Loading...
5.2. PCSR 05-11-2010REQUEST FOR ACTION To Plannin Commission Item Number 5.2. Agenda Section Meeting Date Prepared by Planning May 11, 2010 Rebecca Haug, Environmental Admin Item Description Reviewed by Request by Elk River Landfill to amend Conditional Use Permit Lori Johnson, City and Solid Waste Facility License to allow an approximately 13- Administrator acre expansion of the existing Landfill by developing the existing Peter Beck, City Attorney 200-foot buffer zone on the south side of the Landfill for the de osit of Munici al Solid Waste S - CU 10-08 Action Requested Recommendation to the City Council on whether to amend the existing Conditional Use Permit (CUP) and Solid Waste Facility License (SWFL) for the Landfill to allow an approximately 13-acre expansion of the Landfill by developing the existing 200-foot buffer zone on the south side of the Landfill for the deposit of Solid Waste. General Information Applicant Elk River Landfill 60-Day Rule The application was submitted on February 22, 2010 and deemed complete on March 4, 2010. The City must approve, approve with conditions, or deny the ro~ect b une 22, 2010 Requested Action Amend CUP &SWFL Location and Size 22460 Highway 169 Location Existing Land Use Land Use Plan Designation Current Zoning Property in Question Landfill Landfill Al (ME) (SWF) North Livonia Township N/A N/A South Mineral Excavation Mining Al (NIE) East Highway 169/Agriculture Commercial Reserve CRT (ME) Case File: CU 10-08 ERL CUP Page 2 City of Elk River West Agriculture/Open Space Rural Residential Al Introduction AbzSlication for 109-acre Exbansion In 2009, Elk River Landfill requested a Land Use Amendment, Zone Change, Conditional Use Permit and Solid Waste Facility License to expand the existing Landfill onto 109 acres of property located immediately south of the Landfill, extending from the southern boundary of the Landfill to 221st Street (the "Southern Development Area"). Following a lengthy public participation process, the City Council adopted a resolution on September 21, 2009, making Findings of Fact and denying the requested Land Use Amendment and Zone Change. A copy of the Staff Report on the Request and the Resolution of Denial are attached for the Planning Commission's reference. On October 19, 2010 the City Council adopted a resolution making Findings of Fact and denying the Landfill's request for a Conditional Use Permit and Solid Waste Facilities License to expand into the Southern Development Area. A copy of the Staff Report on that request and the Resolution of Denial are also attached for the Planning Commission's reference. Conditional Use Permit and Solid i~aste Facility License Following denial of the requested Land Use Amendment and Zone Change, Elk River Landfill sued the City in Sherburne County District Court. The Landfill filed a second lawsuit following denial of the Conditional Use Permit and Solid Waste Facilities License. Sherburne County District Judge Robert Varco issued an order in the first lawsuit on April 2, 2010. Judge Varco has yet to issue an order or decision in the second lawsuit challenging the denial of the Conditional Use Permit and Solid Waste Facilities License to expand into the Southern Development Area. ~1~1i~ cation forAmended/Keneaved Conditional Use Permit and Solid i~aste Facili License Because the Landfill's then existing CUP and SWFL expired on February 17, 2010, the Landfill applied on December 28, 2009 for an amendment to the CUP and SWFL which would allow operation of the Landfill to continue beyond February 17, 2010. This application was approved by the City Council on February 16, 2010. Copies of the staff report, the City Council Resolution and the existing CUP and SWFL, as amended on February 16, 2010 are attached for the Planning Commission's reference. ~t~lication to Begone to SI-VF and Be guide to `2and~ill" In the course of the litigation, it came to the attention of City staff that due to confusing and possibly conflicting legal descriptions for the Landfill property, it appeared possible that not all of the Landfill's existing property was zoned into the City's Solid Waste Facilities (SWF') Overlay Zoning District. Therefore, the City initiated a zoning of the entire Landfill property with a new, simplified legal description into the SWF District. On April 19, 2010, the City Council adopted an S:\Communiry Development\Planning Main\Case Files\CUP\CU 10-08 Waste Management\Staff report to PC-CU 10-O8.doc Case File: CU 10-08 ERL CUP Page 3 City of Elk River ordinance implementing this zoning. A copy of the staff report and the Ordinance axe attached for the Planning Commission's reference. During the process of zoning the Landfill property into the SWF District, it came to the attention of staff that the Land Use Map element of the City's 2004 Comprehensive Plan did not designate the entire Landfill property as "Landfill". Therefore, the City initiated an amendment of the Land Use Map, which will be acted on by the City Council on May 17, 2010. A copy of the staff report and proposed City Council resolution adopting this amendment to the Comprehensive Plan are attached for the Planning Commission's reference. Solid Wlaste Facilities Ordinance Amendment In the course of the litigation, the Landfill took the position that the City's SWF Ordinance is ambiguous and that required buffer areas and buffer zones axe not required to be located in the SWF Overlay Zoning Districts, despite the fact that this is how the Ordinance has been interpreted and applied for 22 years. To address the intent of the SWF Ordinance, staff proposed and the City Council adopted amendments to Chapters 30 and 58 of the City Code to reaffirm that required buffer areas and buffer zones for Solid Waste Facilities must be located within the SWF Overlay Zoning District. A copy of the staff report and the ordinance adopted by the City Council on March 16, 2010 are attached for the Planning Commission's reference. The PresentAt~~lication to expand the L.and~ll into the Exzsting 200~ot Bu er Zone In the course of the litigation in District Court the Landfill has taken the position that it prior application to expand the Landfill by 109 acres entitled it to an amendment of its existing Conditional Use Permit allowing it to expand the area in which solid waste is deposited into the 200- foot buffer area on its southern boundary. This position was taken in the litigation notwithstanding the fact that the Landfill never applied to deposit fill in this area as part of a smaller expansion, nor did it submit any plans showing how this could be done. Judge Varco has yet to rule on this theory. In the meantime, the Landfill filed the present application to amend the existing Conditional Use Pernut and Solid Waste Facilities License to allow the deposit of solid waste in the existing 200-foot buffer area on the southern edge of its property. This is the application before the Planning Commission. Matt Ledvina, the City's Environmental Consultant, has reviewed the application materials and concluded that from an overall engineering standpoint the design of the proposed Cell 18 and the 200 foot expansion into the buffer area is feasible. However, he has identified several issues, including: (1) Engineering and Construction Details. The application materials lack a number of details, including engineering and construction details related to the leachate management system, a detailed storm water management plan, design details for the Landfill gas system, and others. If the City Council were to approve the requested amendment to the Conditional Use Permit, additional detail in several of these areas would be required as outlined in Mr. Ledvina's report, which is attached as an exhibit. (2) 200 Foot Buffer Zone. The state regulations governing the Landfill (Minn. Rules Part 7035.2815, subd. 5(C)), the Elk River City Code of Ordinances (Sections 58- S:\Community Development\Planning Main\Case Files\CUP\CU 10-08 Waste Management\Staff report to PC-CU 10-OS.doc Case File: CU 10-08 Page 4 ERL CUP Ciry of Elk River 100(b) and 58-171(8)), and the Landfill's existing Conditional Use Permit (Section 3), all require that a 200-foot buffer zone be located on landfill property around the peruneter of the waste deposit area. The state regulation provides that "Any new fill area at a land disposal facility must be located at least 200 feet from the nearest property line, unless otherwise approved by the commissioner based on existing filling procedures, existing site structures, the facility design, compliance boundaries, and existing land restrictions." Minn. R. 7035.2815, subp. 5(c). The Landfill has submitted no evidence with its application that it has acquired any right from the adjoining landowner to the south that would change the property line so as to put the state-mandated buffer zone on their property. If the City Council were to approve an amendment to the Landfill's Conditional Use Permit and Solid Waste Facilities License to allow the deposit of solid waste in the existing 200-foot buffer zone, the approval would have to be contingent on the Landfill satisfying the requirements of the state regulation. Compliance with the state regulation is necessary so that it is clear that the 200-foot buffer zone is not developable and cannot be developed in the future by the adjoining landowner. City Code mandates that the 200-foot buffer zone be located in the SWF Zoning District. Sections 58-100(b) and 58-171(8). If the City Council were to approve an amendment to the Conditional Use Permit and Solid Waste Facilities License to allow the deposit of solid waste in the existing buffer zone, that approval would have to be subject to an amendment to the City Code allowing buffer zones to be located outside of the Solid Waste Facilities Zoning District. (3) Buffer Area. In addition to the legal issues raised by the proposal to deposit solid waste in the existing zone and moving the buffer zone and moving the buffer zone to the adjoining property, relocation of the existing 200-foot buffer zone would result in removal of the existing established buffer on the southern edge of the Landfill. The existing buffer consists of a mostly native, undisturbed area with an elevated topographic terrain. The existing terrain, which is covered by several hundred native, mature trees, acts as a visual screen of the Landfill. If solid waste were to be deposited in this area, all of the existing trees would be removed and the existing elevated terrain reduced and excavated to accommodate the deposit of solid waste. Removal of the existing trees and buffer would have a substantial impact on the visibility of the Landfill, making landfill operations clearly visible from 221st Avenue and, potentially, the residential areas to the west, for an extended period of time while the 13.7-acrae existing buffer area is filled with solid waste and a new buffer is established to the south, on the adjoining property. (4) Offsite Infrastructure. Expanding the area allowed for the deposit of solid waste to the southern property line of the Landfill will, according to the plan submitted by the Landfill with their Application for this expansion, result in significant portions of the Landfill's infrastructure moving off of the Landfill's property and out of the Solid Waste Facilities Overlay Zoning District. Infrastructure which would be moved off-site includes groundwater monitoring wells, landfill gas monitoring probes, and, potentially, storm water management facilities, and a service road around the southern boundary of the Landfill. Although it is true the Landfill has installed several groundwater monitoring wells outside of its boundaries and the Solid Waste Facilities Zoning District in the past, these facilities have been installed for the purpose of investigating the nature and extent of contaminant migration associated with the unlined portions of the Landfill. Lined expansions of the S:\Communiry Development\Planning Main\Case Files\CUP\CU 10-08 Waste Management\Staff report to PC-CU 10-08.doc Case File: CU 10-08 Page 5 ERL CUP Ciry of Elk River Landfill, including the lined expansions of the Landfill to date, typically require that all monitoring wells and gas probes be located within the Landfill Property and the Solid Waste Facilities District. Similarly, storm water management facilities are an integral part of the Landfill's operation and are specifically required by City Code to be located in the SWF District. Finally, the service road around the southern boundary of the Landfill is clearly a part of the Landfill operation and clearly a part of the Solid Waste Facility which is the Landfill operation as that term is defined in the City Code, and must be located on the Landfill's property and within the Solid Waste Facilities Zoning District. Attachments ,~ Location Map ERL application and narrative ,;d The existing CUP and SWFL for the Landfill, as amended on February 16, 2010 Staff report and September 21,2009 Resolution denying Comprehensive Plan amendment and Rezoning for 109-acre expansion ~C ye ~c'- ~~ Staff report and October 19, 2009 Resolution denying CUP and SWFL amendments for 109-acre expansion ,~ Staff report and February 16, 2010 Resolution of the City Council approving amendments to the CUP and SWFL to allow operation of the Landfill to continue beyond February 16, 2010 ,f Staff report and April 19, 2010 Ordinance Zoning the Landfill property SWF and ME • Staff report and proposed Resolution designating the entire Landfill property as "Landfill" on the Land Use Map element of the City 2004 Comprehensive Plan vti • Staff report and March 16, 2010 Ordinance amending Chapters 30 and 58 of the Elk River City ~', Code of Ordinances • Letter dated May 6, 2010 from Matt Ledvina, City's Environmental Consultant Applicable Regulations A. Standards for Issuance of a Conditional/ Interim Use Permit (Section 30-6541 The issuance of a Conditional Use Permit can be ordered only if the use at the proposed location: 7. i-Vill not endanger, injure or detrimentally affect the use and enjoyment of other proper y in the immediate vicinity or the public health, safety, morals, comfort, convenience orgeneral avelfare of the neighborhood or the city. 2. Weill be consistent avith the comprehensive plan. 3. IVill not impede the normal and orderly development and improvement of surrounding vacantpropery. 4. Weill be served adequately by and will not adversely affect essential public facilities and services including streets, police and fire protection, drainage, refuse disposal, water and server systems, parks and schools; and will not, in particular, create tra~c congestion or interference with traffic on adjacent and neighboring public thoroughfares. S:\Community Development\Planning Main\Case Files\CUP\CU 10-08 Waste Management\Staff report to PC-CU 10-08.doc Case File: CU 10-08 Page 6 ERL CUP City of Elk River 5. Weill not involve uses, activities, processes, materials, equipment and conditions of operation that will be detrimental to any persons or property because of excessive traffic, noise, smoke, fumes, glare, odors, dust or vibrations. 6. bill not result in the destruction, loss or damage of a natural, scenic or historic feature of major importance. 7. mill fully comply with all other requirements of this Code, including any applicable requirements and standards for the issuance of a license or permit to establish and operate the proposed use in the city. If denial of such a permit should occur, it shall accompany recommendations or determinations by findings or a report stating how the proposed use does not comply with the standards set forth in Section 30-654. B. City Code Definitions and Standards for Solid Waste Facilities Definition of Solid Waste Facility (Sections 30-1 and 58-91 of the Elk River City Code)(first sentence only): Solid Waste Facility means all property, real or personal, including negative and positive easements, water and air rights, all storm water management facilities, and all buffer areas or buffer zones, which axe or may be required, needed or useful for the processing or disposal of waste and for which processing or disposal of waste a license is required under the provisions of this Code. Provisions of the city Solid Waste Facilities Ordinance: • Section 30-1834 (e) (3) Solid Waste Facilities restricted to SWF -Solid. Waste Facilities Overlay District. No Solid Waste Facility, including any portion of a Solid Waste Facility, any easements, water or air rights, all storm water management facilities and buffer areas or buffer zones required, needed or useful for the establishment and/or operation of the Solid Waste Facility, with the exception of facilities necessary fox monitoring the offsite impacts of the facility on ground and surface water, shall be located or operated in the City except in those areas of the City located within the SWF -Solid Waste Facilities Overlay Zoning District. Section 58-100 (b) (b) Location of Solid Waste Facilities. No Solid Waste Facility, including any portion of a Solid Waste Facility, any easements, water or air rights, all storm water management facilities and all buffer areas or buffer zones required, needed or useful for the establishment and/or operation of the Solid Waste Facility, with the exception of facilities necessary for monitoring the offsite impacts of the facility on ground and surface water, shall be located or operated in the City except in those areas of the City located within the SWF -Solid Waste Facilities Overlay Zoning District. S:\Community Development\Planning Main\Case Files\CUP\CU 10-08 Waste Management\Staff report to PC-CU 10-08.doc Case File: CU 10-08 Page 7 ERL CUP City of Elk River • Section 58-171(8) (8) 200 feet from the nearest property which is not located within ME SWF -Solid Waste Facilities Overlay Zoning District. C. State Regulations (Minn. Rules, Part 7035.2815, Subp. 5(Cl (C) Any new fill area at a land disposal facility must be located at least 200 feet from the nearest property line, unless otherwise approved by the commissioner based on existing filling procedures, existing site structures, the facility design, compliance boundaries, and existing land restrictions. Zoning and Comprehensive Plan According to the Landfill, the 200-foot buffer zone which they propose to fill with solid waste was not entirely within the City's SWF Zoning District until the City Council's Apri119, 2010 action zoning the entire Landfill into the SWF and ME Overlay Districts. Similarly, at present the eastern edge of the 200-foot buffer zone proposed to be filled is not currently guided "landfill" on the Land Use Map element of the 2004 Comprehensive Plan. However, staff has proposed, and the City Council will consider on May 17, 2010, an amendment to the Comprehensive Plan that will designate the entire Landfill property as "Landfill". The April 19, 2010 zoning action and the proposed May 17, 2010 Comprehensive Plan amendment were not proposed by staff so that the Landfill could place solid waste in the buffer zone. These actions were proposed and taken in order to implement the City's, and we believe, the Landfill's long time understanding and intent that the entire Landfill property between the rail trail and Highway 169 be zoned and guided to allow Solid Waste Facilities. However, the fact that the Landfill property is, or soon will be, correctly zoned and guided does not mean that there is a right to place solid waste in the 200-foot buffer zone. The requested amendment to allow this must still meet the requirements of City Code and State law, including the standards for issuance of a Conditional Use Permit and the requirements of the City's Solid Waste Facilities Ordinance. Analysis The Application to expand the Landfill by extending the area approved for the deposit of Solid Waste into the existing 200 foot buffer zone on the southern boundary of the Landfill appears, from an overall engineering standpoint, to meet the design requirements for expansion of the Landfill. However, the proposed expansion will result in the state-mandated 200 foot buffer zone being located on adjoining property outside of the Solid Waste Facility Zoning District, and would require that significant infrastructure components, including groundwater monitoring wells, gas monitoring probes, a service road, and potentially, surface water management facilities,be located outside of the SWF Zoning District. This raises a number of concerns regarding the consistency of the proposed amendments with State regulations, the City's Solid Waste Facilities Ordinance, and the Standards for Issuance of a Conditional Use Permit. With respect to state regulations, location of the state-mandated 200-foot buffer zone onto adjoining property appears to be inconsistent with the state regulation that requires any new fill area to be S:\Community Development\Planning Main\Case Files\CUP\CU 10-08 Waste Management\Staff report to PC-CU 10-08.doc Case File: CU 10-08 ERL CUP Page 8 City of Elk River located at least 200 feet from the nearest property line. No evidence of a conveyance of property by the adjoining landowner has been submitted with the Application, so the City has not way to confirm that this regulation will be complied with. Relocating the buffer zone outside of the SWF Overlay District also is a violation of the City Code sections set forth above, as is the location of landfill infrastructure, including groundwater monitoring wells, gas probes, storm water management facilities and service roads, outside of the SWF District. Approval of an amendment to the CUP and SWFL to allow the deposit of solid waste in the existing buffer zone would have to be subject to an amendment to the City Code allowing buffer zones and other infrastructure to be located outside of the SWF District. Finally, removal of the existing, mostly native, buffer area on the southern edge of the Landfill, including the removal of several hundred mature native trees in the buffer area, would have a significant impact on the visibility of landfill operations from 221st Street and surrounding residential areas and, therefore, raises significant concerns regarding compliance of the proposed amendment within the Standards for Issuance of a Conditional Use Permit. Specifically, the Planning Commission and City Council should consider whether removal of the existing trees and buffer area, expansion of the Landfill's capacity, and extension of the period of time the Landfill will be operation: 1.) Will detrimentally affect the use and enjoyment of other property in the immediate vicinity because Landfill activities will be considerably more visible than at present and will extend for a considerably longer period of time; 2.) Is not consistent with the City' 2004 Comprehensive Plan, for the reasons set forth by the City Council in its action on the proposed 109-acre expansion; 3.) Will not impede the normal and orderly development and improvement of surrounding vacant property, as discussed in the record and found by the City Council in its action on the 109-acre expansion; 4.) Has the potential to create traffic congestion and interference on adjacent streets, in particular 221St Avenue; 5.) Will generate noise, odors and dust that is detrimental to surrounding properties; 6.) Will result in the destruction and loss of the existing native trees and natural topographic conditions which screen and buffer landfill activities from 221St Avenue and surrounding residential areas; and 7.) Does not comply with the other requirements of the City Code, including the provisions of the Zoning Ordinance and Solid Waste Faculties Ordinance set forth above. S:\Community Development\Planning Main\Case Files\CUP\CU 10-08 Waste Management\Staff report to PC-CU 10-08.doc Case File: CU 10-08 Page 9 ERL CUP City of Elk River Planning Commission Action Morton by Second by Voce Follow Up S:\Coxnmunity Development\Planxung Main\Case Files\CUP\CU 10-08 Waste Management\Staff report to PC-CU 10-08.doc i~iT OTOZ/0£/b'6nnp~dew uoi~e~o~~pi}pue~ aanib ~Ii3 TO-OT fll\fll\sa~l~ ase~~6uiuue~d~~uawdo~anao ~(~iunwwo~\~S ELK RIVER LANDFILL, INC. REQUEST FOR CONDITIONAL USE PERMIT AND SOLID WASTE FACILITY LICENSE AMENDMENT Prepared for: Elk River ver February 2010 Table of Contents EXECUTIVE SUMMARY ............................................................................................... iv 1.0 INTRODUCTION AND BACKGROUND ................................................................... l-1 .......................................................................................................... l 1.1 Background - ........................................................... .. 1 1.2 The City's Application Requirements - 2.0 DESCRIPTION OF PROPOSED PROJECT .............................................................. 2-1 2.1 Project Description .................................................................. 2.2 Current Facilities and Operations ............................................ 2.3 Need for Expansion .................................................................. 2.4 Proposed Facilities and Operations .......................................... 2.4.1 Infrastructure ............................................................. 2.4.2 Operational Impacts ................................................... 2.4.2.1 Hours of Operation .................................... 2.4.2.2 Traffic, Parking, and Signage .................... 2.4.2.3 Equipment Storage ..................................... 2.5 Environmental and Community Impacts and Mitigation......... 2.5.1 Environmentallmpacts .............................................. 2.5.1.1 Groundwater .............................................. 2.5.1.2 Surface Water ............................................. 2.5.1.3 Air Quality ................................................. 2.5.2 Community Impacts .................................................. 2.5.2.1 Visual Impacts ........................................... 2.5.2.2 Land Use Compatibility ............................. 2.5.2.3 Economic and Social Impacts .................... 2.6 Site Screening ......................................................................... 2.7 Proposed Landfill Design ....................................................... 2.8 Landfill Closure ...................................................................... 2.9 Closure Construction ............................................................... ........................ 2-1 ........................ 2-1. ........................ 2-2 ........................ 2-3 ........................ 2-3 ........................ 2-> : ....................... 2-3 ........................ 2-3 ........................ 2-4 ........................ 2-4 ........................ ?-4 ........................ 2-4 .................. ... 2-5 ........................ 2-5 ........................ 2-5 ........................ 2-5 ........................ 2-6 ........................ 2-6 ........................ 2-7 ...................:.... 2-7 ...................... 2-10 ...................... 2- ] 0 3.0 CONDITIONAL USE PERMIT/LICENSE AMENDMENT APPLICATION......... 3-1 3.1 Site Plan ...............................................................................................................3-1 3.1.1 All Abutting Lots ................................................................................... 3-1 3.1.2 Existing Buildings ................................................................................. 3-1 3.1.3 Existing Uses ......................................................................................... 3-1 3.1.4 Utilities .................................................................................................. 3-2 Ta07421I4Uf,\Cit}•AppFe6\FEB Reporl final (2).doc Table of Contents (Cont.) 3.1.5 Curb Cuts .................................................................... ......................:.... 3-2 3.1.6 Locations of Trees Having a Diameter of Six Inches or More .............. 3-2 3.2 Development Plan ..................................................................... -, ......................:.... .~-_ ...................................................... 3.2.1 Ingress and Egress ........................... ~-3 ~' 3.2.2 Proposed Structures .................................................... ........................... ~-~ 3.2.3 Off-street Parking and Loading Areas ........................ ........................... 3- i 3.2.4 Screening/Buffering/Landscape Plan ......................... ........................... 3-3 3.2.5 Utilities ....................................................................... ........................... 3-4 3.2.6 Lighting ...................................................................... ........................... 3-4 3.2.7 Signs ........................................................................... ........................... 3-4 3.2.8 Open Space and End Use Plan ................................... ........................... 3-5 3.2.9 Development Schedule ............................................... ........................... . -~ 3.3 Land Use Application Fol•m ...................................................... ........................... 3-5 3.4 Application Fee ......................................................................... ........................... 3-5 3.5 List of Property Owners within 350 feet of the Subject Parcel ........................... 3-6 3.6 Project Narrative ....................................................................... ........................... 3-6 3.7 Grading/Drainage Plan and Dl•ainage Calculations .................. ........................... 3-6 3.8 Building Elevations and Floor Plans ....................................... ............................ 3-7 ~.9 Outdoor Stora e ....................................................... g ................ ............................ 3-7 3.10 Wetland Delineation and Mitigation Plan ............................... ............................ 3-7 3.11 EAW/EIS Requil•ements .......................................................... ............................ 3-7 3.12 All othel• information as detel•mined by the city Staff ............. ............................ 3-8 3.13 Conditional Use Permit/License Standards of Issuance .......... ............................ ~-8 3.14 ERL's Requested Conditional Ilse Permit/License Amendme nts for the Proposed Expa nsion Must be Approved .............................................................. .......................... 3- 16 T:\07d?\I40!\CityApppeb\FEB Repon_final (2).doc 11 Table of Contents (Cont.) FIGURES Site Plan Site Development Plan Site Development Plan-Grading Plan Landscaping/Screening Plan End Use Plan APPENDICES A Legal Description and Properties within 350 feet B Drainage Calculations C Landfill Development Cross-Sections INCORPORATED BY REFERENCE All of the submissions in the MPCA's environmental review All of the submissions in the ERL's requests for rezoning and CUP/License Amendments All of the submissions in ERL I (Case No. 71-CV-09-1736) and ERL II (Case No. 7l -CV-09- 2046) 'f:\1174?U 40C,\CityAppFeb\FGB Repon_~n~l (2).doc I11 Executive Summary The Elk River Landfill, Inc. (ERL) proposes to develop an additional approximately 13 acres of Municipal Solid Waste (MSW) landfill space on the southern-most portion of the existing 137.4- acres landfill property -that is, the property which is south of the existing approved disposal area to the edge of the existing 137.4-acre landfill property. The existing solid waste landf 11 ~~__ will reach its currently permitted capacity in approximately three years, and the proposed expansion will provide approximately 1,671,000 cubic yat•ds of additional MSW capacity. At current waste flows, this additional capacity would extend the operational life of the landf l l approximately 4 to,` 7 y- ear and provide additional landfill capacity for the City of F,llc River (City), Sherburne County, and surrounding area. The proposed expansion is on land currently within the Solid Waste Facility overlay coning district. This Application requests the City to amend the existing Conditional Use Permit and Solid Waste Facility License to provide for the proposed expansion of the landf ll to the southern edge of the facility's current property. The proposed expansion is consistent with the goals and policies contained in the City's 2004 Comprehensive Plan. The proposed expansion would not require additional City infrastructure or services. The proposed expansion would benefit the community by providing access to stable and reliable solid waste service, as well as a sustainable alternative energy source. The proposed end use for the site would continue to be open space, which would be compatible with any adjacent future development to the west, east and south. T:10742\1401\CityAppFeb\FEB Repon_final (2).doc tv 1.0 Introduction and Background The ERL proposes to develop an additional approximately 13 acres of MSW landfill space.on the southern-most portion of the existing landfill property. The proposed expansion would provide approximately 1.67 million cubic yards of additional MSW disposal capacity at the I:RI_. The proposed expansion would be integrated into the contours, general design and operation of the existing permitted landfill. 1.1 BACKGROUND The ERL owns and operates a 476.8-acre landfill site, located approximately 5 miles north oFthe business district in the City, in the NW '/4 of Section 3, Township 33N, Range 26W and in the SW '/4 of Section 34, Township 34N, Range 26W (Property) in the City. The Property controlled by the ERL can be seen in the attached site plan. Of the tota1476.8 acres, approximately 1 G4 acres is currently permitted for waste disposal; the remainder of the property (312.8 acres) serves as buffer property. The landf 11 is permitted under MPCA Permit SW-74 to receive MSW, demolition and construction debris, yard waste for composting, industrial solid waste in accordance with an MPCA-approved Industrial Solid Waste Plan, and processing facility rejects from the Elk River RDP combustor facility. 1.2 THE CITY'S APPLICATION REQUIREMENTS The ERL maintains a solid waste facility license agreement and conditional use permit in accordance with the City's requirements. Both of these documents require amendments for the landfill proposed expansion, and the required information is included within this document. T:\0742\I40(,\CiryAppFeb\FEi3 Report final (2).doc 1 - 1 2.0 Description of Proposed Project 2.1 PROJECT DESCRIPTION The ERL proposes to develop an additional approximately 13 acres of MSW landfill space on the southern-most portion of the existing landfill property. The proposed expansion will provide approximately 1,671,000 cubic yards of additional MSW capacity. Depending on waste flow quantities, the proposed expansion would extend the operational life of the landfill approximately 4 to 7 years by providing additional landl~ll capacity. 2.2 CURRENT FACILITIES AND OPERATIONS Landfill operations are performed under the direction and oversight of licensed landfill operators. In addition to typical utilities such as water, ser~)er, electricity, and phone service, infrastructure requirements special to the landfill are: leachate and gas condensate storage facilities and their associated leachate and gas piping components. As far as landf 11 facility structures, the ERL, currently has the Following on-site buildings: • Scalehouse: Located on the east side oPthe facility with scales on both sides. • Landfill Office and Maintenance Building: Precast concrete building located northeast of the existing MSW area.'hhe building houses the landfill oPtices, maintenance area, including the oil storage facility. ® Gas-to Energy Plant: Precast concrete building on the northeast end of the current MSW facility just east of the landfill office. The gas to energy plant T:10742\140C\CityAppFeb\FEH Report final (2).doc ~1- 1 houses a community education room and the generators for the gas to energy facility. a Recycling Building: Metal sided building that serves as storage for recyclables and as part of the citizen drop-off and convenience center service to the public. This building is located to the south of the office building. 2.3 NEED FOR EXPANSION The existing MSW landfill will reach its currently permitted capacity in approximately three years. The ERL has available land to the south of the existing landfill footprint within the solid waste overlay district that can be used for the proposed expansion of the MSW landfill. By increasing the footprint of the landfill, the ERL is able to efficiently increase its capacity and extend its life. Since t11e existing landfill already has the infrastructure, environmental monitoring systems, and operations in-place, it provides an environmentally safe area for the proposed expansion of a needed facility while providing a benefit to the community that extends beyond waste disposal needs. The need for additional landfill space for the expanding greater metropolitan area has been documented by a division of the MPCA (formerly Office of Environmental Assistance), whose purpose is to identify waste management practices and places importance on waste reduction, reuse and recycling. Despite the successes in Minnesota at reduction, reuse and recycling, the quantity of waste generated has substantially increased over the past decade and with it, a corresponding need for additional MSW landfill space. T:\0742\I40C\Ciq~AppFeb\FEB Report_final (2). doc ~-~ 2.4 PROPOSED FACILITIES AND OPERATIONS 2.4.1 Infrastructure Expansion of the following existing infrastructure systems will be required as part of the proposed project: • Gas extraction wells, piping, and monitoring probes installed in accordance with the New Source Performance Standards (NSPS) and Title V air permit. • Gas to energy plant and. back-up flare in accordance with the Title V air permit and NSPS regulation • Leachate collection and management as approved by the MPCA • Groundwater monitoring wells as approved. by the MPCA. 2.4.2 OperationalImpacts 2.4.2.1 Hours of Operation The ERL will continue to limit its operations to the hours of 6:00 am to 7:00 pm, Monday through Satut•day, excluding holidays. Dw•ing that time, the landfill will be operated in accordance with the operational requirements enforced by the MPCA, Sherburne County and the City. The landf 11 may accept waste during the of[' hours only under certain circumstances. 2.4.2.2 Traffic, Parking, and Signage The EIZL employs approximately 14 people at the current landfill site. There are 20 parking stalls located at the office building site as well as ample room for parking in the yard area to the north of the building. The landfill employee numbers are not expected to increase with the proposed expansion. Additionally, there is no increase in traffic to the facility expected with the proposed expansion. T:\o742U 4UC,\CiryApppeb\PEB Repon_final (2).doc 2-~ The ERL will maintain existing signs at each entrance to the site which describes the wastes which may be disposed at the ERL and those wastes which will not be accepted. In addition to waste acceptance information, the site signage also indicates the schedule of days and hours the facility is open to the public, prices for waste disposal at the site, the MPCA permit number, contact person for landfill issues, and the penalty for nonconforming dumping. No new signs are proposed for the proposed expansion. 2.4.2.3 Equipment Storage Adequate on-site enclosed storage is available for the maintenance and storage of the landfill equipment that is currently needed to operate the landfill. It is not anticipated that additional equipment and/or equipment storage facilities will be required with the proposed expansion. 2.~ ENVIRONMENTAL AND COMMUNITY IMPACTS AND MITIGATION The proposed expansion does not require an Environmental Impact Statement (EIS) under the requirements of Minn. 8.4410.4400, subp. 13(E) since the increase in volume is less than 25 percent of a previous capacity of a MSW disposal facility for 100,000 cubic yards or more of waste fill per year. Moreover, the MPCA did conduct an EIS for a much larger proposed expansion of the landfill, which included the proposed expansion The following discussion provides a summary of the expected impacts associated with the proposed expansion. Many of these Endings are also discussed in section 3 of this report. 2.5.1 EnvironmentalImpacts 2.5.1.1 Groundwater T:\07A211gOC\CilyAppFeb\FEB Repoi1_finnl (2).doc 2-`t The hydrogeologic conditions within the additional footprint area are suitable for the proposed expansion. The monitoring program which is currently part of the F,RI. operations includes testing to provide early warning of a release, should one occur. The groundwater monitoring well network includes numerous downgradient wells that are properly positioned to observe existing and future groundwater conditions at the site. The groundwater monitoring network along the southern boundary will be modif ed in accordance with any recommendations from the MPCA during the application submittal and approval process. 2.5.1.2 Surface Water The ERL is currently operating under a Stormwater Pollution Prevention Program (SWPPP) that exceeds MPCA requirements. The existing SWPPP will be amended to cover the additional footprint should it be approved. 2.5.1.3 f1.ir Quality Methane gas generated from the waste disposed of within the proposed expansion will be used to generate electricity at the existing gas to energy plant. As does the existing landfill, the proposed expansion has the potential to generate odors. Emissions are monitored on site and odor complaints are investigated and causes mitigated promptly. 2.5.2 Community Impacts 2.5.2.1 Visual Impacts The proposed expansion will be effectively screened from Highway 169 along the eastern side by existing berms and trees. Similar to the 200-foot buffer between the trail and the existing facility, there will be a 200-foot buffer from the property line to the cell boundary along the western side of the facility that consists of an existing densely wooded area between the proposed landfill and trail corridor. Phis 200-foot buffer T:\U742U 40C\CityAppFeb\FEB Repori_(innl (2).doc 2-[ effectively screens both the existing facility and the proposed expansion from the corridor trail. Mining activities to the south of the proposed expansion will be ongoing during the life of the project. In addition to the existing screening along 221ST Avenue for mining operations, the ERL will establish screening vegetation on the southern berm that will . effectively screen the proposed expansion. 2.5.2.2 Land Use Compatibility The proposed expansion is located within the existing property, which is within the Solid Waste Facility overlay zoning district, and guided "Landfill" in the City's 2004 Comprehensive Plan. The City's 2004 Comprehensive Plan also states that the "Landfill use is consistent with the current land use plan". The proposed expansion is also consistent with the Sherburne County Solid Waste Management Plan. The proposed expansion is also consistent with the existing Hwy 169 and the future 1-lwy 169 corridor plans, and will not affect any future interchange designs at the intersection of Highway 169 and 221st Avenue. 2.5.2.3 Economic and Social Impacts The economic and social impacts of the proposed expansion are similar to those of the existing ERL facility. Revenues currently collected by the City, Sherburne County, and the State of Minnesota from tipping taxes and fees would be sustained for the additional volume associated with the proposed expansion over the additional life of the landf Il (1.67 million cubic yards over 4 to 7 years). Similarly, the other economic benefits associated with the ERL facility to the surrounding community in the way of commerce T'\0742\I40!\Ciq~AppFeb\FE6 Rapon_final (2).doc 2-6 with local businesses, donations, employment, etc. would be sustained for an additional 4 to 7 years. 2.6 SITE SCREENING The region surrounding the proposed expansion consists of rolling terrain, heavily wooded areas, existing berths, and on-going mining operations that effectively screen it from view without additional screening features. Along the east side of the proposed expansion, existing trees and an existing earthen berm that has been planted with trees, ~~~ill provide year round screening along Hwy 169. Mining activities to the south of the proposed expansion will be on-going during the life of the proposed expansion. In addition to the on-going mining on the property to the south of the proposed expansion and existing screening along 2215` Avenue for the mining operations, the ERL will establish screening vegetation on the south perimeter berm that will effectively screen the proposed expansion from 22151 Avenue. Along the west side of the proposed expansion between the property line and the corridor trail there will be a 200-foot buffer. This setback allows for the preservation of the existing trees in the area. The dense vegetation along the bike trail corridor effectively screens the proposed expansion from view of the trail users. This vegetation will remain with the expansion since it is within the proposed 200-foot setback. 2.7 PROPOSED LANDFILL DESIGN The ERL is designed to dispose ofnon-hazardous solid wastes. "The design as well as the construction and operation of the landfill are governed by the MPCA who has performed a detailed review of the design of the existing facility, and will perform a detailed review of the design of the proposed expansion upon submittal of the necessary MPCA permit application. T:\x742\I40!\CityAppFeblFEII Repon_final (2).doc 2-7 The proposed design is consistent with the existing design in that it incorporates a state, of the art composite liner system; 2 feet of compacted clay soil barrier overlain by a 60 mil high density polyethylene flexible membrane liner. Together, these two components of the liner system prevent contaminants from penetrating the surrounding environment. Overlying the liner section is the leachate collection layer. The leachate collection layer consists of either 1 foot of highly permeable drainage sand or a synthetic drainage material called a geocomposite. The geocomposite is comprised of high density polyethylene channels manufactured to rapidly convey liquids and is considered equal to the transmission capacity of 1 foot of drainage layer sand. LEAUH AIERGa IErT lOF7'~PIPE~~ \r ~COAR:E AGGRCATE _~^ 12" 4P.ANlILAfl PRA WAGE LAYER-~, ~ ~ GEOIEXi)LE \_ 12' iNTEReEO(dlE AGGRGA~E~.~ ~ ~ ~ ~` .}~'~M ~ Ib _JI ~ ._.sp ml l RDPE GEIyAEh6RANE nl l 3 ~ ~_".. j -~ ~~- _- _ ~ ~ ~ , ~ C~~~. .~~ '~.:,,L ''~-2C` CL A'f eARRfEF. LATER +~~ 7Ii ~ ~~hi~ {~t~ `;~1 14 ~.~~' ~~ , 1T. ;k~ ~ iA ^•"~-SUHGRAOf. Liner System The final cover section is similarly designed with a layer of buffer material installed over the final waste elevation prior to the placement of a 40 mil linear low density polyethylene liner material that is overlain by either a sand drainage material or a synthetic drainage material, geocomposite. The final layer of the landf 11 cover section is a layer of soil material that can sustain and promote vegetative growth. T:10742\iAOC\CilrAppt:eb\PEB Repon_6nRl (2).doc '1 _ O ------- -------- --- ------- ~..-TnPSnIL s~ ~~ I'JER 5C11Ls c a' N ~~ nIdET YTURE6 4o mil J J ~. 1 / f(j.( < ,f _,_~ u.DPE GEQMEI~IERAIJE ~r,~ ~.``%j ill` ~y ~'f~~%tt~' ~.'JJ,rIF' ~yl V h ~/~ ~ ~~ -EUFFEF( ;riLS COVeP System The landfill base liner, in conjunction with the final cover liner, completely encapsulates the MSW materials from the surrounding environment. The site currently generates electricity from the methane gas extracted during the waste degeneration process. The methane extraction system will continue to be developed as the landfill is final covered. The landfill gas extraction wells are constructed in accordance with industry standards and the ERL's air permits. The proposed expansion will be constructed as an additional phase (Cell 18) consistent with the current series of phased cell construction and clos>_u•e projects. The timing of the projects will be dictated by incoming waste volumes and site operations. It is anticipated that the Cell 18 of the landfill will be partially constructed in 201 1. T:5Q742\I411(,\Ciq~AppFeb\FEB Repon_Gnal (2).doc ~t _(1 2.8 LANDFILL CLOSURE The ERL has site-specific provisions in place for the closure of the landfill in accordance with their site permits. The ERL guarantees these closure activities, as well as post- closure care and potential contingency actions that may be required, through the use of a surety bond in accordance with the financial assurance requirements by the MPCA. Closure plans for the existing portions of the facility have previously been approved by the MPCA, Sherburne County and the City, and upon submittal of the necessary MPCA permit application for the proposed increase in footprint, updated closure, post-closure and contingency action plans and cost estimates will be submitted. Final contours, surface water drainage calculations, and an end use plan are included in this submittal. As the ERL enters closure of the landfill, existing fencing will be utilized and supplemented as necessary for the purposes of security. After final closure of the site, while the entire site will be secure, certain portions ofthe site will be secured such that only those persons authorized by the ERL will be permitted in these areas to perform closure and post closure activities. 2.9 CLOSURE CONSTRUCTION. The proposed expansion will be closed as part of a phased closw•e construction. The anticipated closure sequence and timing for the proposed expansion will occur in approximately 2018, as part of the f nal phase of closure construction. "1'hc timing of construction will be dictated in part by incoming waste volumes. Closure of the landfill includes the engineered cover system, gas collection components, and the surface water controls included MPCA permit application documents and approved by the MPCA. The City, as well as the MPCA and Sherburne County, will be notified of impending phased closure at the ERL prior to initiation of closure construction. The details of the T:\0742\140C\CityAppFe61FEB Report_finul (2).doc ~1- 1 O final closure project will be detailed in the notification for final closure and will include a notification process for regular customers and in area newspapers. Additionally, the 1;12.[., will post a sign at the site's entrance 60 days prior to closing for waste acceptance that notifies landfill customers of the closure date and alternative disposal locations. I_,andfill final closure activities will proceed within thirty days of receipt of the last load of waste. The ERL will update the City as to any revisions to the closure sequence as incoming waste volumes may change over the life of the proposed expansion. T:\0742U 40(\Ci)yAppFebN°L-B Report final (2).Aoc ~_ 1 1 3.0 Conditional Use Permit/License Amendment Application The Elk River Code (City Code), Chapter 30 and Chapter 58 govern the Conditional Lse Permit/License amendment application requirements: 3.1 SITE PLAN The ERL has developed a site plan in accordance with the City Code. The applicant acknowledges the draw scale requirement stated on the application form, however, the drawings have been submitted at a scale relevant to the size of the project and how it connects with the entire landfill site to benefit the review process. The specific elements that are required for inclusion on the site plan and how they are addressed on the site plan are discussed below: 3.1.1 All Abutting Lots Abutting lots are provided on the site plan. 3.1.2 Existing Buildings Existing building footprints are indicated on the site plans. 3.1.3. Existing Uses The site plan is provided on an aerial photograph to readily show the existing uses on the existing landfill property and the proposed additional development footprint. Existing uses represent a combination of natural features (woods, wetland, and natural T:\Q742V 40!\Ciq~AppFe6lFEB Report_final (2).doc ~_ 1 topography) and mining activities. The proposed expansion is within the existing landfill property. 3.1.4 Utilities No municipal utilities are provided to the proposed project, nor does this application request the provision of any municipal utilities. The property will continue to be served by private wells and septic system. The existing landfill property includes a Landfill Gas to Energy Facility that provides the City with approximately 12% of its electrical needs. The proposed expansion provides the opportunity for additional green energy generation capacity. 3.1.5 Curb Cuts Existing public streets and curb cuts are shown on the site plan and site development plan. No new entrances or curb cuts are required as part ofthe project. Private driveways and maintenance access ways on the property are shown. 3.1.6 Locations of Trees Having a Diameter of Six Inches or More It is the applicant's understanding that a survey is only needed for trees that would be removed due to the proposed increase in the landfill footprint. Trees that are removed as part of the current mining operation do not need to be inventoried. Trees that will not be removed for either the current mining operations or proposed landf II operations do not need to be surveyed. At this time it is not anticipated that any trees will need to be removed due to the proposed project; therefore, a tree inventory is not provided. 3.2 DEVELOPMENT PLAN The ERL has prepared a development plan in accordance with the City Code. The application has included two site development plans: one for the entice property and an T:\07421141)(\CityAppFeb\FEB Report_fmal (2).doc J _7 additional larger scale drawing for the proposed expansion. As with the site plan, the applicant acknowledges the draw scale requirement stated on the application form, however, the drawings have been submitted at a scale relevant to the sire of the project and how it connects with the entire landfill site to benefit the review process. The specific elements that are required for inclusion on the site development plan and how they are addressed. on the site development plan are discussed below: 3.2.1 Ingress and Egress Existing ingress and egress are shown. No new entrances or exits are required as part of the project. 3.2.2 Proposed Structures There are no new proposed structures as part of the proposed expansion. 3.2.3 Off=street Parking and Loading Areas Off-street parking is provided within the existing parking lot for the landfill office. This parking lot currently has 20 parking spaces. The proposed perimeter operations road and perimeter access road represent the "loading areas" associated with landfill operations. 3.2.4 ScreeningBuffering/Landscape Plan The region surrounding the proposed expansion. consists of rolling terrain, heavily wooded areas, existing berms, and on-going mining operations that effectively screen the area from view without additional screening features. Along the east side of the project area the existing earthen berm that has been planted with trees, provided for the screening of the on-going mining activities will provide year round screening during the active li fe of the proposed expansion. In addition to the on-going mining on the. property to the T:\0742\I40G~CilyAppFeb\FEB Report_final (2).doc -7 -~} south of the proposed expansion and existing screening along 22151 Avenue for the training operations, the ERL will establish vegetation screening along the southern berm that will assist in screening the proposed project from 2215T Avenue. The vegetation plan is shown on the landscaping/screening plan: A buffer zone, which includes a 200-foot wooded setback along the City's Railroad Hiking Trail, has been established between the cell boundary and the western property line. This setback allows for the preservation of the existing trees in the area, and the dense vegetation along the bike trail corridor effectively screens the proposed expansion from view of the trail users. This vegetation will remain with the expansion since it is within the proposed 200-foot setback area. Per a property interest granted by the Tiller Corp. to the ERL, the existing 200-foot buffer on the south side of the existing land f 11 will be moved without change south onto the adjacent Tiller property. 3.2.5 Utilities The required utility plan is for municipal sewer and water lines and hookups. The proposed expansion does not propose any use of municipal sewer and water, therefore, no utility plan is required. 3.2.6 Lighting No new lights are proposed; therefore, a lighting plan is not part of this application 3.2.7 Signs No new signs are proposed; therefore, no signage plans are required. T:\(17A2\ 14b(\CilyAppPeb\FHB Reporl_finnl (2).doc J - A 3.2.8 Open Space and End Use Plan Long term, the open space provided by the closed landfill areas would be compatible with any adjacent future development to the west, south or east. The intended passive open space for the landfill after final closure is shown on the end use plan. 3.2.9 Development Schedule The proposed expansion will be constructed as an additional phase (Cell 18), the last of a series of phased construction projects (currently through Ce1117). The timing of the projects will be dictated by incoming waste volumes and site operations, but is anticipated to be constructed in 2011, and closed in approximately 2018. 3.3 LAND USE APPLICATION FORM In addition to the information required by City Code, the Conditional Use Permit application form requires the submission of the following information: A copy of the Land Use Application Form is submitted with this application. The LRL is the applicant and also the owner of the Property. 3.4 APPLICATION FEE The application fees are provided with this submittal to the City per the City's fee schedule. Application Type Fee Escrow 'I'ota) Conditional Use Permit $520 $1,000 $1,520 Grand Total $1,520 T:\0742\140(\CityAppPe6~FEB Repor[_6nal (2).doc '? _C 3.5 LIST OF PROPERTY OWNERS WI'I'I-IIN 350 FEET OF THE SUI3JEC'I' PARCEL A list of all owners of record of property location in whole or in part within 350 feet oP the boundaries of the proposed expansion, as identified. in the records of Sherburne County Property Tax Division as of January 2010 are submitted with this application. Mailing labels obtained from Sherburne County were also submitted with this application. A map showing the properties within 350 feet is included in Appendix A. 3.6 PROJECT NARRATIVE See Section 2.0 for a detailed project description. 3.7 GRADING/DRAINAGE PLAN AND DRAINAGE CALCULATIONS Stormwater generated by the landfill modification will be controlled on-site. Runoff will be controlled and routed by drainage terraces, pipes, gabion lined downslope structures, and four sedimentation basins as shown in the drawings. Drainage routing features have all been sized adequately to minimize erosion from the site. The stormwater from the site will be treated by four sedimentation basins (P-1, P-2, P-3, and P-4) located around the perimeter of the site at the northwest corner (P-1}, southwest corner (P-2), southeast corner (P-3), and northeast corner (P-4) of the landfill. Stormwater generated from the site will be discharged. from these on-site sedimentation ponds via a storm sewer system to three main outlet points. The outlet points are the northeast to an infiltration basin, to the east into TI-1169 right-of-way (ROW), and west to a wetland complex upstream of Rice Lake wetland complex. Stormwater which T1074211Ab!\CilgAppl°eb\I'Ll3 Repon_final (2).doc 3-G discharges north to the infiltration basin will not leave the site as t11e basin has been designed to infiltrate stormwater from this site and the ERL's demolition landfill site. The eastern discharge point will be to TH 169 ROW. The western portion of the landfill will discharge through two different stormwater ponds to a wetland on the east side of the abandoned railroad tracks. This wetland is connected to a wetland west of the railroad tracks which eventually flows into the Rice Lake wetland complex. The discharge point for the all pond discharges will be onto property owned by the ERL. The drainage calculations are presented in Appendix B. 3.8 BUILDING ELEVATIONS AND FLOOR PLANS There are not proposed buildings associated with the proposed project. 3.9 OUTDOOR STORAGE No additional outdoor storage is proposed. Storage will occur within existing structures. 3.10 WETLAND DELINEATION AND MI'T'IGATION PLAN There are no wetlands present or impacted by the proposed project. 3.11 EAW/EIS REQUIREMENTS There are no EAW/EIS requirements for the proposed expansion. An EAW/EIS is not required for the proposed expansion. An EAW/EIS was conducted in 2004-2006 that included the proposed expansion as part of a larger expansion. T:\0742\140!\CilyAppfeblFEB Reporl_final (2).doc ~-'7 3.12 ALL OTHER INFORMATION AS DETERMINED BY THE CITY STAFF There is no other information required at this point. 3.13 CONDITIONAL USE PERMIT/LICENSE STANDARDS OF ISSiJANCE The ERL has maintained a solid waste facility license agreement and conditional use permit in accordance with the City's requirements. Both of these documents require amendment for development of this proposed expansion. City Code §§ 30-654 and 58-125 set forth seven standards that must be met when considering conditional use permits. The proposed expansion those standards as detailed below. Y. Will izot endan;er, injau•e or detrimentally affect the use and enjoyment ~f other property irz the immediate vicinity or the public health, safety, morals, comfort, convenience or general welfare of the nei;hborhood or• the city. Consistent with its approved CUP for the existing MSW landfill, the following summarizes the standards that will continue to be met for the proposed expansion. Groundwater The proposed expansion, similar to the existing Facility, is a modern, lined landfill that meets or exceeds all health and safety regulatory requirements. The facility is designed to protect groundwater by preventing a release to the environment "hhe facility also has a groundwater monitoring network and monitoring program. Federal, state, and county regulations establish siting, monitoring, water quality, and other standards to protect groundwater resources. Similar to the existing facility, the groundwater and monitoring well network for the proposed expansion will meet or exceed those standards and requirements. T:107A2\I40(,\CityAppFeblFEB Report final (2).doc ~-O The ERL will continue to perform on-site and off-site water quality testing in the manner required by the MPCA permit. "I'he on-site monitoring wells shall meet current Department of Health Well Code Standards. ERL will annually sample the individual private wells identified in the Phase IV Water Quality Monitoring Work Plan required by Section 4(05) of the approved CUP. A Water Quality Report shall be submitted to the City when it is submitted to the MPCA. Leachate ERL will continue'to either maintain backup pumps for use in the event of pump failure on-site, or ERL will maintain provisions for restoring temporary leachate pumping within a 24-hour period and adhere to the current "Leachate Management Plan" as approved by MPCA. The ERL pumps the existing leachate tanks on a regular schedule. Leachate will not be allowed to collect on the liner to a depth exceeding one foot due to the leachate-holding tank being full. The facility is approved to recirculation leachate. Remedies for problems arising from leachate recirculation include, but are not limited to, the cessation of leachate recirculation and reverting back to traditional leachate treatment. Phase IV Water Quality Monitoring Worlc Plan and Hydro~eolo~ic Retorts The Phase IV Water Quality Monitoring Work Plan describes the sampling frequency, parameters, protocols and reporting frequency for Landfill gas, leachate, leachate piezometers, leachate, lysimeter, residential wells, groundwater monitoring wells and surface water will be updated annually to reflect changes in the monitoring systems. The investigation of the hydrological and geophysical characteristics of the site will be continued and any other new information relating to the hydrogeologic impact of the s ite will be reported to the City. 1-Iydrogeologic reports will be updated, amended, and T:10742\I40(\Cii~~AppFeb\PE- Repon_final (2).Joc ~-n modified as warranted by newly discovered or additional data acquired in the continued hydrogeologic investigation. Gas Collection S stem The ERL shall conduct active landfill gas collection in accordance with approved plans and shall construct additional phases of the control system at the time of final cover construction. The effectiveness of active landfill gas control operations based on the results of groundwater and landfill gas monitoring will be assessed annually and incorporated in the MPCA Annual Report. Surface Water Quality The ERL will have surface water sampling conducted as may be required by the MPCA General Stormwater Permit for Industrial Activities, MPCA Stormwater Permit for Construction Activities, or the MPCA permit. Construction QualitYAssurance Reports A Construction Quality Assurance (CQA) Report will be submitted to the City prior to the placement of waste on newly constructed lined areas. A CQA Report shall also be submitted for landfill areas which receive final cover. Aesthetics Visual impacts will continue to be minimized through buffers, berms, and vegetation. Litter Control As is the current practice; the ERL will engage in a regular and routine litter maintenance and removal program. Odor Odors will be controlled by minimizing the size of the active disposal area, properly covering the waste daily, and by incorporation of the gas collection system (gas extraction/ power generation system). Odor complaints received by the facility are tracked, and the ERL promptly investigates every odor complaint and takes corrective actions when odors can be traced to a specific condition. l' \o7a2\Ia~r6~Cih•APpFeb~FEB Repan_fmnl (2).Aoc ~ _ 1 (7 The ERL routinely monitors and tests emissions from the landfill, enclosed. flare, and landfill gas to energy plant as required by both the facility's air quality and solid waste permits, and will continue to do so. There is a potential for odor releases from the additional landfill footprint, however, this potential is not an increase over current conditions. Safet The landfill will adhere to applicable safety standards. Equi~nent and Storage Facilities Adequate equipment will be supplied and available to conduct activities at the site. Si name The ERL maintains a sign at each entrance to the landfill property stating the name oCthe facility, the schedule of days and hours the facility is open to the public, prices for use of the facility, the MPCA permit number, and contact information. No new entrances are proposed, thus additional signage will not be needed. 2. l~Vill be consistent with. tfre conzpreltensive plan. The proposed expansion is located within the portion of the existing 137.4-acres landfill property, which is within the solid waste facility (SWF) overlay district and guided "Landfill" in the City's 2004 Comprehensive Plan. The plan states that the "Landf If use is consistent with the current land use plan." 3. Will not impede the normal and orderly development and improvement of surrrounding vacant property. The 2004 Comprehensive Plan guides the area to the east of the proposed expansion, across Highway 169, as "Commercial Reserve", held in reserve for future commercial T:\074?\lA0llCiryApppeb\FEB Report_final (2).doc 3-11 development by highway business uses. The plan notes that this area is not currently served by municipal utilities, and the plan guides. development Iirst to vacant land ah•eady served by utilities before opening up new areas for growth. The 2004 Comprehensive Plan guides the area to the south of the proposed expansion area as "Mining". It is currently being used for that purpose. Appendix C contains a narrative and cross-sections that describes the development of the landfill following mining activities that will take place with the proposed expansion. The proposed expansion is not expected to increase traffic on 2215` Street or Highway 169, and thus would not impede the existing mining use or any potential future expansion of that mining use. The area to the west and southwest recently transitioned from "Agricultural Conservation" zoning to "Rural Residential." Allowed land uses in Rural Residential areas are single family residential on medium lots (2.5+ acres) or clustered development. Rural Residential uses are not served by municipal sewer and water. The proposed expansion will be screened from view from developable property to the west, and it will not impede the transition in land use from Agriculture to Rural Residential. The proposed expansion is not expected to generate additional traffic, noise, fumes, odor, or impacts that may be unsightly, unattractive, or unappealing to developers or future property owners. This point is illustrated by Tiller's grant of a property interest to the ERL for the 200-fot buffer area on its property. While the presence of a landfill in the vicinity of the developable property may have negative connotations to some potential developers or buyers, that condition ah•eady exists with the existing ERL. As units of the landfill are closed and are converted to greenspace, attractive open space may become an asset to the development and improvement of the Commercial Reserve area, and rural residential uses T:\0742\I4oWCiiyAppPeb\PLA Repon_fmxl (2).doc ~ - 7 2 4. Will be served adequately by and will not adversely affect essential public.facilities and services including streets, police and fire protection, drai~Zage, refuse disposal, water and sewer systefns, parks and schools; and will not, in particular, create traffic congestion or inter ference with traffic on adjacent and neighboring public thoroughfares. Public Facilities and Services. The proposed expansion will be adequately served by existing public facilities and services. Streets and Traffic. Construction of the proposed expansion is not expected to increase traffic or hauling, thus there would be no adverse impacts to city streets, congestion, or interference with traffic. Adequate vehicle stacking facilities are provided to ensure that no vehicle desiring entry into the landfill site has to wait outside the perimeter of the Property. An all-weather haul road will be provided to the unloading area of the proposed expansion and watered on a regular basis. Police and Fire. The proposed expansion would not require additional police and fire protection, or increased use of other emergency services. Parks and Schools. As an industrial use, the landfill does not generate park or school needs. Sewer and Water. The site is adequately served by on-site sanitary sewer and potable water. The ERL has its own well that supplies a potable water supply for site personnel. Adequate sanitary facilities and shelter will continue to be provided for site personnel. Stormwater Mana eig Went. A stormwater management plan has been developed for the existing site that meets the requirements of the National Pollutant Discharge Elimination System (NPDES) Permit requirements for erosion control and temporary and permanent stormwater management. The ERL will include the proposed expansion in their coverage of the Minnesota General Permit for Authorization to Discharge Stormwater Association T:\0742\14U(\CilyAppPeb\FEB Repoli linal (2).doc ~} - 1 ? with Industrial Activity. The ERL's existing Stormwater Pollution Prevention Plan (SWPPP) will also be updated to include the proposed expansion. The SWPPP will be updated as necessary to comply with upcoming new stormwater regulations. Electrical Service. Adequate electrical service is provided at the site for operations and: repairs. The landfill generates electricity at the landfill gas to energy facility. 5. Will not involve uses, activities, processes, materials, equipment and conditions of operation that will be detrimental to any persoizs or property because of excessive traffic, noise, smoke, fumes, glare, odors, dust or vibrations. Traffic. No additional traffic is expected to be generated by the proposed expansion since the overall operation of the proposed expansion is not anticipated to include significant increases in waste flow over the current operation, effects on traffic congestion would be expected to be minimal. Noise. No additional operating noise is expected to be generated by the proposed expansion. Smoke. The landfill will not generate smoke. Fumes. See Odor discussion in the statements regarding CUP finding number 1. Glare. The landfill will not utilize lighting that will create glare or light trespass issues. Odors. See Odor discussion in the statements regarding CIJP finding number 1. Dust. Fugitive dust emissions off-site will be controlled at the landfill site as necessary by undertaking the following and in accordance with the facility's Fugitive Emissions Control Plan. T:\0742\1411(,\CilyAppFeb~FEB Report final (2).doc 3-14 Vibration. See response to noise above. 6. Will not result in tl7e destruction, loss or damage of cr natcu•al, scenic or historic feature of major importance. Features of Major Importance. There are no known natural, scenic, or historic features of major importance with the proposed expansion. Historic and Archaeological Features. The Minnesota State Historic Preservation (SHPO) was contacted regarding archaeological and historical features as part ofthe preparation of the EAS/EIS for a larger expansion. SHPO concluded that no properties within the proposed larger expansion were listed on the National or State Registers of 1-Iistoric Places and that no known or suspected archaeological properties in the area will be affected by the proposed expansion. Oak Wilt Prevention. As a method to prevent oak wilt, the ERL will not conduct airy tree removal operations at the landfill property between April 15 and July 1 ~ each year. In addition, oak stumps will be removed prior to April 1.5 each year. When removing trees and stumps, the ERL will prevent damage to remaining trees. 7. Will fully comply with all otlxer requirements of this Code, including any applicable requirements and standards.for the issuance of a license or permit to establish a~zd operate the proposed use in the city. Construction of the proposed expansion will require numerous state, county, and local permits and approvals. Permits and approvals from the MPCA include modification of the Solid Waste Disposal Facility permit, NPDES General Stormwater Permit for Construction, modification of the NPDES General Stormwater Permit for Industrial Activity, and amendment of the Title V Air Permit, and a CertiFcate of Need for development of the proposed expansion. A CON has been ah•eady been issued for an expanded capacity that is above the capacity obtained from the proposed expansion. "I'hc T:\0742\140C1CiryAppFeb\FC-B Repmt_finnl (2).doc 3-15 Metropolitan Council Environmental Services Industrial Discharge Permit will require modification as well as the ERL's Sherburne County Solid Waste License. The ERL has in place an approved Conditional Use Permit and Solid Waste facility License Agreement, which will need to be amended to include the proposed expansion.. With development of the proposed expansion, the landfill will continue to operate as it has in the past, in accordance with the City's requirements. 3.14 ERL'S REQUESTED CONDITIONAL USE PERMIT/LICENSE AMENDMENTS FOR THE PROPOSED EXPANSION MUST BE APPROVED City is bound by its prior decision-making. This is especially true with regard to its prior decision-making for a prior application which included the same request. City is thus bound by its October 19; 2009 denial of the ERL's proposed 73.4-acre expansion which included. the approximately 13-acre proposed expansion sought here. The approximately 13-acre portion was a significant part of the ERL's March 30, 2009 73.4-acre expansion application. The approximately 13-acres constituted approximately 18% by area of the ERL's requested 73.4-acre landfill expansion. And the approximately 13-acre proposed expansion, if approved for landfilling, «rould buy the ERL, 4 to 7 years of additional life. Such additional life would be critical to the ERL if it is forced to pursue alternatives to its requested expansion onto the 108.8-acre southern development area (SDA) property. Tellingly, the City's October 19, 2009 denial of the ERL,'s March 30, 2009 requested 73.4-acre landfill expansion identified absolutely no substantive opposition to this approximately 13-acre portion of the request. Unlike the rest of the initial expansion request, the proposed approximately 13-acre expansion is unquestionably all within the SWF overlay district. Rather than substantively oppose the approximately 13-acre expansion, the City instead remarkably represented that "the Landfill already has a CLJP ~':u»az~iaocaca>•n~PF'c~~reo Repon_ro:,i (z).aoc 3-16 that allows it to use its current property as a solid waste facility." City ERL II SJ Opp. Br. at 11-12 (emphasis added). The City even scoffed at the notion that "the Landfill truly believes that the scope of its current CUP prevents it from using as part of a landfilling facility part of its property in the area within the current SWF District," and it suggests that the ERL "resolve that uncertainty as part of ...the [parties'] process of discussing conditions for renewal of the Landfill's current CUP and License." Id. I3ut, when the ERL submitted just such a request as part of the renewal process, the City determined that a separate CUP/License amendment application was required. Before the Court, the City nevertheless attempted to justify its denial of the ERL's requested CUP and License amendments as it relates to the approximately 13-acre expansion. The City maintains that there were fow• procedural bars to its approval of this approximately 13-acre portion of the ERL's initial 73.4-acre landf Il expansion request ---- namely, (1) the ERL had to separately apply for the approximately 13-acre expansion, (2) the City could not legally approve of anything but the full 73.4-acre expansion request, (3) the City could not approve of the approximately 13-acre expansion because it was too technically difficult, and (4) the City could not approve of the approximately 13-acre expansion because the State-mandated 200-foot buffer had to be maintained within the SWF overlay district. Each of the City's four procedural arguments fails. First, the City's insistence on a separate application for the approximately 13-acre expansion was belied by its own prior representations. As the ERL highlighted in its opening memorandum to the Court in ERLII (F.RL II S.J. Br. at 11 n.l), the City previously represented that it would be "inappropriate (for the City] to consider" the ERL's request for an expansion on this approximately 13 acres without the full expansion onto the 108.8-acre SDA property. Ex. 98 at 1. The City nowhere denied its prior representations, and it is now bound by it. See Peter^son v. B~1SI*, 711 N.W.2d 470, 482 (Minn. 2006). Second, the Minnesota Supreme Court has already rejected the City's argument that it could not approve of CUP and License amendments for a lesser portion - i.e., the T:\0742\140C,\CityAppFeb\FGB Repon_final (2).doc 3-17 approximately 13-acre portion - of the ERL's March 30, 2009 requested 73.4-acre landfill expansion. See Breza v. City of Minnetrista, 725 N.W.2d 106, 1 14 (Minn. 2006). In Breza, a homeowner filed with the City of Minnetonka an application for a wetland replacement exemption of 5,737 square feet. Icl. at T08. The city did not deny the application until more than 18 months later. Id. The homeowner sued the city, arguing that the requested wetland .replacement exemption was approved in full under ~ ] 5.99, subd. 2 because the city failed to timely act within the statutory 60-day deadline. Icl. at. 109. The city conceded its violation of § 15.99 and that a portion of the exemption had been approved as a matter of law, but it argued that the approved exemption was just 400 square feet- i.e., the maximum exemption the city had the authority to approve. Icl. The Supreme Court held that the homeowner's wetland replacement exemption had indeed been approved as a matter of law under ~ 15.99. Id. at 114. But the Court agreed with the city and held that the scope of the approved exemption could not exceed the city's exemption authority. Id. Thus, while the homeowner was not legally entitled to receive the full requested wetland replacement exemption of 5,737 square feet, he was entitled to, and did, receive the maximum 400-square-foot exemption that ~>`~as within the city's approval authority. Id. Here, the City had at all times the authority under Brew to approve of the 1~RL's requested CUP and License amendments for the approximately 13-acre portion of the property that is already within the SWF overlay district even though the ERL applied for the full 73.4-acre landfill expansion. Indeed, as to the approximately 13 acres, the City's sole reason for denial was inapplicable, thus compelling approval. And, while Breza was decided on ~ 15.99 grounds, there is no rational or reasonable distinction between a court-ordered approval under § 15.99 or one on arbitrariness grounds. Either way, the requested zoning request is approved by the court as a matter of law to the extent of the application or to the fullest extent of the municipality's approval authority. The City was otherwise required by binding Minnesota Supreme Court and Minnesota Court of Appeals precedent to approve of the ERL's requested CUP and License amendments for just the approximately 13 acres as a reasonable condition to the request. T:\0742\I40fi1CiryAppFeb\F[0 Report_6nal (2).doc 3-18 See, e.g., Minnetonka Congregation of Jehovah's Witnesses v. Svee, 226 N.W.2d 306, 309 (Minn. 1975) (reversing CUP denial because "mOSt lnlportantly, there was no attempt made, either by the opponents or the council, to suggest or to impose conditions which would insure proper landscaping, setbacks, or ingress and egress"); Ver.'d USA, hoc. v. Sherburne County, No. A08-0581, 2009 WL 605722, at *4 (Minn. App.) (Ex. 41) ("because the county could have approved the CUP with conditions, we find the denial unreasonable, arbitrary, and capricious"), review denied (Minn. May 27, 2009); '1'risko, 566 N.W.2d at 357 ("the city's failure to propose additional measures to control dust and vibration or to identify its specific concerns over these potential problems supports a conclusion that the city acted arbitrarily"); Scott County Lumber Co. v. Cit)~ of Shakopee, 417 N.W.2d 721, 727 (Minn. App.) (reversing the city council's decision for legally insufficient reasons where city planner recommended granting the permit with 20 conditions dealing with dust, noise, and traffic, and appellant agreed to take all action necessary to meet the conditions}, review denied (Minn. Mar. 23, 1988). The City did not respond to this undisputed case law, nor did it make any effort to distinguish it. The City has thus waived any opposition and is now bound by it. See Peter°son, 711 N.W.2d at 482. Third, there is no substantive merit to the City's pretense that it is for some unspecifcd reason more difficult to design the landfill expansion to the southern-most boundary of the existing 137.4-acre landfill property. Contrary to the City's blatant scare tactic, them would be no "high wall of waste ending abruptly at the existing property line" and there is no "disaster waiting to happen." City ~RL II S.J. Opp. Br. at I l . And, in nearly 40 years ofhighly-regulated landfill operations, the City's feigned design concerns have never posed an issue, let alone a threat of a "disaster waiting to happen"! This is because the basic design of the landfill does not change based on the end point. Rather the toe of the landfill would simply move southward, with the height and slope of the landfill staying the same. To further assuage any fear, Sherburne County and MPCA also have to approve of the design of the landfill expansion. T'.\U74?\140(\Ciq~Appl'eb\FEB Repai~_fmal (2).doc ~- 1 (1 Fourth and finally, City has no City Code requirement that the State-mandated buffer be located within the SWF. See below. a. "Solid waste facilities," including "sanitary landfills," are not defined by the City Code to include the buffer area Section 30-1834(a) provides that "fslolid waste facilities shall not be permitted nor conditional uses in any other zoning district" other than the SWF overlay district. Cx. 15 (emphasis added). Section 58-171 reiterates that "[n]o solid waste facility shall be located or operated in the city except in those area of the city where such uses are allowed as a permitted or conditional use under chapter 30, article VI" - a.e., the SWF overlay district. Cx. 146 (emphasis added). But neither the State-mandated 200-foot buffer nor any other buffer is within the City Code's definition of "solid waste facility" or "sanitary landfill" For example,-S 58-174's "[p]erformance standards" narrowly limit "sanitary landfills" to where waste is "disposed" exclusive of any buffer area. For the closing of a "sanitary landfill," ~ 58- 174(a)(10) requires the following description: A detailed description of the location of the completed sanitary landfill site shall be recorded with the county register of deeds within one month after approval of the closure of the landfill. This description shall include [(1)] the general type and location of deposited solid waste, [(2)] the location of phased or staged disposal of wastes, [(3)] the type and number of lifts, original and final terrain descriptions, site hydrogeologic conditions, and [(4)] other pertinent characteristics of the completed sanitary landfill site. Ex. 146 (emphasis and bracketed information added). City Code also strictly defines "solid waste facility," including "sanitary landflls," as being limited to the "disposal" area, exclusive of any buffer area. City Code § 58-91 defines "[s]olid waste facility" as follows: T:\(1742\I40(>\CityAppFeb\FEB Report_finol (2).doc 3 -~10 Solid waste facility means all property, real or personal, including negative and positive easements and water and air rights, ((1)] which is or may be needed or useful for the processing or disposal of waste and for [(2)] which processin ~ o€., r disposal of~ waste a license is required under the provisions of this article. Solid waste facility includes, but is not limited to, transfer stations; sanitarylandfills; solid waste processing facilities, including resource recovery and waste reduction facilities; and waste burning facilities, including incinerators, boilers and other facilities for burning processed or unprocessed solid waste. Id. (italics in original; underlining and bracketed information added). Likewise, City Code § 58-91 specifically defines "[s]anitary landfill" as follows: Sanitary lcrrrdfill means a solid waste facility employing a method of disposing of solid waste on or into land by various forms of [(1)] excavation, [(2)] placement, [(3)] burial, [(4)] compaction, or [(5)] covering, without creating nuisances or hazards to public health or safety, by utilizing the principles of engineering to confine the solid waste to the smallest practical at•ea, to reduce it to the smallest practical volume, and to cover it with a layer of earth at the conclusion of each day's operation, or at such more frequent intervals as may be required by the state pollution control agency. or the city. Id (italics in original; underlining and bracketed information added). Stated otherwise, City Code defines "sanitary landfill" as limited to the "dis cos al of solid waste on or into land by various forms." (Emphasis added). And none of the f ve "various forms" of "dispos[al]" - i.e., "[(1)] excavation, [(2)] placement, [(3)] burial, [(4)] compaction, or [(5)] compaction" -includes either a 200-foot buffer requirement or a requirement that the buffer be within the SWF overlay district. MPCA similarly defines "[d]isposal facility" (Minn. Stat. § 115A.03, subd. 10; Minn. R. 7035.0300, subp. 34), "[f]acility" (Minn. R. 7035.0300, subp. 37), and "[m]ixed municipal solid waste land disposal facility" (Minn. R. 7035.0300, subp. 64) as limited to where waste is disposed of, exclusive of the buffer or setback area. b. City Code has no other applicable "setback" requirement T:\0742\I4D[\CilyAppFeb\FEB Reparl_finnl (2).doc ~? -2 1 1. Per § 30-1834(c), the required "setback" within the SWF overlay district is the same as the "setback" within Ch. 58, Art. III, Div. 4 for the "sanitary landfill" at issue For purposes of the SWF overlay district, § 30-1834(c) provides that "setback .. . applicable in the underlying zoning district shall be applicable, subject to any additional [(1)] regtirements, [(2)] regulations, and [(3)] standards which must be met pursuant to this Code for the establishment and operation of solid waste facilities." Ex. I S (emphasis and bracketed information added). Accordingly, the "setback" requirements, if any, within the SWF overlay district fora "sanitary landfill" are as required by the City Code Ch. 58, Art. IIL, Div. 4. 2. City Code Ch. 58, Art. III, Div. 4 contains no "setback" requirement fora "sanitary landfill" Chapter 58; Art. III, Div. 4 provides all of the City Code's "[p]rohibited area" (id. § ~ 8- 171), "[l]icense" (id. § 58-172), "[m]inimum requirements" (id. ~ 58-173), and "[p]erformance standards" (id. § 58-174) for "sanitary landfills." Ex. 146. None ofthcse four sections even arguably includes either a "setback" requirement or a requirement that such "setback" be located within the SWF overlay district. c. The several applicable rules of construction confirm ERI,'s position Each of the applicable rules of construction reinforces that the City Code does not require the State-mandated 200-foot buffer to be within the SV~F overlay district. 1. RULE OF CONSTRUCTION NO. 1: Plain language controls When interpreting an ordinance, this Court must first determine whether the ordinance language, on its face, is clear or ambiguous. See Gomon v. Northland Family physicians, Ltd., 645 N.W.2d 413, 416 (Minn. 2002). If the ordinance is clear on its face, then this T:\07421140(\Ciq~AppFeb\FEB Reporl_finid (2).doc '} -22 Court must give effect to that plain meaning, and there is no room for further construction. See American Tower, L.P. v. City of Grant, 636 N.W.2d 309, 312 (Minn. 2001); Beseke v. County of Goodhue, No. C6-00-489, 2000 WL 1341458, at *2 (Minn. App. Sept. 19, 2000) (Ex. 148) (citing Glen Paul Court Neighborhood Assn v. Paster; 437 N.W.2d 52, 56 (Minn. 1989)); Erickson v. Fullerton, 619 N.W.2d 204, 207 (Minn. App. 2000); Mullins v. Churchill, 616 N.W.2d 764, 767 (Minn. App. 2000). In other words, a city bound by the plain language of its ordinance. See Save Lantern Bay v. Cciss County Planning Comm'n, 683 N.W.2d 862, 865 (Minn. App. 2004) ("Fundamental to our construction of an ordinance is the rule that it'should be construed in accordance with the plain and ordinary meaning of its terms"') (quoting Nlohler° v. C.'iry ~~f St. Lozris Park, 643 N.W.2d 623, 634 (Minn. App.), review denied (Minn. Jul. 16, 2002)). An ordinance is ambiguous only if the language is subject to more than one reasonable interpretation. See American Fam. Ins. Group v. Schroedl, 616 N.W.2d 273 (Minn. 2000). This Court may look beyond the ordinance language only to resolve an ambiguity, not to create one. See Erickson, 619 N.W.2d at 207. The City failed to identify any such ambiguity in the City Code. And, without such an ambiguity, the City is bound by the plain language of the City Code on this point. 2. RULE OF CONSTRUCTION N0.2: Ambiguities are to lie construed in favor of the landowner An ordinance is to be construed so that it does not violate the law or public policy. See Rasmussen v. Glass, 498 N.W.2d 508, 514 (Minn. App. 1993). And, in the land use context, public policy favors the construction which permits the land owner's proposed use. See Dailey v. City of Long Lake, No. C3-998-1663, 1999 WL 118633, at *4 (Minn. App. Mar. 9, 1999) (Ex. 149) (finding that the public policy rule of construction favors interpretation in favor of land owner). T:\0742\1406\CiryApppeb\FEB Repon_finnl (2).doc 3-23 Construed in favor of ERL, there is no City Code requirement that the State-mandated 200-foot buffer be located within the SWF overlay district. 3. RULE OF CONSTRUCTION NO. 3: Ambiguities are construed per the underlying policy Zoning ordinances must be considered in light of their underlying policy goals. See Ff^ank's Nut^sery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608 (Minn. 1980); see also Medical Se~^vs., Inc. v. City of Savage, 487 N. W.2d 263, 266 (Minn. App. 1992). Any ambiguity in the City Code regarding whether the State-mandated 200-foot buffe-• has to be located within the SWF overlay district is, therefore, to be construed per the purpose for the provision at issue. The State-mandated 200-foot buffer has elsewhere been applied precisely as advocated here by the ERL. Ex. 145. The City cannot, therefore, suggest in good faith that its purpose will be undermined by the ERL's construction. Indeed, the City staff previously agreed (albeit implicitly) with the ERL's position. In response to the ERL and Tiller's October 2002 application to expand what the City staff dubbed the mining "component" of the landfill 150 feet into the State-mandated 200-foot buffer, the City staff explained that the put°pose of the State-mandated 200-foot buffer is to protect the adjacent landowners' "land values." Ex. 98 at 2-3 ("[t]he current two hundred (200) foot buffer [into. which it was then seeking to expand] was put in place to provide adeduate screening and distance between landfill activities and the [Tiller] property to the south to help protect [Tiller's] land value and limit impacts on future uses of that property"). As with the neighboring landowner to the Burnsville Sanitary Landfill (Ex. 145), adjacent landowners, like Tiller here, can protect their "land values" by an agreement with the landfill regarding the State-mandated 200-foot buffer. In fact, if the City staff had construed its City Code as requiring the State-mandated 200-foot buffer to be located within the SWF overlay district regardless of any agreement between the ER1_, and Tiller, then it would have said so in response to the ERL.'s 2002 application. It did T:\0742\I4oC\CitrAppFeb\pED Repon_linnl (2).doc 3-24 not. Id. Instead, the City staff simply represented that the ERL and Tiller had to reapply with the full expansion request. Id. 4. RULE OF CONSTRUCTION NO. 4: Ambiguities are to be construed consistent with its contract obligations Any ambiguity is to be interpreted, where possible, so as not to conflict with the zoning body's contractual or other requirements. See Strauss v. GinzbeNg, 218 Minn. ~7, 64, 15 N.W.2d 130, li4 (1944) ("The zoning ordinance cannot affect the obligation created by such restrictions [in covenant contained in deeds and cannot impair the contractual obligations so created"). Even though there is no other room for landfill expansion on the existing 1.37.4-acre landfill property, the City previously represented to this Court that the parties' 2003 Host Community Agreement's "language clearly refers to 'ex~~ansions ... on the L,andf ll ro ert ,"' not to "expansions" on the 108.8-acre SDA property. l/4/10 City ERL I Proposed Memo and Order at 26-27; 12/17/09 City ERL I oral argument. The City's judicial admissions would be nonsensical, if not disingenuous, if (as it now claims) the State-mandated 200-foot buffer had to be within the SWF overlay district; thereby barring any "expansions ... on the Landfill property."~ The City's "cooperation" obligation under the 2003 Host Community Agreement would also be rendered moot by Statements contained in a party's pleadings are binding on that party, and they are considered judicia] admissions., Knzrdserz v. United Stales, 254 P.3d 747, 752 (8th Cir. 2001); In r•e Crawford, 274 B.R. 798, 804-OS (Banks. 8th Cir. 2002); Bellefonte Reinsztrnnce Co. v. Argonaztt Ins. Co., 757 F.2d 523, 528 (2d Cir. 1985); Postscript Enters. v. City of I3ridgelon, 90S F.2d 223, 227-28 (8th Cir. 1990) (treating statements by parties made in briefs as judicial admission). "Judicial efficiency demands that a party not be allowed to conU•ovet•t what it has ah•eady unequivocally told a court by the most fo(ro~al and considered means possible." Knudsen, 254 P.3d at 752 (quoting Soo LHze R. R. Co. v. St. Lozris Sw~. Ry. Co., 12S F.3d 481, 483 (7th Cir. 1997)). And the doctrine ofjudicial estoppel prevents a party from taking inconsistent positions in the same or related litigation. State v. Profit, 591 N.W.2d 451, 462 (Minn. 1999): Hossnini v. W. Ago. riled. Ctr•., ] 40 P.3d 1140, 1142 (8th Cir. 1998); Bates v. Long lslcrnd R.R. Cn., 997 F.2d 1028, 1037 (2d Cir. 1993). Judicial estoppel is invoked "to protect the integrity of the .judicial process from a party who plays fast and loose with the courts." Profit, S91 N. W.2d at 462; Hossnini, 140 F.3d at 1143. The pwposes of the doctrine of judicial estoppel are [o preserve judicial integrity by avoiding the risk of inconsistent results in two proceedings. Hossaini, 140 F.3d at 1142; Sirnon v. Safelite Gloss Corp., 128 F.3d 68, 71 (2d Cir. 1997). "[A]bsent any good explanation, a party should not be allowed to gain an advantage by litigation on one theory, and then seen an inconsistent advantage by pursuing an incompatible theory." 18 C. Wright, A. Miller & G. Cooper, Federal Practice & Procedure § 4477 at 782. This approach focuses "directly on the risk of inconsistent results and the perceived unseemliness of a litigant's conduct." Id. at 781. T:\0742\1406\CiiyApprebU°G6 Report_final (2).doc 3-2C the City's current interpretation of its City Code. Such construction is to be avoided. See Chef°gosky v. C~°osstown Bell, Inc., 463 N.W.2d 522, 526 (Minn. 1990) (courts "will attempt to avoid an interpretation of the contract that would render a provision meaningless"). 5. RULE OF CONSTRUCTION NO. S: Ambiguities are to be construed so as to read omissions as intentional Where a zoning body demonstrates its ability to include certain provisions, its failure to include other like provisions elsewhere is to be deemed intentional. See Weestrand v. Fca°rningto» 1ia~p., No. C8-94-354, 1994 WL 396364, at ~`2 (Minn. App. Aug. 2, 1994) (EY. 150) (omission of certain criteria from township ordinance presumed intentional) (citing Northland CountT~~ Club v. Comm'r of'Taxatr.'on, 308 Minn. 265, 270-71, 241 N.W.2d 806, 809 (1976)). Here, the City demonstrated its ability not only to adopt "setbacks" within the SWF overlay district (§ 30-1834(c)) but also to incorporate by reference particular State rules (§ ~ 8-172(5)-(9)). But the City did not adopt the State-mandated 200-foot buffer as a reduired "setback," let alone a setback within the SWF overlay district. This omission is to be construed as intentional. ~ City further typif ed its disingenuousness on FebiTaary 3 by insisting that ERL submit a filll-blown CUl' and License amendment application for the 13.4-acre expansion. Ex. 1 ~ 1. Despite City's prior representations to this Court a(id the lack of any other good-faith basis for its conduct, ERL advised City on Pebrualy 5 that it would do so. Ex. 152. T:10742\140(\CilyAppFe6\FED Repon_fi nal (2).doc 3-26 Office of the County Recorder Sherburne County, MN Doc. No. 711601 Certified filed and/or recorded on 04-22-2010 at 09:50 is Ile Ashe, County Recorder Deputy Fee: $ 46.00 GIItlIplNllll~l STATE OF MINNESOTA COUNTY OF SHERBURNE CITY OF ELK RIVER CITY COUNCIL CITY OF ELK RIVER CONDITIONAL USE PROCEEDINGS In the matter of: Elk River Landfill, Inc. Request: Conditional Use Permit to Amend Existing Conditional Use Permit and License for - Elk River Landfill, Inc. Case No. CU 10-02 ..- ORDER GRANTING CONDITIONAL USE Waste Management, Inc., Owner The above entitled matter came to be heard before the City Council on the 16th day of, February, 2010, on a petition for a Conditional Use pursuant to the City of Elk River Zoning Ordinance, for the following described property: See Attached Agreement for Issuance of Amended Conditional Use Permit IT IS ORDERED that a Conditional Use be granted as upon the following conditions or reasons: See Attached Resolution No. 10-07, Agreement for Issuance of Amended Conditional Use Permit, and Solid Waste Facility License Agreement DATED this 16~~ day of February, 2010 STATE OF MINNESOTA ) COUNTY OF SHERBURNE) ss. CITY OF ELK RIVER ELK RIVER I, Jeremy Barnhart, Planning Manager for the City of Elk River with and in for said City, do hereby certify that I have compared the foregoing copy and Order granting a Conditional Use with the original record thereof preserved in my office, and have found the same to be a true transcript of the whole thereof. If the proposed work described in a conditional use permit has not been substantially completed within two (2) years after its date of issuance, the permit shall expire and become void except that the Council may, following recommendations of the Planning Commission, extend the permit for an additional period determined by the council on the receipt of a request for a permit extension prior to its expiration. A Conditional Use permit authorizes only the use specified in the permit and shall expire if, for any reason, the authorized use ceases for more than six (6) months. J my B art Planning Manager - IN TESTIMONY WHEREOF, I have hereunto subscribed my hand at Eli River, Minnesota, in the CountS~ of Sherburne, in the City of Elk River, on the c~©~+day of " r , 2010. DRAFTED BY: CitS~ of Elk River Elk River, Minnesota 55330 Signed before me a NOTARY PUBLIC this ~~= day of ~r , 2009. > ~ OEet~U1M KAY 1KJE8N~i NpiAlilt ~lJOLlC - W WI~IEAOTA ~rCpamlpbn6q~~m~~ OFFICE OF CITY PLANNING AND ZONING s:\communit~~ development\planning main\case files\cup\cu 10-02 er landfill\recording doc draft.doc RESOLUTION NO. 10- 07 City Council City of Ells River A Resolution Approving the Application of Ells River Landfill, Inc. for an Amended Conditional Use Permit and License for the Existing EIlz River Landfill WHEREAS, Elk River Landfill, Inc. (ERL), a wholly-owned subsidiary of Waste Management, Inc. (~TJMI), is the owner and operator of the Elk River Landfill (Landfill}; and WHEREAS, ERL has submitted a land use application (Application) to the City requesting the approval of an amended Conditional Use Permit (CUP) and Solid Waste Facilities License (SWFL) for the Landfill; and WHEREAS, pursuant to the requirements of Minnesota Statutes and the Elk River City Code, the request by ERL for an amended CUP and License was referred to the City of Elk River Planning Commission for the purpose of holding a public hearing and making a recommendation to the Ells River City Council on the request; and WHEREAS, the Planning Commission held a public hearing on the request on February 9, 2010, at which time ERL was provided as much time as it desired to present the request and all information and data they desired in support of the Application; and WHEREAS, the Planning Commission took testimony from all members of the public who desired to speak at the February 9, 2010 public hearing; and WHEREAS, the Planning Commission closed its public hearing on the request on February 9, 2010 and adopted a motion recommending to the Elk Rivex City Council that the request for an amended CUP and SWFL for the Landfill be approved, subject to the conditions recommended by City staff as set foxth in the proposed amended CUP and SWFL reviewed by the Planning Commission; and WHEREAS, the Elk River City Council, on February 16, 2010, held a public hearing on :. ~. the request for an amended CUP and License and considered the Planning Commission's recommendation; and WHEREAS, ERL and all members of the public desiring to speak at the February 16, 2010 public hearing before the City Council were provided the opportunity to do so; and WHEREAS, all written materials submitted by ERL and all members of the public prior to and at the public hearing on February 16, 2010 were accepted into the record; and WHEREAS, during the February 16, 2010 public hearing the City Council discussed the merits of the request and took into consideration the Planning Commission's February 9, 2010 recommendation; and WHEREAS, after all parties desiring to present testimony and offer evidence for or against the request for an amended CUP and SWFL had had the opportunity to do so, the Elk t:. River City Council closed the public hearing on the request, continued its discussion of the request, and reached the decision incorporated in this Resolution. NOW, THEREFORE, the City Council of the City of Elk River makes the following Findings of Fact and Decision with respect to the request of ERL for an amended CUP and SWFL for the existing Landfill: FINDII~TGS OF FACT 1. The City Council makes the following findings of fact with respect to the Application by ERL for an amended CUP and SWFL for the Landfill; (a) That the Landfill is a Solid Waste Facility, as that term is defined in the EIk River City Code of Ordinances. 2 (b} That Solid Waste Facilities are only allowed, as a conditional use, within the City's Solid Waste Facilities Overlay Zoning District. (c) That the Landfill is located within the City's Solid Waste Facilities Overlay Zoning District; (d) That a license to operate a Solid Waste Facility can only be issued to a facility which is located within the Solid `7Jaste Facility Overlay District and which has received a conditional use permit to operate; (e) That the Landfill has a valid, existing conditional use permit and license to operate a Solid Waste Facility on the existing Landfill property, which Conditional Use Permit and License expire on February 17, 2010; (fj That ERL has applied to amend the existing CUP and License so that operation of the existing Landfill may continue beyond February 17, 2010; (g) That the Application to amend the CUP and License applies only to the existing Landfill, as described in the legal descriptions attached to the Amended CUP and SWFL attached to this Resolution; (h) That the City Council does not have before it an application to expand the fill area of the Landfill into the existing 200 foot buffer zone (Buffer Zone) which extends 200 feet North from the Southern property Line of the Landfill; (i) That the 200 foot Buffer Zone, which is required by State law and regulation, is an integral part of the Solid Waste Facility which is the Landfill and is therefore required to be located on Landfill property which 3 ~~ is zoned Solid Waste Facilities and subject to the CUP and SWFL for the Landfill; (j) That the application before the City Council does not propose or contemplate any expansion of the Solid Waste capacity of the Landfill beyond that approved in the existing CUP and SWFL; (k) That the proposed Amended CUP and SWFL attached to this Resolution provide that no Solid Waste will be deposited within the 200 foot Buffer Zone; (1) That, based upon the entire record before the City Council, and the Findings of Fact set forth in this Resolution, the Amended CUP and SWFL attached to this Resolution comply with the City of Elk River Solid Waste Facilities Ordinance and meet the standards for approval of an ~' Amended CUP and SWFL for the Landfill. DECISION THEREFORE, the City Council of the City of Elk River makes the following Decision with respect to the request for an Amended Conditional Use Permit and SWFL for the existing Landfill: A. All of the reports and materials prepared by City Staff and City Consultants are hereby adopted and incozporated within the City Council's Decision on this matter. B. The record in this matter shall include all materials submitted to the City and presented to the Planning Commission and City Council, including those _^ 4 materials presented in the staff reports, by the City staff and by the City's consultants, and all materials and testimony submitted by or on behalf of ERL, and their consultants, and all testimony received from the public, as of the date of this Resolution. C. The Findings of Fact set forth above in this Resolution are hereby adopted and incorporated as specific grounds for the Decision set forth herein. D. Based on all of the above, and in particular on the fact that the Application for an Amended CUP and SWFL for the Landfill does not include a request to deposit Solid Waste within the existing 200 foot Buffer Zone or to increase the solid waste capacity of the Landfill, the request of ERL for an amended Conditional Use Permit and SWFL for the Landfill is hereby granted, and an amended CUP .and SWFL in the forms attached to this Resolution are approved, on condition that the "Agreement for Issuance of Amended .Conditional Use Permit," and the "City of Elk River Solid Waste Facility License Agreement," in the forms attached to this Resolution, are executed by ERL and/or WMI. THIS RESOLUTION PASSED AND ADOPTED this 16th day of February, 2010. ti ~~r---• ~ Steph' ie Klinzingc - r ~_/' Tina Allard, City Clerk GP:2728945 vl 5 CITY OF ELK RIVER AGREEMENT FOR ISSUANCE OF AMENDED CONDITIONAL USE PERMIT THIS AGREEMENT', entered into and effective this 16th day of February, 2010 by and between the QTY OF ELK RIVER, a Minnesota municipal corporation, (hereinafter referred to as the City), and ELK RIVER LANDFILL, INC., a Minnesota corporation (hereinafter referred to as the Permittee), which is a wholly owned subsidiary of Waste Management, Inc. a Delaware corporation, provides as follows: WI~REAS, the Permittee owns the real properties described on Exhibit A attached hereto (hereinafter referred to as the Landfill Property), situated in the City of Elk River; and WI~REAS, Permittee has been operating a landfill on the Landfill Property prior to January 20, 1987, and is currentlyoperating alandfill at that location (the Landfill); and WI~REAS, the City adopted an amendment (the Amendment) to its zoning ordinance authorizing the designation of a Solid Waste Facility (SWF~ district effective January20, 1987; and WI~REAS, prior to the adoption of the Amendment, landfill use was not a permitted or conditional use in any zoning district within the City; and WI-AREAS, Permittee's landfill operation on the Landfill Propertywas a nonconforming use prior to the adoption of the Amendment; and WI~REAS, the appropriate and lawful regulation of the use of land for landfill purposes within the City is a matter of important public need and interest; and WI~REAS, the residents of the City could be adversely affected by the unregulated operation of the Landfill; and WI~REAS, the City rezoned the Landfill Properryto SWF district and issued a Conditional Use Permit and Solid Waste FacilityLicense forthe Landfill operation in October, 1988; and WHEREAS, the Permittee applied for and on July 20,1998 the City approved an amendment and renewal of the Solid Waste Facility License and Conditional Use Permit to permit construction of additional cells at the Landfill; and WI~REAS, the City Council determined that for reasons related to public health, safety, and welfare the final elevation of the Landfill should be limited to no more than 1120 feet above Mean Sea Level (MSL); and WHEREAS, the permittee ,agreed to a final elevation of no more than 1120 MSL; and WHEREAS, the Permittee applied on January 21,1999 to the Cityfor amendment and renewal of the Solid Waste FacilityLicense and Conditional Use Pernlit to permit the construction of additional cells at the Landfill; and WHEREAS, the Permittee applied on November 19, 2001 to the Cityfor an amendment of the Solid Waste Facility License and Conditional Use Permit to permit the construction of a demolition debris cell at the Landfill; and WHEREAS, the Permittee applied on March 15, 2004 to the City for an amendment of the Solid Waste Facility License and Conditional Use Permit; and WHEREAS, the Permittee has applied on April 21, 2008 to the Cityfor an amendment of the Solid Waste Facility License and Conditional Use Permit for the Landfill; and .WHEREAS, the Permittee has applied on February 17, 2009 to the City for an amendment of -- - the Solid Waste Facility License and Conditional Use Permit for the Landfill; and WI~REAS, the Permittee has applied on December 28, 2009 to the City for an amendment of the Solid Waste Facility License and Conditional Use Permit for the Landfill; and WHEREAS, the City of Elk River Planning Commission and City Council have held hearings on the request to amend the Conditional Use Permit, at which hearings all citizens of the City of Elk River and other interested parties have had the opportunity to be heard. