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5.1. PCSR 10-25-2005 . . . ITEM /I 5.1. MEMORANDUM TO: Planning Commission FROM: Rebecca Haug, Environmental Administrator DATE: October 25, 2005 SUBJECT: Solid Waste Facility License and Conditional Use Permit Amendment for NRG Request - Amend the Solid Waste Facility License and Conditional Use Permit for NRG NRG is proposing to amend their Solid Waste Facility License and Conditional Use Permit. The City Council will consider both the CUP and Solid Waste Facility License for this facility. The Planning Commission is only officially charged with the review of the CUP. Both the license and CUP are included with this memo and the City Council will consider comments on the license from the Planning Commission. Attachments The following attachments are included with this memo: . A vicinity map showing the location of the facility . Site map for the facility . The current CUP and SWFL for the facility Staff Review In the attached CUP and license, language proposed to be deleted has a line through it and language proposed to be added is underlined. There are a lot of proposed changes; some by NRG and some by staff. Most of the changes can be considered housekeeping. For easier reference, staff placed an "X" next to those items in the attached CUP and license discussed in this memo. NRG's CUP I. Item I, page 2 - NRG proposes "incineration residue (Residue)" be changed to "incinerated RDF ash". Staff is in agreement with this change. . 2. Item 2, page 2 - NRG proposes, "There shall be no gravel or dirt areas on the facility site" be deleted. Staff is in agreement with this change. Item 14, page 4 - NRG proposes "Permittee shall test storm water run-off captured in the on-site retention/detention pond, and shall provide written reports on these test results to the City, as provided in the rain water run-off sampling plan submitted by Permittee. If the required tests indicate water quality problems in rainwater run-off, Permittee shall submit to the City for approval a plan for addressing such problems and shall implement such solutions as are required by City." be replaced by "Testing as requested by State agencies of storm water run-off captured in the on-site retention/detention pond". Staff recommends adding "Permittee shall provide City evidence of storm water NPDES permit coverage for industrial activities and a copy of the permittee's Storm Water Pollution Prevention Plan." This has become a standard requirement for projects in the City that impact over I acre. . . 3. NRG's Solid Waste Facility License I. Item 10, page 5 - NRG proposes to add "or (3) 16Sh Avenue to Highway 10 to Main Street to Highway 169 into the GRE facility; or (4) from the facility via 165th Avenue to Highway 10 to 17/'t Avenue to Twin Lakes Road to Main Street to Highway 169 into the GRE Facility." Staff is in agreement with this change. 2. Item 12, page 6 - NRG proposes to delete "on a temporary basis" and "Open top trailers shall be allowed for public drop off of solid waste, but shall be covered at all times when the public drop off is not open." Staff is in agreement with this change. 3. Item 13, page 6 - NRG proposes "Permittee shall test storm water run-off captured in the on-site retention/detention pond, and shall provide written reports on these test results to the City, as provided in the rain water run-off sampling plan submitted by Permittee. If the required tests indicate water quality problems in rainwater run-off, Permittee shall submit to the City for approval a plan for addressing such problems and shall implement such solutions as are required by City." be replaced by "Testing as requested by State agencies of storm water run- off captured in the on-site retention/detention pond". Staff recommends adding "Permittee shall provide City evidence of storm water NPDES permit coverage for industrial activities and a copy of the permittee's Storm Water Pollution Prevention Plan." This has become a standard requirement for projects in the City that impact over I acre. . Other issues Occasionally, NRG experiences explosions caused by illegally disposed of materials. The good news is the explosion suppression system and bunker keep damage and injuries in check and fire suppression water is contained in the building. NRG encourages the Planning Commission to visit the facility prior to your meeting. Call Ed Stoutenburg at (763) 441-3800 to arrange a time to visit the facility. . -- Location Map <if N Case Number: CU 05-20 NRG . ~~~Yfi'.& ~L."~.o:._.'_'" ~6UJIIIIt.. ....4Ii.1.,~-...... 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AMENDED CONDITIONAL USE PERMIT NO. 86-01 For NRG Refuse Derived Fuel Resource Recovery Facility This Amended Conditional Use Permit No. 86-01 was approved by the City Council ofthe City of Elk River on December 1, 1986, and amended by the City of Elk River on December 17, 1990, January 27, 1992, January 18, 1994, January 15, 1996, December 20, 1999 and February 9,2004, subject to the following terms: 1. This Conditional Use Permit No. 86-01 (the Permit) is for the construction and operation, on property legally described as follows: . The Southwest one-quarter of the Southeast one-quarter (SW 1/4 of the SE 1/4) of Section 11, Township 32, Range 26, Sherburne County, Minnesota, according to the Government Land Survey, except the South 468 feet ofthe West 495 thereof, subject to highway easement of record (the Site), . of the Anoka County Refuse Derived Fuel Resource Recovery Facility as described in the Draft and Final Environmental Impact Statements for The Facility dated April 1986 and July 1986; and as described in the Combined Air and Solid Waste Permit No. 14100003-003 for an Air Emission Facility, Air Pollution Control Equipment and Solid Waste Processing System and Permit for the construction and operation of a Waste Processing Facility and System, No. SW-305, issued by the Minnesota Pollution Control Agency (MPCA); and as described in (1) "Response to RDF Information Sheet Issued by the