County Garage
is lined only by an asphalt pad and will have no
leachate collection system. As a result it can
never be a permanent storage site.
IV. ENVIRQNMENTAL REVIEW REQUIREMENTS
Whether an EIS or an EAW needs to be prepared for the
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Proposal depends on its characterization and the application of
M Rules Pts. 4410.0200 to 4410.5600.
A review of Minn. Rules Pt. 4410.4300 dealing with
mandatory EAWs, including the provisions relating to storage
facilities, hazardous waste and solid waste, indicates that a
temporary storage facility for incinerator ash does not fall
wittiin any of the categories for which a mandatory EAW is
required. An EAW is mandatory for "mixed municipal solid waste
energy recovery facility ash landfill" (See subp. 17G), but the
Hennepin County Garage is not a landfill.
A review of Minn. Rules Pt. 4410.4400 (mandatory EIS),
including provisions relating to solid and hazardous waste,
indicates that a temporary storage facility for incinerator ash
doe4 not fall within any of the categories for which a mandatory
EISIis required.
The proposal, however, does not fall within any of the
exerdptions to EIS /EAW preparation requirements contained in Minn.
Rules Pt. 4410.4600 except if it could be said to be a "minor
temporary use of land having negligible or no permanent effect on
theienvironment ". (See subp. 22.C.)
As a result, the City has the authority to determine
whether a discretionary EAW should be prepared for the proposal
since Minn. Rules Pt. 4410.4500 provides that:
"A governmental unit with jurisdiction may order the
preparation of an EAW for any project that does not exceed
the mandatory thresholds designated in Pt. 4410.4300 or
4410.4400. If a governmental unit determines that because
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of the nature or location of the proposed project the
project may have the potential for significant
environmental effects, and the project is not exempted
pursuant to Pt. 4410.4600."
V. ZONING BACKGROUND
Zoning treatment of the Proposal depends on its location
and characteristics, applicable zoning provisions and
determinations vis-a-vis discretionary interpretations by the
City Council, Zoning Administrator and City Attorney.
The Hennepin County proposal is located in an 1-2
Dis Section 540.0 the Zoning Ordinance does not list
temporary ash or waste storage as a permitted use. It does
authorize chemical and allied products, petroleum storage, and
building materials yards as permitted uses. Likewise, a
temporary ash storage facility is not listed as a conditional use
in the Z Districts under Section 540.03 though "public utility
structures" and "junk yards" are listed as potential conditional
uses.
It also does not appear that a temporary ash storage
facility is a permitted accessory use under Section 540.05. Item
(d) of that section defines accessory uses to include "incidental
use customary in the operation of permitted or conditional
user" Since ash storage is incidental to an incinerator and
sinde incinerators are not permitted within the District, it
wound not appear that this temporary storage proposal would fall
within that language.
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In summary, it would appear that the Proposal could be
dealt with under Section 525.13, Subd. 1 which authorizes the
clagsification of an unlisted but similar use as a conditional
use in a specific district. Waste disposal facilities in other
jur are typically authorized by the issuance of a
conditional or special use permit. Conditional and special use
perr have been utilized elsewhere because of concern about the
MPC1}.s lack of attention to local land use impacts from these
facilities as well as the inability to secure prompt and
efficient enforcement action from the MPCA. Conditional and
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special use permits provide the situs jurisdiction with more
speOific protections vis -a -vis adverse land use impacts and
provide local enforcement opportunities should anything go awry.
Hennepin County's Proposal could be addressed by some
mechanism other than a special or conditional use permit. On the
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other hand, given the temporary but relatively unknown duration
of the storage operation as well as its potential effects, it
would appear appropriate to develop a conditional use permit
applicable for the Proposal.
Another option for the City was created by the 1989
Legislature. Minn. Laws 1989, Chapter 200 now authorizes the
establishment of "interim uses" under the Municipal Planning
Act; An "interim use" is defined as a "temporary use of property
until a particular date, until the occurrence of a particular
event, or until zoning regulations no longer permit it." Minn.
Statf. 5462.3597. This alternative is a variation on a
conditional use permit and was enacted specifically to address
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theisituation where a city wants to limit the duration of a
particular temporary use Hennepin County comrnittment and the
City's concern about the length of storage authorization, it
would be appropriate for the City to classify the temporary ash
storage facility as an interim use in the I -2 District. A copy
of chapter 200 is attached.
Encliosures
FDNngem10 0
F.D.N.
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