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Elk River, that Elk River Landfill, Inc., is hereby granted an amended conditional use permit for landfill and related operations on the Landfill Property described above, subject to the terms, conditions and qualifications hereinafter stated, to wit: 1.) Scope and Conduct of Landfill Operations. The operation of a solid waste landfill maybe conducted on the Landfill Property in conformance with existing statutory and regulatory authority and requirements of the City, Sherburne County (the County), and the Minnesota Pollution Control Agency (MI'CA); and in accordance with authorization and limitations contained in: (01) the current MPCA Solid Waste Permit No. 74 issued to the Permittee; (02) the current Sherburne County Solid Waste Landfill License of the Permittee; S:\PLANNiNG MAIN\Gase Files\CUP\CU 10-02 ER Landfill\LANDFILL CUP ZO10 2 16 10 CC veisionDOC Page 2 (03) the current City Solid Waste Facility License of the Pernzittee; and (04) this Permit. Landfill operations maybe conducted on the Landfill Site only in accordance with the plans, descriptions and reports incorporated in said permits and licenses. Provided, however, that the entire Landfill shall have a final elevation of no more than 1120 feet above MSL including final cover, as provided in the Long Term Development Plan submitted to the City dated March 1997, and as revised on April 15, 1997. Any changes made to the plans, descriptions, reports, permits and licenses, including MPCA Solid Waste Permit No. 74 and the County License, shall also be reviewed and approved, approved with modification, or disapproved bythe Cityas described in the current License issued by the City. 2.) Scope and Conduct of Related Operations. (01) Recycling Center. The operation of a recycling center on the Landfill Property maybe conducted, if in conformance with all applicable terms and conditions of this Permit, subject to the following conditions: (a) The operation of the recycling center shall comply in all respects with all applicable requirements of the City Code of Ordinances and all applicable federal, state, and county laws and regulations. (b) The recycling center shall be located and operated as shown on plans submitted by Permittee and approved byCitystaff: -The recycling center-may accept additional materials, including household hazardous wastes, provided that Licensee's plan for handling additional materials and any changes to the recycling center shall first be approved in writing by the City. (c) The recycling center shall be operated by Permittee. Operation of the recycling center by a different operator shall require the prior written approval of City staff. Any different operator of the recycling center must complywith all of the terms and conditions of this Permit. (cl) Permittee shall place appropriate signage on the Landfill propertyto direct citizens to the location of the recycling center. (e) Used oil recycling areas shall be within an enclosed building with an impermeable floor and containment area, as approved by staff. (f) Battery storage shall be within an enclosed building with an impermeable floor and containment area suitable for battery acid, as approved by staff. (g) Battery, paper and oil storage areas shall be separated to reduce fire potential, as approved by the City Fire Chief . (h) Permittee shall have a regular schedule for appliance pickup, to be approved by City staff. S:\PLANNING MAIN\Case Files\CUP\CU 10-02 ER Landfill\LANDFILL C[JP 2010 2 16 10 CC veision.DOC Page 3 (02) Yard Waste Composting. The operation of a yard waste composting facilityon the Landfill Property within the City limits maybe conducted, if in conformance with all applicable terms and conditions of this Permit, subject to the following conditions: (a) The operation of the yard waste composting facility shall comply in all respects with all applicable requirements of the City Code of Ordinances and all applicable federal, state, and county laws, and regulations. (b) The yard waste composting facility shall be located and operated as shown on plans submitted byPermittee and approved by City staff. (c) All plastics shall be removed from yard waste brought to the facilitybefore composting. (d) All municipal solid waste must be immediately removed from yard waste and landfilled. (e) The yard waste composting facility must be operated in such a manner as to keep odors to a m;n;mum. If odor becomes a problem staff may require more frequent turning of compost piles and/or watering to ensure that the compost remains aerobic and breaks down as quickly as possible. (f) The maximum amount of yard waste which maybe accepted is 100,000 cubic yards per year... (g) Positive drainage awayfrom the compost area must be implemented, as approvedby City staff. (h) Yard waste and /or compost may not be used as daily cover for the landfill. (i) That Permittee is in strict compliance with all other terms, conditions and requirements of this Conditional Use Permit, including specifically, but not limited to, the operational and environmental monitoring requirements of sections 4, 6, and 7, and the requirements of sections 17 and 25 to make prompt payment of all fees and costs due to the City. No yard waste maybe accepted at the yard waste composting facility if this condition is not complied with. Permittee must immediately stop accepting yard waste upon written notice from the Citythat there is a violation of this condition. (03) Other Related Operations. No other operations or activities, whether or not related to the Landfill, shall be permitted or allowed on the Landfill Propertyunless this Permit is fast amended to specifically allow such operations and to specifythe applicable conditions, except mining activities or other operations licensed or permitted separately by City. 3.) Buffer Zone/Screening. ABuffer Zone shall be established within the perimeter of the Landfill Property around the waste disposal areas of not less than 200 feet, except on the north side. Within this Buffer Zone, no waste disposal may occur. The Landfill shall develop an inventory of S:\PLANNING MAIN\Case Files\CUP\CU 10-02 ER Landfill\LANDFILL CUP 2010 2 16 10 CC veision.DOC Page 4 significant trees within the buffer zone. The preservation of trees within the buffer zone shall be provided for during the construction, operation, and be included in the end use plan to be submitted for approval by December 31, 2011 by the City. 4.) Specific Additional C-~erational Requirements. (01) Leachate Transmission Pipes. Leachate transmission pipes shall be designed to ensure that double containment and adequate leak detection exists as approved by the MPCA, County and City. Permittee shall verify to the City every four (4) years that the existing Leachate transmission pipes do not leak. (02) Backup Leachate Pump. Permittee shall maintain backup a pumps for use in the event of pump failure at the Leachate sump, wet well and Leachate storage tank on-site. As an alternative, the pernuttee shall maintain provisions for restoring temporary Leachate pumping within a 24-hour period and adhere to the current "Leachate Management Plan" as approved by MPCA. (03) Leachate Holding Tank. Permittee shall ensure that the Leachate-holding tank is pumped out on a regular schedule. It shall be a violation of this Permit to allow Leachate to collect on the liner to a depth exceeding one foot due to the Leachate-holding tank being full. (04) Leachate Recirculation. Pernzittee shall conduct Leachate Recirculation pursuant to MPCA, County and City regulations. In the event that any operational problems occur from Leachate recirculation, the Permittee shall immediately cease Leachate recirculation and revert to prior method of Leachate recirculation unless and until another remedy for the problem is approved bythe City. (05) Gas Collection System. Permittee shall conduct active landfill gas collection in accordance with approved plans and shall construct additional phases of the control system at the time of finale cover construction. (06) Phase IV Water Quality Monitoring Work Plan. The Phase IV Water Quality Monitoring Work Plan which describes the sampling frequency, parameters, protocols and reporting frequency for landfill gas, Leachate, Leachate piezometers, Leachate lysimeter, residential wells, groundwater monitoring wells and surface water shall be updated annuallyto reflect changes in the monitoring systems. The monitoring plan shall yield adequate information for assessing the effectiveness of the landfill gas control system in decreasing VGC contaminants in the groundwater. (07) Annual Active Gas Control System Assessment. Annually assess the effectiveness of active landfill gas control operations based on the results of groundwater and landfill gas monitoring. Incorporate the evaluation in the MPCA Annual Report for the landfill. (08) Construction Quality Assurance Reports. A Construction Quality Assurance (CQA) Report shall be submitted to the City prior to the placement of waste on newly constructed lined areas. A CQA report shall also be submitted for Landfill areas which receive final cover.. A CQA report shall also be submitted for installation of Leachate recirculation drainfield areas to document position within the cell, suitable base contours and piping elevations The report shall demonstrate that the work is completed to the plan specifications. The Report shall be certified by an engineer registered in the State of Minnesota and shall include but not be limited to: S:\PLANNING MAIN\Case Files\CUP\CU 10-02 ER Landfill\LANDFILL CUP 2010 2 16 10 CC veision.DOC Page 5 (a) All relevant construction specifications; (b) All shop drawings for prefabricated components; (c) Photo documentation of all critical aspects of construction; (d) Deflection testing results for leachate collection and transmission pipes; (e) Narrative description of all as-built variances from the plans and/or specifications; (f) As-built cross-sections of the liner sub grade; (g) As-built elevations for all pipe inlets and outlets and pump-on/pump-.off controls; (h) Completed manufacturer warranties; (i) All physical testing results for soils and other materials used for construction. (10) Permittee shall notify the City at least two (2) days in advance of liner barrier layer installation or final cover barrier layer installation. The Permittee shall assist the City in arranging inspection of the site at any reasonable time the City requests. The Permittee shall keep the City informed of ongoing construction progress and shall specificallynotifythe City of significant changes encountered in the geological,-hydrological, or constnzction conditions. The City may reasonably require work which is covered or otherwise obscured prior to City inspection, to be re-excavated for City - Inspection. (11) Temporary Fencing - C-n-Site Litter Control. Litter control fences shall be maintained around the working area(s) of the Landfill to prevent the blowing of paper or other litter on or off site. The Permittee shall assign employees to engage in a regular and routine program to inspect the Landfill Site and clean up areas where litter accumulates on the Landfill Site. (12) Permanent Fencing. The Pennittee shall maintain a minimum six-foot high fence around the perimeter of the site if and when necessary, based upon reasonable concerns regarding public safety or trespassing or uncontrolled dumping. (13) Public Information. The Permittee shall maintain a sign at the entrance to the Landfill Site which describes in common terms the substances which maybe disposed at the Landfill and those substances which may not be accepted for disposal. (14) Sanitary Facilities. Adequate sanitaryfacilities and shelter shall be provided for site personnel. (15) Electrical Service. Adequate electrical service shall be provided at the site for operations and repairs. (16) Fire Fighting. Fire fighting equipment including at least one piece of heavyequipment, fire extinguishers in all machines working in the Landfill, and a water truck shall be kept available on the site during the active life of the Landfill. The self-contained breathing apparatus purchased for the City Fire Department shall be available at the Fire Department for use bypermittee on a temporary S:\PLANTIING MAIN\Case Files\CUP\CU 10-02 ER Landfill\LANDFILL CUP 2010 2 16 10 CC versioaDOC Page 6 basis, as approved bythe Fire Chief. Permittee shall make a landfill operator available at the request of the City Fire Chief to consult and advise the fire department about landfill fire fighting issues. (17) Safet~Equipment. Emergency first aid equipment consisting of at least one fast aid kit kept near the working face, and at least one shower on site available to all personnel and customers shall be supplied. At least one of everyfour landfill personnel shall be trained in fast aid and CPR (18) Water. A potable water supply shall be available for site personnel. (19) Stora~e• Adequate on-site shelter shall be provided for maintenance and storage, sufficient to supply the equipment required by this section, during cold weather operations. (20) Vehicle Stacking Facilities. Adequate vehicle stacking facilities shall be provided to ensure that no vehicle desiring entry into the site shall have to wait outside the perimeter of the Landfill Property. (21) Communication. Adequate communication facilities shall be provided for emergency purposes. (22) Securi .Agate shall be provided at the entrance to the site and kept locked when an attendant is not on duty. (23) Haul Roads. An all weather haul road shall be provided to the unloading area and watered on a regular basis. - (24) Adequate Equipment. Adequate equipment shall be supplied capable of spreadingand „_ ., compacting the refuse as received. At least one machine capable of covering the working face, in its entirety at the end of the day, shall be supplied. (25) Information Display Subject to approval bythe City Council the Permittee shall maintain at each entrance to the Landfill Property a sign stating the name of the facility, the schedule of days and hours the facility is open to the public, prices for use of the facility, the Minnesota Pollution Control AgencyPermit number and the penaltyfor nonconforming dumping. (26) Small Load Dumping Site. The Permittee shall, during all hours of operation maintain and operate a separate suitable and safe disposal area for the dumping of small loads bypickup trucks, cars, and trailers. This separate site shall be located and operated with due regard for the nature of the vehicles bringing such loads, and the normal frequency of such dumping. (27) C-ak Wilt Prevention. As a method to prevent oak wilt, Permittee shall not conduct any tree removal operations at the landfill Property between April 15 and July 15 each year. In addition, oak stumps shall be removed prior to April 15 each year. When removing trees and stumps, Permittee shall prevent damage to remaining trees. (28) Leachate Recirculation. The Permittee may conduct Leachate Recirculation as provided for in Subparts (01) - (04) above. S:\PLANNING MAII~Case Files\CUP\CU 10-02 ER Landfill\LANDFILL CUP 2010 2 16 10 CC vexsion.DOC Page 7 (29) Cell 17. The Landfill shall submit a narrative to supplement the "Cell 17 Perimeter Berm Base Grades" Plan dated February 2010 which describes the construction techniques and schedule for side slope construction. The narrative shall identifythe provisions for surface water drainage and the preservation of the buffer area. (30) Alternative Cover. "Alternative Cover" shall be defined as any suitable clean cover material other than that of Clean Earth Fill. Alternative intermittent and intermediate cover material maybe used if such cover material is suitable for compaction, capable of supporting vegetation, and meets MPCA standards set forth in MN Rule 7035.2815, subpart 6, and Elk River Landfill's Industrial Waste Management Plan. (31) End Use Plan. The Landfill shall submit a revised End Use Plan to the CitybyDecember 31, 2011 which indicates passive recreational use of the Landfill Property following final closure of the Landfill. 5.) C-ff-Site Litter Control. The Permittee shall engage in a regular and routine litter maintenance and removal program extending one-half mile north and south of the entrance to the Landfill and to any other areas adversely impacted by debris relaxed to Landfill operations as maybe determined by the City. Litter shall be removed from these areas not less than once per week and more often if necessarybecause of spills or complaints from neighboring property owners, and ensure that these areas are kept free of litter generated bytrucktraffic traveling to and from the Landfill. In addition, Permittee shall inspect all trucks leaving the Landfill 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. In - the event that Permittee fails to remove litter within forty-eight (48) hours of notice of accumulation of litter by the City,_the City may cause such litter to be removed. The City shall-bill the cost of such - removal to the. Perrnittee, which shall remit payment within thirty (30) days of the date of such billing. 6.) Hours of operation. The landfill shall not be operated between 7:00 p.m, and 6:00 a.m. The landfill may accept waste during off hours onlyunder the following circumstances: (a) The wastes have been tested and approved for disposal; (b) Acceptance is necessary during off hours because of extraordinary circumstances; (c) Each instance of off hour acceptance has received the prior approval of the City Building and Environmental Administrator and such approval was granted during City business hours; and (d) Each instance of off hour acceptance is documented in a letter sent bythe Landfill to the Building and Environmental Administrator within five business days of the instance of off hour acceptance. 7.) Site Environmental Monitoring. (01) On-site Groundwater. The Permittee shall perform on-site water qualitytesting at the monitoring wells in the manner required by the MPCA permit. The wells shall meet current Department of Health Well Code Standards. The Water Quality Report shall be submitted to the City when it is submitted to the MPCA. S:\PLANNING MAIN\Case Files\CUP\CU 10-02 ER Landfill\LANDFILL CUP 2010 2 16 10 ~ vexsion.DGC Page 8 (02) Surface Water Quality. The Permittee shall have surface water qualitytests performed in conjunction with sampling quarterly events when water is present. (03) Off-Site Groundwater Quality The Permittee shall annually sample the individual private wells identified in the Phase IV Water Quality Monitoring Work Plan required by section 4(05). All private wells shall be analysed for pH, COD, ammonia, chlorides, specific conductance, and volatile organic compounds (MDH method 465C and EPA method 601, 602). (04) Modification. The testing programs specified in this Section 7 may be modified by City staff if City staff reasonably deterniirles there exists a need for additional wells to be tested or additional parameters to be analyzed, based upon water or air quality test results indicating the presence of contamination. 8.) Hydrogeologic Investigation. The investigation of the hydrological and geophysical characteristics of the site shall be continued and any other new information relating to the hydrogeologic impact of the site shall be reported to the City . Hydrogeologic reports shall be updated, amended, and modified as warranted by newly discovered or additional data acquired in the continued hydrogeologic investigation. The Permittee shall also notify City at least two (2) days in advance of any soil boring or well construction required by this Permit. The Permittee must conduct additional contaminant investigation and monitoring as requested by the MPCA in the vicinity of P304C, P320 and an area southeast of P314C. 9.) -Dust, Noise, and Odor. Fugitive dust emissions off-site shall be controlled at the Landfill site as necessaryby undertaking the following:. road surfaces within the Landfill Site shall be wetted with water or an appropriate chemical whenever off-site dust levels become unreasonable as deternuned by the City Environmental Administrator. Dust pollutives shall be utilized to the extent necessary on cover maxerial such as stockpiles to reduce wind erosion as well as on other exposed surfaces as appropriate. Cover compaction and revegetation activities shall be undertaken promptly on the completion of various fill areas and vegetative cover capable of quick growth shall be utilized. Plantings of bushes and trees shall be installed if needed to buffer the Landfill Site and min; ;~e wind erosion. All equipment and vehicles utilized at the Landfill Site shall be periodically inspected and maintained to m;n;m;7e noise. Vegetative bamers along the boundaries of the Landfill Site shall be utilized to ,Y„n;m;~.~ off-site noise impacts. Applicable state standards for noise pollution shall not be exceeded bythe Landfill operation, equipment, vehicles, or machinery. The Permitee agrees that it will use best management practices to control against odors. The Environmental Administrator may make recommendations regarding possible odor controls. If a verified odor problem is ongoing, both parties agree to institute good faith negotiations to 1rLn;m;7e the odor problem. If in the event that the City receives ten or more complaints within asix-hour period relating to a single odor description and this odor complaint has been verif ied by both City and Permitee and identified as coming from the Facility, the Permitee shall cease such activity(s) that are the direct cause of the odor(s). Normal activity(s) shall not resume until the Permitee has, to the satisfaction of the City, fullymitigated against such odor(s). S:\PLANNING MAIN\Case Files\CUP\CU 10-02 ER Landfill\LANDFILL CUP 2010 2 ib 10 CC vexsion.DOC Page 9 10.) Closure. Within six (6) months of a written demand by the City, but in no event later than one (1) year prior to the date projected for cessation of landfill operations, the Permittee shall submit to the City for approval an updated closure and post-closure plan for the Landfill Site. 11.) Insurance. The Permittee shall secure and maintain insurance from an insurance company acceptable to the City and authorized to write casualty insurance in the State of Minnesota which will protect the Pernlittee, its agents and employees, and the City from claims for bodily injury, death, or property damage which may arise from the operations on the Landfill Site. The Permittee shall file a certificate of insurance or a certified copy of the insurance policy with the City. Such insurance policy shall contain a clause providing that it shall not be cancelled by the insurance company without thirty (30) days' written notice to the City of intention to cancel. The following coverages shall be provided in amounts not less than those specified: (01) Public liability, general liability, loading and unloading, personal injury, and property damage: (a) $1,000,000 per claimant (b) $1,000,000 per occurrence (c) $1,000,000 annual aggregate (02) Automobile and truck public liability, personal injury, and property damage, including owned and non-owned vehicles with a $1,000,000 minimum limit. (03) The -City may require additional insurance be provided by the Permittee if market conditions change-such that additional coverage become economically practicable. The insurance limits required bythis section shall be reduced if these insurance limits are not reasonably and economically available. For the purposes of this subsection "economically practicable," "reasonably and "economically available" shall be determined by the insurance coverages affected bythe Minnesota Joint Underwriters Association or the readily available private insurance market. 12.) Bonding (01) The Permittee shall furnish a surety bond in favor of the City in the amount of Three Hundred Thousand Dollars ($300,000) to run continuously (annual renewal allowed) until all landfill operations and closure activities are completed to ensure compliance with the terms and conditions of this Conditional Use Permit. Such bond shall be made by an insurance company or other financial institution acceptable to the City and shall be in a form acceptable to the City and its attorney. The bond shall be subject to cancellation by the obligor by giving one hundred twenty (120) days' prior written notice to the City. The Permittee shall renew each such bond no more than sixty (60) days after any such written notice, and failure to so renew the bond shall be an event of default of the obligations of the Permittee and shall constitute ground for immediate and automatic revocation of this Permit. Said bond shall provide that if the Pernuttee refuses to obey any of these requirements or to any of the acts required by this Conditional Use Permit or for any reason ceases to operate or abandons the landfill, and the City is required to expend monies or labor or material to restore the Landfill S:\PLANNING MAIN\Case Files\CUP\CU 10-02 ER Landfill\LANDFILL CUP 2010 2 16 10 CC veision.DOC Page 10 Site to the condition and requirements required bythis Conditional Use Permit, the obligor shall reimburse the Cityfor anyand all expenses incurred to remedythe failure of the Permittee to comply with this Permit, and the obligor shall indemnify and save the City harmless from all losses, costs, and charges that may occur to the City because of any default by the Permittee. The bond maybe in a form exercisable by both the City and the County provided that such exercise feature allows its use on instruction by either or both the City or County. (02) In the event this, or any subsequent permit is revoked or the Permittee closes operation of the landfill for anyreason, including but without limitation, order of the court or other agency of competent jurisdiction, bankruptcy, insolvency, or abandonment, the Permittee shall immediatelyproceed to close, cover, and grade the Landfill Site according to an environmentally sound closure plan which shall be approved by the City and which shall comply with all requirements of the MPCA and Sherburne County relating to final closure. In the event the PexYnittee fails to comply with the terms of this subparagraph (02), the City may, upon ninety (90) days' prior notice to the Permittee, enter into the property and pert orm all such obligations, the cost of which shall be borne bythe Permittee, or, in default thereof, by its surety. 13.) ,A~plicability of Conditional Use Permit. 'This Permit shall applyto the entire Landfill Property within the City limits. This Conditional Use Permit shall run with the real property and applyto the Permittee, its successors, and assigns. 14.) Permit Period. This Permit shall be in force unless amended, revoked or otherwise terminated or until the Landfill operations authorized herein are completed and the Landfill is closed. in compliance with the closureplan, whichever comes first. 15.) Violation of Conditions. If the Permittee or its successors or assigns violates anyterm or condition imposed bythis Conditional Use Permit, or any solid waste facilities license issued for operation of the Landfill, this Conditional Use Permit maybe revoked and terminated. Without limiting the foregoing, the violation of any statute, regulation, ordinance, or permit condition imposed by lawful governmental authority and governing operations on the Landfill Property is grounds for suspension, revocation or termination of this Conditional Use Permit. The change, alteration, or amendment of any such statute, regulation, ordinance, or permit condition by any governmental authority other than the City shall not excuse the Permittee from compliance with statutes, regulations, ordinances, or permit or license conditions in effect on the date of the original issuance of this Permit unless compliance is waived or excused by the City Council. The City shall not unreasonably refuse to waive or excuse compliance with existing permit or license conditions. 16.) Documents, Reports, and Maps. Copies of all documents, reports, and maps which are supplied to the MPCA or to Sherburne County shall also be supplied to the City, at the same time. 17.) Charges and Fees. The Permittee agrees to payto the Citythe City's reasonable costs for administering, enforcing, modifying and amending this Conditional Use Permit, as follows: (01) Pernuttee shall pay one hundred percent (100%) of the City's costs for processing renewals, amendments or proposed amendments to this Permit; and S:\PLANNING MAIN\Gase Files\CUP\CU 10-02 ER Landfill\LANDFILL CUP 2010 2 16 10 OC version.DOC Page 11 (02) Permittee shall pay one hundred percent (100%) of the City's costs for administering and enforcing the terms of this Permit, including costs for reviewing Pemuttee's compliance with the terms and conditions of this Permit, costs for bringing Permittee into compliance with the terms and conditions of this Permit (including legal costs); and City costs incurred for review of Permittee initiated requests. such as "co-disposal" approvals, etc. 18.) On-Site Inspection. The City may inspect the Landfill Site for the purposes of examining and copying nonconfidential records; conducting inspections, surveys, investigations, monitoring, or sampling; and otherwise obtaining necessary information pertaining to the construction, operation, and environmental effect of the disposal facility, control equipment, and control materials. Inspections shall be conducted during normal business hours except in the event of an emergency. Citypersonnel or agents performing the inspection will notifypersonnel at the landfill office at the time of inspection. Permittee shall promptlynotifythe City of the name of an authorized person to be notified and provide access to the Landfill in case of emergency. The City shall be notified by the Permittee immediately upon the occurrence of any explosion, fire, or other emergency at the Landfill; upon the discovery, release or spill of the hazardous or dangerous materials, as defined in the City of Elk River Solid Waste Ordinance, at the Landfill; and of anyviolations of the conditions of this Permit. 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 maybe revised or supplemented by City staff from time to time as necessaryto address the City's needs for notification. 19.) Indemnitv. The Permittee shall indemnify, defend, and hold the City harmless from all claims, demands, and/or actions, legal and/or equitable arising from the operations on the Landfill Site. 20.) Workers Compensation. The Permittee shall carry in a company authorized to transact business in the State of Minnesota a policy of insurance fulfilling all requirements of the Worker's Compensation Act, including all legal requirements for occupational diseases, orself-insure for the above. 21.) Snlit Samples. The Permittee shall notifythe Cityforry--eight (48) hours before any sampling of .groundwater or surface water and allow the cityto obtain split samples of such waters. 22.) Right to Require Performance. The failure of the City, at anytime, to require performance bythe Pernuttee of anyprovisions hereof shall in no way affect the right of the City thereafter to enforce the same. Nor shall waiver by the City of any breach of any of the provisions hereof be taken or held to be a waiver of any succeeding breach of such provision or as a waiver of anyprovision itself. 23.) Severability. If anyprovision of this Conditional Use Permit shall be declared void or unenforceable, the other provisions shall not be affected, but shall remain in full force and effect. 24.) Amendment. This Permit shall not be considered modified, altered, changed, or amended in any respect unless approved bythe City Council as required by City Ordinance. 25.) Fees. The Peixnittee shall pay the Host Community Fee (HC~ provided for in the Host Community Agreement entered into between the Pexrnittee and City on September 15, 2003. If S:\PLANNING MAIN\Case Files\CCJP\CCT 10-02 ER Landfill\LANDFILL CUI' 2010 2 16 10 OC veision.DOC Page 12 Pernuttee fails to paythe HCF, for any reason, Pemuttee shall then pay the Landfill Abatement Surcharge authorized byMinn. Stat. ~ 115A.921, Subd. 1 (the Surcharge). The Surcharge shall be paid directly to the City on a monthly basis, and shall be accompanied by an accurate report on the amount and type of solid waste disposed of in the landfill each day during the month. The Surcharge due for each month shall be received by the City no later than the thirtieth calendar day of the succeeding month. Failure to paythe Surcharge when due shall be cause for revocation of this Permit and shall be a violation of the conditions and requirements of this Permit. 26.) Conflicts. In any cases in which the Permittee believes there is an irreconcilable conflict between the requirements of this Conditional Use Permit and Laws, Rules, Regulations, or Order of any other governmental authority, the PerYrlittee shall promptly notify the City of such irreconcilable conflict and request an amendment of this Conditional Use Permit. Until such time as the City acts upon a request for an amendment to this Conditional Use Pernut, which it maygrant or deny in its sole discretion, the terms of this Permit shall govern all operations at the Landfill Site and shall prevail over the provisions of any document submitted by the Permit Holder and any requirements of state for federal law. The City shall not unreasonably refuse to amend this Permit or waive compliance with this Permit in order to prevent violation of the law. 27.) Modification, Suspension, or Revocation of Permit. The violation of any of the terms of this Permit is ground for suspension or revocation hereof. Furthermore, the City specifically reserves the right, and the Pernuttee agrees that this Permit maybe amended, suspended, or revoked by the City as reasonably required to protect the public health, safety, welfare, and the environment. Specifically, but without limiting the foregoing, the City may amend, suspend, or revoke this Permit, whenever anyreliable information is secured from a recognized source which demonstrates that the continued operation of the Landfill places the public health, safety, welfare, orthe-environment in jeopardy. Such information includes, but is not limited to .the following: (01) A determination the (other than as indicated in the permit application) leachate generated at the Landfill Site is migrating to surface or ground waters in a waythat threatens the public health, safety, or general welfare. (02) A determination that (other than as indicated in the permit application) standard recommended health advisory levels or intervention levels for drinking water (whether promulgated as of the date of this Permit or at a later date, bythe United States Environmental Protection Agency, the Minnesota Department of Health, the Minnesota Pollution Control Agency, or any other governmental agency promulgating standards for toxic wastes, hazardous wastes, pollutants, or contaminants in ground waters or surface waters) are being violated as a result of landfill operations. (03) A determination that the emission of landfill gas on or adjacent to the landfill Site is creating or threatens to create a health or safety hazard to the community. Without limiting the forgoing, the City reserves the right to amend this Permit to impose upon the pernuttee the obligation to complywith any state or federal law or regulation relaxing to the operation of sanitary landfills, whether or not said laws or regulations apply by their terms to preexisting landfills. Suspension, revocation, or amendment of this Conditional Use Permit maybe ordered only after a public hearing on such suspension, revocation, or amendment, preceded bythiny (30) days' S:\PLANI`IING MAIN\Case Files\CUP\CU 10-02 ER Landfill\LANDFILL CUP 2010 2 16 10 CC veision.DOC Pag. written notice to the Permittee, or at the time of consideration of renewal of this Permit. Notice of hearing shall include a statement of the proposed action bythe City and the reasons therefore. THE CITY OF ELK RIVER t ~jfl~\~ Step nie Klinzing Its: Mayor ELK RIVER LANDFILL, INC. B ~ ~ ~ ,, Debra Walters Its: District Manager ATTEST: # By t./ Tina Allard Its: City Clerk S:\PLANNING MAIN\Case Files\CLR'\CC710.02 ERLandfill\LANDFILL CUP 2010 2 16 10 OCveisioaDOC Page 14 STATE OF MINNESOTA ) ss. COUNTY OF SHERBURNE ) The foregoing instrument was acknowledged before me this~nday of;~C.C-2 2010, by Stephanie Klinzing, the Mayor of the City of Elk River, on behalf of the City of Elk River. ~~~ Notary Public i DEBORAH KAY HUEBNER STATE OF MINNESOTA ) NOTARY PUBLIC - MIt~IESOTA My Commhdon Jfn, 81, X15 )ss. COUNTY OF SHERBURNE) n~ The foregoing instrument was acknowledged before me this dayof ~GL/IC~.--~ 2010, by Tina Allard, the City Clerk of the City of Elk River, on behalf of the City of Elk River. 7 ~~'-v~ Notary Public STATE OF MINNESOTA ) ; ~- : DEBORAH KAY HUEBNER ) ss. - NOTARY PUBLIC • MINNESOTA My Camnissfop 6q>kes Jm. 91, X15 COUNTY OF SHERBURNE) The foregoing instrument was acknowledged before me this ~---~ day of ,; :~t.~(.,,~.r' , 2010, by Debra Walters, the District Manager of Elk River Landfill, Inc., a ota corporation, on behalf of the corporation. NANCY ANNE RUHL _ ' NOTARY PUBLIC -MINNESOTA My Commission Expires Jan. 31, 2015 IS INSTRUMENT WAS DRAFTED BY: THIS INSTRUMENT WAS MODIFIED BY: Gray, Plant, Mooty, Mooty & Bennett 500 IDS Center 80 South 8`h Street Minneapolis, Minnesota 55402 S:\PLANI`IING MAIN\Case Files\CUP\CU 10.02 ER Landfill\LANDFILL CUP 2010 2 16 10 CC veision.DOC The CommunityDevelopment Department of the City of Elk River Page 15 EXHIBIT A PARCEL B That part of the Northeast Quarter of the Northwest Quarter of Section 3, Township 33, Range 26, described as follows: Commencing at the point of intersection of the North line of said Northeast Quarter of the Northwest Quarter with the Westerly line of the right-of-way of U.S. I~ighway No. 169; thence Southerly along said right-of-way, to intersect a line parallel with and 470 feet South of, as measured at right angles to, said North line of the Northeast Quarter of the Northwest Quarter said point of intersection being the actual point of beginning of the land to be described; thence west along said parallel line a distance of 558 feet; thence south at a right angle to intersect the south line of the said Northeast Quarter of the Northwest Quarter; thence East along said South line to intersect the said Westerly line of the highwayright-of-way; thence Northerly along said highwayright-of-way to the point of beginning, Sherburne County, Minnesota. PARCEL C The North 525 feet of the West Half of the Southwest Quarter of Section 3, Township 33, Range 26, according to the United States Government Survey thereof and situate in Sherburne County, Minnesota. AND The North 525 feet of thaf part of the Northeast Quarter of Southeast Quarter of Section 4, Township 33, Range 26, lying East of the Great Northern Railway, AND that part of the East Half of the Northeast Quarter of Section 4, Township 33, Range 26, lying East of the Great Northern Railway, according to the United States Government Survey thereof and situate in Sherburne County, Minnesota. PARCEL E That part of the North half of the Northwest Quarter of Section 3, Township 33, Range 261ying Westerly of the following described real estate, to wit: Commencing at a point on the North line of the said North Half of the Northwest Quarter 650 feet distant West of the intersection thereof with the Westerly right of way line of U.S. Highway No.169 as presently located and established; thence South and parallel with the West line of the said North Half of the Northwest Quarter to the South line thereof and there terminating, excepting therefrom the South 33 feet thereof, according to the United States Government Surveythereof and situate in Sherburne County, Minnesota. PARCEL F The Northwest Quarter of the Northwest Quarter of Section 3, Township 33 North, Range 26 West; and That part of the South Half of the Northwest Quarter lying West of U.S. Highway No. 169, and the Northerly 525 feet of that part of the East Half of the Southwest Quarter lying West of U.S. Highway S:\PLANNING MAIN\Case Files\CCTP\CCT 10-02 ERLandfill\LANDFILL CUP 2010 2 16 10 CC version.DOC Page 16 No. 169, all in Section 3, Township 33 North, Range 26 West, according to the United States Government Surveythereof and situate in Sherburne County, Minnesota. PARCEL H The West 92.70 feet of the North 470 feet of that part of the Northeast Quarter of the Northwest Quarter of Section 3, Township 33, Range 26, Sherburne County, Minnesota,. lying east of a line described as Beginning at a point on the North line of said Northeast Quarter of the Northwest Quarter a distance of 650 feet west of the intersection of said North line with the Westerly right-of- wayline of U.S. Highway No. 169; thence south parallel with the West line of the North Half of the Northwest Quarter to intersect the South line of said Northeast Quarter of the Northwest Quarter and there terminating. PARC~LI That part of the Northeast Quarter of the Northwest Quarter of Section 3, Township 33, Range 26, Sherburne County, Minnesota, lying south of the South line of the North 470 feet, as measured at right angles, thereof and lying west of the following described line: Commencing at the point of intersection of the North line of said Northeast Quarter of the Northwest Quarter with the Westerly line of the right-of-way of U.S. I~ighway No. 169; thence southerly along said highway right-of-wayto intersect a line parallel with and 470 feet South of, as measured at right angles to, said North line of the Northeast Quarter of the Northwest Quarter; thence West along said parallel line a distance of 558 feet to the actual Point of Beginning of the line to be hereby described; thence South at right angles to intersect the South line of said Northeast Quarter of the Northwest Quarter and there terminating. S:\PLAI~INING MAIN\Case Files\CUP\CU 10-02 ER Landfill\LANDFILL CUP 2010 2 16 10 CC ve~sion.DOC Page 17 CITY OF ELK RIVER SOLID WASTE FACILITY LICENSE AGREEMENT THIS AGREEMENT, entered into and effective this 16th day of February, 2010, by and between the CITY OF ELK RIVER, a Minnesota municipal corporation (hereinafter referred to as the City), and ELK RIVER LANDFILL, INC., a Minnesota corporation (hereinafter referred,to as the Licensee). WHEREAS, Licensee made application to the City in 1988 for the issuance of a solid waste facilities license, pursuant to the Elk River Code of Ordinances, for the operation of a sanitary landfill (hereinafter referred to as the Landfill) on the real properties described on Exhibit A attached hereto (hereinafter referred to as the Landfill Property) situated in the City of Elk River, for which the City Council directed the issuance of a conditional use permit contemporaneous with the issuance of a license; and WHEREAS, the City Council directed the issuance of a solid waste facilities license to Elk River Landfill, Inc. (Licensee) conditioned upon compliance with the conditions set forth in the October 3, 1988 License Agreement, in order to mitigate the potential adverse affects of the Landfill on the general welfare of persons and property within the City; and WHEREAS, the License was has subsequently been renewed, with the most recent renewal occurring on February 17, 2009; and WHEREAS, the City Council has determined that for reasons related to public health, safety, and welfare the final elevation of the Landfill should be limited to no more than 1120 feet above Mean Sea Level (MSL); and WHEREAS, the Licensee has agreed to a final elevation of 1120 MSL; and WHEREAS, Licensee has applied for renewal of the Solid Waste Facility License on December 28, 2009; and WHEREAS, the City Council of the City of Elk River has held a hearing on the proposed amendment and renewal of the Solid Waste Facility License, at which hearing all citizens of the City of Elk River and other interested persons have had the opportunity to be heard. NOW, THERFORE, the City grants to the Licensee, and the Licensee accepts an amended and renewed solid waste facilities license for the operation of a sanitary landfill and related activities on the Landfill Property subject to the terms, conditions and qualifications hereinafter stated, to wit: 1.) Significant Persons. The person responsible for actual operation and maintenance of the landfill, to whom communications concerning this License should be addressed, is Debra Walters in her capacity as District Manager of Elk River Landfill, Inc. (ERL), whose address is 22460 Highway 169 NW, Elk River, MN 55330. ERL is a Minnesota corporation, whose registered address is 22460 Highway 169 NW, Elk River, MN 55330. ERL, which is a subsidiary of Waste Management, a Delaware corporation, whose address is 1001 Fannin, Suite 4000, Houston, Texas 77002. The following information shall be provided to the local fire and police departments as well as the Sheriff: Debra Walters, District Manager 22460 Highway 169 NW Elk River, MN 55330 Work: 441-2464, fax: 441-2025 Mobile: (612} 270-2942 Mike Fleming Area Vice-President Waste Management W132 N10487 Grant Drive Germantown, WI 63022 (W) (262) 250-8702 Fax (262) 251-0240 2.) Scope and Conduct of Landfill Operations. The operation of a solid waste sanitary landfill maybe conducted on the Landfill Property in conformance with existing statutory and regulatory authority and requirements of the City, Sherburne County and the Minnesota Pollution Control Agency and in accordance with authorization and limitations contained in: (O1) the current MPCA Solid Waste Permit No. 74, issued to the Licensee; (02) the current Sherburne County solid waste landfill license issued to the Licensee; (03) the conditional use permit, as amended, issued by the City for the Landfill; and (04)this License. Provided, however, that the entire Landfill shall have a final elevation of no more than 1120 feet above MSL, including final cover, as provided in the Long Term Development Plan dated. March 1997, and as revised on April 15, 1997. The Landfill shall also be operated and developed consistent with the following plans and reports which have been submitted to the City and/or the MPCA: 2 (O1) "New Recycling Facility Design Report and Operations Manual", January, 1991 (02) "MSW Operations Manual", September 1999, revised June 2001, February 2004, as it applies to the Landfill Property described on Exhibit A (03) "Household Hazardous Waste Management Plan", June 15, 1992 (04) NSPS Design Plan, June 2001 and Title V Air Permit, January 18, 2006 as it applies to the Landfill Property described on Exhibit A (OS) "Leachate Recirculation Permit Application", July 2009 as it applies to the Landfill Property described on Exhibit A (06) Closure, Postclosure and Contingency Action Plan for the MSW Area", February 2004, as it .applies to the Landfill Property described on Exhibit A (07) "Stormwater Pollution Prevention Plan", January 2006 or as updated/revised (08) "Construction Quality Assurance Program", February 2004, as it applies to the Landfill Property described on Exhibit A. (09) "Phase IV Water Quality Monitoring Work Plan" (Revision #3) February 2002 as updated/modified. (10) "2008 Annual Report", January 2009 or as updated annually (11) "2008 Water Quality Report", February 2009 or as updated annually (12) "Long-Term Development Plan", March 1997, and as revised on April 15, 1997 to include a maximum final elevation of 1120 feet MSL (13) All Solid Waste License Renewals through the License dated February 17, 2009 (14) "Industrial Solid Waste Management Plan", Apri12008, as it applies to the Landfill Property described on Exhibit A and further conditioned upon submittal of annual reports describing the following: (a) Monthly and Annual Waste Disposal Volume. (b) Schedule of construction activities for the forthcoming year. (c) Type, Quantity and Source of Material to be Disposed. (d) Remaining permitted capacity (e) Updated, full-size, contour map which indicates the elevations of all fill areas (fj Assessment of the Financial Assurances Plan. (g) Evaluation of the Water Monitoring System and a proposal for continued sampling and analysis. (h) Detailed evaluation of all water quality results by means of tables and graphs. (i) A groundwater contour map based on the previous years' groundwater level data. (15) Submittal for January 2000 License Renewal, revised June 2001, subject to the following conditions: (a} Leachate head shall not exceed a maximum of 12 inches for any liner. The Landfill shall monitor leachate head levels weekly and submit results to the City quarterly. (b) The sampling and contingency action protocols for liner leaks shall be as outlined in the Phase IV Water Quality Monitoring Work Plan, revision #3 dated February 2003 as updated/revised. (c) The Construction Quality Assurance Program shall be amended to document compliance with MNDOT 3877.2B standards for sampling and testing of topsoil. (d) Operation of the Active Gas Collection System shall be managed to mitigate landfill gas migration and ongoing ground water contamination from the unlined portion of the Landfill. (16) Cell 17 Perimeter Berm Base Grades Plan, February 2010. Any changes made to the above described plans, reports, MPCA Solid Waste Permit No. 74 and the County License shall also be reviewed and approved, approved with modification, or disapproved by the City. Minor modifications shall be reviewed by City staff. Major modifications shall be reviewed by the City Planning Commission and the City Council. The City may not unreasonably disapprove or unreasonably require modifications. The City may also snake reasonable modifications to the conditions of the License based upon a submittal from the Licensee. The City shall respond to Licensee submittals on a timely basis, which shall be no later than formal MPCA time lines for review and comment for concurrent submittals. 4 3.) Scope and Conduct of Related Operations. (01) Recycling Center. The operation of a recycling center on the Landfill Property inay be conducted, if in conformance with all applicable terms and conditions of this License, subject to the following conditions: (a) The operation of the recycling center shall comply in all respects with all applicable requirements of the City Code or Ordinances and all applicable federal, state, and county laws and regulations. (b) The recycling center shall be located and operated as shown on plans submitted by Licensee and approved by City staff. The recycling center may accept additional materials, including household hazardous wastes, provided that Licensee's plan for handling additional materials and any changes to the recycling center shall first be approved in writing by the City. (c) The recycling center shall be operated by Licensee. Operation of the recycling center by a different operator shall require the prior written approval of City staff. Any different operator of the recycling center must comply with all of the terms and conditions of this License. (d) Licensee shall place appropriate signage on the Landfill Property to direct citizens to the location of the recycling center. (e) Used oil recycling areas shall be within an enclosed building with an impermeable floor and containment area, as approved by staff. (f) Battery storage shall be within an enclosed building with an impermeable floor and containment area suitable for battery acid, as approved by staff. (g) Battery, paper and oil storage areas shall be separated to reduce fire potential, as approved by the City Fire Chief. (h) Licensee shall have a regular schedule for appliance pick-up, to be approved by City Staff. (02) Yard Waste Composting. The operation of a yard waste composting facility on the Landfill Property within the City limits maybe conducted, if in conformance with all applicable terms and conditions of this License, subject to the following conditions: 5 (a) The operation of the yard waste composting facility shall comply in all respects with all applicable requirements of the City Code of Ordinances and all applicable federal, state, and county laws and regulations. (b) The yard composting facility shall be located and operated as shown on plans submitted by Licensee and approved by City staff. (c) All plastics shall be removed from yard waste brought to the facility before composting. (d) All municipal solid waste must be immediately removed from yard waste and landfilled. (e) The yard waste composting facility must be operated in such a manner as to keep odors to a minimum. If odor becomes a problem staff may require more frequent turning of compost piles and/or watering to ensure that the compost remains aerobic and breaks down as quickly as possible. (f) The maximum amount of yard waste which maybe accepted is 100,000 cubic yards per year. (g) Positive drainage away from the compost area must be implemented, as approved by City staff. (h) Yard waste and/or compost may not be used as daily cover for the landfill. (i) That Licensee is in strict compliance with all other terms, conditions and requirements of this License, including specifically, but not limited to, the operational requirements, performance standards and environmental monitoring requirements of sections 4,6,7, and 8; and the requirement of sections 17 and 25 to make prompt payment of all fees due to the City. No yard waste maybe accepted at the yard waste composting facility if this condition is not complied with. Licensee must immediately stop accepting yard waste upon written notice from the City that there is a violation of this condition. (03) Other Related Operations. No other operations or activities, whether or not related to the Landfill, shall be permitted or allowed on the Landfill Property unless this License is first amended to specifically allow such operations and to specify the applicable conditions except mining activities or other operations licensed or permitted separately by the City. 6 4.) Specific Additional Operational Requirements. (O1) Leachate Transmission Pipes. Leachate transmission pipes shall be designed to ensure that double containment and adequate leak detection exists as approved by the MPCA, County and City. Licensee shall verify to the City every four (4) years that the existing leachate transmission pipes do not leak. (02) Backup Leachate Pumps. Licensee shall maintain a backup pump for use in the event of pump failure at the leachate sump, wet well and/or leachate storage tank on-site. As an alternative, the licensee shall maintain provisions for restoring temporary leachate pumping within a 24-hour period and adhere to the current "Leachate Management Plan" as approved by MPCA. (03) Leachate Holding Tank. Licensee shall ensure that the leachate holding tank is pumped out on a regular schedule. It shall be a violation of this License to allow leachate to collect on the liner to a depth exceeding one foot due to the leachate holding tank being full. Leachate Recirculation. The Licensee may conduct Leachate Recirculation pursuant to MPCA, County and City regulations. In the event that any operational problems occur from the leachate recirculation, the Licensee shall immediately cease leachate recirculation and revert to prior method of leachate management unless and until another remedy for the problem is approved by the City. (OS) Gas Collection S.. stem. Licensee shall conduct active landfill gas collection in accordance with approved plans and shall construct additional phases of the active gas control system at the time of final cover construction. (06) Phase IV Water Quality Monitoring Work Plan. The Phase IV Water Quality Monitoring Work Plan which describes the sampling frequency, parameters, protocols and reporting frequency for landfill gas, leachate, leachate piezometers, leachate lysimeters, residential wells, groundwater monitoring wells and surface water shall be updated annually to reflect changes in the monitoring systems. The monitoring plan shall yield adequate information for assessing the effectiveness of the landfill gas control system in decreasing VOC contaminants in the groundwater. (07) Annual Active Landfill Gas Control System Assessment. Annually assess the effectiveness of active landfill gas control operations based on the results of groundwater and landfill gas monitoring and incorporate the evaluation in the MPCA Annual Report for the landfill. (08) Construction Quality Assurance Reports. A Construction Quality Assurance (CQA) Report shall be submitted to the City prior to the placement of waste on newly constructed lined areas. A CQA report shall also be submitted for 7 Landfill areas which receive final cover. A CQA report shall also be submitted for installation of leachate recirculation drainfield areas to document position within the cell, suitable base contours and piping elevations. The report shall demonstrate that the work was completed to the plan specifications. The Report shall be certified to by an engineer registered in the State of Minnesota and shall include but not be limited to: (a) All relevant construction specifications; (b) All shop drawings for prefabricated components; (c) Photo documentation of all critical aspects of construction; (d) Deflection testing results for leachate collection and transmission pipes; (e) Narrative description of all as-built variances from the plans and/or specifications; (f) As-built cross-sections of the liner subgrade; (g) As-built elevations for all pipe inlets and outlets and pump- on/pump-off controls; (h) Completed manufacturer warranties; (i) All physical testing results for soils and other materials use in the construction (09) Licensee shall notify the City at least two (2) days in advance of liner barrier layer installation or final cover barrier layer installation. Licensee shall assist the City in arranging inspection of the site at any reasonable time the City requests. The Licensee shall keep the City informed of ongoing construction progress and shall specifically notify the City of significant changes encountered in the geological, hydrological, or construction conditions. The City may reasonably require work, which is covered or otherwise obscured prior to City inspection, to be re-excavated for City inspection. (10) Tem~orar~Fencin~-On Site Litter Control. Litter control fences shall be maintained around the working area(s) of the landfill to prevent the blowing of paper or other litter on or off site. The Licensee shall assign employees to engage in a regular and routine program to inspect the Landfill Site and clean up areas where litter accumulates on the Landfill Site. (11) Permanent Fencing. The Licensee shall maintain a minimum six-foot high fence around the perimeter of the site if and when necessary based upon reasonable concerns regarding public safety or trespassing or uncontrolled dumping. (12) Public Information. The Licensee shall maintain a sign at the entrance to the Landfill Site which describes in common terms the substances which maybe disposed at the Landfill and those substances which may not be accepted for disposal. (13) Sanitary Facilities. Adequate sanitary facilities and shelter shall be provided for site personnel. (14) Electrical Service. Adequate electrical service shall be provided at the site for operations and repairs. (15) Fire Fighting. Fire fighting equipment including at least one piece of heavy equipment, fire extinguishers in all machines working in the Landfill, and a water truck shall be kept available on the site during the active life of the Landfill. The self-contained breathing apparatus for the City Fire Deparhnent shall be available for use by the Licensee on a temporary basis, as approved by the Fire Chief. Licensee shall make a landfill operator available at the request of the City Fire Chief to consult and advise the fire department about landfill fire fighting issues. (16) Safet~quipment. Emergency first aid equipment consisting of at least one first aid kit kept near the working face, and at least one shower on site available to all personnel and customers shall be supplied. At least one of every four landfill personnel shall be trained in first aid and CPR. (17) Water. A potable water supply shall be available for site personnel. (18) Storage. Adequate on-site shelter shall be provided for maintenance and storage sufficient to supply the equipment required by this section, during cold weather operations. (19) Vehicle Stacking Facilities. Adequate vehicle stacking facilities shall be provided to ensure that no vehicle desiring entry into the site shall have to wait outside the perimeter of the Landfill Property. (20) Communication. Adequate communication facilities shall be provided for emergency purposes. (21) Security. A gate shall be provided at the entrance to the site and kept locked when an attendant is not on duty. (22) Haul Roads. An all-weather haul road shall be provided to the unloading area and watered on a regular basis. 9 (23) Adequate Equipment. Adequate equipment shall be supplied capable of spreading and compacting the refuse as received. At least one machine capable of covering the working face, in its entirety at the end of the day, shall be supplied. (24) Information Display. Subject to approval by the City Council, the Licensee shall maintain at each entrance to the Landfill Property a sign stating the name of the facility, the schedule of days and hours the facility is open to the public, prices for use of the facility, the Minnesota Pollution Control Agency permit number and the penalty for nonconforming dumping. (25) Screening!lBuffer Strips. Visual screening of the Sanitary Landfill site, as required by the Conditional Use Permit for the Landfill Property and as approved by the City Council, shall be provided by the use of buffer zones, natural objects, trees, plants, seeded soil berms, fences, and other suitable means. (26) Small-Load Dumping Site. The Licensee shall, during all hours of operation, maintain and operate a separate suitable and safe disposal area for the dumping of small loads by pickup trucks, cars, and trailers. 'This separate site shall be located and operated with due regard for the nature of the vehicles bringing such loads, and the normal frequency of such dumping. (27) Oak Wilt Prevention. As a method to prevent oak wilt, Licensee shall not conduct any tree removal operations at the Landfill Property between April 15 and July 15 each year. In addition, oak stumps shall be removed prior to April 15 each year. When removing trees and stumps, Licensee shall prevent damage to remaining trees. (28) Leachate Recirculation. The Licensee may conduct Leachate Recirculation as provided in Subparts (Ol) - (04) above. (29) Ce1117. The landfill shall submit a narrative to supplement the "Cell 17 Perimeter Berm Base Grades" Plan dated February 2010 which describes the construction techniques and schedule for side slope construction. The narrative shall identify the provisions for surface water drainage and the preservation of the buffer area. (30) Alternative Cover. "Alternative Cover" shall be defined as any suitable clean cover material other than that of Clean Earth Fill. Alternative intermittent and intermediate cover material maybe used if such cover material is suitable for compaction, capable of supporting vegetation, and meets MPCA standards set forth in MN Rule 7035.2815, subpart 6, and Elk River Landfill's Industrial Waste Management Plan. 10 (31) End Use Plan. The Landfill shall submit a revised End Use Plan to the City by December 31, 2011 which indicates passive recreational use of the Landfill Property following final closure of the Landfill. 5.) Off-Site Litter Control. The Licensee shall engage in a regular and routine litter maintenance and removal program extending one-half mile north and south of the entrance to the Landfill and to any other areas adversely impacted by debris related to Landfill operations as inay be determined by the City. Litter shall be removed from these areas not less than once per week, and more often if necessary because of spills or complaints from neighboring property owners, and ensure that these areas are kept free of litter generated by truck traffic traveling to and from the Landfill. In addition, Licensee shall inspect all trucks leaving the Landfill 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. In the event that Licensee fails to remove litter within forty-eight (48) hours of notice of accumulation of litter by the City, the City may cause such litter to be removed. The City shall bill the cost of such removal to the Licensee, which shall remit payment within thirty (30) days of the date of such billing. 6). General Performance Standards. The Licensee shall comply with the following performance standards and operating requirements: (O1) Hazardous Wastes Prohibited. No Hazardous Wastes shall be disposed of in the Landfill. (02) Dangerous Wastes. No Dangerous Wastes (as defined in the Code of Ordinances for the City of Elk River) shall be disposed at the Landfill until a request to dispose of dangerous wastes has been submitted to the City as required by Chapter 604 of the City Code of Ordinances. The City shall respond to requests for permission to dispose dangerous wastes within fifteen (15) days from receipt of the request as appropriate. If a request to dispose of dangerous wastes is rejected by the City Environmental Administrator, or the City's authorized consultant/agent, the dangerous wastes may not be disposed at the Landfill. Licensee may propose advance approval of proposed disposal of dangerous wastes by submitting to the City, for each waste, a statement identifying the waste type, generator name and address, volume, method of chemical analysis, chemical constituents, and disposal procedures proposed. This statement, and all requests to dispose of dangerous wastes, shall be submitted in the form required by the City. The City may deny permission to dispose of Dangerous Wastes at the Landfill for one or more of the following reasons: (a) In the City's sole discretion, it would not be in the best interests of the public health, safety or general welfare of the citizens of Elk River to allow disposal of said wastes; 11 (b) In the City's sole discretion, disposal of said wastes would pose a threat to the environment. (c) Licensee and/or the operation of the Landfill is currently in violation of any of the terms, conditions, or requirements of this License including specifically, but not limited to, the operational requirements, performance standards and environmental monitoring requirements of Sections 4, 6, 7, and 8; and the requirements in Sections 17 and 25, to make prompt payment of all fees due the City. Licensee's "Industrial Solid Waste Management Plan, Apri12008 or as updated/revised shall be complied with in all respects, subject to specific requirements of this License, and may not be modified or amended without the City's prior written approval. (03) Incorporation of State Standards. The Landfill shall comply with the required practices for maintenance and operation of landfills set forth in Minnesota Rules Parts 7001.0010 to 7001.0210; 7001.3000 to 7001.3550 and 7035.0300 to 7035.2875. (04) Compliance With Zoning Ordinance Performance Standards. The operation of the Landfill shall fully comply with the performance standards-and other requirements of Chapter 30 of the Elk River City Code, including specifically Division 5, Subdivision V thereof relating to performance standards for industrial uses. (OS) Supervision. An attendant shall be on duty at the site at all times while it is open for public use. Unloading of refuse shall be continuously supervised at the working face of the landfill. (06) Operating Records. Accurate records of daily waste disposal operations shall be maintained. Intake of Solid Waste in tons or cubic yards shall be recorded on a daily basis, in a manner acceptable to the City, and reported to the City on a monthly basis along with payment of the Fees required by Section 25 of this License. The volume and location of the disposal of Dangerous Wastes shall be recorded the day such disposal takes place and shall include the amount and type of waste disposed of, and the name and address of the source of the waste. Waste disposal records shall be available during normal business hours, for review and inspection by the City. (07) Recording. A detailed description of the location of the completed Sanitary Landfill site shall be recorded with the County Register of Deeds within four months after approval of the closure of the landfill. This description shall include the general type and location of deposited Solid Waste, the location of phased or staged disposal of wastes, the type and number of lifts, original and 12 final terrain descriptions, site hydrogeologic conditions, and other pertinent characteristics of the completed sanitary landfill site. (08) Education Program. The Licensee shall: (a) Make available to all landfill users, including haulers and their customers, information which describes in common terms what is permissible and impermissible to dispose at the landfill. (b) Continue to conduct an employee training program designed to assist employees in identifying impermissible waste materials and to prevent their disposal at the landfill. The training program shall be reviewed with City staff and recommendations to improve the program shall be incorporated to the extent feasible. (09) Hours of O eration. The landfill shall not be operated between 7:00 p.m. and 6:00 a.m. The landfill may accept waste during off hours only under the following circumstances: (a) The wastes have been tested and approved for disposal; (b) Acceptance is necessary during off hours because of extraordinary circumstances; (c) Each instance of off hour acceptance has received the prior approval of the City Environmental Administrator and such approval was granted during City business hours; and (d) Each instance of off hour acceptance is documented in a letter sent by the Landfill to the City Environmental Administrator within five business days of the instance off hour acceptance. 7.) Site Environmental Monitoring. (O1) On-site Groundwater. The Licensee shall perform on-site water quality testing at the monitoring wells in the manner required by the MPCA permit. The wells shall meet current Department of Health Well Code Standards. The Water Quality report shall be submitted to the City when it is submitted to the MPCA. (02) Surface Water Quality. The Licensee shall have surface water quality tests performed in conjunction with sampling quarterly events when water is present. (03) Off-Site Groundwater Ouali~. The Licensee shall annually sample the individual private wells identified in the Phase IV Water Quality Monitoring Work Plan required by Section 4(05). All private wells shall be analyzed for pH, 13 COD, ammonia, chlorides, specific conductance, and volatile organic compounds (MDH method 465 and EPA methods 601, 602). (04) Modification. The testing programs specified in this Section 7 may be modified by City staff if City staff reasonably determines there exists a need for additional wells to be tested or additional parameters to be analyzed, based upon water or air quality test results indicating the presence of contamination. 8.) Hydro~eologic Investi ag tion. The investigation of the hydrological and geophysical characteristics of the site shall be continued and any other new information relating to the hydrogeologic impact of the site shall be reported to the City. Hydrogeologic reports shall be updated, amended, and modified as warranted by newly discovered or additional data acquired in the continued hydrogeologic investigation. Licensee shall notify City at least two (2) days in advance of any soil boring or well construction required by this License. Licensee must conduct additional contaminant investigation and monitoring as requested by the MPCA in the vicinity of P304C, P320 and an area southeast of P314C. 9.) Dust, Noise, and Odor. Fugitive dust emissions off-site shall be controlled at the Landfill Site as necessary by undertaking the following: road surfaces within the Landfill Site shall be wetted with water or an appropriate chemical whenever off-site dust levels become unreasonable as determined by the City Environmental Administrator. Dust pollutives shall be utilized to the extent necessary on cover material such as stockpiles to reduce wind erosion as welLa on other exposed surfaces as appropriate. Cover compaction and revegetation activities shall be undertaken promptly on the completion of various fill areas and vegetative cover capable of quick growth shall be utilized. Plantings of bushes and trees shall be installed if needed to buffer the Landfill Site and minimize wind erosion. All equipment and vehicles utilized at the Landfill Site shall be periodically inspected and maintained to minimize noise. Vegetative barriers along the boundaries of the Landfill Site shall be utilized to minimize off-site noise impacts. Applicable state standards for noise pollution may not be exceeded by the Landfill operation, equipment, vehicles, or machinery. Licensee agrees that it will use best management practices to control against odors. The Environmental Administrator may make recommendations regarding possible odor controls. If a verified odor problem is ongoing, both parties agree to institute good faith negotiations to minimize the odor problem. If in the event that the City receives ten or more complaints within asix-hour period relating to a single odor description and this odor complaint has been verified by both City and Licensee and identified as coming from the Facility, the Licensee shall cease such activity(s) that are the direct cause of the odor(s). Normal 14 activity(s) shall not resume until the Licensee has, to the satisfaction of the City, fully mitigated against such odor(s). 10.) Closure. Within six (6) months of a written demand by the City, and in no event later than one (1) year prior to the date projected for cessation of waste disposal, the Licensee shall submit to the City for approval an updated closure and post-closure plan for the Landfill Site. 11.) Insurance. The Licensee shall secure and maintain insurance from an insurance company acceptable to the City and authorized to write casualty insurance in the State of Minnesota which will protect the Licensee, its agents and employees, and the City from claims for bodily injury, death, or property damage which may arise from the operations on the Landfill Site. The Licensee shall file a certificate of insurance or a certified copy of the insurance policy with the City. Such insurance policy shall contain a clause providing that it shall not be cancelled by the insurance company without thirty (30) days' written notice to the City of intention to cancel. The following coverage shall be provided in amounts not less than those specified: (O1) Public liability, general liability, loading and unloading, [completed operations, explosion, collapse, underground operations], personal injury, and property damage with the following minimum limits: (a) One Million Dollars ($1,000,000) per claimant. __ (b) One Million Dollars ($1,000,000) per occurrence. (c) One Million Dollars ($1,000,000) annual aggregate. (02) Automobile and truck public liability, personal injury, and property damage, including owned and non-owned vehicles with a One Million Dollars ($1,000,000) minimum limit. (03) The City may require additional insurance be provided by Licensee if market conditions change such that additional coverage become economically practicable. The insurance limits required by this section shall be reduced if these insurance limits are not reasonably and economically available. For the purposes of this subsection "economically practicable," "reasonably" and "economically available" shall be determined by the insurance coverage affected by the Minnesota Joint Underwriters Association or the readily available private insurance market. 12.) Bonding. 15 (O1) The Licensee shall furnish a surety bond in favor of the City in the amount of Three Hundred Thousand Dollars ($300,000) to run continuously (annual renewal allowed) until all landfill operations and closure activities are completed to ensure compliance with the terms and conditions of this License. Such bond shall be made by an insurance company or other financial institution acceptable to the City and shall be in a form acceptable to the City and its attorney. The bond shall be subject to cancellation by the obligor by giving one hundred twenty (120) days' prior written notice to the City. The Licensee shall renew each such bond no more than sixty (60) days after any such written notice, and failure to so renew the bond shall be an event of default of the obligations of the Licensee and shall constitute ground for immediate and automatic revocation of this License. Said bond shall provide that if the Licensee refuses to obey any of the requirements or to any of the acts required by this License or for any reason ceases to operate or abandons the landfill, and the City is required to expend monies or labor or material to restore, repair, or clean up the Landfill Site to the condition and requirements required by law, the obligor shall reimburse the City for any and all expenses incurred to remedy the failure of the Licensee to comply with this License, and the obligor shall indemnify and save the City harmless from all losses, costs, and charges that may occur to the City because of any default by the Licensee. The bond may be in a form exercisable by both the City and the County provided that such exercise feature allows its use on instruction by either or both the City and County. (02) In the event this, or any subsequent license is revoked or the Licensee closes operation of the landfill for any reason, including but without limitation, order of the court or other agency of competent jurisdiction, bankruptcy, insolvency, or abandonment, the Licensee shall immediately proceed to close, cover, and grade the Landfill Site according to an environmentally sound closure plan which shall be approved by the City and which shall comply with all requirements of the MPCA and Sherburne County relating to final closure. In the event the Licensee fails to comply with the terms of this subparagraph (02), the City may, upon ninety (90) days' prior notice to the Licensee, enter onto the property and perform all such obligations, the costs of which shall be borne by the Licensee, or, in default thereof, by its surety. 13.) Applicability of License. This License shall apply to the entire Landfill Property located within the City limits. 14.) License Period. This renewed License shall be in force and effect until February 16, 2012. 15.) Violation of Conditions. If the Licensee or its successors or assigns violate any term or condition imposed by this License, this License 16 may be revoked and terminated. Without limiting the foregoing, the violation of any statute, regulation, ordinance, or license condition imposed by lawful governmental authority and governing operations on the Landfill Property is ground for revocation and termination of this License. The change, alteration, or amendment of any such statute, regulation, ordinance, or license condition by any goverrunental authority other than the City shall not excuse the Licensee from compliance with statutes, regulations, ordinances, or permit or license conditions in effect on the date of the original issuance of this License unless compliance is waived or excused by the City Council. The City shall not unreasonably refuse to waive or excuse compliance with existing permit or license conditions. 16.) Documents, Reports, and Maps. Copies of all documents, reports, and maps which are supplied to the MPCA or to Sherburne County shall also be supplied to the City, at the same time. 17.) Charges and Fees. The Licensee agrees to pay to the City upon the amendment and renewal of this License, $2,000. Thereafter, the Licensee shall pay the City an annual license fee of $2,000. 18.) On-Site Inspection. The City may inspect the Landfill and the Landfill Property for the purposes of examining and copying nonconfidential records; conducting inspections, surveys, investigations, monitoring, or sampling; .and others obtaining necessary information __ _ pertaining to the construction, operation, and environmental effect of the. disposal facility, control equipment, and control materials. Inspections shall be conducted during normal business hours except in the event of an emergency. City personnel or agents performing the inspection will notify personnel at the landfill office at the time of inspection. In case of emergency, the City will call Debra Walters to gain entry and provide notice of the situation. Licensee shall promptly notify the City of any substitutions of persons to be so notified. The City shall be notified by the Licensee immediately upon the occurrence of any explosion, fire, or other emergency at the Landfill; upon the discovery, release or spill of hazardous or dangerous materials, as defined in the City of Elk River Solid Waste Ordinance, at the Landfill; and of any violations of the conditions of this License. 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 Licensee. This letter maybe revised or supplemented by City staff from time to time as necessary to address the City's needs for notification. 19.) Indemnity. The Licensee shall indemnify, defend, and hold the City harmless from all claims, demands, and/or actions legal and/or equitable arising from the operations on the Landfill Property. 17 20.) Worker's Compensation. The Licensee shall carry in a company authorized to transact business in the State of Minnesota a policy of insurance fulfilling all requirements of the Worker's Compensation Act, including all legal requirements for occupational diseases, or self-insure for the above. 21.) Split Sam lames. The Licensee shall notify the City forty-eight (48) hours before any sampling of groundwater or surface water and allow the City at its expense to obtain split samples of such waters. 22.) Right to Require Performance. The failure of the City, at any time, to require performance by the Licensee of any provisions hereof shall in no way affect the right of the City thereafter to enforce the same. Nor shall waiver by the City of any breach of any of the provisions hereof be taken or held to be a waiver of any succeeding breach of such provision or as a waiver of any provision itself. 23.) Severability. If any provision of this License shall be declared void or unenforceable, the other provisions shall not be affected, but shall remain in full force and effect. 24.) Amendment. This License shall not be considered modified,. altered, changed, or amended in any respect unless approved by the City Council as required by City Ordinance. 25.) Fees. The Licensee shall pay the Host Community Fee (HCF) provided for in the Host Community Agreement entered into between the Licensee and City on September 15, 2003. If Licensee fails to pay the HCF, for any reason, Licensee shall then pay the Landfill Abatement Surcharge authorized by Minn. Stat. § 115A.921, Subd. 1 (the Surcharge). The Surcharge shall be paid directly to the City on a monthly basis, and shall be accompanied by an accurate report on the amount and type of solid waste disposed of in the landfill each day during the month. The Surcharge due for each month shall be received by the City no later than the thirtieth calendar day of the succeeding month. Failure to pay the Surcharge when due shall be cause for revocation of this License and shall be a violation of the conditions and requirements of this License for the purposes of the related operations authorized by Section 3 of this License. 26.) Conflicts. In any cases in which the Licensee believes there is an irreconcilable conflict between the requirements of this License and Laws, Rules, Regulations, or Order of any other governmental authority, the Licensee shall promptly notify the City of such irreconcilable conflict and request an amendment of this License. Until such time as the City acts upon a request for an amendment to this License, which it may grant or deny in its sole discretion, the terms of this License. shall govern all 18 operations at the Landfill Site and shall prevail over the provisions of any document submitted by the Licensee and any requirements of state or federal law. The City shall not unreasonably refuse to amend this License or waive compliance with this License in order to prevent violation of law. 27.) Modification Suspension, or Revocation of License. The violation of any of the terms of this License is grounds for suspension or revocation hereof. Furthermore, the City specifically reserves the right, and the Licensee agrees that this License maybe amended, suspended, or revoked by the City as reasonably required to protect the public health, safety, and welfare. Specifically, but without limiting the foregoing, the City may amend, suspend, or revoke this License, whenever any reliable information is secured from a recognized source which demonstrates that the continued operation of the landfill places the public health, safety, or welfare, in jeopardy. Such information includes, but is not limited to the following: (Ol) A determination that (other than as indicated in the license application) leachate generated at the Landfill Site is migrating to surface or ground waters in a way that threatens the public health, safety or general welfare. (02) A determination that (other than as indicated in thelicense application) standards for drinking water (whether promulgated as of the date of this License or at a later date by the United States Environmental Protection Agency, the Minnesota Department of - Health,-the Minnesota Pollution Control Agency, or any other governmental agency promulgating standards for toxic wastes, hazardous wastes, pollutants, or contaminants in groundwaters or surface waters) are being violated as a result of landfill operations. (03) A determination that the emission of landfill gas on the Landfill Site is creating or threatens to create a safety hazard to the community. Without limiting the foregoing, the City reserves the right to amend this License to impose upon the Licensee the obligation to comply with any state or federal law or regulation relating to the operation of sanitary landfills, whether or not said laws or regulations apply by their terms to preexisting landfills. Suspension, revocation, or amendment of this License maybe ordered only after a public hearing on such suspension, revocation, or amendment preceded by thirty (30) days' written notice to the Licensee or at the time of consideration of renewal of this License. Notice of hearing shall include a statement of the proposed action by the City and the reasons therefore. 19 ATTEST: ~ --~ ~, LO~ /' .t ,.._~--_ Tina Allard City Clerk THE CITY OF ELK RIVER: ~ _ i Stephani A. Klinzing `' Its: Mayor ELK RIVE ANDS L;~N ~-~ y. - DebraWalters. Its: District Manger STATE OF MINNESOTA COUN'1"Y OF SHERBURNE ss. The oregoing instrument was acknowledged before me this~~yof ip.,/L~, _ 2010, by Stephanie Klinzing, the Mayor of the City of Elk River, on behalf of the City of Elk River. `j DEBORAH KAY HUEBNER r NOTARY PUBLIC -MINNESOTA f ~ My Commission Expires Jan. 31, 2015 ~.,~L a~ , Notary Public - STATE OF MINNESOTA ) )ss. COUNTY OF SHERBURNE) ~ n e foregoing instrument was acknowledged before me this dayof 2010, by Tina Allard, the City Clerk of the City of Elk River, on behalf of the City of Elk River. f ~"`~ Notary Public STATE OF MINNESOTA ) ss. COUN'T'Y OF SHERBURNE) DEBORAH KAY HUEBNEfl ~s NOTARY PUBLIC-MINNESOTA •' -;• My Commission Expires Jan. 31, 2015 The foregoing instrument was acknowledged before me this ~-'day of ~- ~/> , 2010, byDebra Walters, the District Manager of Elk River Landfill, nc., a Minnesota corporation, on behalf of the co oration. NANCY ANNE RUHL NOTARY PUBLIC -MINNESOTA 20 : •; My Commission Expires Jan. 31, 2015 IS INSTRUIvIE DRAFTED BY: THIS INSTRUMENT WAS MODIFIED BY: Gray, Plant, Moory, Mooty & Bennett The Community Development Department 500 IDS Center of the Ciry of Elk River 80 South 8~ Street Minneapolis, Minnesota 55402 21 // ~~ REQUEST FOR ACTION River To Item Number Ci Council 5.6. & 5.7. Agenda Section Meeting Date Prepared by Communi Develo ment Se tember 21, 2009 Lori ohnson, Ci Administrator Item Description Reviewed by 5.6. Request by Elk River Landfill, Inc. for Land Use Amendment to change the Land Use of Certain Reviewed by Property from Mining to Landfill, Public Hearuig- Case No. LU 09-01 and 5.7. Request by Elk River Landfill, Inc. for Rezoxling to change the zoning from Al (ME) Agricultural Conservation (Mineral Excavation) to AI (SWF), Agricultural Conservation (Solid Waste Facility), Public Heari -Case No. ZC 09-01 Action Requested Consider request by Elk River Landfill, Inc. (ERL) fox a land use amendment to change the land use of certain property from mining to landfill, and to rezone to change the zoning from Al (ME) agricultural conservation (mineral excavation) to AI (SWF), agricultural conservation (solid waste facility). Action to deny or approve these items must be taken by September 26, 2009. Background/Discussion At the September 14, 2009, Council worksession, ERL representatives presented their design modifications as submitted to the City on September 8. ERL's request, however, remains the same as originally submitted, which is to amend the land use for 109 acres known as the Southern Development Area (SDA) from mixung to landfill, and to rezone those 109 acres from agricultural conservation (mineral excavation) to agricultural conservation (solid waste facility). In response to ERL's design modifications, Hoisington Koegler Group, Inc. (HKGi) updated the property and host fee annual impact and employment estimates and prepared revised charts that were included in the September 14 staff report. Based on the design modifications, there is still a sizable difference in the future property tax revenue generated under the two scenarios of expansion as requested and no expansion. The design modifications to add approximately 23 acres to future commercial development narrow the gap in tax revenues. The reduction in landfill footprint and additional commercial development area reduces but does not eliminate the substantial difference in future market value and property tax revenue that could be generated if there is no landfill expansion. At the August 17 meeting, the City Council scheduled another public hearing so that the public may have the opportunity to express its views on the information presented at the September 14 meeting. Therefore, the Mayor must open the public hearing to take additional public comment on ERL's request for a land use amendment and rezoning. S:\Council\Lori\2009\I.andfill memo 09 21 09.doc Finally, the Council must take action on this item by September 26, 2009. City Attorney Peter Beck has prepared revised resolutions for Council consideration based on the design modifications submitted by ERL. Action of the Council to approve or deny ERL's applications as noted above must be taken by adopting the appropriate resolution to either approve or deny the request for a land use amendment and rezoning of 109 acres. Attachments ^ Resolution Approving the Application of the Elk River Landfill, Inc. for a Comprehensive Plan Amendment and Rezoning to Allow Expansion of the Elk River Landfill (Requires four votes for approval.) ^ Resolution Denying the Application of the Elk River Landfill, Inc. for a Comprehensive Plan Amendment and Rezoning to Allow Expansion of the Elk River Landfill ^ Comment Letters from Angela. Mathison, Ridges of Rice Lake Resident; Michael Caron, Tiller Corporation; and Wayne Hanson, Great River Energy Action Motion by Second by Vote Follow Up S:\Council\I.ori\2009\I,andfill memo 09 2109.doc RESOLUTION 09- A Resolution Approving the Application of Elk River Landfill, Inc. for a Comprehensive Plan Amendment and Rezoning to Allow Expansion of the Elk River Landfill WHEREAS, Elk River Landfill, Inc. (ERL), a wholly-owned subsidiary of Waste Management, Inc. (WMI), is the owner and operator of the Elk River Landfill (Landfill); and WHEREAS, Capital Land Group, a land holding company for Tiller Corporation (Tiller), is the owner of an approximately 109-acre parcel of land identified as the Southern Development Area (SDA) located immediately south of the existing Landfill; and WHEREAS, ERL and Tiller have submitted a land use application (Application) to the City requesting: An amendment to the City's 2004 Comprehensive Plan to amend the Land Use Map Element of the Comprehensive Plan to change the land use designation of the 109- acre SDA from "Mining" to "Landfill"; and 2. An amendment to the City of Elk River Zoning Map to rezone the 109-acre SDA from A-1(ME), Agricultural Conservation (Mineral Excavation), to A-1(SWF), Agricultural Conservation (Solid Waste Facility); and WHEREAS, pursuant to the requirements of Minnesota Statutes and the Elk River City Code, the Application was referred to the City of Elk River Planning Commission for the purpose of holding a public hearing and making a recommendation to the Elk River City Council on the Application; and WHEREAS, the Planning Commission held a public hearing on the Application on June 9, 2009, at which time ERL, WMI, Tiller and their consultants were provided as much time as they desired to present the Application and all information and data they desired in support of the Application; and WHEREAS, the Planning Commission took testimony from all members of the public who desired to speak at the June 9, 2009 public hearing; and WHEREAS, the Planning Commission closed its public hearing on the Application on June 9, 2009, but continued its discussion of the Application to a special meeting on June 23, 2009; and WHEREAS, ERL, WMI and Tiller were provided the opportunity to submit additional testimony and written materials for the record prior to and at the Planning Commission's June 23, 2009 continued discussion of the Application; and WHEREAS, on June 23, 2009, the Elk River Planning Commission adopted a resolution recommending to the Elk River Ciry Council that the Application for a comprehensive plan amendment and rezoning of the SDA be denied; and WHEREAS, the Elk River City Council, on July 6, 2009, held a public hearing on the Application and considered the Planning Commission's recommendation; and WHEREAS, ERL, WMI, Tiller and all members of the public desiring to speak at the July 6, 2009 public hearing before the City Council were provided the opportunity to do so; and WHEREAS, all written materials submitted by ERL, WMI, Tiller, and all other members of the public prior to and at the public hearing on July 6, 2009 were accepted into the record; and WHEREAS, during the July 6, 2009 public hearing, the City Council discussed the merits of the Application, directed that staff prepare alternative resolutions denying and approving the Application, and continued the public hearing to its regular meeting of August 17, 2009, in order to provide ERL, WMI, and Tiller the opportunity to present additional materials to address issues raised in the staff reports, during the public hearing, and by the City Council during their discussion; and 2 WHEREAS, on August 17, 2009, the Elk River City Council continued with the public hearing on the Application and provided ERL, WMI and Tiller, as well as all members of the public desiring to do so, the opportunity to present additional testimony and written evidence to the City Council; and WHEREAS, after all parties desiring to present testimony and offer evidence for or against the Application had had the opportunity to do so, the Elk River City Council closed the public hearing on the Application and continued its discussion of the Application; and WHEREAS, by letter dated July 15, 2009, and at the August 17, 2009 City Council hearing, ERL requested an opportunity to present additional materials and a revised plan to the City Council in a workshop session; and WHEREAS, at the close of its session on August 17, 2009, the Elk River City Council directed: • That any additional materials be submitted so that a staff report could be distributed to the City Council on September 8, 2009; • That the Application be placed on the City Council's regulax workshop agenda for September 14, 2009; • That the September 14, 2009 workshop session regarding the landfill be a joint meeting with the City of Elk River Planning Commission; and • That the Application be scheduled for another public hearing at the City Council's regularly scheduled meeting of September 21, 2009; and WHEREAS, representatives of ERL and City Staff met on August 25, 2009 and September 8, 2009 to review additional materials submitted by ERL regarding the Application, including a revised plan for the landfill expansion, a report entitled "Is Landfill Expansion a Good Investment for Elk River" (the "Voith Report") and a letter dated September 1, 2009 (revised September 8, 3 2009) outlining design modifications to the expansion proposal, the end use plan for the landfill, and other issues; and WHEREAS, Ciry Staff and City consultants reviewed the revised plans, the Voith Report, the September 8, 20091etter and all other materials submitted by ERL, and prepared a staff report which was delivered to the City Council and Planning Commission, along with all of the materials submitted by ERL, on September 8, 2009; and WHEREAS, the Ciry Council and Planning Commission met in joint workshop session on September 14, 2009 to discuss the materials submitted by ERL, including the revisions to the expansion proposal for the Landfill; and WHEREAS, ERL was provided an opportunity to present its revised plans and proposed design modifications for the expansion to the City Council and the Planning Commission at the September 14, 2009 workshop session and the City Council had the opportunity to discuss and ask questions regarding the revised proposal; and WHEREAS, on September 21, 2009 the Elk River City Council held a public hearing on the Application and provided ERL, WMI and Tiller, as well as all members of the public desiring to do so, the opportunity to present additional testimony and comment on the Application, as revised, and to submit additional written evidence; and WHEREAS, after all parties desiring to present testimony and offer evidence for or against the Application had had the opportunity to do so, the Elk River City Council closed the public hearing on the Application, continued its discussion of the Application, and reached the decision incorporated in this resolution; and WHEREAS, ERL has agreed in writing to an extension of the City's time deadline for acting on the application under Minnesota Statutes, Section 15.99 to September 26, 2009. 4 NOW, THEREFORE, the Ciry Council of the Ciry of Elk River makes the following Findings of Fact and Decision with respect to the Application of ERL, WMI, and Tiller for a comprehensive plan amendment and rezoning of the SDA to allow expansion of the Landfill: FINDINGS OF FACT 1. The Landfill was first approved to operate on 40 acres of land in 1971 and first permitted by the Minnesota Pollution Control Agenry in 1972. 2. The Landfill was granted its first approvals and permits by the Ciry of Elk River pursuant to the City's Solid Waste Facilities Ordinance in 1988. In 1997, the City granted approval for the Landfill to expand the area approved for Mixed Solid Waste (MSW) disposal from its original 40 acres to the current 93-acre footprint. 4. In 1988, the Landfill received approval from Livonia Township to expand the area approved for construction and demolition debris disposal (C & D) to a total permitted footprint of 75 acres. 5. The Mixed Solid Waste and Construction and Demolition Debris operations at the Landfill therefore currently cover 168 acres. The Application originally proposed the development of additional MSW disposal space on 8.6 acres on the southern most portions of existing Landfill property and on 60.2 acres of the SDA, an increase in the MSW disposal area within the Landfill from the existing 93 acres to a total of 162 acres, or an expansion of approximately 75 percent. 7. As revised, the Application proposes an increase in the MSW disposal area within the Landfill of 49.3 acres, an expansion of over 50%. 8. Total MSW and C & D disposal areas at the Landfill would be approximately 217 acres if the Application is approved. 5 9. The proposed expansion of the Landfill would extend the life of the Landfill beyond its current expected closing date. The Application as revised proposes that the Landfill would close no later than 2029 if the Application is approved. 10. The City of Elk River has been proactively planning for its future and regulating solid waste facilities since the 1980's. The Ciry adopted its Solid Waste Facilities Ordinance in 1986, and the Landfill was rezoned to the Solid Waste Facilities Overlay Zoning District in 1988. 11. The City adopted its first growth management plan in 1988 and its first comprehensive plan in 1995. The City's current comprehensive plan (the Comprehensive Plan) was adopted on August 16, 2004. 12. The 2004 Comprehensive Plan consists of 13 elements, including the Land Use Element. The Land Use Plan incorporated in the Land Use Element of the Comprehensive Plan designates the current Landfill as "Landfill" and the proposed expansion area (the SDA) as "Mining". The designation of the SDA as Mining has not been changed since adoption of the Comprehensive Plan in 2004 13. Changing the designation of the SDA from Mining to Landfill on the Land Use Map requires the approval and adoption of an amendment to the Comprehensive Plan by the City Council, as provided by Minnesota Statutes. 14. The Comprehensive Plan states that it should not be amended capriciously and that the following questions should be considered when changes to the Comprehensive Plan are proposed: Is the project consistent with the Land Use Plan? Does the project move Elk River towards its vision for the future? Is the project consistent with the policies contained the Comprehensive Plan? 6 15. Policies set forth in the Comprehensive Plan which are relevant to the Application include: • Provide a balanced land use pattern which supports a sustainable mix of jobs and housing. • Guide the scale of development to be consistent with the surrounding land uses and general character. • Guide commercial land use to areas that can utilize an appropriately-designed transportation system without infringing upon residential neighborhoods. • Allow commercial areas to develop when they can be designed to be compatible with surrounding land uses. • Include adequate buffering of commercial and industrial developments and adjacent to non-compatible land uses. • Require adequate transition of buffers between differing, non-compatible land uses, making use of natural land characteristics, whenever possible. • Require development of proposals to consider the impacts on transportation and natural systems beyond the boundaries of the individual projects. 16. Throughout the Comprehensive Plan there is an emphasis on attracting commercial/industrial development. This is important to the City as this type of development builds a community's tax base and creates more job opportunities. 17. Another fundamental element mentioned throughout the Comprehensive Plan is the need to establish and maintain a positive community image by maintaining the edges and buffers that define and protect adjacent land uses. 18. Preservation of open spaces is also an important policy and goal of the Comprehensive Plan. 19. The Comprehensive Plan provides that the gravel mining area of the City, which is located along both sides of North Highway 169 and includes the SDA, be guided for future development of commercial and industrial uses. This area of the City is envisioned by the City Council as the future economic engine of the City. The goal is to have this area develop with commercial and industrial uses as the gravel is mined out. The tax base generated by commercial 7 and industrial development in this area is intended to support the financial viability of residential development throughout the City by making it possible to maintain municipal services without increasing taxes. Although this is very long range planning, and there are not yet timetables for extending public utilities into this area to serve those future uses, this is the vision of the Comprehensive Plan and the Ciry Council for this area of the Ciry. The SDA is also located adjacent to the future Highway 169/2215` Avenue Interchange, which has great potential for future commercial/industrial development. 20. The 2004 Comprehensive Plan was prepared with the assistance of the planning firm of Hoisington Koegler Group, Inc.(HKGi). In anticipation of the proposed expansion of the Landfill the City retained HKGi to take a closer look at the potential impacts of an expansion of the Landfill on the gravel mining area o£ the City. HKGi's report, the North Highway 169 Land Use Study, dated November 10, 2008, identified a number of potential impacts related to an expansion of the Landfill and suggested land use, transportation and aesthetic strategies for addressing these impacts. 21. Following receipt of the Application to expand the Landfill, the City retained HKGi to take a closer look at the immediate area which would be potentially impacted by a Landfill expansion and to analyze the potential financial and fiscal impacts on the City of an expansion of the Landfill. HKGi's report on these issues is dated June 2, 2009, was subsequently updated on June 15, 2009, and was updated again on September 8, 2009, following submission by ERL of its revised plan for expansion of the Landfill. (The HKGi November 10, 2008, June 6, 2009, June 15, 2009 and September 8, 2009 reports are hereafter collectively referred to as the "HKGi reports".) 22. The HKGi reports project potential significant impacts of Landfill expansion on economic development in this area of the City and on future tax revenues generated from the SDA and the surrounding area. 8 23. ERL, WMI, Tiller and their consultants have strongly contested the methodology and findings of the HKGi reports, and the City Council has listened to and carefully considered the evidence and testimony presented by the applicants and their consultants. The City Council also recognizes the inherent difficulty in attempting to project the potential impacts of a current land use on future development which may or may not occur decades from now. 24. The City Council recognizes that there are positive economic impacts to the City while operations at the Landfill are on-going, including the host fees which the City collects from the Landfill and the business which ERL does with local residents and businesses. These economic benefits to the city will be extended if the Landfill expands. 25. The City Council finds that the revisions to the Application proposed by ERL, including: reducing the additional MSW disposal space from 60.2 acres to 49.3 acres; increasing the area available for future development at the Highway 169/2215` Avenue Interchange from 10 acres to 33 acres; and shortening the life span of the Landfill from a closure date of 2033 to 2029; have addressed the concerns the City Council had with the expansion as proposed in the original Application. 