Concerned Citizens Against the Proposed Garbage Project," transmitted to the City by Correspondence dated July 24, 1986, and (2) "Responses to the City of Elk River Concerns" transmitted to Mayor Richard Hinkle on August 19, 1986; and (3) correspondence from the Permittee to Mayor Richard Hinkle dated October 13, 1986, and as further described in Permittee's November 28, 1989, application for renewal of conditional us permit and Permittee's correspondence of April 2, 1990, April 17, 1990, July 2,1990, August 3, 1990, and September 6, 1990, to the City; in Permittee's November 20, 1991, application for renewal of the Conditional Use Permit; in s:\b&e \stever\nrg\nrgcup.doc 1 Permitee's February 1, 1993, application for renewal ofthe Conditional Use Permit; in Permitee's November 8, 1995, application for renewal of the Conditional Use Permit; in Permitee's November 2, 1999; and in Permittee's December 22,2004, application for renewal of the Conditional Use Permit; all of which have been provided to the City by the Permittee in support of the application for this Amended Conditional Use Permit and collectively describe the Facility authorized by the Permit. The Facility consists of three (3) integrated components located in the City: (1) A facility for receiving municipal solid waste and processing it into refuse-derived fuel (Processing Facility); (2) A facility for the incineration of refuse derived fuel (burn facility); and (3) The movement of vehicles transporting municipal solid waste (MSW), refuse-derived fuel (RDF), rejected municipal solid waste (Rejects), and incineratieHated RDF ash residue (Residue). So long as RDF is incinerated in the City, the conditions of this Permit which relate to the Burn Facility and Residue shall be in full force and effect. Construction or operation in violation of any of the material statements of fact, factual information, or representations in the referenced documents shall be deemed to be a violation of the Permit and all such documents are considered to be and are hereby made a part of the Permit. . 2. Building construction, driveways, parking, grading, utilities, surface water management, erosion control, landscaping, fencing, and screening for the Processing Facility shall be provided substantially in accordance with the plans submitted by Northern States Power Company with the original application of a conditional use permit and the November 28, 1989 application for renewal of conditional use permit, which are herby made a part of this Permit. In addition, these plans shall be further revised to provide a hard surfaced, diked area to drop hot loads of processed RDF so that they can be put out and fire suppression water retained; and to further provide that all areas on the facility site are either hard surfaced parking and drive areas, pea rock or asphalt shavings for equipment storage, or landscaped areas with grass. There shall be no gravel or dirt areas on the facility site. The revised plans shall be submitted by December 31, 1990, and all improvements installed by September 30, 1991. . 3. All utility and street construction plans and specifications as presented by Northern States Power Company for the Facility and servicing streets must be prepared by a Registered Civil Engineer in accordance with directions of and approved by the City Engineer. 4. All building plans and specifications must be approved by the City Building Inspector and Fire Chief. 5. Approval of driveway entrances, if needed, on State and County highways shall be secured from the appropriate agencies and filed with the City Building and Environmental Administrator prior to issuance of any building . s:\b&e \stever\nrg\nrgcup.doc 2 . . . permit. Street lighting and acceleration and deceleration lanes for Highway 10 at the intersection of 165th Avenue and Highway 10 shall be installed by City to provide safe access to Highway 10 for trucks entering and leaving the Facility. Failure by Permittee to reimburse the City for the installation of said improvements within thirty (30) days of receiving an invoice for all or any part of said improvements shall be cause for revocation of this Permit. 6. The City shall have the right of access to all areas of the Processing Facility and site for the purpose of inspection to ensure compliance with all of the terms and conditions of this permit and the Solid Waste Facility License for the Facility. The City need not give prior notice to the Permittee for personnel to access the Processing Facility or site during waste receiving, Monday through Saturday, or if an explosion or other emergency occurs. At any other time, at least twelve (12) hours prior notice to the Permittee is required. Such access shall be in accordance with reasonable safety standards and reasonable proprietary information requirements. Alternatively, the City may, in its discretion, upon thirty (30) days notice to Permittee, to further ensure compliance with the restrictions in this Conditional Use Permit and in Chapter 58, Article III of the City Code of Ordinances on the handling and processing of hazardous and dangerous waste, and to protect the public health, safety, and general welfare of the citizens of Elk River, place full-time City inspectors at the Facility twenty-four (24) hours a day. These inspectors shall have the right of access to all areas of the Facility, twenty-four (24) hours a day, for the purposes of inspection to ensure compliance with all of the terms and conditions of this Conditional Use Permit, the license for the Facility, and Chapter 58, Article III ofthe City Code. The on-site City inspector shall have the right, at any time, to take one or more of the following actions: A. Order a load ofMSW inspected, pursuant to the procedures set forth in the license for the Facility; B. Order the Facility cleaned, if a violation of the dust control plan for the Facility is observed; or C. Order the Facility shut down if necessary to bring it into compliance with the dust control plan or any other term or condition of this