26. The City Council finds that ERL and WMI have been excellent corporate citizens and have made every effort to eliminate or mitigate impacts from the Landfill, such as litter, truck traffic, noise and odor. 27. It is the City Council's conclusion, from all of the evidence submitted and the testimony taken, that: (1) Expansion of the Landfill will extend the period of time that the City, its residents and its businesses will benefit from the host fees and other positive economic impacts which ongoing operations at the Landfill generate; 9 (2) The negative impacts associated with an operating Landfill can be mitigated through appropriate regulations and conditions; (3) The long term negative economic impacts identified in the KHGi reports are somewhat speculative, given the lengthy time between now and the potential impacts; (4) The Landfill could, if expanded and operated appropriately, generate some commercial and industrial development in the area and some positive economic impacts for the City; (5) Expansion of the Landfill could generate some additional permanent open space in the Ciry for future public benefit; (6) The balance between the benefits of a Landfill expansion and the potential impacts weigh in favor of an expansion, if an expansion is done, and the Landfill is operated, appropriately. DECISION THEREFORE, the City Council of the City of Elk River makes the following Decision with respect to the Application to amend the Comprehensive Plan of the Ciry of Elk River to redesignate the SDA from Mining to Landfill and to rezone the SDA from A-1 (ME} to A-1 (SWF~: A. All of the Findings of Fact and Recitals set forth in this Resolution are hereby adopted and incorporated within the City Council's Decision on this matter. B. The record in this matter shall include all materials submitted to the Ciry and presented to the Planning Commission and Ciry Council, including those materials presented in the staff reports, by the City staff and by the City's consultants, and all materials and testimony 10 submitted by or on behalf of ERL, WMI, Tiller and their consultants, and all testimony received from the public, as of the date of this Resolution. C. The Application of ERL to amend the Land Use Map Element of the City of Elk River 2004 Comprehensive Plan to redesignate the 109-acre Southern Development Area from the Land Use category "Mining" to the Land Use category "Landfill", and to rezone the SDA from A-1 (ME) to A-1 (SWF), is hereby granted. D. This approval is specifically conditioned on ERL submitting a revised Application for and receiving approval of, a Conditional Use Permit for the modified expansion plan presented to the Ciry Council on September 8 and September 21, 2009. THIS RESOLUTION PASSED AND ADOPTED this 21st day of September, 2009. Stephanie Klinzing, Mayor Tina Allard, Ciry Clerk GP:2629147 v2 11 RESOLUTION 09- A Resolution Denying the Application of Elk River Landfill, Inc. for a Comprehensive Plan Amendment and Rezoning to Allow Expansion of the Elk River Landfill WHEREAS, Elk River Landfill, Inc. (ERL), a wholly-owned subsidiary of Waste Management, Inc. (WMI), is the owner and operator of the Elk River Landfill (Landfill); and WHEREAS, Capital Land Group, a land holding company for Tiller Corporation (Tiller), is the owner of an approximately 109-acre parcel of land identified as the Southern Development Area (SDA) located immediately south of the existing Landfill; and WHEREAS, ERL and Tiller have submitted a land use application (Application) to the City requesting. An amendment to the City's 2004 Comprehensive Plan to amend the Land Use Map Element of the Comprehensive Plan to change the land use designation of the 109- acre SDA from "Mining" to "Landfill"; and 2. An amendment to the City of Elk River Zoning Map to rezone the 109-acre SDA from A-1(ME), Agricultural Conservation (Mineral Excavation), to A-1(SWF), Agricultural Conservation (Solid Waste Facility); and WHEREAS, pursuant to the requirements of Minnesota Statutes and the Elk River City Code, the Application was referred to the City of Elk River Planning Commission for the purpose of holding a public hearing and making a recommendation to the Elk River City Council on the Application; and WHEREAS, the Planning Commission held a public hearing on the Application on June 9, 2009, at which time ERL, WMI, Tiller and their consultants were provided as much tithe as they desired to present the Application and all information and data they desired in support of the Application; and WHEREAS, the Planning Commission took testimony from all members of the public who desired to speak at the June 9, 2009 public hearing; and WHEREAS, the Planning Commission closed its public hearing on the Application on June 9, 2009, but continued its discussion of the Application to a special meeting on June 23, 2009; and WHEREAS, ERL, WMI and Tiller were provided the opportunity to submit additional testimony and written materials for the record prior to and at the Planning Commission's June 23, 2009 continued discussion of the Application; and WHEREAS, on June 23, 2009, the Elk River Planning Commission adopted a resolution recommending to the Elk River City Council that the Application for a comprehensive plan amendment and rezoning of the SDA be denied; and WHEREAS, the Elk River City Council, on July 6, 2009, held a public hearing on the Application and considered the Planning Commission's recommendation; and WHEREAS, ERL, WMI, Tiller and all members of the public desiring to speak at the July 6, 2009 public hearing before the City Council were provided the opportunity to do so; and WHEREAS, all written materials submitted by ERL, WMI, Tiller, and all other members of the public prior to and at the public hearing on July 6, 2009 were accepted into the record; and WHEREAS, during the July 6, 2009 public hearing, the City Council discussed the merits of the Application, directed that staff prepare alternative resolutions denying and approving the Application, and continued the public hearing to its regular meeting of August 17, 2009, in order to provide ERL, WMI, and Tiller the opportunity to present additional materials to address issues raised in the staff reports, during the public hearing, and by the City Council during their discussion; and 2 WHEREAS, on August 17, 2009, the Elk River City Council continued with the public hearing on the Application and provided ERL, WMI and Tiller, as well as all members of the public desiring to do so, the opportunity to present additional testimony and written evidence to the City Council; and WHEREAS, after all parties desiring to present testimony and offer evidence for or against the Application had had the opportunity to do so, the Elk River City Council. closed the public hearing on the Application and continued its discussion of the Application; and WHEREAS, by letter dated July 15, 2009, and at the August 17, 2009 City Council hearing, ERL requested an opportunity to present additional materials and a revised plan to the City Council in a workshop session; and WHEREAS, at the close of its session on August 17, 2009, the Elk River City Council directed: • That any additional materials be submitted so that a staff report could be distributed to the City Council on September 8, 2009; • That the Application be placed on the City Council's regular workshop agenda for September 14, 2009; • That the September 14, 2009 workshop session regarding the landfill be a joint meeting with the City of Elk River Planning Commission; and • That the Application be scheduled for another public hearing at the City Council's regularly scheduled meeting of September 21, 2009; and WHEREAS, representatives of ERL and City Staff met on August 25, 2009 and September 8, 2009 to review additional materials submitted by ERL regarding the Application, including a revised plan for the landfill expansion, a report entitled "Is Landfill Expansion a Good Investment for Elk River" (the "Voith Report") and a letter dated September 1, 2009 (revised September 8, 3 2009) outlining design modifications to the expansion proposal, the end use plan for the landfill, and other issues; and WHEREAS, City Staff and City consultants-reviewed the revised plans, the Voith Report, the September 8, 2009 letter and all other materials submitted by ERL, and prepared a staff report which was delivered to the City Council and Planning Commission, along with all of the materials submitted by ERL, on September 8, 2009; and WHEREAS, the City Council and Planning Commission met in joint workshop session on September 14, 2009 to discuss the materials submitted by ERL, including the revisions to the expansion proposal for the Landfill; and WHEREAS, ERL was provided an opportunity to present its revised plans and proposed design modifications for the expansion to the City Council and the Planning Commission at the September 14, 2009 workshop session and the City Council had the opportunity to discuss and ask questions regarding the revised proposal; and WHEREAS, on September 21, 2009 the Elk River City Council held a public hearing on the Application and provided ERL, WMI and Tiller, as well as all members of the public desiring to do so, the opportunity to present additional testimony and comment on the Application, as revised, and to submit additional written evidence; and WHEREAS, after all parties desiring to present testimony and offer evidence for or against the Application had had the opportunity to do so, the Elk River Ciry Council closed the public hearing on the Application, continued its discussion of the Application, and reached the decision incorporated in this resolution; and WHEREAS, ERL has agreed in writing to an extension of the City's time deadline for acting on the application under Minnesota Statutes, Section 15.99 to September 26, 2009. 4 NOW, THEREFORE, the City Council of the City of Elk River makes the following Findings of Fact and Decision with respect to the Application of ERL, WMI, and Tiller for a comprehensive plan amendment and rezoning of the SDA to allow expansion of the Landfill: FINDINGS OF FACT The Landfill was first approved to operate on 40 acres of land in 1971 and first permitted by the Minnesota Pollution Control Agency in 1972. 2. The Landfill was granted its first approvals and permits by the Ciry of Elk River pursuant to the Ciry's Solid Waste Facilities Ordinance in 1988. 3. In 1997, the City granted approval for the Landfill to expand the area approved for Mixed Solid Waste (MSW) disposal from its origina140 acres to the current 93-acre footprint. 4. In 1988, the Landfill received approval from Livonia. Township to expand the area approved for construction and demolition debris disposal (C & D) to a total permitted footprint of 75 acres. 5. The Mixed Solid Waste and Construction and Demolition Debris operations at the Landfill therefore currently cover 168 acres. 6. The Application originally proposed the development of additional MSW disposal space on 8.6 acres on the southern most portions of existing Landfill property and on 60.2 acres of the SDA, an increase in the MSW disposal area within the Landfill from the existing 93 acres to a total of 162 acres, or an expansion of approximately 75 percent. 7. As revised, the Application proposes an increase in the MSW disposal area within the Landfill of 49.3 acres, an expansion of over 50%. 8. Total MSW and C & D disposal areas at the Landfill would be approximately 217 acres if the Application is approved. 5 9. The proposed expansion of the Landfill would extend the life of the Landfill beyond its current expected closing date. The Application as revised proposes that the Landfill would close no later than 2029 if the Application is approved. 10. The City of Elk River has. been proactively planning for its future and regulating solid waste facilities since the 1980's. The City adopted its Solid Waste Facilities Ordinance in 1986, and the Landfill was rezoned to the Solid Waste Facilities Overlay Zoning District in 1988. 11. The City adopted its first growth management plan in 1988 and its first comprehensive plan in 1995. The City's current comprehensive plan (the Comprehensive Plan) was adopted on August 16, 2004. 12. The 2004 Comprehensive Plan consists of 13 elements, including the Land Use Element. The Land Use Plan incorporated in the Land Use Element of the Comprehensive Plan designates the current Landfill as "Landfill" and the proposed expansion area (the SDA) as "Mining". The designation of the SDA as Mining has not been changed since adoption of the Comprehensive Plan in 2004. 13. Changing the designation of the SDA from Mining to Landfill on the Land Use Map requires the approval and adoption of an amendment to the Comprehensive Plan by the City Council, as provided by Minnesota Statutes. 14. The Comprehensive Plan states that it should not be amended capriciously and that the following questions should be considered when changes to the Comprehensive Plan are proposed: • Is the project consistent with the Land Use Plan? • Does the project move Elk River towards its vision for the future? Is the project consistent with the policies contained the Comprehensive Plan? 6 15. Policies set forth in the Comprehensive Plan which are relevant to the Application include: • Provide a balanced land use pattern which supports a sustainable mix of jobs and housing. • Guide the scale of development to be consistent with the surrounding land uses and general character. • Guide commercial land use to areas that can utilize an appropriately-designed transportation system without infringing upon residential neighborhoods. • Allow commercial areas to develop when they can be designed to be compatible with surrounding land uses. • Include adequate buffering of commercial and industrial developments and adjacent to non-compatible land uses. • Require adequate transition of buffers between differing, non-compatible land uses, making use of natural land characteristics, whenever possible. • Require development of proposals to consider the impacts on transportation and natural systems beyond the boundaries of the individual projects. 16. Throughout the Comprehensive Plan there is an emphasis on attracting commercial/industrial development. This is important to the City as this type of development builds a community's tax base and creates more job opportunities. 17. Another fundamental element mentioned throughout the Comprehensive Plan is the need to establish and maintain a positive community image by maintaining the edges and buffers that define and protect adjacent land uses. 18. Preservation of open spaces is also an important policy and goal of the Comprehensive Plan. 19. The Comprehensive Plan provides that the gravel mining area of the City, which is located along both sides of North Highway 169 and includes the SDA, be guided for future development of commercial and industrial uses. This area of the City is envisioned by the City Council as the future economic engine of the City. The goal is to have this area develop with commercial and industrial uses as the gravel is mined out. The tax base generated by commercial 7 and industrial development in this area is intended to support the financial viability of residential development throughout the City by making it possible to maintain municipal services without increasing taxes. Although this is very long range planning, and there are not yet timetables for extending public utilities into this area to serve those future uses, this is the vision of the Comprehensive Plan and the City Council fox this area of the City. The SDA is also located adjacent to the future Highway 169/2215` Avenue Interchange, which has great potential for future commercial/industrial development. 20. The 2004 Comprehensive Plan was prepared with the assistance of the planning firm of Hoisington Koegler Group, Inc.(HKGi). In anticipation of the proposed expansion of the Landfill the City retained HKGi to take a closer look at the potential impacts of an expansion of the Landfill on the gravel mining area of the City. HKGi's report, the North Highway 169 Land Use Study, dated November 10, 2008, identified a number of potential impacts related to an expansion of the Landfill and suggested land use, transportation and aesthetic strategies for addressing these impacts. 21. Following receipt of the Application to expand the Landfill, the City retained HKGi to take a closer look at the immediate area which would be potentially impacted by a Landfill expansion and to analyze the potential financial and fiscal impacts on the City of an expansion of the Landfill. HKGi's report on these issues is dated June 2, 2009, was subsequently updated on June 15, 2009, and was updated again on September 8, 2009, following submission by ERL of its revised plan fox expansion of the Landfill. (The HKGi November 10, 2008, June 6, 2009, June 15, 2009 and September 8, 2009 reports are hereafter collectively referred to as the "HKGi reports".) 22. The HKGi reports project potential significant impacts of Landfill expansion on economic development in this area of the City and on future tax revenues generated from the SDA and the surrounding area. 8 23. ERL, WMI, Tiller and their consultants have strongly contested the methodology and findings of the HKGi reports, and the City Council has listened to and carefully considered the evidence and testimony presented by the applicants and their consultants. The City Council also recognizes the inherent difficulty in attempting to project the potential impacts of a current land use on future development which may or may not occur decades from now. 24. However, it is the conclusion of the City Council that an expansion of the Landfill will inevitably have a long term negative impact on economic development within and tax revenue generated by at least a portion of the North Highway 10 area of the City, in particular the SDA and the area immediately surrounding the SDA. Given the importance of this area to the future of the City, the City Council cannot ignore these impacts. 25. The City Council has also considered potential impacts of the Landfill expansion on the Economic Development Strategic Plan prepared by the Elk River Economic Development Authority and the Elk River Housing and Redevelopment Authority. Expansion of the Landfill could have a negative impact on the following goals in that plan: • To diversify the commercial/industrial tax base of the City to strive for higher quality developments including professional services, corporate campuses, energy related and technology businesses; • To preserve high priority commercial areas for development; • To identify and project a higher image and vision for the City that enables the City to successfully recruit and retain the desired commercial/industrial development identified above. 26. The City Council finds that an additional expansion of the Landfill, beyond that approved in 1997 by the City and in 1998 by Livonia Township, is not consistent with the City's policies and goals as reflected in the City's Comprehensive Plan and the work of the its Economic 9 Development Authority, Housing and Redevelopment Authority, Planning Commission and City Council. 27. The City Council finds that image is a huge driver in encouraging development in the community, that having the Landfill located at the northern entrance to the City adversely impacts the image the City wishes to portray to visitors, residents and potential new businesses, and that expanding the Landfill and extending its life span will significantly increase these negative impacts. 28. The Citq Council further finds that expansion of the Landfill will prevent future development, at a minimum, in that portion of the SDA which will be filled with Mixed Solid Waste, and could discourage the type of high quality commercial/industrial development which the City is seeking for the important area of the City immediately surrounding the SDA, including the critical area around the future interchange at Highway 169 and 2215` Avenue. 29. The City Council recognizes that there are some positive economic impacts related to the Landfill, including the host fees which the City collects from the Landfill and the business which ERL does with local residents and businesses. However, these are short term economic benefits which will end once the Landfill closes. At that point, the portion of the SDA filled with MSW will generate virtually no revenue to the City, and tax revenues generated from the immediate surrounding area will be negatively impacted to some degree. 30. The City Council finds that the Landfill also has non-economic negative impacts on the City and on surrounding residential uses while it is open, including litter on Highway 169 and other public streets from trucks moving to and from the Landfill, the truck traffic itself, road maintenance impacts, noise and odor. Although ERL and WMI have been excellent corporate citizens and have made every effort to mitigate these impacts, they are not capable of being fully mitigated until the Landfill is closed. Expanding the size and extending the life of the Landfill will prolong the period of time that the City and surrounding residents must endure these impacts. 10 31. The City Council has reviewed and carefully considered, along with all other materials submitted by ERL, the Voith Report. As set forth above, the Council recognizes the potential for some positive economic impacts related to the Landfill. However, the council finds that: • The Voith Report overstates the potential positive economic impacts of the Landfill, for the reasons set forth in the September 8, 2009 Memorandum from the City Administrator, which are incorporated in these Findings of Fact; • The potential for positive economic impacts is only one of many criteria and considerations to be weighed in making a decision to amend the City's Comprehensive Plan; and The City Council does not agree that a present value economic analysis of any proposed use should be a deter+„ining factor in making a land use decision. 32. The City Council has considered and appreciates the efforts of ERL to mitigate the negative impacts of a landfill expansion, particularly on the important Highway 169/2215` Avenue interchange, by reducing the size of the proposed expansion in the revised proposal and by making an additiona120 acres of land available for potential development at the Interchange. However, the Council finds that the Plan revisions do not outweigh the negative impacts of the proposed expansion, or change the Findings of Fact set forth in this Resolution. 33. It is the City Council's conclusion, from all of the evidence submitted and the testimony taken, that: (1) An expansion of the Landfill will prolong the negative short term impacts of the Landfill on the City and will inevitably have a long term negative impact on the tax base generated from this area of the City; 11 (2) This area of the City is planned to generate the tax base that will support the financial viability of the balance of the Ciry indefinitely; (3) Given the importance of this area to the future of the City, the potential benefits of a Landfill expansion are outweighed by the negative impacts of an expansion; and (4) An amendment of the Land Use Map Element of the City's Comprehensive Plan to expand the area of the Ciry designated for Landfill into the SDA is inconsistent with the policies and goals of the City's Comprehensive Plan and would not be in the best interest of the City, its residents and its taxpayers. DECISION ON LAND USE AMENDMENT THEREFORE, the City Council of the City of Elk River makes the following Decision with respect to the Application to amend the Comprehensive Plan of the City of Elk River to redesignate the SDA from Mining to Landfill: A. All of the reports and materials prepared by City Staff and City Consultants, as well as the Findings of Fact and Recitals set forth in this Resolution, are hereby adopted and incorporated within the City Council's Decision on this matter. B. The record in this matter shall include all materials submitted to the City and presented to the Planning Commission and City Council, including those materials presented in the staff reports, by the Ciry staff and by the City's consultants, and all materials and testimony submitted by or on behalf of ERL, WMI, Tiller and their consultants, and all testimony received from the public, as of the date of this Resolution. C. The Application of ERL to amend the Land Use Map Element of the City of Elk River 2004 Comprehensive Plan to redesignate the 109-acre Southern Development Area from the Land Use category "Mining" to the Land Use category "Landfill" is hereby denied. 12 DECISION ON REZONING The City Council of the City of Elk River further makes the following Decision with respect to the Application of ERL for rezoning of the 109-acre Southern Development Area from A-1 (ME), agricultural conservation (mineral excavation), to A-1 (SWF'), agricultural conservation (solid waste facility): A. All of the reports and materials prepared by City Staff and Ciry Consultants, as well as the Findings of Fact and Recitals set forth in this Resolution, are hereby adopted and incorporated within the City Council's decision on this matter B. The record in this matter shall include all materials submitted to the City and presented to the Planning Commission and City Council, including those materials presented in the staff reports, by the City staff and by the City's consultants, and all materials and testimony submitted by or on behalf of ERL, WMI, Tiller and their consultants, and all testimony received from the public as of the date of this resolution. C. Based on all of the above, and on the additional fact that the Application to reguide the SDA from "Mining" to "Landfill" has been denied, so that rezoning the SDA from A-1 (ME) to A-1 (SWF') would result in an inconsistenry between the Land Use Map Element of the Ciry's 2004 Comprehensive Plan and the City of Elk River's Zoning Map, the Application to rezone the SDA from A-1 (ME) to A-1 (SWF) is denied. THIS RESOLUTION PASSED AND ADOPTED this 21st day of September, 2009. Stephanie Klinzing, Mayor Tina Allard, City Clerk GP:2629426 v2 13 Comments on the SDA landfill expansion petition by Waste Management, registered by Angela Mathison on behalf of the residents of Ridges of Rice Lake, Elk River, MN. 1. Waste Management is "100% committed" to placing a new 8 burner gas plant on the 109 acre proposed expansion. - The EIS completed in 2006 does not outline plans for a gas plant - Debra Moynihan at MN PCA was contacted. She could not state with any certainty whether the addition of the gas plant would impact the relevance of the EIS. She could not have an answer for us until Monday, September 21St at the earliest. - There has been no commitment from Waste Management as to where that plant would be located on the 109 acre site. 2. There is allegedly some leakage from the old liners in the current site. Has this been addressed and fixed? This should be addressed. If it has been addressed and fixed, do we have evidence that it has been repaired in a permanent fashion? 3. The EIS did not address the issue of ground water safety. The potential health impacts have not been met in regards to the ground water issue. 4. Waste Management has done a poor job in maintaining a visually aesthetic entrance to the current site. The landscaping is poorly maintained and there is garbage throughout the medians and ditches along 169, as well as a terrible odor. Will this problem expand with the expansion of the landfill? It lends itself to a poor welcome into our city and perpetuates our reputation as "the city with the dump". 5. The initial EIS was done with the proposal for the entire 109 acres of land to be used as a lined solid waste dump (9 new cells that would extend to the corner of 221St and 169). Our understanding is that Waste Management has consistently stated that the site would be closed/capped in 2030. - As we understand it, the initial proposal contends that they would reach capacity in 2030 using all 109 acres for lined solid waste dump - The revised proposal was for 60 acres of lined solid waste dump, but still closing in 2030 - The most recent revision is for 40 acres of lined solid waste dump and yet still closing capping in 2030 - If the initial proposal for 109 acres was going to take them to 2030 to reach capacity, and they now contend that they only need 40 acres, there is high probability that they will reach capacity before 2030. If the permit is granted for the 109 acres, what stops them from expanding that lined footprint to extend the life of the site? 6. The footprint of the landfill can never be used for commercialJresidential property. The northern expansion of the city will be stunted by the southern expansion of the landfill. Businesses are not going to want to build next to a landfill and the land being used for the SDA expansion is useless to us until after they have capped the site, at the earliest. That is 21 years from now. Arbor Lakes in Maple Grove is an excellent example of prosperous commercial development. The question should be asked, would that development have been built next to a landfill? 7.Our city is providing a dumping site for trash from all over the state. Only 7.01% comes from Sherburne County. 8. How will the berm be developed? if the landfill expands south and they do not plant very large evergreen trees and a deep berm and maintain it well, the landfill will be fully visible as 169 curves just past 221~t. Those commuters driving north will have astraight-on view of the site instead of having to consciously turn your head to left, as it sits now. 9. There were several concerns from the worksession on Monday, September 14th, 2009: - Again, while WM decreased the footprint of the actual dump site, they are still requesting approval for the entire 109 acres. When questioned about the use of the remaining 69 acres (including the 33.1 acres of commercially developable land), WM communicated inconsistent rationale messages: - - At the beginning of the meeting, they stated that they would not be using the 33.1 acres of developable land. They went on to say that they might need to use it for things like forced main, leachate storage tanks, support items, etc. - - Later, they stated that it would be impossible for them to run the dump with only the 76 acres of land and Wlll need to use the developable land. - - Waste Management also noted that they would want to possibly put the HHW and recycling center on developable land and/or use it for infrastructure. - - It was made very clear that Waste Manaeement does not have a plan in place for how thev intend to use the developable land. They simply made it clear that they want the land. - Waste Management was asked if they were granted the petition for the 109 acres, what is to prevent them from expanding the footprint farther south? WM indicated that they would stipulate to language in the contract that would prevent them from being able to expand farther south. - - However, our understanding is that this may not entirely preclude them from expanding that footprint. - If the petition is granted to Waste Management, there is no guarantee that they won't be back in 2020 or 2025 initiating this process all over again to expand even farther south. To our knowledge, Waste Management has not agreed to cap and leave the City of Elk River in 2030.One expansion allowance opens the door for subsequent requests. We need to be certain that this is the direction we want to see our city go and this is the face and reputation we want for our city. - In Monday night's worksession, Waste Management addressed the issue of end-use for the land. Waste Management stated, "We are building a golf course on the site in Burnsville." This statement was given in present-tense. They also offered several other examples of end-use projects that they had completed, but with no specifics such as where, how long after the site was capped and photographic or written evidence. After speaking with the MN PCA and the City of Burnsville, that site is still fully operational, and, according to the City of Burnsville, they are not aware of any plans for the end-use of that land. According to Burnsville, "They are still using that site and if there are any plans it won't be for many years to come." - There was a lot of ambiguity from WM at the worksession. They were very non- committal about their plans for the developable land and changed their answers on the use of that land several times. They weren't sure when the mining of the land would be completed, couldn't say where structures and infrastructure would go and went from stating that they would not need to use the developable land to we can't operate without using it. WITHOUT A CONCRETE, SPECIFIC, DESCRIPTIVE PLAN AND TIME-LINE WE DON'T REALLY KNOW WHAT THEIR INTENTIONS ARE. Thank you for taking the time to review these points prior to the next City Council meeting. Angela Mathison 22382 Tipton Street NW Elk River, MN 55330 'TILLER RPORA'T~N Corporate Office: PO Sox 1480 7200 Henilc^rck Lane, Suite 200 Maple Grave, Minnesota 55311 September 26, 2009 Mayor anti Council Members City of Elk River 13065 drono Parkway Elk River, MN 55330 Re: Elk River Landfill Expansion Honorable Mayor and Council Members: Tiller C©rporation r~rrd its o~rratirrg rlinisiores Sarum Sand & Gravel Ga. Comrnexcial A';ph~lt Ca. Barton Enterprises, lac. ~enexal: (763) 425=119"l farsirnite: {763) 425-71.53 web: www.titlercorp.corn We write to express our support for Elk River Landfill's recjuest to change the land use of our property which will. allow for t1~1e Southern Development Area (SDA) expansion of their landfill. Representatives from TiIIer testified before the Planning Commission and. at Council rrteetings and wo1•k sessions about t-he proposed. expansian. One of the major points we have made was how our mining plans would be modified to accommodate Elk River Landfill's prapased expansion, The purpose of this letter is to reiterate the timing of our mining an the 109 acre SDA property. Ulxr Current M:inin~ Plans We have our hot mix asphalt plaint located an the SDA property. Presently we supply aggregate materials for this plant from. our pIt north of the landfill in. Livonia. Tl-te raining activity on the SDA property has been low the last five years and if the landfill does not expand our activity on the SDA property will remain law. However, there are high quality aggregate reserves on the SDA property which represent approximately 20 years of reserves. If the land:Eill does not expand, our intent wauld be to continue to mine in Livania and after concluding our activities to the north, we would begin more intense mining of the SDA property. The Livonia reserves represent 35 to 50 years of aggregate reserves. Assuming the landfill does not expand, we would nat begin meaningful mining of the SDA property until approximately 2050 (201.0 plus ~40 years). As mentioned above, the SDA property 11as This Company is an Equal Opportunity Employer Septe~liber IG, 2009 Page 2 of 3 approximately 20 years of reserves. Under this mining plan, the SDA property will not be mined and reclaimed until at least 2070 (2050 start date for intense mining plus -20 years). This mining plan is consistent with the information Tiller supplied the City while the 1994 Elk River Gravel Mining District Environmental Impact Statement (EIS) was being prepared. Table 3.1-1 Land Ownership a.nd Usage of the EIS identifies properties by PID numbers. The PID numbers associated with the SDA property are shocn~n as being mined through 2070 which is the Iasi year considered in the EIS. Proposed Mining Plans With Landf}ll Expansion However, if the landfill expands, our mining plans will be significantly different. The landfill requires access to the airspace provided by the SDA property at an accelerated rate. To accommodate their requirements we will. expedite our mining of the SDA property through a combination of re-orienting our Livonia mining operation and exporting material from Elk River to our other facilities that currently receive material from other markets. This will have the effect of compressing the timeframe which active mining takes place in this area of. Elk River. We believe this compression is desirable and may allow adjacent properties to develop earlier in concert with Elk River Landfill's business park plan. Tiller's operating agreement with Elk River Landfill on the 5DA property will be require us to progressively remove material from individual landfill cells 6y certain dates. The dates are reviewed on a regular basis and depending on Elk River Landfill's needs they will be adjusted as necessary. Mining on the entire 109 acre SDA will be completed by Tiller as directed by the new property owner, Elk River Landfill. The accelerated mining rate on the SDA property will not affect Tiller's mining property along County Road 33 and County Road 77 (CR33/77}. The material in the CR33/77 area is used to feed our wash plant operation located at 12450 Ranch Road NW. This operation is independent from the operations on our Livonia property anal the SDA property. Final Reclamation Grads and Timing The intersection of TH 169 and 2215 Avenue is proposed to be realigned and built as an interchange. 221s' Avenue is also proposed to be extended to the east. The land east of the proposed TH 169/2215 Avenue interchange is at lower elevations than Iand west of the proposed interchange. In the future the City and area property owners may find it desirable to have the new alignment of 2215 Avenue west of TH ib9 at an elevation thaE is lower than what exists today. We may actually end up with 221st Avenue going under TH 9.69. Scptel-iher 16, 2(109 Page 3 of 3 For these reasons, Tiller believes it is essential that the City maintain flexibility with the reclamation grades in this area. It is also important not to establish an exact date for final reclamation until the interchange design and 221ti~ Avenue alignment and elevation are certain. If you have any questions please do not hesitate to call. As always we stand ready to provide input to the study of our Sand, our mining plans and our development aspirations. 1 may be reached at (763) 425-4191. Sincerely, Tiller Corporation Michael Caron Director of Land Use Affairs Miller, Jessica From: Hanson, Wayne GREMG [WHANSON@GREnergy.com] Sent: Friday, September 18, 2009 9:12 AM To: Miller, Jessica Cc: Johnson, Lori Subject: FW: Future of Elk River Power Plant I am OK with you including this in the packet for the city council. From: Hanson, Wayne GRE/MG Sent: Wednesday, September Z6, 2009 3:37 PM To: 'mayorer@q.wm'; 'nick.zerwas@ci.elk-river.mn.us'; 'iwgump@yahoo.com'; 'westgaard@nsatel.net'; 'pmotin@aol.com' Cc: Rebecca Haug (rhaug@ci.elk-river.mn.us); Lori Johnson (Ijohnson@ci.elk-river.mn.us) Subject: Future of Elk River Power Plant I am providing this additional information to support the City Council decision regarding the expansion of the Elk River landfill. At thi August 17 City Council meeting I voiced the importance of retaining the Elk River landfill for receiving rejected materials from the Elk River RDF processing plant. The processing plant converts 80 to 85 percent of the municipal solid waste (MSW) received into fuel for the Elk River power plant. The rejected material from the processing plant averages 70,000 tons a year and has been disposed of in the Elk River landfill for the past 20 years. If the Elk River landfill does not receive the requested expansion and closes, the additional transportation cost to the processing plant for the disposal of this material at the next closest landfill will be about $15/ton or an additional $1 million per year. This additional expense could be a fatal blow to the operation of the processing plant and the Elk River power plant. GRE has also been working closely with Waste Management (WM) to supply the needed MSW to the project. WM clearly understands the importance to the City and also the state of Minnesota to keep the Elk River power plant operating. WM has historically been the supplier of the largest quantity of MSW to this project and they have agreed to continue to support the project at this same level in the future. Without this support from WM, the project clearly will not have sufficient MSW to fuel the Elk River power plant and keep the project viable. The Elk River power plant has continued to operate these past 20 years only because of the availability of refuse derived fuel produced at the Elk River processing plant. GRE has studied other options to fuel the power plant but have been unsuccessful in finding a fuel of sufficient quantity that is priced low enough to keep the facility financially viable. Therefore, if RDF from the Elk River processing plant is not available in the future the project will shut down. The economic impact to the Elk River community will be very significant if this project goes away. Currently, over a $1 million per year in property taxes are paid between the Elk River power plant and the processing plant. These facilities employ over 100 employees, many who live in the Elk River area and suppor the local economy. The facilities annually infuse into the area economy over $18 million for other operating and maintenance expenses. The Elk River power plant also supports the region by .producing reliable, low cost renewable energy. As GRE takes over the ownership and operation of the Elk River processing facility we see many opportunities to provide additiona support for the Elk River community from this facility. We are looking at new technologies to improve recycling efficiencies and hell solve other waste challenges such as the management of source separated organics from the Elk River area. We are taking a serious look at installing an anaerobic digester as an odorless and effective method to convert organics to electricity. We have also studied ways to more efficiently recover the energy from the fuel in the Elk River power plant. Along this line we have done an engineering study for the installation of a district heating system to take waste heat from the Elk River power plant and heat the Elk River school buildings. This improves the efficiency of the power plant, reduces school district expenses and supports the Energy City program. All these opportunities and benefits may be lost if the landfill expansion is not supported by the City Counci! and the closing of the Elk River landfill impacts the economic viability of the Elk River power plant and processing plant. Please consider these factors in your decision on the Elk River landfill expansion. If you have any questions, please feel free to call me at 763-445-5818. W~~ H+ Director, MN Generation Great River Energy 09/18/2009 12300 Elm Creek Boulevard Maple Grove, MN 55369-4718 753-445-5818 Fax 763-445-6618 whanson@G REnergy.com NOTICE TO RECIPIENT: The information contained in this message from Great River Energy and any attachments are confidential and intended only for the named recipient(s). If you have received this message in error, you are prohibited from copying, distributing or using the information. Please contact the sender immediately by return email and delete the original message. 09/18/2009 G~..~'~1.~...:~- ~, to °~ e ~ ~. ~~ RESOLUTION NO. 09- A Resolution Denying the Application of Ellc River Landfill, Ine. for a Comprehensive Plan Amendment and Rezoning to Allow Expansion of the Ellc River Landfill WHEREAS, Ella River Landfill, Inc. (ERL), a wholly-owned subsidiary of Waste Management, Inc. (WIv1I), is the owner and operator of the Elk River Landfill (Landfill); and WHEREAS, Capital Land Group, a land holding company for Tiller Corporation (Tiller), is the owner of an approximately 109-acre parcel of land identified as the Southern Development Area (SDA) located immediately south of the existing Landfill; and WHEREAS, ERL and Tiller have submitted a land use application (Application) to the City requesting: 1. An amendment to the City's 2004 Comprehensive Plan to amend the Land Use Map Element of the Comprehensive Plan to change the land use designation of the 109- acre SDA from "Mining" to "Landfill"; and 2. An amendment to the City of Elk River Zoning Map to rezone the 109-acre SDA from A-1(ME), Agricultural Conservation (Mineral Excavation), to A-1(SWF), Agricultural Conservation (Solid Waste Facility); and WHEREAS, pursuant to the requirements of Minnesota Statutes and the Elk River City Code, the Application was referred to the City of Ella River Planning Commission for the purpose of holding a public hearing and making a recointnendation to the Ella River City Council on the Application; and WHEREAS, the Planning Coizunission held a public hearing on the Application on June 9, 2009, at which tune ERL, WMI, Tiller and their consultants were provided as much tune as they S:\Resoludons\Resoluts~on_Den}~ing~Application for_Comp_Plnn_Arnend_and_Rezoning 2.DOC desired to present die Application and all information and data they desired in support of the Application; and WHEREAS, the Planning Commission took testimony from all members of the public who desired to speak at die June 9, 2009 public hearing; and WHEREAS, the Planning Commission closed its public hearing on the Application on June 9, 2009, but continued its discussion of the Application to a special meeting on June 23, 2009; and WHEREAS, ERL, WMI and Tiller were provided the opportunity to submit additional testimony and written materials for the record prior to and at the Planning Commission's June 23, 2009 continued discussion of the Application; and WHEREAS, on June 23, 2009, the Ella River Planning Con->inission adopted a resolution recommending to the Ella River City Council that the Application for a comprehensive plan amendment and rezoning of the SDA be denied; and WHEREAS, the Ella River City Council, on July 6, 2009, held a public hearing on the Application and considered die Planning Commission's recommendation; and WHEREAS, ERL, WMI, Tiller and all members of the public desiring to speak at the July 6, 2009 public hewing before the City Council were provided the opportunity to do so; and WHEREAS, all written materials submitted by ERL, WMI, Tiller, and all other members of the public prior to and at the public hearing on July 6, 2009 were accepted into the record; and WHEREAS, during d1e JuIIT 6, 2009 public hearing, the CitS~ Council discussed the merits of the Application, directed that staff prepare alternative resolutions denying and approving the Application, and continued die public heariig to its regular meeting of August 17, 2009, in order to provide ERL, WMI, and Tiller die opportunity to present additional materials to address issues raised in the staff reports, during the public hearing, and by the City Council during their discussion; and S:\Resolutions\ResoluC~in_Denping_Application_for_Comp_Plan Amend_and_I2ezoning 2.DOC WHEREAS, on August 17, 2009, the Ella River City Council continued with the public hearing on the Application and provided ERL, WMI and Tiller, as well as all members of the public desiring to do so, the opportunity to present additional testimony and written evidence to the City Council; and WHEREAS, after all parties desiring to present testimony and offer evidence for or against the Application had had the opportunity to do so, the Elk River City Council closed the public hearing on the Application and continued its discussion of the Application; and WHEREAS, by letter dated July 15, 2009, and at the August 17, 2009 City Council hearing, ERL requested an opportunity to present additional materials and a revised plan to the City Council in a workshop session; and WHEREAS, at the close of its session on August 17, 2009, the Ella Ri~cTer City Council directed: • That any additional materials be submitted so that a staff report could be distributed to the City Council on September 8, 2009; • That the Application be placed on the City Council's regular workshop agenda for September 14, 2009; • That the September 14, 2009 workshop session regarding the landfill be a joint meeting with the City of Ells River Planning Commission; and • That the Application be scheduled for another public hearing at the City Council's regularly scheduled meeting of September 21, 2009; and WHEREAS, representatives of ERL and City Staff inet on August 25, 2009 and September 8, 2009 to review additional materials submitted by ERL regarding the Application, including a revised plan for the landfill expansion, a report entitled "Is Landfill Expansion a Good Investment for Elk River" (the "Voith Report") and a letter dated September 1, 2009 (ievised September 8, 5:\Resolutions\Resolup3m_Denyin~Application_for_Comp_Plan_Amend_mid_I2ezoiung 2.llOC 2009) outlining design modifications to the expansion proposal, the end use plan for the landfill, and other issues; and WHEREAS, City Staff and City consultants reviewed the revised plans, the Voith Report, the September 8, 20091etter and all other materials submitted by ERL, and prepared a staff report which was delivered to the City Council and Planning Commission, along with all of the materials submitted by ERL, on September 8, 2009; and WHEREAS, the City Council and Planning Commission met in joint workshop session on September 14, 2009 to discuss the materials submitted by ERL, including the revisions to the expansion proposal for the Landfill; and WHEREAS, ERL was provided an opportunity to present its revised plans and proposed design modifications for the expansion to the City Council and the Planning CO1T1r11iSSlon at the September 14, 2009 workshop session and the City Council had the opportunity to discuss and asli questions regarding the revised proposal; and WHEREAS, on September 21, 2009 the Ells River City Council held a public hearing on the Application and provided ERL, WMI and Tiller, as well as all members of the public desiring to do so, the opportunity to present additional testunony and comment on the Application, as revised, and to submit additional written evidence; and WHEREAS, after all parties desiring to present testimony and offer evidence for or against the Application had had the opportunity to do so, the Ella River City Council closed the public hearing on the Application, continued its discussion of the Application, and reached the decision incorporated in this resolution; and WHEREAS, ERL has agreed in writing to an extension of the City's time deadline for acting on the application under Minnesota Statutes, Section 15.99 to September 26, 2009. S:\Resolutions\Resolut~n_Denpin~Application_for_Comp_Plan_Amend_and_Rezoning 2.DOC NO~X1, THEREFORE, the City Council of the City of Elk River makes the following Findings of Fact and Decision with respect to the Application of ERL, WMI, and Tiller for a comprehensive plan amendment and rezoning of the SDA to allow expansion of the Landfill: FINDINGS OF FACT The Landfill was first approved to operate on 40 acres of land in 1971 and first permitted by the Minnesota Pollution Control Agency in 1972. 2. The Landfill was granted its first approvals and permits by the City of Elk River pLUSUant to the City's Solid Waste Facilities Ordinance in 1988. In 1997, the City granted approval for the Landfill to expand the area approved for Mixed Solid Waste (MSW) disposal from its origina140 acres to the current 93-acre footprint. 4. In 1988, the Landfill received approval from Livonia Township to expand the area approved for construction and demolition debris disposal (C & D) to a total permitted footprint of 75 acres. 5. The Mixed Solid Waste and Construction and Demolition Debris operations at the Landfill therefore currently covei 168 acres. The Application originally proposed the development of additional MSW disposal space on 8.6 acres on the southern most portions of existing Landfill property and on 60.2 acres of the SDA, an increase in the MSW disposal area within the Landfill from the existing 93 acres to a total of 162 acres, or an expansion of approxunately 75 percent. 7. As revised, the Application proposes an increase in the MSW disposal area witlvn the Landfill of 49.3 acres, an expansion of over 50%. Total MSW and C & D disposal areas at the Landfill would be approximately 217 acres if the Application is approved. S:\Resolutions\Resolut~n_Denying_Applicaaon_for_Comp_Plan_Amend_and_Rezoning 2.DOC 9. The proposed expansion of the Landfill would extend the life of the Landfill beyond its current expected closing date. The Application as revised proposes that the Landfill would close no later than 2029 if the Application is approved. 10. The City of Ella River has been proactively planning for its future and regulating solid waste facilities since the 1980's. The City adopted its Solid Waste Facilities Ordinance in 1986, and the Landfill was rezoned to the Solid Waste Facilities Overlay Zoning District in 1988. 11. The City adopted its first. growth management plan in 1988 and its first comprehensive plan in 1995. The City's current comprehensive plan (tlie Comprehensive Plan) was adopted on August 16, 2004. 12. The 2004 Comprehensive Plan consists of 13 elements, including the Land Use Element. The Land Use Plan incorporated in the Land Use Element of the Comprehensive Plan designates the current Landfill as "Landfill" and the proposed expansion area (the SDA) as "Mining". The designation of the SDA as Mining has not been changed since adoption of the Comprehensive Plan in 2004. 13. Changing the designation of the SDA from Mining to Landfill on the Land Use Map requites the approval and adoption of an amendment to the Comprehensive Plan by the City Council, as provided by Minnesota Statutes. 14. The Comprehensive Plan states that it should not be amended capriciously and that the following questions should be considered when changes to the Comprehensive Plan are proposed: Is the project consistent with the Land Use Plan? Does the project move Ella River towards its vision for the future? Is the project consistent with the policies contained the Comprehensive Plan? S:\Resolutions\Resolur~n_Denyu~~Applicatiou_for_Comp_Plan_Amend_and_Rezoning 2.DOC 15. Policies set forth in the Comprehensive Plan which are relevant to the Application include: • Provide a balanced land use pattern which supports a sustainable infix of jobs and housing. • Guide the scale of development to be consistent with the surrounding land uses and general character. • Guide corntnercial land use to areas that can utilize an appropriately-designed transportation system without infringing upon residential neighborhoods. • Allow commercial areas to develop when they can be designed to be compatible with surrounding land uses. • Include adequate buffering of commercial and industrial developments and adjacent to non-compatible land uses. • Requite adequate transition of buffers between differing, non-compatible land uses, making use of natural land characteristics, whenever possible. • Require development of proposals to consider the impacts on transportation and natural systems beyond the boundaries of the individual projects. 16. Throughout the Comprehensive Plan there is an emphasis on attracting conuzzercial/industrial development. This is important to the City as this type of development builds a conununity's tax base and creates snore job opportunities. 17. Another fundamental element mentioned throughout the Comprehensive Plan is die need to establish and maintain a positive community image by maintaining the edges and buffers that define and protect adjacent land uses. 18. Preservation of open spaces is also an important policy and goal of the Comprehensive Plan. 19. The Comprehensive Plan provides that the gravel mining area of die City, which is located along both sides of North Highway 169 and includes dze SDA, be guided for future development of commercial and industrial uses. This area of die City is envisioned by the City Council as dze future economic engine of the City. The goal is to have this area develop with corrunercial and industrial uses as die gravel is mined out. The tax base generated by commercial S:\Resolutions\Resolui~in_Denyin~Application_for_Comp_Plan_funend_~nd_Rezonuig ~.DOC and industrial development in this area is intended to support the financial viability of residential development throughout the City by making it possible to maintain municipal services without increasing taxes. Although this is very long range planning, and tllere are not yet timetables for extending public utilities into this area to serve those future uses, this is the vision of the Comprehensive Plan and the City Council for this area of the City. The SDA is also located adjacent to the future Highway 169/22150 Avenue Interchange, which has great potential for future commercial/industrial development. 20. The 2004 Comprehensive Plan was prepared with the assistance of the planning firm of Hoisington Koegler Group, Inc.(HKGi). In anticipation of the proposed expansion of the Landfill the City retained HKGi to take a closer look at the potential impacts of an expansion of the Landfill on the gravel mining area of the City. HKGi's report, the North Highway 169 Land Use Study, dated November 10, 2008, identified a number of potential impacts related to an expansion of the Landfill and suggested land use, transportation and aesthetic strategies for addressing these impacts. 21. Following receipt of the Application to expand the Landfill, the City retained HKGi to take a closer look at the immediate area which would be potentially unpacted by a Landfill expansion and to analyze the potential financial and fiscal unpacts on the City of an expansion of the Landfill. HKGi's report on these issues is dated June 2, 2009, was subsequently updated on June 15, 2009, and was updated again on September 8, 2009, following sLibinission by ERL of its revised plan for expansion of the Landfill. (The HKGi November 10, 2008, June 6, 2009, June 15, 2009 and September 8, 2009 reports are hereafter collectively referred to as the "HKGi reports".) 22. The HKGi reports project potential significant unpacts of Landfill expansion on economic development in this area of the City and on future tax revenues generated from the SDA and the surrounding area. S:\Itesoludons\Resolui~n Denying_Applicauon_for•_Comp_Plan_Amend_and_12ezoning 2.DOC 23. ERL, WIVII, Tiller and their consultants have strongly contested the methodology and findings of the HKGi reports, and the City Council has listened to and carefully considered the e~ridence and testimony presented by the applicants and their consultants. The City Council also recognizes the inherent difficulty in attempting to project the potential impacts of a current land use on future development which inay or may not occur decades from now. 24. However, it is the conclusion of the City Council that an expansion of the Landfill will inevitably have a long term negative impact on economic development within and tax revenue .~ generated by at least a portion of die North Highwa 10 iea o the CitjT, in particular the SDA and d1e area immediately surrounding the SDA. Given the unportance of this area to the future of the City, the City Council cannot ignore these impacts. 25. The City Council has also considered potential impacts o£ the Landfill expansion on the Economic Development Strategic Plan prepared by the Elk River Economic Development Authority and the Ella River Housing and Redevelopment Authority. Expansion of the Landfill could have a negative impact on the following goals in drat plan: To diversify the commercial/industrial tax base of the City to strive for higher quality developments including professional services, corporate campuses, energy related and technology businesses; • To presei~Te high priority coinrnercial areas for development; To identify and project a higher linage and vision for the City that enables die CitjT to successfully recruit and retain die desired commercial/industrial development identified above. 26. The City Council finds that an additional expansion of the Landfill, beyond that approved in 1997 by the Cit~T and in 1998 by Livonia Township, is not consistent with the City's policies and goals as reflected in the City's Comprehensive Plan and the work of its Economic S:\Resolutions\Resolut9~n_Denyin~tlpplicaaon_for_Comp_Plan_Amend_and_Rezoning 2.DOC Development Authority, Housing and Redevelopment Authority, Planning Commission and City Council. 27. The City Council finds that image is a huge driver in encouraging development in the community, that having the Landfill located at the northern entrance to the City adversely impacts the image the City wishes to portray to visitors, residents and potential new businesses, and that expanding the Landfill and extending its life span will significantly increase these negative impacts. 2$. The City Council further finds that expansion of the Landfill will prevent future development, at a minimum, in that portion of the SDA which will be filled with Mixed Solid Waste, and could discourage the type of high quality commercial/industrial development which the City is seeking for the important area of the City unmediately surrounding the SDA, including the critical area around the future interchange at Highway 169 and 221 S` Avenue. 29. The City Council recognizes that there are some positive economic impacts related to the Landfill, including the host fees which the City collects from the Landfill and the business which ERL does with local residents and businesses. However, these are short term economic benefits which will end once die Landfill closes. At that point, the portion of the SDA filled with MSW will generate virtually no revenue to the City, and tax revenues generated from the unmediate surrounding area will be negatively impacted to some degree. 30. The City Council finds that the Landfill also has non-economic negarive unpacts on the City and on surrounding residential uses wlvle it is open, including litter on Highway 169 and othez public streets from trucks moving to and from the Landfill, the truck traffic itself, road maintenance u~lpacts, noise and odor. Although ERL and WMI have been excellent corporate citizens and have made every effort to mitigate these impacts, they are not capable of being fully mitigated until the Landfill is closed. Expanding the size and extending the life of the Landfill. will prolong the period of tune that the City and surrounding residents must endure these impacts. S:\Resolutions\ResoluliQi 7_Denying_Applicadon_for_Comp_Plan_Amend_and_Rezoning 2.DOC 31. The City Council is also concerned about the potential environmental impacts related to the operation of an expanded landfill over the next 20 years and the potential environmental unpacts related to a significantly expanded landfill footprint follov~ing closure of the landfill. The City Council recognizes that die Minnesota Pollution Control Agency has completed an Envirorunental Impact Statement on the proposed expansion of the Landfill, but notes dzat there are environmental impacts and risks inherent in dais land use which cannot be mitigated other than by limiting die expansion of dze Landfill. 32. The City Council has reviewed and carefully considered, along with all odzer materials submitted by ERL, the Voith Report. As set forth above, the Council recognizes the potential for some positive economic unpacts related to the Landfill. However, the council finds that: The Voith Report overstates the potential positive economic impacts of the Landfill, for the reasons set forth in the September 8, 2009 Memorandum from the City Administrator, which are incorporated in these Findings of Fact; The potential for positive economic impacts is only one of many criteria and considerations to be weighed in making a decision to amend the CitS~'s Comprehensive Plan; and • The City Council does not agiee drat a present value economic analysis of any proposed use should be a determining factor in making a land use decision. 33. The City Council has considered and appreciates dze efforts of ERL to mitigate the negative impacts of a landfill expansion, particularly on die important Highway 169/221`t Avenue interchange, by reducing the size of the proposed expansion in die revised proposal and by making an additional 20 acres of land available for potential development at the Interchange. However, the S:\Resolutions\Resole~ic~n_Denyul~Application_for_Comp_Plan tlmend_and_Rezoi~ig 2.DOC Council finds that the Plan revisions do not outweigh the negative unpacts of the proposed expansion, or change the Findings of Fact set forth in this Resolution. 34. It is the City Council's conclusion, from all of the evidence submitted and the testimony taken, that: (1) An expansion of the Landfill will prolong the negative short term unpacts of the Landfill on the City and will inevitably have a long term negative impact on the tax base generated from this area of the City; (2) This area of the City is planned to generate the tax base that will support the fuzancial viability of the balance of the City indefinitely; (3) Given the importance of this area to the future of the City, the potential benefits of a Landfill expansion are outweighed by the negative economic, environmental and land use unpacts of an expansion; and (4) An amendment of the Land Use Map Element of the City's Comprehensive Plan to expand the area of the City designated for Landfill into the SDA is inconsistent with the policies and goals of the City's Comprehensive Plan and would not be in the best interest of the City, its residents and its taxpayers. DECISION ON LAND USE AMENDMENT THEREFORE, the City Council of the City o£ Elk River makes the following Decision with respect to the Application to amend the Comprehensive Plan of the City of Ella River to redesignate the SDA from Mining to Landfill: A. All of the reports and materials prepared by City Staff and City Consultants, as well as the Findings of Fact and Recitals set forth in this Resolution, are hereby adopted and incorporated within the City Council's Decision on this matter. S:\Resolutions\12esoluliQn_Denpin~Application_fox_Comp_Plan_Amend_and_Rezoning 2DOC B. The record in this matter shall include all materials submitted to the City and presented to the Planning Commission and City Council, including those materials presented in the staff reports, by the City staff and by the City's consultants, and all materials and testimony submitted by or on behalf of ERL, WMI, Tiller and their consultants, and all testimony received from the public, as of the date of this Resolution. C. The Application of ERL to amend the Land Use Map Element of the Cit3~ of EIli River 2004 Comprehensive Plan to redesignate the 109-acre Southern Development Area from the Land Use category "Mining" to the Land Use category "Landfill" is hereby denied. DECISION ON REZONING The City Council of the City of Ells River further makes the following Decision with respect to the Application of ERL for rezoning of the 109-acre Southern Development Area from A-1 (ME), agricultw:al conservation (mineral excavation), to A-1 (SWF), agricultural conservation (solid waste facility): A. All of the reports and materials prepared by City Staff and City Consultants, as well as the Findings of fact and Recitals set forth in this Resolution, are hereby adopted and incorporated within the CitlT Council's decision on this matter B. The record in this matter shall include all materials subn-utted to the City and presented to the Planning Commission and City Council, including those materials presented in the staff reports, by the City staff and by the City's consultants, and all materials and testunony submitted by or on behalf of ERL, WMI, Tiller and their consultants, and all testimony received from the public as of the date of this resolution. C. Based on all of the above, and on the additional fact that the Application to reguide the SDA from "Mining" to "Landfill" has been denied, so that rezoning the SDA from A-1 S:\Resolutions\Resolulic3n_Denyin~Application_for_Comp_Plan_Amend_and_Rezotung 2.DOC (ME) to A-1 (SWF~ would result in an inconsistency between the Land Use Map Element of the City's 2004 Comprehensive Plan and the City of Ells Rivers Zoning Map, the Application to rezone the SDA from A-1 (ME) to A-1 (SWIG is denied. THIS RESOLUTION PASSED AND ADOPTED this 21st day of September, 2009. Stephanie Klinzing, Mayor Tina Allard, City Clerli S:\Resolutions\Resoluli~n_Den}'ing_Application_for_Comp_Plan_Amend_and_Rezoning 2.DOC 0 w~~ Zehringer Consulting 18920 Concord St NW Elk River, MN 55330 Sept 21, 2009 To: Elk River City Council Subject: Elk River Landfill Expansion Elk River was named Energy City in 1996 by the Minnesota Environmental Initiative (MEI). We were officially designated Energy City by the State of Minnesota in 2006 acid received both a State and Federal trademark for same, so no other City can use this designation. Being Minnesota's only Energy City is good! It's good to have a designated location within the State to demonstrate leading edge alternative energy and energy efficiency technologies. It's also good for notoriety and business! We have 28 demonstration sites featuring 24 different technologies in our portfolio. Perhaps the best known and most frequently toured demonstration site is our Environmental Learning Center and adjoining Landfill Gas Electric Generating Plant. In the past, that facility has been toured by Scout groups, 4-H groups, home schooled classes, grade school and high school classes, groups from many electric coops, U of M engineering classes, St Thomas engineering and continuing education classes, and a host of foreign visitors. As example, a group from 17 European countries will be touring the LFG Electric Plant and learning more about what Energy City is all about this Friday, Sept 25. Another group from Central and South America did likewise in June. Both groups came to us through the Minnesota International Center and we are now on their list of things to do when foreign dignitaries visit Minnesota. I know there are many other tours conducted by Elk River Landfill staff as well. Elk River Municipal Utilities owns the Landfill Gas Electric Generating Plant and it generates 12% of Elk River's electrical needs. If the landfill expands and another six engine/generators are added to this expansion, we will generate 30% of our electrical needs from landfill gas -and this is a 35 year plus source. Electricity generated by landfill gas is recognized as "green power" and is a valuable asset for any utility to own. This asset is operated and maintained by F,lk River Landfill personnel. In summary, please consider the advantages our landfill brings to the community when making your decision. I know first hand that it's a facility that is well managed and efficient. It also provides a resource that would otherwise be wasted. Allowing the expansion of the Elk River Landfill will not only guarantee continued employment for 20 plus families, but will put us in the "drivers seat" when our municipal electric utility looks for a new wholesale power supplier. Sincersetly, ./ Vance Zehrir~ er -` r~ dw ad ~~ x.. ~ .w W ~1 Q 4 O O N ~. _ R- € _. 8 ^s ,_ f p ~»•~ ~ ~ :. _ .. .: ' }~. 3t , i f .._ s ;fie -~ s .-: ' I - i ,, ~ ~ ~ , .~rewK; _ +- C _ _ ' E ~ ~ ~ j t t . r t ~ i-~ > - j ,~ _ Q :. ~ t .. r ~ ~ ~ _ ~~ 4 . ~, ~ r ~+ 4 ~ ~ t . C - ..~ ~ .r~~ r w„r~' . ~ .: µ f w N' 1 ~.. rl, k € ~~, k f Fr>~ ~~ s ~ ... ~ Y ~•~ r. ~ ~~ ".,. - _ ; l F v .. ~.- F _a i ! .........._ ..... ................... ... .......... ...... .... '~....: w`. J ~ :.f ; ~. ~ ~3 :+ : ~ :y .. • $18,000,000+ in Host Fees to City • $~~0,000,000+ in Fees to County Based. on 6,$33. households in City & City representing 26% of County households. ::_ { WlF.(~.7€tt PM9lR. M1P l1:.Q;'i L"fAOil.:HT ~` ~~ r`~ "x ~ ~' 'a ;~ "~ ~"'' ~F .~ ;~,. ~r~ s ~ <d ~ ~ .. ~ ~:. ~._ 4h» ~: j ,r Landfill directly employs 15 people y .~ ~, ~i i p, '.;'.. Landfill indirectly influences employment at several area businesses: Waste processing related companies Over 100 RRT & GRE jobs (Elk River Star News, September 11, 2009 and September 16, 2009 a-mail from Wayne Hanson) Area hauling companies. Transportation dependent industries (fuel and parts suppliers., gas stations, restaurants) Construction companies A~A~`D~US, Inc, ~: 4 aC 1t ; t~ ~ ~' RiY.P6.4i.FC. A?A~Ih v n n c rvi ^~~Y., € " ., _ i} ._ -~': Landfill is a co "~~~d energy r ._ ~,. Landfill currently supplies '12% of the City's. electrical needs, helping the Ci y meet i s renewable energy objective With 2nd gas. plant -the landfill will produce enough electricity for every home within the. City of Elk River ~~~. ~„ -, ::~ .,. - x .* -.w b r s~H ~' ~"f mW A~ ~f • s ~. ~id ~..~. .. sue. s F ,,~" .~•D : ~ ~ "'.j ~... cr.. •' . .... 'mod ~ i Future commercial area businesses. can use alternative energy from the Landfill Currently several alternative forms of heat energy Rapidly adding new technologies all the time Low-cost green alternative energy is a benefit and marketable asset for future development Numerous examples. of companies that choose to locate near landfills due. to the available low-cost energy Low-cost green. energy will help draw in development (versus use of other types. of City incentives) h ~: ~~ ~& X ` ~;~4~~ ~~ ~~...x :~. ~,~.,, ~~~ ~~~g Passive use park -Open space Trails, overlooks, prairie grass., wildlife habitat, interpretive boards development of end use can be phased in over time ~ .., . -+~ Q F ~, ~ ._,. _ A' L _ ~ ., „,q ... C'~~. ~,.,.. ~.ri -f, ~ ~ i ~ ,~ _. ,~ r ~ a _~g ~~ ~ ~ `,,k, ft~.. _ ~~ ~.~ ieJ A ; ~ 9 ~~ l~(~ , i ~ > ++ a -. .... r~... •_ G•u e ~~a _ ._ ~ T~ , ~.. 4 r. _t ar.~r'.: p . ... r ~ r~ ~1t. fY.~ .~ ~3, r ' ~ , ~ ~ '' ~ i~ _ ~y ..R~ if F Y f ~L .G~ ~. ~ fi`i" w r. ... .. ~s F ~ 3t.Tl. RlJa, rv..w.sa n~ i W A k ' { ~ ~~l lF~.~~5 ~F 3 ~».. . ~~ . +'s i '~ '"' w ~ 'M r p ~ ~^ ^`i i y~ %~ A~ #.£6 _v .EM, r~ ~• u ~ ~ ~.~ F' £ n~, r ,~ ~,; .Y y~y q~ Y A~ '~. ..,"' RESOLUTIOI~1 NO. 09- 51 A Resolution ®enying the Application of Elk River Landfill, Inc. for a Comprehensive Plan Amendment and Rezoning to Allow Expansion of the Ellc River Landf II ~~=1HEREAS, Ells River Landfill, Inc. (ERL), a wholly-owned subsidiary of Taste Management, Inc. (WMI), is the owner and operator of the Ells River Landfill. (Landfill); and WHEREAS, Capital Land Group, a land holding company for Tiller Corporation (Tiller), is the owner of an approximately 109-acre parcel of land identified as the Southern Development Area (SDA) located immediately soud~ of the existing Landfill; and WHEREAS, ERL and Tiller have submitted a land use application (Application) to the CitS= requesting: An amendment to the City's 2004 Comprehensive Plan to amend the Land Use Map Element of the Comprehensive Plan to change the land use designation of the 109- acre SDA from "Mining" to "Landfill"; and 2. An amendment to the City of Ells River Zoning Map to rezone the 109-acre SDA from A-1(ME), Agricultural Consei-~=anon (Mineral Excavation), to A-1(SWF), Agricultural Consei-~=anon (Solid Waste Facifit5=); and WHEREAS, pursuant to the requirements of Minnesota Statutes and the Elk River City Code, the Application was referred to the City of Ells River Planning Con-unission for the purpose of holding a public hearing and making a recommendation to the Ells River Citj= Council on the Application; and WHEREAS, the Planning Co1l~unission held a public hearing on the Application on June 9, 2009, at which time ERL, WMI, Tiller and their consultants were provided as much time as they S:\Resolutions\Resolution_Denying_,Application_foi_Comp_PIan=Amend_and_Rezonin~ ~.DOC desired to present the Application and all uiformation and data they desired in support of the Application; and ~XIHEREAS, the planning Conztnission took testimony from all inetnbers of the public who desired to speak at dse June 9, 2009 public hearing; and WHEREAS, the Planning Cointnission closed its public hearing on the Application on June 9, 2009, but continued its discussion of the Application to a special meeting on June 23, 2009; and WHEREAS, ERL, WMI and Tiller were provided the opportuiv.ty to submit additional testimony and written materials for the record prior to and at the Planning Commission's June 23, 2009 continued discussion of the Application; and WHEREAS, on June 23, 2009, dze Ells River Planning Cointnission adopted a resolution recommending to die Ella River City Council that the Application for a comprehensive plan amendment and rezoning of the SDA be denied; and WHEREAS, the Ella River City= Council, on July 6, 2009, held a public hearing on the Application and considered the Planning Commission's recommendation; and WHEREAS, ERL, WMI, Tiller and all members of the public desiring to speak at the July 6, 2009 public Bearing before die City Council were provided d1e opportunity= to do so; and WHEREAS, all written materials submitted by ERL, WMI, Tiller, and all oilier members of the public prior to and at the public hearing on July 6, 2009 were accepted into the record; and ~YJHEREAS, during die July 6, 2009 public hearing, the City Council discussed die merits of the Application, directed drat staff prepare alternative resolutions denying and approving d1e Application, and continued the public hearing to its regular meeting of August 17, 2009, i11 order to provide ERL, WMI, and Tiller d1e opportunity= to present additional materials to address issues raised in the staff reports, during d1e public hearing, and by= the City= Council during their discussion; and S:\Resolutions\ResoluC~n_Denping .Spplicauon_for_Comp_Plan_Amend_and_Rezoning 2.DOC WHEREAS, on August 17, 2009, the Elk River City Council continued urith the public hearing on the Application and provided ERL, WMI and Tiller, as well as all members of the public desiring to do so, the opportunits~ to present additional testimony and written evidence to die CitS~ Council; and WHEREAS, after all parties desiring to present testimony and offer evidence for or against the Application had had the opportunitST to do so, the Elk River CitS~ Council closed the public hearing on the Application and continued its discussion of the Application; and WHEREAS, by letter dated July 15, 2009, and at the August 17, 2009 City Council hearing, ERL requested an opportunity to present additional materials and a revised plan to the CitS~ Council in a workshop session; and WHEREAS, at the close of its session on August 17, 2009, the Ella River CitS~ Council directed: • That any additional materials be submitted so that a staff report could be distributed to the City Council on September 8, 2009; • That the Application be placed on the City Council's regular workshop agenda for September 14, 2009; • That die September 14, 2009 workshop session regarding the landfill be a joint meeting with the Citjr of Ella River Planning Commission; and • That die Application be scheduled for another public hearing at d1e Cit~T Council's regularly scheduled meeting of September 21, 2009; and WHEREAS, representatives of ERL and City Staff met on August 25, 2009 and September 8, 2009 to review additional materials submitted by ERL regarding the Application, including a revised plan for the landfill expansion, a report entitled "Is Landfill Expansion a Good Investment for Elk River" (the "Voith Report") and a letter dated September 1, 2009 (ie~rised September 8, S:\Resolutions\Resolut~n_DenyinarApplication_for_Comp_P11n_Amend_1nd_Rezoiung 2.DOC 2009) outlining design modifications to the expansion proposal, the end use plan for the landfill, and other issues; and WHEREAS, CitS= Staff and City consultants review=ed the revised plans, the Voith Report, the September 8, 20091etter and all other materials submitted by ERL, and prepared a staff report which was delivered to the City= Council and Planning Commission, along with all of the materials submitted by ERL, on September 8, 2009; and WHEREAS, the City Council and Planning Cotntnission met in joint workshop session on September 14, 2009 to discuss the materials submitted by ERL, including the revisions to the expansion proposal for the Landfill; and WHEREAS, ERL was provided an opportunity to present its revised plans and proposed design modifications for the expansion to the CitS= Council and dze Plantung Commission at the September 14, 2009 workshop session and the City Council lead the opportunity to discuss and ask questions regarding the re~nsed proposal; and ~XIHEREAS, on September 21, 2009 t11e Ells River City Council held a public hearing on the Application and provided ERL, WMI and Tiller, as well as all members of the public desiring to do so, the opportunity to present additional testimony and comment on the Application, as revised, and to submit additional written evidence; and WHEREAS, after all parties desiring to present testimony and offer evidence for or against the Application had had the opportunity to do so, the Ells River City Council closed the public hearing on the Application, contuiued its discussion of the Application, and reached the decision incorporated in this resolution; and WHEREAS, ERL has agreed in writing to an e~;tension of the City's tithe deadline for acting on the application under Minnesota Statutes, Section 15.99 to September 26, 2009. S:\Resolutions\Resolur~,in_Denpu7~Application_for_Comp_Plan_Amend_and_Rezonuig 2.DOC NOW, THEREFORE, the City Council of the City of Ells Rivet makes d1e following Findings of Fact and Decision with respect to the Application of ERL, WMI, and Tiller for a comprehensive plan amendment and rezoning o£ the SDA to allow expansion of the Landfill: FINDINGS OF FACT 1. The Landfill was first approved to operate on 40 acres of land in 1971 and first permitted by the Minnesota Pollution Control Agency in 1972. 2. The Landfill was granted its first approvals and permits by the CitS= of Ells River pursuant to the City's Solid Waste Facilities Ordinance in 1988. In 1997, the City granted approval for the Landfill to expand the area approved for Mixed Solid ~X~aste (MS~X~ disposal from its origina140 acres to the current 93-acre footprint. 4. In 1988, the Landfill received approval from Livonia Township to expand the area approved for construction and demolition debris disposal (C & D) to a total permitted footprint of 75 acres. 5. The Mixed Solid Waste and Construction and Demolition Debris operations at the Landfill therefore currently cover 168 acres. 6. The Application originally proposed the development of additional MSW disposal space on 8.6 acres on the southern most portions of existing Landfill propettj= and on 60.2 acres of the SDA, an increase in the MSW disposal area witlin th7e Landfill from the existng 93 acres to a total of 162 acres, or an expansion of approxmately 75 percent. As revised, the Application proposes an increase in the MSW disposal area witlvn the Landfi]1 of 49.3 acres, an expansion of over 50%. 8. Total MSW and C & D disposal areas at the Landfill would be approximately 217 acres if the Application is approved. S:\Resolutions\Resolut~~n_Den}~in~Application_foL_Comp_Plan_Amend_and_Rezo~ung 2.DOC 9. The proposed expansion of the Landfill would extend the life of the Landfill beyond its current expected closing date. The Application as revised proposes that die Landfill would close no latex than 2029 if die Application is approved. 10. The CitS= of Ells River has been proactively planiung for its £utw'e and regulating solid waste facilities since the 1980's. The CitS~ adopted its Solid Waste Facilities Ordinance in 1986, and the Landfill was rezoned to the Solid R'laste Facilities Overlay Zoning District in 1988. 11. The Citl= adopted its first giowth management plan in 1988 and its first comprehensive plan in 1995. The CitS='s current comprehensive plan (the Coinpxehensi~=e Plan) was adopted on August 16, 2004. 12. The 2004 Comprehensive Plan consists of 13 elements, including the Land Use Element. The Land Use Plan incorporated in the Land Use Element of the Comprehensive Plan designates the current Landfill as "Landfill" and the proposed expansion area (the SDA) as "Mixing". The designation of the SDA as Mining has not been changed since adoption of the Comprehensive Plan in 2004. 13. Changing the designation of dze SDA from Mining to Landfill. on the Land Use Map requires the approval and adoption of an amendment to the Comprehensive Plan by the City Council, as provided by Minnesota Statutes. 14. The Comprehensive Plan states that it should not be amended capriciously and that die following questions should be considered when changes to the Comprehensive Plan are proposed; Is the project consistent wide the Land Use Plan? Does dze project move Ella River towards its vision for the future? ® Is d1e project consistent u=ith the policies contained the Comprehensi~=e Plan? S:\Resolutions\Resolut~n_Denving_Applicadon_for_Comp_Plan=9cnend_and_Rezoning 2.DOC 15. Policies set forth in the Comprehensive Plan which are relevant to the Application include: ® Provide a balanced land use pattern which supports a sustainable mix of jobs and housing. ® Guide the scale of development to be consistent with the surrounding land uses and general character. ® Guide commercial land use to areas that can utilize an appropriately-designed transportation system without infringing upon residential neighborhoods. • Allow commercial areas to develop when they can be designed to be compatible with surrounding land uses. o Include adequate buffering of commercial and industrial developments and adjacent to non-compatible land uses. ® Requite adequate transition of buffers between differing, non-compatible land uses, making use of natural land characteristics, whenever possible. ® Requite development of proposals to consider the unpacts on transportation and natural systems beyond the boundaries of the individual projects. 16. Throughout the Comprehensive Plan there is an emphasis on attracting commercial/industrial development. This is important to the CitST as this t~~pe of development builds a community's tax base and creates snore job opportunities. 17. Another fundamental element mentioned throughout the Comprehensive Plan is the need to establish and maintain a positive community image by maintaining the edges and buffers that define and protect adjacent land uses. 18. Presei~Tation of open spaces is also an unportant policy and goal of the Comprehensive Plan. 19. The Comprehensive Plan provides that the gravel milling area of d7e City, which is located along both sides of North Highway 169 and includes the SDA, be guided for future development of commercial and industrial uses. This area of the CitjT is envisioned by the City Council as the future economic engine of the CitSr. The goal is to have this area develop with commercial and industrial uses as the gravel is mined out. The tax base generated by commercial S:\Resolutions\Resolur~in_Den}'ui~Applicaaon_for_Comp_Plnn_Amend_and_Rezoning 2.DOC and industrial development in this area is intended to support the financial viability of residential development tzroughout the CitjT by making it possible to maintain municipal services without increasing tapes. Although this is very long range planning, and Here are not yet tuuetables for extending public utilites into tlis area to serve those future uses, tus is tlae vision of the Comprehensive Plan and the Cit1J Council for tiffs area of the City. The SDA is also located adjacent to tie future Highway 169/221" Avenue Interchange, which has great potential for future commercial/industrial development. 20. The 2004 Comprehensive Plan was prepared with t1e assistance of the planning firm of Hoisington Koegler Group, Inc.(HKGi). In anticipation of the proposed e~~pansion of tie Landfill tie CitS~ retained HKGi to take a closer look at tze potential impacts of an expansion of tie Landfill on the gravel ruining area of tze Cit~T. HKGi's report, the Norti Highway 169 Land Use Study, dated November 10, 2008, identified a number of potential impacts related to an e~.pansion of the Landfill and suggested land use, transportation and aesthetic strategies for addressing these impacts. 21. Following receipt of t1e Application to expand the Landfill, the City retained HKGi to take a closer look at the immediate area which would be potentially impacted by a Landfill expansion and to analyze the potential financial and fiscal impacts on the City of an expansion of the Landfill. HKGi's report on these issues is dated June 2, 2009, was subsequenty updated on June 15, 2009, and was updated again on September 8, 2009, following submission by ERL of its revised plan for expansion of t1e Landfill. (The HKGi November 10, 2008, June 6, 2009, June 15, 2009 and September 8, 2009 reports are hereafter collectively referred to as the "HKGi reports".) 22. The HKGi reports project potental significant impacts of Landfill expansion on economic development in tiffs area of the City and on future tam revenues generated from the SDA and the surrounding area. S:\Resolutions\Reso]ut~Un_Denying_.:~pplicadon_fox_Comp_Plan_Amend_and_Rezoning Z.DOC 23. ERL, WI\~II, Tiller and their consultants have strongly contested the methodology and findings of the HKGi reports, and the City Council has listened to and carefully considered the evidence and testimony presented by the applicants and their consultants. The City=Council also recognizes the inherent difficulty in attempting to project the potential impacts of a current land use on future development which may or ma~T not occur decades from now. 24. However, it is the conclusion of the CitS~ Council that an expansion of the Landfill will inevitably have a long term negative impact on economic development within and tax revenue generated by at least a portion of the North Highway 10 area of the CitS=, in particular the SDA and the area immediately surrounding the SDA. Given the importance of dis area to the future of the City, the City Council cannot ignore these impacts. 25. The City= Council has also considered potential impacts of the Landfill expansion on the Economic Development Strategic Plan prepared by the Elk River Economic Development Audzority and the Elk River Housing and Redevelopment Authority. Expansion of the Landfill could have a negative impact on the following goals in that plan: To di~Tersify the corrunercial/industrial tax base of the CitS= to strive for higher quality developments including professional services, corporate campuses, energy related and technology businesses; To preserve high pi7ority commercial areas for development; To identify and project a higher unage and vision for the City= that enables the City to successfully recruit and retain the desired commercial/industrial development identified abo~=e. 26. The City Council finds that an additional expansion of the Landfill., beyond that approved in 1997 by the City and in 1998 by Livonia Township, is not consistent with the City's policies and goals as reflected in the City's Comprehensive Plan and die v=ork of its Economic S:\Resolutions\Resolut~n_Denyin~Application_for_Comp_Plan_Amend_and_Rezoning 2.DOC Development AuthoutjT, Housing and Redevelopment AuthoiitST, Planning Commission and CitST Council. 27. The Cit~T Council finds that linage is a huge drivel in encouraging development in die coixununitST, that having the Landfill located at the nord7ern entrance to dze City adversely impacts die image the CitsT wishes to portray to visitors, residents and potential new businesses, and that expanding the Landfill and extending its life span will significantly increase these negati~=e impacts. 28. The CitS~ Council further finds dint expansion of the Landfill will prevent future development, at a i~ninimuin, in that portion of the SDA which will be filled with Mixed Solid Waste, and could discourage the tjTpe of high quality corntnercial/industrial development which dze CitST is seeping for die important area of dze City immediately surrounding the SDA, including dze critical area around die future interchange at Highway 169 and 221St Avenue. 29. The City Council recognizes dzat there are some positive economic impacts related to d1e Landfill, including the host fees which dze CitST collects from d1e Landfill and dze business which ERL does wide local residents and businesses. However, these are short term economic benefits which will end once die Landfill closes. At dzat point, dze portion of die SDA filled with MSW will generate virtually no revenue to the CitST, and tax revenues generated from the immediate sw:rounding area will be negatively unpacted to some degree. 30. The City Council finds that dze Landfill also has non-economic negative vnpacts on dze CitjT and on surrounding residential uses wlvle it is open, includuig litter on Highway 169 and oilier public streets from trucks moving to and from the Landfill, dze truck traffic itself, road maintenance unpacts, noise and odor. Aldlough ERL and ~X~MI have been excellent corporate citizens and have made every effort to mitigate these impacts, they aa:e not capable of being fully nvtigated until die Landfill is closed. Expanding die size and extending the life of the Landfill will prolong the period of time that the City and surrounding residents must endure these impacts. S:\Resolutions\Resolup~_Denping_Application_for_Comp_Plnn_Amend_and_Rezoning 2.DOC 31. The CitjT Council is also concerned about the potential environmental impacts related to the operation of an e~:panded landfill over the newt 20 years and the potential environmental impacts related to a significantly expanded landfill footprint following closure of the landfill. The City Council recognizes that the Minnesota Pollution Control Agency has completed an Envitoninental Impact Statement on the proposed expansion of the Landfill, but notes that there are environmental unpacts and risks inherent in tlv.s land use which cannot be mitigated other than by linuting the expansion of the Landfill. 32. The Cite Council has reviewed and carefully considered, along with all other matei7als submitted by ERL, the Voith Report. As set fords above, the Council recognizes the potential for some positive economic impacts related to the Landfill. However, the council finds that: The Voith Report overstates the potential positive economic impacts of the Landfill, for the reasons set forth in the September S, 2009 Memorandum from the CitST Administrator, which are incorporated in these Findings of Fact; The potential for positive economic impacts is only one of many criteria and considerations to be weighed in making a decision to amend the Cit~~'s Comprehensive Plan; and The City Council does not agree that a present value economic analysis of any proposed use should be a determining factor in making a land use decision. 33. The City Council has considered and appreciates the efforts of ERL to mitigate the negative impacts of a landfill expansion, particularly on the important Highway 169/221x` Avenue interchange, by reducing the size of the proposed expansion in the revised proposal and by making an additiona120 acres of land available for potential development at the Interchange. However, the S:\Resolutions\Resolu~i4n_Denyin~Application_for_Comp_Plan_Amend_and_Rezoning 2.DOC Council fords that die Plan revisions do not outweigh the negative impacts of the proposed expansion, or change the Findings of Fact set forth in this Resolution. 34. It is die CitlT Council's conclusion, from all of the evidence submitted and the testimony taken, that: (1) An expansion of the Landfill will prolong the negative short term unpacts of die Landfill on die CitS~ and will inevitably have a long term negati~=e ui~pact on the tax base generated from this area of the City; (2) This area of the City is planned to generate the tax base that will support the financial viability of the balance of the City= indefinitely; (3) Given the unportance of dlis area to die future of the Cite, the potential benefits of a Landfill expansion are outweighed by the negative economic, environmental and land use impacts of an expansion; and (4) An amendment of the Land Use Map Element of the City's Coinpreliensive Plan to expand the area of the CitST designated for Landfill into the SDA is inconsistent with the policies and goals of the City's Comprehensive Plan and would not be in die best interest of the City, its residents and its taxpayers. DECISION ON LAND tiSE AMENDMENT THEREFORE, the City= Council of the CitjT of Elk River makes die following Decision with respect to die Application to amend the Comprehensive Plan of the City of Ells River to redesignate the SDA from Mining to Landfill: A. All of d1e reports and materials prepared by City=Staff and City Consultants, as well as the Findings of Fact and Recitals set forth in dais Resolution, are hereby adopted and incorporated within. the CitS= Council's Decision on dus matter. S:\Resolutions\Resolulic~n_Denyin~Application_for_Comp_p1an=9mend_and_Rezoning 2.DOC B. The record in this matter shall include all materials submitted to the CitS~ and presented to the Planning Commission and City Council, including those materials presented in the staff reports, by the Cite staff and by the CitjT's consultants, and all materials and testimony submitted by or on behalf of ERL, ~X~MI, Tiller and their consultants, and all testimony received from the public, as of the date of dus Resolution. C. The Application of ERL to amend dze Land Use Map Element of dze City of Ells River 2004 Comprehensive Plan to redesignate die 109-acre Southern Development Area from the Land Use category "Mining" to the Land Use category "Landfill" is hereby denied. DECISION ON REZONING The City Council of dze City of Ells River furdzer makes die following Decision with respect to die Application of ERL for rezoning of die 109-acre Soudlern Development Area from A-1 (IvIE), agricultural conservation (mineral excavation), to A-1 (SWF), agricultural consei-~Tation (solid waste facility): A. All of the reports and materials prepared by CitjT Staff and CitSr Consultants, as well as the Findings of Fact and Recitals set forth in this Resolution, are hereby adopted and incorporated within d1e City Council's decision on this matter B. The record in this matter shall include all materials submitted to the City and presented to the Planning Commission and Cit~T Council, includuig those materials presented iri the staff reports, by the City staff and by the CitS~'s consultants, and all materials and testmony submitted by or on behalf of ERL, WMI, Tiller and their consultants, and all testunony received from the public as of the date of this resolution. C. Based on all of die above, and on the additional fact drat the Application to reguide the SDA from "Mining" to "Landfill" has been denied, so drat rezoning die SDA from A-1 S:\Resolutions\Resoluli~i_Denyin~Application_for_Comp_Plan_Amend_and_Rezoning 2.DOC (I\2E) to A-1 (SWF) would result in an inconsistency between the Land Use Map Element of the City's 2004 Comprehensive Plan and the CitST of EIk River's Zoning Map, the Application to rezone the SDA from A-1 (ME) to A-1 (SWF7 is denied. THIS RESOLUTION PASSED AND ADOPTED this 21st day of September, 2009. .~ Stepp 'e Klinzing, M ~ n ~~ ~ '!, Tina Allard, Cit~T Clerli S:\Resolutions\Resoluli~n_Denying_Application_for_Comp_Plan_Amend_and_Rezoning 2.DOC RESOLUTION NO. 09- 51 A Resolution Denying the Application of Elk River Landfill, Inc. for a Comprehensive Ptan Amendment and Rezoning to Allow Expansion of the Ellc River Landfill WHEREAS, Ella River Landfill, Inc. (ERL), a wholly-owned subsidiaLy of Waste Management, Inc. (WMI), is the owner and operator of the Elk River Landfill (Landfill); and WHEREAS, Capital Land Group, a land holding company for Tiller Corporation (Tiller), is the owner of an approximately 109-acre parcel of land identified as the Southern Development Area (SDA) located immediately south of the existing Landfill; and WHEREAS, ERL and Tiller have submitted a land use application (Application) to the City requesting; '~ 1. An amendment to the City's 2004 Comprehensive Plan to amend the Land i ~ _ ~-- - '4 Use clap Element of the Comprehensive Plan to Inge the and use designation of the 109- acre SD ~ horn "Mining" to "Landfill"; and 2. An amendment to the City of Elk River Zoning Map to rezone the 109-acre SDA from A-1(ME), Agricultural Conservation (Mineral Excavation), to A-1(SWF), Agricultural Consei-~Tation (Solid Waste Facility); and WHEREAS, pursuant to the requirements of Minnesota Statutes and the Elk River City Code, the Application was referred to the CitST of Ella River Planning Commission for the purpose of holding a public hearing and making a recotninendation to the Ella River CitjT Council on the Application; and WHEREAS, the Planning Commission held a public hearing on the Application on June 9, 2009, at which time ERL, WMI, Tiller and their consultants were provided as much time as dzey S:\Resolutions\Resolution_Denyin~Application_For_Comp_plan=Amend_aud_Rezoning 2.DOC desired to present the Application and all uiformation and data they desired in support of the Application; and WHEREAS, the Planning Commission took testimony from all >nenlbers of the public who desired to speak at the June 9, 2009 public hearing; and WHEREAS, the Planning Commission closed its public hearing on the Application on June 9, 2009, but continued its discussion of the Application to a special meeting on June 23, 2009; and WHEREAS, ERL, WMI and Tiller were provided the opportunity to submit additional testimony and written materials fox the record prior to and at the Planning Commission's June 23, 2009 continued discussion of the Application; and WHEREAS, on June 23, 2009, the Ells River Planning Cointnission adopted a resolution reconvnending to d1e Ells River City Council that the Application for a co>.nprehensi~=e plan amendment and rezoning of the SDA be denied; and - WHEREAS, the Elli River City= Council, on July 6, 2009, held-a public hearing on the .: Application and. considered. the Planning Commission's recommendation; and WHEREAS, ERL, WMI, Tiller and all members of the public desiring to speal~ at the July 6, 2009 public hearing before the City Council were provided die opportunity= to do so; and WHEREAS, all written materials submitted by ERL, WMI, Tiller, and all otl2er members of the public prior to and at the public hearing on July 6, 2009 were accepted into the record; and ~yJHEREAS, during the July 6, 2009 public hearing, the City Council discussed the merits of the Application, directed that staff prepare alternative resolutions denying and approving the Application, and continued the public hearing to its regular meeting of August 17, 2009, in order to provide ERL, WMI, and Tiller the opportunity= to present additional materials to address issues raised in the staff reports, during the public hearing, and by the City= Council during their discussion; and S:\Resolutions\ResoluC2in_Danping ApplicaUan_for_Comp_Plan_Amend_and_Rezoning 2.DOC WHEREAS, on August 17, 2009, the Elk River City Council continued with the public hearing on the Application and provided ERL, Wl\2I and Tiller, as well as all members of the public desiring to do so, the opportunity= to present additional testimony and written evidence to the City= Council; and WHEREAS, after all parties desiring to present testimony and offer evidence for or against the Application had had the opportunity= to do so, the Elk River City= Council closed the public hearing on the Application and continued its discussion of the Application; and WHEREAS, by letter dated July 15, 2009, and at the August 17, 2009 City Council hearing, ERL requested an opportunity to present additional materials and a revised plan to the City= Council in a workshop session; and WHEREAS, at the close of its session on August 17, 2009, the Elk River CitS= Council ...directed: • That any additional materials be submitted so that a staff report could be dst>;buted to the City Council on September= 8, 2009; • That the Application be placed on the City Council's regular workshop agenda for September 14, 2009; • That the September 14, 2009 workshop session regarding the landfill be a joint meeting with the City of Elk River Planning Commission; and • That the Application be scheduled for another public hearing at the City Council's regularly scheduled meeting of September 21, 2009; and WHEREAS, representatives of ERL and City Staff met on August 25, 2009 and September 8, 2009 to re~riew additional materials submitted by ERL regarding the Application, including a revised plan for the landfill expansion, a report entitled "Is Landfill Expansion a Good Investment for Elk River" (the "North Report") and a letter dated September 1, 2009 (reprised September 8, S:\Resolutions\Resolut~n_Denyinr~Application_for_Comp_Plan_Amend_and_Rezonin~ 2.DOC 2009) outlining design modifications to the expansion proposal, the end use plan for the landfill, and other issues; and ~XIHEREAS, Citj= Staff and CitS= consultants review=ed the revised plans, the Voith Report, the September 8, 2009 letter and all other materials submitted by ERL, and prepared a staff report which was delivered to the Cit-1= Council and Planning Commission, along with all of the materials submitted by ERL, on September 8, 2009; and WHEREAS, the City Council and Planning Commission met in joint workshop session on September 14, 2009 to discuss the materials submitted by ERL, including the revisions to the expansion proposal for the Landfill; and WHEREAS, ERL was pro~rided an opportunity to present its revised plans and proposed design modifications for the expansion to the City= Council and the Planting Commission at the September 14, 2009 workshop session and the Citj=Council had the opportunitl= to discuss and ask questions regarding the rejnsed-proposal; and _ WHEREAS, on September 21, 2009 the. Elk River City Council held a public hearing on the Application and provided ERL, WMI and Tiller, as well as all members of the public desv:ing to do so, the opportunity to present additional testimony and comment on the Application, as revised, and to submit additional written evidence; and WHEREAS, after all parties desiring to present testimony and offer evidence for or against the Application had had the opportunity to do so, the Ells River City Council closed the public hearing on the Application, continued its discussion of the Application, and reached the decision incorporated in this resolution; and WHEREAS, ERL has agreed in writing to an e~;tension of the City's time deadline for acting on d1e application under Minnesota Statutes, Section 15.99 to September 26, 2009. S:\Resolutions\Resolut~in_Denying_Application_for Comp_Plan_Amend_and_Rezonuig 2.DOC NOW, THEREFORE, the City Council of the City of Ells River makes the following Findings of Fact and Decision with respect to die Application of ERL, WMI, and Tiller for a comprehensive plan amendment and rezoning of the SDA to allow expansion of the Landfill: FINDINGS OF FACT 1. The Landfill. was first approved to operate on 40 acres of land in 1971 and first permitted by die Minnesota Pollution Control Agency in 1972. 2. The Landfill was granted its first approvals and permits by the City of Ella River pursuant to the City's Solid Waste Facilities Ordinance in 1988. 3. In 1997, the City granted approval for the Landfill to expand die area approved for Mixed Solid Waste (MS~X~ disposal from its origina140 acres to the current 93-acre footprint. 4. In 1988, the Landfill received approval from Livonia Township to expand the area approved for construction and demolition debris disposal (C & D) to a total permitted footprint of 75 acres. - 5. The Mixed Solid Waste. and Construction and Demolition Debris operations at the Landfill therefore currently cover 168 acres. 6. The Application originally proposed the development of additional MSW disposal space on 8.6 acres on the southern most portions of existing Landfill. propertj= and on 60.2 acres of the SDA, an increase in the MSW disposal area ~vidun the Landfill from die existing 93 acres to a total of 162 acres, or an expansion of approxunately 75 percent. 7. As revised, die Application proposes an increase in the MSW disposal area widen the Landfill of 49.3 acres, an expansion of over 50%. 8. Total MSW and C & D disposal areas at die Landfill would be approximately 217 acres if the Application is approved. S:\Resolutions\Resolut~n_Den}~in~Applicarion_for_Comp_Plan_Amend_and_Rezoning 2.DOC 9. The proposed expansion of the Landfill would extend the Life of the Landfill beyond its current expected closing date. The Application as revised proposes that the Landfill would close no later than 2029 if die Application is approved. 10. The CitS= of Ells River has been proactively planning for its future and regulating solid waste facilities since the 1980's. The City adopted its Solid Waste Facilities Ordinance in 1986, and the Landfill was rezoned to the Solid Waste Facilities Overlay Zoning District in 1988. 11. The City adopted its first growth management plan in 1988 and its first comprehensive plan in 1995. The City='s current comprehensive plan (the Comprehensive Plan) was adopted on August 16, 2004. 12. The 2004 Comprehensive Plan consists of 13 elements, including the Land Use Element. The Land Use Plan incorporated in the Land Use Element of the Comprehensive Plan designates the current Landfill as "Landfill" and the proposed expansion area (the SDA) as "Mining"..The designation of the SDA'as Mining has not been changed since adoption of the. = Comprehensive Plan in 2004. 13. Changing the designation of the SDA from Mining to Landfill on the Land Use Map requires the approval and adoption of an amendment to the Comprehensive Plan by the City Council, as provided by Minnesota Statutes. 