Conditional Use Permit, the license for the Facility, or Chapter 58, Article III ofthe City Code. 7. All employee or visitor motor vehicles associated with Facility operation shall be parked on Facility property, and not on adjacent lands not owned by Permittee or adjacent streets. Adequate facilities must be provided to ensure that no vehicle desiring entry into the Processing Facility during permitted receiving hours will have to wait outside the perimeter of the Processing Facility site, s:\b&e \stever\nrg\nrgcup.doc 3 8. The City shall be notified by the Permittee immediately upon the occurrence of any explosion, fire, or other emergency at the Facility; upon the discovery, release or spill of hazardous or dangerous materials, as defmed in the City of Elk River Solid Waste Ordinance, at the Facility; and of any violations of the conditions of the Permit, Air Emission Facility Permit No. 1410000-003 or Permit for a Waste Processing Facility and System, No. SW-305. The specific requirements for how, when and who to notify at the City shall be set forth in a separate letter from City Staff to Permittee. This letter may be revised or supplemented by City staff from time to time as necessary to address the City's needs for notification. . 9. This Permit authorizes an average annual throughput of one thousand five hundred twenty-six (1,526) tons per day ofMSW. 10. All MSW, RDF, Reject or Residue-hauling truck traffic entering or exiting the Processing Facility or the Bum Facility shall use only those highways and streets as allowed in writing by the City Council, avoiding the use of Main Street and residential streets, if at all possible. Truck traffic originating in the City may use other public streets. 11. The Facility may operate twenty-four (24) hours a day. However, the City reserves the right to restrict the hours of operation of the Facility to normal business hours if noise emanating from the Facility to surrounding residential properties is unacceptable. Receiving and transporting MSW and rejects at the Processing Facility may take place twenty-four (24) hours a day, Monday through Saturday. However, the City reserves the right to restrict further the hours of receiving and transporting MSW at the processing facility if necessary to protect the public health, safety, and welfare. RDF may be transported twenty-four (24) hours a day. At the Processing Facility, all truck and Processing Facility wash water shall be diverted and captured in a retention tank so that it does not enter the groundwater system. . 12. The processing Facility shall be enclosed by a minimum six-foot and no more that eight-foot high chain link fence. 13. The Processing Facility shall undertake no processing ofMSW until all appropriate items in the Permit and the building permit are completed and finally inspected by the City of Elk River Building and Environmental. Administrator and a written certificate of occupancy has been issued. 14. Permittee shall test Testing as requested by State agencies of storm water run- off captured in the on-site retention/detention pond, and shall provide v,Titten reports on these test results to the City, as provided in the rain ',vater run off sampling plan submitted by Permittee. If the required tests indicate 'linter quality problems in raimvater: run off, Permittee shall submit to the City for approyal a plan for addressing such problems and shall implement such . s:\b&e \stever\nrg\nrgcup.doc 4 . . 20. . solutions as are required by City. Permittee shall provide City evidence of storm water NPDES permit coverage for industrial activities and a coPy of the permittee's Storm Water Pollution Prevention Plan 15. The Permittee shall engage in a regular and routine litter maintenance and removal program extending (a) one-half mile east of the Processing Facility entrance on 165th Avenue Northwest, (b) southeast on Highway 10 from the intersection of 165th Avenue Northwest with Highway 10 to the eastern city limits, (c) northwest on Highway 10 from said intersection to the intersection of Highway 10 and Highway 169, and (d) any other areas adversely impacted by debris related to Facility operations as may be determined by the City. Litter shall be removed from these areas no less than once per week, and more often if necessary because of spills or complaints from neighboring property owners, to ensure that these areas are kept free of litter generated by truck traffic traveling to and from the Facility. In addition, Permittee shall inspect all trucks leaving the plant to ensure that they are either fully enclosed or covered, and/or clean, and will not spread litter on surrounding streets and roadways as they leave. 16. The Permittee shall immediately pay to reimburse the City for any and all expenses associated with initial Processing Facility-related improvements on 165th Avenue from the Processing Facility entrance to the intersection with Highway 10, and on any other city streets used by vehicles transporting RDF or Residue which may serve as primary access for the Burn Facility. For the foregoing street, the Permittee shall also reimburse the City for all patching and repair expenses in excess ofthe City's normal street maintenance program. Permittee shall also reimburse the City for any and all expenses associated with installation of the acceleration and decelerations and lighting at the intersection of highway 10 and 165th Avenue. 17. No exterior storage ofMSW, RDF, Rejects or Residue shall be allowed, except in enclosed trailers or trucks. 18. The Permittee represents and warrants to the City that the Facility shall at all times comply with all applicable city, county, state, and federal laws and regulations, including without limitation, environmental laws and regulations. 