14. The Comprehensive Plan states that it should not be amended capriciously and that die following questions should be considered when changes to the Comprehensive Plan are proposed: • Is die project consistent with the Land Use Plan? • Does dze project move Ella R.ivei towards its vision for the future? • Is dze project consistent u=ith the policies contained the Comprehensive Plan? S:\Resolutions\Resolut~n_Denyinp~Application_for_Comp_Plan_.lmend_and_Rezoning Z.DOC 15. Policies set forth in the Comprehensive Plan which are relevant to the Application include: • Provide a balanced land use pattern which supports a sustainable mix of jobs and housing. • Guide the scale of development to be consistent with the surrounding land uses and general character. • Guide commercial Iand use to areas that can utilize an appropriately-designed transportation system without infringing upon residential neighborhoods. • Allow commercial areas to develop when they can be designed to be compatible with surrounding land uses. • Include adequate buffering of commercial and industrial developments and adjacent to non-compatible land uses. • Require adequate transition of buffers between differing, non-compatible Iand uses, making use of natural land clzaracteristics, whenever possible. • Require development of proposals to consider the impacts on transportation and natural systems beyond the boundaries of the individual projects. 16. Throughout the Comprehensive Plan there is an emphasis on attracting commercial/industrial deg=elopment. This is important to the City= as -this ts=pe of deg=elopment builds a community's tax base and creates more job opportunities. 17. Another fundamental element mentioned tlu-oughout the Comprehensive Plan is the need to establish and maintain a positive community image by maintaining the edges and buffers that define and protect adjacent land uses. 1 S. Preservation of open spaces is also an mportant policy and goal of the Comprehensive Plan. 19. The Comprehensive Plan pro~rides that the gravel mining area of the CitS=, which is located along both sides of North Highway 169 and includes the SDA, be guided for future development of commercial and industrial uses. This area of the City= is envisioned by the City Council as the fixture economic engine of dze City. The goal is to have this area develop with commercial and industrial uses as the gravel is mined out. The tax base generated by commercial S:\Resolutions\Resoluri~in_Denyin.~Applicadon_for_Comp_Plan_Amend_and_Rezoiung 2,DOC and industrial development in this area is intended to support the financial viability of residential de~c=elopment tlv_oughout the City by making it possible to maintain municipal services without increasing tapes. Although this is very long range planning, and there are not yet timetables for extending public utilities into this area to serve those future uses, this is the vision of the Comprehensive Plan and the City Council for this area of the City. The SDA is also located adjacent to the future Highway 169/22150 Avenue Interchange, which has great potential for future commercial/industrial development. 20. The 2004 Comprehensive Plan was prepared with the assistance of the planning firm of Hoisington Koegler Group, Inc.(HKGi). In anticipation of the proposed e~,•pansion of the Landfill the CitS~ retained HKGi to take a closer loop at the potential inpacts of an expansion of the Landfill on the gravel mining area of the CitS=. HKGi's report, the North Highway 169 Land Use Study, dated November 10, 2008, identified a number of potential impacts related to an expansion of the Landfill and suggested land use, transportation and aesthetic strategies for-addressing these unpacts. 21. Following receipt of the Application to expand the Landfill., the City retained HKGi to take a closer look at the immediate area which would be potentially impacted by a Landfill expansion and to analyze die potential financial and fiscal impacts on the City of aiz expansion of the Landfill. HKGi's report on these issues is dated June 2, 2009, was subsequently updated on June 15, 2009, and was updated again on September 8, 2009, following submission by ERL of its revised plan for expansion of the Landfill. (The HKGi November 10, 2008, June 6, 2009, June 15, 2009 and September 8, 2009 reports are hereafter collectively referred to as the "HKGi reports".) 22. Tlie HKGi reports project potential significant impacts of Landfill expansion on economic development in this area of the City and on future tam revenues generated from the SDA and the surrounding area. S:\Resolutions\Resolut~n_Den}'ing_Application_for_Comp_plan_tlmend_and_Rezoiun~ 2.DOC 23. ERL, WMI, Tiller and their consultants have strongly contested the methodology and findings of the HKGi reports, and the CitS= Council has listened to and carefully considered the evidence and testimony presented by the applicants and their consultants. The CitS=Council also recognizes the inherent difficulty in attempting to project the potential impacts of a current land use on future development which may or >nay not occur decades from now. 24. However, it is the conclusion of the City Council that an expansion of the Landfill will ine~ritably have a long term negative impact on economic development within and tax revenue generated by at least a portion of the North Highway 10 area of the CitS=, in particular the SDA and the area immediately surrounding the SDA. Given the importance of tlis area to the future of the City, the City Council cannot ignore these impacts. 25. The CitS= Council has also considered potential impacts of the Landfill expansion on the Economic Development Strategic Plan prepared by the Elk River Economic Development Authority and the EIk River Housing and Redet=elopment Authority. Expansion of the Landfill could have a negative impact on the following goals in that plan: To diversify the commercial/industrial tax base of the City to strive for higher quality developments including professional services, corporate campuses, energy related and technology businesses; • To preser~=e high priority commercial areas for development; To identify and project a lgher unage and vision for the Cite that enables the Citj= to successfully recruit and retain the desired commercial/industrial development identified above. 26. The City Council finds that an additional expansion of the Landfill, beyond that approved in 1997 by the City and in 1998 by Livonia Township, is not consistent with the City's policies and goals as reflected in the City's Comprehensive Plan and the u=ork of its Economic S:\Resolutions\Resolut~m_Denyin~Applicadon_for_Comp_Plan_Amend_and_Rezoning 2.DOC Development Authority, Housing and Redevelopment AutioritsT, Planning Commission and City Council. 27. The CitST Council finds that image is a huge driver in encouraging development in the cointnunit5=, that having the Landfill located at the northern entrance to tie CitS= adversely impacts the linage the City= wishes to portray to visitors, residents and potential new businesses, and that expanding the Landfill and extending its life span will significantly increase these negative impacts. 28. The City Council further finds that expansion of the Landfill v=ill prevent future development, at a rninimuihh, in that portion of the SDA which will be filled with Mixed Solid Waste, and could discourage the ts~pe of high quality commercial/industrial development which the City= is seeking for the important area of the City immediately surrounding the SDA, including tie critical area around the future interchange at Highway 169 and 221St Avenue. 29. The City Council recognizes tint there are some positive economic impacts related to tle Landfill; including the host fees which the Ci 5= collects from the Landfill and the business which ERL does wits local residents and businesses. However, these are short term economic benefits which will end once the Landfill closes. At that point, the portion of tie SDA filled with MSW will generate virtually no revenue to the City, and tax revenues generated from the iininediate surrounding area will be negatively impacted to some degree. 30. The City Council finds that the Landfill also has non-economic negative impacts on tze CitsT and on surrounding residential uses while it is open, including litter on Highway 169 and otter public streets from t~.-ucks moving to and from tie Landfill, the buck traffic itself, road maintenance uhipacts, noise and odor. Altiough ERL and WMI leave been excellent corporate citizens and have made every effort to mitigate these impacts, they are not capable of being fully nhitigated until tie Landfill is closed. Expanding the size and extending the life of the Landfill will prolong the period of time that the City and surrounding residents must endure these impacts. S:\Resolurions\Resolup~_Denping_Application_for_Comp_Plan_Amend_and_Rezoning 2DOC 31. The CitS~ Council is also concerned about the potential environmental impacts related to the operation of an e~:panded landfill over the newt 20 years and the potential envirorunental impacts related to a significantly e~;panded landfill footprint following closure of the landfill. The City Council recognizes that the Minnesota Pollution Conttol Agency has completed an Environmental Impact Statement on the proposed e~;pansion Of the Landfill, but notes that there are envitorunental unpacts and risks inherent in this land use which cannot be mitigated other than by limiting the e~:pansion of the Landfill. 32. The City Council leas reviewed and carefully considered, along with all other materials submitted by ERL, the Voith Report. As set fords above, the Council recognizes the potential for some positive economic impacts related to the Landfill. However, the council finds that: • The Voith Report overstates the potential positive economic impacts of the Landfill, _: for the reasons set forth in the September 8, 2009 Memorandum from the City _:. Administrator, which are incorporated in these Findings of Fact; • The potential for positive economic impacts is only one of many criteria and considerations to be weighed in making a decision to amend the City='s Comprehensive Plan; and • The City Council does not agree that a present value economic analysis of any proposed use should be a determining factor in making a land use decision. 33. The Citj= Council has considered and appreciates the efforts of ERL to mitigate the negative impacts of a landfill expansion, particularly on the important Highway 169/2215[ Avenue interchange, by reducing the size of the proposed expansion in the revised proposal and by making an additiona120 acres of land available for potential development at the Interchange. However, the S:\Resoluaons\Resolu~r2n_Den}~in~Application_for_Comp_Plan_.9mend_and_Rezoning ?.DOC Council finds that the Plan revisions do not outweigh the negative impacts of the proposed expansion, or change the Findings of Fact set forth in this Resolution. 34. It is the Citj= Council's conclusion, from all of the e~ridence submitted and the testimony taken, that: (1) An expansion of the Landfill will prolong the negative short term ulipacts of the Landfill on the CitS= and will inevitably have a long term negative impact on the tax base generated from this area of the City; (2) This area of the City is planned to generate the tax base that will support the financial viability of the balance of the City indefinitely; (3) Given the unportance of this area to the future of the City=, the potential benefits of a Landfill expansion are outweighed by the negative economic, environmental and land use impacts of an expansion; and (4) An amendment of the Land Use Map Element of the City's Comprehensive Plan- to expand the area of the City designated for Landfill into the SDA is inconsistent with the policies and goals of the City's Comprehensive Plan and ~vould not be in the best interest of the City, its residents and its taxpayers. DECISION ON LAND USE AMENDMENT THEREFORE, the CitsT Council of the City of Elk River makes the following Decision with respect to d1e Application to amend the Comprehensive Plan of the City of Ells River to redesignate the SDA from Mining to Landfill: A, All of the reports and materials prepared by Citj=Staff and City Consultants, as well as the Findings of Fact and Recitals set forth in this Resolution, are hereby adopted and incorporated within the CitS= Council's Decision on this matter. S:\Resolutions\ResoluliC~-i_Denping_Application_fox_Comp_P1an=Amend_and_Rezoning 2.DOC B. The record in this matter shall include all materials submitted to the CitS~ and presented to the Planning Comtni.ssion and City Council, including those materials presented in d1e staff reports, by the CitS~ staff and by the City's consultants, and all materials and testimony submitted by or on behalf of ERL, ~X~MI, Tiller and their consultants, and all testimony received from die public, as of the date of this Resolution. C. The Application of ERL to amend d1e Land Use Map Element of die CitS~ of Elk River 2004 Comprehensive Plan to redesignate the 109-acre Southern Development Area from the Land Use category "Mining" to the Land Use category "Landfill" is hereby denied. DECISION ON REZONING The City Council of the City of Ells River further makes the following Decision with respect to the Application of ERL for rezoning of the 109-acre Southern Development Area from. A-1 (ME), agricultural conservation (mineral excavation), to A-1 (SWF), agricultural conservation (solid waste facility): A. All of the reports and materials prepared by City Staff and CitST Consultants, as well as the Findings of Fact and Recitals set forth in tlv.s Resolution, are hereby adopted and incorporated within the City Council's decision on this matter B. The record in this matter shall include all materials submitted to d1e City and. presented to the Planning Commission and CitST Council, includug those materials presented in the staff reports, by the City staff and by the CitS='s consultants, and all materials and testimony submitted by or on behalf of ERL, WMI, Tiller and their consultants, and all testimony received from the public as of the date of this resolution. C. Based on all of the above, and on the additional fact that the Application to reguide the SDA from "Mining" to "Landfill" leas been denied, so that rezoning die SDA from A-1 S:\Resolutions\Resoluli~i_Denyin~Application_For_Comp_Plan_Amend_and_Rezoning 2.DOC (I\2E) to A-1 (SWF) would result in an inconsistency between the Land Use Map Element of the City's 2004 Comprehensive Plan and the City of Elk River's Zoning Map, the Application to rezone the SDA from A-1 (ME) to A-1 (SWF) is denied. THIS RESOLUTION PASSED AND ADOPTED this 21st day of September, 2009. Steph 'e Klinzing, M ` ~ ~.~ Tina Allard, Cit~T Clerk S:\Resolutions\Resoluli~ii_Denping_Application_for_Comp_Plun_Amend_and_P~ezorung 2.DOC RESOLUTION NO. 09- 56 City Council City of Elk River A Resolution Denyina the Application of Ellc River Landfill, Inc. for a Conditional Use Permit and License to Allow Expansion of the Elk River Landfill WHEREAS, Elk River Landfill, Inc. (ERL), a wholly-owned subsidiary of Waste Management, Inc. (WMI), is the owner and operator of the Elk River Landfill (Landfill); and WHEREAS, Capital Land Group, a land holding company for Tiller Corporation (Tiller), is the owner of an approximately 109-acre parcel of land identified as the Southern Development Area (SDA) located immediately south of the existing Landfill; and WHEREAS, ERL and Tiller have submitted a land use application (Application) to the City requesting: 1. An amendment to the City's 2004 Comprehensive Plan to amend the Land Use Map Element of the Comprehensive Plan to change the land use designation of the 109-acre SDA from "Mining" to "Landfill"; and 2. An amendment to the City of Ellc River Zoning Map to rezone the 109- acre SDA from A-1(ME), Agricultural Conservation (Mineral Excavation), to A-1(SWF), Agricultural Conservation (Solid Waste Facility); and 3. A Conditional Use Permit (CUP) to allow expansion of the existing Landfill into the SDA; and 4. A License to allow the operation of the Landfill in the SDA; and WHEREAS, pursuant to the requirements of Minnesota Statutes and the Elk River City Code, the requests for an Amendment to the Land Use Map Element of the Comprehensive Plan and for a Rezoning were referred to the City of Elk River Planning Commission for a public hearing and recommendation to the City Council; and WHEREAS, the City Council considered the requests for a Comprehensive Plan Amendment and rezoning at meetings held on July 6, August 17, September 14 and September 21, 2009; and WHEREAS, at its regularly scheduled meeting on September 21, 2009, the City Council adopted City Council Resolution No. 09-51, which denies the requests for an Amendment to the Land Use Map Element of the Comprehensive Plan and for a Rezoning; and WHEREAS, pursuant to the requirements of Minnesota Statutes and the Elk River City Code, the requests by ERL and Tiller for a CUP and License were referred to the City of Elk River Planning Commission for the purpose of holding a public hearing and making a recommendation to the Elk River City Council on the requests; and WHEREAS, the Planning Commission held a public hearing on the requests on October 13, 2009, at which tune ERL, WMI, Tiller and their consultants were provided as much time as they desired to present the requests and all information and data they desired in support of the Application; and WHEREAS, the Planning Commission took testimony fiom all members of the public who desired to speak at the October 13, 2009 public hearing; and WHEREAS, the Planning Commission closed its public hearing on the requests on October 13, 2009 and adopted a resolution recommending to the Elk River City Council that the requests for a Conditional Use Permit and License for expansion of the Landfill into the SDA be denied; and 2 WHEREAS, the Elk River City Council, on October 19 2009, held a public hearing on the requests and considered the Planning Commission's recommendation; and WHEREAS, ERL, WMI, Tiller and all members of the public desiring to speak at the October 19, 2009 public hearing before the City Council were provided the opportunity to do so; and WHEREAS, all written materials submitted by ERL, WMI, Tiller, and all other members of the public prior to and at the public hearing on October 19, 2009 were accepted into the record; and WHEREAS, during the October 19, 2009 public hearing, the City Council discussed the merits of the requests and tools into consideration its prior action on September 21, 2009; and WHEREAS, after all parties desiring to present testimony and offer evidence for or against the requests for a CUP and License had had the opportunity to do so, the Elk River City Council closed the public hearing on the requests, continued its discussion of the requests, and reached the decision incorporated in this resolution; and WHEREAS, ERL has agreed in writing to an extension of the City's time deadline for acting on the requests for a CUP and License under Minnesota Statutes, Section 15.99 to November 20, 2009. NOW, THEREFORE, the City Council of the City of Elk River makes the following Findings of Fact and Decision with respect to the requests of ERL, WMI, and Tiller for a Conditional Use Permit and License to allow expansion and operation of the Landfill in the SDA: 3 FINDINGS OF FACT 1. The City Council adopts by reference each and every one of the Findings of Fact numbered 1 through 34, set forth in City Council Resolution No. 09-51, 2. In addition, the City Council finds: (a) That the Landfill is a Solid Waste Facility, as that term is defined in the Elk River City Code of Ordinances. (b) That Solid Waste Facilities are only allowed, as a conditional use, within the City's Solid Waste Facilities Overlay Zoning District. (c) That the SDA is not within the City's Solid Waste Facilities Overlay Zoning District; (d) That a license to operate a Solid Waste Facility can only be issued to a facility which is located within the Solid Waste Facility Overlay District and which has received a conditional use permit to operate; (e) That the Landfill has a valid, existing conditional use permit and license to operate a Solid Waste Facility on the existing Landfill property. (f) That denial of a CUP and License to expand the Landfill onto the SDA does not affect the existing conditional use permit and license for the Landfill, which remain in force and effect and which cannot be and are not amended in any way or manner by these proceedings regarding the Application to expand into the SDA. 4 DECISION ON CONDITIONAL USE PERMIT THEREFORE, the City Council of the City of Elk River inalces the following Decision with respect to the request for a Conditional Use Permit to expand the Landfill into the SDA: A. All of the reports and materials prepared by City Staff and City Consultants, as well as the Findings of Fact and Recitals set forth in City Council Resolution No. 09-51 and this Resolution, are hereby adopted and incorporated within the City Council's Decision on this matter. B. The record in this matter shall include ail materials submitted to the City and presented to the Planning Commission and City Council, including those materials presented in the staff reports, by the City staff and by the City's consultants, and all materials and testimony submitted by or on behalf of ERL, WMI, Tiller and their consultants, and all testimony received from the public, as of the date of this Resolution. C. Based on all of the above, and in particular on the fact that the SDA is not within the City's Solid Waste Facilities Overlay Zoning District, which is required for the approval of a CUF for a Solid Waste Facility, the request of ERL for a Conditional Use Permit to expand the Landfill into the 109-acre Southern Development Area is hereby denied. DECISION ON LICENSE The City Council of the City of Ell< River further makes the following Decision with respect to the request of ERL for License to operate a Solid Waste Facility in the 109-acre Southern Development Area: 5 A. All of the reports and materials prepared by City Staff and City Consultants, as well as the Findings of Fact and Recitals set forth in City Council Resolution No. 09-51 and this Resolution, are hereby adopted and incorporated within the City Council's decision on this matter B. The record in this matter shall include all materials submitted to the City and presented to the Planning Commission and City Council, including those materials presented in the staff reports, by the City staff and by the City's consultants, and all materials and testimony submitted by or on behalf of ERL, WMI, Tiller and their consultants, and all testimony received from the public as of the date of this resolution. C. Based on all of the above, and in particular on the fact that the SDA does not have the necessary land use approvals for operation of a Solid Waste Facility, the request for a license to operate a Solid Waste Facility in the SDA is denied. THIS RESOLUTION PASSED AND ADOPTED this 19th day of October, 2009. } ,. ~ ,. r Steph ie Klinzing, lv~~yo ~ ~/ G- /~~ ! Tina Allard, City Clerlc GP:2659996 vl "t °f REQUEST FOR ACTION ~,lk. River ~'o Item Number Ma or and Ci Council 5.3 . Agenda Section Meeting Date Prepared by Community Development October 19, 2009 Rebecca Haug, Environmental Administrator Item Description Reviewed by Request by Elk River Landfill, Inc. for Conditional Use Lori Johnson, City Administrator Permit and License to Expand the Existing Landfill into 109 Reviewed by Acres of Property Located Immediately South of the Existing Peter Beck, City Attorney Landfill, Case No. CU 09-12 -Public Heari Action Requested Staff and the Planning Commission are recommending to the City Council that the requests for a conditional use permit and license to expand the landfill into the southern development area (SDA) be denied. BackgroundlDiscussion The Elk River Landfill submitted an application for a land use amendment, rezoning, conditional use permit (CUP) and license to allow for an expansion to the south of their existing site. The land use amendment and rezoning requests were acted upon independently of the CUP and License. The request before you is the CUP and License. On September 21, 2009, the request for a land use amendment and rezoning were denied. Because the landfill expansion is a conditional use only in the Solid Waste Facility Overlay Zoning District, and the proposed expansion area has not been rezoned to that district, staff and the Planning Commission are recommending to the City Council that the requests for a conditional use permit and license to expand the landfill into the southern development area (SDA) be denied. Attachments ^ Resolution Action Motion by Second by Vote Follow Up S:\Council\Rebecca\ERL CUP 10 19 09.doc RESOLUTION NO.09- City Council City of Elk River A Resolution Denyin~ the Application of Elk River Landfill, Inc. for a Conditional Use Permit and License to Allow Expansion of the Elk River Landfill WHEREAS, Elk River Landfill, Inc. (ERL), a wholly-owned subsidiary of Waste Management, Inc. (WMI), is the owner and operator of the Elk River Landfill (Landfill); and WHEREAS, Capital Land Group, a land holding company for Tiller Corporation (Tiller), is the owner of an approximately 109-acre parcel of land identified as the Southern Development Area (SDA} located immediately south of the existing Landfill; and WHEREAS, ERL and Tiller have submitted a land use application (Application) to the City requesting: 1. An amendment to the City's 2004 Comprehensive Plan to amend the Land Use Map Element of the Comprehensive Plan to change the land use designation of the 109-acre SDA from "Mining" to "Landfill"; and 2. An amendment to the City of Elk River Zoning Map to rezone the 109- acre SDA from A-1(ME), Agricultural Conservation (Mineral Excavation), to A-1(SWF), Agricultural Conservation (Solid Waste Facility); and 3. A Conditional Use Permit (CUP) to allow expansion of the existing Landfill into the SDA; and 4. A License to allow the operation of the Landfill in the SDA; and WHEREAS, pursuant to the requirements of Minnesota Statutes and the Elk River City Code, the requests for an Amendment to the Land Use Map Element of the Comprehensive Plan and for a Rezoning were referred to the City of Elk River Planning Commission for a public hearing and recommendation to the City Council; and WHEREAS, the City Council considered the requests for a Comprehensive Plan Amendment and rezoning at meetings held on July 6, August 17, September 14 and September 21, 2009; and WHEREAS, at its regularly scheduled meeting on September 21, 2009, the City Council adopted City Council Resolution No. 09-51, which denies the requests for an Amendment to the Land Use Map Element of the Comprehensive Plan and for a Rezoning; and WHEREAS, pursuant to the requirements of Minnesota Statutes and the Elk River City Code, the requests by ERL and Tiller for a CUP and License were referred to the City of Elk River Planning Commission for the purpose of holding a public hearing and making a recommendation to the Elk River City Council on the requests; and WHEREAS, the Planning Commission held a public hearing on the requests on October 13, 2009, at which time ERL, WMI, Tiller and their consultants were provided as much time as they desired to present the requests and all information and data they desired in support of the Application; and WHEREAS, the Planning Commission took testimony from all members of the public who desired to speak at the October 13, 2009 public hearing; and WHEREAS, the Planning Commission closed its public hearing on the requests on October 13, 2009 and adopted a resolution recommending to the Elk River City Council that the requests for a Conditional Use Permit and License for expansion of the Landfill into the SDA be denied; and 2 WHEREAS, the Elk River City Council, on October 19 2009, held a public hearing on the requests and considered the Planning Commission's recommendation; and WHEREAS, ERL, WMI, Tiller and all members of the public desiring to speak at the October 19, 2009 public hearing before the City Council were provided the opportunity to do so; and WHEREAS, all written materials submitted by ERL, WMI, Tiller, and all other members of the public prior to and at the public hearing on October 19, 2009 were accepted into the record; and WHEREAS, during the October 19, 2009 public hearing, the City Council discussed the merits of the requests and took into consideration its prior action on September 21, 2009; and WHEREAS, after all parties desiring to present testimony and offer evidence for or against the requests for a CUP and License had had the opportunity to do so, the Elk River City Council closed the public hearing on the requests, continued its discussion of the requests, and reached the decision incorporated in this resolution; and WHEREAS, ERL has agreed in writing to an extension of the City's time deadline for acting on the requests for a CUP and License under Minnesota Statutes, Section 15.99 to November 20, 2009. NOW, THEREFORE, the City Council of the City of Elk River makes the following Findings of Fact and Decision with respect to the requests of ERL, WMI, and Tiller for a Conditional Use Permit and License to allow expansion and operation of the Landfill in the SDA: FINDINGS OF FACT The City Council adopts by reference each and every one of the Findings of Fact numbered 1 through 34, set forth in City Council Resolution No. 09-51, 2. In addition, the City Council finds: (a) That the Landfill is a Solid Waste Facility, as that term is defined in the Elk River City Code of Ordinances. (b) That Solid Waste Facilities are only allowed, as a conditional use, within the City's Solid Waste Facilities Overlay Zoning District. (c) That the SDA is not within the City's Solid Waste Facilities Overlay Zoning District; (d) That a license to operate a Solid Waste Facility can only be issued to a facility which is located within the Solid Waste Facility Overlay District and which has received a conditional use permit to operate; (e) That the Landfill has a valid, existing conditional use permit and license to operate a Solid Waste Facility on the existing Landfill property. (f) That denial of a CUP and License to expand the Landfill onto the SDA does not affect the existing conditional use permit and license for the Landfill, which remain in force and effect and which cannot be and are not amended in any way or manner by these proceedings regarding the Application to expand into the SDA. 4 DECISION ON CONDITIONAL USE PERMIT THEREFORE, the City Council of the City of Elk River makes the following Decision with respect to the request for a Conditional Use Permit to expand the Landfill into the SDA: A. All of the reports and materials prepared by City Staff and City Consultants, as well as the Findings of Fact and Recitals set forth in City Council Resolution No. 09-51 and this Resolution, are hereby adopted and incorporated within the City Council's Decision on this matter. B. The record in this matter shall include all materials submitted to the City and presented to the Planning Commission and City Council, including those materials presented in the staff reports, by the City staff and by the City's consultants, and all materials and testimony submitted by or on behalf of ERL, WMI, Tiller and their consultants, and all testimony received from the public, as of the date of this Resolution. C. Based on ail of the above, and in particular on the fact that the SDA is not within the City's Solid Waste Facilities Overlay Zoning District, which is required for the approval of a CUP for a Solid Waste Facility, the request of ERL for a Conditional Use Permit to expand the Landfill into the 109-acre Southern Development Area is hereby denied. DECISION ON LICENSE The City Council of the City of Elk River further makes the following Decision with respect to the request of ERL for License to operate a Solid Waste Facility in the 109-acre Southern Development Area: A. All of the reports and materials prepared by City Staff and City Consultants, as well as the Findings of Fact and Recitals set forth in City Council Resolution No. 09-51 and this Resolution, are hereby adopted and incorporated within the City Council's decision on this matter B. The record in this matter shall include all materials submitted to the City and presented to the Planning Commission and City Council, including those materials presented in the staff reports, by the City staff and by the City's consultants, and all materials and testimony submitted by or on behalf of ERL, WMI, Tiller and their consultants, and all testimony received from the public as of the date of this resolution. C. Based on all of the above, and in particular on the fact that the SDA does not have the necessary land use approvals for operation of a Solid Waste Facility, the request for a license to operate a Solid Waste Facility in the SDA is denied. THIS RESOLUTION PASSED AND ADOPTED this 19th day of October, 2009. Stephanie Klinzing, Mayor Tina Allard, City Clerk GP:2659996 vl 6 CITY OF ELK RIVER SOLID WASTE FACILITY LICENSE AGREEMENT Handout Item 5.3. 10/19/09 THIS AGREEMENT, entered into and effective this XX day of XX, 2009, by and between the CITY OF ELK RIVER, a Minnesota municipal corporation (hereinafter referred to as the City), and ELK RIVER LANDFILL, INC., a Minnesota corporation (hereinafter referred to as the Licensee). WHEREAS, Licensee made application to the City in 1988 for the issuance of a solid waste facilities license, pursuant to the Elk River Code of Ordinances, for the operation of a sanitary landfill (hereinafter referred to as the Landfill) on the real properties described on Exhibit A attached hereto (hereinafter referred to as the Landfill Property) situated in the City of Elk River, for which the City Council directed the issuance of a conditional use permit contemporaneous with the issuance of a license; and WHEREAS, the City Council directed the issuance of a solid waste facilities license to Elk River Landfill, Inc. (Licensee) conditioned upon compliance with the conditions set forth in the October 3, 1988 License Agreement, in order to mitigate the potential adverse affects of the Landfill on the general welfare of persons and property within the City; and WHEREAS, the License was has subsequently been renewed, with the most recent renewal occurring on November 19,'2001;'~~~n~~~ j; and WHEREAS, the City Council has determined that for reasons related to public health, safety, and welfare the final elevation of the Landfill should be limited to no more than 1120 feet above Mean Sea Level (MSL); and WHEREAS, the Licensee has agreed to a final elevation of 1120 MSL; and WHEREAS, Licensee has applied for renewal of the Solid Waste Facility License on March 15, 2004; and WHEREAS, the City Council of the City of Elk River has held a hearing on the proposed amendment and renewal of the Solid Waste Facility License, at which hearing all citizens of the City of Elk River and other interested persons have had the opportunity to be heard. NOW, THERFORE, the City grants to the Licensee, and the Licensee accepts an amended and renewed solid waste facilities license for the operation of a sanitary landfill and related activities on the Landfill Property subject to the terms, conditions and qualifications hereinafter stated, to wit: 1.) Significant Persons. The person responsible for actual operation and maintenance of the landfill, to whom communications concerning this License should be addressed is Debra Walters in her capacity as District Manager of Elk River Landfill, Inc. (ERL), whose address is 22460 Highway 169 NW, Elk River, MN 55330. ERL is a Minnesota corporation, whose registered address is 22460 Highway 169 NW, Elk River, MN 55330. ERL, which is a subsidiary of Waste Management, a Delaware corporation, whose address is 1001 Fannin, Suite 4000, Houston, Texas 77002. The following information shall be provided to the local fire and police departments as well as the Sheriff: Debra Walters, District Manager 22460 Highway 169 NW Elk River, MN 55330 Work: 441-2464, fax: 441-2025 Mobile: (612) 270-2942 c*°•~° ~~+°'~°'°rMike Fleming Area Vice-President Waste Management nn, ~x~°~+ , ^ ^~~W 132 N10487 Grant Drive Germantown, WI 53022 Work: 262-250-8702, f Fay-{~~~' 4°^ 4°~4ax: 262-251-0240 2.) Scope and Conduct of Landfill Operations. The operation of a solid waste sanitary landfill may be conducted on the Landfill Property in conformance with existing statutory and regulatory authority and requirements of the City, Sherburne County and the Minnesota Pollution Control Agency and in accordance with authorization and limitations contained in: (01) the current MPCA Solid Waste Permit No. 7^~steb~; 280, issued to the Licensee~as modified; (02) the current Sherburne County solid waste landfill license issued to the Licensee; (03) the conditional use permit, as amended, issued by the City for the Landfill; and (04) this License. Provided, however, that the entire Landfill shall have a final elevation of no more than 1120 feet above MSL, including final cover, as provided in the Long Term Development Plan dated March 1997, and as revised on April 15, 1997. The Landfill 2 shall also be operated and developed consistent with the following plans and reports which have been submitted to the City and/or the MPCA: (O1) "New Recycling Facility Design Report and Operations Manual", January 1991 (02) "MSW Operations Manual", September 1999, revised June 2001 or as updated (03) "Household Hazardous Waste Management Plan", June 15, 1992 ~(04) "Landfill Gas System Expansion Documentation Report", March 199~~~«~n~iz~ (OS) "Leachate Management Plan", May 2003 (06) "Re~ise~Closure, Postclosure and Contingency Action Plan for MSW Arear„~~ ~~~;.,.,.,~o~~, January 2004~eptember; )--911, with cost estimates as revised annually in the Annual Report (07) "Stormwater Pollution Prevention Plan", January 2006"~~~ or as undated/revised°~'a'`ror,~c non;,. ni.,,, T„~., ~nn~ (08) "Construction Quality Assurance Program", March, 1999, revised June 2001_ or as updated (09) "Phase IV Water Quality Monitoring Work Plan" (Revision #3) February 2002 as updated/modified (10) "Landfill Gas Migration Monitoring Plan", Apri12002 (11) "Leachate Recirculation Plan" March 2002 or as updated/modified (12) " 2008 Annual Report"' January 2009 or as updated annuallv4 (13) " 240$ crater Quality Report",.February 2~09or as dated allnually4 [WMI31 (14) "Long-Term Development Plan", March 1997, and as revised on April 15, 1997 to include a maximum final elevation of 1120 feet MSL (15) All Solid Waste License Renewals through the License dated November 27, 2001',~~a~~~tla~ (16) "Industrial Solid Waste Management Plan", January 2004 or as undated/revised and further conditioned upon submittal of annual reports describing the following: (a) Monthly and Annual Waste Disposal Volume. (b) Schedule of construction activities for the forthcoming year. (c) Type, Quantity and Source of Material to be Disposed. (d) Remaining permitted capacity (e) Updated contour map which indicates the elevations of all fill areas (f) Assessment of the Financial Assurances Plan. (g) Evaluation of the Water Monitoring System and a proposal for continued sampling and analysis. (h) Detailed evaluation of all water quality results by means of tables and graphs. (i) A groundwater contour map based on the previous years' groundwater level data. k17) `Industrial Solid Waste ManagementPlan for Demolition Debris", January 2004~~~~~~r~1 (18) Submittal for January 2000 LicenseRenewal, revised June 2001, ~t~•~~r6~subject to the following conditions: (a) Leachate head shall not exceed a maximum of 12 inches for any liner. The Landfill shall monitor Leachate head levels weekly and submit results to the City quarterly. (b) The sampling and contingency action protocols for liner leaks shall be as outlined in the Phase IV Water Quality Monitoring Work Plan, revision #3 dated February 2003. (c) The Construction Quality Assurance Program shall be amended to document compliance with MNDOT 3877.2B standards for sampling and testing of topsoil. (d) Operation of the Active Gas Venting System shall be managed to mitigate landfill gas migration and ongoing ground water contamination from the unlined portion of the Landfill. Any changes made to the above described plans, reports, MPCA Solid Waste Permit No. 74 and the County License shall also be reviewed and approved, 4 approved with modification, or disapproved by the City. Minor modifications shall be reviewed by City staff. Major modifications shall be reviewed by the City Planning Commission and the City Council. The City may not unreasonably disapprove or unreasonably require modifications. The City may also make reasonable modifications to the conditions of the License based upon a submittal from the Licensee. The City shall respond to Licensee submittals on a timely basis, which shall be no later than formal MPCA time lines for review and comment for concurrent submittals. 3.) Scope and Conduct of Related Operations. (O1) Recyclin Cg enter. The operation of a recycling center on the Landfill Property may be conducted, if in conformance with all applicable terms and conditions of this License, subject to the following conditions: (We would like to a statement in this section that the existin~p~aliance/recyclin~~buildin~will remain until HHW facility is addressed) (a) The operation of the recycling center shall comply in all respects with all applicable requirements of the City Code or Ordinances and all applicable federal, state, and county laws and regulations. (b) The recycling center shall be located and operated as shown on plans submitted by Licensee and approved by City staff. The recycling center may accept additional materials, including household hazardous wastes, provided that Licensee's plan for handling additional materials and any changes to the recycling center shall first be approved in writing by the City. (c) The recycling center shall be operated by Licensee. Operation of the recycling center by a different operator shall require the prior written approval of City staff. Any different operator of the recycling center must comply with all of the terms and conditions of this License. (d} Licensee shall place appropriate signage on the Landfill Property to direct citizens to the location of the recycling center. (e) Used oil recycling areas shall be within an enclosed building with an impermeable floor and containment area, as approved by staff. (f) Battery storage shall be within an enclosed building with an impermeable floor and containment area suitable for battery acid, as approved by staff. (g) Battery, paper and oil storage areas shall be separated to reduce fire potential, as approved by the City Fire Chief. (h) Licensee shall have a regular schedule for appliance pick-up, to be approved by City Staff. (02) Yard Waste Composting. The operation of a yard waste composting facility on the Landfill Property within the City limits may be conducted, if in conformance with all applicable terms and conditions of this License, subject to the following conditions: (a) The operation of the yard waste composting facility shall comply in all respects with all applicable requirements of the City Code of Ordinances and all applicable federal, state, and county laws and regulations. (b) The yard composting facility shall be located and operated as shown on plans submitted by Licensee and approved by City staff. (c) All plastics shall be removed from yard waste brought to the facility before composting. (d) All municipal solid waste must be immediately removed from yard waste and landfilled. (e) The yard waste composting facility must be operated in such a manner as to keep odors to a minimum. If odor becomes a problem staff may require more frequent turning of compost piles and/or watering to ensure that the compost remains aerobic and breaks down as quickly as possible. (f) The maximum amount of yard waste which may be accepted is 100,000 cubic yards per year. (g) Positive drainage away from the compost area must be implemented, as approved by City staff. (h) Yard waste and/or compost may Abe used as daily cover for the landfill upon approval from the Environmental Administrator. The criteria used by the Environmental Administrator is whether. in his/her sole judgement, the compost material is inert and shall allow up to 2/3 of the daily cover to be compost. (i) That Licensee is in strict compliance with all other terms, conditions and requirements of this License, including specifically, but not limited to, the operational requirements, performance standards and environmental monitoring requirements of sections 4,6,"7, and 8; and the requiremEnt of sections_17 and 25 ~I~u~Mi~~to 6 make prompt payment of all fees due to the City. No yard waste may be accepted at the yard waste composting facility if this condition is not complied with. Licensee must immediately stop accepting yard waste upon written notice from the City that there is a violation of this condition. ~~0~1 T~emolition Debris. The operation of a demolition debris landfill on the Landfill Property may be conducted, if in conformance with all applicable terms and conditions of this License, subject to the followingconditions: (a) The operation of the demolition debris landfill shall comply in all respects with all applicable requirements of the City,,Code of Ordinances and all applicable federal, state, and county laws and regulations. (b) The demolition debris landfill cell DC-3 shall be locatedand operated as shown on the'June 2001Permit Application and August 2001. revisions submitted by the Permittee with city staff approvingand having ttie authority to make decisionson die technical .issues involved. (c) Licensee shall provide an estimated development time line for the demolition debris landfill, including an estimated closure timeline, which shall be updated as appropriate: (d) Licensee shall pay the demolition-debris surcharge authorized by Minn: Stat. § ll5A.921, Subd. 2. The Surcharge shall be paid'' directly to the City on a monthly basis, and shall be accompanied by an accurate report on the amount and type of demolition debris disposed of each day'during the month. The Surcharge due for each month shall be receved_by theCity na later than the thirtieth calendar day of the succeedingmonth. Failure to pay'the surcharge fee when dueshall be cause for revocation ofthis License and shall be a violation ofthe conditions and requirementsof this Licensee for the purposes of the related operations authorized by Section ~ o~ this License. (e} That Licensee is in strict compliance with all otherterms,; conditions!and requirements of this License, including specifically, but not limited to, the operational requirements, performance standards and'environmental monitoring requirements ofsections 4, 6, 7, and 8; and the requirements of sections 17 and 25 to make prompt payment ofall fees due to the City. No demolition debris may be accepted atthedemolitiondebris landfill if this condition is not complied with. Licensee mnst immediately stop accepting 7 demolition debrisupon written notice tom the City that there is a violation of this cot7dition~~i3~>s~. J {~~'MI9] (04) Other Related Operations. No other operations or activities, whether or not related to the Landfill, shall be permitted or allowed on the Landfill Property unless this License is first amended to specifically allow such operations and to specify the applicable conditions except mining activities or other operations licensed or permitted separately by the City. 4.) Specific Additional Operational Requirements. (O1) Leachate Transmission Pipes. ;Leachate h~ansmisson pipes shall be designed to ensure that double containrnentand adequate leak detection exists as approved by theMPCA, County and City.~~~~~~~a~iiio~_Licensee shall verify to the City every four (4) years that the existing leachate transmission pipes do not leak. (02) Backup Leachate Pumps. Licensee shall maintain a backup pump for use in the event of pump failure at the leachate sump, wet well and/or leachate storage tank on-site. As an alternative, the licensee shall maintain provisions for restoring temporary leachate pumping within a 24-hour period and adhere to the current "Leachate Management Plan" as approved by MPCA. (03) Leachate Holding Tank. Licensee shall ensure that the leachate holding tank is pumped out on a regular schedule. It shall be a violation of this License to allow leachate to collect on the liner to a depth exceeding one foot due to the leachate holding tank being full. The Licensee shall, in such event, take immediate corrective actions and shall notify the City of the situation within a 24- hour period. ~~~~eae~te-ReEi~c-u}a~ien-Remedies for problems arising from leachate recirculation include but are not limited to the cessation of leachate recirculation and revertingLback to traditional leachate treatment. (O5~) Alternative Cover. "Alternative Cover" shall be defined as any suitable clean cover material other than that of Clean Earth Fill. Alternative intermittent and intermediate cover material may be used if such cover material is suitable for compaction, capable of supporting ve etg ation and meets MPCA standards set forth in MN Rule 7035 2815 subpart 6 and Elk River Landfill's Industrial Waste Management Plan. The City Environmental Administrator prior to placement shall approve any Alternative Cover Material. Additional random tests maybe conducted at the discretion of the City Environmental Administrator at the expense of the Licensee. The City Environmental Administrator may make reasonable recommendations for how placement of Alternative Cover Material is to occur. Stockpiling of cover material shall not interfere with surface water control measures- The City Environmental Administrator may approve the use of tarps in place of daih~ cover material. Approval is continent up©n adequate demonstration that the use of such tarps_meets the requirements of this license agreement and MPCA rules. r~a~~i~i~~ (04) Gas Ver~ti:-n~Collection System. Licensee shall conduct active landfill gas collection ven~i~in accordance with approved plans and shall construct additional phases of the active gas control system at the time of final cover construction. (OS) Phase IV Water Quality Monitoring Work Plan. The Phase IV Water Quality Monitoring Work Plan which describes the sampling frequency, parameters, protocols and reporting frequency for landfill gas, leachate, leachate piezometers, leachate lysimeters, residential wells, groundwater monitoring wells and surface water shall be updated annually to reflect changes in the monitoring systems. The monitoring plan shall yield adequate information for assessing the effectiveness of the landfill gas control system in decreasing VOC contaminants in the groundwater. (06) Annual Active Landfill Gas Control System Assessment. Annually assess the effectiveness of active landfill gas venting operations based on the results of groundwater and landfill gas monitoring and incorporate the evaluation in the MPCA Annual Report for the landfill. (07) Heavy Metal Contaminant Monitoring and Assessment. Heavy metal contaminants for surface water and groundwater must be addressed in addition to VOC contaminants. Based on the need for additional monitoring to confirm exceedances and identify trends, the Landfill shall continue monitoring and prepare evaluation reports which shall be submitted with the MPCA Annual Reports. (08) Heavy Metal Contamination Feasibility Study. If heavy metal concentrations in groundwater and surface water exceed regulatory standards, the Landfill will be required to conduct a Feasibility Study and submit it to City staff on a schedule determined by City staff. (09) Construction Quality Assurance Reports. A Construction Quality Assurance (CQA) Report shall be submitted to the City prior to the placement of waste on newly constructed lined areas. A CQA report shall also be submitted for 9 Landfill areas which receive final cover. The report shall demonstrate that the work was completed to the plan specifications. The Report shall be certified to by an engineer registered in the State of Minnesota and shall include but not be limited to: (a) All relevant construction specifications; (b) All shop drawings for prefabricated components; (c) Photo documentation of all critical aspects of construction; (d) Deflection testing results for leachate collection and transmission pipes; (e) Narrative description of all as-built variances from the plans and/or specifications; (f) As-built cross-sections of the liner subgrade; (g) As-built elevations for all pipe inlets and outlets and pump- onlpump-off controls; (h) Completed manufacturer warranties; (i) All physical testing results for soils and other materials use in the construction (10) Licensee shall notify the City at least two (2) days in advance of liner barrier layer installation or final cover barrier layer installation. Licensee shall assist the City in arranging inspection of the site at any reasonable time the City requests. The Licensee shall keep the City informed of ongoing construction progress and shall specifically notify the City of significant changes encountered in the geological, hydrological, or construction conditions. The City may reasonably require work, which is covered or otherwise obscured prior to City inspection, to be re-excavated for City inspection. (11) Temporary Fencing-On Site Litter Control. Litter control fences shall be maintained around the working area(s) of the landfill to prevent the blowing of paper or other litter on or off site. The Licensee shall assign employees to engage in a regular and program to inspect the Landfill Site and routinely clean up areas where litter accumulates on the Landfill Site. (12) Permanent Fencing. The Licensee shall maintain a minimum six-foot high fence around the perimeter of the site if and when necessary based upon reasonable concerns regarding public safety or trespassing or uncontrolled dumping. 10 (13) Public Information. The Licensee shall maintain a sign at the entrance to the Landfill Site which describes in common terms the substances which may be disposed at the Landfill and those substances which may not be accepted for disposal. (14) Sanitary Facilities. Adequate sanitary facilities and shelter shall be provided for site personnel. (15) Electrical Service. Adequate electrical service shall be provided at the site for operations and repairs. (16) Fire Fighting. Fire fighting equipment including at least one piece of heavy equipment, fire extinguishers in all machines working in the Landfill, and a water truck shall be kept available on the site during the active life of the Landfill. The self-contained breathing apparatus for the City Fire Department shall be available for use by the Licensee on a temporary basis, as approved by the Fire Chief. Licensee shall make a landfill operator available at the request of the City Fire Chief to consult and advise the fire department about landfill fire fighting issues. (17) Safety Equipment. Emergency first aid equipment consisting of at least one first aid kit kept near the working face, and at least one shower on site available to all personnel and customers shall be supplied. At least one of every four landfill personnel shall be trained in first aid and CPR. (18) Water. A potable water supply shall be available for site personnel. (19) Storage. Adequate on-site shelter shall be provided for maintenance and storage, sufficient to supply the equipment required by subsection (19) ~«-~-iiis~of this section, during cold weather operations. (20) Vehicle StackingLFacilities. Adequate vehicle stacking facilities shall be provided to ensure that no vehicle desiring entry into the site shall have to wait outside the perimeter of the Landfill Property. (21) Communication. Adequate communication facilities shall be provided for emergency purposes. (22) Security. A gate shall be provided at the entrance to the site and kept locked when an attendant is not on duty. (23) Haul Roads. An all-weather haul road shall be provided to the unloading area and watered on a regular basis. 11 (24) Adequate Equipment. Adequate equipment shall be supplied capable of spreading and compacting the refuse as received. At least one machine capable of covering the working face, in its entirety at the end of the day, shall be supplied. (25) Information Display. Subject to approval by the City Council, the Licensee shall maintain at each entrance to the Landfill Property a sign stating the name of the facility, the schedule of days and hours the facility is open to the public, prices for use of the facility, the Minnesota Pollution Control Agency permit number and the penalty for nonconforming dumping. (26) ScreeningBuffer Strips. Visual screening of the Sanitary Landfill site, as required by the Conditional Use Permit for the Landfill Property and as approved by the City Council, shall be provided by the use of buffer zones, natural objects, trees, plants, seeded soil berms, fences, and other suitable means. (27) Small-Load Dumping Site. The Licensee shall, during all hours of operation, maintain and operate a separate suitable and safe disposal area for the dumping of small loads by pickup trucks, cars, and trailers. This separate site shall be located and operated with due regard for the nature of the vehicles bringing such loads, and the normal frequency of such dumping. (28) Oak Wilt Prevention. As a method to prevent oak wilt, Licensee shall not conduct any tree removal operations at the Landfill Property between April 15 and July 15 each year. In addition, oak stumps shall be removed prior to April 15 each year. When removing trees and stumps, Licensee shall prevent damage to remaining trees. l~n~-~~eaE-1~a~ez~ccE~6aiirti6„ yo o,]; ~ ~ „1.10 .~ ~- 1 fit,,,+~ ~~:,~~, .emu ..~.., > > 0 11L. {39) Cell 17. The City's approval of cell 17 is comin~ent on City Staff s review and approvalof the specific construction ~letails~l3t>la~. '~~~~nansa (31) End Use Plan. The Landfill shall submit an End Use Plan to the City by 298E XXXX. 5.) Off-Site Litter Control. The Licensee shall engage in a regular and_routine litter maintenance and removal program extending one-half mile north and south of the entrance to the Landfill and to any other areas adversely impacted by debris related to Landfill operations as may be determined by the City. Litter shall be removed from these areas not less than once per week, and more often if necessary because of spills or complaints from neighboring property owners, and ensure that these areas are kept free of litter generated by truck traffic traveling to and from the Landfill. In addition, Licensee shall inspect all trucks leaving the Landfill to ensure that they are either fully enclosed or covered, and/or clean, and 12 will not spread litter on surrounding streets and roadways as they leave. In the event that Licensee fails to remove litter within forty-eight (48) hours of notice of accumulation of litter by the City, the City may cause such litter to be removed. The City shall bill the cost of such removal to the Licensee, which shall remit payment within thirty (30) days of the date of such ~billingj~.«-~ni6~. 6). General Performance Standards. The Licensee shall comply with the following performance standards and operating requirements: (O1) Hazardous Wastes Prohibited. No Hazardous Wastes shall be disposed of in the Landfill. (02) Dangerous Wastes. No Dangerous Wastes (as defined in the Code of Ordinances for the City of Elk River) shall be disposed at the Landfill until a request to dispose of dangerous wastes has been submitted to the City as required by Chapter 604 of the City Code of Ordinances. The City shall respond to requests for permission to dispose dangerous wastes within fifteen (15) days from receipt of the request as appropriate. If a request to dispose of dangerous wastes is rejected by the City Building & Environmental Administrator, or the City's authorized consultant/agent, the dangerous wastes may not be disposed at the Landfill. Licensee may propose advance approval of proposed disposal of dangerous wastes by submitting to the City, for each waste, a statement identifying the waste type, generator name and address, volume, method of chemical analysis, chemical constituents, and disposal procedures proposed. This statement, and all requests to dispose of dangerous wastes, shall be submitted in the form required by the City. The City may deny permission to dispose of Dangerous Wastes at the Landfill for one or more of the following reasons: (a) In the City's sole discretion, it would not be in the best interests of the public health, safety or general welfare of the citizens of Elk River to allow disposal of said wastes; (b) In the City's sole discretion, disposal of said wastes would pose a threat to the environment. (c) Licensee and/or the operation of the Landfill is currently in violation of any of the terms, conditions, or requirements of this License including specifically, but not limited to, the operational requirements, performance standards and environmental monitoring requirements of Sections 4, 6, 7, and 8; and the requirements in Sections 17 and 25, to make prompt payment of all fees due the City. 13 Licensee's "Industrial Solid Waste Management Plan, January 2004 as updated/revised shall be complied with in all respects, subject to specific requirements of this License, and may not be modified or amended without the City's prior written approval. (03) Incorporation of State Standards. The Landfill shall comply with the required practices for maintenance and operation of landfills set forth in Minnesota Rules Parts 7001.0010 to 7001.0210; 7001.3000 to 7001.3550 and 7035.0300 to 7035.2875. (04) Compliance With Zoning Ordinance Performance Standards. The operation of the Landfill shall fully comply with the performance standards and other requirements of Chapter 30 of the Elk River City Code, including specifically Division 5, Subdivision V thereof relating to performance standards for industrial uses. (OS) Supervision. An attendant shall be on duty at the site at all times while it is open for public use. Unloading of refuse shall be continuously supervised at the working face of the landfill. (06) Operating Records. Accurate records of daily waste disposal operations shall be maintained. Intake of Solid Waste in tons or cubic yards shall be recorded on a daily basis, in a manner acceptable to the City, and reported to the City on a monthly basis along with payment of the Fees required by ',Section 25 ~~t~~nilv~of this License. The volume and location of the disposal of Dangerous Wastes shall be recorded the day such disposal takes place and shall include the amount and type of waste disposed of, and the name and address of the source of the waste. Waste disposal records shall be available during normal business hours, for review and inspection by the City. (07) Recording. A detailed description of the location of the completed Sanitary Landfill site shall be recorded with the County Register of Deeds within four months after approval of the closure of the landfill. This description shall include the general type and location of deposited Solid Waste, the location of phased or staged disposal of wastes, the type and number of lifts, original and final terrain descriptions, site hydrogeologic conditions, and other pertinent characteristics of the completed sanitary landfill site. (08) Education Pro rg am. The Licensee shall: (a) Make available to all landfill users, including haulers and their customers, information which describes in common terms what is permissible and impermissible to dispose at the landfill. (b) Continue to conduct an employee training program designed to assist employees in identifying impermissible waste materials and 14 to prevent their disposal at the landfill. The training program shall be reviewed with City staff and recommendations to improve the program shall be incorporated to the extent feasible. (09) Hours of Operation. The landfill shall not be operated between 7:00 p.m. and 6:00 a. m. The landfill may accept waste during off hours only under the following circumstances: (a) The wastes have been tested and approved for disposal; (b) Acceptance is necessary during off hours because of extraordinary circumstances; (c) Each instance of off hour acceptance has received the prior approval of the City Environmental Administrator and such approval was granted during City business hours; and (d) Each instance of off hour acceptance is documented in a letter sent by the Landfill to the Environmental Administrator within five business days of the instance off hour acceptance. 7.) Site Environmental Monitoring. (O1) On-site Groundwater. The Licensee shall perform on-site water quality testing at the monitoring wells in the manner required by the MPCA permit. The wells shall meet current Department of Health Well Code Standards. The Water Quality report shall be submitted to the City when it is submitted to the MPCA. (02) Surface Water Quality. The Licensee shall have surface water quality tests performed in conjunction with sampling quarterly events when water is present. (03) Off-Site Groundwater Quality. The Licensee shall annually sample the individual private wells identified in the Phase IV Water Quality Monitoring Work Plan required by Section 4(05). All private wells shall be analyzed for pH, COD, ammonia, chlorides, specific conductance, and volatile organic compounds (MDH method 465E and EPA methods 601, 602). (04) Modification. The testing programs specified in this ~Section.'b ~~~MZis~may be modified by City staff if City staff reasonably determines there exists a need for additional wells to be tested or additional parameters to be analyzed, based upon water or air quality test results indicating the presence of contamination. 8.) Hydro~eologic Reports. The investigation of the hydrological and geophysical characteristics of the site shall be continued and any other new 15 information relating to the hydrogeologic impact of the site shall be reported to the City. Hydrogeologic reports shall be updated, amended, and modified as warranted by newly discovered or additional data acquired in the continued hydrogeologic investigation. Licensee shall notify City at least two (2) days in advance of any soil boring or well construction required by this License. 9.) Dust, Noise, and Odor. Fugitive dust emissions off-site shall be controlled at the Landfill Site as necessary by undertaking the following: road surfaces within the Landfill Site shall be wetted with water or an appropriate chemical whenever off-site dust levels become unreasonable as determined by the City '~Zoning~~wMU~~~ Administrator. Dust pollutives shall be utilized to the extent necessary on cover material such as stockpiles to reduce wind erosion as well as on other exposed surfaces as appropriate. Cover compaction and revegetation activities shall be undertaken promptly on the completion of various fill areas and vegetative cover capable of quick growth shall be utilized. Plantings of bushes and trees shall be installed if needed to buffer the Landfill Site and minimize wind erosion. All equipment and vehicles utilized at the Landfill Site shall be periodically inspected and maintained to minimize noise. Vegetative barriers along the boundaries of the Landfill Site shall be utilized to minimize off-site noise impacts. Applicable state standards for noise pollution may not be exceeded by the Landfill operation, equipment, vehicles, or machinery. The Licensee shall take reasonable actions to control odors from the Landfill Site. The City Environmental Administrator may make recommendations regarding~ossible control against odor. If an odor problem ins ongoing, both parties agree to institute good faith negotiations to minimize the odor problem. ~ L~== Vr ~==:,r~ 10.) Closure. Within six (6) months of a written demand by the City, and in no event later than one (1) year prior to the date projected for cessation of waste disposal, the Licensee shall submit to the City for approval an updated closure and post-closure plan for the Landfill Site. 11.) Insurance. The Licensee shall secure and maintain insurance from an insurance company acceptable to the City and authorized to write casualty insurance in the State of Minnesota which will protect the Licensee, its agents and employees, and the City from claims for bodily injury, death, or property damage which may arise from the operations on the Landfill Site. The Licensee shall file a certificate of insurance or a certified copy of the insurance policy with the City. Such insurance policy shall contain a clause providing that it shall not be 1b cancelled by the insurance company without thirty (30) days' written notice to the City of intention to cancel. The following coverage shall be provided in amounts not less than those specified: (Ol) Public liability, general liability, loading and unloading, [completed operations, explosion, collapse, underground operations], personal injury, and property damage with the following minimum limits: (a) One Million Dollars ($1,000,000) per claimant. (b) One Million Dollars ($1,000,000) per occurrence. (c) One Million Dollars ($1,000,000) annual aggregate. (02) Automobile and truck public liability, personal injury, and property damage, including owned and non-owned vehicles with a One Million Dollars ($1,000,000) minimum limit. (03) The City may require additional insurance be provided by Licensee if market conditions change such that additional coverage become economically practicable. The insurance limits required by this section shall be reduced if these insurance limits are not reasonably and economically available. For the purposes of this subsection "economically practicable," "reasonably" and "economically available" shall be determined by the insurance coverage affected by the Minnesota Joint Underwriters Association or the readily available private insurance market. 12.) Bonding. (O1) The Licensee shall furnish a surety bond in favor of the City in the amount of Three Hundred Thousand Dollars ($300,000) to run continuously (annual renewal allowed) until all landfill operations and closure activities are completed to ensure compliance with the terms and conditions of this License. Such bond shall be made by an insurance company or other financial institution acceptable to the City and shall be in a form acceptable to the City and its attorney. The bond shall be subject to cancellation by the obligor by giving one hundred twenty (120) days' prior written notice to the City. The Licensee shall renew each such bond no more than sixty (60) days after any such written notice, and failure to so renew the bond shall be an event of default of the obligations of the Licensee and shall constitute ground for immediate and automatic revocation of this License. Said bond shall provide that if the Licensee refuses to obey any of the requirements or to any of the acts required by this License or for any reason ceases to operate or abandons the landfill, and the City is required to expend monies or labor or material to restore, 17 repair, or clean up the Landfill Site to the condition and requirements required by law, the obligor shall reimburse the City for any and all expenses incurred to remedy the failure of the Licensee to comply with this License, and the obligor shall indemnify and save the City harmless from all losses, costs, and charges that may occur to the City because of any default by the Licensee. The bond may be in a form exercisable by both the City and the County provided that such exercise feature allows its use on instruction by either or both the City and County. (02) In the event this, or any subsequent license is revoked or the Licensee closes operation of the landfill for any reason, including but without limitation, order of the court or other agency of competent jurisdiction, bankruptcy, insolvency, or abandonment, the Licensee shall immediately proceed to close, cover, and grade the Landfill Site according to an environmentally sound closure plan which shall be approved by the City and which shall comply with all requirements of the MPCA and Sherburne County relating to final closure. In the event the Licensee fails to comply with the terms of this subparagraph (02), the City may, upon ninety (90) days' prior notice to the Licensee, enter onto the property and perform all such obligations, the costs of which shall be borne by the Licensee, or, in default thereof, by its surety. 13.) Applicability of License. This License shall apply to the entire Landfill Property located within the City limits. ',14.} ' License Period. This renewed License shall bein force and effect until February 17, 2414.~z~~~r1~o 15.) Violation of Conditions. If the Licensee or its successors or assigns violate any term or condition imposed by this License, this License may be revoked and terminated. Without limiting the foregoing, the violation of any statute, regulation, ordinance, or license condition imposed by lawful governmental authority and governing operations on the Landfill Property is ground for revocation and termination of this License. The change, alteration, or amendment of any such statute, regulation, ordinance, or license condition by any governmental authority other than the City shall not excuse the Licensee from compliance with statutes, regulations, ordinances, or permit or license conditions in effect on the date of the original issuance of this License unless compliance is waived or excused by the City Council. The City shall not unreasonably refuse to waive or excuse compliance with existing permit or license conditions. 16.) Documents, Reports, and Maps. Copies of all documents, reports, and maps which are supplied to the MPCA or to Sherburne County shall also be supplied to the City, at the same time. 18 17.) Charges and Fees. The Licensee agrees to pay to the City upon the amendment and renewal of this License, $2,000. Thereafter, the Licensee shall pay the City an annual license fee of $2,000. 18.) On-Site Inspection. The City may inspect the Landfill and the Landfill Property for the purposes of examining and copying nonconfidential records; conducting inspections, surveys, investigations, monitoring, or sampling; and others obtaining necessary information pertaining to the construction, operation, and environmental effect of the disposal facility, control equipment, and control materials. Inspections shall be conducted during normal business hours except in the event of an emergency. City personnel or agents performing the inspection will notify personnel at the landfill office at the time of inspection. In case of emergency, the City will call Debra Walters to gain entry and provide notice of the situation. Licensee shall promptly notify the City of any substitutions of persons to be so notified. The City shall be notified by the Licensee immediately upon the occurrence of any explosion, fire, or other emergency at the Landfill; upon the discovery, release or spill of hazardous or dangerous materials, as defined in the City of Elk River Solid Waste Ordinance, at the Landfill; and of any violations of the conditions of this License. The specific requirements for how, when and who to notify at the City shall be set forth in a separate letter from City staffto Licensee. This letter maybe revised or supplemented by City staff from time to time as necessary to address the City's needs for notification. 19.) Indemnity. The Licensee shall indemnify, defend, and hold the City harmless from all claims, demands, and/or actions legal and/or equitable arising from the operations on the Landfill Property. 20.) Worker's Compensation. The Licensee shall carry in a company authorized to transact business in the State of Minnesota a policy of insurance fulfilling all requirements of the Worker's Compensation Act, including all legal requirements for occupational diseases, or self-insure for the above. 21.) flit Samples. The Licensee shall notify the City forty-eight (48) hours before any sampling of groundwater or surface water and allow the City at its expense to obtain split samples of such waters. 22.) Right to Require Performance. The failure of the City, at any time, to require performance by the Licensee of any provisions hereof shall in no way affect the right of the City thereafter to enforce the same. Nor shall waiver by the City of any breach of any of the provisions hereof be taken or held to be a waiver of any succeeding breach of such provision or as a waiver of any provision itself. 19 23.) Severability. If any provision of this License shall be declared void or unenforceable, the other provisions shall not be affected, but shall remain in full force and effect. 24.) Amendment. This License shall not be considered modified, altered, changed, or amended in any respect unless approved by the City Council as required by City Ordinance. 25.) Fees. The Licensee shall pay the Host Community Fee (HCF) provided for in the Host Community Agreement entered into between the Licensee and City on September 15, 2003. If Licensee fails to pay the HCF, for any reason, Licensee shall then pay the Landfill Abatement Surcharge authorized by Minn. Stat. § 115A.921, Subd. 1 (the Surcharge). The Surcharge shall be paid directly to the City on a monthly basis, and shall be accompanied by an accurate report on the amount and type of solid waste disposed of in the landfill each day during the month. The Surcharge due for each month shall be received by the City no later than the thirtieth calendar day of the succeeding month. Failure to pay the Surcharge when due shall be cause for revocation of this License and shall be a violation of the conditions and requirements of this License for the purposes of the related operations authorized by Section 3 of this License. 26.) Conflicts. In any cases in which the Licensee believes there is an irreconcilable conflict between the requirements of this License and Laws, Rules, Regulations, or Order of any other governmental authority, the Licensee shall promptly notify the City of such irreconcilable conflict and request an amendment of this License. Until such time as the City acts upon a request for an amendment to this License, which it may grant or deny in its sole discretion, the terms of this License shall govern all operations at the Landfill Site and shall prevail over the provisions of any document submitted by the Licensee and any requirements of state or federal law. The City shall not unreasonably refuse to amend this License or waive compliance with this License in order to prevent violation of law. 27.) Modification, Suspension, or Revocation of License. The violation of any of the terms of this License is grounds for suspension or revocation hereof. Furthermore, the City specifically reserves the right, and the Licensee agrees that this License may be amended, suspended, or revoked by the City as reasonably required to protect the public health, safety, and welfare. Specifically, but without limiting the foregoing, the City may amend, suspend, or revoke this License, whenever any reliable information is secured from a recognized source which demonstrates that the continued operation of the landfill places the public health, safety, or welfare, in jeopardy. Such information includes, but is not limited to the following: 20 (O1) A determination that (other than as indicated in the license application) leachate generated at the Landfill Site is migrating to surface or ground waters in a way that threatens the public health, safety or general welfare. (02) A determination that (other than as indicated in the license application) standards for drinking water (whether promulgated as of the date of this License or at a later date by the United States Environmental Protection Agency, the Minnesota Department of Health, the Minnesota Pollution Control Agency, or any other governmental agency promulgating standards for toxic wastes, hazardous wastes, pollutants, or contaminants in groundwaters or surface waters) are being violated as a result of landfill operations. (03) A determination that the emission of landfill gas on the Landfill Site is creating or threatens to create a safety hazard to the community. Without limiting the foregoing, the City reserves the right to amend this License to impose upon the Licensee the obligation to comply with any state or federal law or regulation relating to the operation of sanitary landfills, whether or not said laws or regulations apply by their terms to preexisting landfills. Suspension, revocation, or amendment of this License may be ordered only after a public hearing on such suspension, revocation, or amendment preceded by thirty (30) days' written notice to the Licensee or at the time of consideration of renewal of this License. Notice of hearing shall include a statement of the proposed action by the City and the reasons therefore. ATTEST: Tina Allard City Clerk THE CITY OF ELK RIVER: By: Stephanie A. Klinzing Its: Mayor ELK RIVER LANDFII,L, INC. By: 21 Debra Walters Its: District Manger 22 STATE OF MINNESOTA ) ss. COUNTY OF SHERBURNE ) The foregoing instrument was acknowledged before me this day of 2009, by Stephanie Klinzing, the Mayor of the City of Elk River, on behalf of the City of Elk River. Notary Public STATE OF MINNESOTA ) )ss. COUNTY OF SHERBURNE) The foregoing instrument was acknowledged before me this day of 2009, by Tina Allard, the City Clerk of the City of Elk River, on behalf of the City of Elk River. Notary Public STATE OF MINNESOTA ) ss. COUNTY OF SHERBURNE) The foregoing instrument was acknowledged before me this day of 2009, by Debra Walters, the District Manager of Elk River Landfill, Inc., a Minnesota corporation, on behalf of the corporation. Notary Public IS INSTRUMENT WAS DRAFTED BY: THIS INSTRUMENT WAS MODIFIED BY: Gray, Plant, Mooty, Mooty & Bennett 500 IDS Center 80 South 8~ Street Minneapolis, Minnesota 55402 The Community Development Department of the City of Elk River 23 ~~ :_, ;: ~.~- ~- .x ~~~.:~ ~~ ,.,= x ~.... ,~~~ y I~ <~ ~ .~~` y~I I ~ y ~ ~`~ F ~ ;~~~. Fa ~' .. 7~ 1 k ~k ~~~~~ ~ E L `~ ri M ~. '~ ~ i ~~ ~ " '`. ~ ~~ 'k~ 6 ~~ ti, i:s+ ... ~ fir.. ..~. ~u r .~ ; . ~, y ~. i h_ ~_~ ~~~ 1 ~ s~. M_ F Ir ~ ,. `~~ ~ , .~y~,~ y , R h~ ~ f tK ~< ~~ ~ i\ ~~~ .~ «*~ ~~.. a~t~. -.,., r" x r.,. Y` ~.. ,».r'a. F ~` j .... 1 1 ~ ~ ~ ~ ~ • Amending the Conditional Use Permit • Amending the License Due to pending legal issues related to zoning, Elk River Landfill wants to continue to move forward with City process related to the CUP and License Applications iYr ~ `~ ~ tr ~a ~ :~' »r~. ~~~ 9/fFJ91$'x'E MA11iA1k'~~tM1ElLT x ~~~ ~~~~ t s ~ '' ~ ~ ~` m ~ > _ k j ~ ~ ~ ~ ~ i ?s ~ ~ I .» II ~ "wi` n. +.~ ~ s. .aj1 ~." Viz. £ ~ (t~s ~ 'd~ ~ .~~~5 ~u~w yMt~ ~ i~ ~~y~~. Z.A i~~ ~~ >..!!~~ -~ iix YY ; '~~/,~i~y I ~r M » ~ ~ CJ» 'a }~ Yid ~~ ~.: '1 ~ ~ Ylw .f 1i. _ ~~ ~. CONDITIONAL VSE P~IiMIT • Landfill has an existing CUP with multiple conditions that has been amended, updated and renewed several times • Conditions of the existing CUP are similar to those in the existing License • Did not receive a draft CUP to review • Believe comments on the CUP would be similar to those about to be presented on the draft License that was reviewed ~~ ~A~~~~ ~~ ~~w F '~ I LICENSE • Have an existing Landfill License that has been renewed and amended regularly • Last License renewal was in February 2009 • Reviewed a copy of the draft Landfill License as provided by City Staff • Have comments/updates on the draft we received '~'$~~ MAN AG~N1~Rt7 ,: ~~ ~~~ ., r. ~ ~::, :f t .x" "~ '~~ ~~' ~ :. ~ ~ ' ~ ~. H Y rt' ,y!pp a ~'~ fi h .,b r ~~ ~ .i~ ,. S ~ T ~ Al t~ ro ~'` ~ ~tv '#"'.2 ~~ ~~ ? .. ~.~*`~ .I ~s"z t $ u ~~ " .. '~. i.~k ter. ~~ Y :1.: ' ,~» ~ sk' ~ ~ ~ §: ~ ~_~ ~ ~t ~iy x~ ' »'` r~ ~. ~: t~ Y: ~ ... F u,;'~' ~'~ ice" '.: ~,~~tt «~ - ~ ~ .. .-`« .~ ». ~s':_'b. ~ 1C,r ~ .s :4.iY~h.~ ....; »fif.,.... «....' :: .° ._ ., .. .K i.,llfh ..~ tifr'... .. ...a M~ _ _ .~..,. .. AMENDED LICENSE - Commessts • Update • Contact information for Landfill personnel • References to submitted plans., including dates • Numbered references within document • License Period (refers to 2/17/2010} • Alternative Cover section, some items discussed are already approved (such as tarps) • Change from "Cas VentingSystem" to ``Gas Collection system" ~_ '~1fi401~R7~ Nt.f~NAC3EMENF ,~:' ~::~ x; . ~ ~.,- ~ _ ~ {~ ~' >: ~< ~ ....1...... ~ S~.ti 3::. 4i m<.. .. ~v j. .~ .,. ~ ~ ~ • Remove • References to Cell 17 -already constructed • Referenced to the Demolition Debris Landfill -- no longer located in City's jurisdiction • References to yard waste -- as most yard waste activities done outside the City boundary • Wish to include ability for the existing appliance/recycling building to remain until HHW facility addressed W`AkITE MANAi3EMfElYT °~'~lll~~t ~,s~'~E'11,~ °y{ ~ y ~~ ~~ i ~E . ,. ~"'" • ~ 1 ,~ • Litter and Odor • Existing License has language on these tapirs that has worked for existing Landfill • Issues are addressed in other permits held by the Landfill, including the Landfill's air permit that has limits on air emissions (including surface emissions -odors) • If City believes additional controls are necessary, we are .proposing the language similar to that in the County License • City recommendations • Parties negotiate solution to eliminate the problem ~~~~ ~~~~ K ,; ~~ F' ' I~ t. _ ~_~ r~ is"!~~ f~Y`.-3 ~ >T :'~ ~~''~TY 1~ ~? ~,; .;i' ~ ~ , Lc t""~~ b r ~»y,..o-~sd. " ~;~ ~y , ", .:: ,, « :~ s'~ >,~ ~~', {~~y... p,,, ~ n,. ~.; yr",~s... k..r ,,, ~~.:: i " ~. xx. .'. ,.... ' ' w~~:'+~. s ... r f! .,.,. ..: „ .. ., n ~. t .» 1 1 • Requesting to Amend the existing Landfill's CUP and License to include the Southern Development Area • Amending the CUP and License is the City's opportunity to put conditions on the Landfill • Ifi zoning does not change -last nothing • If zoning does change -important c~-nditons are in place ~. ~, ~~{ ~. b ~ ,~ ° d ~ ~ ~ 3 ~ ~, ~ va~ ~ r ~ .9 < ~~ ~ RESOLUTION NO. 10- 07 City Council City of Elk River A Resolution Approving the Application of Ellc River Landfill, Inc. for an Amended Conditional Use Permit and License for the Existing Elk River Landfill WHEREAS, Elk River Landfill, Inc. (ERL), a wholly-owned subsidiary of Waste Management, Inc. (WMI), is the owner and operator of the Elk River Landfill (Landfill); and WHEREAS, ERL has submitted a land use application (Application) to the City requesting the approval of an amended Conditional Use Permit (CUP) and Solid Waste Facilities License (SWFL) for the Landfill; and WHEREAS, pursuant to the requirements of Minnesota Statutes and the Elk River City Code, the request by ERL for an amended CUP and License was referred to the City of Elk River Planning Commission for the purpose of holdzng a public hearing and making a recommendation to the Elk River City Council on the request; and WHEREAS, the Planning Commission held a public hearing on the request on February 9, 2010, at which time ERL was provided as much time as it desired to present the request and all information and data they desired in support of the Application; and WHEREAS, the Plamling Commission took testimony from all members of the public who desired to speak at the February 9, 201.0 public hearing; and WHEREAS, the Planning Commission closed its public hearing on the request on February 9, 2010 and adopted a motion recommending to the Elk River City Council that the request for an amended CUP and SWFL for the Landfill be approved, subject to the conditions recommended by City staff as set forth in the proposed amended CUP and SWFL reviewed by the Planning Commission; and WHEREAS, the Elk River City Council, on February 16, 2010, held a public hearing on the request for an amended CUP and License and considered the Planning Commission's recommendation; and WHEREAS, ERL and all members of the public desiring to speak at the February 16, 2010 public hearing before the City Council were provided the opportunity to do so; and WHEREAS, all written materials submitted by ERL and ali members of the public prior to and at the public hearing on February 16, 2010 were accepted into the record; and WHEREAS, during the February 16, 2010 public hearing the City Council discussed the merits of the request and took into consideration the Planning Commission's February 9, 2010 recommendation; and WHEREAS, after all parties desiring to present testimony and offer evidence for or against the request for an amended CUP and SWFL had had the opportunity to do so, the Elk River City Council closed the public hearing on the request, continued its discussion of the request, and reached the decision incorporated in this Resolution. NOW, THEREFORE, the City Council of the City of Elk River makes the following Findings of Fact and Decision with respect to the request of ERL for an amended CUP and SWFL for the existing Landfill: FINDINGS OF FACT 1. The City Council makes the following findings of fact with respect to the Application by ERL for an amended CUP and SWFL for the Landfill: (a) That the Landfill is a Solid Waste Facility, as that term is defined in the Elk River City Code of Ordinances. 2 (b) That Solid Waste Facilities are only allowed, as a conditional use, within the City's Solid Waste Facilities Overlay Zoning District. (c) That the Landfill is located within the City's Solid Waste Facilities Overlay Zoning District; (d) That a license to operate a Solid Waste Facility can only be issued to a facility which is located within the Solid Waste Facility Overlay District and which has received a conditional use permit to operate; (e) That the Landfill has a valid, existing conditional use permit and license to operate a Solid Waste Facility on the existing Landfill property, which Conditional Use Permit and License expire on February 17, 2010; (f) That ERL has applied to amend the existing CUP and License so that operation of the existing Landfill may continue beyond February 17, 2010; (g) That the Application to amend the CUP and License applies only to the existing Landfill, as described in the legal descriptions attached to the Amended CUP and SWFL attached to this Resolution; (h) That the City Council does not have before it an application to expand the fill area of the Landfill into the existing 200 foot buffer zone (Buffer Zone) which extends 200 feet North from the Southern property line of the Landfill; (i) That the 200 foot Buffer Zone, which is required by State law and regulation, is an integral part of the Solid Waste Facility which is the Landfill and is therefore required to be located on Landfill property which 3 is zoned Solid Waste Facilities and subject to the CUP and SWFL for the Landfill; (j) That the application before the City Council does not propose or contemplate any expansion of the Solid Waste capacity of the Landfill beyond that approved in the existing CUP and SWFL; (k) That the proposed Amended CUP and SWFL attached to this Resolution provide that no Solid Waste will be deposited within the 200 foot Buffer Zone; (1) That, based upon the entire record before the City Council, and the Findings of Fact set forth in this Resolution, the Amended CUP and SWFL attached to this Resolution comply with the City of Elk River Solid Waste Facilities Ordinance and meet the standards for approval of an Amended CUP and SWFL for the Landfill. DECISION THEREFORE, the City Council of the City of Elk River makes the following Decision with respect to the request for an Amended Conditional Use Permit and SWFL for the existing Landfill: A. All of the reports and materials prepared by City Staff and City Consultants are hereby adopted and incorporated within the City Council's Decision on this matter. B. The record in this matter shall include all materials submitted to the City and presented to the Planning Commission and City Council, including those 4 materials presented in the staff reports, by the City staff and by the City's consultants, and all materials and testimony submitted by or on behalf of ERL, and their consultants, and all testimony received from the public, a.s of the date of this Resolution. C. The Findings of Fact set forth above in this Resolution are hereby adopted and incorporated as specific grounds for the Decision set forth herein. D. Based on all of the above, aild in particular on the fact that the Application for an Amended CUP and SWFL for the Landfill does not include a request to deposit Solid Waste within the existing 200 foot Buffer Zone or to increase the solid waste capacity of the Landfill, the request of ERL for an amended Conditional Use Permit and SWFL for the Landfill is hereby granted, and an amended CUP and SWFL in the forms attached to this Resolution are approved, on condition that the "Agreement for Issuance of Amended Conditional Use Permit," and. the "City of Elk River Solid Waste Facility License Agreement," in the forms attached to this Resolution, are executed by ERL and/or WMI. THIS RESOLUTION PASSED AND ADOPTED this 16th day of February, 2010. ~,. .~ ~~ ~ ~ Stepp' ie Klinzingc - r ~_/' Tina Allard, City Clerk GP:2728945 vl 5 REQUEST FOR ~,CTION To Item Number Ci Council 6.3. Agenda Section Meeting Date Prepared by Community Development February 16, 2010 Rebecca Haug, Environmental Administrator Item Description Reviewed by Request for Conditional Use Permit and License (Amendment) Lori ~ ohnson, Ci Administrator by Waste Management for Ella River Landfill, Case No. Reviewed by CU 10-02 -Public Hearing Peter Beck, Ci Attorne Action Reca,uested Staff and Planning Commission recommend approval to amend the Ella River Landfill's (ERL) Conditional Use Permit (CUP) with modifications. Staff and Planning Commission recommend approval to amend the Elk River Landfill's (ERL) Solid Waste Facility License (SWFL) with modifications. Summary The Ella River Landfill is requesting to amend their Conditional Use Permit and Solid Waste Facility License. The City Code of Ordinances requires that all Solid Waste Facility Licenses in the City expire evely two years from the date of issuance. The City has always amended both the CUP and License every two years since much of the language is the same in both. The current CUP and SWFL for the ERL expire on February 17, 2010 and that is the reason for this request. Staff and the Applicant have proposed some changes to the existing CUP and SWFL. Many of the changes are considered housekeeping. Here are some of the more significant changes to the CUP and SWFL: Conditional Use Permit {CUP) 1. Demolition Debris. The Applicant and staff have agreed to remove the sections that relate to demolition debris, as the areas of the landfill which accept demolition debris are all located in Livonia Township. 2. Paragraph 3 Buffer Zone/Screening. Paragraph 3 of the CUP currently reads as follows: "A Buffer Zone shall be established within the perimeter of the Landfill Property around the waste disposal areas of not less than 200 feet, except on the north side. Within this Buffer Zone, no waste disposal may occur. The Landfill shall develop an inventory of significant trees within the buffer zone. The preservation of trees within the buffer zone shall be pxovided for during the construction, operation, and closure of the Landfill. Said plans shall be in compliance with the screening plans dated, May 2$, 1999 and, which are incorporated into the Sherburne County's license for the Landfill." S:\Council\Rebecca\ERL CU 10-02-CUP 21G 10.doc Staff is recommending that paragraph 3 be amended through the italicized changes, to read: "A Buffer Zone shall be established within the perimeter of the Landfill Property around the waste disposal areas of not less than 200 feet, except on the noxth side. Witlvn this Buffer Zone, no waste disposal may occur. The Landfill shall develop an inventory of significant trees within the buffer zone. The preservation of trees within the buffer zone shall be provided for during the construction, operation, and be included in the end use plan to be .submitted for approval by December 3 ~, 207 ~ by the city." At the Planning Commission meeting on Tuesday, February 9, 2010 the Applicant was in agreement with this change in the language. 3. Paragraph 4 (29) Cell 17. The applicant has recently submitted the "Cell 17 Perimeter Berm Base Grades" Plan (dated Febfuaiy 2010) which provides additional engineering design detail for the final landfill cell. The newly submitted plan demonstrates site development to match the approved 2001 Final Contour Plan for the Site. Staff is recommending a revision to paragraph 4 (29) which would require Applicant to Submit additional information to clarify Cell 17 perimeter berm (or south side slope) const~.•uction. 4. Paragraph 4 (30) Alternative Cover. Staff agrees with the Applicant's request to allow alternate cover and recommends adoption of paragraph 4 (30) as proposed. 5. Paragraph 4 (31) End Use Plan. At the Planning Commission meeting on Tuesday, February 9, 2010, the Applicant agreed to provide the City with an End Use Plan by December 31, 2011 since the City Council has not approved an End Use Plan for the site. 6. Paragraph 14 Permit Period. At the Planning Commission meeting Tuesday, February 9, 201.0, Staff recommended changing the language pertaining to the permit period for the CUP. Staff and the Applicant have agreed to omit the language stating "until February _, 2012." Solid Waste Facility License (SWFL) The Applicant's SWFL does not include a section on buffer zone/screening, but does include sections on Cell 17, Alternative Cover, and End Use Plan. Staff recommends the same revisions made on those items in the CUP be made in the SWFL. In addition, the SWFL includes a section (Section 1 (9)) on Dust, Noise, and Odor. Staff and the Applicant have agreed to add language to that section related to odor to include: "The Permitee agrees that it will use best management practices to control against odors. The Environmental Administrator lnay make recommendations regarding possible odor controls. If a verified odor problem is ongoing, both parties agree to institute good faith negotiations to minimise the odor problem. If in the event that the City receives ten or more complaints within asix-hour period relating to a single odor description and this odor complaint has been verified by both City and Permitee and identified as coming from the Facility, the Permitee shall cease such activity(s) that are the direct cause of the odor(s). Normal activity(s) shall not resume until the Perinitee has, to the satisfaction of the City, fully mitigated against such odor(s)." All of the changes recommended in tlv.s staff report are included in the attached CUP and License. S:\Council\Rebecca\ERL CU 10-02-CUP 216 10.doc Attachments • Location/Site Map • ERL Application • CUP for the facility with recommended changes included • SWFL for the facility with recommended changes included • Letter from Jack Perry dated January 28, 2010 • Letter to Deb Walters dated February 3, 2010 • E-mail from Deb Walters dated February 9, 2010 • Letter to MPCA dated March 18, 2005, from Stephanie Stoltz, ERL • Resolution approving the application of Elk River Landfill, Inc. for an amended conditional use permit and license for the existing Ells River Landfill The Planning Commission reviewed the request at their meeting on February 9, 2010. The comments received doling the public hearing pertained to the End Use Plans. Council Action Motion by Second by Vote Follow Up S:\Council\RebeccA\ERL CU 10-02-CUP 216 10.doc NJd £~~LZ~I OIOZ/IZ/T '6rop~de{N uol~e~ol\C11;puel ~anR3 K13 ZO-flT nJ\dll~lsalld ase~\9NINNHId\~S ,y,... ~, 7 ,~ +r L>G yy ,.. ~ . . ~'fSw.: y ~~ !E ". b v 1 I,.;: g ~ ~.. sY; : ~ ~ pk. ~ th r ». ~• y' z}s 3 ~ ~:? ~.~ ..y, '~~ 'a1 ~rw .N: ~ 3s : '~' ~'..~f ~,y,.,.. -~ _ v w w .. 5 ':<s~. v s~i'• S ~. ) ~ raj, x '~ ~ "Ae: `"~t~ yk k.'L"~ : )i.~~ i ~ ;;h»t~i ; s aai~ i~ r ~ •~.. ~ MM ~. ~. ~, t,.r ~„ , aid' :; ~_ ~--T -~!' ~~ ~ W ».z ~, '~ its ~Y f> ,~ '~+'f ~ ~ st d" r .~ 7 r1 ~~~~ ~~w~w~~ ~ xi~ w Y~ .', w '. y ,f , r' .,"+T~?_.' OF f & r x.fi ~'.~'..'~ ~ ~ t ' ~ z st . =~ri41~#~ v~, r~~~ ~ F g j I" y4 "+kR..~a + '. ~ ~ ~ ,. >F w h ' L4 _ _ ~--„~» ',. , ' ».': - v ~ iv ~ ~~ , '. ~ 3- ~ ' ~.~ ~i u l Ll ~. ~~' w, . ~ ~ ~ ~ ~ ~"r~r "" ~; a '? _ ' ~ti~'~ _~ ~ ~. ~ ~ .. L ~:;~ a mss i w ~~ "4t ~ ~ ~ t y, i 1 . ~ -~ ~ _ ~ ~~ Ate' ~~« .. a _: ~ F , > .. ~~ , ' ~. d y 'r ~V C v~ ~ • y`n x ~b ~ e. ~ d d 6PV ..: _ I~ 'y jj 3k "~ d tt 'L'f --kr-- i . v c y ,;., I !~ ~ntYc ~ .. ~, sr ~ ~ ~ ' x ~ x. ~ ~ -~;~ , ~ s r, ~ .4. I li ~~ '«~ «.~~ , ~. u APPLICATIONS MAY BE ACCEPTED UP TO ONE WEEK BEFORE DEADLINE DATE (See Planning Commission and Clty Council Meeting Schedule Page 5 of the Land Use Application Form) Case Number:~J rU."Z-- .v~r OQ~9 Land use Appl~cat~on F®rr~ (An individual application for each application is also xequired) ~ _ - -- -- --- ~.: --- . --- - Conce t Review Policv consideration $250.00 Yes )bout consideration ~~00.00 ~ es - __ --- - - -,_t~rZt al ~ ~e_P -- - - -- - _--- -- -- - - - -- Re - --- -- - -- Ea r - ~ - -~ -, --~ F'm ~ _~~ ~ ~ 1 - _ ~ 1 - -~ ~ u; .r) 1 : m_ h ~ TJ~, Re . rah > ~.«~'u.. ~-- ' F'etm.~ Ge - I `_, t ci t ..: c~ I 1 - - - Tnt i,,i ~ =t Permit -- --- ~ ~ -- -- -- 1 -- -- -- { ,. ~ ~ ~ Lai ~ -- -- ~ 1 L; l~~ ~ - - -- - ~ ii,i~,iu~i~ .~~ - -- - - -- - -- - - - - r. - it ~, ,-. _ i, ' ' -- `_ _ SitF 11, he ~ _ -- __ Oi - - - c ,i ; ~ ~ ~ _-- --3 J - `~~~ ii Id-~t:~ _7t (1~ t - '.,. .. - a~~~,.(III _•. _ - 5: -. - - _~.-' -- ~~-- Vatnn r_ , r.i~ ~~ n.~_ i~ectston -- ~ r](i (, -- -- - - - ---~ - --~ ~ liar,-~ - -- - Q.}i,~~_[l~) ~ - ~ -. _ ~ ; - ~ - - - RECORDING F1/';N; (Apps w/No Escrow) ~ - - - . - - - $46.00 ~ .. _ m~- -- ~ - - --- - - Yes Purpose of Fees and Escrow Fees The application fees are used for staff time for case review and preparation of documents, publication of the public hearing notice in the Elk River Star News, and for postage to mail the required notices to adjacent properties. These fees do not include recording fees or additional publication fees. Escrow The City uses consultants for engineering, legal, and environmental reviews. The escrow is used to pay these consultants for review of land use cases, as well as recording and publication fees, where required. Once the escrow is used, the applicant or responsible party will be billed for all additional services (see Agreement to Pay Costs of Review). Property Information , , 1 Address: ~ o~ ~{ ~e ~ ~LU ~bL..~ ~~ ~ (l~ W ~ Parcel Numbe : 75 - - ~I IC ~1~{'tr d Legal Description: (attach if necessary) _ S:\PLANNING IvIAIN\Admin\Application Forms\Land Use Application Form 2009.doc 2/20/2009 Last Modified 2009 band Use Application Form Page 2 2/20/2009 Last ModiSed Ap~licanjt Inf~ormation /,~ Name: ~ /'~ t\ i 11 t V ~+~ h ~ ~ ~~ E-mail address`s _ ~ (,C~ CX ~ ~'(/..5~ ~ ~r'! ~Cd ~~~ Address; a~~~ ~ ~I.~ \~ I ~0 ~(1~~fiL~ ~ ~ ~ f` ! U •t ~ /i ,~ ,.~ ~ .~.~ Street -~ Ciry State Zip Code Phone (w): Fax; Phone (I-I)• I prefer that my copy ofstaffreports be sent by.• 1B~ Class Mail ~ Fax ~ E-mail ~ (Check one) Sigtiat<irei Print Name; Date: Property Owner Information Same asAppllcanr ~ Different, asbelow ~ (Check one) Name: E-mail address: Address: Street City State Zip Code Phone (w): Fax: Phone (I~• I prefer thatmy copy ofstaffreports be sent by.• 13~ Class Mail ~ Fax ~ E mail ~ (Check one) Signature: Print Name: Date: Billing Information Same asApplicant ~ Same as propettyOwner ~ Different, as below ~ (Check one) Name: E-mail address: Address, Street City State Zip Code Phone (w): Fax: Phone (FI): Signature: Print Name: Agreement to Pay Costs of Review: Date: It is the policy of the City of Elk River to require applicants for land use approvals and licenses to reimburse the Ciry for costs incurred by the City in reviewing and acting upon applications, so that these costs are not borne by the taxpayers of the Ciry. These costs include all of the Ciry's out-of-pocket costs for expenses, including the City's costs for review of the application by the City's environmental Consultant, City Engineer, City Attorney, or other consultants, recording fees, necessary publication costs excluding public hearing notices, and may also include a charge fox extra staff time to process particularly complex applications. The City will invoice the applicant for these costs as they are incurred, and payment will be due within thirty (30) da}=s. If payment is not received as required by this agreement, the City= will suspend the application re~riew process and may deny the application for failure to comply with the requirements for processing the application, Payment for costs will be required whether the application is granted ox denied. The undersigned has received the Ciry's policy regarding the payment of costs of review, understands that reimbursement to the Ciry of costs incurred in reviewing the application will be required as set forth in the policy, agrees to reimburse the City as required in the policy and make payment when billed by the City, and agrees that the application may be denied for failure to reimburse the City for costs as provided in the policy. 5ignat[~g~ J! ,EP~ ~~. ~./`•iC/~=-~(_.(i~/i•- Date: -~~~0/d Print Name: ~ t" ~ W Q ~~'i° ~ J S:\PLANNING MAIN\Adnun\Application Forms\Land Use Application Form 2009.doc CITY OF ELK RIVER AGREEMENT FOR ISSUANCE OF AMENDED CONDITIONAL USE PERMIT THIS AGREEMENT, entered into and effective this 16th day of Februazy, 2010 by and between the CITY OF ELK RIVER, a Minnesota municipal corporation, (hereinafter referred to as the City), and ELK RIVER LANDFILL, INC., a Minnesota corporation (hereinafter referred to as the Permittee), which is a wholly owned subsidiary of Waste Management, Inc. a Delaware corporation, provides as follows: WHEREAS, the Pel7ruttee owns the Teal properties described on Exhibit A attached hereto (hereinafter referred to as the Landfill Property), situated in the City of Elk River; and WHEREAS, Permittee has been operating a landfill on the Landfill Property prior to January 20, 1987, and is currently operating a landfill at that location (the Landfill); and WHEREAS, the City adopted an amendment (the Amendment) to its zoning ordinance authorizing the designation of a Solid Waste Facility (SWF) district effective January 20, 1987; and WHEREAS, prior to the adoption of the Amendment, landfill use was not a permitted or conditional use in any zoning district within the City; and WHEREAS, Permittee's landfill operation on the Landfill Property was a nonconforming use prior to the adoption of the Amendment; and WHEREAS, the appropriate and lawful regulation of the use of land for landfill purposes within the City is a matter of important public need and interest; and WHEREAS, the residents of the City could be adversely affected by the unregulated operation of the Landfill; and WHEREAS, the City rezoned the Landfill Property to SWF district and issued a Conditional Use Permit and Solid Waste Facility License for the Landfill operation in October, 1988; and WHEREAS, the Perrnittee applied for and on July 20, 1998 the City approved an amendment and renewal of the Solid Waste Facility License and Conditional Use Permit to pel.~rnit construction of additional cells at the Landfill; and WHEREAS, the City Council detei7nirled that for reasons related to public health, safety, and welfare the final elevation of the Landfill should be limited to no more than 1120 feet above Mean Sea Level (MSL); and WHEREAS, the permittee agreed to a final elevation of no more than 1120 MSL; and WHEREAS, the Permittee applied on January 21,1999 to the City for amendment and renewal of the Solid Waste Facility License and Conditional Use Permit to permit the construction of additional cells at the Landfill; and WHEREAS, the Permittee applied on November 19, 2001 to the City for an amendment of the Solid Waste Facility License and Conditional Use Pelanit to permit the constl.-uction of a demolition debris cell at the Landfill; and WHEREAS, the Pelanittee applied on March 15, 2004 to the City for an amendment of the Solid Waste Facility License and Conditional Use Permit; and WHEREAS, the Permittee has applied on Apri121, 2008 to the City for an amendment of the Solid Waste Facility License and Conditional Use Permit for the Landfill; and WHEREAS, the Permittee has applied on Februal_y 17, 2009 to the City for an amendment of the Solid Waste Facility License and Conditional Use Permit for the Landfill; and WHEREAS, the Permittee has applied on December 28, 2009 to the City for an amendment of the Solid Waste Facility License and Conditional Use Permit for the Landfill; and WHEREAS, the City of Elk River Planning Commission and City Council have held hearings on the request to amend the Conditional Use Permit, at which hearings all citizens of the City of Ella River and other interested parties have had the opportunity to be heard. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Ells River, that Elk River Landfill, Inc., is hereby granted an amended conditional use permit for landfill and related operations on the Landfill Property described above, subject to the terms, conditions and qualifications hereinafter stated, to wit: 1.) Scope and Conduct of Landfill Operations. The operation of a solid waste landfill may be conducted on the Landfill Property in conformance with existing statutory and regulatory authority and requirements of the City, Sherburne County (the County), and the Minnesota Pollution Control Agency (MPCA); and in accordance with authorization and limitations contained in: (01) the current MPCA Solid Waste Permit No. 74 issued to the Permittee; (02) the current Sherburne County Solid Waste Landfill License of the Permittee; S:\PLANNING MAIN\Case Files\CUP\CU 10-021;R Landfill\LANDFILi, CUP 2010 2 1G 10 CC veision.DOC Page 2 (03) the current City Solid Waste Facility License of the Pei7nittee; and (04) this Permit. Landfill operations may be conducted on the Landfill Site only in accordance with the plans, descriptions and reports incorporated in said permits and licenses. Provided, however, that the entire Landfill shall have a final elevation of no more than 1120 feet above MSL including final cover, as provided in the Long Term Development Plan submitted to the City dated March 1997, and as revised on April 15, 1997. Any changes made to the plans, descriptions, reports, permits and licenses, including MPCA Solid Waste Pei7nit No. 74 and the County License, shall also be reviewed and approved, approved with modification, or disapproved by the City as descixbed in the current License issued by the City. 2.) Scope and Conduct of Related Operations. (01) Recycling Centex. The operation of a recycling center on the Landfill Property maybe conducted, if in conformance with all applicable tei7ns and conditions of this Permit, subject to the following conditions: (a) The operation of the recycling center shall comply in all respects with all applicable requirements of the City Code of Ordinances and all applicable federal, state, and county laws and regulations. (b) The recycling center shall be located and operated as shown on plans submitted by Permittee and approved by City staff. The recycling center may accept additional materials, including household hazardous wastes, provided that Licensee's plan for handling additional materials and any changes to the recycling center shall first be approved in writing by the City. (c) The recycling center shall be operated by Pef7nittee. Operation of the recycling center by a different operator shall require the prior written approval of City staff. Any different operator of the recycling center must comply with all of the tezYns and conditions of this Permit. (d) Permittee shall place appropriate signage on the Landfill property to direct citizens to the location of the recycling center. (e) Used oil recycling areas shall be within an enclosed building with an impei~.neable floor and containment area, as approved by staff. (f) Battery storage shall be within an enclosed building with an impermeable floor and containment area suitable for battery acid, as approved by staff. (g) Battely, paper and oil storage areas shall be separated to reduce fire potential, as approved by the City Fire Chief. (h) Permittee shall have a regular schedule for appliance pick-up, to be approved by City staff. S:\PLANNING MAIN\Case Files\CUP\CU 10-021;8 Landfill\LANDFILL CUP 2010 2 16 10 CC version.DOC Page 3 (02) Yard Waste Composting: The operation of a yard waste composting Facility on the Landfill Property within the City limits may be conducted, if in conformance with all applicable terms and conditions of this Permit, subject to the following conditions: (a) The operation of the yard waste composting facility shall comply in all respects with all applicable requirements of the City Code of Ordinances and all applicable federal, state, and county laws, and regulations. (b) The yard waste composting facility shall be located and operated as shown on plans submitted by Permittee and approved by City staff. (c) All plastics shall be removed fiom yard waste brought to the facility before composting. (d) All municipal solid waste must be immediately removed from yard waste and landfilled. (e) The yard waste composting facility must be operated in such a manner as to keep odors to a minimum. If odor becomes a problem staff may require more frequent turning of compost piles and/or watering to ensure that the compost remains aerobic and breaks down as quicldy as possible. (f) The maximum amount of yard waste which may be accepted is 100,000 cubic yards per year. (g) Positive drainage away from the compost area must be implemented, as approved by City staff. (h) Yard waste and /or compost may not be used as daily cover for the landfill.. (i) That Permittee is in strict compliance with all other terms, conditions and requirements of this Conditional Use Permit, including specifically, but not limited to, the operational and environmental monitoring requirements of sections 4, 6, and 7, and the requirements of sections 17 and 25 to make prompt payment of all fees and costs due to the City. No yard waste may be accepted at the yard waste composting facility if this condition is not complied with. Pel.~mittee must immediately stop accepting yard waste upon written notice from the City that there is a violation of this condition. (03) Other Related Operations. No other operations or acti~rities, whether or not related to the Landfill, shall be permitted or allowed on the Landfill Property unless this Permit is Est amended to specifically allow such operations and to specify the applicable conditions, except mining activities or other operations licensed or permitted separately by City. 3.) Buffer Zone/Screening: A Buffer Zone shall be established within the perimeter of the Landfill Property around the waste disposal areas of not less than 200 feet, except on the north side. Within this Buffer Zone, no waste disposal may occur. The Landfill shall develop an inventory of S:\PLANNING MAIN\Case Piles\CUP\CU 10-02 EI2 Luidfill\LANDPILL CUP 2010 2 16 10 CC version.DOC Page 4 significant trees within the buffer zone. The preservation of bees within the buffer zone shall be provided for during the construction, operation, and be included in the end use plan to be submitted for approval by December 31, 2011 by the City. 4.) Specific Additional Operational Reduirements. (01) Leachate Transmission Pipes,. Leachate transmission pipes shall be designed to ensure that double containment and adequate leak detection exists as approved by the MPCA, County and City. Pet~nittee shall verify to the City evea_y four (4) years that the existing Leachate transmission pipes do not leak. (02) Backup Leachate Pumps. Permittee shall maintain backup a pumps for use in the event of pump failure at the Leachate sump, wet well and Leachate storage tank on-site. As an alternative, the permittee shall maintain provisions for restoring temporary Leachate pumping within a 24-hour period and adhere to the current "Leachate Management Plan" as approved by MPCA. (03) Leachate Holding Tank. Pei7nittee shall ensure that the Leachate-holding tank is pumped out on a regular schedule. It shall be a violation of this Permit to allow Leachate to collect on the liner to a depth exceeding one foot due to the Leachate-holding tank being full. (04) Leachate Recirculation. Permittee shall conduct Leachate Recirculation pursuant to MPCA, County and City regulations. In the event that any operational problems occur from Leachate recirculation, the Pertnittee shall immediately cease Leachate recirculation and revert to prior method of Leachate recirculation unless and until another remedy for the problem is approved by the City. (05) Gas Collection System. Permittee shall conduct active landfill gas collection in accordance with approved plans and shall construct additional phases of the control system at the time of final cover construction. (06) Phase IV Water Ouality Monitoring Work Plan. The Phase N Water Quality Monitoring Work Plan which describes the sampling frequency, parameters, protocols and reporting frequency for landfill gas, Leachate, Leachate piezometers, Leachate lysimeter, residential wells, groundwater monitoring wells and surface water shall be updated annually to reflect changes in the monitoring systems. The monitoring plan shall yield adequate information for assessing the effectiveness of the landfill. gas control system in decreasing VOC contaminants in the groundwater. (0'7) Annual Active Gas Control System Assessment. Annually assess the effectiveness of active landfill gas control operations based on the results of groundwater and landfill gas monitoring. Incorporate the evaluation in the MPCA Annual Report for the landfill. (08) Construction Oualit~J Assurance Reports. A Construction Quality Assurance (CQA) Report shall be submitted to the City prior to the placement of waste on newly constructed lined areas. A CQA report shalt also be submitted for Landfill areas which receive final cover. . A CQA report shall also be submitted for installation of Leachate recirculation drainfield areas to document position within the cell, suitable base contours and piping elevations The report shall demonstrate that the work is completed to the plan specifications. The Report shall be certified by an engineer registered in the State of Minnesota and shall include but not be limited to: S:\PLANI3ING MAIN\Case files\CUP\CU 10-021;8 Landfill\LANDFILL CUP 2010 2 16 10 CC version.DOC Page 5 (a) All relevant construction specifications; (b) All shop drawings for prefabricated components; (c) Photo documentation of all critical aspects of construction; (d) Deflection testing results for leachate collection and transmission pipes; (e) Narrative description of all as-built variances from the plans and/or specifications; (f) As-built cross-sections of the liner sub grade; (g) As-built elevations for all pipe inlets and outlets and pump-on/pump-off controls; (h) Completed manufacturer warranties; (i) All physical testing results for soils and other materials used for construction. (10) Pe17nittee shall notify the City at least two (2) days in advance of liner barrier layer installation or final cover barrier layer installation. The Permittee shall assist the City in arranging inspection of the site at any reasonable time the City requests. The Permittee shall keep the City informed of ongoing construction progress and shall specifically notify the City of significant changes encountered in the geological, hydrological, or construction conditions. The City may reasonably requite work which is covered or otherwise obscured prior to City inspection, to be re-excavated for City Inspection. - (11) Temporary Fencing - On-Site Litter Control. Litter control fences shall be maintained around the working areas} of the Landfill to prevent die blowing of paper or other litter on or off site. The Pel7nittee shall assign employees to engage in a regular and routine program to inspect the Landfill Site and clean up areas where litter accumulates on dze Landfill Site. (12) Permanent Fencine. The Permittee shall maintain a minimum six-foot high fence around the perimeter of the site if and when necessary, based upon reasonable concerns regarding public safety or trespassing or uncontrolled dumping. (13) Public Information. The Permittee shall maintain a sign at the entrance to the Landfill Site which describes in common terms the substances which may be disposed at the Landfill and those substances which may not be accepted for disposal. (14) Sanitary Facilities. Adequate sanitary facilities and shelter shall be provided for site personnel. (15) Electrical Service. Adequate electrical service shall be provided at the site for operations and repairs. (16) Fire Fighting_ Fite fighting equipment including at least one piece of heavy equipment, fire extinguishers in all machines working in the Landfill., and a water truck shall be kept available on the site during the active life of the Landfill. The self-contained breathing apparatus purchased for the City Fire Department shall be available at the Fire Department for use by permittee on a temporary S:\PLANNING MAIN\Case Files\CUP\CiJ 10-02 J;R Landfill\LANDFILL CUP 2010 2 16 10 CC vexsion.DOC Page 6 basis, as approved by the Fire Chief. Permittee shall make a landfill operator available at the request of the City Fite Chief to consult and advise the fue department about landfill fire fighting issues. (17) Safety Equipment. Emergency first aid equipment consisting of at least one first aid kit kept near the working face, and at least one shower on site available to all personnel and customers shall be supplied. At least one of every four landfill personnel shall be trained in first aid and CPR. (18) Water. A potable water supply shall be available fox site personnel. (19) Storage. Adequate on-site shelter shall be provided for maintenance and storage, sufficient to supply the equipment regtured by this section, during cold weather operations. (20) Vehicle Stacking Facilities. Adequate vehicle stacking facilities shall be provided to ensure that no vehicle desiring entry into the site shall have to wait outside the perimeter of the Landfill Property. (21) Communication. Adequate communication facilities shall be provided for emergency purposes. (22) Securi .Agate shall be provided at the entrance to the site and kept locked when an attendant is not on duty. (23) Haul Roads. An all-weather haul road shall be provided to the unloading area and watered On a regular basis. (24) Adec~uat~Eauipment. Adequate equipment shall be supplied capable of spreading and compacting the refuse as received. At least one machine capable of covering the working face, in its entirety at the end of the day, shall be supplied. (25) Information Display. Subject to approval by the City Council the Permittee shall maintain at each entrance to the Landoll Property a sign stating the name of the facility, the schedule of days and hours the facility is open to the public, prices for use of the facility, the Minnesota Pollution Control Agency Permit number and the penalty for nonconforming dumping. {26) Small-Load Dumping Site. The Perlnittee shall, doling all hours of operation maintain and operate a separate suitable and safe disposal area for the dumping of small loads by pickup trucks, cars, and trailers. This separate site shall be located and operated with due regard for the nature of the vehicles bringing such loads, and the normal frequency of such dumping. (27) Oak Wilt Prevention. As a method to prevent oak wilt, Permittee shall not conduct any tree removal operations at the landfill Property between April 15 and July 15 each year. In addition, oak stumps shall be removed prior to April 15 each year. When removing trees and stumps, Permittee shall prevent damage to remaining trees. (28) Leachate Recirculation. The Permittee may conduct Leachate Recirculation as provided fox in Subparts {01) - (04) above. S:\PLANNING MAIN\Case Files\CUP\CU 10-02 ER Landfill\LANDFILL CUP 2010'2 16 10 CC version.DOC Page 7 (29) Cell 17. The Landfill. shall submit a narrative to supplement the "Cell 17 Perimeter Berm Base Grades" Plan dated February 2010 which describes the construction techniques and schedule for side slope construction. The narrative shall identify the provisions for surface water drainage and the preservation of the buffer area. (30) Alternative Cover. "Alternative Cover" shall be defined as any suitable clean cover material other than that of Clean Earth Fill. Alternative intermittent and intermediate cover material may be used if such cover material is suitable for compaction, capable of supporting vegetation, and meets MPCA standards set forth in MN Rule 7035.2815, subpart 6, and Elk River Landfill's Industrial Waste Management Plan. (31) End Use Plan. The Landfill shall submit a revised End Use Plan to the City by December 31, 2011 which indicates passive recreational use of the Landfill Property following final closure of the Landfill. 5.) Off-Site Litter Control. The Perinittee shall engage in a regular and routine litter maintenance and removal program extending one-half mile north and south of the entrance to the Landfill and to any other areas adversely impacted by debris related to Landfill operations as may be determined by the City. Litter shall be removed from these areas not less than once per week and more often if necessary because of spills or complaints from neighboring property owners, and ensure that these areas are kept free of litter generated by truck traffic traveling to and from the Landfill. In addition, Permittee shall inspect all trucks leaving the Landfill to ensure that they are either fully enclosed or covered, and/or clean, and will not spread litter on suuounding streets and roadways as they leave. In the event that Permittee fails to remove litter within forty-eight (48) hours of notice of accumulation of litter by the City, the City may cause such litter to be removed. The City shall bill the cost of such removal to the Permittee, which shall remit payment within thirty (30) days of the date of such billing. 6.) Hours of operation. The landfill shall not be operated between 7:00 p.In. and 6:00 a.m. The landfill. may accept waste during off hours only under the following circumstances: (a) The wastes have been tested and approved for disposal; (b) Acceptance is necessary during off hours because of extraordinary circumstances; (c) Each instance of off hour acceptance has received the prior approval of the City Building and Environmental Administrator and such approval was granted during City business hours; and (d) Each instance of off hour acceptance is documented in a letter sent by the Landfill to the Building and Environmental Administrator within five business days of the instance of off hour acceptance. 7.) Site Environmental Monitoring. (01) On-site Groundwater. The Pextnittee shall perform on-site water quality testing at the monitoring wells in the manner required by the MPCA permit. The wells shall meet current Department of Health Well Code Standards. The Water Quality Report shall be submitted to the City when it is submitted to the MPCA. S,\PLANNING MAIN\Case Piles\CUP\CU 10-02 ER Landfill\LANDPILL CUP 2010 21G 70 CC version.DOC Page 8 (02) Surface Water Oualit~ The Permittee shall have surface water quality tests performed in conjunction with sampling quarterly events when water is present. (03) Off-Site Groundwater Quality. The Permittee shall annually sample the individual private wells identified in the Phase N Water Quality Monitoring Work Plan required by section 4(05). All private wells shall be analyzed for pH, COD, ammonia, chlorides, specific conductance, and volatile organic compounds (MDH method 465C and EPA method 601, 602). (04) Modification. The testing programs specified in this Section 7 may be modified by City staff if City staff reasonably determines there exists a need for additional wells to be tested or additional parameters to be analyzed, based upon water or air qualitjT test results indicating the presence of contamination. 8.) Hydrogeologic Investi ag tion. The investigation of the hydrological and geophysical characteristics of the site shall be continued and any other new information relating to the hydrogeologic impact of the site shall be reported to the City . Hydrogeologic reports shall be updated, amended, and modified as warranted by newly discovered or additional data acquired in the continued hydrogeologic investigation. The Permittee shall also notify City at least two (2) days in advance of any soil boring or well construction required by this Permit. The Perinittee must conduct additional contaminant investigation and monitoring as requested by the MPCA in the vicinity of P304C, P320 and an area southeast of P314C. 9.) Dust. Noise, and Odor. Fugitive dust emissions off-site shall be controlled at the Landfill site as necessary by undertaking. thefollowing: load surfaces within the Landfill Site shall be wetted with _. water or an appropriate chemical whenever off-site dust levels become unreasonable as determined by the City Environmental Administrator. Dust pollutives shall be utilized to the extent necessary on cover material such as stockpiles to reduce wind erosion as well as on other exposed surfaces as appropriate. Cover compaction and revegetation activities shall be undertaken promptly on the completion of various fill areas and vegetative cover. capable of quick growth shall be utilized. Plantings of bushes and trees shall be installed if needed to buffer the Landfill Site and minimize wind erosion. All equipment and vehicles utilized at the Landfill Site shall be periodically inspected and maintained to minimize noise. Vegetative barriers along the boundaries of the Landfill Site shall be utilized to minimize off-site noise unpacts. Applicable state standards for noise pollution shall not be exceeded by the Landfill operation, equipment, vehicles, or machinery. The Permitee agrees that it will use best management practices to control against odors. The Environmental Administrator may make recommendations regarding possible odor controls. If a verified odor problem is ongoing, both parties agree to institute good faith negotiations to minimize the odor problem. If in the event that the City receives ten or more complaints within asix-hour period relating to a single odor description and this odor complaint has been verified by both City and Permitee and identified as coming from the Facility, the Permitee shall cease such activity(s) that are the direct cause of the odor(s). Normal activity(s) shall not resume until the Permitee has, to the satisfaction of the City, fully mitigated against such odor(s). S:\PLANNING MAIN\Case Piles\CUP\CU 10-02 ER Landfill\LANDPILL CUP 2010 2 16 70 CC vexsion.DOC Page 9 10.) Closure. Within six (6) months of a written demand by the City, but in no event later than one (1) year prior to the date projected for cessation of landfill operations, the Permittee shall submit to the City for approval an updated closure and post-closure plan for the Landfill Site. 11.) Insurance. The Permittee shall secure and maintain insurance from an insurance company acceptable to the City and authorized to write casualty insurance in the State of Minnesota which will protect the Permittee, its agents and employees, and the City from claims for bodily injwy, death, or property damage which may arise from the operations on the Landfill Site. The Permittee shall file a certificate of insurance or a certified copy of the insurance policy with the City. Such insurance policy shall contain a clause providing that it shall not be cancelled by the insurance company without thirty (30) days' written notice to the City of intention to cancel. The following coverages shall be provided in amounts not less than those specified; (01) Public liability, general liability, loading and unloading, personal injury, and property damage: (a) $1,000,000 per claimant (b) $1,000,000 per occurrence (c) $1,000,000 annual aggregate (02) Automobile and t1_~uck public liability, personal injury, and property damage, including owned and non-owned vehicles with a $1,000,000 minimum limit. (03) The City map require additional insurance be provided by the Permittee if market conditions change such that additional coverage become economically practicable. The insurance limits required by this section shall be reduced if these insurance limits are not reasonably and economically available. For the purposes of this subsection "economically practicable," "reasonably" and "economically available" shall be determined by the insurance coverages affected by the Minnesota Joint Underwriters Association or the readily available private insurance market. 12.) Bonding (01) The Pexmittee shaIl furnish a surety bond in favor of the City in the amount of Three HuncU:ed Thousand Dollaas ($300,000) to run continuously (annual renewal allowed) until all landfill operations and closure activities are completed to ensure compliance with the terms and conditions of this Conditional Use Permit. Such bond shall be made by an insurance company or other financial institution acceptable to the City and shall be in a form acceptable to the City and its attorney. The bond shall be subject to cancellation by the obligor by giving one hundred twenty (120) days' prior written notice to the City. The Permittee shall renew each such bond no more than sixty (60) days after any such written notice, and failure to so renew the bond shall be an event of default of the obligations of the Permittee and shall constitute ground for immediate and automatic revocation of this Permit. Said bond shall provide that if the Permittee refuses to obey any of these requirements or to any of the acts required by this Conditional Use Permit or for any reason ceases to operate or abandons the landfill, and the City is required to expend monies or labor or material to restore the Landfill 5:\PLANNING MAIN\Case Files\CUP\CU 10-02 ER Landfill\LANDFILL CUP 2010 21G 10 CC version.DOC Page 10 Site to the condition and requirements required by this Conditional Use Permit, the obligor shall reimburse the City for any and all expenses incurred to remedy the failure of the Perlnittee to comply with this Permit, and the obligor shall indemnify and save the City harmless from all losses, costs, and charges that may occur to the City because of any default by the Permittee. The bond may be in a form exercisable by both the City and the County provided that such exercise feature allows its use on instruction by either or both the City or County. (02) In the event this, or any subsequent permit is revoked or the Permittee closes operation of the landfill for any reason, including but without limitation, order of the court or other agency of competent jurisdiction, banlil:uptcy, insolvency, or abandomnent, the Permittee shall immediately proceed to close, cover, and grade the Landfill Site according to an environmentally sound closure plan which shall be approved by the City and which shall comply with all requirements of the MPCA and Sherburne County relating to final closure. In the event the Permittee fails to comply with the terms of this subparagraph (02), the City may, upon ninety (90) days' prior notice to the Permittee, enter into the property and perform all such obligations, the cost of which shall be borne by the Permittee, or, in default thereof, by its surety. 13.) Applicabili of Conditional Use Permit. This Permit shall apply to the entire Landfill Property within the City limits. This Conditional Use Pemvt shall run with the real property and apply to the Permittee, its successors, and assigns. 14.) Permit Period. This Permit shall be in force unless amended, revoked or otherwise terminated or until the Landfill operations authorized herein are completed and the Landfill is closed in compliance with the closure plan, whichever comes ftrst. 15.) Violation of Conditions. If the Permittee or its successors or assigns violates any term or condition imposed by this Conditional Use Permit, or any solid waste facilities license issued for operation of the Landfill, this Conditional Use Permit may be revoked and terminated. Without limiting the foregoing, the violation of any statute, regulation, ordinance, or permit condition imposed by lawful governmental authority and governing operations on the Landfill Property is grounds fox suspension, revocation or termination of this Conditional Use Permit. The change, alteration, or amendment of any such statute, regulation, ordinance, or permit condition by any governmental authority other than the City shall not excuse the Permittee from compliance with statutes, regulations, ordinances, or permit or license conditions in effect on the date of the original issuance of this Permit unless compliance is waived or excused by the City Council. The City shall not unreasonably refuse to waive or excuse compliance with existing permit or license conditions. 16.) Documents, Reports, and Maps. Copies of all documents, reports, and maps which are supplied tO the MPCA or to Sherburne County shall also be supplied to the City, at the same time. 17.) Charges and Fees. The Permittee agrees to pay to the City the City's reasonable costs for administering, enforcing, modifying and amending this Conditional Use Permit, as follows: (01) Permittee shall pay one hundred percent (100%) of the City's costs for processing renewals, amendments or proposed amendments to this Permit; and S:\PLANNING MAIN\Case Files\CUP\CU 10-02 ER Landfill\LANDFILL CUP 2010 2 16 10 CC vexsion.DOC Page 11 (02) Permittee shall pay one hundred percent (100%) of the City's costs fox administering and enforcing the terms of this Permit, including costs for reviewing Permittee's compliance with the terms and conditions of this Permit, costs for bringing Perinittee into compliance with the terms and conditions of this Permit (including legal costs); and City costs incurred for review of Perrnittee initiated requests such as "co-disposal" approvals, etc. 18.) On-Site Inspection. The City may inspect the Landfill Site for the purposes of examining and copying nonconfidential records; conducting inspections, surveys, investigations, monitoring, or sampling; and otherwise obtaining necessary information pertaining to the construction, operation, and environmental effect of the disposal facility, control equipment, and control materials. Inspections shall be conducted during normal business hours except in the event of an emergency. City personnel or agents performing the inspection will notify personnel at the landfill office at the tune of inspection. Permittee shall promptly notify the City of the name of an authorized person to be notified and provide access to the Landfill in case of emergency. The City shall be notified by the Permittee immediately upon the occurrence of any explosion, fire, or other emergency at the Landfill; upon the discovery, release or spill of the hazardous or dangerous materials, as defined in the City of Ella River Solid Waste Ordinance, at the Landfill; and of any violations of the conditions of this Permit. 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. Tlus letter may be revised or supplemented by City staff from time to time as necessary to address the City's needs for notification. 19.) Indemnity. The Permittee shall indemnify, defend, and hold the City harmless from all claims, demands, and/or actions, legal and/or equitable arising from the operations on the Landfill Site. 20.) Workers Compensation. The Permittee shall carry in a company authorized to transact business in the State of Minnesota a policy of insurance fulfilling all requirements of the Worker's Compensation Act, including all legal requirements for occupational diseases, or self-insure for the above. 21.) Split Samples. The Permittee shall notify the City forty-eight (48) hours before any sampling of groundwater or surface water and allow the city to obtain split samples of such waters. 22.) Right to Require Performance. The failure of the City, at any time, to require performance by the Permittee of any provisions hereof shall in no way affect the right of the City thereafter to enforce the same. Nor shall waiver by the City of any breach of any of the provisions hereof be taken or held to be a waiver of any succeeding breach of such provision or as a waiver of any provision itself. 23.) Sevexab~_ If any provision of this Conditional Use Permit shall be declared void or unenforceable, the other provisions shall not be affected, but shall remain in full force and effect. 24.) Amendment. This Permit shall not be considered modified, altered, changed, or amended in any respect unless approved by the City Council as requited by City Ordinance. 25.) Fees. The Permittee shall pay the Host Community Fee (HCF) provided for in the Host Community Agreement entered into between the Per~nittee and City on September 15, 2003. If S:\PLANNING MAIN\Case Files\CUP\CU 10-02I/R Landfill\LANDFILL CUP 2010 2 16 10 CC vexsion.DOC Page 12 Pel7nittee fails to pay the HCF, for any reason, Permittee shall then pay the Landfill Abatement Surcharge authorized by Minn. Star. ~ 115A.921, Subd. 1 (the Surcharge). The Surcharge shall be paid directly to the City on a monthly basis, and shall be accompanied by an accurate report on the amount and type of solid waste disposed of in the landfill each day during the month. The Surcharge due for each month shall be received by the City no later than the thirtieth calendar day of the succeeding month. Failure to pay the Surcharge when due shall be cause for revocation of this Permit and shall be a violation of the conditions and requirements of this Permit. 26.) Conflicts. In any cases in which the Permittee believes there is an irreconcilable conflict between the requirements of this Conditional Use Permit and Laws, Rules, Regulations, or Order of any other governmental authority, the Permittee shall promptly notify the City Of such irreconcilable conflict and request an amendment of this Conditional Use Permit. Until such time as the City acts upon a request for an amendment to this Conditional Use Permit, which it may grant or deny in its sole discretion, the terms of this Permit shall govern all operations at the Landfill Site and shall prevail over the provisions of any document submitted by the Permit Holder and any requirements of state fox federal law. The City shall not unreasonably refuse to amend this Permit or waive compliance with this Permit in order t0 prevent violation of the law. 27.) Modification, Suspension, or Revocation of Permit. The violation of any of the terms of this Permit is ground for suspension or revocation hereof. Furthermore, the City specifically reserves the right, and the Permittee agrees that this Permit maybe amended, suspended, or revolted by the City as reasonably required to protect the public health, safety, welfare, and the environment. Specifically, but without limiting the foregoing, the City may amend, suspend, or revoke this Permit, whenever any reliable information is secured from a recognized source which demonstrates that the continued operation of the Landfill places the public health, safety, welfare, or the environment in jeopardy. Such information includes, but is not limited to the following: (01) A determination the (other than as indicated in the permit application) leachate generated at the Landfill Site is migrating to surface or ground waters in a way that threatens the public health, safety, or general welfare. (02) A determination that (other than as indicated in the permit application) standard recommended health advisory levels or intervention levels for drinking water (whether promulgated as of the date of this Permit or at a latex date, by the United States Environmental Protection Agency, the Minnesota Department of Health, the Minnesota Pollution Control Agency, or any other governmental agency promulgating standards for toxic wastes, hazardous wastes, pollutants, or contaminants in ground waters or surface waters) are being violated as a result of landfill operations. (03) A determination that the emission of landfill gas on or adjacent to the Landfill Site is creating or threatens to create a health or safety hazard to the community. Without limiting the forgoing, the City reserves the right to amend this Permit to impose upon the permittee the obligation to comply with any state or federal law or regulation relating to the operation of sanitary landfills, whether or not said laws or regulations apply by their terms to preexisting landfills. Suspension, revocation, or amendment of this Conditional Use Permit may be ordered only after a public hearing on such suspension, revocation, or amendment, preceded by thirty (30) days' S:\PLANNING MAIN\Case Files\CUP\CU 10-02 IJR Landfill\LANDFILL CUP 2010 21G 10 CC version.DOC Page 13 written notice to the Permittee, or at the time of consideration of renewal of this Permit, Notice of hearing shall include a statement of the proposed action by the City and the reasons therefore. THE CITY OF ELK RIVER: ATTEST: By: By: Tina Allard Its: City Clerk Stephanie Klinzing Its: Mayor ELK RIVER LANDFILL, INC. By: Debra Walters Its: District Manager S:\PLANNING MAIN\Case Files\CUP\CU 10-02 ER Landfill\LANllFILL CUP 2010 2 1G 10 CC veision,DOC Page 14 STATE OF MINNESOTA ss. COUNTY OF SHERBURNE ) The foregoing instrument was acknowledged before me this day of 2010, by Stephanie Klinzing, the Mayor of the City of EIk River, on behalf of the City of Elk River. Notary Public STATE OF MINNESOTA ) )ss. COUNTY OF SHERBURNE) The foregoing instrument was acknowledged before me this day of 2010, by Tina Allard, the City Clerk of the City of Elk River, on behalf of the City of Ella River. _- Notary Public STATE OF MINNESOTA ) ss. COUNTY OF SHERBURNE) The foregoing instrument was acknowledged before me this day of 2010, by Debra Walters, the District Manager of Elk River Landfill, Inc., a Minnesota corporation, on behalf of the corporation. Notary Public IS INSTRUMENT WAS DRAFTED BY: THIS INSTRUMENT WAS MODIFIED BY: Gray, Plant, Mooty, Mooty & Bennett 500 IDS Center 80 South 8`" Street Minneapolis, Minnesota 55402 The Community Development Department of the City of Ells River S:\PLANNING MAIN\Case Files\CUP\CU 10-02 ER Landfill\LANDI'ILL CUP 2010 2 16 10 CC version.DOC Page 15 EXHIBIT A PARCEL B That part of the Northeast Quarter of the Northwest Quarter of Section 3, Township 33, Range 26, described as follows: Commencing at the point of intersection of the North line of said Northeast Quarter of the Northwest Quarter with the Westerly line of the right-of--way of U.S. Highway No. 169; thence Southerly along said right-of--way, to intersect a line parallel with and 470 feet South of, as measured at right angles to, said North line of the Northeast Quarter of the Northwest Quarter said point of intersection being the actual point of beginning of the land to be described; thence west along said parallel line a distance of 558 feet; thence south at a right angle to intersect the south line of the said Northeast Quarter of the Northwest Quarter; thence East along said South line to intersect the said Westerly line of the highway right-of--way; thence Northerly along said highway right-of--way to the point of beginning, Sherburne County, Minnesota. PARCEL C The North 525 feet of the West Half of the Southwest Quarter of Section 3, Township 33, Range 26, according to the United States Government Survey thereof and situate in Sherburne County, Minnesota. AND The North 525 feet of that part of the Northeast Quarter of Southeast Qualaer of Section 4, Township 33, Range 26, lying East of the Great Northern Railway, AND that part of the East Half of the Northeast Quarter of Section 4, Township 33, Range 26, lying East of the Great Northern Railway, according to the United States Government Survey thereof and situate in Sherburne County, Minnesota. PARCEL E That part of the North half of the Northwest Quarter of Section 3, Township 33, Range 261ying Westerly of the following described real estate, to wit: Commencing at a point on the North line of the said North Half of the Northwest Quarter 650 feet distant West of the intersection thereof with the Westerly right of way line of U.S. Highway No. 169 as presently located and established; thence South and parallel with the West line of the said North Half of the Northwest Quarter to the South line thereof and there terminating, excepting therefiom the South 33 feet thereof, according to the United States Government Survey thereof and situate in Sherburne County, Minnesota. PARCEL F The Northwest Quarter of the Northwest Quarter of Section 3, Township 33 North, Range 26 West; and That part of the South Half of the Northwest Quarter lying West of U.S. Highway No. 169, and the Northerly 525 feet of that part of the East Half of the Southwest Quarter lying West of U.S. Highway S:\PLANNING MAIN\Case Files\CUP\CU 10-02 ER Landfill\LANDFILL CUP 2010 21G 10 CC vexsion.DOC Page 16 No. 169, all in Section 3, Township 33 North, Range 26 West, according to the United States Government Survey thereof and situate in Sherburne County, Minnesota. PARCEL H The West 92.70 feet of the North 470 feet of that part of the Northeast Quarter of the Northwest Quarter of Section 3, Township 33, Range 26, Sherburne County, Minnesota, lying east of a line described as Beginning at a point on the North line of said Northeast Quarter of the Northwest Quarter a distance of 650 feet west of the intersection of said North line with the Westerly right-of- way line of U.S. Highway No. 169; thence south parallel with the West line of the North Half of the Northwest Quarter to intersect the South line of said Northeast Quarter of the Northwest Quarter and there terminating. PARCEL I That part of the Northeast Quarter of the Northwest Quarter of Section 3, Township 33, Range 26, Sherburne County, Minnesota, lying south of the South line of the North 470 feet, as measured at right angles, thereof and lying west of the following described line: Commencing at the point of intersection of the North line of said Northeast Quarter of the Northwest Quarter with the Westerly line of the right-of--way of U.S. Highway No. 169; thence southerly along said highway right-of--way to intersect a line parallel with and 470 feet South of, as measured at right angles to, said North line of the Northeast Quarter of the Northwest Quarter; thence West along said parallel line a distance of 558 feet to the actual Point of Beginning of the line to be hereby described; thence South at right angles to intersect the South line of said Northeast Quarter of the Northwest Quarter and there terminating. S:\PLANNING MAIN\Case Files\CUP\CU 10-02 BR L1ndfi11\LANDFILL CUP 2010 2 1G 10 CC vexsion.DOC Page 17 CITY OF ELK RIVER SOLID WASTE FACILITY LICENSE AGREEMENT THIS AGREEMENT, entered into and effective this 16th day of February, 2010, by and between the CITY OF ELK RIVER, a Minnesota municipal corporation (hereinafter referred to as the City), and ELK RIVER LANDFILL, INC., a Minnesota corporation (hereinafter referred to as the Licensee). WHEREAS, Licensee made application to the City in 1988 for the issuance of a solid waste facilities license, pursuant to the Elk River Code of Ordinances, for the operation of a sanitary landfill (hereinafter referred to as the Landfill) on the real properties described on Exhibit A attached hereto (hereinafter referred to as the Landfill Property) situated in the City of Elk River, for which the City Council directed the issuance of a conditional use permit contemporaneous with the issuance of a license; and WHEREAS, the City Council directed the issuance of a solid waste facilities license to Elk River Landfill, Inc. (Licensee) conditioned upon compliance with the conditions set forth in the October 3, 1988 License Agreement, in order to mitigate the potential adverse affects of the Landfill on the general welfare of persons and property within the City; and WHEREAS, the License was has subsequently been renewed, with the most recent renewal occurring on February 17, 2009; and WHEREAS, the City Council has determined that for reasons related to public health, safety, and welfare the final elevation of the Landfill should be limited to no more than 1120 feet above Mean Sea Level (MSL); and WHEREAS, the Licensee has agreed to a final elevation of 1120 MSL; and WHEREAS, Licensee has applied for renewal of the Solid Waste Facility License on December 28, 2009; and WHEREAS, the City Council of the City of Elk River has held a hearing on the proposed amendment and renewal of the Solid Waste Facility License, at which hearing all citizens of the City of Elk River and other interested persons have had the opportunity to be heard. NOW, THERFORE, the City grants to the Licensee, and the Licensee accepts an amended and renewed solid waste facilities license for the operation of a sanitary landfill and related activities on the Landfill Property subject to the terms, conditions and qualifications hereinafter stated, to wit: l.) Significant Persons. The person responsible for actual operation and maintenance of the landfill, to whom communications concerning this License should be addressed, is Debra Walters in her capacity as District Manager of Elk River Landfill, Inc. (ERL), whose address is 22460 Highway 169 NW, Elk River, MN 55330. ERL is a Minnesota corporation, whose registered address is 22460 Highway 169 NW, Elk River, MN 55330. ERL, which is a subsidiary of Waste Management, a Delaware corporation, whose address is 1001 Fannin, Suite 4000, Houston, Texas 77002. The following information shall be provided to the local fire and police departments as well as the Sheriff Debra Walters, District Manager 22460 Highway 169 NW Elk River, MN 55330 Worlc: 441-2464, fax: 441-2025 Mobile: (612) 270-2942 Mike Fleming Area Vice-President Waste Management W132 N10487 Grant Drive Germantown, WI 63022 (W) (262) 250-8702 Fax (262) 251-0240 2.) Scope and Conduct of Landfill Operations. The operation of a solid waste sanitary landfill inay be conducted on the Landfill Property u1 conformance with existing statutory and regulatory authority and requirements of the City, Sherburne County and the Minnesota Pollution Control Agency and in accordance with authorization and limitations contained in: (O1}the current MPCA Solid Waste Permit No. 74, issued to the Licensee; (02) the current Sherburne County solid waste landfill license issued to the Licensee; (03) the conditional use permit, as amended, issued by the City for the Landfill; and (04)this License. Provided, however, that the entire Landfill shall have a final elevation of no more than 1120 feet above MSL, including final cover, as provided in the Long Term Development Plan dated March 1997, and as revised on April 15, 1997. The Landfill shall also be operated and developed consistent with the following plans and reports which have been submitted to the City and/or the MPCA: 2 (O1) "New Recycling Facility Design Report and Operations Manual", January, 1991 (02) "MSW Operations Manual", September 1999, revised June 2001, February 2004, as it applies to the Landfill Property described on Exhibit A (03) "Household Hazardous Waste Management Plan", June 15, 1992 (04) NSPS Design Plan, June 2001 and Title V Air Pennit, January 18, 2006 as it applies to the Landfill Property described on Exhibit A (OS) "Leachate Recirculation Pennit Application", July 2009 as it applies to the Landfill Property described on Exhibit A (06) Closure, Postclosure and Contingency Action Plan for the MSW Area", February 2004, as it applies to the Landfill Property described on Exhibit A (07) "Stormwater Pollution Prevention Plan", January 2006 or as updated/revised (08) "Construction Quality Assurance Program", February 2004, as it applies to the Landfill Property described on Exlubit A. (09) "Phase IV Water Quality Monitoring Work Plan" (Revision #3) February 2002 as updated/modified. (10) "2008 Annual Report", January 2009 or as updated annually (11} "2008 Water Quality Report", February 2009 or as updated annually (12) "Long-Term Development Plan", March 1997, and as revised on April 15, 1997 to include a maximum final elevation of 1120 feet MSL (13) All Solid Waste License Renewals through the License dated February 17, 2009 (14) "Industrial Solid Waste Management Plan", Apri12008, as it applies to the Landfill Property described on Exhibit A and further conditioned upon submittal of annual reports describing the following: (a) Monthly and Annual Waste Disposal Volume. (b) Schedule of construction activities for the forthcoming year. (c) Type, Quantity and Source of Material to be Disposed. (d) Remaining permitted capacity 3 (e) Updated, full-size, contour map which indicates the elevations of all fill areas (fj Assessment of the Financial Assurances Plan. (g) Evaluation of the Water Monitoring System and a proposal for continued sampling and analysis. (h) Detailed evaluation of all water quality results by means of tables and graphs. (i) A groundwater contour map based on the previous years' groundwater level data. (15) Submittal for January 2000 License Renewal, revised June 2001, subject to the following conditions: (a) Leachate head shall not exceed a maximum of 12 inches for any liner. The Landfill shall monitor Leachate head levels weekly and submit results to the City quaz-terly. (b) The saanpiing and contingency action protocols for liner leaks shall be as outlined in the Phase IV Water Quality Monitoring Worlc Plan, revision #3 dated February 2003 as updated/revised. (c} The Construction Quality Assurance Program shall be amended to document compliance with MNDOT 3877.2B standards for sampling acid testing of topsoil. (d) Operation of the Active Gas Collection System shall be managed to mitigate landfill gas migration and ongoing ground water contamination from the unlined portion of the Landfill. (16} Ce1117 Perimeter Berm Base Grades Plan, February 2010. Any changes made to the above described plans, reports, MPCA Solid Waste Permit No. 74 and the County License shall also be reviewed and approved, approved with modification, or disapproved by the City. Minor modifications shall be reviewed by City staff. Major modifications shall be reviewed by the City Planning Commission and the City Council. The City may not unreasonably disapprove or unreasonably require modifications. The City may also make reasonable modifications to the conditions of the License based upon a submittal from the Licensee. The City shall respond to Licensee submittals on a timely basis, which shall be no later than formal MPCA time lines for review and comment for concurrent submittals. 4 3.) Scope and Conduct of Related Operations. (O1) Recyclin Cg enter. The operation of a recycling center on the Landfill Property maybe conducted, if in conformance with all applicable terms and conditions of this License, subject to the following conditions: (a) The operation of the recycling center shall comply in all respects with all applicable requirements of the City Code or Ordinances and all applicable federal, state, and county laws and regulations. (b} The recycling center shall be located and operated as shown on plans submitted by Licensee and approved by City staff. The recycling center inay accept additional materials, including household hazardous wastes, provided that Licensee's plan for handling additional materials and any changes to the recycling center shall first be approved in writing by the City. (c) The recycling center shall be operated by Licensee. Operation of the recycling center by a different operator shall require the prior written approval of City staff. Any different operator of the recycling center must comply with all of the teens and conditions of this License. (d) Licensee shall place appropriate signage on the Landfill Property to direct citizens to the location of the recycling center. (e) Used oil recycling areas shall be within an enclosed building with an impermeable floor and containment area, as approved by staff. (f) Battery storage shall be within an enclosed building with an impermeable floor and containment area suitable for battery acid, as approved by staff. (g) Battery, paper and oil storage areas shall be separated to reduce fire potential, as approved by the City Fire Chief. (h) Licensee shall have a regular schedule for appliance pick-up, to be approved by City Staff. (02) Yard Waste Composting. The operation of a yard waste composting facility on the Landfill Property within the City limits lnay be conducted, if in conformance with all applicable terms and conditions of this License, subject to the following conditions: (a) The operation of the yard waste composting facility shall comply in all respects with all applicable requirements of the City Code of Ordinances and all applicable federal, state, and county laws and regulations. (b) The yard composting facility shall be located acid operated as shown on plans submitted by Licensee and approved by City staff. (c) All plastics shall be removed from yard waste brought to the facility before composting. (d) All municipal solid waste must be immediately removed from yard waste and landfilled. (e) The yard waste composting facility must be operated in such a manner as to keep odors to a minimum. If odor becomes a problem staff may require snore frequent turning of compost piles and/or watering to ensure that the compost remains aerobic and breaks down as quicldy as possible. (f) The maxiinuin amount of yard waste which may be accepted is 100,000 cubic yards per year. (g) Positive drainage away from the compost area must be implemented, as approved by City staff. (h) Yard waste and/or compost inay not be used as daily cover for the landfill. (i) That Licensee is in strict compliance with all other terms, conditions and requirements of this License, including specifically, but not limited to, the operational requirements, perfonnance standards and envirorunental monitoring requirements of sections 4,6,7, and 8; and the requirement of sections 17 and 25 to make prompt payment of all fees due to the City. No yard waste maybe accepted at the yard waste composting facility if this condition is not complied with. Licensee must immediately stop accepting yard waste upon written notice from the City that there is a violation of this condition. {03) Other Related Operations. No other operations or activities, whether or not related to the Landfill, shall be permitted or allowed on the Landfill Property unless this License is first amended to specifically allow such operations and to specify the applicable conditions except mining activities or other operations licensed or permitted separately by the City. 6 4.) Specific Additional Operational Requirements. (01) Leachate Transmission Pipes. Leachate transmission pipes shall be designed to ensure that double containment and adequate leak detection exists as approved by the MPCA, County and City. Licensee shall verify to the City every four (4) years that the existing leachate transmission pipes do not leak. (02) Backup Leachate Pumps. Licensee shall maintain a backup pump for use in the event of pump failure at the leachate sump, wet well and/or leachate storage tank on-site. As an alternative, the licensee shall maintain provisions for restoring temporary leachate pumping within a 24-hour period and adhere to the current "Leachate Management Plan" as approved by MPCA. (03) Leachate Holding Tai~lc. Licensee shall ensure that the leachate holding tank is pumped out on a regular schedule. It shall be a violation of this License to allow leachate to collect on the liner to a depth exceeding one foot due to the leachate holding tank being full. Leachate Recirculation. The Licensee may conduct Leachate Recirculation pursuant to MPCA, County and City regulations. In the event that any operational problems occur from the leachate recirculation, the Licensee shall immediately cease leachate recirculation and revert to prior method of leachate management unless and until another remedy for the problem is approved by the City. (OS) Gas Collection S,, sue. Licensee shall conduct active landfill gas collection in accordance with approved plans and shall construct additional phases of the active gas control system at the time of final cover construction. (06) Phase IV Water Quality Monitoring Work Plan. The Phase N Water Quality Monitoring Work Plan which describes the sampling frequency, parameters, protocols and reporting frequency for landfill gas, leachate, leachate piezometers, leachate lysimeters, residential wells, groundwater monitoring wells and surface water shall be updated annually to reflect changes in the monitoring systems. The monitoring plan shall yield adequate information for assessing the effectiveness of the landfill gas control system in decreasing VOC contaminants in the groundwater. (07) Annual Active Landfill Gas Control Systein Assessment. Annually assess the effectiveness of active landfill gas control operations based on the results of groundwater and landfill gas monitoring and incorporate the evaluation in the MPCA Annual Report for the landfill. (08) Construction Quality Assurance Reports. A Construction Quality Assurance (CQA) Report shall be submitted to the City prior to the placement of waste on newly constructed lined areas. A CQA report shall also be submitted for 7 Landfill areas which receive final cover. A CQA report shall also be submitted for installation of leachate recirculation drainfield areas to document position within the cell, suitable base contours and piping elevations. The report shall demonstrate that the work was completed to the plan specifications. The Report shall be certified to by an engineer registered in the State of Minnesota and shall include but not be limited to: (a) All relevant construction specif cations; (b) All shop drawings for prefabricated components; (c) Photo documentation of all critical aspects of construction; (d) Deflection testing results for leachate collection and transmission pipes; (e) Narrative description of all as-built variances from the plans and/or specifications; (fj As-built cross-sections of the liner subgrade; (g) As-built elevations for all pipe inlets and outlets and puinp- on/pump-off controls; (h) Completed manufacturer warranties; (i) All physical testing results for soils aild other materials use in the construction (09) Licensee shall notify the City at least two (2} days in advance of liner barrier layer installation or final cover barrier layer installation. Licensee shall assist the City in arranging inspection of the site at any reasonable time the City requests. The Licensee shall keep the City informed of ongoing construction progress and shall specifically notify the City of significant changes encountered in the geological, hydrological, or construction conditions. The City inay reasonably require work, which is covered or otherwise obscured prior to City inspection, to be re-excavated for City inspection. (10) Temporary Fencing-On Site Litter Control. Litter control fences shall be maintained around the working area(s) of the landfill to prevent the blowing of paper or other litter on or off site. The Licensee shall assign employees to engage in a regular and routine program to inspect the Landfill Site and clean up areas where litter accumulates on the Landfill Site. (11) Permanent Fencing. The Licensee shall maintain a minimum six-foot high fence around the perimeter of the site if and when necessary based upon reasonable concerns regarding public safety or trespassing or uncontrolled dumping. (12) Public Information. The Licensee shall maintain a sign at the entrance to the Landfill Site which describes in common terms the substances which maybe disposed at the Landfill and those substances which may not be accepted for disposal. (13) Sanitary Facilities. Adequate sanitary facilities and shelter shall be provided for site personnel. (14) Electrical Service. Adequate electrical service shall be provided at the site for operations and repairs. (15) Fire Fi hg tiny. Fire fighting equipment including at least one piece of heavy equipment, fire extinguishers in all machines working in the Landfill, acid a water truck shall be kept available on the site during the active life of the Landfill. The self-contained breathing apparatus for the City Fire Department shall be available for use by the Licensee on a temporary basis, as approved by the Fire Chief. Licensee shall make a landfill operator available at the request of the City Fire Chief to consult gild advise the fire department about landfill fire fighting issues. (16) Safety Equibment. Emergency first aid equipment consisting of at least one first aid kit kept near the working face, and at least one shower on site available to all personnel and customers shall be supplied. At least one of every four landfill personnel shall be trained in first aid and CPR. (17} Water. A potable water supply shall be available for site personnel. (18) Storage. Adequate on-site shelter shall be provided for maintenance and storage sufficient to supply the equipment required by this section, during cold weather operations. (19) Vehicle Stacking Facilities. Adequate vehicle stacking facilities shall be provided to ensure that no vehicle desiring entry into the site shall have to wait outside the perimeter of the Landfill Property. (20) Cormnunication. Adequate communication facilities shall be provided for emergency purposes. (21) Security. A gate shall be provided at the entrance to the site and kept locked when an attendant is not on duty. (22) Haul Roads. An all-weather haul road shall be provided to the unloading area and watered on a regular basis. 9 (23) Adequate Equipment. Adequate equipment shall be supplied capable of spreading and compacting the refuse as received. At least one machine capable of covering the working face, in its entirety at the end of the day, shall be supplied. (24) Information Display. Subject to approval by the City Council, the Licensee shall maintain at each entrance to the Landfill Property a sign stating the name of the facility, the schedule of days and hours the facility is open to the public, prices for use of the facility, the Minnesota Pollution Control Agency permit number and the penalty for nonconforming dumping. (25) Screenin~/Buffer Strips. Visual screening of the Sanitary Landfill site, as required by the Conditional Use Permit for the Landfill Property and as approved by the City Council, shall be provided by the use of buffer zones, natural objects, trees, plants, seeded soil berms, fences, and other suitable means. (2b) Small-Load Dumping Site. The Licensee shall, during all hours of operation, maintain and operate a separate suitable and safe disposal area for the dumping of small loads by pickup trucks, cars, and trailers. This separate site shall be located and operated with due regard for the nature of the vehicles bringing such loads, and the normal frequency of such dumping. {27) Oak Wilt Prevention. As a method to prevent oak wilt, Licensee shall not conduct any tree removal operations at the Landfill Property between April 15 and July 15 each year. In addition, oak stumps shall be removed prior to April 15 each year. When removing trees and stumps, Licensee shall prevent damage to remaining trees. (28) Leachate Recirculation. The Licensee may conduct Leachate Recirculation as provided in Subparts (01 } - (04) above. (29) Cell 17. The landfill shall submit a narrative to supplement the "Cell 17 Perimeter Berm Base Grades" Plan dated February 2010 which describes the construction techniques and schedule for side slope construction. The narrative shall identify the provisions for surface water drainage and the preservation of the buffer area. (30) Alternative Cover. "Alternative Cover" shall be defined as any suitable clean cover material other than that of Clean Earth Fill. Alternative intermittent and intermediate cover material inay be used if such cover material is suitable for compaction, capable of supporting vegetation, and meets MPCA standards set forth in MN Rule 7035.2815, subpart 6, and Elk River Landfill's Industrial Waste Management Plan. 10 (31) End Use Plan. The Landfill shall submit a revised End Use Plan to the City by December 31, 2011 which indicates passive recreational use of the Landfill Property following final closure of the Landfill. 5.) Off-Site Litter Control. The Licensee shall engage in a regular and routine litter maintenance and removal program extending one-half mile north and south of the entrance to the Landfill and to any other areas adversely impacted by debris related to Landfill operations as maybe determined by the City. Litter shall be removed from these areas not less than once per week, aild snore often if necessary because of spills or complaints from neighboring property owners, and ensure that these areas are kept free of litter generated by thick traffic traveling to and from the Landfill. In addition, Licensee shall inspect all trucks leaving the Landfill to ensure that they are either fully enclosed or covered, aild/or clean, and will not spread litter on surrounding streets and roadways as they leave. In the event that Licensee fails to remove litter within forty-eight (48) hours of notice of accumulation of litter by the City, the City may cause such litter to be removed. The City shall bill the cost of such removal to the Licensee, which shall remit payment within thirty (30) days of the date of such billing. 6). General Performance Standards. The Licensee shall comply with the following performance standards and operating requirements: (O1) Hazardous Wastes Prohibited. No Hazardous Wastes shall be disposed of in the Landfill (02) Dangerous Wastes. No Dangerous Wastes (as defined in the Code of Ordinances for the City of Elk River) shall be disposed at the Landfill until a request to dispose of dangerous wastes has been submitted to the City as required by Chapter 604 of the City Code of Ordinances. The City shall respond to requests for permission to dispose dangerous wastes within fifteen (15) days from receipt of the request as appropriate. If a request to dispose of dangerous wastes is rejected by the City Environmental Administrator, or the City's authorized consultant/agent, the dangerous wastes may not be disposed at the Landfill. Licensee shay propose advance approval of proposed disposal of dangerous wastes by submitting to the City, for each waste, a statement identifying the waste type, generator name and address, volume, method of chemical analysis, chemical constituents, and disposal procedures proposed. This statement, and all requests to dispose of dangerous wastes, shall be submitted in the form required by the City. The City shay deny permission to dispose of Dangerous Wastes at the Landfill for one or more of the following reasons: (a) In the City's sole discretion, it would not be in the best interests of the public health, safety or general welfare of the citizens of Elk River to allow disposal of said wastes; 11 (b) In the City's sole discretion, disposal of said wastes would pose a threat to the environment. (c) Licensee and/or the operation of the Landfill is currently in violation of any of the terms, conditions, or requirements of this License including specifically, but not limited to, the operational requirements, performance standards and environmental monitoring requirements of Sections 4, 6, 7, and 8; and the requirements in Sections 17 and 25, to make prompt payment of all fees due the City. Licensee's "Industrial Solid Waste Management Plan, April 2008 or as updated/revised shall be complied with in all respects, subject to specific requirements of this License, and may not be modified or amended without the City's prior written approval. (03) Incorporation of State Standards. The Landfill shall comply with the required practices for inaintenan.ce and operation of landfills set forth in Minnesota Rules Parts 7001.0010 to 7001.0210; 7001.3000 to 7001.3550 and 7035.0300 to 7035.2875. (04) Compliance With ZoningL Ordinance Performance Standards. The operation of the Landfill shall fully comply with the performance standards and other requirements of Chapter 30 of the Elk River City Code, including specifically Division 5, Subdivision V thereof relating to performance standards for industrial uses. (OS} Supervision. An attendant shall be on duty at the site at all times while it is open for public use. Unloading of refuse shall be continuously supervised at the working face of the landfill. (06) O ep rating Records. Accurate records of daily waste disposal operations shall be maintained. Intake of Solid Waste in tons or cubic yards shall be recorded on a daily basis, in a manner acceptable to the City, and reported to the City on a monthly basis along with payment of the Fees required by Section 25 of this License. The volume and location of the disposal of Dangerous Wastes shall be recorded the day such disposal takes place and shall include the amount and type of waste disposed of, and the na~ine and address of the source of the waste. Waste disposal records shall be available during normal business hours, for review and inspection by the City. (07) Recording. A detailed description of the location of the completed Sanitary Landfill site shall be recorded with the County Register of Deeds within four months after approval of the closure of the landfill. This description shall include the general type and location of deposited Solid Waste, the location of phased or staged disposal of wastes, the type and number of lifts, original and 12 final terrain descriptions, site hydrogeologic conditions, and other pertinent characteristics of the completed sanitary landfill site. (08) Education Pro rg am. The Licensee shall: (a) Make available to all landfill users, including haulers and their customers, information which describes in common terms what is permissible and impermissible to dispose at the landfill. (b) Continue to conduct an employee training program designed to assist employees in identifying impermissible waste materials and to prevent their disposal at the landfill. The training program shall be reviewed with City staff and recommendations to improve the program shall be incorporated to the extent feasible. (09) Hours of O ern ation. The landfill shall not be operated between 7:00 p.m. and 6:00 a.in. The landfill inay accept waste during off hours only under the following circumstances: (a) The wastes have been tested and approved for disposal; (b) Acceptance is necessary during off hours because of extraordinary circumstances; (c) Each instance of off hour acceptance has received the prior approval of the City Enviromnental Administrator and such approval was granted during City business hours; and (d) Each instance of off hour acceptance is documented in a letter sent by the Landfill to the City Environmental Achninistrator within five business days of the instance offhour acceptance. 7.) Site Enviromnental Monitoring. (01) On-site Groundwater. The Licensee shall perform on-site water quality testing at the monitoring wells in the manner required by the MPCA permit. The wells shall meet current Department of Health Well Code Standards. The Water Quality report shall be submitted to the City when it is submitted to the MPCA. (02} Surface Water Ouality. The Licensee shall have surface water quality tests performed in conjunction with sampling quarterly events when water is present. (03) Off-Site Groundwater Ouality. The Licensee shall annually saanple the individual private wells identified in the Phase IV Water Quality Monitoring Worlc Plan required by Section 4(05). All private wells shall be analyzed for pH, 13 COD, ammonia, chlorides, specific conductance, and volatile organic compounds (MDH method 465G and EPA methods 601, 602). (04) Modification. The testing programs specified in this Section 7 may be modified by City staff if City staff reasonably determines there exists a need for additional wells to be tested or additional parameters to be analyzed, based upon water or air quality test results indicating the presence of contamination. 8.) Hydro~eolo~ic Investi ag tion. The investigation of the hydrological and geophysical characteristics of the site shall be continued and any other new information relating to the hydrogeologic impact of the site shall be reported to the City. Hydrogeologic reports shall be updated, amended, and modified as warranted by newly discovered or additional data acquired in the continued hydrogeologic investigation. Licensee shall notify City at least two (2} days in advance of any soil boring or well construction required by this License. Licensee must conduct additional contaminant investigation and monitoring as requested by the MPCA in the vicinity of P304C, P320 and an area southeast of P314C. 9.) Dust, Noise, and Odor. Fugitive dust emissions off-site shall be controlled at the Landfill Site as necessary by undertaking the following: road surfaces within the Landfill Site shall be wetted with water or an appropriate chemical whenever off-site dust levels become unreasonable as determined by the City Environmental Administrator. Dust pollutives shall be utilized to the extent necessary on cover material such as stockpiles to reduce wind erosion as well as on other exposed surfaces as appropriate. Cover compaction and revegetation activities shall be undertaken promptly on the completion of various fill areas and vegetative cover capable of quick growth shall be utilized. Plantings of bushes and trees shall be installed if needed to buffer the Landfill Site and minimize wind erosion. All equipment and vehicles utilized at the Landfill Site shall be periodically inspected and maintained to minimize noise. Vegetative barriers along the boundaries of the Landfill Site shall be utilized to minimize off-site noise impacts. Applicable state standards for noise pollution may not be exceeded by the Landfill operation, equipment, vehicles, or machinery. Licensee agrees that it will use best management practices to control against odors. The Environmental Administrator may make recommendations regarding possible odor controls. If a verified odor problem is ongoing, both parties agree to institute good faith negotiations to minimize the odor problem. If in the event that the City receives ten or more complaints within asix-hour period relating to a single odor description and this odor complaint has been verified by both City and Licensee and identified as coming from the Facility, the Licensee shall cease such activity(s) that are the direct cause of the odor(s). Normal 14 activity(s) shall not resume until the Licensee has, to the satisfaction of the City, fully mitigated against such odor(s). 10.) Closure. Within six (6) months of a written demand by the City, and in no event later than one (1) year prior to the date projected for cessation of waste disposal, the Licensee shall submit to the City for approval an updated closure and post-closure plan for the Landfill Site. 11.) Insurance. The Licensee shall secure and maintain insurance from an insurance company acceptable to the City and authorized to write casualty insurance in the State of Minnesota which will protect the Licensee, its agents and employees, and the City from claims for bodily injury, death, or property damage which may arise from the operations on the Landfill Site. The Licensee shall file a certificate of insurance or a certified copy of the insurance policy with the City. Such insurance policy shall contain a clause providing that it shall not be cancelled by the insurance company without thirty (30) days' written notice to the City of intention to cancel. The following coverage shall be provided in amounts not less than those specified: (O1) Public liability, general liability, loading and unloading, [completed operations, explosion, collapse, underground operations], personal injury, and property damage with the following minimum limits: (a) One Million Dollars ($1,000,000) per claimant. (b) One Million Dollars ($1,000,000) per occurrence. (c) One Million Dollars ($1,000,000) annual aggregate. (02) Automobile and truck public liability, personal injury, and property damage, including owned and non-owned vehicles with a One Million Dollars ($1,000,000) minimum limit. (03) The City may require additional insurance be provided by Licensee if market conditions change such that additional coverage become economically practicable. The insurance limits required by this section shall be reduced if these insurance limits are not reasonably and economically available. For the purposes of this subsection "economically practicable," "reasonably" and "economically available" shall be determined by the insurance coverage affected by the Minnesota Joint Underwriters Association or the readily available private insurance market. 12.) Bonding. 15 (Ol) The Licensee shall furnish a surety bond in favor of the City in the amount of Three Hundred Thousand Dollars ($300,000) to run continuously (annual renewal allowed) until all landfill operations and closure activities are completed to ensure compliance with the teens and conditions of this License. Such bond shall be made by an insurance company or other financial institution acceptable to the City and shall be in a fonn acceptable to the City and its attorney. The bond shall be subject to cancellation by the obligor by giving one hundred twenty (120) days' prior written notice to the City. The Licensee shall renew each such bond no snore than sixty (60) days after any such written notice, and failure to so renew the bond shall be an event of default of the obligations of the Licensee and shall constitute ground for immediate and automatic revocation of this License. Said bond shall provide that if the Licensee refuses to obey any of the requirements or to any of the acts required by this License or for any reason ceases to operate or abandons the landfill, and the City is required to expend monies or labor or material to restore, repair, or clean up the Landfill Site to the condition and requirements required by law, the obligor shall reimburse the City for any and all expenses incurred to remedy the failure of the Licensee to comply with this License, and the obligor shall indemnify and save the City harmless from all losses, costs, and charges that may occur to the City because of any default by the Licensee. The bond may be in a fonn exercisable by both the City and the County provided that such exercise feature allows its use on instruction by either or both the City and County. (02) In the event this, or any subsequent license is revoked or the Licensee closes operation of the landfill for any reason, including but without limitation, order of the court or other agency of competent jurisdiction, bankruptcy, insolvency, or abandonment, the Licensee shall immediately proceed to close, cover, and grade the Landfill Site according to an environmentally sound closure plan which shall be approved by the City and which shall comply with all requirements of the MPCA and Sherburne County relating to final closure. In the event the Licensee fails to comply with the terms of this subparagraph (02), the City may, upon ninety (90} days' prior notice to the Licensee, enter onto the property and perform all such obligations, the costs of which shall be borne by the Licensee, or, in default thereof, by its surety. 13.} Aublicability of License. This License shall apply to the entire Landfill Property located within the City limits. 14.) License Period. This renewed License shall be in force and effect until February 16, 2012. 15.) Violation of Conditions. If the Licensee or its successors or assigns violate any term or condition imposed by this License, this License 16 may be revoked and terminated. Without limiting the foregoing, the violation of any statute, regulation, ordinance, or license condition unposed by lawful governmental authority and governing operations on the Landfill Property is ground for revocation aild termination of this License. The change, alteration, or amendment of any such statute, regulation, ordinance, or license condition by any governmental authority other than the City shall not excuse the Licensee from compliance with statutes, regulations, ordinances, or permit or license conditions in effect on the date of the original issuance of this License unless compliance is waived or excused by the City Council. The City shall not unreasonably refuse to waive or excuse compliance with existing permit or license conditions. 16.) Documents, Reports, and Maps. Copies of all documents, reports, and snaps which are supplied to the MPCA or to Sherburne County shall also be supplied to the City, at the same time. 17.) Charges and Fees. The Licensee agrees to pay to the City upon the amendment and renewal of this License, $2,000. Thereafter, the Licensee shall pay the City an annual license fee of $2,000. 18.) On-Site Ins ecp tion• The City inay inspect the Landfill and the Landfill Property for the purposes of examining and copying nonconfidential records; conducting inspections, surveys, investigations, monitoring, or sampling; and others obtaining necessary information pertaining to the construction, operation, and environmental effect of the disposal facility, control equipment, and control materials. Inspections shall be conducted during nornal business hours except in the event of an emergency. City personnel or agents performing the inspection will notify personnel at the landfill office at the tune of inspection. In case of emergency, the City will call Debra Walters to gain entry and provide notice of the situation. Licensee shall promptly notify the City of any substitutions of persons to be so notified. The City shall be notified by the Licensee immediately upon the occurrence of any explosion, fire, or other emergency at the Landfill; upon the discovery, release or spill of hazardous or dangerous materials, as defined in the City of Elk River Solid Waste Ordinance, at the Landfill; and of any violations of the conditions of this License. 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 Licensee. This letter may be revised or supplemented by City staff from tune to time as necessary to address the City's needs for notification. 19.) Indemnity. The Licensee shall indemnify, defend, and hold the City harmless from all claims, demands, and/or actions legal and/or equitable arising from the operations on the Landfill Property. 17 20.) Worker's Compensation. The Licensee shall carry in a company authorized to transact business in the State of Minnesota a policy of uisurance fulfilling all requirements of the Worker's Compensation Act, including all legal requirements for occupational diseases, or self-insure for the above. 21.) Split Samples. The Licensee shall notify the City forty-eight (48) hours before any sampling of groundwater or surface water and allow the City at its expense to obtain split samples of such waters. 22.} Right to Require Performance. The failure of the City, at any time, to require performance by the Licensee of any provisions hereof shall in no way affect the right of the City thereafter to enforce the same. Nor shall waiver by the City of any breach of any of the provisions hereof be taken or held to be a waiver of any succeeding breach of such provision or as a waiver of any provision itself. 23.) Severability. If any provision of this License shall be declared void or unenforceable, the other provisions shall not be affected, but shall remain in full force and effect. 24.) Amendment. This License shall not be considered modified, altered, changed, or amended in any respect unless approved by the City Council as required by City Ordinance. 25.) Fees. The Licensee shall pay the Host Community Fee (HCF) provided for in the Host Community Agreement entered into between the Licensee and City on September 15, 2003. If Licensee fails to pay the HCF, for any reason, Licensee shall then pay the Landfill Abatement Surcharge authorized by Miml. Stat. § 115A.921, Subd. 1 (the Surcharge). The Surcharge shall be paid directly to the City on a monthly basis, and shall be accompanied by an accurate report on the amount and type of solid waste disposed of ul the landfill each day during the month. The Surcharge due for each month shall be received by the City no later than the thirtieth calendar day of the succeeding month. Failure to pay the Surcharge when due shall be cause for revocation of this License and shall be a violation of the conditions and requirements of this License for the purposes of the related operations authorized by Section 3 of this License. 26.} Conflicts. In any cases in which the Licensee believes there is an irreconcilable conflict between the requirements of this License and Laws, Rules, Regulations, or Order of any other governmental authority, the Licensee shall promptly notify the City of such irreconcilable conflict and request an amendment of this License. Until such time as the City acts upon a request for an amendment to this License, which it may grant or deny in its sole discretion, the terms of this License shall govern all 18 operations at the Landfill Site aild shall prevail over the provisions of any document submitted by the Licensee and any requirements of state or federal law. The City shall not unreasonably refuse to amend this License or waive compliance with tlus License in order to prevent violation of law. 27.) Modification, Suspension, or Revocation of License. The violation of any of the terms of this License is grounds for suspension or revocation hereof. Furthermore, the City specifically reserves the right, and the Licensee agrees that this License maybe amended, suspended, or revolted by the City as reasonably required to protect the public health, safety, and welfare. Specifically, but without limiting the foregoing, the City inay amend, suspend, or revolte this License, whenever any reliable information is secured from a recognized source which demonstrates that the continued operation of the landfill places the public health, safety, or welfare, in jeopardy. Such information includes, but is not limited to the following: (01) A determination that (other than as indicated in the license application) leachate generated at the Landfill Site is migrating to surface or ground waters in a way that threatens the public health, safety or general welfare. (02) A determination that (other than as indicated in the license application) standards for drinking water (whether promulgated as of the date of this License or at a later date by the United States Envirorunental Protection Agency, the Minnesota Department of Health, the Minnesota Pollution Control Agency, or any other govermnental agency promulgating standards for toxic wastes, hazardous wastes, pollutants, or contaminants in groundwaters or surface waters) are being violated as a result of landfill operations. (03) A determination that the emission of landfill gas on the Landfill Site is creating or threatens to create a safety hazard to the community. Without limiting the foregoing, the City reserves the right to amend this License to impose upon the Licensee the obligation to comply with any state or federal law or regulation relating to the operation of sanitary landfills, whether or not said laws or regulations apply by their terms to preexisting landfills. Suspension, revocation, or amendment of this License may be ordered only after a public hearing on such suspension, revocation, or amendment preceded by thirty (30) days' written notice to the Licensee or at the time of consideration of renewal of this License. Notice of hearing shall include a statement of the proposed action by the City and the reasons therefore. 19 ATTEST: Tina Allard City Clerlc THE CITY OF ELK RIVER: By: Stephanie A. Klinzing Its: Mayor ELK RIVER LANDFILL, INC. By: Debra Walters Its: District Manger STATE OF MINNESOTA ) COUNTY OF SHERBURNE ) ss. The foregoing instrument was acknowledged before ine this day of 2010, by Stephanie Klinzing, the Mayor of the City of Ella River, on behalf of the City of Ells River. Notary Public STATE OF MINNESOTA ) )ss. COUNTY OF SHERBURNE) The foregoing instrument was acknowledged before me this day of 2010, by Tina Allard, the City Clerk of the City of Ella River, on behalf of the City of Elk River. Notary Public STATE OF MINNESOTA ) ) ss. COUNTY OF SHERBURNE) The foregoing instrument was acknowledged before me this day of 2010, by Debra Walters, the District Manager of Elk River Landfill, Inc., a Minnesota corporation, on behalf of the corporation. 20 Notary Public IS INSTRU~I~NT WAS DRAFTED BY: THiS INSTRUMENT WAS MODIFIED BY: Gray, Plant, Mooty, IVlooty & Bennett 500 IDS Center 80 South 8~' Stteet Minneapolis, Minnesota 55402 The Communit3T Development Department of the City of Elk River 21 ® F~111~;/Li7117 lb: b3 + ^ ^ :~I^ 2200 IOS Center ', 80 South 8th Street Minneapolis MN 55:t1j2'-2,157 AND i.~ tel 612,977.8400 ' fax 612.977.8650 , BRIGGS 1~10RGAN I~IPLS 1 FAX Cd~l.~~ S January 2S, 2010 L EET PAGE 01/06 I,'lease deliver the following paboe(s) (phis includes this covey sheet) RECIPIENTS Name Tirm Ph ne Numlber )r a~; Nuzxalber Rebecca Haug City of ilk River 763-635-1000 763-635-1090 FROM Jack X. Per.~r PRONE 612,977.5497 IPISTRUCTION~ OR COMMENT If you klave problems recexv;,>ca~ tb,ese pages, please contact us at 6 2-977-S52Q CONk'ID)~1VTIAL FAX The information contained In this facsimile message is attorney privileged and c ri,~deptial information itttended only for the use of th,e individual or entity named on the cover sheet, Tf the reader of this message is not th i ntended recipient, or the ontployee o-• agent responsible to deiivar it to the intended recipient, you are hereby notified that any dissemination, distribution or copying ofthis comtxlunication is strictly prohibited, 1f you have received this corcarnuttication in error, please innmediatelypo i fy us by telephone, and return the original message to us aC the address listed on the cover sheet via the U.S. P s tal Service. 'l'hank you. zas6~91~i Briggs and Morgan, professional Association Mlnn¢apolis I St.paul i www.brlggs.com Member-lex Mundi, a Global Association oFlndependent law I~Irms 01 /2E/2010 16:03 + BRIGGS MORGAN IYIPLS 1 PAGE 02/06 BRIGGS ~~ Jaouaxy 28, 2010 VIA )SAX Rebecca Haug City of E11~ River 13065 Ororzo Parkway Ells River, MN 55330 2200 IDS Center Bo South 8th Stf2et Minneapoils MN 55402.2157 tel 612.977.8400 fax 612.477.8650 Jflck Y. Perry (612)977-8497 Jpeny@briggs.coxn lte: EEk River Landfill, enc.'s pexzdimg CUP and License ,A,~.ezzdznexi.ts Dear Rebecca. City repeatedly represented to the Court in ERL I that the parties' 2003 Host Coxzuaau~.ity A.gxeem.ezzt's "laxaguage clearly refers to 'expansions axzd new uses ozt the La~dfi11 property,"' not to "expansions" on the 108.8-acre southern development area ~(SDA) property. City Proposed Memo. axzd Order afi 26-27 (emphasis in original); see also 12/17/09 Clty oral argument... Given City's then-existing CUP and );icense approval of ERL's 92.1-acre MSW lazdfill area, -City understood (and reiterated Ibis understanding at the l7ecezxzbex 17 hearing) that the only area to "expand ... on tkze Landfill property" was to the south into the 200-foot buffer area. More specifically, the landfill expaxzsioxa area within this 200-foot bu~fex area, while main~Caining the 200-foot buffer on t17;e east and 'west, is the 7.5 acres which is south of the approved disposal area. A.xzd, because the expansion to the southern, edge of the existing 137.4-acre laxzdfzll property would (due to the southward xuoverrze~,t of the end slope on the south side of the landfill) allow additional MS W to be disposed of on 5.9 acres of the already permitted disposal area, the total expansion area is actually 13.4 acres. See Diagram (attached); Ex. 46. .A,s part of ERL and Tiller's October 2002 request to mine within most of the 7.5-acre arts, City staff xepresezzted that it would be "inappropriate [fox City] to consider" this expa~sioxz request, which it described as a ''component" of the expansion of the 1and~ll, without the full landfill expansion onto the 108.8-acre SDA, property. Ex. 98, Iz~ response, ER.L and 't'iller. withdrew their request and, as City instructed, ERL incorporated the previously requested "expansion ... on the Landfill property" into its lVZarch 30, 2009 requested 73.4-acre landfill expansion ~- that is, a 1.3.4-acre "exparisiozz . on the Landf 11 property" with a 60-acre expansion on the 108.8-acre SI7A property. Briggs and Morgan, Professional Association Mlnneanolle I St, Daul I www.brigga.corn Member • Lex Mundl, a Global Association of Indevendent L~~N Firms 81/28/2818 16: b3 + IiKIGGS t+1UKGAN 1+1PLS 1 PAGE b3/86 E3RIGGS AND MORCAN Rebecca Haug .Tanuary 28, 2010 Page 2 City denied 1r12L's requested 73.4-acre landfill expansion for the sole reason that the 108.8-acre SpA property 'was not withixl tYie SWP. ERL has thus argued to the Court in E,RL .I.t that City az'bitrarily denied the 13.4-acre portion of ERL's requested e~patision oxa the existing 137.4-acre landfll property because it is entirely within the SWF and thereby unaffected by City's one basis for denial. Unable to substantively defend the axbit~raxiness of its denial as to the 13.4-acre area, City pxoceduxally argued tlxat ERL ziever properly applied for just this lesser included, portion of the full expansion request. Reversing its earlier insistence on on1V "coxisidex[ing]" BL's lesser included 13.4-acre landfill e~paxlsion with the full expansion request, City now argues that E1~L must submit a separate application for the 13.4-acre expansion. City S.J. Opp. Br. at 11-12. City even specifically encourages EIZL to apply for its 13.4-acre landfill expansion "as part of ...the [parties') process of discussing conditions for renewal of the Landfill's current CUl' and License.f' ,Id. Tellingly, City's argument ignores the Minnesota Supxelrie Court's recent rejection of its contention that it was obligated to approve of that portion of ERI.'s request which satisf ed 'its one stated xeasozi for denying the request. Breza v. City of ~innet~~istu, 725 N.W.2d 106, l l4 (Niizin. 2006). Per City's invitaty,on, ERL hereby requests (without waiving its pending applications before the Court) the necessary CUP axed License arriendments to authorize its zxliXxaxxg/landfill expansion within the 13.4-acre axes, as described above axed shown on the attached diagram. There will be xio waste disx~Qsal outside of either (1) the e~.isting 137.4-acre landf 11 property ox (2) the approved SWF as it is currently construed by City. ,lend 'Tiller, the adjacent landowxier to the south, liar riot only agreed to accept arty adverse impacts associated with E12T,'s requested expansion but also to sell to ERL the northern-most 200-foot strip of the 108.8-acre SD.A. property. As such, the inuxiediately adjacent property to the south will be fully protected as to adverse irxipaets and land value. Given its prior repeated representations to the Couz~t,~ City c~ not in good faith claizzi. that ERL is barred by City Code or other regulatory requixeznents froze "expand[ing] :.. on the Landfill property." City is bound by its repxesentatiozis to the Court.i Such a construction of the ~ Stateznezxts contained in a party's pleadizzgs axe bizlding on that party, and they .uCe considered judicial admissions. .~nudser~ v. United States, 254 1~.3d 747, 752 (8th Cix. 2001); In re Cra~wfo~'d, 274 B.R. 798, 804-OS (Bankr. 8th Cir. 2002); Bellefonte ,Reir~suz•ance Co, v. ,f(rgonaut Psis. Co., 757 F.2d 523, 528 (2d Cir. 1985); ,Postscript Enters. v. City of Bridgeton, 905 k'.2d 223, 227-28 ($th Cir. 1990) (treating statements by parties made in briefs as judicial adzrii.ssion). "Judicial efficiency demands that a party riot be allowed to controvert what i,t has already unequivocally told a court by the xxxost foxxxial acid considered nrleans possible." Knudsen, 254 F.3d at 752 (quoting Soo .Line ,IZ..R. Co. v. St. Louis Sw..Ry. Co., 125 F.3d 481, 4S3 (7th Cir. 1997)). And the doctrine of judicial estoppel prevents a party from taking ineonsisteiat positions in the saxx~.e or related litigatiozi. State v, Profit, 591 N.~~J,2d 451, 462 (Minn. 1999); I~ossaini v. 01i'28/2010 16:03 + ERIGGS M110RGAN MPLS 1 PAGE 04106 BRIGGS nrvv MORGAN Rebecca I-laug Ja~uaxy 28, 2010 Page 3 parties' 2003 Host Community Agreement would otb,erwise ixnpropexly rexa.dex City's "cooperation" obligation moot. There is, in any event, no such buffer xequixe~,er~t i;t~ either Chapter 30 or Chapter 58 of the City Code. And ERL can satisfy Minn. R. 7035.2815's 200-foot buffer through its arrangements with the adjacent landowner. Moreover, City already had its opportunity to identify its objections to and concerns with ERL`s 73.4-acre landfill expansion, includix>.g the 13.4-acre portion of the expax~sioz~. And City's sole objection - i.e., lack of SWF - zelated just to the 60 acres of the expansion on the 108.8-acre 5DA property, not the 13.4 acres of the expansion on the existing 137.4-acre Landfill property. Regarding City's ro ose CUP and. License amendments, ERL has the same two objections. ERL objects to the changes to ¶ 4 (29) ("Cell 17"). ERL already has an appxoved construction plan for ¶ 4 (29). ERL also objects to the changes to ¶ 4 (31) ("End Use Plan"). ERL has a~a appxoved end use plaza, and ERL's willingness to accept as an end use plan "passive recreational use" was limited to its applicadoz~ 1'ox its 73.4-acre landfill expansion. For the same reason, ERL similarly objects to City's proposed CUP ¶ 3 ("bU,ffer zone/screening") and its insistence that an "end use plan ... be submitted for appxvval by Aecexx~bex 31, 2011 by the City," together with City's apparent attempt through its PID numbers to extend the "buffer 2o;n.e" outside of the established 200 ;feet. 1?finally, City has argued, to the Court that the record fox judicial review of City's decision- making is lixo.ited to ozaly those records ~ including City's own records! - tv which ERL speeiixeally submits or references. Accordingly, ERL incvxpoxates izzto its applieatioxa all of the briefing and exhibits which have heretofore been subzzkitted to the Court in ERL I and. ERL II, as well as all of r~,e doeu~ents and records which City produced per ERL's data practices act requests. W. ,tl~a. Abed. Ctr., 140 F.3d 1140, 1142 (8th Ciz. 1998); Bates v. Long ,Island .R..R. Co., 997 F.2d 1028, 1037 (2d Cir. 1993). Tudicial estoppel is irxvolced "to protect the integrity of the judicial process frorn a party who plays fast and loose with the courts." Prof t, 591 N.W.2d at 462; ,F,Iossaini, 140 F.3d at 1143. The purposes of the doctrine of judicial estoppel axe to preserve judicial integrity by avoiding tlxe zisl~ of ineozasistezat xesults i~ two proceedings. Flossaini, 140 1~.3d at 1142; Simon v. Safelite GZass Coup., 128 F.3d 68, 71 (2d Cir. 1997). "[A]bsent any good explanation, a party should, not be allowed to gain an advantage b}~ litigatioza ozz oz~e theory, and then seek an inconsistex>.t advantage by pursuing art incompatible theory." 18 C. Wright, A. l~lillex & E. Cooper, Federal Practice & Procedure § 4477 at 782. This approach focuses "directly ozt the risl~ of iztconsisteztt xesults and the perceived unseemliness of a litigant',s conduct." Id. at 781. 011281 2010 7.6:03 + BRIGGS t~IDRGAN 1+1PLS 1 PAGE 05/06 Ei R I G G 5 AND M O R G A N Rebecca kJaug January 28, 2010 gage 4 Consistent wikh ERL's Decezxibez 17 in-covert settlezxxent overtures (which whezz pressed by the Court were rejected by City), ERL believes that its cuxirent xecluest fox xts 13.4-acxe expax~sioza would hekp ezacourage a settke~ez~t. Regardless of the results of the rest of the ki~.gatiozt, the limited expansion would, buy a few yeaas of. life fox the lax~d~lk v~rhile the kandfakk either negotiates a compromise solution or fznds az~ altez~n.atkve kand~xkl site: relY~ ck X.1'~y + JXl'/JRA Attachment cc: l?. Beck J. Bal~ez .Nl. A,ye>•s D. Waktexs B. Jeffiy 2a56267v1 0 1/28/2816 16:03 BRIGGS 1~10RGAN I'~PLS 1 PAGE 06/06 S W 7H HOg TN t ZO .... .............t._ ........ ............__ , ............. ,_........ _..-.___••- -----.._... .1120 1110 . ~'s:.........T._......... i' i,N • }.~ f., l ~,...,"1-:.._._{._::~...:.::::T~..._.._.:-'~ . ~:.::.:.... ~Z _ ' .. ti , ,S.v.... ~,.., ' .. ~ ' ~ ' t t 1 D 1100 ~, .....__...a...__.,... t„ ~ s.9 ,+ ~~~ .~ '- `.i:_...:?{ ............._. .. -- -- ~ •- ,......,__ „y,., ¢m ~ x~,: .' •,l: as i;4`t~',1:;: ! E ~ I i u '' ~ ~ / t 10D 1090 ._.. _ ~::~,"~r' •r„- _a:•ti , t _..{ .............-1.....~..,.......:....,........._•1.......__._.... f 090 0 ' I 1080 ~a1,: -~ i::L:::~ s.`%_..-.-,-.,...,. ................................. ~ ' a 1090 107o x,j~'~:L..{._......._......~.._......._.._..1__.its 7...".~:.:..~- .......................... Wx~W•„ .~a,~~ 1~ to70 1060 .,, ,. :, . , 1 1 -. .i:r~''~..j~"~`y: '- ..«~~~.-- ~ ...... .. ~ ........... ..`.....- -----•-.---;..._.......... 060 :ru: a 1 : a 4u ~ 1060 1040 . . 'Z j. - ............... ~ . ..._, L__•__•_-...... ..ab 1 ~ ~ff~[ n 3'~A7.~..__.I._........:_...~ .w',~;. 1 -' : F::d:yM,l_.~U •. i~Ar,,:`~• ._ ?_1.300 au_,,((ic Yordn ...._..... 1050 ~ 1040 , c 1030 -- .tT:,>I-=!~.u_^',4:.7~:7 '. '_ +.. i',.-;::--t°°-_..._..*----°°.__.._L___.._..----_I ...............;...._.,_.,..... ',:"+ ~~ 1070 > ~ . . 1cy . ~•n ~ 1020 W 1010 ......... . .., u...,.. .,_......_ ..__.... . c IC,' ~i2,\•~i~.%~j.iv ~'1 •k YY`>• r.u,~__ _~.__. ...i ................I............... .~ I ~J ~. ~k ,,,~ ,. ..... ... --...._.._.y. '~~..: . -~~,~L: ~.:J_:.__..... ~...._....---•-•-~ ............... ~ --..__........ ~ ....,,,....... ..-, , W 1020 > 1010 t D00 , . ~ .... ...............'.,...,- ':3;~:~~ ~ ~c~'_ •]I?,o . _..L..-....----...~......._....._ ~ _.._...._..... ~............._. 000 ' ' 880 980 ._._._.....i....... ":~.7}gy:1?~,~~k .s~ ! i.. ..............%._._......... •~~ k; 9,~~: ~ I i ~:.t~, gyn .{r ~ . . ... _......_. ~ ---. .._... •`~ I 1i"~ ' 99D . . _;. .. ................ ,...--.,,.,..,,. , y ...... ........ 1 - i ' r.~,.t~s%YS'~ ';'~1•":. ? r 980 970 y . ........ .............1.. n5-i •"31,~.v:,L~,,. ..1-....__.......i...............a....i= 870 960 ......... .~ . _ ......... ......-_ { 1 .......... 990 I I I i 950 D 100 ZDO 300 - 400 500 6D0 700 80 050 rlLtl Nl/07:2/CLK flMK/1000/JAIISOWYOD/~AM2D100A7E1.OG N 0(STANCC 1H EEC VERTICAL EkA90EgAT 10N ~ 5 x E1.x RIVER LANOFlLL, 5NER6URNE COUNTI', IAI1Jh1E50TA -PREPARED FOR ELK RIVER LANDFILL, INC. ! \AJenC JJINUMY, 2010 Ad4idonal Nrspace with Revised Ccll Boundary ~ n~ •"^ ~ ~ °„' w ~1S'i8"" City of Elk River 13065 Orono Parkway Elk River, MN 55330 Febr•uat•y 3, 2010 Ellc River Landfill Ms, Deb Vi~alters 22460 Highway 169 NW Ellc River, NIN 55330 RE: Elk River Landfill, Inc. Application for CUP ar~d License Renewal Dear Deb: This letter is in response to the January 28, 2010 letter from Jack Y, Perry to me. In the fourth paragraph of that letter, Mr. Pert•y states that "ERL hereby requests (without waiving its pending applications before the court) the necessary CUP and License amendments to authorize its mining/landfill expansion within the 13.4 acre area, as described above and shown on the attached diagram." By process of elimination, the "description above" referenced at the end of this sentence was to an expansion "to the south into the 200-foot buffer area," south of the approved disposal area. and to the southern edge of the existing landfill properly, while maintaining "the 200-foot buffer on the east and west." Mt•. Perry's lettet•proposes a 1,671,300 cubic yard expansion of the approved solid waste disposal area on the Landfill Property, which would extend into the existing 200-foot buffer zone on the southern edge of the Landfill Property• This is an entit•ely new proposal which has not pt•eviously been submitted to the City. The application for an amended CUP to allow expansion of the Landfill into the Southern Development Atea, which was denied on October 19, 2009, did not include an alternative to expand the Landfill exclusively on the Landfill's existing property, and no mention of or request for such an expansion was made at any point in those proceedings,. Similarly, the pending application fot• renewal of the existing CUP and license for• the Landfill, submitted on Decembet• 28, 2009, does not propose ot• mention such ate expansion. In fact, the suggested revisions to the CUP which you submitted in connection with tlae pending application did not include any change to paragraph 3 of the CUP, which governs the "Buffer Zone/Screening", In addition, the application materials submitted with the pending application did not include any of the plans and other submission materials required fot• an expansion of the Landfill to be evaluated or acted upon. Fot• instance, an application to expand the solid waste disposal at•ea would need to demonstrate how an expansion into the buffer zone would be screened and where the infrastructure to support such an expansion (service roads, wells, stotTn water management, etc,) would be located. The landfill always has the right to apply for an amendment to its existing CUP, including an amendment that would expand the solid waste disposal area on the portion of the Landfill Pr•oper•ty Phone: 763.635.1000 Fax: 763.635.1090 wwwci.elk-river.mn.ns GRAY, PLANT, MOOTY, MOOTY E BENNETT, P.A. A FULL-SERVICE LAW FIRM MINNEAPOLIS, MN ~ ST. CLOUD, MN WASHINGTON, DC Ms. Deb Walters February 3, 2010 Page 2 zoned Solid Waste Facilities. Howevet•, the application currently pending before the City is not an application to expand the solid waste disposal area and has not been noticed to the public as such. The pending application could be amended to include a request to expand tine solid v,~aste disposal area within the landfill property, but a request for such an amendment would have to include all of the required submission materials, and notice to the public would have to be republished and remailed so that the public has been provided fair and reasonable notice of the proposed expansion. The landfill's current CUP and license expire on February 17, 2010. The pending application for an amended CUP and license are scheduled to be heard by the Elk River Planning Commission on February 9, 2010, and the Elk River City Council on February 16, 20l 0. Unless the City is notified by the landfill in writing that the pending application is being withdrawn or atrtended, the hearings before the Planning Commission and the City Council on the pending application will proceed as scheduled. Mr. Perry's January 28, 20] O letter objecting to the buffer requirement and proposing a 1,671,300- cubic yard expansion of the landfill had attached to it one schematic drawing showing the expansion area, but included no other plans or materials that would demonstrate how the expa~.lsion area would be screened, nor where the infrastructure to support such an expansion, such as service roads, wells, storm water management, etc., would be located. Nor is there any mention in Mr. Perry's letter as to whether the Minnesota Pollution Control Agency, the. Responsible Governmental Unit for environmental review of any significant. expansion of a landfill, leas reviewed or evaluated the potential eznrironmental effects of this proposed expansion, or reviewed or approved this expansion proposal. If there is an environmental review process nsandated by the Minnesota Environmental Policy Act that has not been completed, the City of Ellc River is prohibited from granting an amendment to the CUP or license allowing that expansion. Therefore, to the extent that Mr. Perry's letter constitutes a written request to amend the pending application to eliminate the 200-foot buffer zone and to increase the capacity of the landfill by 1,671,300 cubic yards, this letter is to notify the landfill, pursuant to Minnesota Statutes ~ l 5.99, that this request to amend the application is incomplete for failure to submit the following materials required to evaluate such an application for expansion: • A completed Application Form and Application Fee. • Labels for Property Owners within 350 feet of the Landfill Property, obtained from the Sherburne County Tax Division. • A typewritten narrative describing the expansion proposal. • The following plans and additional information: Grading Plan Ms. Deb Walters February 3, X010 Page 3 Landscape Plan (screening plan) Site Pfan End Use Plan Drainage Calculations Legal Description Wetland Determination (if needed) The city also has the discretion to request additional information The City of Elk River will proceed with public hearings on the pending application to amend and renew the current CUP and license for the landfill, unless the landfill withdraws those applications in writing. We will present the comments set forth ul your email yesterday; and the objections set forth in Mr. Perry's letter, to paragraphs 3, 4 (29) and 4 (31) to the Plamung Commission and City Council for their consideration. I asstune you have no other continents or objections to the proposed CUP and License. I appreciate your forwarding the updated legal descriptions. Because the CUP and License regulate only the Landfill itself, and not any property located West of the City Trail, we will use a description of the Landfill property located East of the Trail as Exhibit A. The Planning Coirunission and City Council will not consider amendment of the CUP and license to increase the capacity of the landfill by 1,671,300 cubic yards, because. the necessary application materials to support such an expansion proposal have not been submitted, the public has not been notified of such an expansion proposal, and the City has no information as to whether any further enviro>.unental review of such an expansion proposal is required, and if so, whether it has been completed. If you do wish to withdraw the pending application for renewal of the existing CUP and license, please notify the Cit}r in writing immediately so the public can be notified that there will be no public hearings before the Planning Corrunission and City Council on February 9 aild February 16, 2010. In such event, the existing CUP and license will expire on February 17, 2010, and the landfill will be required to cease operations on that date until a new or amended CUP and license are processed and approved as required by Minnesota law. Please let me know if you have any questions. I expect that the staff report for the Planning Commission meeting will be ready by late Thursday or Friday, aild we «~ill get it to you as soon as it goes to the Planning Commission members. Very trul}~ yours, Rebecca Haug Environmental Administrator RFI:PKBnvwGP:2723955 v5 Haug, Rebecca From: Walters, Debra [dwalters@wm.com] Sent: Tuesday, February 09, 2010 2:43 PM To: Haug, Rebecca Subject: Elk River Landfill Attachments: michelle - 02-10-10 - Z84G24N.pdf michelle - 02-10-10 - Z$4G24N.... Rebecca, Attached is a copy of a page from ERL's old license 2001 and 2004. As you will see in 2001, License read "Cell 14 through Cell 17" in 2004 the verbage changed to "Cell 17". The construction of Cell 17 was included in and approved with the permit application submitted in 1999 and revised in 2001 by the City of Elk River, Sherburne County, and the MPCA. The 1999/2001 permit application included detailed plans on the construction of cell 17, as well as copies of the specifications and construction quality assurance plan. In 2005, the Landfill submitted plans and specifications for the construction of the base portion of Cell 17, which were approved, and thus Cell 17 was constructed during the summer of 2005. Following the completion of construction in 2005, the Landfill received approval for waste placement from the MPCA. Therefore, I am confused on why is the city wants us to submit a modified development and closure plan for Cell 17. See you tonight. Deb -----Original Message----- From: michelle [mailto:mkostrze@wm.comJ Sent: Wednesday, February 10, 2010 1:31 PM To: Walters, Debra Subject: IKON DocSend files for you This document was generated by IKON DocSend on the device #c00015278. To learn how a digital workflow can help your business reduce expenses, improve productivity and streamline communications, call 888-ASK IKON or visit www.ikon.com. ---------------------------------------------------------------------- Waste Management recycles enough paper every year to save 41 million trees. By not printing this email, you can help save even more. 1 ' :'1~ ..;, '"• 24 Adeouate Eaui rnent. Ade uate e ui ment shall be su lied ca able of () p 9 q p PP P spreading and compacting the refuse as received. At least one machine capable of covering the working face, in its entirety at the end of the day; shall be supplied. (25) Information Dis~play. Subject to approval by the City Council, the Licensee shall maintain at each entrance to the Landfill Property a sign stating the Warne of the facility, the schedule.of days and hours the facilit}~ is open to the public, prices for use of the facility, the Minnesota Pollution Cantral Agency. permit number and the penalt}> for nonconforming dumping. • (26) ScreeninsBuffer Strit~s. Visual screening of the Sanitary Landfill site, as required by the Conditional Use Pez~rut for the Landfill Property and as approved by the City Council, shall be provided by the use of buffer zones, natural objects, trees, plants, seeded soil berms, fences, and other suitable means. (27) Small-Load Dum~in~ Site. The Licensee shall, duxing-all hours of operation, maintain and operate a separate suitable and safe disposal area for the dumping of small loads by pickup trucks, cars, and trailers. This separate site shall be located and operated with due regard for the nature of the vehicles bringing such loads, and the normal frequency of such dumping. (2S) Oak Wilt Prevention. As a method to prevent oak v~rilt, Licensee shall not •~ conduct any tree remioYral operations at the Landfill Property between•April 15 ~ • and 3uly ~ 1 S each year. In addition, oak stumps shall be removed prior to April 15 ' each year. ~rTb.en removing trees and stumps, Licensee shall prevent damage to remaining trees. (29) Leachate Recirculation. Remedies for problems arising from leaclaate • recirculation include, but aze not limited to, the cessation of leachate recirculation and reverting back to traditional leachate treatment. C~A~~~ (30) CeII] .The City's approval of ce1117 is contingent on City Staff's review and approval of the specific construction details. ~ ~ ~~ a a ~O (31) End Use Plan. The Landfill shall submit an End Use Plan to the City by ? 