19. All Mixed Municipal Solid Waste not burned, including unburned RDF, RDF process Rejects and RDF Residues, shall be disposed of in strict compliance with the requirements of Chapter 58, Article III of the City Code and Chapter 7035 of Minnesota Rules. Responsibility for Costs: A. The Permittee shall pay aJI direct costs incurred by it or the City in conjunction with the application for this Permit and development of the s: \b&e \stever \nrg \nrgcup .doc 5 Facility, including without limitation legal, planning, consulting, engineering, and inspection expenses (including a reasonable charge for City stafftime) incurred in connection with approval of the Facility, the preparation of this Permit, and all costs and expenses incurred by the City in monitoring and inspecting the construction of the Facility, except those costs and expenses normally covered by the building permit fee. . B. The Permittee shall defend and hold the City, its officers, and employees harmless from all claims made by third parties for damages sustained or costs incurred resulting from Facility approval, construction, and operation. The Permittee shall indemnify the City, its officers, and employees for all costs, damages, or expenses which the City any payor incur in consequence of such claims, including attorneys' fees. The aforesaid defense, indemnity, and hold harmless provisions shall not be in effect from and after the date that the occurrence giving rise to the claim in questions is determined by a court with jurisdiction over the matter to have been caused solely by the willful conduct or negligence of the City, Its officers or employees. Until the date of such judicial determination, the defense hold harmless and indemnification provisions shall be in full force and effect and in the event of such judicial determination, the City shall reimburse the Permittee all of its costs and expenses incurred on behalf of the City in connection with the foregoing. Nothing herein shall be construed to prohibit the City from selecting its own counsel to act as co- counsel in the defense of such matters. The Permittee agrees to indemnify, defend, and hold harmless the City of Elk River, its Council members, officers, and employees trom any claims or damages arising out of any acts or omissions on the part of the Permittee and any of the participating counties or their commissioners, agents, or employees in the performance of the counties' contractual obligations under the agreements with the Permittee, from any strict liability imposed upon the City pursuant to Minn. Stat. 115B.Ol, et seq. for the release of hazardous waste at the Facility and from any remedial actions, clean-ups, removal, closure, post-closure activities, or monitoring requirements or costs associated therewith. This indemnity, hold harmless, and defense obligation on the part of the Permittee shall include, but not be limited to, any and all actions, claims, requirements, or claims for damages arising out of the granting of this Permit for the Facility or any variance associated with the height ofthe proposed Processing Facility and the inability ofthe City to properly respond to fire calls at the Processing Facility due to the limitations of its equipment or personnel, but shall not include willful and unjustified failure to respond to fire calls at the Processing Facility. The indemnities provided in the paragraph B are subject to the limits of liability set forth in Minnesota Statutes Sections 466.04 and 466.06, as amended from time to time, if effective as to the particular indemnified action or claim. Nothing}n this Permit is intended to waive the immunities to which the City is entitled by law. . . s:\b&e \stever\nrg\nrgcup.doc 6 . C. The Permittee waives and releases the City from all claims, direct or indirect, arising or claimed to have arisen out of all actions or inactions relating to the City's consideration or issuance of the Permit. D. The Permittee shall reimburse the City for all costs incurred in enforcement of this Permit, including consultant and attorneys' fees. Failure by Permittee to reimburse City within forty-five (45) days of receiving an invoice for any costs for which reimbursement is required by the terms of this Conditional Use Permit or the Licensefor the Facility, shall be cause for revocation of this Permit. 21. Miscellaneous: A. This Permit and its conditions shall be binding upon each of the Permittees, jointly and severally, referred to collectively in this Permit in the singular as Permittee, and the successors and assigns of anyone of them. The assignment by any Permittee of its interest in the Facility shall not relieve it of responsibility and liability under this Permit without the written consent ofthe City, which consent shall not be unreasonably withheld. . B. Violation ofthe terms of this Permit or of MPCA Permit No. SW-305 or Air Emission Facility Permit No. 14100003-003 by the Permittee shall entitle the City to any and all remedies available at law or in equity. Ifthe City determines that such violation results in a clear and imminent danger to the health and safety of the City's residents, the City's remedies shall include immediate cessation of operation or construction, or both, without the necessity of a judicial order in advance of the same. In all other instances, the immediate cessation remedy shall be preceded by a judicial order. A revocation or suspension of this Permit shall be only as to the violating component of the Facility, not as to the components noUn violation. C. If any portion, section subsection, sentence, clause, paragraph, or phrase of this Permit is for any reason held invalid, such decision shall not affect the validity of the remaining portions of the Permit. D. The action or inaction of the City shall not constitute a waiver or amendment to the provisions ofthis Permit. To be binding, amendments or waivers shall be in writing, signed by the Permittee, and approved by written resolution of the City Council. The City's failure to promptly take legal action to enforce this Permit shall not be a waiver or release. . s:\b&e \stever\nrg\nrgcup.doc 7 22. Notices: Required notice to the Permittee shall be in writing, and shall be either hand delivered to the Permittee, its employees or agents, or mailed to the Permittee by certified or registered mail at the following addresses: . Elk River Resource Recovery Facility 10700 165th Avenue N.W. Elk River MN 55330 Attention: Plant Manager GRE ATTN: Manager, Elk River Station 17845 U.S. Highway 10 Elk River MN 55330-0800 Notice to the City shall be in writing, and shall be either hand delivered to the Building and Environmental Administrator, or mailed to the City by certified or registered mail in care of the Building and Environmental Administrator at the following address: City of Elk River 13065 Orono Parkway NW Elk River MN 55330 Attention: Environmental Administrator . 23. Review: The terms and conditions of this Permit and compliance by the Permittee shall be subject to review by the City prior to January 31,2008. The City reserves the right to revoke, amend, or impose additional conditions on the Facility or the Permittee at such time taking into account the advancement of scientific knowledge relative to the health effects of the Facility, the Permittee's degree of compliance with current Permit conditions, and the criteria and standards ofthe City Code and Minnesota law. The undersigned, on behalf of the respective Permittees, jointly and severally, represent and bind their respective Permittees to the terms of this Permit, having fully examined this Permit and all materials referred to herein and agree to all the conditions set forth. Each person signing below on behalf of a Permittee does so upon the authority is attached hereto. PERMITTEE: NRG . s: \b&e\stever \nrg \nrgcup .doc 8 . Dated: By: Its: STATE OF MINNESOTA ) ) COUNTY OF SHERBURNE ) day of ,the The foregoing instrument was acknowledged before me this ,2005, by ofNRG, a Minnesota corporation, on behalf of the corporation. . Drafted by: Environmental Department City of Elk River . s:\b&e \stever\nrg\nrgcup.doc 9 . . . . CITY OF ELK RIVER SOLID WASTE FACILITY LICENSE NRG WASTE PROCESSING FACILITY This Solid Waste Facility License (the License) is hereby issued by the City of Elk River (the City), pursuant to Chapter 58, Article III (the Solid Waste Facilities Ordinance) of the City of Elk River Code of Ordinances (the City Code) to NRG (Licensee) for the establishment and operation of a Waste Processing Facility (the Facility) upon the property legally described as: The Southwest one-quarter of the Southeast one':'quarter (SWl/4 of the SEl/4) of Section 11, Township 32, Range 26, according to Government Land Survey, except the South 468 feet of the West 495 feet thereof, subject to highway easement of record (the Site). I. This License authorizes the establishment and operation of a Waste Processing Facility which will process up to a maximum annual average of one thousand, five hundred twenty-six (1,526) tons per day of municipal solid waste (MSW) into refuse derived fuel (RDF), as described in: . Licensee's "Application for a Solid Waste Facility License to Permit the Operation of a Waste Processing Facility" and Licensee's November 28, 1989 application for renewal of the License for the Facility and supplemental correspondence from Licensee to the City dated April 2, 1990, April 17, 1990, July 2, 1990, August 3, 1990 and September 6, 1990; Licensee's November 20, 1991, application for renewal of the License; Licensee's February 1, 1993, application for renewal of the License; Licensee's November 8, 1995, application for renewal of the License; Licensee's November 2, 1999, application for renewal of the license; Licensee's December 22, 2003, application for renewal of the license; and Licensee's October 12, 2005, application for renewal of the license 2. The Draft and Final Environmental Impact Statements for the Anoka County Refuse Derived Fuel Resource Recovery Facility, dated April 1986, and July 1986; . 3. The Combined Air and Solid Waste Permit No. 14100003-003 for an Air Emission Facility, Air pollution Control Equipment, and Solid Waste Processing System, and ?ermit for the Construction and Operation of a Waste Processing Facility, No. SW-305 (collectively referred to as the 1 MPCA Permit), issued by the Minnesota Pollution Control Agency (MPCA). . II. This License is issued subject to the requirements and conditions set forth below in Section III, which are imposed for the purposes of: 1. Satisfying the standards set forth in the Elk River City Code of Ordinances, including Chapter 58, Article III and Chapter 30 thereof; 2. Promoting compatibility with and minimizing any potential adverse effects upon properties and neighborhoods adjacent to the Facility or within the City; 3. Protecting the public health, safety, and general welfare; 4. Avoiding traffic congestion or hazard; and 5. Preventing land, water, or air pollution. III. Requirements and Conditions: . 1. Incorporation of Plans and Application Materials. Construction and operation of the Facility shall be in accordance with the plans and other materials submitted by Licensee to the City and the MPCA, including those identified above in Section I of this License, all of which are hereby made a part of this License. Construction or operation in violation of any of the material statements of fact, factual information, or representations made by the Licensee to !he City or MPCA shall be deemed to bea violation of this License. 2. Submission of Final Plans. Final plans and specifications for the Facility must be reviewed and approved by City staff and/or consultants prior to the issuance of a building permit for the Facility. 3. Incorporation of MPCA Permit. The terms and conditions of the MPCA Permit are specifically incorporated into this License and the Licensee shall comply with all such terms and conditions including, without limitation, the "Operating Conditions," "Special Operating Requirements," and "General Conditions: of the MPCA Permit and that portion of the MPCA Permit denoted "Permit No. SW-305." Any violation of the MPCA Permit will constitute a violation of the terms of this license. Licensee Shl;lll notify the City immediately of any violation of . 