006. ' 5.) Off-Site Litter Control. The Licensee shall engage in a regular and routine litter maintenance and removal program extending one-half irzile north and south of the entrance to the Landfill and to any other areas adversely impacted by debris related to Landfill operatiens as may be determined by the City, Litter shall be removed from these areas nat less than once per week, and iuore often if necessary because of spills or complaints from neighbor~.ng property owners, and ensure that these areas aze kept free of litter generated by truck traffic traveling to ~~ and from the Landfill. In addition, Licensee shall inspect all trucks leaving the Landfill to ensure that they are either fully enclosed or covered; and/or clean, and 11 and July I S each year. In addition, aalc stumps shall be removed prior to Aprii 15 each year, When removing trees and stumps, Licensee shall prevent damage to remaining trees. (31) Leachate Recizculation. The City's approval of leachate recirculation: is contingent oil approval b~ MPCA and Sherbume County. Remedies for problems .arising from leachate recirculation include, but are not limited to, the cessation of leachate recirculation and reverting hack to traditional leachate treatment. • .~,_ (32) Cells 14 through 17. The City's approval of cells 14 through 17 is _ O~ contingent on City Staff's review and approval of the specific construction details. • 3H to 1V side slopes for these cells is contingent on approval by MPCA and Sherburne County. (33) End Use Plan. The Landfill shall submit an End Use Plan to the City as part of their next renewal of this permit in 2004. 5.} Ofd Site Litter Control. The Licensee shad engage in a regular and routine litter maintenance and removal program extending one-half xrzile north and south of the entrance to the Landfill and to any other areas adversely impacted by debris related to Landfill operations as may be determined by the City. Litter shall be removed from these areas not less than once per week, and mare often if necessary because of spills or complaints from neighboring property owners, and ensure that these areas are kept free of litter generated by truck traffic traveling to and from the Landfill. In addition, Licensee shall inspect al] trucks leaving the. Landfill to ensure that tliay are either fully enclosed or covered, and/or clean, and. will not spread litter on surrounding streets and roadways as~they leave. In the event that Licensee fails to remove litter within forty-eight {48) hours of notice of accumulation of litter by the City, the City may cause such litter to be rexnaved. The City shall bill the cost of such removal to the Licensee, which shall remit payment within thirty (30) days of the date of such billing. ~). General Performance Standards. The Licensee shall comply with the following performance standards and operating requirements: (01) Hazardous Wastes Prohibited. Na Hazardous Wastes shall be disposed of in the Landfill. (02} Dangerous Wastes. No Dangerous Wastes (as defined in the Cade of Ordinances far the City of Blk River} shall be disposed at the Landfill until a • request to dispose of dangerous wastes has been submitted to the City as required by Chapter 604 of the City Code of Ordinances. The City shall respond to "requests fox permission to dispose dangerous wastes wi#hin fifteen (15) days from receipt of the request as appropriate. If a request to dispose of dangerous wastes is rejected by the City Building & Zoning Administrator, or the City's authorized • consultant/agent, the dangerous wastes nzay not be disposed at the Landfill. I2 R `~ _. _ _._ _. March 18, 2005 Ms. Kathy Holland-Hanson Minnesota Pollution Control Agency Lake Avenue Plaza Suite 220 714 Lake Avenue Detroit Lakes, MN 56501 ' BAR ~ ~ zoos ELIC 6iIVEFI A.R-6t4®FH9.L, Qlt1C. A WASTE MANAGEMENT CDMPANY 22460 Hwy.169 NW Elk River, MN 55330 (612} 441-2464 (612)'441.2025 Fax RE: MSW Ce1117 Construction Plans and Specifications, Elk River Landfill, SW#74 Dear Kathy, Enclosed please find two copies of the MSW Cell 17 Construction Plaits and Speci, fications for the Elk River Landfill (ERL), located in the City of Elk River, Sherburne County, Minnesota. The MSW Cell 17 Co~~rtruction Plan and Spec cations can be found the enclosed CD's (one disc with the front end contract documents/addenda, and a second disc with the technical specifications and drawings for the ERL). For ease of reference, a hard copy of the Construction Plan Sheets is also included. It should be noted that the MSW Cell 17 Construction Plans and Specifications were included as part of a larger `Bid Bundle" package distributed to contractors, and thus additional infoxmation may be contained in the front end documents that does not apply directly to the construction taking place at the ERL this summer. As you are aware, Cell 17 is the last MSW cell to be constructed at the ERL as currently permitted. The ERL has recently submitted a Request for Permit Mod cation to include the Southern Development .Area and is currently working through the environmental review process, As the environmental review and permitting process continues, the ERL is anticipating the need for addirional disposal capacity in 2005/2006. Therefore, the ERL will be constructing Ce1117 during the 2005 construction season. It is anticipated that construction, starting with rough grading and berm construction, will be initiated in early to mid- April and completed by August 1St As pxeviously discussed with you, the ERL is proposing some minor modifications in the construction of Cell 17. 3tu3 ~. ~~f 11~~;'p' s ~ =a~n ~ ~ ~ _; ~ '~~~~~~he T~T1 _ z ~~. °~~??~c?.1~lli j ~sJ.:.j~+~tTtit. ~.Zl!~~1~'~ :9ei=. tF~~ [..;~~~C I'.!? T~'11~~~~+J~ _~'i'$lU~uc`;«I . ~. _ F E'er; a~~ !"vE~ Si[~ l.t'~x'q~ ~~1:~ 311i_ ,~~ "~Ui C;Oi~ 'r1'CliD~]~7 C,~ „',HG",1""~O s~~tt~l'~~? ~~r[Sr~rT,~1°IT~-. ~~-~~;:r~e-r~t^tF t7 ~; '~t i, t~r~x~;~ rt~~.7t_:S~ _ f. .tom'.. " .,-~ N ~~~ -~ ~_ - . -- - ~ - Page 2 of 3 March 18, 2005 The mvdificati.ans included as part of the MSE Cell 17 ConstYZictlOn Plans and Specifications are as follows: 1. Cell ll7 Basegrades: As approved in a letter dated January 16, 2003, Cell 17 will be constructed at the same elevations as the base grades in Ce1116. This volume addition was included in the ERL's current permit, SW-74, dated October 8, 2003. 2. Southern Berm Construction: The southern berm of Cell 17 has been modified such that it will now be constructed with an inbound slope ranging from 2:1 to 4.5:1 (horizontal: vertical). The initial construction, as shown on the plan sheets (Sheets 3 and 4) would be for a berm that is approximately 4.5 feet high. The initial berm will be constructed very similar to the phase separation berms typically placed between each cell. As the filling of Cell 17 progresses, this berm will be extended up in 7.5 foot vertical increments. The berm will continue to be extended until the Southern Development Area is permitted or closure grades are reached. The phased construction of this berm is detailed on the attached Figure 1. 3. West Berm Construction: The west berm is currently permitted with an outside slope to be constructed at approximately 1.5:1 (horizontal: vertical) in an effort to preserve trees located i.n the set-back area. During a recent field survey it was noted that there were few trees located in close proximity to the proposed outside toe of the slope, and none of the trees in close proximity of the berm were of significant size. Therefore, the ERL proposes to construct the outside slope of the Cell 17 west berm at a 2:1 slope. The 2:1 slope will be easier to construct and easier to maintain than the currently permitted 1.5:1 slope. This modified berm is shown on Sheet 3 and associated details. 4. Alternative Liner D esign: As recently discussed on the phone, the ERL would also like the option to substitute a layer of Geosynthetic Clay Liner (GCL) for the upper 12-inches of . compacted clay. The techzucal specifications for the GCL and installation of the GCL are included in the enclosed Cell 17 Construction Plans and Specifications. The ERL is requesting to keep the base of the clay liner at the same elevation as would.be used in the currently approved 2-foot clay layer design, and therefore an additional 1-foot of air space would be gained, see Figure 2, Option A, If approval for the Option A base liner modification is obtainable by the start of construction, the reserve capacity already permitted is sufficient to accommodate this modification. The Option A modification will increase the permitted capacity by approximately 6,700 cubic yards. However, as previously stated, the ERL is anticipating the initiation of Ce1117 construction in April and cannot postpone or delay this construction time-fraime..A.s a result, the ERL has. also submitted an additional liner detail (Figure 2, Option B) that will maintain the currently permitted base of waste elevations, and therefore substituting GCL for the 1-foot of clay; will raise the base of the clay liner by 1 foot. Ultimately, the decision as to whether or not GCL will be used'in place of 1-foot of clay will be dependent on the costs associated with clay layer placement and GCL material and placement at the ERL. S. Sand Drainage Layer: Lastly, as a point of clarification, the ERL's pernut requires a 12- inch sand drainage layer meeting the necessary permeability requixements. The enclosed Page 3 of 3 March 18, 2005 Plan Sheets illustrate an 18-inch granular drainage layer, however, as part of Addendum #1, an alternate was added detailing a 12-inch granular drainage layer. The ERL has chosen to use the approved 12-inch granular drainage layer and at this time plan on contacting a leak detection testing firm to test the synthetic liner following sand placement. If you have any questions regarding the above proposed modifications please do not hesitate to contact me at 763-463-2413. Thank you. Sincerely, Waste Management /F --, ~~~~ Stephanie Stolz enclosure c: Dave Lucas -Sherburne County Jeff Ubl -Barr Engineering (w/o hard copy of plans} Steve Rohlf - City of Elk River Matt Ledvina - NRG (w/o hard copy ~of plans) Deb Walters -Elk River Landfill (w/o enc.) EXISTING 7' LONG~TEE POST ENCASED IN PVC PIPE PLACED AT 100` INTERVALS AND A CHANGE IN DIRECTION t~Z°x4'x8'TREATEO PLYW000 - MARKER BOARD PLACED ALONG . LENGTH Cp' CELL ((~~3 ' 11 -~~f=~~~l EXISTING T' LONG TEE POST ENCASE IN PVC PIPE TO BE SAIVAGEO AND REUSED EXiSTiNG Iii x4'x8' TREATED PLYWC HAWKER BOARD TD BE SALVAGED AND REUSED NTRAC70R TO REMOVE (STING 60 mil HOPE CHOR TRENCH AND ARIFY EXISTING CLAY BAF2RIER YER PRIOR TO NEW CLAY ACEMENT. ' ~n _ ~4~ 2 TO 4.5 N 2` '•_~i .=~-' I\\ ~~~~ ,~ \ \I. SUBGRADE ' ~•` EXTRUSION WELD '''~~'~ EXi5T1NG 18" GRkNULAR DRAINAGE LAYER -.:~'~. EXISTING 60 mil HOPE GEOMEMBRANE EXISTING 24" CLAY 611RRIER' LAYER I~ - _ -_ -- \~\ }~ . . . ,.. ,. . CONTRACTOR TO REMOVE EXISTING 6D mit HDPE FLAP AND SCARIFY EXISTING CLAY BARRIER LAYER PRIOR 70 NEW CLAY PLACEMENT ' BCALB IN PBBP . 0 A 8 F1lE~ M:/0742/EUf RIVER/466 CELL 17 CONSTRUCTION/04ER17SOUTH EiERM.UGN ELK RIVER LANDFILL. INC_ , A,^~~~ FEB., 2005 • Cep 17 South Berm Future Lift Oetop *.... •-«n•~...t•~ Yeooy~-Ge...c«.~« Figure i [n.Ironm.nl.t [n n.+n Ymv hda 11!!a TOP OF LINER AT SAME ELEVATION AS CURRENTLY PERMITTED • GCL --~ ~ - /- 6Q mi t HDPE GCL ~ ~ 60 mi l HpPE 12" CLAY` BARRIER LAYER /// /// / 'IZ" CLAY BARRIER LAYER BASE OF CLAY AT SAME ELEVATION AS CURRENTLY PERMITTED OPTION A OPTION B I HEREBY CERTIFY THAT THIS PLAN. SPECIFICATION. • OR REPORT irAS PREPARED BY YE OR UNDER MY DIAECi SUPERVISION ANO THAT I AN A DULY LICENSED PAOfESSIONAL ENGINEER UNDER 7HE LAttS OF THE STATE OF MINNESOTA. SCALE [N REST' PR I Hr HAUeE 0 1 2 SIGNATURE F1LE~ M=/0742/ELK RVERl466 CELL 17 CONSTRUCTION/04ER17CNST04.OGN DATE LICENSE ++ ELK RIVER LANDFILL, INC. MAR., 2005 Eck Cell i7 Base Liner System Options rennk Aeteer.tn.ina reoa Pla~eer Creel Center Figure En~ironmentel Sn nears PWn.MN 85859 RESOLUTION NO. 10- City Council City of Elk River A Resolution Approving the Application of Elk River Landfill, Inc. for an Amended Conditional Use Permit and License for the Existing Elle River Landfill WHEREAS, Elk River Landfill, Inc. (ERL), awholly-owned subsidiary of Waste Management, Inc. (WMI), is the owner and operator of the EIk River Landfill (Landfill); and WHEREAS, ERL has submitted a land use application {Application) to the City requesting the approval of an amended Conditional Use Permit (CUP) and Solid Waste Facilities License (SWFL) for the Landfill; and WHEREAS, pursuant to the requirements of Minnesota Statutes and the Elk River City Code, the request by ERL for an amended CUP and License was referred to the City of Elk River Planning Commission for the purpose of holding a public hearing and snaking a recommendation to the Elk River City Council on the request; and WHEREAS, the Planning Commission held a public hearing on the request on February 9, 2010, at which time ERL was provided as much time as it desired to present the request and all information and data they desired in support of the Application; and WHEREAS, the Planning Commission took testimony from all members of the public who desired to speak at the February 9, 2010 public hearing; and WHEREAS, the Planning Corrunission closed its public hearing on the request on February 9, 2010 and adopted a emotion recommending to the Elk River City Council that the request for an amended CUP and SWFL for the Landfill be approved, subject to the conditions recommended by City staff as set forth in the proposed amended CUP and SWFL reviewed by the Planning Commission; and WHEREAS, the Elk River City Council, on February 16, 2010, held a public hearing on the request for an amended CUP and License and considered the Planning Commission's recommendation; and WHEREAS, ERL and all members of the public desiring to speak at the February 16, 2010 public hearing before the City Council were provided the opportunity to do so; and WHEREAS, all written materials submitted by ERL and all members of the public prior to and at the public hearing on February 16, 2010 were accepted into the record; and WHEREAS, during the February 16, 2010 public hearing the City Council discussed the merits of the request and tools into consideration the Planning Commission's February 9, 2010 recoirunendation; and WHEREAS, after all parties desiring to present testimony and offer evidence for or against the request for an amended CUP and SWFL had had the opportunity to do so, the Elk River City Council closed the public hearing on the request, continued its discussion of the request, and reached the decision incorporated in this Resolution. NOW, THEREFORE, the City Council of the City of Elk River makes the following Findings of Fact and Decision with respect to the request of ERL for an amended CUP and SWFL for the existing Landfill: FINDINGS OF FACT 1. The City Council makes the following findings of fact with respect to the Application by ERL for an amended CUP and SWFL for the Landfill: (a} That the Landfill is a Solid Waste Facility, as that term is defined in the Elk River City Code of Ordinances. 2 (b) That Solid Waste Facilities are only allowed, as a conditional use, within the City's Solid Waste Facilities Overlay Zoning District. (c) That the Landfill is located within the City's Solid Waste Facilities Overlay Zoning District; (d) That a license to operate a Solid Waste Facility can only be issued to a facility which is located within the Solid Waste Facility Overlay District and which has received a conditional use permit to operate; (e) That the Landfill has a valid, existing conditional use permit and license to operate a Solid Waste Facility on the existing Landfill property, which Conditional Use Permit and License expire on February 17, 2010; (f) That ERL has applied to amend the existing CUP and License so that operation of the existing Landfill inay continue beyond February 17, 2010; (g) That the Application to amend the CUP and License applies only to the existing Landfill, as described in the legal descriptions attached to the Amended CUP and SWFL attached to this Resolution; (h) That the City Council does not have before it an application to expand the fill area of the Landfill into the existing 200 foot buffer zone (Buffer Zone) which extends 200 feet North from the Southern property line of the Landfill; (i) That the 200 foot Buffer Zone, which is required by State law and regulation, is an integral part of the Solid Waste Facility which is the Landfill and is therefore required to be located on Landfill property which is zoned Solid Waste Facilities and subject to the CUP and SWFL for the Landfill; (j) That the application before the City Council does not propose or contemplate any expansion of the Solid Waste capacity of the Landfill beyond that approved ui the existing CUP and SWFL; (k) That the proposed Amended CUP and SWFL attached to this Resolution provide that no Solid Waste will be deposited within the 200 foot Buffer Zone; (1) That, based upon the entire record before the City Council, and the Findings of Fact set forth in this Resolution, the Amended CUP and SWFL attached to this Resolution comply with the City of Elk River Solid Waste Facilities Ordinance and meet the standards for approval of an Amended CUP and SWFL for the Landfill. DECISION THEREFORE, the City Council of the City of Elk River snakes the following Decision with respect to the request for an Amended Conditional Use Permit and SWFL for the existing Landfill: A. All of the reports and materials prepared by City Staff and City Consultants are hereby adopted and incorporated within the City Council's Decision on this matter. B. The record in this matter shall include all materials submitted to the City and presented to the Planning Commission and City Council, including those 4 materials presented in the staff reports, by the City staff and by the City's consultants, and all materials and testimony submitted by or on behalf of ERL, and their consultants, and all testimony received from the public, as of the date of this Resolution. C. The Findings of Fact set forth above in this Resolution are hereby adopted and incorporated as specific grounds for the Decision set forth herein. D. Based on all of the above, and in particular on the fact that the Application for an Amended CUP and SWFL for the Landfill does not include a request to deposit Solid Waste within the existing 200 foot Buffer Zone or to increase the solid waste capacity of the Landfill, the request of ERL for an amended Conditional Use Permit and SWFL for the Landfill is hereby granted, and an aanended CUP and SWFL in the forms attached to this Resolution are approved, on condition that the "Agreement for Issuance of Amended Conditional Use Permit," and the "City of Elk River Solid Waste Facility License Agreement," in the forms attached to this Resolution, are executed by ERL and/or WMI. THIS RESOLUTION PASSED AND ADOPTED this 16th day of February, 2010. Stephanie Klinzing, Mayor Tina Allard, City Clerk GP:2728945 vl 5 Ordinance No. 10- 05 CITY OF ELK RIVER An Ordinance of the City of Ellc River zoning certain property into the Solid Waste Facilities Overlay Zoning District and the Mineral Excavation Overlay Zoning District. FINDINGS OF FACT The City Council of the City of Elk River makes the following Findings of Fact: 1. The City of Elk River Solid Waste Facilities Ordinance (SWF Ordinance) was initially adopted in 1986. 2. The Elk River Landfill (Landfill) was subsequently zoned into the Solid Waste Facilities Overlay Zoning District and a conditional use permit (CUP) for the Landfill was initially approved in 1988. 3. Since 1988, the CUP for the Landfill has been renewed and amended 10 times. 4. The Legal descriptions of the area to be zoned into the SWF Overlay District and the area to be covered by the CUP for the Landfill were provided by the Landfill. The legal descriptions covered several parcels and almost two pages of text. The City has always assumed that the descriptions provided by the Landfill covered the entire Landfill property. 5. In connection with the recent litigation regarding the Landfill's application to expand onto the Tiller property, the Landfill is taking the position that their entire property is not within the SWF Overlay District. If this were true, the Landfill has deposited solid waste outside the SWF Overlay District, which is illegal under the City's Zoning and SWF Ordinances. 6. In order to eliminate the possibility of a gap in the SWF zoning of the Landfill property, to implement the intent that the entire Landfill property be zoned SWF Overlay District, and to bring the Landfill into compliance with the City Zoning and SWF Ordinances, the City has determined to zone the entire Landfill property into the SWF Overlay District and the ME Overlay District 1 ORDINANCE THEREFORE, the City Council of the City of Elk River does hereby ordain as follows: Section 1. That the property described as follows shall be zoned into the Solid Waste Facilities Overlay Zoning District and the Mineral Excavation Overlay Zoning District: That part of the NW '/a of Section 3, Township 33, Range 26 lying west of U.S. Highway 169; and That part of the SW '/4 of Section 3, Township 33, Range 26 lying west of U.S. Highway 169 and north of a line S2S feet south of and parallel to the north line of said SW I/4; and That part of the NE '/a of Section 4, Township 33, Range 26 lying east of the Great Northern Railway; and That part of the SE 1/4 of Section 4, Township 33, Range 261ying east of the Great Northern Railway and north of a line S2S feet south of and parallel to the north line of said SE 1/4, Sherburne County, Minnesota. Section 2. That this Ordinance shall take effect upon publication as provided bylaw. 2010. Passed and adopted by the City Council of the City of Elk River on April 19, CITY OF ELK RIVER Y~ Steph nie Klinzing Its: Mayor B ~` ..,f Y~ Tina Allard Its: City Clerk GP:2764608 vl 2 ~/ Elk REQUEST FOR ACTION River To Item Number Ma or & Ci Council 5.1. Agenda Section Meeting Date Prepared by Communi Develo went Aril 19, 2010 Rebecca Ha ,Environmental Admire Item Description Reviewed by Request by the City of Elk River to Zone Certain Property Lori ohnson, Ci Administrator Mineral Excavation (ME) Overlay and Solid Waste Facility Reviewed by (SWF) overlay -Public Hearing, Case No. ZC 10-05 Peter Beck, Ci Attorne Action Requested Staff and the Planning Commission support a recommendation to zone the subject property as presented. Background/Discussion The City's Zoning Ordinance was amended in 1986 to create the Solid Waste Facilities Overlay Zoning District. Two years after adoption of the SWF Overlay District, Elk River Landfill applied for rezoning to the Solid Waste Facility Overlay District and approval of a CUP for a Solid Waste Facility. The CUP for the Landfill has been renewed and/or amended numerous times since the original approvals in 1988. The legal descriptions for the area zoned to the SWF Overlay District were provided by the Landfill. The legal descriptions covered several parcels and almost two pages of text. The City's assumption at the time these descriptions were provided, and over the course of time since then, has been that the legal descriptions provided by the Landfill for the zoning, as well as legal descriptions provided in connection with the CUP renewals and amendments over the years, covered the entire Landfill property. We assume the Landfill also made that assumption, and did not intentionally seek approval of Conditional Use Permit amendments and renewals for areas outside the SWF Overlay District. Recently, in connection with litigation commenced by the Landfill against the City as a result of the denial of the Landfill's application to expand onto the Tiller property, the Landfill is taking the position that their entire property is not within the SWF Overlay District. The Landfill has submitted maps attempting to show that the SWF Overlay District .nuts along a section line and does not extend west to the right of way for the City trail. If this were true, the Landfill has deposited solid waste outside the SWF Overlay District, which is illegal under the City's Zoning and SWF Ordinances. Staff has reviewed the legal descriptions provided at the time of the zoning to the SWF CWerlay District and determined that most, if not all, of the area iim question does fall within the legal descriptions and is within the SWF Overlay District -notwithstanding the location of the zoning district line on some versions of the City's zoning maps over the years. Nevertheless, in order to eliminate the possibility of a gap, staff is recommending that the entire Landfill property be zoned SWF Overlay District. Staff has prepared a new description for the property to be zoned which is a simple, straight forward description that clearly covers the entire Landfill property (the property located south of the City's northern boundary, north of the Tiller property and between the City trail and Highway 169). This description is S:\Public Bodies\Coundl\Lori\2010\ZC ro CC 419.doc attached to this memo and will be incorporated in the proposed ordinance for adoption by the City Council. This ordinance will be available at the council meeting. The Landfill submitted the attached letter to the Planning Commission stating that they do not object to the staff recommendation. At the Planning Commission hearing, the Landfill pointed out that a closed portion of the landfill in the northeast corner is presently not covered by the CUP and therefore had SWF zoning but not a CUP. Staff does not consider this a big concern and does not anticipate coming forward with an amendment to the CUP to cover this area. If the Landfill comes forward to amend the CUP to address this issue, staff would likely recommend that the CUP be amended to incorporate the new description. In addition, staff anticipates processing a comprehensive plan amendment to amend the land use map element of the comprehensive plan to ensure that the area zoned SWF, as described in the new description, is the area identified on the land use map for Landfill land use. Financial Impact None Attachments • Comprehensive Plan Land Use Map • Area to be zoned • Notice of Public Hearing with new description • Letter from Landfill addressed to Planning Comrission Analysis Adoption of an Ordinance zoning the entire Landfill property into the SWF and Mineral Excavation Overlay Districts will eliminate the possibility of any gaps in the zoning districts; will eliminate the potential for illegal deposits of solid waste outside of the SWF Overlay District, and will ensure that the zoning of the Landfill property is consistent with the Comprehensive Plan designation of the property as "Landfill". For these reasons, staff and the Planning Commission recommend to the City Council that an Ordinance be adopted zoning the property descxibed on the attached legal description Solid Waste Faci]ity and Mineral Excavation Overlay District. A proposed ordinance for adoption by the City Council will be available at the council meeting. The alternative is to adopt the Landfill's position regarding the location of the SWF Overlay District and to commence a zoning enforcement action against the Landfill for deposition of solid waste outside of the SWF Overlay District. Recommendation Staff & Planning Commission recommend zoning the property as presented. Action Motion by Second by Vote FOllow Up S:\Public Bodies\Council\Lori\2010\ZC to CC 419.doc i ~ , ~ ~ ~u I ~ ~ ,. ..._ ~~~ I _.. i ~~.. ~~ ~~ ,h - s .R~ ~ '.. i. ~ ~y ~ ~ ..~"ft. ~ ,, ,.- ~~ s s r \ ,~ ~ F _ ~` ~ ~a ! ~ _. .p D f ~~ ~ ~ ~ ~~ }_f ~, ~ :E ~~ ~~~ .» ~' , r ~'~, ~~ t~~ ~:' Frt. • ~ t l ' -~'1~ ~ ,r,_ ~.. ~r~ ~ ,~ ,~--~.-- _ I v/f ~, , 3 , „~ ~,~ y C.: ~ .. .. ~, ~~ _Yt.~ c ~.~ ~~ d, ., z i ~..S1t . t ~ _ ' ''* . ~ ~* ~' s~ ' f ., R [ ' >e ~. .~ ,. -~.. ,- ~ a , ~ ~ , _ a. ~~ ~ ~ m ~. ~, 1 ;e ~ ~ ~~ .. _' ~Ij~i °' ~'! ant 5E' '' r ~ k_.___ , ~• ~, ~ F1~ >" tj -- ~. i .. .. r. , ~~ ~, $_ .. .lip -..r-, ~~ ~ . ~ l .. i of ur w .. }~j ry+ ' / ~ ~ ti ~~~~ A($ Y .. ~ ( t~ ._. I I ' n _ _ .~ ~ ~ t ~ ~ o ~ i fl Y ~... .., a. - ~ .. e. qq',' 4' ~{~.' y~ ~ mot: 1! -• ~.. A __. .. I a ~ , , ., i i, ~ \ ^ '~ 1', ~_ P f~. . ~ r . ~ ~~, _ . ~. ~~ ~ ». .., x k ~ ~ ~ .~..,. ~.. r u ..:. ~~ ,-~~ 3 ~ Y~. ~ ~ , ~ ~ ~ ~ ~ ~~ ~ ~ _ ..a. ~ i l` ~ ---~. J .~ ,~ ~' ~ ~,.,. ~. ____ ~ ~. ~~ ~ ne .-. ~=~ ~~ A:: ,~ 5, `~ ~' _ .. ~' ~ ~ ~ s ~ ~ ~~ ~ i , ~° ~ _ ~ u ~_n ._ E n tr ,~. ~ L ~: i i ! ~~ , '^ ~» 1 .. .Y .+ ,n ;,. ~ ~ ~ ~ ~ p ' ~ g 7 ~ I ~ ~ q lI .,e '4 t i r b ' ~` ~/ _ -,- L> ~ F ~ t ~~"~ ~ F ~..._~ -~ ,~_ x -° ~ _ r Wd b0.9Q~Z QTOU9t/b'~~P'dt~W NOllb'~C31\il~Pu~7 ~an??1 ~Ii3 56-UI ~Z\~Z\sa}i~ ~se~l~ie~y 6a~uoetd~luawdo~ana~ hrun;uwo~~:5 CITY OF ELK RIVER NOTICE OF PUBLIC HEARING The Elk River Planning Commission will conduct a public hearing on Tuesday, April 13, 2010 at 6:30 p.m. at Elk River City Hall, 13065 Orono Parkway, to consider a request by the City of Elk River for a Zone Change to rezone certain property to ME (Mineral Excavation Overlay] and SWF (Solid Waste Facility Overlay). The property is currently owned by Waste Management and operated as Elk River Landfill, Case No. ZC 10-05. The Elk River City Council will also conduct a public hearing concerning this matter on Monday, Apri119, 2010 at 6:30 p.m. at Elk River Ciry Hall, 13065 Orono Parkway. The property is described as: That part of the NW'/4 of Section 3, Township 33, Range 26 lying west of U.S. Highway 169; and That part of the SW '/< of Section 3, Township 33, Range 26 lying west of U.S. Highway 169 and north of a line 525 feet south of and parallel to the north line of said SW'/a; and That part of the NE '/4 of Section 4, Township 33, Range 26 lying east of the Great Northern Railway; and That part of the SE'/a of Section 4, Township 33, Range 26 lying east of the Great Northern Railway and north of a line 525 feet south of and parallel to the north line of said SE '/<, Sherburne County, Minnesota. The described property includes the following Parcel Identification Numbers: 75-103-2100, 75-103- 2105, 75-104-1102 and 75-103-2400. As part of the review process for requests of this nature, we attempt to notify all property owners at least 350 feet in distance from the subject property. The tax records from the Sherburne County Auditor's Office indicated that you own property within or near the 350-foot requirement. All interested persons are invited to attend the public hearing to express their questions and/or comments. Hearing impaired persons planning to attend who need an interpreter or other persons with disabilities who require auxiliary aids should contact Tina Allard, City Clerk, at 635-1000 by April 9, 2010. If you would like information regarding the above-described public hearing notice, please call Elk River City Hall at 635-1000. Jeremy Barnhart, Planning Manager BRIGGS ~~ April 13, 2010 VIA EMAIL City of Elk River Planning Commission 13065 Orono Parkway Elk River, MN 55330 ATTN: Dana Anderson (dra55330@yahoo.com) Paul Bell (Paul_Bell@prodigy.net} Troy Ives (tpives@charter.net) Eric Johnson (ericj 13@charter.net) Pete Lemke Kevin Scott {kevin scoff@charter,net) Chad Westberg (crw4383@hotmail.com) Jack Y. Perry (612)977-8497 jperry@briggs.com Re: City's proposed expansion of SWF overlay district to comport with CUP Dear Commission Members: ERL does not object to City Staffs "recommendjed] zoning (ofJ the property as presented." As City Staff concedes, "Staff has reviewed the legal descriptions provided (by ERL] at the time of the [January 16, 1996] zoning to the SWF Overlay District and determined that most, if not all, of the area in question does fall within the legal descriptions and is within the SWF Overlay District -- notwithstanding the location of the zoning district line on some versions of the City's zoning maps over the years." Staff Report at 1. Indeed ERL's surveyor confirmed the same. Ex. 167; compare Ex. 45, Tab C (Ex. A to 1/16/96 City of Elk River Agreement for Issuance of Amended Conditional Use Permit). ERL is, nevertheless, compelled to clarify a few adverse suggestions in City Staff s report. First, CiTy Staff erroneously suggests at page 1 of its report that "the location of the [SWF overlay] zoning district line on some versions of the Ciry's zoning maps over the years" was different on those maps which were previously submitted to City Council - i.e., (1} 2000 Vicinity Map (Ex. 162}; (2) 2002 Location (Ex. lb3); (3) 2003 Zoning Map {Ex. 45, Tab 2); (4) 2006 Zoning Map {Ex. 165}; (5) 2007 Zoning Map (Ex. 45, Tab 3); (6) 2009 Zoning Map (Ex. 45, Tab 4); and {7) 2010 Zoning Map (Ex. 166). Despite E}2L's earlier Data Practices Act requests to City and City's briefs to the Court on this issue, there are no "versions of the City's zoning maps" which show "the location of the [SWF overlay] zoning district line" different than represented by ERL on these maps. 2200 IDS Center 80 South 8th Street Minneapolis MN 55402-2157 tel 612.977.8400 fax 612977.8650 Briggs and Morgan, Professional Assodation Minneapolis I Sr. Paul I www.brigg;.com Member - L2x Mundi, a Global Associat(on of Independent Law Flans B R I G G S AND M O R G A N City of Ells River Planning Commission Apri113, 2010 Page 2 Second, City Staff erroneously suggests at page 1 of its report that the SWF overlay district line may not "run[] along a section line and does not extend west to the right of way for the City trail." There is na contrary understanding of where the SWF overlay district line is shown on alI seven of the above-cited City maps. Third and finally, City Staff erroneously suggests at page 2 of its report that City has "[t]he alternative" of "commenc[ing] a zoning and enforcement action against the Landfill for deposition [of] solid waste outside of the SWF Overlay District." To the contrary, City, through its January 16, 1995 issuance of the CUP for the Landfill Property (Ex. 45, Tab C), "effectively approved of the SWF overlay district for the entire 137.4-acre property." 9/29!09 ERL Mandamus Petition at ¶ 3; but see 10/19/09 City Answer's 3 {denial}. With Judge Varco`s Apri12, 2010 ruling in favor of ERL (Ex. 168), the parties' respective finger-pointing should end and a global solution reached. To that end, City Staffs "recommend[ed] zoning," minus its erroneous suggestions, is a critical first step. ERL Looks forward to, using Judge Varco's language, "proceed[ing] with its proposed landfill expansion" (id. at 32) and resuming the good relations with City. Sincerely, w Ja k Y. Perry JYP/kg Enclosures cc: R. Haug {via email) L. Johnson (via email) M. Ayers (via email} D. Walters (via email) B. Jeffry (via email) ,T .i + Per Jack Y. From: Brian Praske [bpraske@bogart-pederson.com] Sent: Thursday, February 18, 2010 3:42 PM ~o; Walters, Debra Subjecf: ERLF Attachments: ERLF-1.pdf These turned out to be big files. I wil! send one at a time. BP EXHIBIT 167 s c h ,~. w'{i- lOT 0 ;: tii~;.. ~~; .. 'River `Epnd~lfa- . • X66 . .9 `':' ,{ tii~ .. .~' ~. :.~'. ... Y 75-!04-1400 ~ ~ ~ ;;~' ~ »~ E!k River Landfill ,;4 - ~T r.- ~.~ t~3` ,~~ z F°°c~; ~~ ~ cE r Perry, Jack Y. From: Brian Praske [bpraske@bogart-pederson.comj Sent: Thursday, February 18, 2010 3:44 PM To: Wafters, Debra Subject: ERLF Attachments: ERLF-2.PDF Hope this helps. I think your tax parcels are correct. 1t is just the underlying deed descriptions that make up the tax parcels that are a mess. BP ~~.. I I - - .I~, I I y u 5 Q ~a d c ~ a i ~ .. .a ' o +°Ro .~ .. ,, ,.,. - ~.~~.G'~~O 3 ~~40 ~.,_ uz•mC ~ O N O:p.W Gi~.~ ~~ N ~ .. _ C O •... Q7 Ob Ow ~fiZ lO O. O^L~mQt ~... b. mCfi :pw~ ~: C'. QNi L .. y b '~- 1+ . 5:`{. ~ O Oil. -COQ ~• C . ,~,~ O, v' ,C.: y ; , C ~ ~ dw ~ q~C . m ~' b ~-~. o .~ ~V - ~-y~~'•c 3bw ' o~o. 4~ v `~' 4: ~.m ~ mrn~v c.1... ` ~ 2 ti y V ~ O..C;°..:..C ~++' O C C ~ 2.'y lp m` ; O tO y • y y ab ~ mk'~ ~:. ti ~ Q'`w°~c`a, w:~ o ~b.v ~~m' rti°~L2 ° O.~'a 3. 0-4.o~w.-:: mt ~..o.~.,,m~rK .HC6'~Oj~' ~m•r'o ~''. - ~fl m wu m •'c«a..~.m..,o~ o ~'Z.3•c~~oa+,~. ~~d~cz9~` a;mro,'b~m ~cooua°,'.C u .2giv~°!~..a~,• ~V:ot;.N.o, `,~.~~ o.r~ e ~s, d uCi ;?' b.. v 2 ~, ~ b ° m m -•~ 3 m,'~ tifi.: a O ~,~ ~n .., m. ~O$~•.m.fi y .~~OLmCn~(n 2`.C~•C,3 ~m .~~.~pmd - ,wo$° woi•e.~ ~ °~ ° Q.C 4rs N 3 r~.C.gx ~,~ °.0,~'aNi ~•y m °.eb ~'~~ y '. ~ °:°3 c4 °~•° o.v~: v..r o'..3~n2p', u"c~~ u o ~•C SqC O.~y O' ~C.A' C VO`Z t ~ ~ p~.'. y..0 dfiry 1. ~..~ ~ L'C ..l A O .O 'b L ~~ ~ ~b N~•~~v O N ~ O,`02"'+.. JaO.=~`b.0 y'fi +.as,~QyWa. °- y'ap•r.. ~ ~v~,+fi,-b0~. O.C~ 3~~C .y g~O-.C ~~:w C N~ ~COa ~. tb3mblr.~y,. :•. ... .O C k .L .,,,,, O .; 3' O 2 O~ ~. O O~• m ¢~ b O C O~ 3 y-2 O `• N a g .+.. . .; N O" O 01.N ` w O. ~ "m-' 2 .C •r'r C O- r 4 +. O wl. O v,- m O N fi .. d U w ,,,; ~ 3 of `~ m m C b V m v.. N- ,~ ~'.C O O Z ~'.. ~ .Q~~ m b~;3 , ~ ~ .c ~ o Nw~~'o•o' o o °, _ ° o'. I .e .J~ v :c o `d~23~'•`° 2v,,;,~ y~_4Cmo m~o~uioo' 3.~o m..o:m 2 ° v.~ w: ~ a•Q , c d ~ Q.A o c .a ,~ q . o ~.Z : fi N m c~.2 w ~ c ., ti v c •m~w~O~~%0 .:ti~°A ~~~3N~b~•C' ~ ~. Ory-O'ni m.~~ .~3~wu p~ ~.Gfi1'CCp 03x, '~,.~O.VU~,ti mL.y~Jr W~.. -I~CO~'O w'.''O .2 Ur'C..Nb•"~ ~ ..p y~ ;.:y fi ~C y m ~ O °i+m. 0~ ° p .'C„ ~ ~t O C..O .,; w ~ C L m ~ k ~ . Q~'.•:~'I o ~w:: a~:b ~ ~~:.o.c ti~ ~~.c ..O ° ~y,° v v O v .. L.N,.•G.v.. o:.:.'?. ~,C k m Nfi•...~'~- O~'b2 ~'~~ .Q a: m m N k2 C O. ~ ,' ~.b v.:~;o ~'''' ~•-'c v;rnfi o rn o*~ m ~.c.c v.•~ v•~._ °.c .,'q.°~ d~dj'~~„~ b m..w.^.'~'~. Q V7 "` ~ L .Oi+. •" ... h m ~O 2 ~ ° `• ` ~ .. ° y .,'C., m' aZ "" .. ~ ..~':NVO..°c~ ~.~ M .~,ombC_cyu c Nm~yp~gw. ,,err.. Oi Qck' o ~~r~ '~ ~,'., o~ v °iv ~fi~,b ~ m u r~b'~~ v~•g. N fi L '3: c fi o'er c m o c r. ... ' In O "-' r_ o b O q •C ~ ita'"' V' N~ Y ~. o,.. Nmo ai am~c N ~'ow- v'"'-tnbvN32.O~,~:3 °~;:2v rrnY•.r".~o;$~Z~ fi ofi vbY ° o m mm ,.. tic. '~....4•cb,~v~,H~''pov--v _~~~u°~mc'N'b~mo$~~o' ry$:vq~y~O~. I ~'~ H'av o` b~'..'.;~z a'"c.:a~, Q.o Ww o!~ 3 ~,"u'.~aLi.aNi.~-c..•cw.... I ~2.b,b3.b:y ~ ..~OC3mo.-°"•',C -~3r~'o~am..EowQ,.uti !~~o~,m•c.3.~. C7Q.w~op~~:b' I .Ct~.10 N, m N .•, O ~... O .C A C C +- _ O C...'C... Q?= I. 'ti .. ..,;~:~..'}1•.~. ..00 `~ ~~ ~•~` O.m CQ-~ O~ CcO~ ~ ,,N.~~, .~ 3 .. ^ .O.` Cb~O O.C ,. .~+;.~ q,~y;.,,, `O '~ `:C a y Or. N y'fi ~ N Q::O ~ pt_.: ~ L r V --~~m ~ ' OO.t.~p~m~Uy70~: v b~r~m~OLlp.. b~~~~.~.~•m ~. q C4~~~M-O=.w ~. ~y2 o'u.~ii~sg2~ .~A~..~~s u-C~_~:.~~~ ~ ~'",}~ C.~,''w'fr°i ~-C) ~1mc- ,,,y~E 3 m- ' ~ Oyu Wo mm•p Z~~~~t~t OOm00~. O,"fiOi.:Z01~.ON ::b~~''Om 1. by .b'~~•~.tp fib: ~:o Q~..ti..~'b2;5:S.Nti ~tir..c~2~<n2 °srl',.F: ,¢~,2,m'p3Z Nvfi..: 4:~:~i~,ev,-~°Z:~'~'.. t i ~.. `.., ~_ I Ordinance No. 10- CITY OF ELK RIVER An Ordinance of the City of Elk River zoning certain property into the Solid Waste Facilities Overlay Zoning District and the Mineral Excavation Overlay Zoning District. FINDINGS OF FACT The City Council of the City of Elk River makes the following Findings of Fact: 1. The City of Elk River Solid Waste Facilities Ordinance (SWF Ordinance) was initially adopted in 1986. 2. The Elk River Landfill (Landfill) was subsequently zoned into the Solid Waste Facilities Overlay Zoning District and a conditional use permit (CUP) for the Landfill was initially approved in 1988. 3. Since 1988, the CUP for the Landfill has been renewed and amended 10 times. 4. The legal descriptions of the area to be zoned into the SWF Overlay District and the area to be covered by the CUP for the Landfill were provided by the Landfill. The legal descriptions covered several parcels and almost two pages of text. The City has always assumed that the descriptions provided by the Landfill covered the entire Landfill property. 5. In connection with the recent litigation regarding the Landfill's application to expand onto the Tiller property, the Landfill is taking the position that their entire property is not within the SWF Overlay District. If this were true, the Landfill has deposited solid waste outside the SWF Overlay District, which is illegal under the City's Zoning and SWF Ordinances. 6. In order to eliminate the possibility of a gap in the SWF zoning of the Landfill property, to implement the intent that the entire Landfill property be zoned SWF Overlay District, and to bring the Landfill into compliance with the City Zoning and SWF Ordinances, the City has determined to zone the entire Landfill property into the SWF Overlay District and the ME Overlay District 1 ORDINANCE THEREFORE, the City Council of the City of Elk River does hereby ordain as follows: Section 1. That the property described as follows shall be zoned into the Solid Waste Facilities Overlay Zoning District and the Mineral Excavation Overlay Zoning District: That part of the NW 1/4 of Section 3, Township 33, Range 26 lying west of U.S. Highway 169; and That part of the SW '/4 of Section 3, Township 33, Range 26 lying west of U.S. Highway 169 and north of a line 525 feet south of and parallel to the north line of said S W I/4; and That part of the NE 1/4 of Section 4, Township 33, Range 26 lying east of the Great Northern Railway; and That part of the SE '/4 of Section 4, Township 33, Range 261ying east of the Great Northern Railway and north of a line 525 feet south of and parallel to the north line of said SE '/4, Sherburne County, Minnesota. Section 2. That this Ordinance shall take effect upon publication as provided by law. 2010. CITY OF ELK RIVER By: Stephanie Klinzing Its: Mayor By: Tina Allard Its: City Clerk GP:2764608 vl Passed and adopted by the City Council of the City of Elk River on April 19, 2 Ordinance No. 10-02 CITY OF ELK RIVER An Ordinance of the City of Elk River amending Chapters 30 and 58 of the EIk River, Minnesota, City Code to Reaffirm that Required Buffer Areas and Buffer Zones for Solid Waste Facilities Must be Located Within the Solid Waste Facilities Overlay Zoning District. FINDINGS OF FACT The City Council of the City of Elk River makes the following Findings of Fact: 1. The City of Ellc River Solid Waste Facilities Ordinance (SWF Ordinance) was initially adopted in 1986. 2. Since adoption of the SWF Ordinance in 1986, Solid Waste Facilities, including sanitary landfills, have been required to be located within the City's Solid Waste Facilities Overlay Zoning District. 3. The Elk River Landfill (Landfill) was rezoned to the Solid Waste Facilities Overlay Zoning District in 1986, and a conditional use permit (CUP) for the Landfill was initially approved in 1988. times. 4. Since 1988, the CUP for the Landfill has been renewed and amended 10 5. Paragraph 3 of the CUP requires that a Buffer Zone be established within the perimeter of the Landfill Property around the waste disposal areas of not less than 200 feet, except on the North side. Within this Buffer Zone, no waste disposal may occur. 6. Minnesota Rules, Part 7035.2815, subp. 5(c), also provides that any new fill area at a land disposal facility must be located at least 200 feet from the nearest property line, unless otherwise approved by the MPCA. 7. Beginning with approval of the original CUP for the Landfill, through all of the renewals and amendments, it has been understood that the 200-foot Buffer Zone provided for in the CUP has been required to be located on Landfill property, as required by Minnesota Rules, and within the Solid Waste Facilities Overlay Zoning District. 8. The 200-foot Buffer Zone on the east, west, and south sides of the Landfill has always been located on Landfill property within the Solid Waste Facilities Overlay Zoning District. This Buffer Zone is used exclusively for Landfill purposes, such as screening, service roads and other infrastructure.. It is not available for development for any other use. 1 9. Allowing areas zoned and designated in the City's Comprehensive Plan for uses other than Solid Waste Facilities to be used to satisfy the Buffer Zone requirement for a Solid Waste Facility would be inconsistent with the City's Comprehensive Guide Plan because designating those areas as buffer zones impairs or prevents their development for uses consistent with a Comprehensive Plan. 10. The City has not allowed other types of setback requirements to be sati:,~fied by acquiring interests in adjoining property that is located in a different zoning district, so as to allow development up to the zoning and property lines. Not allowing such an approach results in a more consistent application of planning and zoning principles throughout the City. 11. Since it's adoption in 1986, the SWF Ordinance, now incorporated in Chapters 30 and 58 of the Elk River City Code, has included a definition of Solid Waste Facilities which defines Solid Waste Facilities as "all property, real or personal ... needed or useful for the processing or disposal of solid waste ...." 12. This definition of Solid Waste Facilities has always been interpreted to include all components necessary for the operation of a Solid Waste Facility, including required buffer areas and buffer zones, except facilities or equipment which must, by necessity, be located off-site, such as wells required to monitor a Facility's off-site impact on groundwater. 13. Therefore, the City Council finds that the definition of Solid Waste Facility in Chapters 30 and 58 of the Elk River City Code does, and always has, included required buffer areas and buffer zones and that, therefore, required buffer areas and buffer zones are required by the current City Code to be located within the Solid Waste Facilities Overlay Zoning District. 14. Notwithstanding the language of the City Code requiring that all property needed or useful for the processing or disposal of solid waste be located within the Solid Waste Facilities Overlay Zoning District, and its 22-year history of complying with this requirement, Elk River Landfill, in a letter to City Staff dated January 28, 2010, and in subsequent pleadings and arguments made to the Sherburne County District Court, is taking the position that the City's SWF Ordinance is ambiguous and that required buffer areas or buffer zones are not required to be located within the Solid Waste Facilities Overlay Zoning District. 15. In light of this new position by the Landfill, the City Council finds it appropriate to reaffirm the intent of the SWF Ordinance that all components of a Solid Waste Facility be located within the Solid Waste Facilities Overlay Zoning District, including buffer areas and buffer zones, by adopting appropriate amendments to Chapters 30 and 58 of the Ellc River City Code. 2 ORDINANCE THEREFORE, the City Council of the City of Ellc River does hereby ordain as follows: Section 1. That Sections 30-1 and 58-91 of the Elk River City Code shall be amended by revising the first sentence in the definition of "Solid Waste Facility" to read as follows: Solid Waste Facility means all property, real or personal, including negative and positive easements, water and air rights, all storm water management facilities, and all buffer areas or buffer zones, which are or may be required, needed or useful for the processing or disposal of waste and for which processing or disposal of waste a license is required under the provisions of this Code. Section 2. That Section 30-1834 of the Ellc River City Code, entitled SWF "Solid Waste Facility Overlay District," shall be amended by adding new subsection (e) thereto, which shall read as follows: (e) Solid Waste Facilities restricted to SWF -Solid Waste Facilities Overlay District. No Solid Waste Facility, including any portion of a Solid Waste Facility, any easements, water or air rights, all storm water management facilities and all buffer areas or buffer zones required, needed or useful for the establishment and/or operation of the Solid Waste Facility, with the exception of facilities necessary for monitoring the offsite impacts of the facility on ground and surface water, shall be located or operated in the City except in those areas of the City located within the SWF -Solid Waste Facilities Overlay Zoning District. Section 3. That Section 58-100 (b) of the Ellc River City Code, entitled "Location of Solid Waste Facilities," shall be amended to read as follows: (b) Location of Solid Waste Facilities. No Solid Waste Facility, including any portion of a Solid Waste Facility, any easements, water or air rights, all storm water management facilities and alI buffer areas or buffer zones required, needed or useful for the establishment and/or operation of the Solid Waste Facility, with the exception of facilities necessary for monitoring the offsite impacts of the facility on ground and surface water, shall be located or operated in the City except in those areas of the City located within the SWF -Solid Waste Facilities Overlay Zoning District. Section 4. That Section 58-171 of the Elk River City Code, entitled "Prohibited Areas," shall be amended by adding new subsection (8) thereto, which shall read as follows: (8) 200 feet from the nearest property which is not located within the SWF -Solid Waste Facilities Overlay Zoning District. 3 Section 5. That this Ordinance shall take effect upon publication as provided by law. Passed and adopted by the City Council of the City of Elk River on March 15, 2010. CITY OF ELK RIVER By: iM-.Q, , Ste anie Klinzing Its: Mayor By: ~ ~, Tina Allard Its: City Clerk GP:2734899 v3 4 i atY or Elk. ~. aEQuEST ~oaa~T'o~v River To City Council Agenda Se n March 15, 2010 Item Number Description City of Elk River for Ordinance Amendment Relating to Buffer Zones, Case No. OA 10-01, Public Hearing 6.6. Prepared by Peter Beck, City A Reviewed by Action Requested Staff and Planning Commission recommend approval of the attached Ordinance. Su- Staff and Planning Commission are recom>.nending the City Council adopt the proposed ordinance amending Chapters 30 and 58 of the City Code to reaffirm that buffer areas for solid waste facilities must be located within the Solid Waste Facilities Overlay District. Plannin Commission Discussion The Planning Commission had questions of the proposed ordinance amendment and application of the amendment to the landfill's pending application to expand the landfill. These questions are addressed in the attached memorandum from the city attorney. Public Comment Jack Parry, representing the landfill, spoke to the Planning Commission. Attachments • Staff Report to Planning Commission Dated March 9, 2010 • Memorandum from City Attorney Peter Beck, Dated March 12, 2010 • Memorandum from City's Litigation Counsel, John Baker, Dated March 12, 2010 • Draft Ordinance On Motion by Second by Vote Follow Up S:\Public Bodies\Council\Planning\Buffer 7ones.doc City of ~) c °~ ~° r ~' 11.i~~r To Iterrr plumber ~~'Iannin -Commission 5.5. /4genda Section Meeting Date Prepared by Planning Items March 9, 2010 Jeremy Barnhart, Planning Manager Item Description Reviewed by .f~~lopti-on of an Ordinance Amending Chapters 30 and 58 of the Peter Beck, Ci Attorn City Code to Reaffirm that Buffer Areas for Solid Waste Reviewed by Facilities must be located within the Solid Waste Facilities Overla Zonin District. Action.Retluested Staff recommends approval of the Ordinance as drafted. Background/Discussion Since it's adoption in 1986, the City's Solid Waste Facility (SWF) Ordinance, now incorporated in Chapters 30 and 58 of the Elk River City Code, has included a definition of Solid Waste Facilities which defines Solid Waste Facilities as "ali property, real or personal ...needed or useful for the processing or disposal of solid waste ....". This definition of Solid Waste Facilities has always been interpreted to include all components necessary for the operation of a Solid Waste Facility, including required buffer areas and buffer zones. Beginning with approval of the original CLIP for the Landfill in 1988, through all of the renewals and amendments in the 22 pears since then, it has been understood that the 200-foot buffer zone has been required to be located on Landfill property within the Solid Waste Facilities Overlap Zoning District. The existing 200-foot buffer zone on the east, west, and south sides of the Landfill has- always been located on Landfill property within the Solid Waste Facilities Overlay Zoning District. Notwithstanding the language of the City Code requiring that all property needed or useful for the processing or disposal of solid waste be located within the Solid Waste Facilities Overlay Zoning District, and its 22-year history of complying with this requirement, Elk River Landfill is now taking the position that the City's SWF Ordinance is ambiguous and that required buffer areas or buffer zones are not required to be located within the Solid Waste Facilities Overlay Zoning District. The City Council considered this position in the course of approving a renewed and amended conditional use permit and license for the Landfill on February 16, 2010, and found that the 200- foot buffer zone required by state law is an integral part of the Solid Waste Facility which is a landfill and therefore, that required buffer areas and buffer zones are required by the current City Code to ,be lacatedwithin the Solid Waste Facilities Overlay Zoning District. In light of the landfills's new position regarding buffer areas, City staff feels it would be appropriate for the Planning Commission and City Council to address the intent of the Solid Waste Facilities Case File OA 10-O1 Buffer Ordinance Page 2 9-xdi~aance ..by considering amendments to Chapters 30 and 58 of the Elk River City Code. Therefore, City staff has prepared the attached ordinance amendment for consideration by the Planning Commission and recommends that the Planning Commission recommend to the City Gouncil.thatfh~amendment be adopted. ~ltfiachments Draft Ordinance Letter to Deb Walters advising the Landfill that the Planning Commission and City Council will consider this amendment. .. ~ ~ ,. city k .~. ~ver 13065 Orono Parkway Ellc River, MN 55330 March 2, ? 010 Ms. Deb Walters ~'~aste Management Inc. 22460 Higliwap 169 NW Elk River, NIN 55330 Re: Ordinance Amendment Regarding Buffer Area Requirement Dear Deb: For over two decades both the active area of the landfill and the buffer area requiied by state law and in the Landfill's Conditional Use Permit have been located within the boundaties of the City='s Solid Waste Facilities Overlap Zoning District. It has always been the City's view that both the active area and the required buffer area are parts of the Solid Waste Facility within the meaning of the City Code, and that all parts of a Solid Waste Facilit-1= must be located within the Solid Waste Facilities Overlap Zoning Distt7ct. Nottivithstanding the language of the Cit3= Code requiting that all property= needed or useful for the processing or disposal of Solid Waste be located within the Solid Waste Facilities Overlap Zoning District, and its 22 pear history of complying with this requirement, Elk River Landfill has taken the position, in a January 28, 2010 letter to Cit~T staff and in subsequent pleadvngs in Sherburne County= District Court, that the City='s Solid Waste Facilities Ordinance is ambiguous and required buffea: areas or buffer zones are not required to be located within the Solid C~=paste Facilities Overlap Zoning District. The City= Council considered this position iri the course of approving a renewed and amended conditional use permit and license for the Landfill on February= 16, 2010, and found that the 200 foot buffer zone required by State law is an integral part of the Solid Waste Facility v=hick is a Landfill and that, therefore, required buffer areas and buffer zones are required bj- the cw:rent Cite Code to be located within the Solid ~X~aste Facilities Overlap Zoning District. In light of the Landfill's new position regarding buffer areas, City staff feels it u=ould be appropriate for the Planning Commission and City Council to address the intent of the Solid Waste Facilities Ordinance br considering amendments to Chapters 30 and 58 of the Elk River Citt- Code. Therefore, City staff has prepared the enclosed ordu~.ance amendments for Phone: 763.635.1000 Fax: 763.635.1090 wwvr.ci. elk-river,mn.us I~eb ~lalterx 1\larcli 3, 2(11(1 Pagr 2 consideration by= the Planning Commission at their meeting on March 9, 2010 and b5~ d1e City= Council at its meeting on March 16, 2010, City staff is not clear, from die recent applications for CUP amendments submitted b~= the Landfill and Ti11er Corporation, whedzer the Landoll intends to or has obtained either additional property= or easement rights from Tiller, However, u=e are providing ~=ou with advanced notice of dze proposed ordinance amendments so that y=ou can consider the possibility= of adoption of these amendments in deternvw.yng whether and when to acquire any additional property= interests from Tiller, Please contact me if y=ou have and= questions. Very, truly* yow:s, Rebecca Haug Environmental Administrator Gl':27i7 )82 c•1 Memorandum TO: City Council City of Ellc River FROM: Peter Beck City Attorney RE: Proposed Ordinance Amending Chapters 30 and 58 of the City Code Regarding Buffer Areas DATE: March 12, 2010 This memorandum supplements the staff report and addresses some of the issues which the Landfill raised during the Planning Commission hearing on the above agenda item and in a letter to the Planning Commission dated March 9, 2010. I have also asked the City's litigation counsel, John Baker, to prepare a memorandum to the City Council addressing some of the Landfill's representations regarding the litigation proceedings. Timing of the Proposed Ordinance Amendment The Planning Commission inquired as to the timing of the proposed ordinance amendments. As I explained to the Planning Commission, the first time City staff heard the argument that the 200-foot state mandated buffer area for the Landfill should not be required to be on Landfill property or within the Solid Waste Facilities Overlay District was in a letter to City staff dated January 28, 2010. Although the concept of excavating or mining in the buffer area pending expansion of the Landfill had been raised in 2002, no argument was made that I was aware of that the Landfill had the right to place solid waste in the buffer area without rezoning additional land. Following receipt of the January 28, 2010 letter, staff reviewed the City's zoning and Solid Waste Facility ordinances and concluded that the existing ordinances require all components of the Landfill, including the state mandated 200-foot buffer area, to be located within the Landfill property and within the Solid Waste Facility District. This is how the ordinance has been interpreted since it was adopted and the first conditional use permit for the Landfill was approved some 22 years ago. However, staff concluded that it could not hurt to even more specifically so state in the zoning and Solid Waste Facility ordinances, and began preparation of appropriate ordinance amendments. There was not time to get the proposed amendments on the Planning Commission's and City Council's February agendas, so they wexe targeted for the Commission and Council's March agendas. While the ordinance amendments were being prepared, the Landfill filed an application to expand the Landfill into the 200-foot buffer area. Staff proceeded to finalize the ordinance amendments and prepare a staff report, which was released with the Planning Commission agenda packet on March 2, 2010. In light of the Landfill's application to amend its conditional use permit, staff also sent a letter to the Landfill on that date notifying them of the proposed ordinance amendments. Application of the Proposed Ordinance Amendments to the Landfill's Pending Application The Planning Commission also inquired as to whether the proposed ordinance amendments would apply to the Landfill's pending application to amend its CUP and License to expand into the 200-foot buffer area. As was explained to the Planning Commission, the City has the right to apply the ordinances in effect at the time it acts on an application for approval, and is not obligated to apply the ordinances as they were in effect when the application was made. This is a principle of law which I am very familiar with, but in light of the litigation I also consulted with the City's litigation counsel, John Baker. John confirmed my analysis and provided me with an outline entitled "Vested Rights Law in Minnesota," which he has prepared and assigns his students to read when teaching land use law at the William Mitchell College of Law. A copy of this outline is attached. Section I (on pages 1 to 6) is most relevant. In this instance, the proposed ordinance amendments do not add a requirement that all components of a Solid Waste Facility be located in the Solid Waste Facility District. The ordinance has always required that. The proposed ordinance amendment reaffirms what the ordinance currently requires. However, even if the Ordinance Amendment can be characterized as a change, the City has the right to make such a change to its City Code. Finally, as we explained to the Landfill in our February 2, 2010 letter advising them of the proposed ordinance amendments, and to the Planning Commission, the proposed ordinance amendments, if adopted, will not stop the Landfill's pending application to expand. That application will continue to be processed and is currently scheduled to be heard before the Planning Commission and City Council at their April 13 and April 19 meetings. Landfill Components The Landfill, in comments to the Planning Commission and in their March 9, 2010 letter to the Planning Commission, has stated that the current ordinances do not require that all components of the Landfill be located within the Solid Waste Facility District, because the City has approved monitoring wells located outside of the District. It is true that there are a number of monitoring wells located off of the Landfill site and outside of the Solid Waste Facility District. The purpose of these monitoring wells is to identify and monitor offsite impacts of the Landfill on groundwater. By definition, these wells cannot be located onfite. Their purpose is to identify offsite impacts. Therefore, the fact that they are not within the Solid Waste Facility District merely reflects their purpose, and does not mean that all other components of the Landfill, including waste disposal areas, gas wells, service roads, buildings and other infrastructure, are not required to be on landfill property and within the Solid Waste Facility District. 2 Furthermore, the monitoring wells do not require exclusivity in their setting. They can be located in residential or other developed areas, and frequently are in order to monitor the impact of the Landfill on groundwater in those areas. The required buffer area, on the other hand, can not be used for anything but buffer area for the Landfill. It is undevelopable and unusable for any other purpose, and is as much a part of the Landfill as the service roads and other infrastructure located on the Landfill site. Host Community Agreement A primary focus with the Landfill's litigation strategy has been to attack City staff, including the City Attorney. The Landfill's complaint and subsequent pleadings repeatedly misrepresent our actions and misquote us. In their March 9, 20101etter to the Planning Commission, the Landfill has carried this strategy to the next level, purporting to tell the Planning Commission what I did or did not "envision" when negotiating the Host Community Agreement. To set the record straight, neither the Landfill nor its attorneys have access to my thought processes, not now nor in the past. Furthermore, when we entered into the Host Community Agreement with the Landfill I did not envision, and would not in my wildest imagination, have envisioned that the Landfill would ever say that this agreement gave them the right to expand the Landfill by 75%. The Host Community Agreement cost the Landfill nothing. The surcharge they were paying, and were going to pay, became a Host Community fee. Their net cost was zero. How they can take the position that by entering into this Agreement they bought the right, by contract, to expand at will, is beyond me. This argument was not made when the Landfill was requesting approval of a comprehensive plan amendment and rezoning to expand, and the concept never occurred to me until I read the Landfill's complaint in the Litigation. With respect to what I did envision at the time the Host Agreement was entered into, I would say that at that time, and until the complaint was received in the current litigation, City staff and the City as a whole had an excellent relationship with the Landfill and anticipated continuing to work with the Landfill as they renewed and updated their conditional use permit and license every two years, expanded their buildings and other infrastructure on the Landfill site as necessary, and increased the capacity of the Landfill by implementing state-of--the-art technologies. That has occurred. For instance, in 2004 the capacity of the Landfill was expanded with the approval of a leachate recirculation system. Implementation of this system results in faster decomposition of waste and an expansion of the capacity of the Landfill to receive waste. In 2006, the City approved an expansion of the gas to electricity facility at the Landfill. In 2007 the Landfill requested, and the City approved, a conditional use permit to constxuct a new storage building and to retain an existing metal skin building previously required to be removed. These are the types of cooperative efforts, new uses and expansions envisioned in the 2003 Host Community Agreement. 3 The Landfill concluded their presentation to the Planning Commission by continuing their attack on staff, telling the Planning Commission that it was "being duped" by staff. On behalf of the staff, and myself, I want to tell the City Council in the strongest terms that we take extreme offense to these attacks and strong exception to any suggestion that staff has been leading or guiding the Planning Commission or City Council to a particular outcome. Our goal has been to ensure that the Landfill has an opportunity to present its project and that the City Council has before it all of the information it needs to make a decision. In the case of the proposed ordinance amendments before the City Council at this time, staff recommends that the City Council approve the amendments if it believes that the current City Code requires that all components of a Solid Waste Facility, including the required buffer areas, be located within the Solid Waste Facilities District and that this should be reaffirmed by adopting ordinance amendments that specifically so state. GP:2744638 v2 4 GREENE ESPEL MEMORANDUM PROb'CSSIONAL LIMITED LIABILITY PARTNERSHIP $UITC 1200 200 SOUTH SIXTH STREET MINNEAPOLIS, MINNESOTA SS402 (612) 373-0830 FAX (612) 373-0929 TO: Mayor and Members of the Elk River City Council C: Lori Johnson, Peter Beck, and Rebecca Haug FROM: John M. Baker, Greene Espel P.L.L.P. DATE: March 12, 2010 RE: Certain statements by Elk River Landfill's counsel in his March 9, 2010 letter and attachments to the Planning Commission Our File No: 2043-0369 ERL's March 9, 2010 letter characterizes various positions that the City's counsel took in the Landfill's suits before Judge Robert B. Varco challenging the City Council's denials of the Landfill's applications in 2009. The arguments that the City's counsel made at the hearings before Judge Varco were consistent with the arguments that the City made in its written submissions to the court. While ERL's March 9 letter purports to describe the City's positions on certain issues, the letter does not provide complete quotations of the actual arguments that the City has made and omits or misstates their context. This memorandum is intended to let the Council see the full quotations and their context, to better evaluate the accuracy and credibility of the Landfill's arguments. A. ERL's letter: ERL's March 9 letter states on page 2 that "City also argued at the January 29, 2010 hearing that ERL's proposed lesser included 13-acre landfill expansion was not properly part of the ERL's March 30, 2009 CUP/License amendment application because ERL needed to make a separate application for just the 13 acres." The City's filings: In a January 7, 2010 brief seeking summary judgment in its favor in its suit challenging the October 2009 denial of its CUP, the Landfill had argued that it is "entitled to its CUP and License amendments as it relates to the 13.4 acre portion of the 73.4 acre MSW landfill expansion which is within the existing 137.4 acre landfill property." (ERL CUP opening brief at 2). To this, the City responded on January 21 that "its Application for a CUP amendment did not include a fallback request; it did not seek, for example, an amended CUP for an expansion to its solid waste facility that would take place on 13.4 acres of its own property, or that was limited to the boundaries of the existing SWF District and its own property." (City CUP response brief at 3). The City also argued, "Because the Landfill just requested an amended CUP for a unitary expansion encompassing an area where landfilling could not lawfully take place, and did not in the alternative seek an amendment restricted to 13.4 areas of its existing property, this Court should not grant such an amendment now. (emphasis added). B. ERL's letter: ERL's March 9 letter states on pages 2-3 that, "if the amendments are adopted by the City Council, then City will no longer be able to maintain, as it did earlier, that ERL's requested 13-acre expansion within the existing 137.4-acre landfill property could and should instead be pursued through either (1) ERL's annual renewal process or (2) a new 13-acre CUP/License amendment application before City." (emphasis added).I The City's filings: In its January 21, 2010, brief in opposition to ERL's motion for summary judgment, the City wrote: In the alternative, the Landfill claims that it is "entitled to its CUP and License amendments as it relates to the 13.4 acre portion of the 73.4 acre MSW landfill expansion which is within the existing 137.4 acre property." (Op. Br. at 2). However, that argument does not describe an actual amendment that the Landfill requested the City to grant, but describes a fraction of the much larger CUP amendment that it requested and that was properly denied. That fallback argument is all about where those 13.4 acres supposedly fall - on property already within the SWF district. However, a CUP is not just about "where," but is also about "what," and the only "what" described in the Application was a proposed expanded landfill that went well beyond the SWF District and the Landfill's property. The idea of granting an amended CUP for a fraction of a proposed expansion, when that proposed expansion presumed the availability of the SDA, is misguided. The Landfill's Application did not seek, in the alternative, such an amendment, and the Landfill cannot ask this Court to compel its approval. Denial of a CUP amendment to landfill on the 109-acre SDA effectively prevents the Landfill from going forward with its design for an expanded landfill, even for that portion of the proposed expansion that is on property the Landfill already owned and is already within the SWF district. The design of the Landfill's proposed expansion presumes that the Landfill does not need to use its existing property for a southern slope to the Landfill and buffer area. To the contrary, the 1 The Landfill's March 9 letter also attaches its amendment application, where ERL argues on page 3-17 that "the City even scoffed at the notion that `the Landfill truly believes that the scope of its current CUP prevents it from using as part of a landfilling facility part of its property in the area within the current SWF District,' and it suggests that the ERL `resolve that uncertainty as part of .. . the [parties'] process of discussing conditions for renewal of the Landfill's current CUP and License.' But, when the ERL submitted just such a request as part of the renewal process, the City determined that a separate CUP/License amendment application was required." 2 design presumes that the southern slope of the landfill and buffer area would be located on the southern end of the SDA, and that southern end of the property the Landfill currently owns would be used for additional cells of waste deposited to a much greater height. (See, e.g., Record at 432, 435, 482.) Because denial of the expansion to the SDA, at a minimum, forces the Landfill's engineers back to the drawing board to develop a plan for landfilling on the landfill's current property that does not include a high wall of waste ending abruptly at the existing property line, that portion of the Landfill's motion that argues in the alternative for an order compelling the City to grant a CUP for 18.2 percent of the proposed expansion is a disaster waiting to happen. As noted above, the Landfill already has a CUP that allows it to use its current property as a solid waste facility. (Baker Aff. Ex. L, Supplemental Record at 1476.) The City and the Landfill are already in the process of discussing conditions for renewal of the Landfill's current CUP and License. If the Landfill truly believes that the scope of its current CUP prevents it from using as part of a landfilling facility part of its property in the area within the current SWF District, then it can resolve that uncertainty as part of that process. However, it cannot seek that outcome in the first instance from this Court, as part of an appeal from a denial of an application for a much more grandiose expansion plan. (City CUP Response Brief at 10-11) (emphasis added). C. E1tL's letter: ERL's March 9 letter argues on page 3 that, "notwithstanding its efforts to describe its proposed City Code amendments as a mere `reaffirm[ation]' of its existing City Code requirements, these proposed amendments, if adopted, will instead underscore the obvious -namely, that there is no requirement in the existing City Code either (1) for a 200-foot setback for landfills or (2) that the State-mandated 200-foot setback be within City's SWF overlay district." On this point, it states that "consistent with its February 2, 2010 brief to Judge Varco, City staff's letter identifies no existing City Code setback requirement for landfills." (emphasis added). The City's filings: In its February 2, 2010 brief, the City argued: A. So long as the City's CUP continues to include a buffer area requirement, the City's ordinance requires that buffer area to be maintained within the SWF district. Pursuant to City Code § 30-1834 (a) ("SWF solid waste facility overlay district"), "Solid waste facilities shall not be permitted nor conditional uses in any other zoning district." (Record at 286). Thus, if a buffer is required as a condition of the CUP or license, and that buffer is part of a solid waste facility, § 30-1834 (a) (and other provisions) require that it must be located within the boundaries of a S WF solid waste facility overlay district. A required buffer area is pant of a solid waste facility as defined by the City. Under City Code § 58-91: Solid waste facility means all property, real 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 and for which processing or disposal of waste a license is required under the provisions of this article. Solid waste facility includes, but is not limited to, transfer stations; sanitary landfills; solid waste processing facilities, including resource recovery and waste reduction facilities; and waste burning facilities, including incinerators, boilers and other facilities for burning processed or unprocessed solid waste. City Code §58-91 (definition of "solid waste facility') (emphasis in brief). A buffer area imposed as a condition to the issuance of a CUP is "needed or useful for the" disposal of waste. As one court recognized when affirming a trial court's holding that the phrase "landfill facility" includes not just the active portion of a landfill but also its buffer areas, "the court's interpretation is a sensible construction of the term `landfill facility' because each part of the facility, including the active area, monitoring wells, buffer zone, and wetlands, is necessary to the overall function of solid waste disposal." Weyerhaeuser v. Tacoma-Pierce County Health Dept., 123 Wash.App. 59, 68, 96 P.3d 460, 465 (Wash.App. Div. 2 2004}. See also IT Corp. v. Solano County Bd. of Supervisors, l Ca1.4th 81, 100 n. l6, 820 P.2d 1023,1035 n.16, 2 Cal.Rptr.2d 513, 525 n.16 (Cal. 1991) (noting that a hazardous waste facility company "wisely makes no claim that the [buffer] condition itself is `unreasonable, "' and noting that "such setbacks, of course, are designed to provide a barrier against the migration of contaminants to adjacent waters and lands zoned for incompatible uses."). In short, the City Code requires that solid waste facilities must be located within a S WF district, and a buffer area that is required as a condition for landfilling is properly considered part of a "solid waste facility" as the City Code defines that term. D. ERL's letter: ERL's March 9 letter states on page 3 that "On December 17, 2009 and again on January 4, 2010, City plainly and unmistakably represented to Judge Varco that the parties' 2003 Host Community Agreement's `language clearly refers to `expansions ... on the Landfill property,' not to `expansions' onto Tiller's adjacent 108.8-acre southern development area (SDA) property." (emphasis in letter). It adds on page 4 that, "Because City has represented to Judge Varco that the parties' 2003 Host Community Agreement's `language clearly refers to `expansions ... on the Landfill ~ropeTtV,' City staff's proposed amendments, if adopted, will constitute an equally `clear' breach of the agreement." (emphasis in letter). The City's filings: At the relevant section of the City's proposed order discussing the Host Community Agreement (HCA), the City proposed that the Court find as follows: 4 The Court further. notes that the language in the HCA does not support the Landfill`s argument that the parties contractually `anticipated' that the Landfill would expand beyond its property boundary as of 2003. The parties do not dispute that, when they entered into the HCA, the Landfall had not yet expanded to utilize all of the land on its existing site for which it had the requisite permits and licenses. Furthermore, the contract`s language clearly refers to "expansions and new uses on the Landfill property." (Pet.lCompl. Ex. 26, Section 1.06 (emphasis added).) The parties do not dispute that the Landfill does not own the property onto which it wishes to expand. Finally, and perhaps most importantly, the parties executed the HCA before the City created its latest Comprehensive Plan in 2004. Since the Comprehensive Plan came into effect in 2004, any entity that wishes to operate a landfill on land that the City Council has not already guided as `Landfill' in the 2004 Comprehensive Plan must apply for a reguiding and rezoning. (City's Proposed Order at pp. 26-27) (emphasis added). E. ERL's letter: The Landfill's March 9 letter also attaches its amendment application, where ERL argues on page 3-17 that "the City previously represented that it would be `inappropriate [for the City) to consider' the ERL's request for an expansion on this approximately 13 acres without the full expansion onto the 108.8-acre SDA property." (emphasis added). The City's representation: As ERLconfirmed when making a similar argument in its briefs, its assertion refers to a paragraph in an October 22, 2002, staff report to the Planning Commission, authored by Stephen Rohlf, who was then the City Building and Zoning Administrator. That staff report addressed an application by Tiller to change the mining setback on the Landfill's property from 200 feet to 50 feet. In the paragraph that the Landfill purports to describe, City staff wrote: Staff believes that it is inappropriate to consider the current request in context with a future expansion at Landfill prior to the actual request being made. Mining is only one component of an expansion, which should be reviewed at the same time as the other details. Although this discrepancy does not arise from any representation made by us as the City's outside counsel in the pending matters, we include it because at the January 29,.2010 hearing before Judge Varco, we had shown Mr. Perry and the Court blown up versions of (1) the actual quote in the 2002 memorandum and {2) the description of that sentence that appeared in one of the Landfill's briefs. That occurred several weeks before the Landfill's February 2010 CUP amendment application repeated the mischaracterization. 5 Vested fights Law in 1l~innesota John M. Baker Greene Espel P.L.L.P. 200 S. Sixth Street, Suite 1200 Minneapolis, MN SS402 (612) 373-0830 JB aker@greeneespel. com Last updated: February 6, 2010 I. As a general matter, a zoning application may be affected by changes in laws that were adopted after the applicati®n was filed. A. "No individual can acquire a vested right to a particular zoning scheme." Wedemeyer v. City of Minneapolis, 540 N.W.2d 539, 542 (Minn. Ct. App. 1995). 1. In Wedemeyer, the court criticized the property owners' suggestion that a city must formally pass an ordinance amending its zoning plan before freezing a permit application, noting that "Under that system, a city would need to anticipate all future, and possibly harmful, uses for property an enact formal ordinances before any applications were submitted or else it would be effectively estopped from rejecting or even delaying those applications." Id. 2. Like other systems, local zoning laws often must be in a constant state of flux. a. Rules adopted based on one set of assumptions and factual premises often must change when those assumptions and factual premises change. (i) As Austrian philosopher Kurt Gadel recognized in his Incompleteness Theorem, every complex system or set of rules, no matter how thorough or valid, will produce at its outer boundaries paradoxes that cannot be adequately handled by the system. In that respect, all valid systems of rules are inherently incomplete. That is, there are problems for which a solution exists but cannot be found by use of the system. See Kurt Godel, On Formally Undecidable Propositions (1962) (translation of original paper in Monatshefte fuN Mathematik and Physik, 38 at 173-198 (1931)). B. In Minnesota, submission of an application for a permit or land use change generally does not constrain the government's ability to modify the laws governing a proposed development. 1. As the Minnesota Supreme Court noted in Almquist v. Town of Marshan, the rule in most jurisdictions "permits the retroactive 1 application of a zoning regulation to deny a building permit for which application was made prior to the effective date of the new ordinance." 308 Minn. S2, 6S, 245 N.W.2d 819, 826 (1976). "In applying the rule, however, consideration is given to whether or not the landowner has substantially changed his position in reliance on the existing ordinance and to whether or not the municipality has acted in good faith or has discriminated against a particular property owner." 2. When a city properly adopts an ordinance with an application pending, and there is a clearly expressed legislative intention that the amendment should have retroactive application, the pendency of the application does not give the applicant a right to have the city ignore the amendment when making its decision. a. See Property Research & Dev. Co. v. City of Eagan, 289 N.W.2d 157 (Minn. 1980) (amendment to zoning ordinance made after a property owner sought approval of a preliminary plat for the construction of single-family dwellings which precluded the property owner's proposed use, was not subject to a mandamus action compelling approval of the application, even assuming that the city improperly denied approval of the plat); Rose Cliff Landscape Nursery ~v. Rosemount, 467 N.W.2d 641 (Minn. Ct. App.1991) (landowner lost whatever right it may have had to approval of its building permit application and site plan when zoning ordinance was amended to preclude the proposed use; landowner could not obtain order to compel city to approve application for building permit and site plan when change in zoning subsequent to the application precluded use contemplated in the application, despite finding that refusal to issue the permit was arbitrary and capricious). b. In both Property Research and Rose Cliff Landscape Nursery, the court determined that whatever rights the property owners had were lost when the city council amended the respective ordinances. The Minnesota Supreme Court specifically concluded that "the property 2 owner had no vested right in zoning. ." Property Research, 467 N.W.2d at 643. C. As the Minnesota Court of Appeals recognized in Concept Properties, LLP v. City of Minnetrista, 694 N.W.2d 804, 820 (Minn. Ct. App. 2005), "[t]he purchase of property or acquisition of a building permit fails to create a vested right in development. [citation omitted]. Likewise, neither a municipality's preliminary approval of a project nor a determination that a development plan would be consistent with applicable land-use regulations will create a vested right. [citation omitted.] And most notably, payment of an assessment for construction of a sewer system does not create a vested right in a land use that contravenes municipal land-use regulations. [citation omitted]." There, the Court of Appeals rejected a claim that a sewer assessment gave the property owner a vested right to have its property included in the MUSA and connected to the sewer system, reasoning that "the sewer assessment created, at most, an expectation that the property owner would be able to connect to the sewer and develop the property in the next IO to 20 years. An expectation to develop the property does not create a vested right to do so." Id. D. So when will a vested right to a continuation of the existing zoning arise? 1. "[T]he doctrine of vested rights exists to protect developers from changes in zoning laws aimed at frustrating development." Yeh v. County of Cass, 69b N.W.2d 115, 132 (Minn. Ct. App. 2005). "In avested-rights analysis, courts ask whether a developer has progressed sufficiently with construction or otherwise to acquire a vested right in completing the project under the prior Land-use regulations.' Halla Nursery v. City o Chanhassen, 763 N.W. 2d 42, 4$-49 (Minn. Ct. App. 2009), rev. granted, decision pending. Nevertheless, there are very limited circumstances in which Minnesota courts will recognize that a right has "vested" in a manner that truly protects developers from changes in zoning laws aimed at frustrating development. 2. When a permit is granted and substantial construction follows: Minnesota will recognize a vested right to be free from more stringent land use regulations only after the property 3 owner has procured a lawfully issued permit and has commenced substantial construction in reliance upon the permit. a. For example, in Ridgewood Development Co. v. State, 294 N.W.2d 288, 294 (Minn. 1980}, the plaintiff spent $250,000 preparing for construction before the law governing its proposed development became more burdensome, and asserted a vested right to be governed by preexisting law. Because the plaintiff had obtained no building permit and had not yet begun construction, no right had vested. Indeed, the Supreme Court stated that "the mere possession of a building permit, the incurring of some expense and the assumption of obligations preliminary to construction, such as excavation, create no vested right." Id. Accordingly, the state could amend its laws and impose greater burdens upon the property owner. Accord Wermayer v. Cormorant Township, 716 F.2d 1211, 1215 (8th Cir. 1983). b. In Hawkinson v. County of Itasca, Minn., 231 N.W.2d 279 (Minn. 1975), the developer spent $80,000 (in 1975 dollars), plus time worth an additional $20,000, improving his land for commercial purposes in a project which was intended to cost $275,000. The Supreme Court concluded that "the expenses plaintiff incurred by way of preparation did not result in prejudice so substantial as to permit him to complete the project" as a nonconforming use under a new ordinance which zoned the property residential. Id. at 284. c. In Almquist, the fact that the developer had incurred expenses surveying the property, plus considerable time and energy pursuing the development plan for six months, was not sufficient to give rise to a vested right to have his request for a special use permit governed by the law then in place. Almquist, 308 Minn. at 70, 245 N.W.Zd at 828. d. However, the Court of Appeals has ruled that this doctrine can .never enable a developer to protect its 4 investment in a use that it knew was unlawful at all relevant times. In Halla Nursery, the Court of Appeals reversed a district court that had prevented the city from enforcing a law against a sign for the reason that "respondents `so substantially completed the financial investment and the physical construction ... to obtain vested rights."' 763 N.W.2d at 49. The Court of Appeals reasoned that "The vested-rights doctrine protects developers from changes in zoning laws.... The record established that respondents were aware of the judgment and were aware that they were violating the judgment with their first sign. The permit was erroneously issued, but respondents knew that they were requesting a permit for something that the judgment prohibited and respondents are held accountable for attempting to purposely violate the judgment. We conclude that the district court erroneously applied the doctrine of vested rights." Id. 3. When enforcement of the amendment results in a particular kind of "manifest injustice," such as the injustice that results when property owner overturns a denial decision because the findings are inadequate, but the local government then changes its law for the purpose of achieving the same result under a more favorable legal standard. a. The Minnesota Supreme Court refused to give effect to a later amendment to a county ordinance, when that ordinance amendment was adopted after (1) the local zoning authority made inadequate findings prior to denying the application, which required the court to send the case back to the zoning authority to make findings, {2) prior to making those findings, the local zoning authority amended the zoning ordinance to impose additional setback requirements on projects like the plaintiff s, (3) the only stated reason for the amendment was the pending request, and (4) the zoning authority then denied the request (which failed to meet the new setback requirements). Interstate Power Company, Inc. v. S Nobles County Bd. of Commis, 617 N.W.2d 566, 577 {Minn. 2000). In so ruling, the Supreme Court noted that local zoning authorities do not have "carte blanche to arbitrarily block otherwise lawful development by the passage of a new zoning law." Id. at 576. (i) However, the Supreme Court limited its holding by noting that "it is not just any litigation or any legislation that we address, Rather, it is only litigation in the unusual posture of a remand limited [to making additional findings because the first set were inadequate to permit judicial review], and it is only legislative action for which the only expressed purpose is to affect that limited remand." Id. at 579 n.8. b. The same principle was applied by the Minnesota Court of Appeals even when there was no court remand, where a city gave no explanation for its enactment of the new ordinance, and it acknowledged that its sole purpose was to defeat the plaintiff s permit. Northern States Power^ Co. v. City of Mendota Heights, 646 N.W.2d 919, 927 (Minn. Ct. App. 2002). c. However, there are limits to this doctrine. In In re LeisureTime Land Co., 2002 WL 15795 (Minn. Ct. App. 2002), the Court of Appeals found the applicant's reliance on Interstate Power "misplaced," noting that "the county did not attempt to amend an ordinance in order to rescind approval of a previously approved project." The Court limited the holding of Interstate Power to the "particular circumstances" of that case, That holding is that a local zoning authority "could not, when directed on remand to explain its rationale for imposing certain conditions on a conditional use permit, amend a zoning ordinance and deny the permit altogether on the basis of the newly enacted ordinance." Id. at *3. 6 II. A related principle: the limited statutory power of a local zoning authority to impose on itself a moratorium on further decisions regarding applications. A. The power of cities to impose a moratorium temporarily halting decisions regarding particular kinds of development was once implied from cities' broader powers to plan. Almquist, 245 N.W.2d at 825-26. 1. The Legislature, which had previously provided explicit statutory authority to counties (but not cities) to adopt moratoria, then became involved in the process, adopting Minn. Stat. § 462.355, subd. 4, and then amending it, most recently in the 20041egislative session. 2. First the Minnesota Court of Appeals, and later the U.S. Supreme Court, found that moratoria do not result in a categorical taking of property without just compensation, simply because there is a period in which the property may not be put to reasonable economic use. Woodbury Place Partners v. City of Woodbury, 492 N.W.2d 2S8 (Minn. Ct. App. 1992), rev. denied (Minn. Tan. 15, 1993). "Delaying the sale or development of property during the governmental decision- making process may cause fluctuations in value that, absent extraordinary delay, are incidents of ownership rather than compensable takings." Id. See also Tahoe-Sierra Preservation Council, Inc., v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002) (a temporary moratorium did not automatically constitute a taking). 3. As the Court of Appeals has recognized, "Policy concerns weigh heavily in favor of permitting municipalities to enact interim stays on conditional use permit applications." Wedemeyer, 540 N.W.2d at 542. "Under the general police powers, municipalities may enact a moratorium on development as long as it is of limited duration and appropriate studies or zoning ordinances are expeditiously adopted." Id. More recently, in Pawn America v. City of St. Louis Park, the Court of Appeals held that "A moratorium falls within a city's general police powers if it is limited in duration, appropriate studies are conducted, and zoning ordinances are expeditiously adopted." (emphasis added}. 7 4. In YYedemeyer, "the freeze applied for a brief period of time while the city council held hearings and considered a moratorium ordinance." Id. the "brief period of time" referred to by the Court of Appeals was "only eleven weeks[.]" Id. a. In Wedemeyer, the appellant applied for a conditional use permit to operate a pawn shop on a vacant store site which he had leased. A couple days later, a city council member asked the city attorney to draft a moratorium ordinance on permits, licenses, and other approvals necessary to operate pawnshops in this particular district. A proposed moratorium ordinance was read at the city council meeting later that day and the council referred the matter to the zoning and planning committee for public hearings. Meanwhile, the processing of appellant's conditional use permit application was frozen in accordance with the Minneapolis Cade of Ordinances § 534.470(c)(1)(1990). Appellant applied for a waiver from the processing freeze. A public hearing was held, the committee endorsed the proposed moratorium, and the city council adopted the moratorium ordinance. Appeliant's waiver application was denied. 5. In Pawn America, the Court of Appeals rejected the argument that "because city employees had advised that there were no application deficiencies, .. the city council's later adoption of the interim ordinance was discriminatory." It noted that "the fact that a city employee says "[e]verything looks great ...," does not prevent the city council from exercising its police powers to preserve the status quo and conduct a planning study." a. The Court ultimately held that "Given that the interim ordinance was enacted for further study and planning purposes, that the city engaged in planning, and that the moratorium and study were initiated to address public safety and welfare, we conclude that the interim ordinance was valid." 8 B. Statutory limitations on a city's power to impose a moratorium: a. In its original form, Minn. Stat. § 462.355, subd. 4, imposed several important limits on the power of a city to impose a moratorium. They included: (i) The city must be "conducting studies" or "have authorized a study to be conducted" for the purpose of adopting or amending its comprehensive guide plan or official controls, or if new territory outside its zoning laws has been annexed. The Court of Appeals' decision in Pawn America holds that a city can authorize a moratorium at the same time that it authorizes the study. That is one of the questions for which the Supreme Court has granted review. {ii) Its period must not exceed one year from the date it is effective {although, before August 2004, it could be extended by the city in all circumstances for an additional period not to exceed 18 months). (iii) Its purpose must be to "protect[] the planning process and the health, safety and welfare of its citizens." (iv) It could not alter, delay or impede a subdivision which has been given preliminary approval prior to the effective date of the interim ordinance. b. In 2004 the Legislature amended this subdivision, although not to the degree requested by a coalition of development interests. See Chapter 258 Minn. Laws 2004, § 1. The 2004 amendments had the following effect: (i) Extensions are only available in four limited circumstances: where (1) less than 30 days before the moratorium is set to expire, a federal, state or metropolitan agency whose approval is required by law has not yet completed its review or approval; (2) less than 30 days before the moratorium is set 9 to expire, any other process is required by state statute, federal law or a court order, and has not been completed; (3) the municipality had not yet adopted a comprehensive guide plan at the time that it adopted the moratorium; or (4) before the effective date of the 2004 amendments, MnDOT had requested the city to review its airport master plan, and the moratorium concerns an area affected by that master plan. (ii) The maximum duration of the extension depends on which of the four circumstances is present. The first two circumstances permit an extension of up to 120 days following receipt of the long_awaited decision of the other agency. The third circumstance permits an extension of up to an additional one year. The fourth circumstance permits an extension of up to 18 months. (iii) An interim ordinance may not extend the time deadline for agency action set forth in Minn. Stat. § 1 S .99, Minnesota's automatic approval statute, with respect to any application filed prior to the effective date of the interim ordinance. C. An additional court-imposed limit on a moratorium: The .~Yfedical Services v. Savage decision. a. The Minnesota Court of Appeals' stated in Medical Services, Inc. v. City of Savage, 487 N.W.2d 263, 267 (Minn. Ct. App. 1992) that "[a] municipality may nor arbitrarily enact an interim moratorium ordinance to delay or prevent a single project." (emphasis added). (i) Where the government's sole purpose in enacting a measure was to prevent a particular project, the measure was invalid. See e.g. Offers v. County Council for Prince George's County, 62S A.2d 424 (Md. App. 1993), rev'd, 639 A.2d 1070 (1994) (citing Medical Services) (evidence was sufficient to support a finding of "zoning estoppel" where the 10 County acted with the "sole purpose" of preventing Offen from starting construction until the comprehensive rezoning could be enacted); Hollywood Beach Hotel Co. v. City of Hollywood, 329 So.2d 10, 16-17 (Fla. 1976) (sole purpose of city's arbitrary and lengthy delay was to undercut the economic feasibility of afive-million-dollar development project). b. However, a moratorium passed in response to, but not for the sole purpose of delaying, a single project is not necessarily invalid or in bad faith. For example, in TPW, Inc. v. City of New Hope, 388 N.W.2d 390 (Minn. Ct. App. 1986), the Court of Appeals held that the city's moratorium on new development--enacted only a couple weeks after plaintiff applied for a conditional use permit to construct afast-food restaurant--was valid and was not solely for the purpose of blocking construction of this particular restaurant. (i) In TPW, even though the city took action based on a proposal for a specific development and the record did not support all of the city's concerns about the project, the court nevertheless decided the council's actions were not solely a subterfuge to block the fast-food restaurant. Rather, it stated that "[a] moratorium ordinance is a valuable tool to keep open a municipality's planning options." Id. at 394 (citing Almquist); see also Relay Improvement Association, v. Sycamore Realty Co., Inc., 661 A.2d 182 (Md. Ct. Spec. App. 1995) (to find that the local government acted in an arbitrary and unreasonable manner, the factfinder must conclude that the government officials were deliberately calculated to deny a property owner his right to use this land in a currently lawful manner; naked intent to delay development is not sufficient) (citing Medical Services and Almquist). c. The Minnesota Court of Appeals has restricted the scope of the Medical Services decision to its facts, and has 11 upheld moratoria even if they only affect a single proposed project. (i) See Duncanson v. Bd, of Supervisors of Danville Twp., SS1 N.W.2d 248, 251 (Minn. Ct. App. 1996) ("While it is true that the Duncansons' proposed feedlot was the only project known to be affected by the Danville Moratorium, Medical Services is readily distinguishable on other grounds"). (ii) In re Leisu~etime Land Co., 2002 WL 15795 at *2 (Minn. Ct. App. 2002) ("If a moratorium is not found to be arbitrary or discriminatory, it may be upheld even though the proposed project is the only one affected by the moratorium," (citing Duncanson)) (unpublished). d. In determining whether a freeze on applications is arbitrary, the Minnesota Court of Appeals has more recently focused on the value of preserving the status quo pending further study of comprehensive zoning plans. See Wedemeyer, 540 N.W.2d at 543. Borrowing the standards for arbitrariness from zoning law, the Court of Appeals in Wedemeyer required the applicant to show that none of the rationales for the decision is reasonably related to the promotion of the public health, safety, or general welfare of the community. e. The Court of Appeals' majority opinion in Pawn America is consistent with this string of decisions. Judge Stauber,in dissent, argued that the City's actions were indistinguishable from those in Medical Services, but the majority found the case "distinguishable" for the following reasons: (i) "Unlike Med. Sews., the city did not know of appellant's plans far in advance. Even though appellant had interacted with various city employees, the city council was not aware of the proposed pawnshop until September. 12 (ii) "After learning of appellant's application, the city immediately enacted an interim ordinance and commenced a study to determine whether additional regulations should be placed on pawnshops located in the city. (iii) "Review of the council meeting minutes reveals that a number of city residents objected to appellant's application. But the minutes also identify general concerns regarding the use and placement of pawnshops, including: limitations on the sale of guns and other items in pawnshops, the location of pawnshops in proximity to police stations, hours of business, and the impact on adjacent residential areas of pawnshops that offer check-cashing services and other adult-oriented businesses. (iv) "The city council ultimately placed the moratorium not just on the property, but on the entire city so that a study could be conducted. (v) "Unlike the City of Savage in Med. Servs., the city promptly followed through with the study process and ultimately amended its permanent zoning ordinance based on the study's recommendations. And the interim ordinance was limited in duration; only in effect for four months." III. The interplay between Minnesota's automatic approval statute, the moratorium statute, and the power of local government to amend zoning laws with applications pending A. One might wonder, in light of a city's relatively broad authority under Property Research and Rose Cliff to amend ordinances and then apply them to pending ordinances, whether a city really needs to adopt a moratorium in the first place. 1. In theory, a city could often skip the step of a moratorium (and its additional burdens and regulations), and respond 13 immediately to an application for an unforeseen abuse of its zoning laws by simply changing the law. 2. While there may be limits under Interstate Power on the authority of cities to change the law for the sole reason of positioning itself to deny a particular permit application, the Medical Services decision demonstrates that those limitations do not go away through the adoption of a moratorium, but perhaps exist to an even greater degree. B. At least two important reasons exist for moratoria, notwithstanding these sweeping powers: 1. First, from a planning point of view, a moratorium is often precisely what the city needs, because the accompanying study will better inform the process of reconsidering and revising its laws. a. Cities often adopt moratoria precisely because their objectives extend beyond blocking a particular project. 2. Second, a moratorium is often needed to provide a legal foundation for a city to deny an application prior to the expiration of the mandatary deadlines for action under Minnesota's "automatic approval" statute, Minn. Stat. § 15.99. a. If a moratorium is already in effect before an application is filed, there's no serious question that the application can be denied based on the moratorium, so long as it is denied within 60 days (or 120 days if the city has exercised its option to extend the deadline under Minn. Stat. § 15.99). (i) A district court judge in Ramsey County has drawn a distinction between refraining ruling on an application because of a moratorium, and denying an application because of a moratorium. The first results in automatic approval under § 15.99, but the second does not. DeLite Dutdoor Advertising, Inc. v. City of St. Paul, Ramsey County District Ct. File No. C6-01-824 (Minn. Dist Ct. Feb. 5, 2002). 14 b. Even if the application predated the effective date of the moratorium, one could argue that a city still may deny the application based on the moratorium, notwithstanding the 2004 amendment to Minn. Stet. § 462.357 subd. 4 (purporting to forbid an interim ordinance from "extend[ing] the time deadline for agency action set forth in section 15.99 with respect to any application filed prior to the effective date of the interim ordinance."} (i) There is a difference between an ordinance that purports to extend the deadline for agency action (an action that is referenced in the 2004 amendment), and an agency that relies upon the existence of a moratorium as the basis for denying a particular application (an action which is not referenced in the 2004 amendment). TV. When the law changes after some but not all tend-use applications have been granted, the local governar-ent's authority may be further restricted. A. If preliminary plat approval has been given (and a development agreement has been entered into with the developer), but "regime change" occurs in a manner that prompts the newly elected council to use the final-plat-approval requirement to effectively negate the effect of the prior council's decisions, the later denial is likely unlawful. Semler Construction v. City of Hanover, 667 N.W.2d 457 (Minn. Ct. App. 2003}. 1. As the Court of Appeals noted in Semler, "After the city grants approval of a preliminary plat, the statute allows the applicant to seek final approval. Minn. Stet. § 462.3 5 8, subd. 3b. If the applicant has complied with the conditions and requirements set out in the preliminary approval, the municipality must grant final approval within 60 days. Id. If the municipality fails to act, the application will nonetheless be deemed approved. Id. Thus, the statute places primary emphasis on the preliminary plat approval; once the conditions and requirements therein are satisfied, the plat mechanically receives final approval. See id." Semler, 667 N.W.2d at 462-63. 15 B. An interesting question, unresolved in Minnesota, exists about whether a party that holds a conditional use permit but has not begun construction is insulated from the kind of changes in zoning laws that could restrict a permitted use. 1. On the one hand, the word "permit" implies that its holder has some kind of entitlement to operate according to its terms. See City of North Miami v. Margulies, 289 So.2d 424, 426 (Fla. Dist. Ct. App. 1974) ("The record in the cause sub judice demonstrates that the plaintiff had incurred extensive financial obligations and expense, all in reliance upon the rezoning of his property as R.P.U.D. and the issuance of a conditional use permit. The record supports the trial court's conclusion that it would be inequitable to deny plaintiff a building permit."). 2. However, the concept of a conditional use permit is arguably a misnomer. a. The function of the CUP is not to create a greater entitlement for the property owner than would exist if its use were a permitted use, but to impose additional restrictions and burdens on the use that would not exist if the use were a permitted one. b. One treatise has noted that it is "the minority view" that rights vest upon the issuance of a CUP or special use permit. John J. Delaney, Stanley Abrams, Frank Schnidman, LAND USE PRACTICE AND FORMS: HANDLING THE LAND USE CASE § 35:4 (2003). 3. One court has found that the holder of a conditional use permit is not insulated from subsequent changes in the law that might also affect permitted uses. Elam v. Albers, 44 Colo. App. 281, 616 P.2d 168 (Colo. Ct. App. 1980). It held that "the issuance of a conditional use permit creates no greatex right in property owners than they would have possessed had they desired to develop in conformance with any other use permitted within the zone." 44 Colo. App. at 282, 616 P.2d at 169. "Here, because the zoning regulations covering the land involved were changed, and now proscribe the use of the land as a mobile home subdivision, and because no steps were taken prior to the 16 change in zoning to develop the land for such purposes, the owners cannot assert that they have a vested right to a `non- conforming' use of the land for a mobile home subdivision." 44 Colo. App. at 283, 616 P.2d at 170. 4. Virginia courts would focus not on whether a special use permit was issued, but whether the permittee then filed and pursued approval of a site plan. "We hold that where, as here, a special use permit has been granted under a zoning classification, a bona fide site plan has thereafter been filed and diligently pursued, and substantial expense has been incurred in good faith before a change in zoning, the permittee then has a vested right to the land use described in the use permit and he cannot be deprived of such use by subsequent legislation." Bd. of Supervisors of Fairfax Co. v. Medical Structures, Inc., 192 S.E.2d 799, 801 (Va. 1972). 17 Ordinance No. 10- CITY OF ELK RIVER An Ordinance of the City of Elk River amending Chapters 30 and 58 of the Elk River, Minnesota, City Code to Reaffirm that Required Buffer Areas and Buffer Zones for Solid Waste Facilities Must be Located Within the Solid Waste Facilities Overlay Zoning District. FINDINGS OF FACT The City Council of the City of Elk River makes the following Findings of Fact: 1. The City of Elk River Solid Waste Facilities Ordinance (SWF Ordinance) was initially adopted in 1986. 2. Since adoption of the SWF Ordinance in 1986, Solid Waste Facilities, including sanitary landfills, have been required to be located within the City's Solid Waste Facilities Overlay Zoning District. 3. The Elk River Landfill (Landfill) was rezoned to the Solid Waste Facilities Overlay Zoning District in 1986, and a conditional use permit (CUP) for the Landfill was initially approved in 1988. 4. Since 1988, the CUP for the Landfill has been renewed and amended 10 times. 5. Paragraph 3 of the CUP requires that a Buffer Zone be established within the perimeter of the Landfill Property around the waste disposal areas of not less than 200 feet, except on the North side. Within this Buffer Zone, no waste disposal may occur. 6. Minnesota Rules, Part 7035.2815, subp. 5(c), also provides that any new fill area at a land disposal facility must be located at least 200 feet from the nearest property line, unless otherwise approved by the MPCA. 7. Beginning with approval of the original CUP for the Landfill, through all of the renewals and amendments, it has been understood that the 200-foot Buffer Zone provided for in the CUP has been required to be located on Landfill property, as required by Minnesota Rules, and within the Solid Waste Facilities Overlay Zoning District. 8. The 200-foot Buffer Zone on the east, west, and south sides of the Landfill has always been located on Landfill property within the Solid Waste Facilities Overlay Zoning District. This Buffer Zone is used exclusively for Landfill purposes, such as screening, service roads and other infrastructure. It is not available for development for any other use. 1 9. Allowing areas zoned and designated in the City's Comprehensive Plan for uses other than Solid Waste Facilities to be used to satisfy the Buffer Zone requirement for a Solid Waste Facility would be inconsistent with the City's Comprehensive Guide Plan because designating those areas as buffer zones prevents their development for uses consistent with a Comprehensive Plan. 10. The City has not allowed other types of setback requirements to be satisfied by acquiring interests in adjoining property that is located in a different zoning district, so as to allow development up to the zoning and property lines. Not allowing such an approach results in a more consistent application of planning and zoning principles throughout the City. 11. Since it's adoption in 1986, the SWF Ordinance, now incorporated in Chapters 30 and 58 of the Elk River City Code, has included a definition of Solid Waste Facilities which defines Solid Waste Facilities as "all property, real or personal .. . needed or useful for the processing or disposal of solid waste ...." 12. This def nition of Solid Waste Facilities has always been interpreted to include all components necessary for the operation of a Solid Waste Facility, including required buffer areas and buffer zones, except facilities or equipment which must, by necessity, be located off-site, such as wells required to monitor a Facility's off-site impact on groundwater. 13. Therefore, the City Council finds that the definition of Solid Waste Facility in Chapters 30 and 58 of the Elk River City Code does, and always has, included required buffer areas and buffer zones and that, therefore, required buffer areas and buffer zones are required by the current. City Code to be located within the Solid Waste Facilities Overlay Zoning District. 14. Notwithstanding the language of the City Code requiring that all property needed or useful for the processing or disposal of solid waste be located within the Solid Waste Facilities Overlay Zoning District, and its 22-year history of complying with this requirement, Elk River Landfill, in a letter to City Staff dated January 28, 2010, and in subsequent pleadings and arguments made to the Sherburne County District Court, is taking the position that the City's SWF Ordinance is ambiguous and that required buffer areas or buffer zones are not required to be located within the Solid Waste Facilities Overlay Zoning District. 15. In light of this new position by the Landfill, the City Council finds it appropriate to reaffirm the intent of the SWF Ordinance that alI components of a Solid Waste Facility be located within the Solid Waste Facilities Overlay Zoning District, including buffer areas and buffer zones, by adopting appropriate amendments to Chapters 30 and 58 of the Elk River City Code. 2 ORDINANCE THEREFORE, the City Council of the City of Elk River does hereby ordain as follows: Section 1. That Sections 30-1 and 58-91 of the Elk River City Code shall be amended by revising the first sentence in the def nition of "Solid Waste Facility" to read as follows: Solid Waste Facility means all property, real or personal, including negative and positive easements, water and air rights, all storm water management facilities, and all buffer areas or buffer zones, which are or may be required, needed or useful for the processing or disposal of waste and for which processing or disposal of waste a license is required under the provisions of this Code. Section 2. That Section 30-1834 of the Elk River City Code, entitled SWF "Solid Waste Facility Overlay District," shall be amended by adding new subsection (e) thereto, which shall read as follows: (e) Solid Waste Facilities restricted to SWF -Solid Waste Facilities Overlay District. No Solid Waste Facility, including any portion of a Solid Waste Facility, any easements, water or air rights, all storm water management facilities and all buffer areas or buffer zones required, needed or useful for the establishment and/or operation of the Solid Waste Facility, shall be located or operated in the City except in those areas of the City located within the SWF -Solid Waste Facilities Overlay Zoning District. Section 3. That Section 500-100 (b) of the Elk River City Code, entitled "Location of Solid Waste Facilities," shall be amended to read as follows: (b) Location of Solid Waste Facilities. No Solid Waste Facility, including any portion of a Solid Waste Facility, any easements, water or air rights, all storm water management facilities and all buffer areas or buffer zones required, needed or useful for the establishment and/or operation of the Solid Waste Facility, shall be located or operated in the City except in those areas of the City located within the SWF -Solid Waste Facilities Overlay Zoning District. Section 4. That Section 58-171 of the Elk River City Code, entitled "Prohibited Areas," shall be amended by adding new subsection (8) thereto, which shall read as follows: (8) 200 feet from the nearest property which is not located within the SWF -Solid Waste Facilities Overlay Zoning District. Section 5. That this Ordinance shall take effect upon publication as provided by law. Passed and adopted by the City Council of the City of Elk River on March 15, 2010. By: CITY OF ELK RIVER Stephanie Klinzing Its: Mayor By: Tina Allard Its: City Clerk GP:2734899 v3 4 ,~ ,-, ~,~,~~~ v~'~~~riC~r'~( 9 l ~1 Ordinance No. 10- ~..~! }~' ~ ~ CITY OF ELK RIVER ~ ~' ~G~"'~`'"~ An Ordinance of the City of Eik River amending Chapters 30 and 58 of the Elk River, Minnesota, City Code to Reaffirm that Required Suffer Areas and Buffer Zones far Solid Waste Facilities Must be Located Within the Solid Waste Facilities Overlay Zoning District. FINDINGS OF FACT The City Council of the City of Elk River makes the following Findings of Fact: 1. The City of Elk River Solid Waste Facilities Ordinance (SWF Ordinance) was initially adopted in 1986. 2. Since adoption of the SWF Ordinance in 1986, Solid Waste Facilities, including sanitary landfills, have been required to be located within the City's Solid Waste Facilities Overlay Zoning District. 3. The Eik River Landfill (Landfill) was rezoned to the Solid Waste Facilities Overlay Zoning District in 1986, and a conditional use permit (CUP) for the Landfill was initially approved in 1988. 4. Since 1988, the CUP for the Landfill has been renewed and amended 10 times. 5. Paragraph 3 of the CUP requires that a Buffer Zone be established within the perimeter of the Landfill Property around the waste disposal areas of not less than 200 feet, except on the North side. Within this Buffer Zone, no waste disposal may occur. 6. Minnesota Rules, Part 7035.2815, subp. 5(c), also provides that any new fill area at a land disposal facility must be located at least 200 feet from the nearest property line, unless otherwise approved by the MPCA. 7. Beginning with approval of the original CUP for the Landfill, through all of the renewals and amendments, it has been understood that the 200-foot Buffer Zone provided for in the CUP has been required to be located on Landfill property, as required by Minnesota Rules, and within the Solid Waste Facilities Overlay Zoning District. 8. The 200-foot Buffer Zone on the east, west, and south sides of the Landfill has always been located on Landfill property within the Solid Waste Facilities Overlay Zoning District. This Buffer Zone is used exclusively for Landfill purposes, such as screening, service roads and other infrastructure. It is not available for development for any other use. 1 9. Allowing areas zoned and designated in the City's Comprehensive Plan for uses other than Solid Waste Facilities to be used to satisfy the Buffer Zone requirement for a Solid Waste Facility would be inconsistent with the City's Comprehensive Guide Plan because designating those areas as buffer zones impairs or prevents their development for uses consistent with a Comprehensive Plan. 10. The City has not allowed other types of setback requirements to be satisfied by acquiring interests in adjoining property that is located in a different zoning district, so as to allow development up to the zoning and property lines. Not allowing such an approach results in a more consistent application of planning and zoning principles throughout the City. 11. Since it's adoption in 1986, the SWF Ordinance, now incorporated in Chapters 30 and 58 of the Elk River City Code, has included a definition of Solid Waste Facilities which defines Solid Waste Facilities as "all property, real or personal .. . needed or useful for the processing or disposal of solid waste ...." 12. This definition of Solid Waste Facilities has always been interpreted to include all components necessary for the operation of a Solid Waste Facility, including required buffer areas and buffer zones, except facilities or equipment which must, by necessity, be located off-site, such as wells required to monitor a Facility's off-site impact on groundwater. 13. Therefore, the City Council finds that the definition of Solid Waste Facility in Chapters 30 and 58 of the Elk River City Code does, and always has, included required buffer areas and buffer zones and that, therefore, required buffer areas and buffer zones are required by the current City Code to be located within the Solid Waste Facilities Overlay Zoning District. 14. Notwithstanding the language of the City Code requiring that all property needed or useful for the processing or disposal of solid waste be located within the Solid Waste Facilities Overlay Zoning District, and its 22-year history of complying with this requirement, Elk River Landfill, in a letter to City Staff dated January 28, 2010, and in subsequent pleadings and arguments made to the Sherburne County District Court, is taking the position that the City's SWF Ordinance is ambiguous and that required buffer areas or buffer zones are not required to be located within the Solid Waste Facilities Overlay Zoning District. 15. In light of this new position by the Landfill, the City Council finds it appropriate to reaffirm the intent of the SWF Ordinance that all components of a Solid Waste Facility be located within the Solid Waste Facilities Overlay Zoning District, including buffer areas and buffer zones, by adopting appropriate amendments to Chapters 30 and 58 of the Ellc River City Code. 2 ORDINANCE THEREFORE, the City Council of the City of Ellc River does hereby ordain as follows: Section 1. That Sections 30-1 and 58-91 of the Elk River City Code shall be amended by revising the first sentence in the definition of "Solid Waste Facility" to read as follows: Solid Waste Facility means all property, real or personal, including negative and positive easements, water and air rights, all storm water management facilities, and all buffer areas or buffer zones, which are or may be required, needed or useful for the processing or disposal of waste and for which processing or disposal of waste a license is required under the provisions of this Code. Section 2. That Section 30-1834 of the Elk River City Code, entitled SWF "Solid Waste Facility Overlay District," shall be amended by adding new subsection (e) thereto, which shall read as follows: (e) Solid Waste Facilities restricted to SWF -Solid Waste Facilities Overlay District. No Solid Waste Facility, including any portion of a Solid Waste Facility, any easements, water or air rights, all storm water management facilities and all buffer areas or buffer zones required, needed or useful for the establishment and/or operation of the Solid Waste Facility, shall be located or operated in the City except in those areas of the City located within the SWF -Solid Waste Facilities Overlay Zoning District. Section 3. That Section 500-100 (b) of the Elk River City Code, entitled "Location of Solid Waste Facilities," shall be amended to read as follows: (b) Location of Solid Waste Facilities. No Solid Waste Facility, including any portion of a Solid Waste Facility, any easements, water or air rights, all storm water management facilities and all buffer areas or buffer zones required, needed or useful for the establishment and/or operation of the Solid Waste Facility, shall be located or operated in the City except in those areas of the City located within the SWF -Solid Waste Facilities Overlay Zoning District. Section 4. That Section 58-171 of the Elk River City Code, entitled "Prohibited Areas," shall be amended by adding new subsection (8) thereto, which shall read as follows: (8) 200 feet from the nearest property which is not located within the SWF -Solid Waste Facilities Overlay Zoning District. Section 5. That this Ordinance shall take effect upon publication as provided by law. Passed and adopted by the City Council of the City of Elk River on March 15, 2010. CITY OF ELK RIVER By; Stephanie Klinzing Its: Mayor By: Tina Allard Its: City Clerlc GP:2734899 v3 4 U .J ! V J! L V 1 U 1 U. 1 V BRIGGS ~~~ March 9, 2010 VIA AMA ZL ui~~.uu..: ,•ivi~unn rn ~..i 1 2200IDS Center 80 South ech street Minneapolis MN 55rI0z-2757 tcl 612.977.3#00 fax 6T2.9'I~_8(SD ~ ~ ~ ~~ ,~~~ Jbck X. Ferry (b.12)977-6Q97 jpezry®briggs,co~ Re: iJ~c utiver Landfiii's oppositions to City st~~>t~g proposed City Code amendments to thwart its February 22, 2fl1t0 C~CTP/Lxce~ase axxte~a.draent apiplication 17e~r Cozxtn~ission Members: City staff's pt~oposed City Code azir>.endtnenis regazding the 200~foot buffer fox landfills are, to say ~e least, ill-advised. The amendments, if adopted by City Council, will (1) contra~re~ae several of City's prior r+rpresentatio:ns to the district court, and (2) establish tens of xnillions of dollars iz~ breach of contract damages. Planning Commission should not recommend City Council's passage of these amensdtzT.extts. B,A,C~Gl20TJND EIk River Landi'i,I1, xn,c. (ERL) anal City of Elk River (City) axe currently litigating City's de:zaals of ERL's March 30, 2009 tezoz~ing and CUP2icense amend>tzaent applications for its proposed 73.4-acre landfiil.l expansion onto bvtla (.1) the southern-most pvxtioxl o~ its existing 137.4-acre 1andtxll property and (2) the adjacent Tiller property to the south. ~RL's proposed lesser-included 13-acre landf~11 e~.paasion oxxto just the portion of its existiz~.g 137.4-acre landfill property is largely within the State-mandated 200-foot buffer and completely within the solid waste facility (SWF) overlay district. because Cit~r's sole stated reason for denying )/kLL's March 30, 2009 requested CUP/License azxxendznent application far'the 73.4-acre landfill expansion was that the undexlyia~g property purportedly was not ~~vithin 4he SWF overlay district, ERL moved Btig95and Morgan, Protesalonel Associat[on Minneapolis f Sti. Pavl i www,bnggicom Member Lex Mundl, a Global Association of Independent Law Flung 03/by/ZFJ1f~ 1b: "l ti + tSKl(aC~S fV1UK(aAN MIJLS 1 f HCUt b:~/bb D R I C, G S nivn M O R G~ N Czty of Elk River 1'la,ming Cozymission March 9> 2010 Page 2 the district court, the Honorable Robert E. Varco presidi~~g, to summazily approve of Lire 13-acre l~oztion of its rerluested landfill e~p~ulsion which is uxzdisputedly already wlthi~ the SWF overlay district. At the Januaa~y 29, 2010 summary judgzxzezxt hearing before Judge Vaxco, City argued chat ERL could not expand within the buffer area azad extend the StateAmandated 200-foot buffer into 'killer's propezty because tk~e City Cod© supposedly .required tkzat the buffer be entirely witktin the SWk' overlay district. In z-espaz~se, Judge Vaz•co ordered tl~e parties t:o brief the very discrete issue of whether there is such a buffer requirement in the City Cade. City ai1d EI~I, fled their responsive Uricfs on FebKUauy 2., 2010 aad February ~4, 2010, respeciavely. Judge Varco's statutory deadline to ruse oz~ Lhe issue is thus May 5, 2010 (ox .A.pxil S, 2010 if lae zt~les on ER,L's requested CUP/L,icense a-nendment application eoratexr~poxaneously witl7t 7/Ri.,'s rezoning application). City also argued at tlxe January 29, 2010 hearing that EI~L's proposed lesser includEd l3- aexe landfill e~,pazzsion was not pzopexly part of ERL's March 30, 2009 CUP/Liceizse ~unezldment application because ERL needed to zxaake a separate application for just the 13 acres. Even ttaough this same argument has been previously rejected, by tl~e 1Vlix~.aesota Suprezxae Court izz .8j•eza v. City of ,~k(innetrista, 725 N, W.2d 106, 114 (lvl'i~oua. 2006), ERL took n.o chance on a procedural bar to its z'equest. Without wi~tktd.rawing the 13-acre portion ofi its March 30, 2009 CLIP/,Lzeex~se amondtuez~t application, ERL subzxz~itted on liebzvaiy 22, 2010 a selarate CUP/License aznendznent application for just its 13-acre expansion. Ex. IS3. On Ivlarc}a 2, 2010, City staff determiiaed tktat ERI,'s latest applicationz vvas "complete." Ex. l $9~. Also on March 2, City staff' sezat ERL notice of City`s intent to amend its "CI'I'~ CO,DR TO RT;.A.i?'F~ 'I'I-IAT REQUIRED SUFF~X$ A.~?.IEAS AND BUFF'FR ZUNIS FOR SOZ,ILI WASTE ]C'.A,CIIGI:TIES 11~US~ l3~ LOCA,'I'1~A WITHTN x.~XJC SOLID W.A.5q'L FACII,T'il'Z1GS OVERLAP ZONING DTS'I'RIC'T," I;,t. 155, draft Ord. No, IO (bold and csps u1 original), City's statutory deadline to act oz~ ERL's February 27., 2010 CI.J~/I/ieense atxzendzxtent applications is ,A.pril 23, 2010 A,NALY$~S .A- CON7L'R,r+,,ViC1+iTION Off' CI~'X'S PRIOR ,~I~tGUNIFN'x'S City staffs proposed City Code atnerzdauents, if adapted by the City Council, foreclose at least three o£ C.ity's prior arguments to Judge Varco. First, it'tl~c atnezxdm,ez~tts are adopted by the City Council, then City will no longer be able co z'~aaitxtain, as xt did earlier, that EILI,'s requested l3~acre expaxzsion within the existing 137,4- acre laiad~zll property could and should instead be pursued through either (l) I;I2.I,'s annual 03/f~9/2E~10 1b:1i3 + tSKlUUS t'~UK(aAN f+'ll-'LS 1 rHlat b4/bb DRIGGS nn~o 1VIORGAN • City of E11c Rivet 1'laauaing Commissioxz 1VIaz•ckt 9, 2010 page 3 reaaewal process or (2) a anew 13-aCTe CUI~/License amendment application before City. Consistent with City's evasive responses to Judge Varco's January 29 questioxzs regarding the true availability of those alternative approaches, these options will be proven to have been, as Judge Varco ope~caly suxnaised, a mirsge, Second, notwithsta~•-dizag its efforts to describe its proposed City Code axpezadments as a ;<nexe "reaffirm[ation]" of its existing City Code recluirezaaemts, these pxoposed ameudnn,ezats, if adopted, will instead underscore. the obvious - namely, that there is no requirement in flee existing City Code either (1) fora 200-foot setback for Iandflls or (2) that the State-mandated 200-foot setbaclz be within City's SWF overlay district• .A.s •to the frst point, City staff's Match 2, 20101etter plainly cozteedes "that the 200 foot buffer zone his] xequirecl by State law." Ex. 1 S5 at 1 (emphasis added). Azad, consistent with its February 2, 2010 brief to Judge Varco, City staff's letter identifies no existing City Code setback requireiJne><at foz• landfills. As to tb.e secozad pouat, City staff s four proposed arxlen.dz7aezzts to the City Code illustrate what had fio be in the existing City Code to require the State-mandated 200-foot buffet to be withiza the SWF overlay distinct. Without these Yunendn~ents, there is, at best for City, ari ambiguous basis fox it to contend that the buffer vvas, under City Code § 58-91, "aaeeded or useful for the rote sin or S~1SRo~a1 of waste," (l;xnphasas added). Azad such supposed smbiguitaes in the land use context axes are to be read in favor of flee land owtaer's proposed use. See ,Dailey v. Gity ol`'.Lor~~ Lalre, No. C3-998-1663, 1999 WI, 118633, at *4 (IVfioxi.. ,App.lvlar. 9, 1999) (E~. la9) (fzndizzg that the public policy rule of construction favors interpretation. ~ favor of land owner). Thixd and finally, City statiffs contention that "Solid Waste Facilities leas o~1wsys beeaa izzte~~reted to include all components necessfuy for tics operation of a Solid Waste Facility, includizzg required buffer areas Itnd buffer zozies" (Ex. 155, draft Ord, Rio. 10, Finding 8 (emphasis added)), if adopted, wi11 contradict not only City's prior representatio><xs to Judge Vareo but also its prior appaoval of landfill "corrzporzents" outside of the SWF overlay district, On ]December 17, 2009 and agaiza oxt January Q~, 2010, Ciq~ plainly and unmistakably repxeseaated to Judge Varco that the parties' 2003 Idost Community Agreenaexit's "laxAguage clea>t"Iy refers to 'e~~n~aioz}s . _ , oxi the Landfill .p~~erty,"' not to "eztpansions" onto Tillex's adjacent 108.8-acre southern devclopmexxt area (SZ}A) property, 1/x/10 City E,RL 1 Proposed Memo, atad Order at 2G-27 (ezaapkaasis added); 12/17/09 City ER.I; ,t a.ral argtunent. And, bocause fibers is no room for any matexial land.~ll expansion on the existing 137.~4~acze landfill property other Haan. witbi><a. the 200-.foot buf'fbr area at issue, City was necessarily referrizag to expansion withiza dais buffez• area, UIaless Cit3r is willing to wit;lldraw its prior representatYOns to Judge Varco and instead argue Ilaat its "coopexatioxz" obligation under the 200 I~ost Community .Agreemezxt is rzaeazaingless, Finding 8 fails. Finding 8 otherwise fails because El2i, already haq approved monitoring wells outside of tl~e SWF overlay district (Fx. 157), thus proving that City 1~as nAt "always ...interpreted [Solid Waste facilities] to ixaclude all components for tics operation of a Solid Waste Facility." Rathor, consistent with its existixg City Code definitions, City kzas rc~,ucta more narrowly defined "solid 03/©9/2©10 16:15 + ]~K1U[a5 MUKUAN rYir~~ 1 rr~U~ e~ibn BRIGGS nNO MORGAN City of l;ll~ River Planning Commissioaa 1Vlarch 9, 2010 Page 4 waste facility," includzxzg "saaiitary landf lls," as being lianited to the "disposal" area, e~cluszve of an}' buffex area. City Code § 58-174(x)(10), and § 58-91 (Ex. I4~6); City Code § 30-1834(c) and ch. 58, Art. III, Div. 4 (Eris. I5 and 146). B. ESTA$LZSIE~MJEa1~1~' OF''I']i;IYS OI<' MiLLZQNS OE DULLARS IN LI.A,li1LZ~'X ,Because City has represented to Judge Varco that the parties' 2003 host Cozxuxzuzuity .A.g;.reement's "]anguage clcax),j' refers to 'extensions .. , ozz ~, e La~idfill propE~-ty,"' City Staf,~s pxoposcd atzzendments, if adopted, will constitute an equally "clear" bxea.ch of the agreement. Indeed City's actions will merely add tp its inexeasingly impressive Iist of breaches of its "cozztzactual" obligations tuidea• the agreeprzents. Most tellingly, 11 days aver receiving EItL's March; 30, 2009 Applications, City staff puzpoz~ed to unilaterally and without xtotice to anyoxze (inclu.ding City Councill) xez~rzoved the "ELIC RIVER LANDFILL" label from its 2007 Iand use cad zoning neaps. Now, eight days affex receiving ERL's February 22, 2010 application, City staff proposes amendments to the City Code to require the State-mandated 200-foot bu:(~ex to be within the SWF overlay district. Fay anyone's definition, City's Glaanging of laws to try to thwart the contractually-anticipated Iandlxll ~pansion violates the letCex and tkte spirit of the agreement. Certainly the xzegotiators o~Fthe agreement -- i.e., John I~ellas for E1ZI, and Peter Beclc for City - did not envision, such gaixaesxnanslaip being allowed under the agzeerrzezzt. And, given the approximately 1.6 million cubic yards of additiozzal waste disposal airspace at issue with just ERL's February 22, 2010 proposed 1,3~acxe expazasion, the resulting ~recovexable damages from City's breach is izz the tens of miIlions of dol]axs. The parties already have enough over which to litigate_ City staffC s proposed azxtexzdzzzeztts should not be added to that list. To the extent that it is, rzevextheless, eorrunittod to these azztezxdments, City should, at a ~ln.lxnum, (1) delay its e~nactzrzet~t until aver. Judge Varco rules on or befoz~e May S, 2010 (and probably on ox before tlpril 5, 2410) anal (2) issue a statutorily-prescribed extezts:ivn of its deadline to act ozt ERL's February 22, 2010 application, As it did fox Tiller's contexxzpoxaneousIy submitted mining CiJP application for the sarx~e portiozt of t),~e existi»,g 137.4-acre landfill property. Ex. 156. Indeed, as it dial be~'ore with its 1Vlarcla 30, 2009 CUP/License amendmentt application, ERL would be u+illix~,g to issue a, voiuntaty extension of the statutory deadline as it relates to its February 22 Applicati.ozt. Alternatively, City could simply clarify that its amendments do not apply to ERL's March 30, 2009 applications. In other wards, ERL waters absolutely no part in City's efforts -intentional or not - to disrupt the fully bxzefed axed argued issues before Judge Varco regarding E~1..'s March 30, 2009 applications. 03/09/2010 16:18 + E3R1CaGS ENO MORGigN City of ~llc Rivex ~'lazzx~xn;g Coznmisaion March 9, 2010 Wage 5 ERIGGS MORGAN fy1PL5 "1 erely, ack Y. Perry 7YP/,fig ~~.closuTes cc; ~'.13eck (via email) J, Bel~ex (via ernaal) M. Ayers (via enzaal) D. Walters (via email) S. Stoltz (via email) A. Je~iry (via ezz~ail) rAGt e~i be ~7&705v4 03/fl9/2010 16:18 + L'RTGGS h40RGAN ~y1PLS 1 PAGE 07/60 ELK RIVER LANDFILL, INC. `. • ~ ~ :~ AMENDMENT Px~~aax~d for: El~~ Inver ]~el7xu.a~y ~~ ~ 0 ~X.kIiDx7C 7.53 03/09/2010 16:18 + ERIGGS 1~10RGAN hAPLS 1 PAGE 08/60 '~'~bxe o~ ~a~~:~n-t~ >F:~ou~l~ svNn .......................................................................,....................... ~~ X.0 IIV7CR~JAI?C~'ZON .AND I~A.CICGItOC]ND ...................................................................1-1 1.1 Baclcgrouzxd.,.......1 ............................. ......................................... 1-1 1.2 The City's Applic tion Requireir~ezxts ................................................... ............1-~ 2.n >~~sc~TIO~r olC ~~a, oSED x>~o~c~c ......................-...,...........>...,................... 2-1 2.1 Project DescY~ptior~ .................... ............................................ ......... ..........2-I 2.2 CuxrentFacilities a~td Operations,,...,.... _..,......... . ...................,,,.........,...........,.2-1 2.3 Nced ;fox ~xpai1l81o ...........................:....... ............,................................... 2 2 2.4 ~`~~~ Proposed Facilities rid OperatXoxt8 ............................ ......................................... 2-3 2.4.1 Iu&'astl~c c .............. ....... 2-3 2_~i.2 Operation Zz~apacts .......................................... .................................... 2-3 2-4.2.1 ow:sofOpexatlon ...............................................................2-3 2.4.2.2 raffi~c, Parking, aid Signage ................................................ 2-3 ' 2.x,2.3 .~~uxpment Storagc ................................................................. 2-4 2.5 Bnvixox~tx~ex~tal acid Community :I~npac~ts aztci Mitigatiax~ ............. ...........,.. 2-~ 2,5.1 ~vixox~ nt~lIxnpscts ..................:......................... ..........................2-4 2.5.1.1 ~rotuidwater ................ . ... .............-------...!.........,.................. 2-4 2.5.1,2 ~uc~face Water .............................................:..:........................ 2-S 2.5.1.3 ~xQualzty ....................... ......................... ..........................2-5 2.5.2 Coin~uwazx~ zmpacts ...................................................... ...................... 2-S 2.5.2.1 'vIisual Impacts ........................ ............................................ 2-5 2,5.2.2 Tlazad Use Co~pacibility,..----.,,....... ............................,........,,, 2-G 2.5.2.3 Economic and Sociml Impacts.. , „ . 2-6 2.6 Site Screening....~..i ............................... .... ........ .. .....................................2-7 2.7 Proposed Landi;ll jesxgu ......................................................... ................... .. 2-7 2.8 I,<'~dfill Closure,,.. ,. .................. ...........,.... ~ .2-10 2.9 Closure ConstnicEio~x ............ .~_.............,..,,......,.....,.... ....... , 2-10 3.0 C®IoIDI'TZ®N.:l.I. USA 3.1 bite flan .... ............ 3.1.1 .A.II Abuttlr 3,a.2 Existizxgl3~ 3.1.E T~cistiz~.g U: 3,1.4 Utilities.,.., A1~NplV1~NT ,~'~1.xCAT>fON.,,...... 3~1 ................,.......,,.,...,............,,........,.....,,..,..............,,......,,,. 3-1 Lots ................................................................................... 3-1 ilditl,g5 ........,,,..>.,,~ .................~.................,..,,....................,.. 3-1 ~s ......................................................................................... 3-1 .........................................,,.,.,........,......,,,,,........,.,,,.~ ~,......., 3-2 T,~A742\1d061CIry~tpPeb~PBB (tgJOnllpel (2).doo ©3i ©9/2010 16:13 -r BRIGGS tytURGAN MNLS 1 rHU~ ny/ bb ~~ll~ 4~ (~OII~~ICC1!$S ~C:(DJ[~~.~ 3.1.5 Cuxb Cuts ...... . ................. 3. J,.6 ,Locations of ~'reES Having a Diametex of 5i~ Znche9 or Moze .............. 3-2 3.2 DeveXopmelaiPlau .................................... ............... ............................................ 3-2 3.2.1 Ingress axxdEgr~s ............................ .........................~, ,,,,........,,.3-3 3.2.2 Proposed Structures . .................................... ,................,. . 3-3 3.2.3 O£i"street Parking amd. Loading .Areas .................. ............,............ 3-3 3.2.4 Screerairi~uffaring/.t,azzdscape Plaa~ ................................._................ 3-3 3.2.5 Utilities ..................................... ....._.... .............,. 3-4 3.2.6 Lighting........... ............................~...................... .................................3--~1 3.2.7 Signs ...................... .........,..,........,............... ....... ......... ....... 3-~ ...,,.. 3.2,8 Open Space and )/zxd U'se Plan ------' ..................................................... 3-5 - . ....................... 3.5 .3.2.9 De~elaprnenr Sekzcdu~e .................................. . 3.3 Land iJse Application Fortr~ .............................................................. ............---. 3-5 3.4 A,pplicataozz Fce ..............,,,,......,....,............,.........._ .........._..........,.................... 3-5 3.5 Z,ist of Property Owyxers within 35U feet of the Subject Paxcel .......................... 3-G 3,6 PxojectNai~rative..................__...........,... ........ ....................... .3-6 3.7 Oradizzg/praaazagE Plan and.Draizaage Calculations .. ...................................... 3-6 3.8 Buildizzg E?,evafXOns azzd Floor Plans ............... ............. .............. ,,...... __ 3-7 3.9 Outdoor Sto.rage ................................................................................................... 3-7 3.10 VV'etland Deliz~Earlon axtd Mitigation Plea .................................... . „ . 3-7 3.1.1 EAVW/EIS R.cquireine~zts ............................................. ................ . ............... 3y~ 3.12 .A.11 otl~ex ia~oimaflon as da.cermined by the city Staff ............ ... . .............. .......... 3-S 3.Z3 Conditional Use Pernait/Licex~se Standards of issuance.....,,.,,.. .......................... 3,S 3.14 ~~L's Recluested CozzclitXozzal Use Pexznit/License A,naendnlez~ts for tha Proposed E~paia.sion N~fust be ~.pproved,,.. ..........................,......,,,...........,,.,...........,...............,_ 3-16 T:10142\1A06K.1'gAyp~ebtP}'~ $eppt~Jlnel (2).ooe ~~ 03/ 89/ 2FJ10 16:19 -I• Y,K1(iC-i5 Iv1UKCUAN MI-'L5 1 rr~U~ le/be T'~.l~le o~ ~ollZ~exldts (dC®nt.~ F?~cr,~s Site flan Site Uevelop.~ex~t Plan, Site Deveioptne~zt Plan-Q2~tding Plaza Landscal~ui~/Scxeez~in$ Plan L'nd Use P]an AP7P~l~iDTC~~ A :C,e~a.I pescrip~ior~ and Propezties wx~tin 350 feet B Dxezztage Calculatxoz~ C Lfsndfi~l 17evelol~rnen4 Cross-Sections 11'~'CO~T'ORATED iT'3-' Tt1CT~T~.~NC>/ ,AJ.I of the subxxussiox~s ~ ~lae MPC•A.'s envirozimental review A,~10~ the submissions n~ dxe BRL's requests for z•ezoning end CUP/Lice~se ,A.rnendx~ents .All o£tla© submiaslons in .E.~ I (Case No, 71-CV-09-X 736) and E.RL .II (Case No. 71-CV-09- a0~6) T:`D142UAOG~CiSyAppFoD~ Rryottxoni (2~1.Aoo ~~~ 03/09/2010 16:18 + BRIGGS ~vtORGAN ~Y1P1_S 1 PAGE 11/E,0 .~7~~C~t1V~ w~L~, al'S' The Ellc River Landfill, Sao, (ERI:,.) proposes to develop as a,dditioz~al appxo~citnately 13 acres of Municipal Solid Waste (IvYSW)lanflixll space on the soutlxexn-most po~•tion, of the exis~ing 137.A~- acres Iaiid~ll property -- that is, tlxe property wbuch is south of flee c:~cisijing approved disposal area to the edge of the existing 137,4-acre laudfil2 property. The existing solid waste landfill will reach its cuxxentiy permitted eapacity in appxoximezely ~f1v-ee years, and ~;e pa~posed expaz~gion will provide appx'oxun,?tely 1,671,000 cubic yards of additional ZvES'W capacity. ?,,t Cll(T'C~,~; waSt~' ~IO~A~9, Ibis additional capacity would extend the vperatioxzal life of tlae landfill approxirxlatcly 4 to7 yeaxs esxd provide additional 1aUdfitl capacity foz tl).e City of Elk River (City), Sherbuane County, and sur..roundiutg area. The proa~osed expansion is on land cuaTently within the Solid Waste Facility ovexlay 2onizag district, This .A.pplicat7orr xequests the City to anrez~d the existing Conditional Use Perxvit and Solid Waste pacility license to provide for the proposed Expatxsaon o~'the latadfiII to the southern edlxe of the facility's curaeo,t property. The proposed expansion is consistent wzth The goals axzd policies contained in the City's 200A~ Coxztpreheusi.ve Pfau, The proposed expansion would not xequixe additional City in~'astructuxe or services. 'The proposed cxparasion world benefit the cornruuz),ity by providing access to stable mid. reliaUle solid waste sorvice, azs well as a sustainable alteatzativc ertexgy source. The pxoposed ex~d use for the site would continue to be open space, whicia would be cozxipatible with any Rdjacent Iitture developzn.eut to tlxe west, east acrd south. xM~as~taosct~rnrr~•e~rso Rmuitfinat (a).eQ• iV 03/ 09/2010 16:18 + liKl(a(a5 MUF~CaAN Pr1rL5 l h-'Hlat. 1 L/ bb The E1tL proposes to d.cvelop an additiozzaI appro;~izxtately 13 acres of MSW lazxdf I1 space on the southern-most portaion of the existiztg laxtd~ll property. The proposed e~.pansiozz would. provide approaazttateay 1.67 nullion cubic yards of addi#iozzal MS~~~ disposal, capacity at ~.e fiRL. The proposed ez~pansioh would be integta#ed into the con#ouxs, general desigzz attd opezu`tiori of the e~ist;ittg permitted laz~dfzll. 1.1 I3ACi~GIt®ITNA The ~PiL, owns and operates a 476.3-acre landfill site, located approxiz~ur~tely S vulea north of tl~e busiizess district in #J,>e Glty, l~z tits ~IW % of Section 3, Township 33N, Range 26W ct~td jua the SW '/ off' Section 34, Township 3~4N, Range 2GW (Property) izz the City. 'Pl).e Properly controlled vy the >/RI, can be seem in the attacjZed sate plan. Of the total. A•76.8 acres, apl>aoxunately 1 fi4 acres is ctxzx•©ratly pexrtti#ted fox waste daeposal; the rcmaitxder of fire property {312.8 acres) sezves tts buffer property. the landfill zs pertrutted undet• MPCA. Pextzzit StiV 74 to receive M,S'VW, dezztolitxozt and cozzstnacti.oza debris, yard waste for cozztposti~ag, industx~al solid waste izt aocordttttce with an MPCA-approved Ittdustrir~l Solid Waste Plan, axed processing facility rejECts froze the Elk River RDI~ combustor facility, .1.2 '1'.l'~ C'I'.>'X°S Ak'1'L7'CAT~QN T~QUT1~lCN~JGNT9 The EI:tL tttc~.intruTts a solid waste facility license agzeement aztd conditional use pemut izz a,ccoxdartce wxtb the City's requiremezlts. Both of these doctttxtents fiequire azzaeztdrtaeztia for the lazzditll proposed exptuision, and the r@quired in;Cormatioxt is included. wltlziu tbis doeurnent. T:~U99Z\1.406\CirypTypoblPSB ~R1'mal fxl.doo J.-1 03/09/2010 16:16 + BRIGGS 1v10RGAN ~ViPLS 1 PAGE 13/60 .0 esc~ri~-~on~. of x-aasee~ >l~ajec~ 2.X k'~Od~CT ~:C:SCRZPTIOIV The 1~R~, proposES to develop an. additxonaa approximately 13 aczes of MSW latidfxll space ozt the southexzz-most porCion of t1,e existing landfill pxoperiy, The proposed expansion will provide al~pxo~.imatcly 1,671,000 cubic yards oaFadditiona11v.1SW capacity. pepending on, waste i~:lo~v cluar~.tities, the pxopo5ed expansion would extend t11e apEratio~afll Iife of the lnnd.~ll approxirzzately 4• to 7 years by ,providizAg additioxxaal Ia~x~,d~G11 capacity, 2.2 CUX2TtEN'I' ~A.CT3LI~'IES ,d,1VD OP~JRATZQNs Z.azidfxll operations are perfoixxAVd under the direction a~.d overaigtxt of licextsed landfill aperators• Zn, addition to typical utilities such ss water, sewer, electricit~~, and pl~ozte service, izifiastruotuae recluixen~ez~ts special to the.iaxtdfxll are; leaohate azad. gas condensate storage facilities and. their associated. IeacU,ate and gas pipiu~ components. As :far a~s 1aud~ll facility sh•uctLU•ee, the Ems, ciuxemtly k~as the following o~n-site buildings: Sealelaouse; .Located on tl~e east aide o1'the faei}ity with scales ozt both sides. ® Lazxdfill Office and MMaintetaaz1ce ~uilcling: i'recast concrete building located ztortheast of the existing SSW yea. ~'he building }souses tkte landfill oFfices, mainte~aanee axes, including t1~e oil storage facility. • ' Gas-to 1•/nexgy Plant: precast concrete building on the z~oxtheast e11d of tl~e cuxa.•ent IviSW facility just east of tlae landfill office. Tl1e gas to energy plar-t 7'AD792\IGddlCJty^AApFeb~PHB ll~pon„final (2).doe 2~ 1 03/09/2010 16:18 + BKiGGS I+~LJRGAN MI'L5 1 F'A(aL '14/b0 houses a coz~nnluriity eduction xoozn and tla© geueratoxs fox the gas to ezaexgy facility, ® Recycling)3uilding: Metal sided bualdiaug that serves as storage for recyclables an;ci as part of the citi:cen drop-off and coxlvenienee center sexvice tv the public, This building is located to the sautl~ of the office building. 2.3 NJC~D ~+"UR 1CA'><'ANSZON The existing N(SW landfill will reach its euaxently pezxxuitted capacity in appxoxianat®ay 'three years. The ~1~ has available land to the south of the existing landfill footpiia~t within, flee solid waste ovexlay dista~ct that eau be used for the proposed expansion of •the MSW landfill. lay izACxeasu~g the footpa'int of the landfill, ~e fiRL is able to efficiently increase its capacity and extend its life, Since fire existing larudfll alroady has rho irafiast~ructure, envia'oa~.meutal axaonitoritag systems, IIaxd opezstxons in-piece, it provides an enviroaunezatallyssfe axes for the proposed axpazzszon of a needed facility while providing a bextelit to the conunnnity that exteaads beyond wastE disposal needs. The need fox additioaial landfill space i'or the expAaaduzg greater z~nctaapolitaq area has been docutxzexuted by a division of the MPCA. (1'oztxxerly Offace of Envu'oaaanental Assistance), whose purpose is to idezatify waste rnanagezztent practices said places in2portaz~ee on waste reduction, .reuse and z'ecycling. ?Despite the successes in Mizamesota rat Teduction, reuse axed recycliatg, flue cluaulity of waste generated has substarztxally increased over the past decade and with it, a corresponding tweed :for additional MSW~ landfill space. T:W7~11ao61cidApybleD~l'b9 ~epois„fioat(x).ito~ 2^n 03/09/1010 1b:"19 i- t51<llala5 rV1u1~UAN rhrLS 1 Y'Htat l~/bk~ 2.4 PI,t4kOS]ED I+.(~,CII,ITZI•aS AN.® O~.$°~~ATAONS 2.4.1 ~u;Frrasixuccure ~xpauszon oFtla,e following existing iza;ft•asxt7actuxe systems will be requieed as part of the proposed project; • Gas ez~txaction wells, piping, and mauitoxing pzobes installed in aeco~rda~xce with the 1\Iew Source Pezformanee Standards (NSPS) and Title V airperl~it. ® Gas to cz),ezgy plant axzd back up ,.are in aeeord.ance witlZ the Title V air peru~.t axed NSPS regulation • Leacl~ats collection. and nisnagexnent as approved by the MPC.A • Gxoundwatex monitoring wells as approved by the lYIPCA. 2.4.2 Operat3oual Tmpac~Cs 2.4.2.1 ~otr;rs of Og,arxatlon Thy SRI, will continue to li~ait its ope7'atirnis to tlxe hours of 6;00 azta xo 7:00 pin, Monday tluouglx Saturday, excluding holidays. During that time, the laztdfill will be operated izx accordazace with the operational requireruexats enforced by the IvIPCA, Sher}~un(ze County and the City. The lazxdiall may accept waste duaiztg the of~laours only under certaiza Cli'Cl1lLlaiflp,C4°5. 2.4.2.2 7CraI'I'xc, I'urtking, laud ~5fgmage ~'lze 7JPS ezuploys approximately 14 pEOple at the cw.~ent ,la'iadf]1 site. xhere tu-e 20 parking sta.Ils located at the ofltce buildizag site as well as ample a•oom for patl~ing in.'kbe yard area to ttxe north o£tlae building. The landi:xll eruployee nun}bens rare ~po•c expected to iuacreaee with the proposed exX~arasioza. AdditaQZtally, there is no increasE in txafi"~c to fibs facility expected w}tb the proposed expangxeA. 1`.V1742114D61C{ryAp~PoD~B~gpotl(Inal ('~.duc 2~3 03/09/2010 16:18 + BKiGGS h10t2GAN IV1PL5 "1 NA(at 1b/bb The E1tL wi11 naaintaiza existing sigzas a2 each ez7~t~a>l7.ce to the site whick~ describes the wastes wlziclz, may be disposed a~C tlae ETU, axed tlxose wsste3 which will not be accepted. In addition to waste acceptexzce iziformataoza, tlae site s~igclaye also iaudicates the schedule of days and hours the facility is open to the public, prices fox waste disposal at tlae site, the 1v11?C.A permit numbor, contact person for lazul~ll issues, acct the pezaaliy for unzaeozaforining clumping. No new signs a~,•e proposed £or the proposed cxpanaiozz., 2.4.2,3 Equip~uent Storage Adequate on-site e~uclosed etoxage is available for the mtti~ztanance and storage of the la~adfill equiprent that is currently needed to operate the landfill. Tt is not anticipated that additional equipment and/or equipxraetat storage facilities will be xecluired with the proposed expansion, 2.5 1J+'PIVIROI~NI~lY'TAL .Al~1A CON~MUNZ7CX ~'ll.'AC~S AND .M>(x~G•.A,TJ[QN Tho proposed Expansion does zaot xecluire an Exivxxoxaxiaental 7mpaet Stateu~.ezit (EIS) ut~de~• the reciuirer>laezits of tViitln.lR..4410.4400, snUp, 13(E) since the izacrease iu voluzxae is less thatx 25 percern of a previous capacity of a MSW disposal facility fox 100,000 cubic yards or mare of waste x.11 peer yeax• Moreovex•, the MPCA dzd cozzduct an E1S fox a xarucla lax~er proposed expausiorz of the landfill, which izacluded the proposed expansion The followita.g discussioza provides a stitnmary of tlae expected iz~apaets associated with the proposed expansion. Mazyy o~'tlaese findings are also discussed iia. seetioza 3 of dais repox-t. Z.S.1 1;nvfrommietataX >lznpltcta 2.5.1.1 Groumdw;ate-• T.`0742~14061C1bA,9~pReb1C198Ateyoq, final C~.dno ^-4 ©3/09/201© 16:18 + ERIGGS MORGAN MPLS 1 PAGE 1l/6b The hydz•ogeologic conditions withitz tho additional footpz:int area are suitable for the proposed expansion. 'T~e u~onitoz~,n,g prograrp. which is currently part of the >~i2.L operations izzoludes testiszg to provide early waxnu~g of a release, should On.e oCCUt•. The groundwatex moiutoring we~1 tzetwoxlc izzcludes zzuxnerous dowzagradaent wells that axe pxopaxly positioned to observe existing and future groundwater conditions at the sate. ~'he groundwatez• znonitozang netwozlc along the sou~etn bouo,da.ty will be znodi7Eted in accordarxee vs~itjz .uzy secor~nz~,•zezid.ations iroin the MPCA during the application submittal and approval pxoress. 2.5.1.E Su1~'sce Watex The Ems., is currently operating uzzder a Storu~,watcr Pollution Prevention, F'xogram. (SWPPP) that exceeds Iv~PCA xequiremezxts. The existing S•~VPPP will be atzteczded to cover the additional footprint should it be appz'oved. 2.5.1,3 Aix Quality Methane gas geneaafied t'roin the waste dislzosed of witlzitx tb,e proposed expansion will be used to g©zzea•ate electricity at the existlzzg ga.s to ezzex}Iy plant, .A,s does the existing landfill, the proposed expansion has tits potential to genexate odors. Banissions are monitored on site eszd odor couzplaints axe investigated and causes mitigated pz'oz~:~pCty. 2.5.2 r~®u~munity 1'rupacts 2.5.2.1 Vkauaa Im~mats T1~e proposed expansions will be effectively screened frozzx Highway 169 along Clio ea8tez21 side by existing b~rxls and trees. Sanvlaa• to the 200-foofi bu£i'er between, t11o toil azzd the existing facility, there:vill be a 200~foot bul'l'et front the pxopez~;y iiz~e to the ce11 bouraclary along tlxe westezn side of ~© fneility that coztaists of ~ existing densely wooded area between tits pzoposed landfill and tr<~.i.l eoaxidor. Tkus 200-foot buffer re~a2~tgos~c~ynPyrw~Frency~n flnoita~aoc 2-§ 03/09/2010 16:18 + ERIGGS 1410RGAN PQPLS 1 PAGE 15/60 effectively scz•eexas both tlae existing facility and tkze proposed expansion fxvax~ tlae corridox trail. Mizaiz~g activities to the south of the proposed expazzsioxz will be vzzgoing dtu7xxg ~e life o£ the project. In addibioza to the existing sca~ee~uirtg along 221 si t1venue for mining operations, the ERL will establzsb. screening vegetation nn the southern bexua rhat will effectively soreesx tlae proposed expansion, 2.5.2.2 ]Land Lase Con~pat~bilxty The proposed expansion is located. within the existing property, Which is witbira txze Solid Waste facility overlay zoz>rixz$ di~'tr%ct, snd guided "~andFI1" ~ tb,e Citiy's 2U04 CornprelaezzsiveP/an. The City's 2004 Coixzpxehensive plaza also states that the "~azad~xll use is consistent with tlae curre~it laud use plan". Tlie proposed expar~Rion is also consistent with the Sherbuzaae Co~uztty Solid Waste Maazageaazent Plaza. The proposed expantskou is also cooBigtClat with the existing I~wy 169 and tlae future Hwy 169 coxxzdor plans, aad will not Affect auy future interchange designs at the xrztersectlon of ~lighway 169 atad 221st ,A,vezaue.' 2.x.2.3 ~cpnoualc And Social Tuipa.cts The ecolaoxAic ar~d social ilalpacts of the proposed oxpans:iozl are similar to those of the existing EItL facil:i1Y• Revenues curxently collected by tbo City, Shexbuz2~.e Cot~ly, aaad the State of Miruaesota fi•om tipping taxes a:nd foes would be susta~ed for Che additional volume associated with tlae proposed e;~paunsiozz over the addatzortal life oaf the landfill (1,67 zxalliozl cubic yards ovex 4 to 7 yeazs). Similarly, xhe othez• eoozzoznic benefits associated with the E~tT, facility to the surrovuding conLmiulaty in t}te way of comraciexce T:w~~:114061CiD'ApPFoDWF-s ~tGpo~ml (2~dac 2~6 03/09/2010 16:18 + BRIGGS IYIORGAN ~V1PLS 1 PAGE 19/60 with local busi~aesses, donations, employment, etc. would be sustained fox an additional 4 to 7 years, 2.G $ITI<J SCRFF~II1o1G Tlie xegion surzour~dzmg the proposed expansion consists oI'rolling tErrain, k~eavily wooded axeas, existing Uetans, and o~.-going ~xtining operations that effectively scxeez~. it fTO7T3 view W.~tbout additional sCI'eellillg features. Along dxa east slde of the proposed expansion, exlstaztg trees aztd an existing earthen berm that leas been planted with ixees, will provide year. z~ound screeni~ag along Hwy 169. M,ini~,g activit3.es to the south of the proposed expulsion wzll, be on-goi~ during the life of the proposed expansion. Tn addition to tla.e on-going mining on the prapc~-ty to 'tlxo south oftlae proposed oxpaneion and exzgtiug screexalttg alozig 22IeLAvenue fvr the mining operations, the ERL will establish scx~eeuuitxg vegetation ati the south pexazaleter bexxn that will, effectively screen the proposed expctnsao~a fx'oart 221x' Avenue. ,A.loz~g the west side of the proposed expa~nsiozt between Else property li~ae and the coazidox trail there w~11 be a Zoo-foot buffer. This setback allows ;for the pies@rvation of the existixg trees in, the area. Tlxe dense vegetation along the bile trail coxxiclor effectively screens the proposed expansion &on1 view of ktze trail users, Tlus vegetations wi11 rexxasin with the expznsaoza since it xs witl>an tike pxopoeed 200-foot setback. Z.7 PRCpOSJGA Lt~V~FLLL lDl:!,SIG~1 The ERL as designed to clispoee ofnon-hazardous solid r~rastes. ~'he desi~a. as tivell as the comstruation toad operaLiom of the landffll aze governed by the 1,V.Il'CA who lies perfo~zted a detailed review of the design of the e~~cisting facility, and wall pexfoxtxt a detailed review of tlae design of ~e proposed expansion. upon submittal o:Frhe necessary Ml'CJ~. pe~t~it applxc~tlon. rw~ax~inaa~C~onp~en~el~A~vo~rwi (~1•eoc 2-7 08/08/2010 16:18 + sr~iUGS rYioKGaN r~~w~5 1 waUt 1b/bb ~'he proposed design is consiste~zt with file existing design in ti~at it iucozporates a state of the azt cozrzposito 11~tex system; 2 i'eet of cozzapacted clay soil bat;rier ove~'laiu by a 60 x~ni1 high clensity;polyethylone flcxiTJla meml~xane linez•. Together, these two eonzponents of the li~nex system pxevent contaminazzts from, penetrating the su~rxounding envii~ozuxzent. Overlying t]ze liner section :is file leaclzate collection layex. The leavhate collection layer cozasists o~ either 1 foot of highly per~nteable drainage sand oz a synthetic drainage r~;aterial called a geocornpoaitc. The geocomposite is coxr~prised of high density polyethy]ene charnzels zaaannfactuzed to zapidly convey liquids and is eonsidez~ed equal to t]ke transz~'~issioA capacity of l foot of drainage layer sand. lFAW1AIC NCtd7 PWH -mYU'c ~P1IPDAID lo• ortnmeM ort+aNNC unn amlofl'F4R IR' 7fYi~AKOLAR ~Gtlt~1{ :. ~. Ili 1 p ~ ~',- ", 4*1' rya j.a R ,-fi. ~ e ~ " r~ ' .~ . ~: , • , ~ ~ • , . on Rn 1 uelc o~Wtw~u~ ~ + ~. ~ .~ !r ~~`•~-7.i' G.AT DaMf4U I.IISN ~~m~~w~~a,~~~n,. , ,~~R~~~n~ `~..-~~A~ Jsiner Systerza. 'l'lzc final cover sectioza is sinulcn'ly dcsigraed with a layer of buffex zxzate;riat installed over tine final waste elewatzon prior to tkze plaoevaent of a d0 zaail Iinear low density polyethylene liner xzzaterial that is overlain by eithea a sand. drainage uk~.terial or a synthetic dzai:aage zzaaterial, geocomposite, T.I1e fuJtal layez• of?he l~.ndf%ll cover sectiotz is a layez of soil material t?zat can sustain and ~roznote vegetaCive growth 71107421140GICigAppFcb~gBoporG Bno~ (2).doc ~_$ 03/09!2010 16:18 + BRIGGS IYtDRGAN tYtPLS 1 rAGt 11/be7 a~ 4 ~~ s 4 x V aa~ N ~-~ a~ a Cover System iL SDJtS OEOM~MBRANE soJI.S The lJ~dfi11 base liner, iu corkjwkctiora with tl~e 1"tz;tal covex linen; coztapletely encapsulates tike lvl~SW Jnatez~ials froa~ie tla.e su~rouzJ,ding envzxownnetat. The site currently generates electricity from the metlXaue gas extzacted duelreg the waste degeTkex$tioJ~ pFOCess. Tk~e methane e>tiraetion syste~,a will continue to be developed as 1:he landfill i9 ~xaal covered. ~7ae landfill gas ~ctraction wells are constxueted in accordakxee with industry stEUidazds a.iid Eho El~I..'s aii• pemkits. The proposed expa><asiore wall be constxuated as ate additional phase (CEII !8) eopsistei~t witlx the cuixellt series ol'pl~ased cell coatsauction acid closure projects. The timlreg of the projects wild be dictated by ixecozxung waste volttmee itud site operations. !t xs at>tiic~pated that the Cell 18 ol'the land!'ill will be parCi.ally comstrueted fzk 2011. T:107J2\A60~(ryA,~yFabWPB}~epp~~ne! {~.dpc 2~n 03/09/2010 16:18 + BRIGGS MORGAN h1PLS 1 PAGE 21/6b 2.8 J4.At~1]Dr]CLL CLOD The ERL has site-specific provisions in place for. the closure of the landfill in accoxdazzce with thezx site pezxxzits. The Elti,. guatat~tees these closuz•e activities, as well as post- closure care and potential contingency actions that ztray be required, ?hT•ough the use o>E' a surety bond in aecnrdance with the hnaz~cial assuratxce xEquirpnetzts by the IVi:1?C,A, Cloatue plans for tlae existing portions of t}~e i'acility have pz-eviously been approved by tho MPCA,, Sherburcxe County and the City, and upozt submittal of the necessary MPCA pez'xnit application fo~• t-Jae proposed ilacxease ii footprint, updated closure, post-closure and contingency actionplatrs and coat esiiznatcs will be submitted, Faz~al contgw•s, surface water drainage calculations, atad az~ end use plan are included in. this subxz~ittal. .A.s tho ELI., ez.~.ters closure o~tbe lazulfili, existlztg feaxcing will be utilized axed supplesx~ented as x,,ocessazy for ~tb,c purposes o~secuzzty, Aftex final closure Vf'tlze site, wl7iile the entire sate will be secure, certain potions of the site wi11 be secured such that orily those persons autk-ozazed l,y the ESiJG will be petted ui these areas to perfoian closure and post closuz'e activities. 2.9 CLOSU14lC CO1o1aTRUC~xOIV The proposed expansiea~ will be closed as part of'a pleased closure construction. The anticipated. closure sequence anal tizxzirzg fox flee proposed exp~uusion will occur in appzoxirnately 2018, as part oi: the final please of closure cozzstt~zction. The tuning of constx•uctiozz twill be dictated izz part by iz~conun$ waste voluxz~ea, Closure of the f and;Eill includes the engineered eovcr system, gas coliectiort eoznponeitte, anal the surface water controls included N.11'CA pernv.t application docuazzencts and approved by the .N.I~PCA. The City, as well as the 1~~PC,A, and, Shorbtzxzze County, wall be uot~ed of impending phased closuxo at the flu. prior to initiation of closure const~uerlozz, Tho details oi'tlzp T;X074219A06~CiW~PPPe6~91i~9wt,Jlna1(2).rtoe 2-~ O 03/09/2010 16:18 + ERIGGS hfORGAN IYfPLS 1 final cloeux•e project wzli be detailed ~ the notification for i`ialea closure alid will uiclude a ztoti~oation p~•ocess f'ox regular custo7ttlers and in area ne~~~spapexs• Additionally, the ERI. will post a s#,ga at tine site's eutxance ~0 days prior to closiu~g for waste aceep'tatice flxat noti~xes landf~l custox~~.ers of the closure date and alternative disposal Iocatio~,s. Landfill final closure activities wzll proceed within thirty days of receipt of the Iasi Iofld of waste. 'lhe lulu,, will updaee ~e City as to any revisiozas to the closure sequence as ineorning waste volubaes xrtay change ovex the li~'e of fire proposed expansion. PAGE 23/60 7."A742\19061C1ryn~rb~Report fiou((2j,aoe 2-.l 1 03/09/2010 16:1S -t- BRIGGS I~IDRGAN MPLS 1 PAGt 14/ b~J ~~..~~.~.~>~~.~ TJ~c eratx~u~:CLiicei~~~ ~~ ant ..ppcaf~ox~ Tlae ~llc Ztiver Code (City Code), Cliupter 30 and Chapter 58 govern the Coziditional Use i'ea'xzzlt/~,icense arni~clxizent application requireme~.ts; 3.1. ST'~1; i'L,Ai~T Tkie ETZT, has developed a site plan in accordance wxtta the City Code, The ap~lieant acknowledges the draw scale requiiexnent stated on the applioation form, l~owevex, the cirawizigs have been subznittecl, at a scale xelevaiat to the size o~'the project azzd how it connects Wit12 the exai~z'e laizdfill site to bene~i4 tlae review process. Tlae speoific eleziiebts that are required for inclusion on the site plan axed lzow they are addz•essed oxi. ~t17e site pls~i axe discussed below: 3.I.x .~$Il Abu.ttlzzg Lots .A.buitin$ lots are provided ozz the site plan. 3.1.2 1;xas(-img Jl3laAldin~s F~rastix~ buildsng foott~axits axe indicated oz~ the site plaits. 3.1.3 Existing T?s~es ~lae site plait is provided on an aerial photograph to readily slww the e+xist~ uses on tine existing laudi'xll property and the pxopased additional development footprint. Existing uses iepxese~it a combzzlarion of 1latural features (woods, wetland, sand xxahaal 'M07421-A06~CiryA~FnDIi'liDReyan„flnal (n~ADO 3~z 03/09/2010 16:18 BRIGGS MORGAN t•~IPLS 1 topography) azad nlirting activitzes. The proposed expaztsion is v~~zthin the existing landfill P~pe~y 3.1.4 >C?tilxties lVo rxiuwicipal Utilities axe provided to the pxoposed project, ztor does taus application request the provision, o~FanyAnur~icipal uti~itles. Th® property wi11 cox~ti~[zue to be served by private wells and septic system. The exisdrzg la~rtdiill pa•opeity ~aludes a ~audfill~ Gas to Enexgy Faeilxty that provides the City with approxiuzately Z2% of its electricai n~eecls. The pxoposed expansion provides tl'e oppoxtunity fax additional l,reen enexgy gleneratioat capaoity. 3.1.5 Curb Cuts B~istiztg public stxeets azid curb cuts (~.te shown oar the eitE plaai and site development plan. I~?o new en~h:ences or ctiirb cuts are recltured as part of the project. Private driveways and maiutsnance access ways on the property are shown. 3.Z.6 ]C.ocatious o~ Frees 7E~mvAZtg a Diatxteter of Six Inches oa• 1V~al'e It ie the applicant's undetetandins that a survey is oztly ztc~ded foz bees that would be re)(zloved due to ~e proposed increase ~ fho lalxdfill footprint. 'frees that are removed as part of the ctvrrent rniniztg operation do x~ot need to be inventoried, 7.7ees that will not Ue removed ;for either the current minzxitg opezatiozas or proposed landfill operations do zaot need to ~be stuveyed. ~t this timo it is trot anticipated that any trees will need to be xeznoved due to the pxoposed project; therefore, a tree inventory is not provided. 3.2 p1C+~L01'~1VT :1'~.A,N The EF.L has prepared a devolopxne~at plan iat accord~ugce with the City Code. 'Phe application haft included two site development piazxy: one for the entire pxvperry anal axz PAGE 25/60 Tt1°74911AD61CIry~pp~eblPlID Rryop~lnal(2).Qoc 3-2 0/09/2010 16:18 + BRIGGS P~IDRGAN ~Y1PLS 1 PAGE 26160 additional lazger scale dzawing i'ox the proposed expazxsion. As wii]a the sftE plan, the applicant acla~owledges ~e draw scale requazeuient stated on the applicatxou form, however, flee dxawingS b,ave been subrztitted at a scale relevant to the size of the pxoject and how iC coxxnects with the entu'e landfill site Co Uene!'xt the review process. ~'he speci~c,elements ghat are~qui~ed £ox inclus~oxl on the site developznexitplan Brad how they axe addressed on tl_~e site development plan cue discussed below: 3.2.1 Zngce~s an,d Egress Existiag ingress aril egress ase shown. ~o nevv eulrRnccs or ea~its eu-e ~~clu~ired as part of 'the project. 3.2.Z Proposed ~~-uctures There axe xxo new proposed str-ac'hires as parl• o£the proposed expaus}oza. 3.2.E Ofd atr•aet Paxlraczg aad Los-dfng areas Off-street panting is provided witktin the e~:isting parking lot l'or the landfill off ce. '1'kzas paxl~ing lot currently has 20 pa~•lti~ng spaces. Tke proposed p~raz:czeter operations xoad ar~ci perimeter access road represent the "loadins areas" associated with landfill op@x~atioas. 3.2.4 Sca•eotzing/dinflfe~•iuzg/I,s-atdscape ]~I$~ Tl~e xegion surrounding the proposed expeaasion co~asists of rolliiag tez~'ain, heavily ~,vooded aa'eas, e~rishizag'bez~.s, and oat-going wining operations that effectively screen the area fi oru view without additional screezaix~g ~eatuxes. ,A loxtg tl'ze east side of ilae p%joct area the exxstiaag earthen. be~'xta that has beezt planted with trues, provided for the screeniztg o£ tlxe ors-going ~in:itzg sct~vities will provide year xouctd scz'oe~g duriizg the active lii'4 of"~thc proposed expansion. In addition to tlza on-going octu,~;u~g oz~ the ~propexty to the T:~n~~a~c~ac~c,mAerF~~x~roe no~(z).aoo 3-3 03/09/2010 16:18 + BRIGGS IVIORGAN IViPLS 1 PAGE 27/60 south of the proposed expaxtsi.on And existixtg screening a~oxtg 2218` Avenue faz• tkte aniztizlg apezatiox~s, the E1tL will establish vegetation aczcening along >•ltc sautk~Ex7n, bezxzt that will assist in screexli~g the proposed project from, 2218C Avenue. The vegetation plazz is shown ox:t the lazadscapimglscreeuizzg plan. A buffer gone, which xzzeludes a 200-Foot wooded setback aloztg the City's Railroad Hilciztg Tt-a%l, has beetz established betweezz the cell boundary atzd the vv~estern properly line, This setback a.(lows ;Fox the presazvaTio». of klze existiztg trees izx the area, and. tb.e dense vegetation along the bike ix•ail coatidox cffectivoly screerxs the proposed expansion frotu view of the trail users. This vegetation will zexataui with filte expfutsxolt since it is wxthiu the prgpoaed 200~fbot setback arch. Per a properly interest granted by fine Ti11er Corp. to tkze ~~,, the existing 200-foot bu.f£ex on tl~e south 5zde ol'tlte exxstixzg landfill will be zztaved without change eauTh onto the adjaceztt Ti.llexpxoperty, 3.2.5 TJ411fi1~ea The required, utility plan is fox munieip~ sewtx and water lines axzd hookups. 'l`he proposed expansiozz does a~ot propose arty use; of mutaicipal sewer and water, therefore, no utility plan iR required. $.2.6 L9ghting 1Vo atetiv lights are proposed; thea'efoae, a ligtatiirtg Platt is not part of fiatis applicafiio;:1. 3.2.7 Sigma iVo new sigttts are proposed; thezefore, no ai~gztage plezzs are Xe~uixed. T\07aRi1406\CiO~AppYcb~ Rcport IIml (2~doc ~-~ 03/09/2010 16:18 + BRIGGS tyIORGAN t+1PLS 1 PAGE 28/6F7 3.2.8 Opan Sp»ce and E>ud Use 1'Ia.tt Lozag terzza, tlae open space provided by tlae closed landixII areas would he cgmpatible with any adjacent future development to ttae west, south ox east, The ixztezaded passive open spQCe i'or the landfill after final closure is shown ors the end use plaza. 3.2.9 Deveiopanent Schedule The proposed expansion will be const~uated as an additional phase (Cell 18), the last of a series of phased eonstzactaaza projects (currently through CEll17). The timing of the projects vrill be dictated by izzaoming waste volumes azad site opea'ations, but xs a2atzcipated to be cozar~tructed in 2011, and closed izz approximately 201 ~. 3.3 LANA USE A,P~'Z,~CATrON T01.21VJ[ ha addition to the izafarznation required by City Code, tlae Conditional Use Qez~.it applicatioo. form xegzaires the subax~assioza o£ the following ir~oz7~n,atioz~.: ,A, copy of the ~.azad Ilse Application ~ozz~a is submitted with tlazs applicarion. The ERL is the appJicazat and also the ownez• of the Property. 3.4 ,t~]PLICATIOIV EEE Tkze applioatioz~ fees axe provided with tlzia submittal to the City per tlae City's fee schedule. ~'~iia~1~ctt~i0ll TVps ,,, l;•ec Escrow 7fot<~1 Conadibiozaal Use 1'emut $520 $1,Ot10 ,1,520 C;~x sand Torn1 $1,520 in~074R11404~.CityAppPeb\PSBxeport fsrrelSx).doc ~~~ 03/09/2010 16:18 + BRIGGS MORGAN MPLS 1 PAGE 29/60 3.5 LAST U)<' PROP~I,2T'4~ O~,VNICRS WITHIN 3S0 FEAT ®3+ T~)C SUl3J +~CT P,A7.1~2,C)~:G .E'~ last of all owners ofrecoxd of property Location in wl2ole or in part within 350 feet of the boundaries of the pxoposed expansion, as idetlti~xed in the xecords of Slterbtune COl]tlt`y PI'opea.'ty Tax Division fts of January 2010 Are submitted with this application. Mailing labels obtainacl fTOt1a 5]1er17Urne Couxxty were also submitted wjtb, this apptication..!~ Data showing the l~xoperties u~itivn, 350 feel is included izz ,~,ppendi~ A. 3.6 PT2,OJECT NQi7J~t.A,TIVJC See Section, 2.0 for a derailed project description. 3.'? GIE2A,I]TNG/pzt,A,"INAiGE A'I...A.N AND ARA,xN.A G~ CALCULA,7['IONS Stoxx~awate,~ generated by the laxadlill rnodi~catiozt wilt be controlled ozt-site. Runoff will be controlled axed rotated by draillage tezxaces, pipes, gabion lined downslolae stzuctwres, sln.d four sedi~tnez~tation basirxs as shown in the drawings, Araina.ge xoutin$ feattues Ixavc all been sized adequately to 2111nilnize ezosion from 17ae site. The stormwater fxom fibs site will bo t7reated by four sedimezztatioz~. basins (P-1, 1'-2, P-3, and P-4) located around the perimetez~ of the site at iho noxttawest conie2• (P-1), southwest eotxter (P-2), sontheest coz~Ier {P-.3), and I~,axtl~ea.st coaxaex (I'-4) of~i,© laxzdfill, Stoxxaawttter gex~oxated frotxl, the site will be discharged fion~ these on-site sedizx~entatior~ ponds via a stoxrn sewer system to flues main outlet points, Tlae outlet points are the northeast to atx ;~xdiltratiozz basin, to the east into Tki16y right-off way (itOV~, and west to a wetlex~cl comple;~ upstream of Rice La1~e wotland cozxxple,Y. ~foz~a~twater wk~icb. T.~09A217AQG1C7tyA.ppPcL~PEH ¢gpo~tr(»70 (~.doc 3-G 03/©9/2©10 16:18 -~- BRIGGS N10RGAN 1+1PLS 1 disch©ages north to the in~Itration basin. will zaot leave the site as the basira has been desi~>.ed to uifiltrate stolznwater ;CroxCa this site and the ERL's demolition, aau;df~ll site. The esstcxa discharge pouat wzll be to TH a 69 JiOVV. The western portion of the land1Y11 will dischaxge ~tluough two different stormwater ponds to a wetjaaad ozt tlae east szde o£ the abandoned, railzoad tracks. 'I'Iazs wetland is coz>auected to a wetland west of the railroad txacl<s •wluch eventually .flows into the R~ee Lame u~etlamd complex. The discharge polxat £ox the all pond dlschargea wzll be onto property owned by the ERL. The drainage calcttlatiorta are presented an Appendix $. 3.8 J3€TILDIIVG ~LIsV.A.~~O.~TS ,AND FI.OOkI PLAI+tS There axe xtot proposed buzlding~s associated with the proposed project. 5.9 OU~AOOR STQlZAG1; No additional outdoor storage zs proposed. Storage will occur within exxstl~ structures. 5,1.0 ~TI,Ald]() DIELl;1Vl~AT10N ~i,~iD 11IITYG,g,7['ZON PL.t9,N 'T7iere are no lvetlands pxescnt or ~~.pacted by the proposed proj ect. 3.11 l/.A,W/~T" ~QTTiRFMENTS 'lkzexe are no Eq,W/l?TS reciuzxeznents fox tlae proposed expansion. .Asa LAW/EIS is ztot xegtured for the proposed expaYasioaa. An EAW/EIS was conducted in 200d-2006 that xzaeludecl the proposed expansion as part of a larger expausioii. PAGL 3FJ/6b T;W74YUA06VCSdAppFeDlGh-a ~ogon, jnal(2),dpu 3-r, 03/09/2010 16:18 3.12 -h BRIGGS t+10RGAN MPLS 1 ,AIaJL OTkiJEI~ IN~'O~MA7CXON A~ ~3~7CEIttl~,NluA Iii.' ~' C~7CX STAI+I+ There is no other infoim,atiom required at thzs point. 3.~,~ CO.NJDfTION.AJL USSR' I'EItMYT/.I,ICI3;NSI+;BTANDARDS Off' ISSUANC7E The EIZL has rnaixltained a solid waste £aciIity license a.gz'eexnent and conditivzzal use pexmi,t in accordance with the City's requireaxlents. Both of these documents .require amencln~erzt for developzxzent oi'this proposed e~cpat~sion. City Code ~§ 30-65~ a~~d 58-125 set ~'oxth seven standards that must be tnet when considering conditional use permits. The proposed ©xpaz~sion those standards as detailed below. X. l3'ill trot endanger-, injure nr cietr•irazetatrtl~-y affect tl~e use and eta, joy»ierx~ of other praperty'~taz the irrir~rediur~e vicitrity or tl:e,ptsbCic Ireadtlr, safety, -,rtorals, cojitfort, cosrvetxience of•,~eraeral we fare of the te~dghGoryaood or the city. Consisteztt with its appzvved CUl' fox tlae existing MS W lAndiill, tl~e following summarizes tzte stazadaxds that will continue to be nzet ;Fox thti proposed expazzsioxr. Gxouxldwater ~'lxe proposed expansion, sintil8x to the exisf~tg facility, is a xzzodern, lined Iand~ll that ~,eot8 or exceeds all health aaxd sai'oty regulatory requirerncmts. '.t'b,e .facility is deszgazed to protect groutzdwate~• by pre~~erati~ag a release to the envzrotunent. Tlae faciliity also lams a grouxzdwater zuozaitoring z~,etwork and xxzozutoring pxogratn. ]~ edexal, state, and courzry regulations establish sitazzg, znoxlitoxztzg, water quality, zuzd vtbex standards to protect gsoundwritex ~rr:souacee. Sibnilar to the existing i'II.cility, tl7+e gxounflwatex and monitoring well netwoxlc for the proposed expansion will meet oz' exceed tk~ose standards and recluixexnents. PAGE 31 / 60 'F=b74x114061C1~vnpyPe~~F.GRJRopon„finoJ (1.),OOe ,3 «8 03/09/2010 16:18 + BRIGGS IYtORGAN W1PLS 1 PAGE 32/60 _ ~''he 1/RL will continue tp perform on-site at~d off site water- quality testiuag zn the matLraex required by flee MPCA pe~oit. Tlie ors-site nnonitozi~ag wolls shad sett curxeaat Depaw•tment of Hoaith Well Code Star~,datds. ERL wiU aanualIy aatnpie the izrdividual .pxivat~e wells identif ed in tlae Phase IV V~Iater Qualify IVTonitor;~ug Work Plan xecluired ,by Section A~(OS) of tlxe approved CUP. ,A, Water Quality Report shall be submitted to the City wlzezx it is subzaittcd to i;he N.IiE'C~. 7.. a.ie ~lt.L will contizzuo to eitlxex ri~aintaiz~ backup puwps ;for use in the event of putx~p failure on-site, oz• L~RT, will znaa_utain provisions far resfozing teniporaxy leachate pumping within. a 24-how' period aztd adhere to the current "Leachata Management Plan" as approved U3' l~'C24. 'fhe FRT. purr~ps rho existing leachate taz~l~s on a regulru' schedule. Z,eachate will not be allowed Co collect on the liner to a depth exceeding one foot due to the leachate-holding tank being full. The facility is approved to recirculatiozareachate. Remedies for psoblerrzs ~urasax~.$ from leaelaate recirculatioza it7.clude, but aze not limited to, the aessation of leachate recia'culation, and xevertix~g back to ixaditional leaaha•te treattxteaat, Phase N Water (3uality ozut Tina Worlc Plcua and Hydroeeolo~c l~.~orts The phase 1:V Water Quality Maiutoring Work P1w desczabes tlae san2plin$ £reyueney, parameters, protocols ar~d xepoxtizig frequoi~cy £or Landfill gas, leachate, leachate piezo~etezs, leachate, kyaimetvr, resideutlal wells, groundwater motti.toring wells and surface water will be updated annuaaly to reflect chaaages ui the monitoxxxAg systems. '1'he iz~vesti$ation of tl~e laydrologieaI and geophysical characteristics ofdie sate will be coaatinued and arty other new infor~,ation zelating to the hydxogeologie impact of the site will be reported to tlae City..T-lydrogeologic reports will be updated, axxreXxded, and r;W792\1406\Ci0•AP-I'ebWP~ ~vaSJtnnl (1J.doe 3-9 03/09/2010 16:18 + ERIGGS MORGAN MPLS 1 PAGE 33/60 modifzed as warz-axtted by newly discovered or additional data acquired izi the continued llydxogeologie investigation. Gas .Collection Systc~xn The ~'TZT. skull conduct active landfill gag eoliectaon in accordance with approved plaa~s and skull construct addi~Cional phases of tf}e control system at the tizzze of final cover construction. The effectiveness of active laztdfill gas control opezations based ozt the results of gxoundwate~• az~d landfial gas ntonitozzng will be assessed anx~.ually and izxeorporatEd ha. the ~'C,A, Az~ual P,eport, Surface 'Water Qux~ itv Tiae ~17.L will brave suz.£ace watet• sanapl~g ctiztducted as may be required by the 11/fPCA General Storrnwater PeiYnit for Tndusti-ial Activities, MPCA 5tox~aawater Pert fox Co~asttuct:ion Activities, ox the MPC.q. pex~nit. ~~a~as_tiuction Qgp.l•'tSi~T t~ssurance R~norts .~, Constluctivz~ Quality Aagw.•anee (CQA) Repozt will be subtx~itted to the City parer to the placez~nezat of waste on tzewly constxucteti lined areas, A CQA Repoart shall also be submitted for landfill areas which zeceivE final coven. Aesthetics Visual impacts will coxttinue to be tzaiaaimizcd through bu~'fexs, berms, and vegeta7:ion. ~xttex Control ,A.s is the cur~•ent practice, the l/l~I., tivill eligage a~z a regulal• and routine litter rnaintenance and removal prograul. Odor" Odors will be eaz~trolled k,y miui~a~ing the size of ~e active dispasnl area, propezly coversng the waste daily, arcd lay incorporatitoz~ of the gas collection system (gas e~tractiox~/ power gen.eratio~a. system.). Odor cozz~plaints received by the i'acitlxty aie traehed, acid the E1tx, pxoxz~ptly investZgates evezy odor complaixxt and tales corrective actions whep; odor carp, be traced to a specific cazldition- r:arasu~oa~c~on~a~ev~e~ n~«,,~,,,a tz>.aoo 3 ~k 0 03/09/2010 16:18 + til~ICi(a5 fvIUKUHN rirLS 1 rr~u~ .;4/bb The ERL routinely zxaoxaitors aizd tests elnissioos tom tl~se landfill, eraelosed flare, az~,d landfill gas to energy plasm as recluiz'ed by both khe facility's air quality said solid waste peXx>a,its, azid will continue to do so. There is a potential for odor releases from the additional landfill footpxix-t, however, this potential is not an increase over currexat cozxditions. iIAE The laodfill will adher+~ to applicable safety standards. ~quipme~t and Storg~e lcacilities adequate cquiplxaezlt wi11 be supplied and available to cox~duet aciavities at the site. Si~~ The J/RL zxzai~stains a sign at t;ach entrance to the lazid~ll property statialg the ztanZe of the facility, the schedule ol'days az~d hours the facility is opeztto the public, pxxces for use o~ the 1'acili2y, the MpC.A, permit number, and contact information. No new entrances are proposed„ thus addirioxxal si~a.gc wil] ziot be izeeded. 2. yT/'ill be consz'stenl fvith the campt'eftertslve,plan, Tho pzroposed e~cpaztsioza is located withlza t~,e portion of the existizag 137.4-acres landl'iilt property, wt~icbs is within the solid waste facility (SW,F) overlay district and guided "Laxzd~ll" itx the City's 2Q04 Comprehensive Riau. The playa states that the "Landfll use xs coxasistent with tkte current land use plaxz." 3. Will riot dtnXzede the normal artd orderly develoa~r~terzt a~zd. iszzproverzaeatt of satrrott~trlittg vacant ps~vperty. The 2004 Conaprehenaive Plan ,guides the az'ea to the east of the px•oposed expansion, across IIighway l f9, as "Cornrraercial l~esexve", held ixa reserve for futttl•e commercial ~:1074yV gpG~it~AppkeblPGA Rrpon_Qnsl (2),goe 3-ll 03/ 09/ 2010 1 b: 1 ti + )iKlUtaS I'+IUK[aAN I~lI~LS 1 NAlat :~5/ bb developxn.eut by bagbway busiuaess uses. The plan notes that tl~as $xea is not currently served by xlm,tnieipal utilities, a><td the plan, guides developznel~t i:xast to vacant land already served by utilii~es before opening up ztew areas £ox gxowlh. The 2004 Comprehensive Plan guides the atea to the south of the proposed expansion area as "Minixag". Zt is Cuzx'ex~tly being used fox tl2at purpose. Appex~di~, C contains a naxxr3tive and cross-sectiozts that desctxbes the development ofthe landfill following mining activities that will take place witti- the proposed expansion. ~'he proposed e~paz~sion is not expected to u>.crease txaf;"c on 221 g` Street or Highway l 69, and tbus, would not impede the existixag nww~g u.se o~- axay potential future expaxt9iozt of that xx~zz~.i><Zg use. The az•ea to the west atzd sout~l~,west recently txsaasitioned from "Agt~cultuxal Conservatiozx" zozung to "1.2.urai ~.esidential." Allowed land usos iza Rural Residexatial areas are single fat~a:ily residential ou znediux~t lots (2.St acres) or clustered development. Rur~~1 Reszde~ntial usos are auot served by >t'nunicipal sewer and water. Tl2e proposed expansio>tt will be screened £xont view from developable properly to The r~veet, anal it will not impede the trartsitiozx in land use ~•o><7a ~1.grleultuxe to ~2.ura1 Resxdeatial• The proposed expansion, is xtot expected to generate add~itioual traffic, noise, ;fuz~nes, odor, ox impacts that n~,ay be unsightly, uuetttactive, or tmappealing Ro developers or Suture property ow>lxers. This point is illustratrrd by Tiller's great of a properly ia~texegt to the ERL ~'oz ~e 200-tot buf;~ex axes on its property, Vt~1v.Ie rl~e presence of a lsudfill in the vicixsity of the developable property xr<asy have negative col7not~.tions to some potential developers or buyers, that condition, already ex~isis with the existi><1g E3.ZI,. As units of the laxld~ll at.•e closed and ate convr•.rted to gx•eenspace, attractive open space nzay becoxtle axe asset to tl~e develop~•t~,eut aztd improvesuent of the Co><x~taercial Resezve area, and ztiu•al xesident~al usos •r.~n~azaaW~Ca~rAFgFoDU+PDRepoM ftna(R)•aoe ~-~2 0/09/2010 16:18 -F BRIGGS NtORGAN fY1PLS 1 NAGt :;b/bb ~ N'iZl be served adequately by a~ad mill not, adversely nr,/,~ect essef3tirldrublic facilities arad services incl.:cdirrg streets, police and faf•e~~rotel:tior3, rlrcxlszage, 3~fuse disposal., water af3d seweY systerrts,,narlrs artll set3ools; 118361 i1`tll i3O~j it1~J11tt1C31l1d)'~ C3'eate trtr~'~c cor3gestio-e or interfeYenee >vd€h trpf~c o33 alljltce~at rl>f3~1 ttedghbori~ig j~r~blic tl1OYOidgl1111{'G~S. ]'~hlic Faci).i.ti~s and Services. The proposed expansion w911 ve adeciutztoly served by ~istirzg public facilities and services, ~ixacts and T,~ af~c. Conatructw,ozz of the pxoposod expansion is not expected to increase txaf~c or hauling, thus there would be no adv®xse impacts ro oxty streets, cozagestion, ofi- interference with traffic. ,Adequate vehicle stacking facalitaes are provXded to ensure that no vehicle desuting entry auto the landizll site has to watt outside the pexaaxteter of the Propexty. Arz all-weathex haul road wzll be provided to ttae unloading are$ of the pxoposed expamsiozt azad watexed oza a xegular bASis. Police and l'at'e. The proposed eapaztsion would taut xequire addit~iozaal police azad fz7ce protectiozz, or increased use of other emergency senrices. Parks ~zzd Schools. As azz industrial use, the landfill does zaot gextexate park oz~ school needs. Sewer axzd Watex. 'i'lze sate is adequately sewed. by on-site sarutaYy sewet• azad potable water. Tine B~, has its owta well that supplies a potable watex supply for site persozazael. Adequate saxtatary facilities and sltelter will continue to be provided for sate pexsozazael. Stogywater Man~a,~aexit. ~1 stormWater zrzazzagexzzent plaza has beeai developed £ox ~e ex9srang sate that meets the require:xzents of the N~atiozzal Pollutant DisclaArge Eliu~inatiou Systeta~. (NPDES) l?ezxzzit requirements for erosion control and temporary and permanent stortnvvater zxaazaagemcnt, The lulu. will include flee pxoposed expansion, ~ tl~eix covea•vge of the 1v,Tannesota Gerzexal Porn>it for Autlac»zation to pischaxge Storuzwater ,Association Si10T.Q,2\fdOb~JryAPP!'M1FTa6ALryort final(2)4ge 3-13 03/09/2010 16:18 + BRIGGS tV10RGAN MPLS 1 PAGE 37/60 wish Industrial Activaty. The ERL's existing Sformwater Pollution ka•eventiozx flan (SWl'S~p) will also be updated to include the proposed expansion. The SW~i'PP will be updated as necessary to comply with upcoming ~evv gtormwatox xegulatioxxs. Electrical Setyice. t~dequate electA'ieal service is provided at the site .for opesatioxzs and repairs. The larzdfxll generates electricity at the landl;xll gas to energy facii;ty_ 5. Wdll noC lltvolve uses, acifivities, pvoce~tses, materials, e~r~ipmetsP aa'ad co-tditio~as of Oj7G'Ya;!1p71 ~l/p'.t 7VYII (1e (~G~'PrisneaaZrcl to any,pevsons or,~r~operty because of excessive traffic, raolse, s~raoke, ftartes, glare, odors, tdrest or vi~iratiorts Traffic. No add.itioz~,al lxflffic i5 expected to be generated by the proposed exparisior>< since the overall operation of the proposed oxpeaasxob is not anticipated to include sigzuf caxxt increases in waste flow over the current opezation, effects on traffic coxxgestion would be expected to be ininim,al_ oise. No additional operatipg ztoise is expected to be ,gezterated. by the proposed expansion, Smoke. The landfill will zaot generate axool{e. Ponies. See Odor discussion iu tlae sta1:emcnts regarding CUI' finding nuzntbex 1. Glare. The landfill •will not utili2e lighting that will create glare or 1igbt tzespass issues, Odors, See Odor discussion in the etatenrients regarding CUP fitadiztg number 1. Dust. Ilrgitive dust exx~assions ofd site will be controlled at tl~e laudTll site as necessmy by undertalci~;g the following and in accordance with the facility's Fugitive Exni.ssions Control Plan. Irip74111406'CigAppPe~1~Q8 ~+.epo~ry• final (2~doc 3-14 03/09/2010 16:18 + BRIGGS h1ORGAN M1PLS 1 PAGE 38/60 Vibration, See response to zzoise above. G. l~J.l t:mot resr~lr ~f~ ,flee ~lcst7•uct~'o~c, loss or rlar~ia,~r~ of ~ taatuYal, sce»ic or Jzr'nstaric feai'ure nfnza~ jor inaportanc¢. Feattuea of Major Tmnoz-tanco. There sane zzo knowzz zaatwral, scerue, or historic features of zxzajoz• iznpoztanoe tivith the proposed. ea~pazzsion. Historic ,•tnd Archaeological Features. The 1VTinuesota State Fiistozxc Preservation,{Skl.PO) eras cozltacted regarding axcbaeological and historical features as pant of the prepaxatiozz of the EAS/EZS 71:ox a lazger e~paa791on. SHPO cot~.cluded that xzo properties wl2~Z the proposed larger expansioza were listed ozz flee Na~ioual ox State Registezs of Historic 1'luces azxd that zxo laxowzz or suspected archaeological properties in the area will be affected by the proposed expansiozx, Oak Wile 1'reventioza_ .A.s a x>J:etl~od to prev4zzt oalc wilt, the l?RL will not cozxduct any tree removal operatiozas at the lazzdfill property between April 15 and July l5 each year. Iiz addition, oak stzuttps will be xezxtovcd prior to A.pxil X5 each year. When xezxzoving trees azxd stumps, the Ems, will prevent damage to relnaining trees. 7. Will fully comply will: all oll:Pr J•e~uirezuents o¢'tlz~s Code, iJtcl~sddiag any ap•,pCtcable re~azre~rReatts ajed stcJJarlar~ls for tke Bssrbartce of a liceftse or permit to estaLtisli aid o,~es•~c2e flee proposed rise lrz the eily. COZZatzuotion Of tie propO6ed exprrtasipx,- Wlll require z><utraerOUS state, County, and local ~erzz>Lits anal approvals. Perzz~ite wed approvvals f~•ozn flee MPCA izl,clude zzxodil"xcezlozz of the Solid Waste plsposal Faei,~iry permit, N'1'DI;S GeJaexal Storxxlwafer Permit for Constructioza, modircatlozz of the NPDES Gleneral Stormwater Permit for Iz~.dustrial .Activity, azxd aznendmexzt of the Title V Aa.r Pernut, azxd a Certificate of Need For developmezzt of the proposed expansiozz. A, CQN has been alxaady been iBSUed £vr 7i1 expanded capacity that is above the capacity obtained From the proposed e~pazlsioxz. Tkze 'f:107a211AO6~CihAppFcb~PBDRcpon flnd(2J,doe a-IS 03/09/2010 16:18 -~- BRIGGS IYIORGAN ~~1PLS 1 PAGE 39/60 Metropolitan Council E~nvirozzbaezatal Services Industrial Discharge ~'ezxzlit will zequu•e bnodification as weld as the BRL's Sherburne County Solid Waste Licerxse. The ET~L has in place an approved Cozadation.al Use Pex~ngat and Solid Waste l~'acility ~,iecnseA.greeznezat, which wiI1 need to be Azuendod to izxcl~ade tlzo proposed expansion. With developxnezzt oEtlae proposed expanaiozl, t'he landfill will continue to operate as it b.tts in t1,e past, in aceotdance with tlae City's requice~ents. 3.14 .FRT.'S Rl'u(~~17'C9T.ED COND~T~ONAL US,1u )!'E.R11~'1<'/1G,)CC)CNSE .A~ICNDM7GN7l'S 1COR TkTE FRO)POSEA lE~I"ANNSZ®N MUST 143E .e~]PA7,OVEla City is bound by zts prior decision-zzaa~ting. This xs especially true with regazd to its prior deczsiota-makizig for a ,pi~ox applicationa whioh zncluded the .~tne request_ City xs tlaus bound by its October 19, 2009 denial of the E1tL's proposed 73.4-acre expansions which included. the approximately 13-acre pxoposed expansio~rz sought here. The approximately l 3-acre portioaa was a sigzaificant pct o~'kb.e ER?'s March 30, 2009 73.4-acre expa~,sion application. Tlae approxinGtately l3-acres constituted approximately X8% by ac•ea of tlae ERL's requested 73.4-acre Zanclfill expa~asion. And tlae approxizaaaTely 13~acre pxoposed expansio~a, i~ approved for latzdfilling, would buy the ERL 4 to 7 years of addit~ozaal Ii~e. Such additiozaal life would be cxztical to the ER,L if It is forced to pursue altezxamtives to its requested e,~cpansioza onto the 108.3-acre soutlaem development aa•ea (SD.A.) Qropez'ty. Telliuigly, tha City'e October 19, 2009 dezaial of the ER.T,.'s March 30, 2009~requested 73.4-acre landiill e.~.paaasion identif ed absolutoly too substantive opposition to this approxizxxately 13,acxe portiozz of'the request. Uz~.lilce the rest o~the initial expausiau request, ~t'he proposed approxitx-ateXy 13-acre expatasiou ig uzaquestionably all witlaxxz ~lhe SWF ovezlay district. Father Haan substa~at~vely oppose the approximately l3-acre expansion, •tlae City instead.rem~axleably represented fihal "thc La~xdfll already lass a C,[JP T:\0742\LA°L~C1~yAnpFeA1P~`+g ~cgo~fmal (2).doo 3 -~ S 03/09/2010 16:18 + BRIGGS tY10RGAN MPLS 1 PRGL 40/60 that allows it to use its current pzoperty as a solid waste facility." City .~.RL II SJ Opp. Tar. at 11-12 (emphasis added). Tlae City even scoffed at the notion that "the Landfill 1xuiv believes that the scope of its cua7•ent CUP pxevents it fxoxn using as part of a lenditlling facility part of its pxopezty zn t3ae area witliill the cvrrezat SWF Distz~ict," and it suggests that the ERL ".resolve that uncertainty as pare of ... the [parties'] process of discussizl.g conditaans for renewal oFthe Y,axzdfiIl's current CUP and License." Id But, tivhexa. the ERI.SUbnriitted just such a reclu©st as part of the renews] pxoeess, the City determined that a separate C"f7P/Z,iceztse an~endzx~etzt application was recluixed. Before tkze Court;, the City nevertheless attempted to justify its denial of tYle l/~L's xequested CUP and Liceztse awendmez-ts ss it relates to tlxe approximately 13-acre expansion. Tlae City maazataxns that thexe were four procedural haze to its approval of this approximately 13-acxe port7ou of the l IZL's iztxtxal 73.4-sore 1az~d~xll expansion xequest --- xzatxxely, (1) the E1tJ., had to separately apply fox the approximately 13-acre expansaoza, (2) the City could not legally approve ot; atzything but t1~e full 73.4-acre ®xpansion request, (3) the City could zaot approve of t'he approximately 13-acre expansion because it was too technically difficult, at~d (4) the City could not approve of the approximately 13-acre expansion because tT.te State-zzaoxzdated 200-foot buffer had to be maintained within the SVtTI{ overlay distaiot. Each of the City's four procedural argu~ottents fails. First, the City's ixzsistence on n separate application for the approxizz~ately 13-floe expansion was belied by its ovvzx prior representatlons..A,s the EIiL l}igltbightecl in its opezzing memoxazzduzn to the Couzt iu,~1ZLIl (ERL II S.T. Br. at 11 n.X), dZe City previously represented that it would l,e "inappropriate [l'or the City] to consider" the Elti,'s zeq~aesi for au expansion on this ftppxo~imately l3 acres without the full expatsion oxzto tlxe 108.8-acre S:Dt~ properly. Fem. 98 at 1. The City nowk~exe denied its prior repzesentations, and it is now bound by it. See_ PeCet'sorz v..b',~Sl ; 711, N.i1V.2d 470, 4S2 (Minn. 2006). Second, the Mazzzxosoha Supreme Court has already rejected the City's srgurxaez~t that it could. zzot approve of CUP and License aznondznents fez a 1essPar port[oza - i.e., the Z:~O)A11>,406\CI~yAppPeb~PP,6 Rcyori„fiAel (7J.dao ~-~ 7 03!09/2010 16:12 + BRIGGS IYtORGAN ~Y1PLS 1 PAGE A1/60 approxizxaately 13-acre poi•taon - of 4he E12,I.,'s March 30, 2009 requested 73.4acxe 1Aradital eacpansiou. SeeBreza v. Ctty of'~inr~eCs•ista, 725 N.W.2d 106, 114 (Mhm: 200~i). In Breza, a hon~eowuer bled with the City of Mir!uaetortlca axz application fora •weU.arad xeplacemeaat cxemprion of 5,737 square feet. ,Id, at 108. The city did not deny the application ttnril zaaore than 1 S zlxoz~.tbs later. ,I~ The hozxzeowzaer sued the city, axguixag that the requested wetland xeplacemexzt exemption was approved irz ;full larder § 15.99, su.bd.. 2 because the city Failed to tizz~ely a.ct witlait~, tlae statutory 60-day deadline..ird, at 109, The city conceded its violation of § 15,99 and that a portion of ttae exemption load been approved as a azzattex of law, but it argued that the approved exemption was just 400 square feet- t.e., the xnaxunum e~eznption the city had the authority t4 approve. Id Tlae Supreme Court held that ttae honueowx~.er's wetland. replacGUaent e~ernption land indeed been approved as a mattea• of law under § 15.99. Id, at 114. Bui the Court agreed with tote city atad held tha;k tlae scope ol'the appxoved eacetnptaon could not exceed t17te city's exemptsozt autlaoriiy. td.. Thus, while tlxe hoan.eov~rner was z'-ot legally entitled to receive the fi~11 requested, wetland replaceznent exe~>;~ption of 5,737 square feet, he was entitled to, aua.d did, xece]ve tlae xn„axittxxurrx •40D-squoxe-foot exemption tbat was with the city's approval authority. ,td. Hero, the City had at all tlzz~es the authorityundCF.B)~eza to appFOVC of the L'RL's z'equested CUP and JLicense amendments l'ox the approxizxzately 13^act-e portiazz c-1'tlae property that as already within tlae SWIG overlay district even fihough the 1/fi.L applied .faz the fu1173.4-acre landfill e~,pansion. Indeed, as to tha appro,cimately x3 sexes, tlae City's sole reasozz for deni.at was irzappliaabla, thus coxzzpelling approval. Azad, while Breen was decided oza § X 5,99 grounds, there is no ratiozaal ox xeasonable dist~c~tAOZa between a colut-ordexed approval uzadex § 15.99 or aaae on arbitrariness gxouncls. Bithex way, the requested zoning request is appxoved by the count as a matter of law to the extent of the application or to the (tallest extenti of the naunicipality'e approval autlzoxaty_ Tho C1ty was otherwise xequixed by bindiuag Mituiesota Supxezne Court and Minnesota Cous•G of Appeals precedent to approve of the •E12L1s requested CI.TI~ aA.d Licezase a~aaeaadznents foz just tl~.e Approximately 13 acres as a reasonable condition to the request. T;W947.114<1bU9pAppPob~BD jleyg41nrs1 f9J~doc ~_ y S 03/09/2010 16:18 + Y~Kl(a(~ti fYIUK[UAN f+'11JL5 1 t-'Hlit 4L/bb See, e,g., Mintaetvrtlut Congregation ofJehovcth's Witnesses v. Svee, 2263d,'W.2d 306, 309 (Minn. 1975) (zeversing CUk' deaual because "zxtost importantly, t~.ere was no attexnpt made, either by the opponents oa- tlza council, to suggest or to impose conditions which would i~zsure proper landscaping, setbacl~s, or iaigiess tuzd egress"); Veit: US.A, I~zc. v. Sherbuvrte County, No, A08-0581, 2009 WL 605722, at *4 (Minu..f'1pp.) (fix. 4'1) ("because the county could have approved the CUP tivith cozzdltions, we fiazd the dextral unreasozzable, arbitrazy, azzd capricious"), review denied (iV,linn. May 27, 2009); 7'risko, SGG N.W.2d at 357 ("thE qty's failure to propose additional measures to control dust and vibration ox to iclantify its specihc concerns ovex these poteaataal pxobleaxts suppoxts a coxaclusioxx 1:hat the city Acted arbitrarily"); Scott Coutaty.~utnber Co, v. City of Shalcol~ee, .~17 ~T, W,2d. 721, 727 (lv~izztz. A.pp.) (revel-t3uag the city council's decision for legally ixxsuf~eient reasons where city plartxzez• recornxnended grantir~ the permit with 20 conditions dealiaag with dust, noise, and traffic, alld appe~].aazt agreed to take all action xaecessary to ~aaeet the conditions), review denied (Minn. Max. 23, 1.988). The City did z~ot xespond. to this uzadisputed case law, r~or did it mftlce az~y effoxt to distinguish it. The City has tizus waived any oppoaitaoaz and is now bound by it, ,See ,Peterson, 711 AT,W.2d at 4$2. 'flaxz'd, tktea'e is no substaaxti~ve xzzexit to tlac City's pretexzse that it is for some unspeciided reason more diffcult to deszgu. the landfill expa~zsion to the southern~z~zoat bouxzdazy of the existing i37.~-acro landfill property, Contrar~r to'the Czn~'s blata~zt scaxe t~uctic, there would be zta "high vrall of wasl:e eazdiaxg abxuptly at the exiatiaag pxopexty litze" and there is no "disastex r~~aitang to happen." City .~,~ II S.T. Opp. Ba'. at 11. And, in nearly 40 yeaTp o;f higl~ly~xegtalated lasadfi.ll operations, the City's fexgnecl design concezYis have zzever posed an issue, ,let alozae a threat of a "disaster waiting to happexz"1 'T'b.~is is because the basic desig~z of the landfill does xzot chatzge based on the end post. 1ZatlZer the toe of the lctrtdlill would simply move souTlawnurd, with the hesgltt azad slope o;f the landfill staying the sazzae. To further assuage any fear, Sherbur~:e Couxaty attd M~'C1~ aaso lzavv to appxove of the desigaz of the landfill expansiotz, A:1074?VAD61Ci0'ApyPabiPP,B ~iclgltfip01 GZ).doe 3rd X1;3/by/'Lf~lU lb:lii 'h 13K11aU5 I'+IUKUHIV fnl''L5 1 I"HUt ~I.~/bCJ Fourth and finally, Cary has z~.o Ciey Code regturexaent that tl~e State-mandated buffer be located within the SV~. See below. a. "Solid waste fac111deA," including "sani.tary Iar~dfxlls," acre mot defaned by the City Code to~iamclude too buffer area Section 30-183A~(a) provides that "js]olid waste facilities shall not be pcrmit~cd. nor conditional user in. any atlzer zoning disTr:ict" othlrx than the SWr overlay district, Esc. 15 (emphasis added,). Section 58,171. reiterates that "[n]o 4 id ~,va to ~ oali. shall be locafied or operated in the city except in those Brea o~Fthe city wbexe such uses are allowed as R pezxx><itted ox cozrditional use undez chapter 30, article VI" - i,¢„ the SWF overlay dAStxACt. irx. X46 (emphasis added), But o.eztb.ex the State~mandated 200-Coot bul"fer nor E-.r~v otlzex buffer is withizz the City Code's definition of "solid waste facility" ox "san%taay landfill." Fox example, § 58-174's "[p]erformance stazadards" narrowly linUt "s;_ulitary land£lls" to where waste is "disposed" e~clusavc of any t~rzffer area, Fox t~a.e cIosa.~~.g of a "sazutaiy landfila," § 58- 174(x)(10) requires the following descrxgation: 1-~ detailed dcscriptiozz of'tlze lacation of the completed sanitary landf 11 site shall be a-eco~•ded with tJze county xegi9ter of deeds within, ozzc znozzth after approval of the closure of the landfill. This description shall iz~lude [(1)] xb.® gaz~exal type atxd location of ~eUOSited solid waste [(2)] the locataou ofphased ox staged is os>~.1 of Wastes, [(3)] the type axed number of lids, original acid fxzCaa terrain desc~taptioras, site laydro$eologic cozzdztaons, and [(4)a other pez-tinent characteristics of the completed sanitary IazrdfiIl site, fix. 146 (eirplzasas alnd braclceted information added), City Code also strictly defizxes "solid waste ;F'acalaty," inoluding "sanitFUy laaact~lls," as being laxnited 'Co the "disposal" area, e~clusivo of au~y buffer area, Cary Code § 58-91 de~tzzes " js]olid waste facility'' as follows: T:~D742\1406vCi0•AppP~n~Fx~ llisooR~in„I ca~.aoo 3-zo 03/09/2©1© 16:18 + BRIGGS MORGAN NiPLS 1 PACit 44/bd Solid wash facility meatas s11 pr°i ,real or perso~aal, anclud~g zzegative rind positivo easexxzezz'ts and water anal air rights, [(1)] w 'cl~ is oar may be zzeecled or use fir t~;e ~rocossaln~ oa~ cdisposal of tivaste axzd for [(2)] ~~cla processing or disposal of waste_alicense is >"et~uix•ed undex• the provisions gf dais article. Solid waste £acii.ity includes, but is not ]i2xxited to, ti-arnsfear stations; saa-ita landfills; solid waste processing facilities, including resource recovery and waste reductYOn facilities; and waste buzxung facilities, including inc~erators, boilers a>ad other facilities for buizai~zg pz~ocessecl or unprgcessed solid waste. ,Id. (italics itz origtxaal; underlbaixtg and bracketed informatiozx added). Zikewise, Ca.ty Code § 5$-91 specierally defuzes "[s]azzitary landfill" as follows: Sanitary landfill zneruas a solid waste facility emplo i~r g ~ m~;tlwd of dis,~,osazag_of solid waste on p?. into laud bX,various forms of [(1);~ eztcavatirn~, [(2)] placement, [(3)] burial, [(d)] coxnpact~o~,z, ox [(5)] covering, witlzont craatirtg Iauisattces or Izazaxds to lntblic health or safety, by utilizing tkae pr.i>llciples of ex-gizzeering to con~t-e tkte Solid waste to tie SrntaIlest practical area, to reduce it to the sr-aallest practical volutaae, azzd to cover it with a layer of earth at tl~e cozzclusi.on of each day's operation, ox at such more frequent ixntexvals as u,ay be required by the state polkuklon control agepc}~ ox the city. Id. (italics in original; uxaderlining and bracketed i~forzraation added). Stated otherwise, City Code defines "sax~xtary lanndfill" a.s limited to tb:e "d~sposTal1 of solid waste on or innto loud by various forms." (13rnphasis sddcd). A.nd none o~'the five "various forms" of "daspos[a1)" --- i. e„ "[(l,)] excavation, [(2)] placement, [(3)] burial, [(a)] compaction, or [(5)] conezl~actiozz" - uicludes either a 200-foot buffer requirement Ox 4 requirerxtezzt thaf t1~:e buffer be within the 5WF overlay district_ MPC.<4 similarly defines ".[d]isposal facility" (Minn. Stat. § ~115A.p3, subd. 10; Mint. R. 7035.0300, subp. 34), "(f)acility" (Minn;. R. 7035.0300, subp. 37), and "[m]ixed m2uucipal solid waste land disposal facility" (Minn. R. 7035.0300, subp. 64} as lioctaited to where waste is disposed of, exclusive of tkle b~~.£Fer or sotback area. U. City Code b:as no other Appaacgble "setbnclt" requiareuteztt T:W?4R1140b,~pAypPab\PPBRepon ni~s!(2),due 3^r~l 03/09/2010 16:18 + BRIGGS 1+10RGAN MPLS 1 PAGE 45/60 1. Pet § 3U~1834(c}, lire reciuixed "setbsaclc" "~ituiu tits SWJC ove~rlAy dist~ricf is the saJ~e As the "setback" witlal~t Clx. 58, frt. III, Div. 4 for tine ">9anitaay landffili" ak isstae For puzposes of tlxe SWF overlay disttzet, § 30-1834(c) provides tltat "setbac s .. . applicable an the laxdexlying zota7itlg district shall bc; applicablC, subj ect to any additional [(1)] rs uiz~mezits. [(2)] re ti r~s, a~ad [(3)] sCandarda wiaich must be rttet pursuant to this Code fox the establislunetat and operation. of so]id waste facilities.°' fix. 15 (ezaapltasis at~.d bracketed informatiozt added}. A,ccaxdingly, flee "setback" ~requiremetats, if any, within tlae SWF overlay district fora "sanitary latadfxll" are as recluixed by tlae City Code Ch. SS, .f~'t, ITT, Div. q•, 2. City Code Ch. 58, A,xt. IIi, Div. 4 contains mo "sotbsiclz" ~•ccTuiremeatt fair a "sanitary ln~adfflli" Chapter 58, ,Art. III, D7iv. 4 provides all of the City Code's "[p]anl~.ibited area" (ia-, § S 8- 17I), "[l]icense" (id. § 58-172), "[xxtaivimutn recluirexzaents" (i~ § 58-173), rind "[p]erformaaace staxrdards" (id § 58-174) for "sanitary laaadi`alls." Ex. 14G. None of these fo21z seetioxas evEra arguably includes wither a "setbaclt" regiairenrxel~t or a requirem~el~t fleet such "setback" be located. withiza the SWF overlay district. c. ~'he sevexAi applicable xuies of con§ti•uctlo~a aoxafiran 1!/TII,'s poaitiou Irach of the applicable rules of cozzsttuctiozx reinforces t1tat the City Code does not require 'Che State-mandated 200-1'ooi buffer to be witlux~ the SWF overlay district. I. IIULI•; OTi CD1o19TJ:2TTC'1"f~N Iy0.1: Plain iatxgua~e controls W1~em izxterpreting an ordinance, this Court must iixst detertrazaae whether the ordinance language, on i.ts face, is clear or aiaaUiguous. See Gomon v, Nor•tycdand F'am.ily,Playsr'ciarrs, »Ltd., 645 N.W.2d 413, 41.6 (IvTinn. 2002). Tf tU,e ordinance is clEar on its t'ace, then this T:N744\t406\QltyAp}iFabUBORgwn tinpt(R~Ooe 3-22 03/09/2010 16:18 + BRIGGS tY10RGAN P•1PLS 1 PAGE A6/60 C;or~trt ~aa>rst give effect to that plain anaaning, and thexe is no room for fltrl'1]er coaxstxuction. See.,~tnerican ~'ovver~, L.P. v. City of Grant, 636 N.W.2d 309, 312 (Mizar~, 2001); Bcselce v, County of Goodhue, No. C6~00-489, 2000 WL 134i45B, at'"2 (Minn. App. Sept. 19, 2000) (Fx. 148) (citing Glen Paul Court.Neigltborltood Assn v. ,f'aster', 437 N.'W_2d 52, 56 (Mazan. 1989)); ,Lr7fclrson v Ficllerton, 619 N.W.2d 204, 207 (iVtzxzzt. ,A.pp. 2000); Matllins a Churcltill, 616IV.W.2d 764, 767 (Ivlizu~.. App_ 2000)..Ixt other woxds, .~ city bound by the plaint language o£ its oxdi.aance. See Save Zanterra I3ay v, Gass County Planning Corra~n'ra, 683 IV.W.2d 862, 865 (Minn. App. 2004) ("Fitrzdazxzezxtal to outr constt~.etiort of p11 ordinance as tine rule that at'altould b® construed ixx accordance with the plaart a7ad oxdinaiy meag o£ x~ts terms°') (cluotxztg,A~ohler v. Ctty of St. Louis ,Park, 643 N.W.2d 623, •634 (Miraxt. App.), review denied (1Vlirtn. Ju1_ l6, 2002)). An osdinezLCe is aanbiguous ozzty if t1~e language is subject to mare than,; one reasonable intexpxetation. See ~tnericarz .F'am. Ins. Group v. SGliroedl, 61 G N.W.2d 273 (Minn, 2000). ~'lais Court may 1oo1c beyond the ordinance language only to resolve azx azxtbiguity, not to create one, ,See Erickson, 619•N.W.2d. at 207, T,kte City failed to id.etztify a.tay such, auabiguity ~ the City Code. Awc1, tivitk~;out su.ckz ant a~zabz,guity, the City i5 bound by the plain language of the City Cgde oza tkris point. 2. MULE ~~` C(),1~1,~T~1Ct~;'~'xglY N0.2. Ambiguities uxe tp be con§irued ~ £avo1C oi'the isendowner .Aar ordiuaaice is to be cozastrued so that it does trot vioiEtte the law or public policy. See Rasmussen v, Glass, 498 N.W.2d 508, 514 (Mizzza. A.pp_ 1993), And, in the lurid use context, pul7lic policy favoxs tine conetruction•tir~hich pernuts the land owr~ex's pxoposed use. SeeDatley v. City of LongLalc~,No, C3-998-1663, 1999 WL ;118633, at fi4 (Mitpn,_ A,pp. Mar. 9, 1999) (Ex. 149) (findizag tkzat tine public policy rule of coztstruetion. favozs iz~telpretation in favor of land owner), x:w~as~wac~aenppFco~rffisu~n nnal ~x),ao° 3-23 03/09/2010 16:13 + BRIGGS MORGAN IYIPLS 1 PAGE 47/60 Gonstrued an favor of l?RL,, there is no City Code recluaz~eztient that tl~e State-mandated 200~foot buffer be located within the SVV1? ov~a-lay district. 3. JLr OT' ~O1VS~.I2UCT~®leT .IiTO 3:.F~aonlb9gt2itaes axe Construed per the uzzderly6mg policy Zoxiizxg ordinances must be coiasi.dered it7. light of their uttdorlyizig policy goals. See I'i~asalc's,IV~ursct~ Sales, Iixc. v. City ofRoseville, 295 N.W,2d 604, 60& (Nliiui. 1980); see also _llledical ,Sews„ Inc, v, CtCy of Savage, 487 i`1'.~VV.2d 263, 266 (Miruta. ,App. 1992). Ally ambiguity axi the City Code regarding whether the State-mandated 200-foot buffex lass to be located within the SWI' overlay dxstxact is, therefore, to be construed pes the pus~oae fox the provisiozi at issue, The State-mandated 200-foot buffer has elsewhere been applied precisely es advocated liere by the LI2.L. ~~. 145. The City ca~aziot, therefoxe, suggest in good Faith that its puzposc will be vtxclexi%ined by the ERT.'s construction. Indeed, the City staff previously agreed (albeit implicitly) with t?ae I/P~t,'s positio;~_ Zzi response to the E1:t~ and'l'illex's October 2002 application to expand wliat ttie City staff dubbed the paining "cox~i~oz~.GZat" of the laud~ill 150 feet into the State-zrtaanclated 200-foot bu1'~'er, the City staff explained. that tlae puxpose of the State-;rtzaudated 200-foot buffer is to protect the adjacent lancl.owners"'land values." ?/~t. 98 at 2-3 ("[t)he euxxetxttwo hundred (200) foot buffer [into wXdeb it ~va.s then seekizag to expand] was pLit 1t1 place to provide adequate screening axid distance between 1azadfill activities aztd Ili@ [Tiller] property to tlae south to help protect [Tiller's] land value acid liaxtit ix(ipacts on future uses o~'tb.at property"). As with the neigliborxtig landowneeto the Burnsville Sanitary Landfill (Bx. 145), adjacent laxidowners, ]ilce Tiller here, can pxot®ct their "land values" by an agreemei2t with tli~i land$11 regaxclizig the State-mandated 200-foot buffer. hi fact, cif t}ae City sta#'f had construed ire City Code as requirizzg the State-axzaxidated 200 foot buffer to be located within tlxe SWF ovei~imy district regardless of riziy agA-eeiuent between; the ERI., aril Ti]lox, tk,;exi, it would 1iave said so in response to the ERL's 2002 application. Zt did T:b7A2114Dd~LYryApprcb~FSH Rapatt_41nu1(2).doc ~ -^ 03/09/2010 16:18 1- BRIGGS MORGAN h1PLS 1 PAGE 48/60 zlot. Id. Zxistead, flee City staff silxiply represealted that tl>,e EItL azxd ~`zlltr had to xeapply with the full expansion. request. Id. 4. ~UL}C ®A'' C®1~1ST~[JCTTON N(,~ 4: Ambiguities are to be co>txetxued consistent vvltle its coutr•act obaagations .Arty arlabiguaty xs to be interpz'sted, where possible, so ae not to conflict wx'lk~ the zoning body's cox~txectual or other requirtments. See Strauss v, Ginsberg, 218 Minn, 57, 64, l5 ~t.W.2d 130, 134 (194q•) ("The zozlxlt~ ordinatace cannot affect the obligatXoxz cxeated by such rt:strictiplis rln covenant contained srt deed] acid ctumot izx~paix tb.e contractual; obligationt3 so created"). Even tb,ougb there is no other room fox lazadaYll ex~ausiozl ozi the e~„istizig 137.4-acxe laztdfill proporty, ~kle City prevjously>•epxesented to Axis Couxe that the peeress' 2003 Frost Comntuzlity ,A.,gxeeinent's "lzingttttge cleax~y refers to'expansions ... ou_ttxe:Laal.dfill ro ex ,"' 11o1C to "eapatlsions" ou the 108, 8-acre SJJA propexty. l/A•/10 City EIZL I Proposed Mexcio a11d Order at 2G-27; 12/17/09 City EI>'L 1' oral a1•g1~i17.e~t_ The City's judlcza~, adrr>rissiotas would be nousensica>,, al'zxot tfisirt$enu.ous, if (as it now claialas) the State-rtaazxdatcd 200-foot buffer had to be wi.thizl the SW]~ overlay disl:ricz, tllexeby barring any "expansions .. , oxa ~e Landfill property." i '),kte Czty's "cooperafon" obligation under the 2003 lost Community t~.gt-eexxlellxt would also be rend.exed moot by t Statements opDtalned !tt 3ls3rly's pleadings are blpding On that party, crud they ere eoA191deTefl Judicial admissions, J~r+udsen v. UnJtsd SYnte,s, 2541z,3d 747, 7S2 (8th Cir• 2001}; I,l :'e Crawford, 274 s:it. 798, 604-05 (13anltr. $tla Cir. 2002); Bad/efn)ttelleins,am?ee Co. v, ~rgonair! InS. Co„ 75717.2d 523, 52$ (2d Cu. 1965)i .PosJscript• Enters. v, City of ~IYd~P,POn, 905 P.2d 2.23, 227-2$ (8th, Cir. 1990) (treating statemecatS by parties n~ada in briefs as judicial admission). "Judicial ~;fiiciency demands that a party not bs allowed to controvert what iE hea already tanequivocally told a court by the most formal and cottsideced means possible." 7~S,utL,e21r, 254 k'.9d at 752 (cluofing S'oo Lima R.IZ. Co. v St, .Gortis ,Srv. Ry. Co., 125 F.3d a81, A$3 (7th Cir, 1997)). And the doCttin®of judicial estoppel prevents a parry :Brown ral:lz~g inconsist©nt pos(tfop3 in the Aaitae oxaelated litigation. Shtta v. Piet, 591 N.W,2d 451, 462 (Minn. 1999)s.t~ossatnl v. W. Mo. Med. Ctr., 1401?_3d 1140, l 142 {Si1a CiC. 1998); Daces v 2onglrland.12..1Z Co., 997 F,2d 1025, 1037 (2d Cir. 1993). Judicial esaoppei is invoked "to ptvteot the integrity of the judicial plrocc9s atom a patty who plays fast artd iooSe with Ehc courts." Profs, 591 N.W.2,d et 4 ,C2,• ,F.forsafni, 1401?.3d at ] I43. 3'}.te purposes o£ tlzE doctrine of judicdal esto}~rel ar® tb prasozve judicial integrity uy avoiding the risk of incot-slstent results in two p>t'pceedimgs. ,T~ossaln~ 1401~.3d at 1142; Svnon v. Safelite Glass Corp, 128 F.3fl 6$, 71(2d. Cir. 1997). "[,A,]bsFatt any good explrurativn, s party should not be allowed to gain an advantage by ]itigatlori ott ono tlncory, etrd then sewn an inoonaislertt advantage by puz,uing art incompatible tl~tooty." 1$ C. Wnigltc, A.. Miller ds E. Cooper, $ederat Exactice St Procedure §4477 at 7$2• Shia approach foouses "directly on, lyre tislc of inconsistent results and rho 1,e~rcoivcd urssecmUness oYa litigant's cotiduet." ,Id, at 761. •r:~n~aauaoatc~rynppt~cb~sa RFpor~,finer t~J.ao` 3-.25 03/09/2010 16:18 -F L'RIGGS MORGAN MPLS 1 PAGE 49160 the C1ty's curretlt intexpxetatxon of ita City Code. Such constructioxt as to be avoided, See Chergoslcy v. Crosstown 73e11, Titc., 4b3 N.VV.2d 522, 526 (Miz>z><, 1990) (courts "wit11 attezz~pt to avoid ate i7nterpretatioxt o£ the oon,U'act that would gender a provision rrieaniA;gless") 2 S. MULE ®F C(~l~TSTItIJCTIO~I N®. S:.