2 . the terms, conditions, or requirements of the MPCA Permit, and shall advise the City as to what steps will be taken to correct said violations. 4. Incorporation of Amendments to MPCA Permit. No amendment or change to any term, condition, or requirement of the MPCA Permit shall be incorporated into the License or become effective with respect to this License until the City has received notice of the proposed amendment and has specifically consented thereto by amending this License to incorporate the MPCA Permit Amendment. 5. Reporting Requirements. Copies of all plans, studies, reports, and other materials required to be submitted to the MPCA by Licensee shall be filed with the City, unless the City Building and Environmental Administrator or his designated representative specifically notifies Licensee in writing that copies of specific documents will not be necessary. Materials, which must be provided unless declined, include, with limitation, all plans and specifications; Operations Reports; residue management plans; annual residue reports; contingency disposal plans; and waste composition studies. . 6. Incorporated of Solid Waste Facilities Ordinance. The Facility and Licensee must at all times fully comply with the requirements of Chapter 58, Article III of the City Code, including specifically Sections 58-213 and 58-214. Any violation of the City Code will constitute a violation of the terms of this License. Licensee shall notify the City immediately of any such isolation and shall advise the City as to what steps will be taken to correct said violations. 7. Incorporation of City Zoning Ordinance and Conditional Permit. The Facility and Licensee must at all times comply with the terms and conditions of the conditional use permit issued for the facility (the "CUP") and with the City's Land Development Regulations Ordinance, including the performance standards set forth in Division 5, Subdivision V thereof. Any violation of the CUP or the Zoning Ordinance will constitute a violation of the terms of this License. Licensee shall notify the City immediately of any such violation and shall advise the City as to what steps will be taken to correct said violations. . 8. Hazardous and Dangerous Wastes. There shall be no processmg of hazardous or dangerous waste at the Facility. Temporary storage of Hazardous and Dangerous Wastes shall be allowed as provided by Chapter 58, Article III of the City Code. Licensee shall notify the City immediately upon the discovery, release, or spill of any hazardous or dangerous waste at the Facility and shall advise the City what steps will be taken to contain and cll:?an-up any release or spill of such waste. The specific requirements of how, when and how to notify at the City will be 3 set forth in a separate letter from City staff to Licensee, as provided in the I . CUP. Licensee shall develop a plan for identifying hazardous and dangerous wastes and the generators of such waste. This plan shall include, at a minimum, the following elements: A) Licensee shall thoroughly inspect a minimum of three (3) MSW loads per week (average) selected on a random basis. This inspection shall include opening and inspecting every garbage bag in each load and all other containers. B) Licensee shall submit to the City a quarterly report containing, at the minimum, the following information of each load inspected: (i) (ii) (iii) (iv) (v) (vi) The hauler and truck number of the load; Any hazardous or dangerous waste found in the load Licensee's efforts to identify the generator of any hazardous or dangerous waste found in the load. The identity, if known by Licensee, of the generator of any hazardous or dangerous waste found in the load; The actions which Licensee is taking against the generator and hauler of any such hazardous or dangerous waste found in the load; Licensee's record of disposal of any hazardous or dangerous waste found in the load. . C) Licensee shall advise the City Building and Environmental Administrator, if requested, when these loads are being inspected and the City shall have the right to have its personnel on-site to observe the inspection process. D) Licensee shall develop, for City approval, a dust control plan, including maximum allowable levels of dust in the air and on surfaces at the Facility; and shall schedule, on a regular basis, down time for dust control pursuant to the plan, major repairs and cleaning of the Facility. City shall have the right to thoroughly inspect the Facility for dust control, cleanliness and compliance with the other terms of this License during such down time. E) To further ensure compliance with restnctIOns in this License, and in Chapter 58, Article III of the City Code of Ordinances, on the handling and processing of hazardous and dangerous wastes, and to protect the public health, safety, and general welfare of the citizens of Elk River, the City shall have the right, upon thirty (30) days notice to Licensee, . 4 . to have an inspector at the Facility twenty-four (24) hours a day. These inspectors shall have the right of access to all areas of the Facility, twenty-four (24) hours a day, for the purposes of inspection to ensure compliance with all of the terms and conditions of this License, the conditional use permit for the Facility, and Chapter 58, Article III of the City Code. The on-site City inspector shall have the right at any time to take one or more of the following actions: (i) Order a load of MSW inspected, pursuant to the procedures set forth above; (ii) Order the Facility cleaned, if a violation of the dust control plan is observed; or (iii) Order the Facility shut down if necessary to bring it into. compliance with the dust control plan or any other term or condition of this License, the conditional use permit for the Facility, or Chapter 58, Article III of the City Code. . 9. RDF and Reiect Disposal. All Mixed Municipal Solid Waste not burned, including unburned RDF, RDF process Rejects and RDF Residues, shall be disposed of in strict compliance with the requirements of Chapter 58, Article III of the City Code and Chapter 7035 of Minnesota Rules. 10. RDF Truck Haul Routes. To minimize the impact of the Facility on other land uses and activities in the area, unless otherwise approved or directed by the Building and Environmental Administrator and his/her designees, all RDF hauling trucks transporting RDF from the Facility to the GRE Waste Burning Facility shall use the following routes: (1) from the facility via 165th Avenue to Highway 10 and from Highwa~ 10 directly into the GRE Facility; or (2) from the Facility via 165t Avenue to Highway 10, Highway 10 to Main Street, Main Street to GRE Drive, and from GRE Drive into the GRE Facility; or (3) 165th Avenue to Highway 10 to Main Street to Highway 169 into the GRE facility; or (4) from the facility via 165th Avenue to Highway 10 to 171 st Avenue to Twin Lakes Road to Main Street to Highway 169 into the GRE facility. RDF trucks returning from the GRE Facility directly onto Highway 169, Highway 169 to Highway 10, Highway 10 to 165th Avenue, and from 165th Avenue directly into the Facility. Incoming and outgoing traffic from the Facility shall be controlled by the Licensee in such a manner as to provide orderly and safe ingress and egress and so as not to impede or interfere with general traffic. . 11. Processing and Storage Areas to be Fully Enclosed. All MSW and RDF receIvmg, processing, and storage areas at the Facility shall be fully enclosed. Adequate facilities shall be provided to insure that under no 5 circumstances will there be any exterior storage of MSW or RDF, except in enclosed trailers or trucks. Licensee shall create a 20-foot firebreak between the conveyor on the tipping floor of the Facility to the garbage on the tipping floor. All RDF haul trucks leaving the facility shall be securely covered so that no RDF or other matter may escape. . 12. Hours. The Facility may operate twenty-four (24) hours a day eft-a temporary basis. The City reserves the right to restrict the hours of operation of the Facility to normal Business hours ifnoise emanating from the Facility to surrounding residential properties is unacceptable. Receiving and transporting MSW and rejects at the Processing Facility may take place twenty-four (24) hours a day. However, the City reserves the right to restrict further the hours of receiving and transporting MSW at the processing facility if necessary to protect the public health, safety, or general welfare. RDF may be transported twenty-four (24) hours a day. Licensee shall provide an area at the Facility for disposal of solid waste by individual citizens and shall, in cooperation with the City Council designate one night of the Monday through Friday week when individual citizens may enter and exit the Facility until 8:00 p.m. Open top trailers shall be allowed for public drop off of solid waste, but shall be covered at all times ':{hen the public drop off is not open. Licensee shall also . advertise on at least a quarterly basis the availability of this public drop off facility and the fee charged for it, and shall cooperate with the City in recycling efforts. . 13 . Wash Water and Storm Water Run off. All truck and facility wash water shall be diverted and captured in a retention tank so it does not enter the groundwater system. Captured wash down water shall be disposed of as required by the MPCA, and shall not be disposed of in the City's Waste Water Treatment Plant. Permittee shall test Testing as requested by State agencies of storm water run-off captured in the on-site retention/detention pond. and shall provide v.Titten reports on these test results to the City, as provided in the rain '.vater run off sampling plan submitted by Permittee. If the required tests indicate '.yater quality problems in rainwater run off, Permittee shall submit to the City for approval a plan for addressing such problems and shall implement such solutions as are required by City. Permittee shall provide City evidence of storm water NPDES permit coverage for industrial activities and a copy of the permittee's Storm Water Pollution Prevention Plan 14. Security and Litter Control. The Facility shall be enclosed by a minimum six foot and no more that eight foot high chain link fence. Licensee shall engage in a regular and routine litter maintenance and removal program as required by the CUP. . 6 . 15. Signage. Licensee shall erect and maintain at each entrance to the Facility a permanent sign stating the name of the Facility, the MPCA Permit number and stating the hours and days the Facility is open for public use. 16. License Fees. Licensee shall promptly pay the License application fee and annual License fees required by Chapter 58, Article III ofthe City Code. 17. Inspections. Licensee shall make the Facility available for inspections as required by the CUP and Chapter 58, Article III ofthe City Code. 18. Insurance and Bonding. This License shall not take effect until the insurance and bonding requirements set forth in Section 58-127 of the City Code have been complied with. 19. Expiration and Renewal. This License shall expire on January 31, 2008, as provided by Chapter 58, Article III of the City Code. Renewal of this License shall be governed by the procedures and requirements of Section[s] 58-128,58-129 and 58-130 of the City Code. 20. Suspension and Revocation. This License is subject to suspension and/or revocation pursuant to the procedures and standards set forth in Chapter 58, Article III of the City Code. . 21. Violations. Any violation of terms and conditions of this License shall also be considered a violation of Chapter 58, Article III of the City Code and, in addition to suspension or revocation of this License as provided in Section 58-130 of the City Code, the City may Proceed to seek enforcement of this License and the Solid Waste Facilities Ordinance under Section 58-103 thereof. . 22. Indemnification of City. Licensee shall defend and hold the City, its officers, and employees harmless from all claims made by third parties for damages sustained or costs incurred resulting from Facility approval, construction, and operation. The Licensee shall indemnify the City, its officers, and employees for all costs, damages, or expenses which the City may payor incur in consequence of such claims, including attorneys' fees. The aforesaid defense, indemnity, and hold harmless provisions shall not be in effect from and after the date that the occurrence giving rise to the claim in question is determined by a court with jurisdiction over the matter to have been caused solely by the willful conduct or negligence of the City, its officers or employees. Until the date of such judicial determination, the defense, hold harmless and indemnification provisions shall be in full force and effect and in the event of such judicial determination, the City shall reimburse the Licensee all of its costs and expenses incurred on be4alf of the City in connection with the foregoing. Nothing herein shall be construed to prohibit the City from selecting its 7 own counsel to act as co-counsel in the defense of such matters. The Licensee agrees to indemnify, defend, and hold harmless the City of Elk River, its Council members, officers, and employees from any claims or damages arising out of ciny acts or omissions on the part of the Licensee and any of the participating counties or their commissioners, agents, or employees in the performance of the counties' contractual obligations under the agreements with the Licensee, from any strict liability imposed upon the City pursuant to Minn. Stat. 1I5b.Ol, et. seq. for the release of hazardous waste at the Facility and from any remedial actions, clean-ups, removal, closure, post-closure activities, or monitoring requirements or costs associated therewith. This indemnity, hold harmless, and defense obligation of the part of the Licensee shall include, but not be limited to, any and all actions, claims, requirements, or claims for damages arising out of the granting of this License for the Facility. The indemnities provided in this paragraph 23 are subject to the limits ofliability set forth in Minnesota Statutes Sections 466.04 and 466.06, as amended from time to time, if effective as to the particular indemnified action or claim. Nothing in this License is intended to waive the immunities to which the City is entitled by law. . 23. Waiver and Claims. The Licensee waives and releases the City from all claims, direct or indirect, arising or claimed to have arisen out of all actions or inactions relating to the City's consideration or issuance of the License. . 24. Costs. The Licensee shall reimburse the City for all costs incurred in enforcement of this License, including consultant and attorneys' fees, as provided in Chapter 58, article III of the City Code. Failure by Licensee to reimburse City within forty-five (45) days of receiving an invoice for any costs for which reimbursement is required by the terms of this License or the Conditional Use Permit for the Facility, shall be cause for revocation of this License. 25. License Binding. This License and its conditions shall be binding upon Licensee and its successors and assigns. The assignment by Licensee of its interest in the Facility shall not relieve it of responsibility and liability under this License without the written consent of the City, which consent shall not be unreasonably withheld. 26. Severability. If any portion, section, subsection, sentence, clause, paragraph, or phrase of this license, the CUP, the MPCA Permit or the Solid Waste Facilities Ordinance is for any reason held invalid, such decision shall not affect" the validity of the remaining portions of the License. 27. Amendments or Waivers in Writing. The action or inaction of the City shall not constitute a waiver or amendment to the provisions of this . 8 . License. To be binding, amendments or waivers shall be in writing, signed by the Licensee, and approved by written resolution of the City Council. The City's failure to promptly take legal action to enforce this License shall not be a waiver or release. 28. Notices. Required notices to the Licensee shall be in writing, and shall be either hand delivered to the Licensee, its employees or agents, or mailed to the Licensee by certified or registered mail at the following address: Elk River Resource Recovery Facility l0700 l65th Avenue NW Elk River MN 55330 A TTN: Plant Manager Notice to the City shall be in writing, and shall be either hand delivered to the Building and Environmental Administrator, or mailed to the City by certified.or registered mail in care ofthe Building and Environmental Administrator at the following address: City of Elk River 13065 Orono Parkway Elk River, MN 55330 Attention: Environmental Administrator . IV. This License will take effect when all of the conditions precedent to the issuance of the License have been met and Licensee, or its duly authorized representative, has executed this License indicating Licensee's consent to all of the terms and conditions of the License, the Conditional Use Permit for the Facility, and Chapter 58, Article III of the City Code. V. In no event shall operations at the Facility commence until all of the terms, conditions and requirements contained in or incorporated into this Licensee have been met, including all required test, reports, and inspections. Dated: By: Stephanie A. Klinzing, Mayor By: Rebecca Haug, Environmental Administrator . 9 . CONSENT OF LICENSEE The undersigned duly authorized representative ofNRG, the Licensee under this License, on behalf of the Licensee, represents that Licensee has fully examined this License, the Conditional Use Permit for the Facility, and Chapter 58, Article III of the City Code; and that Licensee consents to each and every condition contained in or incorporated into the License, the CUP, and the City Code. Each person signing below on behalf of the Licensee does so upon the authority of the Board of Directors of the Licensee, and a resolution documenting such authority is attached hereto. LICENSEE: NRG . By: Its: By: Its: s: \b&z\stever\nrglic.doc . 10