~lmbiguit~ies mxe to be coustis•ued so as to A•erid omisalo~ps s9 inttcutiorxol W1aere a zoning body demonsttates its ability to include cettai7~ pxovi.sions, its faliluxe to include other 1Rlce provisioaia elsewhere is to be deer>;t.ed intentional- See yY'eestratad v. „F'armin~to~a .Z'w~.,1V'o, C3-94354, 1994 WL 396364, at ~2 (1vlixaxu- .A~.pp..Aug. 2, 199x) (:Ex. I50) (ozxlissior~ of cez~taila criteria iroaxz township ordixaartce prrsttmed iz~te><1t%onal) (oitizl~ ,Northland Couni~y Club v. Cornnt'r of Taxation, 3081VIinn. 265, 270-71, 241 N.W.2d 806, 609 (1976)). I3orE, the City detnonstreted its ability not otaly to adopt "setbacl~s" vvitkiizli tlae SWF ovezltty dista~.ct (~ 30-1,$3~4(c)) b~tzt also to iz~:corporate by refeze><ace particular State a-ules (§ 58172(5)-{9)), But the City d.id not odopt the State-mandated 200-foot bui';fer as a rerluired "setback," let alorZe a setbacl~ witlziz>, tkte SWF overlay tiistt•iet, T11is omission is t0 be COA18t111~d as illtentJOxltll, ~ City further typified ita dis{ta$en+wusness on ~cbruaxy 3 by insisting that ~~i, subfaiit u !.'v]i-blown Cllr apd L-ice~nse amondmcnt application for the i~-d-acre ~pansioq. i3x. iSl. Dospite City's prior represcintations to this Gourt and the lack of any vtlt,cr good-fa{Ih busts f'or its conduct, EZtL advteed City on ~eUruairy 5 teat it woitid do so. Fem. IS2. T:107A311dOG1Cj~ynpppcbUF~t3licport anW (2).doo ,3-26 03/09/2010 16:12 + BRIGGS IVIORGAN IviPLS 1 PAGE 50/60 I'ar~nirzgton ~'wp., No, CS-94-354,1994 WL 396364, at *2 (Ndixva. ,App, Aug. 2, 1994) (Ex. X50) (omission o~ certaua cxiteria frozxz township oxdinanee presumed. intentioxzal) (ci4ingNortlzdarad Coun~zy Club v, Coznnz'r ofTaxatlon., ,308 Minn. 265, 270,71, 241 N,W.2d BOG, 809 (x976)). Hexe, tlxe City deznousirated ats ability not ozaly to adopt "setbacks" within. the SWF overlay district (§ 30-1834(c)) but also to incorporate by refex0nae particular Stata rules (§ 58-172(5)-(9)). 13ut the Cary did not adopt tt~e State,zn,andated 200~1'oot bufl'ez• as a required "setbacl~," ]et alone a setback within the SWF overlay district. This omission is to be cozxsYttted as izztentio>aal. 7;A07.11~14061Ci(yApyNeA~K$e ~c(IOR,fin81 L3).doa 327 0°/09/2010 16:15 CI a 730b5 Orono Parkway Clk River, MN 55330 March 2, 201~A Michael Ayers Wasre Mar~,agenaent c/o Deb ~Iaitexs 224b0 ~Tighu~ay 1G9 ~X/ Elk River, ~~ SS330 BRIGGS tdORGAN MPLS 1 C~JlI~'l E77z.ti,P.i'L.7'1t~.71T xiE: Conditional Use Peralit AppliGation~ ~ Parcel X75-Z03~240M1 T~ear..Mr. Airs and Ms. Walters: Tl~ar>it you for s~bm~itutag an application #or a CosadiCaoual Use pexmit to end ~che Ells River Lanc1fi11 on parcel $75.103-2400. "Your applicatiAn was xeeeived by t~ City oz~ February22, 2.01,0. C".ttiy staFf has carnpleted a grelitninary' review of yatiu• application and have dexoxznuiz~,ed tkzae is cox~zplete. ~We bare therefore, scheduled, this application for a public hearing at the ,Apzi1 ~ 3, 2010 PJana~ing Commission zueecizag. Unless an, exsension zo die GO-day agec~cyacuo~a deadline is necessary, Airy Cvvncil aceion on your applicasian should 1~ke place ors April 19, 2010. Rebecca Haug will be coordinating the review of yotu applicatioza and is avai]able to answer auy questions yrns. may Dave about zhe proses. She can bo reached at 7fi3/635~1068 or by ema~ at rhea ~~,i.e -av~r.~aan.u.~. Sinc~a.•e[y, DeboralZ ~Tuebner CommunityDeve]opm~ .A.dxnuaascra~cve Assistant cc: Lori Johnson, Cicy.A,d!Iniiusrrator Rebecca fig, Environmeotal Adr~niz~istratoz Pbtome: 763.6~g.loo0 fax:763.635.1090 PAGE 51/60 nnuvcLelk-rlvecmn,us EXFIi~~I[T ~5Q 03/09/2010 16:13 + ERTGGS 1~10RGAN Iy1PLS 1 PAGE 52/60 13065 Orono Parkway EikRiver,MN 5533 Match z, 201.0 Ms. Deb Walters Waste Manngaro,~nt Taac. 224G0 Highw~.~y+ 169 NW Elk Rivcs, MN SS330 Re:. Ordinance Amendmeant Regatcling Buffer,Axea Recluixcment 17eax: Deb; Pox otrex two de'ca.des botY- the active are$ of t1ae lar~,dfill and the buffet area ~quized ~ state law and in the I.~ndfxlPs Candirional Use l'e~.mit leave beast located w;ichin the bounclvzizes of th.e City's Solid Waste 7a'acilities Overlay Zox-in& District. It has elways been the City's vie~z drat bU~ ~e acdv'e area a'nd ~e seciuircd bufEex area si;e pans of die Solid Waste 1*acility within. tine meaning of flee City Code, anal that au parts of a Solid Waste pacilit-y must be located within the Solid WastE Facilities Otrerlay Zoning District. Notwitl~6tanding the laayuage of the City Codc rcqui~rig that all property rtecded ax useful. for she processing or disposal of Solid Waste be .located ^witbist the Solid W~te Facilities Overlay Zonir-g District, encl. its 22 peso: history of complying vrith this secluirement, Elk Rivex T,andfitl has talon ~e ~posidon, iaa a J~uazj~ 28, 20101ettcr m c~i~ staff and in subsequent pleaduags„SlZexb-uxn,e Grnrrtp Dlstxict Co~.v:t, that the City's Solid Waste Facilities Ozdinance r~~x'~Q,4?s $'~'~`:~quia:ed bu£ker areas or huf,.~Eet zonP~ are not required ~.A,~a~or. ,,...,~..w~a. ,raw t~ be l~crted ~oxtb.ixx the 5oJxd Waste Facitttaes Uverlas~ ~ouu~g Y7isf~ict, ~e~ity C,ounci]. cor~aiaeted this position sn ilia coui~e of approving a rc~nevreq. atici' ari'i~extded cotAditioilal use permit sad license for the x,flndit~l on Febnaasy 16, 2010, and found that ,O~fo~t t~,~~s zORa re mead b State law ils an itltegY;al pail of'the Solid 'a/aete Facility wbi,ch is a >iandfa7l. au tl~ata tlaere••axe, zecluized buf'fea; areas and baffes tomes ate i:equired by the current City Code to be located within the Solid Wa,see FaciEirie~ Oaeilay Zoning l~isex~,Gt. In 1ig11t of the ~and£tll.'s .uew position ~segatdia~gbuffer areas, City staff feels it would be appropriate for tl~e 1'lanivng Corntnission and Cielr Council to addsees the intent of the Solid Waste Facilities Ordinactce by considering tunenchlients Qo Chaptexs 30 aztd 58 of the }?lls :lta~•er City Code. Tlacrefoxe, City staff b,as pzcprasad nc~ enclosed ordinance a~.ne~ndz~a~n.ts ko~: >:ax: 763.635.1Og0 ~v~vw cl,elk-river mn.us >~~T~IB)C'1(' 1.55 03/09/2010 16:18 + Ucb Wulscr' A(nwh ?, 2Ufp ERTGGS 1~10RGAN (Y1PLS 1 PAGE 53/60 1'e~: 2 coxaside~atiou by the ~'lanning Coaicnissian at their meeting on M'2rc}~ 9, 2010 and by the Cite Cauza.cil at its meeting o:n Match 7 G, 2010. City staff is nok cleai, l~ozA. tk~e xeceue applications For CUP ame~ndmeats submitted by the Lan.dSll and Tiilez- Corporation, mhethex tlae Z,andfill.intends Lo ox has obtained either additional propestq or easement ugk~ts £zonn Tides, HoaTeveT, we Qre providiragyou with ad~as~ced notice of the proposed azdior+nee amendtaaeAts so that you can consider tl~,e possib3]it~ of adoption of these amendmecits ~ datexmtni:tg whether aad wlxen to acciuu:e ac~p addi~anal propecry intezests froux ~S.liex. Please contact me if you har-e any questions, V~ ra:uly yours, Rebecca z-3QUg Eaviropsncucai Ads_vinis~:ator cr.~3~~s2 ~•i ©3/09/Z~J1d "1b:1b 1- tSKllaUS fvlUKIaAIV Mf-'L5 1 t'Hl~t ov/bra ®rdltlance No. 10® CITY OF ELrC ~81VER ,A.N ®RDIP1/4NCE QF'N'ME CITY 01= E!»K RIVER Ah91=N131NG CHAPTERS 30 ANIa 56 ®F TWE ELK ri1VER, MINiVIESOTA, CITY COaE TO 1~>wAFFIRIM TIiAT riE(~UrRED BUFFER AREAS AND BUFFER BONES FOR SOIm119 ~1/~.ST~ FACILI'1'IE; 1`'IUST ~1: 60CATEr311MI°PI-IIN TI-It SbLI® ~d1(ASTE ~~Cru-~1~~ OV1rRl~v z®1~91NCi nrS"1'RrCr F~IDII~IGS 01~ FACT The City Cotu~et7. o£ the CiC~* o.E Bik River makes the £ollowiag Findings o£ Fact; 1. 27~.e Cite of ~ vex Solid Waste .Facilities Ordinance (SW~+ Ordiaap~Ce) ~cras i.~.itiallp adopCed in 1986. Z. Since adoption of fhe SV4F Ordinance irz 1986, Solid WA$te Facilities, including sanitary Iaxzdfills, have Been required to be located ~v~it}~in Che City's Solid WR,at~ Facilities Overlay Zo~i.+ag laasixac~ 3. The Ellc River LRndfili (La.ndGll) vas rezoned co the Solid Waste )~aeilitiee Overlay Zoning DisCrict in 198G, anal a conditional use pextui,t (Cr11~) for the Laudffll'was atz%tially appxoved in 1.988. timeis. ~•. 5auce 1988, the C'Ur' for the Trandfll. has b~cn Yenewed and zded 10 5, Ziegizuzix~g watb, s~pproval of the original CrJ~ for rve Landfill, through all of the renewals ao,d azxaendngeurs. iC lu+s bey vadc~stood that the 200~foot btaffes zone pxovided £c-x lu the C17F has beec~ xequised to be located an Lanclbll pxopetty ~vatbin the Solid \X/asYe 1~$c17ities Ovetilay Zoning District G. T'hc 200-foot buffer zone an. the east, west, and sotath sides of the T.andfill kxas alwaps been located on Landfill property ~vitliin the Solid Waste ~'acilitiee Clverlay • Zoning District. 7. SumCe zts adoption ~ 1986, the SWF Oxduaauce, z~ow incorpoxated in Ghaprexs 30 and S8 of r]ze ~Ilc lii~ver City Code, hes included a de£iuation of Solari Waste Facilities which defiaea Solid Waste Facilities as "all pxopetty, real oc pexsonal , .. zaeedsd ox useful foz the ptocessing or disposal of solid waste ...:' 8. 7:'i>;s definrtiora of Solid Waste Facilities has been. aiat:et xeted to include all coin on nt necessary for rbo operation. of a Solid Waste Fac~ity, me udisig rccluired buffo at:ea9 and buffer tomes, 00/09/2010 16:18 + liKl~a(a5 f+9UKCaAN fvll-'L5 1 f'Alat ~o/ b17 9. Tb~ezaf'oze, the City Couxacil dz~.ds that the definition o.f Solid Waste Facility ice, Claapt~s 30 and 58 of the >3Ilt River Ciel+ Code does, atad al,~vays has, incJ:uded rogvired buECex arras and buffer zoxaes an.tl that, there.£ore, required buffer areas and buffer zones are requited by the current Ciry Cade to be located w.tthip the Solid Waste Faci}itties Overlay Z'onisag lJisctict. X0. Notwithstanding the langlaage of the City Code xequiring tk~at all property needed or useful. for the processing or disposal of solid waste he located. tvithisl the Solid Waste Facilities Overlay Zcmixag 7~astrict, and its 22 year history of complying with dais xequixemcnt; Ells River La:radfill is now taking the position, that ~s Caty'a SWF Ordinance is ambiguous and that ~gtzited buffet areas ox buffer zones ar6 not rccluixed to be located wider tlas Solid Waste Facilities Ovealay Zonixag Distdet. ll.. Tn lighe of this new posldon by the ~,andfill, the Citg+ Council £tnds it appxopziatc to rea£fitnri. the incept of the SWF Ordinance that all cotpponexifis of a Solid Waste Facility be located within the Solid Waste Facilities Overlay Zoning Aistxxct, includin~a buEk~ areas ¢xzd bu~f;Cez zones, by adopting appiop~ure umcndtu.euts to Claapteis 30 and 58 of tlae Elk River Cary Code- ORTa~NANCE Tl-i>/Z~l~}?C)R~, tk-e City Council of the City of Ells River does hereby ordain as Qolloms: SecriOU 1. That Sections 30-1 axed 58.91 o;F the ~llc River City Code shall be a~,euded bq revising the &xst sentence in the dc{nation of "Solid Waste Facility" to teed as foIIows: Solid Waste Facilitq x~aeans u[1 paopecty, real ~or pen3onal, ir-cluding negsttiv'e ¢nd positYVe easements, water and air .fights, all stotan rvaeex tr.~aagertiene facilities, ;gaud aIi bu£ferti~~a~s of bufi;e;r zones, which are or 9nay be xeclui~red, needed of asEkul' ~i'ax -the pzacess~g ox ~ isposal of waste and fox which px4cessazag oz disposal of ~vasr~ a ]iCP.nse is requited. wader doe provisxoz~s of tlals Code. Section 2, That Section 30-1831 0£ the Llk River City Code, exxtitled SWF "Solid Waste ~'aGiltCy Overlay 1Jzsaict," shall. be amended by addi~ag new subsection (e) thereto, which 811211 ICaa 9~ fO~I.OWS: {~) Soled Waste Facilities sestticted to SWF -- Solid Waste ?:acillties Overlay District. No Solid Waste Facility, ine~udipg any pofi>jtori of a Solid Waste Facility, any easexslents, water or sit rigizts, all stoma. ~ara.ter managemesie facilities and all buffet: areas or bu£fex zoztes zegtured, receded or usefixl fox daG ~s~a~eslixrieiit an"~/ ar bpez~ition of ~ili~-SpTi~[~ ~Jaste Facility, shall. be located of operated ,in t11e City except In those aa:cas o£ the Cixy locaCed'witlllil the SW,p' - 5o1id Waste Fac7ities Overlay Zoning District, Section a. TI1at Section SOO,IQQ (b) of the l~lls River City Code, entit]ed "Location of Solid Waste Facilities," shall be amended to read as follows: ?_ 0~/0S/2010 16:15 + BRIGGS MORGAN IYIPLS 1 PAGE 56/60 C0111PLE~.~.Z'.P.~IGAT.IO.ZV 13065 Orono Parkway ~Ik River, MN 5S370 zv~~h z, zolo Tfllez cozpoxatzon :tvSiotaael Ca1;on . T'C~ Z~ox 1450 . Maple C~.trvc, M~T55311.6~80 1~: Co,uc3.itaonal~ X1ae 1'e~ie 1~pplicatioza -- :['areal #} ~5-103-2400 JJear:lVli: Caro: Thank yvu for submit~zg as application for a Conditional LTse Pezxnit ro conduct rniiung acriviries on panel ~# 75-101-200. I'ovrapplicauozt was received bycha cit~ot.~ pebnkvg22, 2010. Carp staff has completed a preliminary zevievv of your appliearioz~ asad Ixas d~ce>txxiizzed that it >s w~npleze, T.~c cit~yk~s also xeceived an application from Waste Maxaagexxaeni, lnc, fox a Caxzditional. Use Pez~xuic to e~at-d the Ells River T.ar~dfll on ~a~.el # 75-103-Zh00~ Waste Ivlanageznent:'s applicatio>z fox a Contdicioxial. tJ'se 1'ezxa~it .is scheduled to be heazel by rbe ~'Iaruling Cozzunission on l~pxal 13, 2014 azrd byT#te (:ity Council on Apxil 1.9, 20:L0. "Xour application for a Cox~dirioz~al T7se k'e~xxaitwill be scheduled for laeaz-izxg be,Eoxe cbe Planning Commission on 1VSay 11, 2010 arad considered by the City Council on May 17, 2010. These dates could change, depending on. vt~l3eci f~a; acsion on Waste Masa.'~gea;~ant:'s application-is taken. T,lu~lore, ~;hc city is e~tendiz~g ,its 30-day revievr~ peAOd for ~mtu- applicatzozz foz a Conditional Use Permit by an additional 60 days (to ~'une 22, 2019), as authorized lay IV,fit7rssota Statues, Seclio~~ 25,99. The purpose of This ea~tensioz"< is to allow ~e 1~Izru~ang C,otumission axxd t"izy Cotuaezl suf~icierlt time to cazuider anal act oxi Waste Management's application 3~or a Conditional Use Pexx~~ to expand the Iandi"ilI on panel #75-7.03-2~3~00, befoze considexirag your application to conduct miaulg activity on ~c same panel. PLnne: 763.635..1000 Fas; 763.655.1090 ~wnvci.elk-rivecuin.us ~X13I13IT 156 03/09/2010 16:18 + BRIGGS Iv10RGAN h~IPLS 1 Rebecca Hash will be c0oxrlinatuig xbe .revxev~ of your application. and is available to ans~~r any uestions youmay lave about the process. Slo can be reached at 763/b35.1068 or by 8t j~,~'r7~1.gs C(~'~) c(ry'~~.'x1VC~S.II]11i1S_ S' Ferely, Deboacala,Huebz~er Comt~scuii-ty Taevelopxnent Adntin-isttaAve ,Assistant PAGE 57/60 cc: Lori Johnson, Cit~~Adn~i~vsrratnr Rebecca I-Iavg, EnvisonuJ,enz~l. Administ~atox 03!09/2010 16:1^0 -t- BRIGGS MORGAN MPLS 1 PAGE 58/60 From: )Im Eidem [mallto:7FidemC9~barr,com] 5entt Tuesday, March 09, 2010 X2;01 PM To: Waltors, Debra Subject: ERL monitoring points Deb, I started the process of converting the ERL maps over to GIS last year. The first attachment is a draft of where I IeR off. The second attachment Is a pdf of the Slte map published in the 2009 Annual Water Quality Report. The Site map shows tha locations of all of the points. Take a Ioolc and let me know if we need edits and I'll try to line them up )n short order. Below ane the monitoring points That the ERI. has outside the current facility boundary: . - Pzezox~leters ~ Surface wAtear monitoring Points in Rice Lakc:/~xbbits 13roo1e: PZ6, PZ12S, PZ12D, SW-10, and SW-13 - . Moni,toxl~;g wc11s west of the walking path: P-320L, P-32002, P-3020,1'-321 L, 1'-3130, 1'-3140, P-3~22L - 1V.fozutoringwwis east of the ~,~alkixt,g path and west of :~1u., propexty: P-29D, P-290 - 1Ylonitoxlzlg wells south oftb•e 1?~, (proposed SDA,): 315-OWA, P-315L, 31~-(7WA, P- 316L, 317-OWA,, P-317L, 318-OWA., P-318L, 319~pW.A. - Monitoriz~.g well east of the ERL:.36-OWA. If we Just want to show the points that fall outside the ERI, boundary, (think we should go with a Site Map show)ng the points listed above. Give me a cafl to chat, Jim Jim Eide~u, ~_d_ Ba-x 1?n~in.eering Company 4700 West 77th Street Miruteapglis, ~T 55435 932-832-2763 (office) 612-803,S1S6 (cell) ~~Iif13IZ' I57 03/09/2010 16:18 + BkiGGS MUk(aAN fv1F'L5 '1 I~Alat 5y/bb foot a~auprwn0 apurro: 4ooe a+:n,vaG>nress lmapory ;+oo a curl Id V,~ Twfi cNo. nroa A~RR m Surveyed Wella (8PA19BA-@ruse:nQ Flgura X o Wea Dt1~~'( a Plazo~+aro. N WEI,4 60CATIONS ~1 Gee cos Elk Rlver. Mlnnesoia 03/09/2010 16:18 -h BR]:G(a5 hiUKU(aN twlh'L5 1 F'AUt bYJI bb 0 600 1200 1 ~ 1 1 SCALE IN FEET ~i d4r C 1 e r. 9 i ~~ ~' ~~ S ~~ 6 ~ .~ Pj 120 P 381 4~ P217.~ ow 0 OP'16 as owner PJtIDTnao PACII.(7Y Pnaw~aTr soul~.wRv GE©~NO: sB7r~Pt (~} p~~OMETa"R! MONfTORltrO WEt1. 3Da1~4 ~' iNI=LL NEST r i aano ftlAS MONITORINQ PROBE aw.~o ® pUOII~ACB WATER MONifOR(Na Figuro 2 SITE MAP Elk Rlver Landfill Elk Flver, Mfnnesote ARTICLE ITT. SOLID ViTASTE FACILITIES* Page 5 of 23 (4) Fails to notify the city immediately of any violation of this article which exists at a facility licensed pursuant #o this article. (b) Any person within the city who violates this article, or who shall permit such a violation to exist on premises under his control, or who shall fail to take action to abate the existence of a violation within a specified time period when ordered or notified to do so by the city, shall be guilty of a misdemeanor, and upon conviction thereof shall be punished therefor as provided by law. A separate offense shall be deemed committed upon each day during or on which a violation occurs or continues. (Code 1982, § 604.34(1), (2)) Sec. 58-104. Dangerous waste. (a) Application to dispose of, store, process, or burn dangerous wastes at a licensed solid waste facility in the city shall be made to the city building and zoning administrator. The applicant shall submit such information with respect to the dangerous waste as is required by the building and zoning administrator, including any analysis of the dangerous waste done by the state pollution control agency, and any additional analysis or (nformation required by the building and zoning administrator. (b) The building and zoning administrator may: (1) Grant the requested permission to dispose of, store, process, or burn dangerous waste, subject to such conditions as the building and zoning administrator deems appropriate; (2) Deny the request, setting forth in writing the reasons therefor; or (3) Refer the request to the city council far review and decision on the request by the city council. (c) A decision of the building and zoning administrator denying permission to dispose of, store, process, or burn dangerous wastes, or imposing conditions on such disposal, storage, processing, or burning that are unacceptable to the applicant, may be appealed by the applicant to the city council, by setting forth in writing the reasons for the appeal. (Cade 1982, § 604.20) Sec. 58-105. Transportation of waste. The collection and transportation of solid waste, including transportation to and from solid waste facilities, shall be performed in accordance with article If of this chapter and Minnesota Rules 7035.0800. (Code 1982, § 604.22) Secs. 58-106--58-120. Reserved. ®IVISI®N 2. LICENSE Sec. 58-121. Required. No person shall make or allow his land or property under his control to be used for solid waste management or disposal purposes except at a solid waste facility for which a license has been granted by the city council. For the purposes of this article, solid waste management includes the following specifiic activities: (1) Collection and transportation of solid waste. http://libraryl .municode.com/default-test/DocView/13427/1/88/91 3/12/2010 ARTICLE III. SOLID WASTE F'ACILITIES* (2) Construction and operation of sanitary landfills, (3) Construction and operation of waste burning facilities. (4) Construction and operation of transfer stations, (5) Construction and operation of solid waste processing facilities. (Code 1982, § 604.06) Sec. 58-'i22. Submission of application; review by city staff. Page 6 of 23 Applications to establish or operate solid waste facilities shad include all of the information, plans, reports, and other materials required by this article and shall be filed with the city building and zoning administrator. City staff shall conduct such review and investigation of the application as it deems necessary and may retain professional consultants to assist in this process. If additional information or materials from fihe applicant are necessary to complete this review and investigation, the applicant shall be so advised and shall provide the additional information or materials before'review of the application will continue. (Code 1982, § 604.10(1)) Sec. 58-123. Fees. (a) Application fee. The operator of a proposed solid waste facility to be located within the city sha8 pay an application fee to the city in an amount equal to al- of the city's direct costs, including, without limitation, all legal, planning, consulting, and engineering expenses, including a reasonable charge for city staff time, incurred in: (1) Reviewing and investigating the application for a license and conditional use permit for the establishment and operation of the facility. (2) Preparing the necessary license and conditional use permit. The first $1,000,00 of the application fee shall be paid to the city at the time the application for a solid waste facility license is filed. The balance of the application fee, if any, shall be paid by the applicant within 30 days of the applicant's receipt of a statement from the city setting forth the costs incurred by the city and the amount due from the applicant. The application fee required by this section shall be in lieu of, and not in addition to, any fee otherwise required to be paid by the applicant to the city for the issuance of a conditional use permit. (b) Annual license fee. Any operator of a solid waste facility within the city shall pay an annual license fee to the city in an amount equal to all of the city's annual costs, including, without limitation, all legal, planning, consulting, engineering, and inspection expenses, including a reasonable charge for city staff time, incurred in: (1) Monitoring and inspecting the construction of the facility. (2) Monitoring and inspecting the facili#y following construction and during operation. (3) Administering and enforcing the license and conditional use permit. The annual license fee shall be payable within 30 days following receipt by the operator of a statement from the city setting forth the costs incurred by the city in the immediately preceding year and the amount due for the license fee. Building permit fees, if any, paid by the licensee to the city shall be deducted from the license fee for the year in which the building permit fees are paid. (c) Volume-based fee. !n addition to the application fee and annual license fees required by subsections (a} and (b) of this section, any operator of a facility for the disposal of mixed municipal solid waste located within the city shall pay avolume-based fee on a per-cubic-yard basis of waste, or its equivalent, disposed of at the facility in an amount as established by resolution of the city council. The revenue from this fee shall be credited to the city's general fund. Pursuant to Minn. Stats. § 115A.921, revenue produced by $0,25 per cubic yard of http://Iibiaryl .municode,com/default-test/DocView/13427/1/88/91 x/12/2010 ARTICLE III. SOLID WASTE FACILITIES* Page 7 of 23 the fee shall be used only for purposes of landfill abatement or far purposes of mitigating and compensating the local risks, costs and other adverse effects of such facilities. Revenue produced by the balance of the fee may be used for any general fund purpose. Solid waste faciiify operators shall pay this fee on a monthly basis. (Code 1982, § 604.08) Sec. 5~-124. Review by council and planning commission. Following completion of the staff review and investigation relating to the application for a solid waste facility license, staff shall prepare a report on the application for review by the city council. The application and staff report thereon may also be submitted to the city planning commission for review in connection with the planning commission's consideration of a conditional use permit for the proposed facility. The city council shall review the application at an open meeting of the council and shall evaluate the application in accordance with the standards and requirements set forth in this article. (Code 1982, § 604.10(2)) Sec. 58-125. Action by council; standards for approval. The city council shalt order the issuance of a requested solid waste facility license only if it finds and determines that: (1) All of the minimum requirements set forth in this article for the establishment of the proposed facility have been met. (2) Any additional requirements or conditions deemed necessary by the city council as provided in this article for the establishment of the proposed facility have been met. (3) The operation of the proposed facility will fully comply with ail of the performance standards established by this article, the zoning regulations (chapter 30, article VI), and the remaining provisions of this Code. (4) The operation of the proposed facility will fully comply with any additional performance standards or conditions deemed necessary and imposed by the city council as provided in this article. (5) All of the requirements of the zoning regulations (chapter 30, article VI) for the issuance of a conditional use permit for the proposed facility have been met and the standards for issuance of a conditional use permit set forth in section 30-654(a) have been met. (6) The proposed facility will be so situated, equipped, operated, and maintained as to minimize, to the maximum extent possible, using the best available technology, any potentially adverse impacts on: a. The environment. b. Groundwater quality. c. Aersans residing or working in the area. d. Other land uses and activities in the area. e. The use, enjoyment or value of any neighboring property. f. The public health, safety, and general welfare. (Code 1982, § 604.10(3)) Sec. 58-926. Conditions. http://library! .municode.com/default-test/DoeView/ 13427/ 1 /88/91 3! 12/2010 ARTICLE III. SOLID WASTE I'ACILITIES* Page 8 of 23 The council, in its discretion, may impose such specific conditions incident to the issuance of a solid waste facility license as it considers necessary to: (1) Satisfy the standards set forth in section 58125 and the requirements contained in this article and the zoning regulations (chapter 30, article VI); (2) Promote compatibility with and minimize any potential adverse effects upon adjacent properties, the neighborhood, or the city; (3) Protect the public health, safety, and genera! welfare; (4) Avoid traffic congestion or hazard; or (5) Prevent land, water, or air pollution. (Code 1982, § 604.10(4)) dec. 58-127. Insurance; band or other surety. (a) Unless otherwise provided by the city council, issuance of a solid waste facility license pursuant to the provisions of this division shall be contingent upon the licensee furnishing to the city a surety bond with a surety acceptable to the city or cash escrow in the amount of $100,000.00, or such other higher amount as the council in its discretion deems necessary to protect against potential risks to the public health, safety or general welfare in the event the facility is shut down or otherwise terminated. The amount so established by the city shall be equal to the estimated costs of repairing, cleaning up, and/or closing the facility in the event of a termination or abandonment by the operator. The bond shall name the city as obligee and shall be issued by a surety duly licensed and authorized to transact corpora#e surety business in the s#ate. A condition of such bond shall be that, if the principal fails to obey any of the requirements or do any of the acts required by this article in the operation of the solid waste facility, or if, for any reason, ceases to operate or abandons the solid waste facility, and the city is required to expend any monies or expend any labor or material to restore, repair, or clean up the site to the condition and requirements as provided by law, the obligor and the sureties on its bond shall reimburse the city for any and all expenses incurred to remedy the failure of the principal to comply with this article, and that the obligor and its sureties will indemnify and save the city harmless from all losses, costs, or charges that may occur to the city because of any default of the obligor under the terms of his license to operate and the ordinances of the city. (b) In addition to the bond to be furnished, fihe operator of the facility shall furnish to the city certificates of insurance issued by insurers duly licensed with the state, or approved by the state as an eligible surplus lines insurer for the coverage provided, covering public liability, general liability, automobile liability, loading and unloading liability, fire liability, completed operations liability, explosion and collapse of underground operations liability, and bodily injury liability in an amount of at least $500,000.00 for injury or death of any one person in any one occurrence, and bodily injury liability in an amount of at least $1,000,000.00 for injuries or death arising ou# of any one occurrence. Property damage liability shall be furnished in the amount of at least $600,000.00 for any one occurrence and an unencumbered aggregate amount of at least $600,000.00. (c) The surety bond and insurance policies required by this section must remain in full force and efFect at all times during the operation of the facility. If the required bond and insurance policies are allowed to lapse, or for any reason cease to be in effect, the operation of the facility shall cease immediately. Operations at the facility shall not be restarted until the necessary bond and insurance policies are in effect and evidence thereof is provided to the city as required by this section. Each bond and insurance policy required for the facility shall contain a clause providing that the bond or policy shall not be revoked or Terminated, or the coverage thereunder in any way reduced or limited, until 30 days following notice of the proposed revocation, termination, reduction, or limitation to the city. If the bond and insurance requirements of this section are not met in full at all times during the operation of the facility, the city may immediately revoke the solid waste facility license for the facility and order an immediate cessation of operations at the facility until these requirements are met. http:/Ilibrary l .municode.com/default-test/DocView/13427/1/88/91 3/12/2010 ARTICLE III. SOLID WASTE FACILITIES* . Page 9 of 23 (Code 1982, § 604.12) Sec. 5$-128. Perm. Unless otherwise provided by the city council, each license granted pursuant to the provisions of this division shall expire two years from the date of issuance, unless sooner revoked. (Code 1982, § 604.14(1)) Sec. 58-929. Renewat. (a) Application for renewal of a license granted under this division shall be made in writing to the city council at least 90 days prior to the expiration of the license. The application for renewal shall include: (1) A statement of any changes in the information submitted in the last approved license application. (2) A statement as to the amount of solid waste disposed of, stored, processed, or burned during the 24-month period prior to the filing of the application. (3) A statement of the expected volume of solid waste to be disposed, of processed, stored, or burned in the next 24-month period. (b) Renewal of a solid waste facility license shall be denied if; (1) A renewal application is not submitted, or is submitted without the information required; (2) There is a current violation of the existing license or of any provision of this article, this Code, or any state or federal law, regulation, or standard with respect to the facility or the operation of the facility; or (3) There have been repeated prior violations of the terms of the existing license or of any provision of this article, this Code, or any state or federal law, regulation, or standard with respect to the facility ar the operation of the facility. (c) If the volume of solid waste disposed of, stored, processed, or burned at the facility, at the time of renewal, exceeds the volume originally proposed for the facility, or is expected within the proposed two-year renewal period to do so, the city council may condition renewal of the license on restricting annual volumes to those approved in the original license, if it determines that it is necessary to do so for the facility to continue to meet the standards required under this article for issuance of a license. (Code 1982, § 604.14(2), (3)) Sec. 58-130. Suspension ar revocation. (a) Grounds. Solid waste facility licenses issued under this article may be revoked by the city council, and operation of the licensed facility ordered terminated, if: (1) There is a current and ongoing violation of the license or of any provision of this article, this Code, or any state or federal law, regulation, or standard with respect to the facility or the operation of the facility; or (2) There have been repeated prior violations of the license or of any provision of this article, this Code, or any state or federal law, regulation, or standard with respect to the fiacifity or the operation of the facility. (b) Suspension. The city may immediately suspend a solid waste facility license, and order the immediate cessation of all operations at the licensed facility, if the city determines that there is or -has been a violation as ' http://libraryl.municode.com/default-test/DocView/13427/1/88!91 3/22/2010 ARTICLE III. SOLID WASTE FACILITIES* Page 10 of 23 provided in subsection (a) of this section, and that such violation results in a clear and imminent danger to the health and safety of the city's residents or the public in general. Such a suspension may not exceed ten days, unless during that ten-day period the city provides the operator of the facility with written notice of the city's intent to consider revocation or continued suspension of the solid waste facility license for the facility and schedules a hearing thereon, as provided in subsection (c) of this section, in which case the suspension shall remain in effect until the hearing has been held and a decision made by the city council with respect to revocation. (c) Revocation. If the city determines that there has been a violation as provided in subsectian (a) of this section, the city shall schedule a hearing to consider revocation of the solid waste facility license-for the facility involved and shall provide the operator of the facility with not less than ten days' written notice of the hearing. The hearing on the proposed revocation shelf be held at an open meeting of the city council during which the city council shalt consider the nature and extent of the violations and the aperator shall be given the opportunity to be heard and to present evidence as to the existence of a violation, as to whether the violation has been cured, and as to what steps have been taken to ensure that prior violations will not be repeated in the future. The city council shall consider the evidence presented at the hearing and may either determine whether #o revoke the license in question or may continue the hearing to a Later date to hear further evidence or consider the matter further. If the council determines to revoke the solid waste facility license far any solid waste facility, this determination shall be made by resolution setting forth the council's findings. (Code 1982, § 604.14(4), (5)) Secs.58-131--58-150. Reserved. d1VliSlON 3. TRANSFER STATIONS Sec. 58-151. Prohibited locations. No transfer stations shall be located, operated or maintained in any area of the city other than in those areas where transfer stations are a permitted or a conditional use pursuant to the provisions of chapter 30, article VI. (Cade 1982, § 604.24(1)) Sec. 58-152. License. It is unlawful for any person to establish, operate, or maintain a transfer station without being first licensed to do so by the city. The application for a license shall contain the following information: (1) The name and address of the person requesting the license. (2) Location, size, and ownership of the land upon which the transfer station will operate. (3) The Warne and address of persons responsible for actual operation and maintenance of the transfer station. (4) A general description of property use in the immediate vicinity of the transfer station. (5) The anticipated type and source and maximum volume of solid waste which can be stored at the transfer station at any one time, and estimated weekly and annual volumes of solid waste which will be received at the facility. (6) Complete plans and specifications and proposed operating procedures for the transfer station. (7) flans for the transportation of solid waste to and from the transfer station, including the specific public roadways to be used for these purposes and the volume of truck traffic which the transfer station http://libraryl.municode.com/default-test/DocView/13427/1/88/91 3/12/2010 ARTICLE III. SOLID WASTE rACILITIES* Page 11 of 23 i will generate on these roadways. ~ (8) Rates and charges for use of the transfer station. i (9) Such additional information and data as may be required by the city building and zoning administrator, the planning commission, or the city council. (Code 1982, § 604.24(2)) .Sec. 5S-'953. 9Vlinimum requirements. (a) The following minimum requirements shall be established, constructed, provided, and maintained at a transfer station site; (1) Display of information. Subject to the approval of the city council, a sign shall be pasted on the premises indica#ing the station name, the schedule of days and hours it is to be open to the public, and the price for its use. (2) .Road construction and general landscaping. Roads on the premises shall be all-weather surfaced. The premises shall be constructed and landscaped in such a manner as to be compatible with adjacent uses and aesthetically pleasing in appearance. Adequate vehicle stacking facilities must be provided to ensure that no vehicle desiring to enter the site will have to wait outside the site. (3) Security. The transfer station shall be fenced and a gate shall be provided at the entrance to the site and kept locked when an attendant is not on duty. (4) Sanitary facilities, shelter and safety equipment. Adequate sanitary facilities, shelter for personnel, and safety equipment shall be provided on the premises. (5) Records. Records approved by the city council shall be maintained indicating the type and quantity of solid waste passing through the transfer station. (6) Interference with other uses. The transfer station shat( be so situated, equipped, operated, and maintained as to minimize impacts on and interference with other land uses and activities in the area. (7) Protection of public health, safety and welfare. The transfer.station shall be so situated, equipped, operated, and maintained as to minimize, to the maximum extent passible, using the best available technology, any potential adverse impact on the public health, safety, and general welfare. (b) The city council may, in its discretion, specify additional minimum requirements and conditions for the operation of transfer stations which shall be complied with as a condition for the issuance and renewal of a license. (Code 1982, § 604.24(3)) Soc. 5$-154. Performance standards. (a) Transfer station licensees shall comply with the following performance standards: (1) Hazardous waste prohibited. No hazardous wastes shall be deposited at any transfer station within the city, (2) Dangerous waste prohibited. No dangerous wastes shall be deposited at any transfer station within the city. (3) Hours of operation. All operations at transfer stations within the city shall be conducted between the hours specified by the city council in the facility license. (4) Waste removal and cleanup. When started in and as a part of the license, the operator shall ensure that all solid waste is taken away from the facility and that the facility is washed, cleaned, and IZttp://libraryl .municode.com/default-test/DacView/13427/1/88/91 3/12/2010 ARTICLE III. SOLID WASTE FACILITIES* Page 12 of 23 disinfected at the end of each day of use. (5) Orderly maintenance. The premises, entrances, and exits shall be maintained in a clean, neat, and orderly manner at all times. Litter control devices shall be provided as necessary. (6) Traffic control. All incoming and outgoing vehicles shall be controlled by the licensee in such a manner as to provide orderly and safe ingress and egress and to avoid adverse impacts an adjacent roadways. (7) Nuisance control. Measures to control rodents, flies, odors, dust, windblown material, and other potential public nuisances shall be adequate to prevent or eliminate any public nuisance. Should the city so prescribe, the licensee at his own expense shall engage an exterminator or a pest control agent to inspect the transfer station on at least a monthly basis. A copy of each inspection report shall be sent to the city immediately upon its receipt by the licensee. (8) Unloading. All unloading of solid waste from contributing vehicles shall be conducted in such a manner as to eliminate odor and litter outside the transfer station. (9) Compliance with zoning performance standards. The operation of a transfer station shall fully comply with the provisions of chapter 30, article VI, including specifically division 5, subdivision V, relating to performance standards for industrial uses. (b) The city council, at the time of issuance of the solid waste facility license for the operation of a transfer station, may modify any of the provisions of this section, or impose additional requirements, if it finds the plan of operation or other information submitted with the application or other factors make the imposition of additional standards or requirements necessary to protect and safeguard the public health, safety, and general welfare, (Code 1982, § 604.24(4)) Secs.58-155--58-170. Reserved. I~(VISIgN 4. SANITARY LAN®FILLS Sec. 58-171. Prohibited areas. No sanitary landfill shall be located, operated, or maintained in any area of the city other than in those areas where sanitary landfills are a permitted or a conditional use pursuant to the provisions of chapter 30, article VI. Waste disposal areas within a sanitary landfill are prohibited within the following areas: (1) One thousand feet from the normal high-water mark of a lake, pond, or flowage. (2) Three hundred feet from a stream. (3) A regional floodplain (100-year flood). (4) A wetland. (5) One thousand feet of the nearest edge of the right-of--way of any state, federal, or interstate highway or boundary of a public park or of an occupied dwelling. Permission may be granted to vary the distance requirements of this subsection (5) in the discretion of the city council, taking into consideration such factors as dust, noise, litter, and other aesthetic and environmental considerations. (6) Locations considered hazardous because of proximity to airports. (7) An area which is unsuitable because of reasons 1n relation to topography, geology, hydrology, soils, air quality, or proximity to wells used for potable water supply. (Code 1982, § 604.26(1)) http://library 1.municode.com/default-test/DocView/13427/1/8 8/91 3/12/2010 ARTICLE III. SOLID WASTE rACILITIES* Sec. 58-172. License. Page 13 of 23 It is unlawful for any person to establish, operate, or maintain a sanitary landfill without first being licensed to do so by the city. Application for a solid waste facility license to permit the operation of a sanitary landfill shall be made in writing to the city and delivered to the city building and zoning adrninistratar. The following information shall be submitted as a part of the application: (1) The name and address of the person requesting the license. {2) The name and address of the owner of the proposed sanitary landfill site. (3) The name and address of persons responsible for actual operation and maintenance of the sanitary landfill. (4) The exact legal description and acreage of the property to be used for the sanitary landfill. (5) A site analysis in the form required by Minnesota Rules section 7035.1800(6)(2). (6) An existing conditions plan in the form required by Minnesota Rules section 7035.1800(C){1), which shall, in addition, show the location of any existing wells. (7) A development plan of the site in the form required by Minnesota Rules section 7035.1800{C)(2}. (8) Across sections plan in the form required by Minnesota Rules section 7035.1800(C)(3). (9) An ultimate land use plan in the form required by Minnesota Rules section 7035.1800(C)(4), which shall also include the location and species of vegetation to be replanted and fhe location and nature of any structures to be erected in relation to the ultimate land use plan. (10) A soil erosion and sediment control plan. (11) A plan for dust, litter, and noise control. (12) A full and adequate description of all phases of the proposed operation, to include an estimate of the duration of the operation. (13) A plan for fire, nuisance, and vermin control. (14) Estimated weekly and annual volume of solid waste to be disposed of in the sanitary landfill. (15) A plan describing the financial mechanisms which will ensure the city that there will be funds to properly close the landfill and to provide for longterm monitoring and maintenance of the landfill site following closure and to provide for longterm liability coverage after the landfill is closed for third party personal injury and property damage and far the protection of environmental quality. (16) A plan or submittal of assurances to the city satisfactorily addressing the issue of longterm roadway maintenance during the operations tenure on those routes providing primary landfill site access. {17) A report indicating: a. The population and areas expected to be served by the proposed sanitary landfill. b. The anticipated type, quantity, and source of material to be disposed of at the site. c. Geological formations and groundwater elevations to a depth of at least ten feet below proposed excavation at the lowest elevation of the site, including the immediate groundwater table. Such data shall be obtained by soil borings or other appropriate means. d. The source and permeability characteristics of cover materials to be utilized and methods for protecting cover material for winter operations. e. The type and amount of equipment to be provided at the site for excavating, earthmoving, http://library I .municode.com/default-test/DocView/13427/1 /88/91 3/12/2010 ARTICLE III. SOLID WASTE FACILITIES* Page 14~ of 23 spreading, compacting and other needs. f. Proposed operating procedures, including consideration of each item identified in Minnesota Rules section 7035.1700. (18) Such additional information and data, including any additional environmental analysis, as may be required by the city building and zoning administrator, the planning commission, or the city council. (Code 1982, § 604.26(2)) Sec. 58-173. Minimum requiremertits. (a) The following minimum requirements shall be established, constructed, provided and maintained at the sanitary landfill site: (1) Protection of public health, safety and welfare. The sanitary landfill shall be so situated, equipped, operated, and maintained as to minimize, to the maximum extent possible, using the best available technology, any potentially adverse impact on the public health, safety, and general welfare. (2) Interference with other uses. The sanitary landfill shall be so situated, equipped, operated, and maintained as to minimize impacts on, and interference with, other [and uses and activities in the area. (3) Leachate collection systems. All sanitary landfills shall be equipped with a liner and leachate collection system adequate to collect all leachate which may be generated at the site. The city council shall also require leachate collection systems for existing solid waste deposits if, in its sole discretion, it is determined to be necessary for the protection of the public health, safety, and general welfare. Leachate collected shall not be disposed of in the city, or in the city sewer system or sewage treatment plant, unless specific permission to do so is granted by the city. (4) Employee shelter and sanitary facilities. Sanitary facilities and shelter shall be provided for site personnel. (5) Litter control. Litter control devices such as portable and permanent fences shall be provided. (6) Electrical service. Adequate electrical service shall be provided at the site for operations and repairs. (7) Fire equipment. Firefighting facilities on-site, adequate to ensure the safety of the public and employees, shall be provided. (8) Safety equipment. Emergency first aid equipment to provide adequate treatment for accidents, including those resulting from hazardous and toxic wastes, shall be provided. (9} Potable watersupp/y. A potable water supply for site personnel shall be provided. (10) Storage facilities. Shelter far maintenance and storage of site operations equipment shall be provided. (11) Vehicle stacking facilities. Adequate vehicle stacking facilities must be provided to ensure that no vehicle desiring entry intc the site shall have to wait outside the perimeter of the sanitary landfill site. (12) Emergency communication facilities. Adequate communication facilities shall be provided for emergency purposes. (13) Security. The site shall be fenced and a gate shall be provided at the entrance to the site and kept locked when an attendant is not on duty. (14) Haul road. An all-weather haul road shall be provided to the unloading area. (15) Equipment. Equipment sufficient for spreading, compacting, and covering operations, to include sufficient reserve equipment or arrangements to immediately provide for equipment during periods of breakdown, shall be provided. http://libraryl .municode.com/default-test/DocView/13427/1/88/91 3/12/2010 ARTICLE III. SOLID WASTE FACILITIES* Page 15 of 23 (16) Display of information. Subject to approval by the city council, the licensee shall erect and maintain at each entrance to the site a sign stating the name of the facility, the schedule of days and hours the facility is open to the public, prices for use of the facility, the state pollution control agency permit number, and the penalty for nonconforming dumping. (17) Water quality monitoring. An appropriate groundwater and surface water quality monitoring system shat! be provided at the licensee's expense. (18) Screening. Visual screening of the sanitary landfill site, as approved by the city council, shall be provided by the use of natural objects, trees, plants, seeded soil berms, fences, and other suitable means. (19) Drop-off points. Suitable and safe disposal areas, as determined by the city, shall be provided in the sanitary landfill for individuals who wish to transport and dispose of their own solid waste. (b) The city council may, in its discretion, specify additional minimum requirements and conditions for the operation of sanitary landfills which shall be complied with as a condition for the issuance and renewal of a license. (Code 1982, § 604.26(3)) Sec. 58-174. Performance standards. (a) A person who has been granted a license by the city council to operate a sanitary landfill shall comply with the following performance standards; (1) Hazardous wastes prohibited. No hazardous wastes shall be disposed of in any sanitary landfill within the city. (2) Dangerous waste. No dangerous wastes shall be disposed of at~any sanitary landfill within the city unless and until permission to do so has been requested and obtained from the city as provided in this article. (3) Compliance with state standards. Every sanitary landfill located within the city shall comply with the required practices for maintenance and operation of landfills set forth in Minnesota Rules section 7035.1700. (4) Compliance with zoning performance standards. The operation of all sanitary landfills within the city shall fully comply with the performance standards and other requirements of chapter 30, article VI, including specifically division 5, subdivision V, relating to performance standards for industrial uses. (5) Hours of operation. All operations at sanitary landfills within the city shall be conducted between the hours specified by the city council in the license for the facility. (6) Public nuisance control. Measures to control rodents, flies, odors, dust, windblown material, and other potential public nuisances shall be adequate to prevent or eliminate any public nuisance. Should the city so prescribe, the licensee at his awn expense shall engage an exterminator or pest control agent to inspect the landfill on at least a monthly basis. A copy of each inspection report shall be sent to the city immediately upon its receipt by the licensee. (7) Traffic control. All incoming and outgoing vehicles shall be controlled by the licensee in such a manner as to provide orderly and safe ingress and egress and to avoid adverse impacts on adjacent roadways. (8) Supervision. An attendant shall be on duty at the site at all times while it is open for public use. Unloading of refuse shall be continuously supervised at the working face of the landfill. (9) Operating records. Accurate daily records of daily landfl! operations shall be maintained. These records shall contain information pertinent to sanitary landfill operation. Intake of solid waste in tons or cubic yards shall be recorded on a daily basis in a manner acceptable to the city. General areas in http://library! .municode.com/default-test/DocView/13427!1/8 8/91 3/12/2010 ARTICLE III. SOLID WASTE FACILITIES* Page 16 of 23 which a particular type of solid waste has been disposed within the landfill shall be recorded and filed. The volume and location of the disposal of dangerous wastes shall be recorded the day such disposal takes place and shall include the amount and type of waste disposed of, and the name and address of the source of the waste. These records shall be available at all times far review and inspection by the city. (10) Recording of description of completed site. A detailed description of the location of the completed sanitary landfill site shall be recorded with the county register of deeds within one month after approval of the closure of the landfill. This description shall include the general type and location of deposited solid waste, the location of phased or staged disposal of wastes, the type and number of lifts, original and finial terrain descriptions, site hydrogeologic conditions, and other pertinent characteristics of the completed sanitary landfill site. (b) The city council, at the time of issuance of the solid waste facility license for the operation of the sanitary landfill, may modify any of the provisions of this section, or impose additional requirements, if it finds the plan of operation or other information submitted with the application or other factors make the imposition of additional standards or requirements necessary to protect and safeguard the public health, safety, and general welfare. (Code 1982, § 604.25(4}) Secs.58-175--58-190. Reserved. 131V[SI®N 5. WASTE BURNING FACILITIES* *Cross references: i=ire prevention and protection, ch. 22. Sec. 58-191. Prohibited areas. No waste burning facility shall be located, operated, or maintained in any area of the city other than those areas where waste burning facilities are a permitted or a conditional use pursuant to the provisions of chapter 30, article VI. (Code 1982, § 604.28(1)) Sec. 58-192. License. It is unlawful for any person to construct, establish, maintain or operate a waste burning facility having a capacity greater than 2,000 pounds per hour, including incinerators, boilers, or other facilities which have been converted from other uses for use to burn processed or unprocessed solid waste, without first being licensed to do so by the city. Application for a solid waste facility license to permit the operation of a waste burning facility shall be made in writing to the city and delivered to the city building and zoning administrator. The following information shall be submitted as a part of the application: (1) The name and address of the person requesting the license. (2) The name and address of the owner of the proposed waste burning facility. (3) The name and address of the person responsible for actual operation and maintenance of the proposed waste burning facility. http;//libraryl .municode.com/default-test/DocView/13427/1/88/91 3/1212010 ARTICLE III. SOLID WASTE I'ACILITIES* Page 17 of 23 ' (4) The street address and legal property description of the property on which the waste burning facility is located or is proposed to be located. (5) The present and future population and areas expected to be served by the proposed waste burning facility. (6) The characteristics, quantities, and sources of solid waste to be burned at the waste burning facility, including estimated weekly and annual volume of solid waste to be burned. (7) A plan showing the land uses and zoning, and the location, type, and height of ail buildings, within 1,000 feet of the proposed waste burning facility. (8) A minimum of two sets of plans and specifications prepared by a state registered engineer clearly indicating the construction which will be undertaken. (9) An engineering report, including incinerator, furnace, or boiler design criteria, and expected performance data, including detailed information on particulate and gaseous emissions to be emitted by the waste burning facility. ' (10) A foil and adequate description of proposed operating procedures for the waste burning facility, including: a. All steps which will be taken to ensure that any solid waste brought to the waste burning facility is entirely contained in the facility and that operation of the facility will not result in any land pollution. b. All safety measures and precautions which will be taken with respect to the burning process, including a plan~for tire, nuisance, and vermin control. c. A plan for litter, noise and dust control. (11) Plans for the transportation of solid waste to the waste burning facility and far the transportation of ash and other residue away from the facility, including specific public and private roadways to be utilized for these purposes and the volume of truck traffic which the waste burning facility will generate on these roadways. (12) Specific plans for the disposal of ash and other residue from the waste burning process., and for the emergency disposal of solid waste in the event of a facility shutdown or breakdown, including the identification of any sanitary landfill located within the city proposed to be used far disposal of ash or other residue or for the emergency disposal of solid waste. (13) Such additional information and data as may be required by the city building and zoning administrator, the planning commission, or the city council. (Code 1982, § 604.2$(2)) Sec. b8-193. Minirr~Um requiremen~,s. (a) The following minimum requirements shall be established, constructed, provided, and maintained for a waste burning facility: (1) Protection of public healfh, safety and welfare. The waste burning facility shall be so situated, equipped, operated, and maintained as to minimize, to the maximum extent possible, using the best available technology, any potential adverse impacts on the public health, safety, and general welfare. (2) Inten`erence with other uses. The waste burning facility shall be so situated, equipped, operated, and maintained as to minimize impacts on and interference with other land uses and activities in the area. (3) ,Emission control equipment. The waste burning facility shah be equipped with the best available technology for controlling particulate and gaseous emissions. The city council may require that specific http://library l .znunicode.com/default-test/DocView/13427/1/88/91 3/12/2010 ARTICLE III. SOLID WASTE rACILITiES* Page 18 of 23 emission control equipment be provided, including, without limitation, bag houses, scrubbers, and electrostatic precipitators, if, in its sole discretion, such equipment is determined to be necessary to protect the health, safety, and general welfare of the community. (4) Employee shelter and sanitary facilities. Shelter and sanitary facilities shall be available for plant personnel. (5) Display of information; hours open to public. Subject to approval by the city council, the licensee shall erect and maintain at each entrance to the facility a permanent sign stating the name of the facility and the state pollution control agency permit number of the facility, and indicating the hours and days the plant is open for public use. Access to the plant shall be limited to #hose times when authorized personnel are on duty. (6) Unloading. All incoming solid waste to be burned at the facility shall be confined to the unloading area. Adequate capacity shat( be provided. No solid waste shall be stored except in enclosed areas. Litter control devices, as necessary, shall be provided in unloading areas and other areas of the facility. (7) Dust and odor control. Facilities shall be designed to provide for dust and odor control in unloading and charging areas. (8) Weighing facilities; records. Waste burning facilities shall, if required by the city council, have weighing facilities available. Permanent records shall be maintained indicating the total weight of material burned, the total quantity of resulting residues, and the total hours of plant operation. These records shall be available for inspection upon request by the city. (9) Fire equipment. Firefighting equipment meeting the standards of Underwriters' Laboratories, lnc., or other approved nationally recognized safety standards, shall be available in the storage and charging areas and elsewhere as needed. (10) Fire protection. Arrangements shall be made with the local fire protection agency to provide firefighting forces in an emergency. (11) Emergency communication facilities. Adequate communication facilities shall be provided for emergency purposes. (12) Cleaning equipment. Equipment shall be provided in the storage and charging areas and elsewhere as needed to allow cleaning after each day of operation or as may be required in order to maintain the facility in a sanitary condition. (13) Safety equipment. The charging openings, as well as all equipment throughout the plant, shall be provided with safety equipment. (14) Vehicle stacking facilities. Adequate facilities must be provided to ensure that no vehicle desiring entry into the site will have to wait outside the perimeter of the waste burning facility site. (15) Security. The waste burning facility shall be. fenced or otherwise secured and a gate shall be provided at the entrance to the site and kept locked when an attendant is not on duty. (16) Landscaping. The waste burning facility shall be landscaped in such a manner as to be compatible with adjacent uses and aesthetically pleasing in appearance. (b) The city council may, in its discretion, specify additional minimal requirements and conditions for the operation of waste burning facilities which shall be complied with as a condition for the issuance and renewal of a license. (Code 1982, § 604.28(3)} Sec. 513194. Performance standards. (a) A person who has been granted a license by the city council to operate a waste burning facility shall http://libraryl.municode.com/default-test/DocView/13427/1/88/91 3/12/2010 ARTICLE III. SOLIT~ WASTE FACILITIES* comply with the following performance standards: Page 19 of 23 (1) Hazardous waste prohibited. No hazardous wastes shall be burned or stored at any waste burning facility located in the city. (2) Dangerous waste. No dangerous wastes shalt be burned at any waste burning facility in the city unless and until permission to do so has been sought and obtained from the city as provided in this article. (3) Compliance with zoning pen`ormance standards. The operation of a waste burning facility shalt fully comply with the provisions of chapter 30, article VI, including specifically division 5, subdivision V, rela#ing to performance standards for industrial uses. (4) Hours of operation. A(I operations at waste burning facilities within the city shall be conducted between the hours specified by the city council in the license for the facility. (5) Combustion performance. Combustion performance at waste burning facilities shall conform to all applicable regulations of the state pollution control agency now or hereafter adopted, and to the design and performance specifications set forth in the application materials for the facility and approved by the city, to produce satisfactory residue and to result in as odor-free and pollution-free an operation as is feasible. Copies of all records and reports prepared by the operator or licensee and transmitted to the state pollution control agency shall be transmitted to the city if requested by the city. (6) Residue disposal. All solid waste residue removed from the waste burning facility shall be promptly disposed of in a manner that will prevent nuisances, land pollution, and public health hazards. Residue containing combustible material shall be disposed of in a sanitary landfill as permitted by the city and the license for the waste burning facility. Solid waste ash and other residue from waste burning facilities shall not be disposed of in any sanitary landfill located within the city, unless specific permission to do so has been obtained from the city council. The city council may restrict the disposal at any sanitary landfill located within the city of ash, residue, or unburned solid waste which has been generated outside of the county. (7) Orderly maintenance. The premises, entrance and exits of all waste burning facilities shall be maintained in a clean, neat, and orderly manner at all times. (8) Nuisance control. Measures to control rodents, flies, odors, dust, windblown material, and other potential public nuisances shall be adequate to prevent or eliminate any public nuisance. Should the city so prescribe, the licensee at his own expense shall engage an exterminator or pest control agent to inspect the waste burning facility on at least a monthly basis. A copy of each inspection report shall be sent to the city immediately upon its receipt by the licensee. (9) Inspections. Upon completion of the waste burning facility and prior to initial operation, the city shall be notified to allow personnel of the city to inspect the facility both prior to and during operation. (10) Performance testing. Pertormance testing of the waste burning facility shall be required by the city council. The city council shall determine the type and frequency of pertormance tests to be provided in the license for each facility. A report covering the results of the performance test in each case shat( be prepared by the design engineer of the facility and submitted to the city with a copy of all supporting data. (11) Traffic control. A!I incoming and outgoing traffic 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. All roads used for traffic to and from the facility shall be all-weather hard surfaced. (b) The city council, at the time of issuance of the solid waste facility license for the operation of the waste burning facility, may modify any of the provisions of this section, or impose additional requirements, if it finds the plan of operation or other information submitted with the application or other factors make the imposition of additional requirements or standards necessary to protect and safeguard the public health, safety, and general welfare. (Code 1982, § 604.28(4)) http://libraryl .municode.com/default-test/DocView/13427/1 /88/91 3/I2/2010 ARTICLE III. SOLID WASTE FACILITIES* Secs.58-195--58-210. Reserved. DIVISION 6. PROCESSING FACILITIES Sec. 58-211. Prohibited areas. Page 20 of 23 No solid waste processing facility shall be located, operated or maintained in any area of the city other than those areas where solid waste processing facilities are a permitted or a conditional use pursuant to chapter 30, article Vl, nor shall such facilities be allowed to locate within: (1) A regional flaodplain (100-year flood). (2) A wetland. (3) Five hundred feet of the nearest edge of the right-of-way of any state, federal, or interstate highway or the boundary of a public park or of an occupied dwelling. Permission may be granted to vary the distance requirement of this subsection (3) in the discretion of the city council, taking into consideration such factors as noise, dust, litter, and other aesthetic and environmental considerations. (4) An area which is unsuitable because of reasons relating to topography, geology, hydrology, soils, air quality, or proximity to wells used for potable water supply. (Code 1982, § 604.30(1)) Sec. 58-212. License. It is unlawful for any person to construct, establish, operate, or maintain a solid waste processing facility, including a resource recovery facility, a waste reduction facility, a refuse derived fuel facility, etc., without first being licensed to do so by the city. Application for a solid waste facility license to operate a solid waste processing facility shall be made in writing to the city and delivered to the city building and zoning administrator. The application shall contain the following information: (1) The name and address of the person requesting the license. (2) The name and address of the owner of the proposed solid waste processing facility. (3) The name and address of the person responsible for actual operation and maintenance of the proposed solid waste processing facility. (4) The street address and legal property description of the property on which the solid waste processing facility is proposed to be located. (5) The present and future population and areas expected to be served by the proposed solid waste processing facility. (6) The characteristics, quantities, and sources of solid waste to be processed at the solid waste processing facility. (7) A minimum of two sets of plans and specifications prepared by a registered engineer of the state clearly indicating the construction which will be undertaken. ($) A plan showing the land uses and zoning, and the location, type, and height of all buildings, within 1,000 feet of the proposed solid waste processing facility. (9) An engineering report including design criteria and expected pertormance data detailing the proposed operating procedures for the solid waste processing facility, including: http://libraryl.municode.com/default-tesilDocView/13427/1/88/91 ~ 3/12/2010 ARTICLE III. SOLID WASTE FACILITIES* Page 21 of 23 a. All steps which will be taken to ensure that any solid waste brought to the solid waste processing facility is entirely contained in the facility and that operation of the facility will not result in any land pollution. b. A11 safety measures and precautions which will be taken with respect to the processing facility. c. A plan for dust, litter, and noise control. (10) Plans for the transportation of solid waste to and from the facility, including specific public and private roadways to be utilized for these purposes and the volume of truck traffic which the solid waste processing facility will generate on these roadways. (11) Specific plans for the disposal of solid waste and hazardous or dangerous waste received, generated, or processed at the facility, and for the emergency disposal of solid waste not processed due to facility breakdowns, including the identification of any sanitary landfill located wi#hin the city proposed to be used for disposal of solid waste processed at the facility or for the emergency disposal of solid waste brought to the facility and not processed. (12) Such additional information and data as may be required by the city building and zoning administrator, the planning commission, or the city council. (Code 1982, § 604.30(2)) Sec. 58-213. IViinimum requirements. (a) The following minimum requirements shall be established, constructed, provided, and maintained for a solid waste processing facility: (1) Protection of public health, safety and welfare. The solid waste processing facility shall be so situated, equipped, operated, and maintained as to minimize, to the maximum extent possible, using the best available technology, any potential adverse impact on the public health, safety, and general welfare. (2) Interference w{th ofher uses. The solid waste processing facility shall be so situated, equipped, operated, and maintained as to minimize impacts on and interference with ofher land uses and activities in the area. (3) Pollution control equipment. The solid waste processing facility shall be equipped with the best available technology for controlling washwater, leachate, and other potential pollutants. The city council may require that specific pollution and control equipment be provided if, in its sofa discretion, such equipment is necessary to protect the health, safety, and general welfare of the community. (4) Employee shelter and sanitary facilities. Shelter and sanitary facilities shall be available for plant personnel. (5) Display of information; hours open to public. Subject to approval by the city council, the licensee shall erect and maintain at each entrance to the facility a permanent sign stating the name of the facility and the state pollution control agency permit number of the facility and indicating the hours and days the plant is open for public use. Access to the plant shall be limited to those times when authorized personnel are on duty. (6) Unloading. All incoming solid waste to be processed at the facility shall be confined to the unloading area. Adequate capacity shall be provided. No processed or unprocessed solid waste shall be stored except in fully enclosed areas, except that recovered metals may be stored in open top trailers. Litter control devices, as necessary, shall be provided in unloading areas and other areas of the facility. (7) Dust and odor control. Facilities shall be designed to provide for dust and odor control in http://libraryl.municode.com/default-test/DocView/13427/1/88/91 3/12/2010 ARTICLE III, SOLID WASTE FACILITIES* I'a~e 22 of 23 unloading and processing areas. (8) Weighing facilities; records. Solid waste processing facilities shall have weighing facilities available. Permanent records shall be maintained indicating the total weight of material processed, the total quantity of resulting processed waste, and total hours of plant operations. These records shat( be available for inspection upon request by the city. (9) Fire equipment. Firefighting equipment meeting the standards of Underwriters' Laboratories, lnc., or other approved nationally recognized safety standards, shall be available in the unloading and storage areas and elsewhere as needed. (10} Fire protection. Arrangements shall be made with the local fire protection agency to provide firefighting forces in an emergency. (11) Emergency communication facilities. Adequate communication facilities shall be provided for emergency purposes. (12) Cleaning equipment. Equipment shall be provided in the unloading and storage areas and elsewhere as needed to allow cleaning after each day of operation or as may be required in order to maintain the facility in a sanitary condition. (13) Safety equipment. The solid waste processing facility shall be provided with safety equipment as necessary and required by the city council. (14) Vehicle stacking facilities. Adequate facilities must be provided to ensure that no vehicle desiring entry into the solid waste processing facility during permitted receiving hours will have to wait outside the pe~rimefer of the processing facility site. (15) Security. The site shall be fenced and a gate shall be provided at the entrance to the site and kept locked when an attendant is not on duty. (16) Landscaping. The solid waste processing facility premises shall be landscaped in such a manner as to be compatible with adjacent uses and aesthetically pleasing in appearance. (b) The city council may, in its discretion, specify additional minimum requirements and conditions for the operation of solid waste processing facilities which shall be complied with as a condition for the issuance and renewal of a license. (Cade 1982, § 604.30(3)) Sec. 58-214. Performance standards. (a) A person who has been granted a license by the city council to operate a solid waste processing facility shall comply with the following performance standards: (1) Hazardous waste prohibited. No hazardous waste shall be processed at any solid waste processing fiacility within the ci#y. Hazardous wastes deposited at a solid waste processing facility shall be segregated by the operator of the facility and disposed of as provided by state law. (2) Dangerous wastes. No dangerous wastes shall be processed in any solid waste processing facility within the city. Dangerous waste deposited at a solid waste processing facility shall be disposed of by the operator of the facility as required by state law. (3) Compliance wifh zoning performance standards. The operation of all solid waste processing facilities within the city shall fully comply with performance standards and other requirements of chapter 30, article Vl, including specifically division 5, subdivision V, relating to performance standards for industrial uses. (4) Hours of operation. A(I operations at solid waste processing facilities within the city shall be conducted between the hours specified by the city council in the license for the facility. http://~ibraryl.tnunicode.com/default-test/DocView/13427/1/88/91 3/12/2010 ARTICLE III, SOLID WASTE FACILITIES* Page 23 of 23 (5) Safe operation. The solid waste processing facility shall be operated in a manner so as to ensure the safest possible operation. The city shall be notified immediately upon the release or spill of hazardous materials at the facility, or of any other dangerous condition at the facility. (6) orderly maintenance. The premises, entrance and exits of all solid waste processing facilities shall be maintained in a clean, neat, and orderly manner at al( times. (7) /Nuisance control. Measures to control rodents, flies, odors, dust, windblown material, and other potential public nuisances shall be adequate to prevent or eliminate any public nuisance. Should the city so prescribe, the licensee, at his own expense, shall engage an exterminator or pest control agent to inspect the solid waste processing facility on at least a monthly basis. A copy of each inspection report shall be sent to the city immediately upon its receipt by the licensee. (8) Inspections. On completion of the solid waste processing facility and prior to initial operation, the city shall be notified to allow personnel of the city to inspect the facility both prior to and during operation. (9) Pertormance testing. Performance testing of the solid waste processing facility may be required by the city council. The city council shall determine the type and frequency of performance testing to be provided in the license for each facility. A report covering results of the performance test in each case shall be prepared by the design engineer of the facility and submitted to the city with a copy of all supporting data. (10) Traffic control. All incoming and outgoing traffic 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. All roads used for traffic to and from the facility shall be all-weather hard surfaced. (11) Solid waste disposal. All solid waste processed in the solid waste processing facili#y shall be promptly moved from the facility and disposed of in a manner that will prevent nuisances, land pollution, and public health hazards, and as allowed by the city council. The city council may restrict the disposal at any sanitary landfill located within the city of processed or unprocessed solid waste deposited at the solid waste processing facility which has bean generated outside of the county. (12) Washwater. All truck and facility washwa#er shall be captured and retained and not enter the area surface water or groundwater system. No washwater shat! be delivered to the city's sewage treatment plant or introduced into the city's sewer system unless and until specific permission to do so is granted by the city. The city will require testing of washwater before allowing disposal in the city sewer system. (b) The city council, at the time of issuance of the solid waste facility license for the operation of the solid waste processing facility, may modify any of the provisions of this section, or impose additional requirements, if it finds the plan of operation or information submitted with the application or other factors make the imposition of additional requirements or standards necessary to protect and safeguard the public health, safety, and general welfare. (Code 1982, § 604.30(4)) http://library 1.znunicode.com/default-test/DocView/13427/1 /88/91 3/12/2010 Page 1 of 1 Perry, Jack Y. From: Johnson, Terry [Tjohnson8@wm.comJ Sent: Wednesday, March 10, 2010 2:50 PM To: Perry, Jack Y. Subject: Elk River Attachments: SDA rev rapt response Itr.doc; Covertorevisedhydroreport.doc; FW ReviewComments on the Revised Hydrogen Report (Phase (and II}and Phase IIIPhase IV Work Plan.txt; LEDVINA.xIs; FW Elk River Landfill - Review of Phase III Report for MSW Expansion.txt; Elk River Landfill -Supplemental Phase lil Hydrogeologic Evaluation Work Plan MSW Expansion Area.txt Jack Various Correspondence with the City of Efk River over the SDA investigation and establishment of a monitoring program.. Also a summary of Matt Ledvina billings for work on behalf of the City. 1Nas#e Management recycles enough paper every year to save 41 million #rees. By no# prin#ing this email, you can help save even more. This email has been scanned for all viruses by the MessageLabs SkyScan service. (http://www.messagelabs.com) EXHIBIT 159 3/10/2010 October 7, 2005 Project 007907.000.0 Mr. John Elks Minnesota Pollution Control Agency 520 Lafayette Road North St. Paul, MN 55155 Mr. Matt Ledvina Natural Resource Group, Inc. 80th South 8`h Street, Ste 1000 Minneapolis, MN 55402 Subject: Response to MPCA Comment Letter dated July 26, 2005 and Comments emailed August 25, 2005 on behalf of the City of Elk River pertaining to the Revised Hydrogeologic Evaluation (Phase I and II) Report, Water Monitoring System (Phase III) Report, and Phase IV Water Quality Monitoring Work Plan, South Development Area, SW-74 Elk River Landfill, Elk River Minnesota Dear Mr. Elks and Mr. Ledvina: Thank you for your reviews of the Revised Hydrogeologic Evaluation (Phase I and II) Report, Water Monitoring System (Phase III) Report, and Phase IV Water Quality Monitoring Work Plan, South Development Area prepared for the Ellt River Landfill. Attached to this Letter is an Addendum to the Revised Report containing replacement text and figures per the issued comments. Below are responses to the comments provided in the July 26, 2005 MPCA comment letter and the August ZS comments emailed on behalf of the City of Elk River. For clarity, the original comments are reproduced in italics and are followed by responses in standard font. MPCA Comments dated July 2G, 2005 1. Section 4.2.5 references three water level monitoring events. Only two events were submitted in Table 3. The narrative will be corrected to reflect data referenced in Table 3. ~ The narrative has been changed as described and replacement text for Section 4.2.5 is included in the attached Addendum. 2. Reference to MPCA comments dated August 6, 2004, will be included in Section 8.0, References The following correspondence has been added to Section 8.0 References section in the attached Addendum: -MPCA comment letter to WMI dated August 6, 2004 -MPCA comment letter to WMI dated July 26, 2005 Mr. John Elks, MPCA Mr. Matt Ledvina, NRG October 7, 2005 Page 2 -NRG comments via email to WMI on July 22, 2004 -NRG comments via email to WMI on August 25, 2005 3. The lithology of SBS on the soil boring log at total depth will be corrected The Iithologic description has been cai~•ected and a revised log is attached. 4. The MPCA recommends that proposed monitoring wells P-321 C and P-322C, located along the southern margin of the South Development Area (SDS) be moved northward to coincide with the 10 year footprint. MPCA understands the current operations of the sand and gravel mining could complicate placement of these groundwater monitoring wells. The MPCA will work with Waste Management on the f nal location of these wells. Potential future development of the SDA will required abandonment of these wells and the installation of additional groundwater monitoring wells along the southern margin of the facility. MPCA staff understands that a revised Phase IV Water Quality Monitoring Work Plan will be submitted. WMI agreed to this eonce~t,Twhich will be addressed in the Phase IV Water Ouality Monitoring Work Plan, ~Spe~ppl~al-ef-tl~ap~n~pl~~~T ~ ~~'~,~~~o~aat-fit ~garding~-ger->:item-wel~I-3.ee-atie~s-~i-an-updat '~-plan--wil~a~ surd: NI2G Comments dated August 25, 2005 WMI recognizes the comments regarding alternative stratigraphic interpretation presented in the comment letter and will continue to refine the working stratigraphic model of the site as additional data is gathered. 1, Figures 17, 19, and ZO should be revised to show the extension of the flow boundary further to the east in the northwest area of the SDA. Revised Figures 17, 19, and 20 area included in the attached Addendum. 2. The compliance boundary should include well 317 OWA during the early stage s of development. This well will subsequently be abandoned as filling progresses to cell 24. WMI will include well 3170WA in the compliance monitoring program until the well is abandoned. C•\Documents and Settiuas\neriaclLocal Sett~s\Temporary Lttemet riles\01 K33E\SDA rev rent responso ltr oc6s\Besumenis~snd SeE{ittgslt~eHese831zesal~SeHingslTentp9ra~y-I+~term~t-T~les\AbI4-1~1SDA-rav-retst-respense-4k:dos Mr. John Ellcs, MPCA Mr. Matt Ledvina, N_ RG October 7, 2005 Page 3 Thank you both for your comments and input during this project. We are confident that the working model of the site will result in a reliable and efficient environmental monitoring system. If you should have any questions, please contact Mr. Terry Johnson of Waste Management, Inc. at 952-471-94&9. Sincerely yours, Jim Eidem Geomatrix Consultants, Inc. Project Hydrogeolgist cc: Deb Walters, Elk River Landfill, Inc. Stephanie Stolz, Elk River Landfill, Inc. Deb McDonald, Waste Management, Inc. Rebecca Haug, City of Elk River Dave Lucas, Sherburne County Jeffery Ubl, Barr Engineering Company Terry Johnson Waste Management, Inc. Director, Groundwater P.roteetion Program~~~ C~\Docwnents and Settines\neriaclLocal Settings\Tem~orary Lrternet Files~OLK33E1SDA rev rep~„resnonse Itr doc~lBeeatnents-and Se#ings\>jeHnseBlbosel,Set~ingslTetnry~at F{Iles\9T~\Sl~ev-fst~tfss~ense~t~dea T ~~~~ ~~ Suite 202J, 3701 Shoreline Drive, Wayzata, Minnesota 55391 Phone: 952-471-9469 Fax: 952-471-9433 June 1, 2005 Mr. John Elks Division Metro District Section Regular Facilities Minnesota Pollution Control Agency 520 Layfayette Road St. Paul, Minnesota 55155 Mr. Matt Ledvina Natural Resource Group, Inc $0 South 8th Street Minneapolis, MN 55402 RE: Revised Hydrogeologic Evaluation (Phase I and II) Report, Water Monitoring System (Phase III) Report and Phase IV Water Qualify Monitoring Work Plan, South Development Area, Elk River Landfill (SW-74), Elk River, MN Dear Mr. Sirs: Enclosed are two copies of the Subject Report for the proposed Permit Modification at the referenced facility. ~~n„~,mnr„' +l,o A~~nP~ nR„T~gm~~~n+n +L,o avin+r'o,n f'nn:li+,r~n.;~.es~+.,nl m.,r1~1 4.. «. .irlo rag~.~~ ' ~ rw, +3nv,_nn +L, nnl.,..rr r1 1+<.rl ..1 ..<> of+1,o C+.,,,+L, rio ei., „+_A « 'T'1 7.111V L1L11.4~1 V ilSTI1T-F1ZV~,V -A-ZQ, j~MIV yV K1-17~v31 V~V i1lA Y V 111V1tiU.Vd L11V- end~~-A-of-~l~e~Ceper-~-'Fl}o-i~€erxt~en-eefleEted-at~he ni+n iM,t;nn+n +>7n++t,n r.,,<~ ~el~p In .,+ ., r~rc«~ rnn:t;+<> ,.an „~;+>7 nmr n„ton ~n~~ ~Q~c r„~. „«,. ~ The report has been revised to include findings from additional investigation conducted as part of the Supplemental Phase III Hydrogeologic Evaluation and details to address the comments submitted on behalf of the Minnesota Pollution Control Agency (August 6, 2004) and the City of Elk River (May 11, 2004). To assist you with review of the revised report the referenced comments are reproduced below in italics followed by responses in standard font. MPCA Comment Letter dated A_ tt~ust 6, 2004 1. The hydraulic properties o, f'the upper outwash sand wene. well defined. However, the hydraulic ~'elationship between the lower outwash sand, the till unit, and the upper outwash sand has not been defined. For example, what is the level of the potentiometric surface of the lower outwash sand? Also, could it be deteNmined if the lower outwash sand was saturated at the base of the till unit? Additional Page 2 of 6 Letter to Mr. John Elks & Mr. Matt Ledvina RE: Revised 5DA Hydrogeologic Evaluation Report Ellc River Landfill, Inc. characterization of the lower outwash sand is needed. The direction and rate of groundwater flow of the lower outwash sand shall be documented. Two soil borings and four piezometers were installed between November 2004 and April 2005 to evaluate the hydraulic relationship between the upper and lower outwash units. The four piezometers were completed in the lower outwash unit as deeper pairs to existing monitoring wells 315-OWA, 316-OWA, 317-OWA, and P-318C. Hydraulic head data from the well pairs yields the following information: ® This additional work indicates that the Superior till units form a continuous confining layer between the u~ er and lower. outwash; o The lowex outwash unit i.s fully saturated; • The potentiometric surface in the lower outwash is approximately four feet lower than the hydraulic head in the upper outwash indicating a downward potential through the till that separates the two outwash deposits; ® The direction of groundwater flow in the lower outwash is to the southwest; and • The average linear groundwater velocity through the lower outwash unit is approximately 13 feet per year. Discussion regarding the hydraulic relationship between the upper and lower outwash units is included in Section 4.2.5. 2. How was the till isopach map generated? Please provide, in the narrative, a description of how the thickness of the till unit was determined, and give examples from represe~ztative borings. ~n the cross sections, pleas show dashed contacts were its thickness is estimated. Additionally, is the till unit continuous across the site? If not, the upper and lower outwash could be hydraulically connected, particularly in the area of soil borings SB-9, 513-24 and SB-,25. Geologic data from the two recently advanced soil borings, SB51 and SB52, suggest the till is continuous across the 5DA. A discussion of how the till thickness map was generated is included in Section 4.1.2. Additionally, the estimated till thickness is illustrated on the cross section figures. 3. How do current groundwater elevations at the South Development Area compare historically with groundwater elevations measured at the existing facility? Also, please document the relationship between current groundwater elevations and the proposed liner elevation, A hydrograph illustrating water levels from the SDA and the existing facility is attached as Figure 16. The hydrograph indicates that the SDA water level data has been collected during a period of average to high water table elevations at the existing facility. The water levels measured at the existing facility during 2004 are consistent with those measured from 1996 to 1998 and are approximately four feet higher than Page 3 of 6 Letter to Mr. Joim Elks & Mir. Matt Ledvina RE: Revised SDA Hydrogeologic Evaluation Report i'ilk River Landfill, Inc. the low water levels measured from 2000 to 2002. This analysis indicates that the SDA water level data set is valid for establishing the base grade of the proposed development. 4. Water elevation data depicted on the cross-sections often does not correspond to the elevation data documented on many of the boring logs. Please provide an explanation, in the narrative, on Izow the water elevation an the crass sections was determined. Also provide an explanation on the inconsistencies between the water level on the boring logs and those noted on the cross sections. The groundwater surfaces illustrated the cross sections are based on the hydraulic heads measured in the SDA mozutoring wells on August 22, 2004. The water levels on the soil boring logs were recorded for completeness purposes only and do not represent accurate water table or potentiometric surfaces due to a number of factors including the use of water during drilling and sail sample extrusion.Suse revised sentence from re ort. A discussion of the applicability of water levels on the boring logs is included in Section 4.1.2. 5 - 10. Minor revisions The minor revisions have been addressed. Additionally, information regarding site preparation and survey control has been added to Appendix E to describe the methods utilized during the investigations. Ci oty-, f Elk River Email dated May I1, 2004 1. Page 7, Surface Water: Several statements are made concerning the surface water management. It is indicated that the wetland in southwest portion of the site will not be affected by the development of the site. The engineering design for the surface water routing will result in a significant change in the hydraulics for the wetland area. The affects on the wetland are unknown at this time. The significance of localized :~ groundwater recharge from infiltration at the sedimentation ponds is unknown at this tinge. It may be appropriate to assess impacts to the wetland area and groundwater using a technical approach. Prior to landfill development, the site will be mined for sand and gravel. The affects of the sand and gravel mining on the wetland in the southwest corner of the site are urilcnown at this time, thus it is difficultlnot possible to assess specific affects the proposed development will have on the wetland. Jim - I would see whether or not Wenclc has addressed these issues? 2. Page Y0, Water Well Survey: A comprehensive updated water well survey is presented. The Ridges of Rice fake community water supply well is located Page Q of 6 Letter to Mr. John Elks & Mr. Matt Ledvina RE: Revised SDA T~Iydrogeologic Evaluation Report Elk Rivcr Landfill, Inc. approximately 2/3 mile downgradient of the site. The potential for impacts to this well is very small considering the well cased to a depth of nearly 300feet, however ERL should consider the inclusion of this well in the residential well monitoring program. WMI currently monitors the Ridges of Rice Lalce community water supply well annually on a voluntarily basis. Page I5, Continuous Till Layer: A discussion is provided regarding the fine-grained soil deposits (till) separating the "upper outwash"unit from the "lower outwash" unit. It is stated that the thickness of till deposits varies from S to mop°e than SO feet at the Site. Figure IS presents a Till Isopach Map which shows areas of the site where the till thickness is less than ten feet. Although it is not stated within the text of the report or on the map, it is implied that the till layer is continuous throughout the site. The available boring data suggest that the till layer is continuous, however, the borings in the west central portion of the site do not extend to an adequate depth to definitely matte this conclusion. It should be noted that borings 9, 16(x), 24, 25 to do not provide evidence that the till is continuous. It should be further noted that the geologic cross- sections which depict a continuous till layer for this portion of the site are interpretive. There exists a possibility that the till is discontinuous at the site and the upper and lower outwash units are in hydraulic connection. It should be noted that the absence of the till layer is the situation which is present for the existing landfill area in the vicinity of the ERL shop. Discontinuity of the layer has implications for establishing an effective groundwater monitoring system at the site. Geologic data from the recently advanced soil borings, SB51 and SB52, suggest the till is continuous across the site. `~,~- •,, -- ~~rei4~:~:a 3. Page 20, Groundwater I?ischarge: The report states that groundwater in the north central portion of the site flows northwest and is interpreted to discharge to Rice Lake/Tibbits Broolc It is understood that WMI has conducted additional site investigation related to the groundwater impacts from the existing waste deposit. No data has yet been presented to support this groundwater discharge conclusion. Results of the second and final phase of the Rice Lake/Tibbits Brook Area groundwater investigation will be submitted shortly. Results from the second phase of investigation support the groundwater discharge conceptual model. Page 22, Groundwater Illonitoring: WMI proposes the addition of one nested piezometer in the lower outwash to evaluate the hydraulic gradient across the till layer. Given the concerns regarding the continuity of till layer; the piezometer should be utilized as a monitoring well and included in the proposed monitoring workplan. A second nested monitoring well (P322C location suggested) should be installed along the western portion of the south boundary for similar gradient and water quality monitoring purposes. Page5of6 Letter to Mr. Join Elks & Mr. Matt Ledvina RE: Revised SAA I~ydrogeologic Evaluation Report Eik River Landfill, Inc. A maximum spacing of 400 feet between downgradient compliance boundary monitoring wells has be used for the existing landfill, It is suggested that this maximum spacing be maintained for the landfill expansion. This implies that several additional upper outwash monitoring wells would be included in the monitoring network. The outwash unit consistutes the uppermost saturated groundwater flow pathway at the Site. Hydraulic head monitoring at the SDA indicates there is a downward hydraulic potential between the outwash and lower outwash units. Downward flow potential is not unusual for permeable units underlain blow-permeability deposits and it is not indicative of actual flow direction. The weight of the evidence suggests that flow in both outwash units is horizontal and that these units are not in direct hydra.L~ic connection. This evidence includes LIST~~er our meeting_ However, the potential does not ;however, downward migration of groundwater is not predicted due to the continuous till deposit at the Site. Dif~terent hydraulic gradients between units, uniformit~of the gtadients/flow field in each unit - if their were a si Z,~z ificant connection it would. he reflected in the gradients. Accordingly, WMI proposes routinely monitoring groundwater quality in the outwash unit. in-t~l-iir-...~~°~~* ° ~•°'°~°° ~° ~a°,,_,~±°,a_;K_ft,° .,t.., .,1., , .,;± ~.,h~-1 e--ice"„M°.,:~~d-tea T~~„~~~d-aooard~~gl3~It should also be noted that WMI will oontinue to monitor groundwater quality in residential wells west of the SDA on an annual basis. The 400 foot spacing interval on the downgradient side of the existing facility was largely based on the presence of the unlined, pre-subtitle D portion of the landfill. The spacing of the proposed monitoring points for the SDA is nearly 400 feet but takes into account the till highs that act as boundaries to groundwater flow along the west and southern property lines. S. Page 22, T~Vell bzstallation Schedule: The report states that the current network of monitoring wells is sufficient to monitor the expansion of the fill area through Cell 20. The southerly limit of fill of Cell 20 would correspond to plan station 246,100 based on available engineering plans for site development. From the Conceptual Hydrogeologic Model, Figure 17, a southwesterly component to groundwater flow from portions of the proposed fill area is apparent. There are no monitoring wells existing or planned within a reasonably close distance that would intercept these groundwater flow lines. The suitability of the existing network of wells to monitor the development of the site through Cell 20 is questionable. The expected life of the facility is mor°e than 19 years. The total remaining life of the existingpermitted landfill area and the expansion area is more than 28 years. The existing and proposed monitoring wells are located at the distance roughly 200 feet from the ultimate fill boundaries. The functionality of an early warning monitoring system during the operational life of the site with wells located in the proposed positions is questionable. The overall schedule for the placement of monitoring wells in relation to the site development needs to be further evaluated. Page 6 of 6 Letter to Mr. John Elks & Mr. Matt Ledv€na RE; Revised SDA Hydrogeolo~ic Evaluation Report E[k River I;andfiil, Inc. A sequenced approach to monitoring system development is necessary when landfill developmentprogresses in a downgradientfashion and the projected life%apacity of the proposed development is extended. It is suggested that the wells proposed for the southern property boundary be moved northward to a position which coincides with the ten year waste fill limit. These wells would subsequently be replaced with wells located at the south property boundary when the fill progresses to this point It should be noted that if the waste receiving rated decrease, the wells would be in position to monitor the facility on an expanded time frame. The proposed SDA cells are graded to direct leachate toward the collection sumps on the eastern portion of the site. The leachate sumps are considered the most likely locations of an environmental release due to the accumulation of up to 12-inches of leachate head above the liner. Based on observed groundwater elevations, a release of leachate from the sump of cell 20 is anticipated to migrate to proposed monitoring points 31S-OWA or 320-OWA. Please refer to Figure 20. As indicated by the MPCA, the configuration of the groundwater monitoring system shall not be determined until completion of the hydrogeologic investigation. I sincerely appreciate your input on this project and the opportunity to discuss the scope of the investigation with you at various stages. Please contact me at your convenience if you have any questions. Sincerely, Terry Johnson Director, Groundwater Protection Program Waste Management, Inc. Encl Ce: Deb Dehn, Ellc River Landfill Stephanie Stolz, Elk River Landfill Deb McDonald, Waste Management, Inc. Steve Rohlf, ,City of Elk River Dave Lucas, Sherburne County Jeffery Ubl, Barr Engineering Company Jim Eidem, Geomatrix Consultants, Inc. ~ Reviewcomments on the Revised H~ydrogeo Report (Phase Z and zz) and Phase zzzPhase Tv work Plan.t~ From: Matthew ~edvina [mlledvina@nrginc.com] Sent: Thursday, August 25, 2005 12:01 PM To: dave.lucas@co,sherburne.mn.us; ~ohn.elks@pca.state.mn.us; Deb waiters (Business Fax); eidem@geamatrix.com; Johnson, Terry Cc: Rolf, Stever rhaug@ci.elk-river.mn.us subject: Fw: Review/Comments on the Revised Hydrogeo Report (Phase z and zz) and Phase zzz/Phase zv work Plan sieve Rohlf has requested that z forward my review and comments on the above-referenced topic. Regards, Matt. Matt Eedvina, P.E. mlledvina@nrginc.com 612.339.2316 Direct 612.339.4990 Fax Fram: Matthew ~edvina sent: Wednesday, August 03, 2005 9:33 AM To: `Rohlf, Steve'; Rebecca Haug (rhaug@ci.e1k-river.mn.us Subject: Review/Comments on the Revised Hydrogeo Report (P are I and zz) and Phase zzz/Phase zv wori< Plan Steve: z have completed my review of the above-referenced Report for the south pevelopment Area of the wMI, Elk River Eandfill. My comments are presented below. overall, the effort answered many important questions. The deep borings show that there is mare complexity and questions regarding the continuity far the till 1a er between the upper and lower outwash units which transmit cw at the site. r think the water level data provides sufficient evidence to support the wMZ hypothesis that they are not connected. otherwise, we would require monitoring of the lower outwash. Please let me know if you would like me to convey my comments.....email or letter....and to which involved parties. comments: The construction of the lower outwash.piezometers at locations 315, 317 and 318 provide additional data on the integrity of the till unit in the west and south Page 1 v ReviewComments on the Revised Hydrogen Report (Phase Z and II) and Phase ITZPhase Iv work Plan.t~ down- radient portions of the site. All three of the borings show,the occurrence of sand ~ayers, previously not shown on cross-sections at these locations, which are present within the till. These sand layers lead to questions regarding the ' continuity of the till layer and potential connection between the upper and lower outwash units. cross-section A-A' Additional data from P318~ indicates within the till. The upper sand layer shown for sB~32. The lower sand layer lower till contact elevations for s6-31 the two sand layers to be in connection of the site. the occurrence of two significant sand layers (913 to 919) correlates with a sand layer (889-905) is 16 feet thick, eased on the and Ss-33, there is a potential to interpret with the upper outwash unit for this portion cross-section s-B' The additional data collected for P318~ adds significance to the 1ithblogic interpretation for borings sB15, 5616 and ss-17 which shows a significant sand layer roughly between 890 and 916 for these borings. The sand layer dips down to the east and west of sa16 with a trend that could potentially intersect the lower outwash unit. This sand layer may be connected to the sand layers shown in cross-section A-A' with the potential that the upper and lower outwash units are cannected to farm a groundwater flow pathway. Cross-Section G-G` The litholo~ic data for 317E shows the occurrence of two sand seams (907-912 and $$7-897) within the till. A significant sand layer (893-902) is shown for sa35 further to the south. There is a strong potential for these sand layers to be connected although the cross-section does not show this. There is also a potential that the ~ower sand seam could be connected to the lower outhwash unit. The information from the additional deep borings shows the complexity of the geology and potential lack of continuity in the till confining layer in the south and west portions of the Site. Hydraulic connection between the upper and lower outwash units is not supported by water level monitoring information far nested wells. The water level data show a vertical head difference of approximately 4.5 feet between the outwash units at all locations for this area of the site. Cross-section H-H' has been redrawn to show discontinuity in the outwash and a groundwater flow boundary located between Sa-2 and sB~9. Figures 17, 19 and 20 should be revised to show the extension of the flow boundary further to the east in the northwest area of the s~A. section 5.0 discusses the manitoring wells proposed for the compliance boundary of the s~A. City of Elk River comments of May 11, 2004 identified the concern regarding the proposed distance of •the wells from the fill limit during the early years. of operation. The City suggested that a sequenced approach be taken for the compliance boundary and the placement of compliance boundary wells coinciding with the 10-year fill limit. MPCA correspondence dated July,26, 2005, from aohn Elks to Terry 7ohnson of wMZ indicates that a phased approach will be used for the compliance boundary. The city supports the MPCA in relocating proposed monitoring page 2 v Reviewcomments on the Revised Hydrogen Report (Phase I and II) and Phase xITPhase xv work Plan.t> wells P-321c and P322c northward to coincide with the 10-year waste footprint. The compliance boundary should include well 317 Owa during the early stages of development. This well will subsequently be abandoned as filling progresses to cell 24. section 6.4 discusses the schedule for sampling the monitoring wells, however it is unclear when the existing wells located in the s~A will be sampled for background parameters identified in the Phase zv water quality Monitoring work Plan. Regards, Matt Ledvina. Matt Ledvina, P.E. m1ledvina~nrginc.com 612.339.2316 Direct 612.347.6780 Fax Page 3 Matt Leclvina 1998 1, '[999 2000 2001 2002 2003 2004 2005 JANUARY $ 144.00 $ 432.00 $ 1,728.00 $ 1,980.00 $ 3,273.47 $ 6,120.00 $ ?,152.00 FEBUARY $ 1,221.00 $ 2,628.00 $ 5,031.32 $ 5,888.48 $ 5,160.00 $ 5,735.00 $ 5,152.00 MARCH $ 3,256.80 $ 4,440.37 $ 5,425.84 $ 4,930.00 $ 5,614.26 $ 4,994.00 $ 2,318.00 ARPIL $ 4,097.72 $ 2,064.00 $ 1,691.54 $ 3,805.00 $ 4,030.00 $ 4,440.00 $ 2,208.00 MAY $ 2,328.00 $ 1,200.00 $ 1,451.00 $ 3,420.00 $ 2,500.00 $ 6,112.00 $ 6,784.00 JUNE $ 3,224.32 $ 7,152.32 $ 1,914.00 $ 2,337.26 $ 1,735.00 $ 2,880.00 $ 8,019.00 JULY $ 481.60 $ 1,944.19 $ 4,032.80 $ 7,870.00 $ 4,635.18 $ 2,001.64 $ 2,976.00 AUGUST $ 336.00 $ 2,785.65 $ 2,849.00 $ 5,796.57 $ 5,164.25 $ 1,856.00 $ 3,728.00 SEPTEMBER $ 960A0 $ 3,508.80 $ 1,827.00 $ 1,805.00 $ 5,015.00 $ 4,482.00 $ 1,440.00 QCTOBER $ 1,152.00 $ 528.00 $ 2,146.00 $ 5,310.00 $ 5,835.21 $ 6,813.88 $ 2,496.00 NOVEMBER $ 288.00 $ 3,464.40 $ 1,160.00 $ 7,275.00 $ 3,930.00 $ 4,864.00 $ 2,304.00 DECEMBER $ 288.00 $ 1,440.00 $ 1,276.00 $ 3,599.33 $ 2,430.00 $ 5,136.00 $ 1,792.00 TOTALS $ 17,777.44 $ 31,587.73 $ 30,532.50 $ 54,016.64 $ 49,322.37 $ 55,4.34.52 $40,369.00 $ - FW Elk River Landfill - Review of Phase ITI Report for MSw Expansion.txt From: Matthew Ledvina [mlledvina@nrginc.com] sent: Thursday, ~u1y.22, 2004 9:21. AM To: ddehn@wm.com; jeidem@geomatrix.com; tjohnson8@wm.com Cc: srohlf@ci.elk-river.mn.us Subject: FW: Elk River Landfill - Review of Phase Y/TI Report for MSW Expansion T am forwarding my original comments from May concerning the wydrogeo Report for the south expansion area. These were initially sent to the MPCA and Sherburne County. z apologize for not sending these to you directly before this time. Terry, Thanks for meeting yesterday. r think we need to discuss a phased approach to LF monitoring in more detail. T would like to also have the benefit of .john Elks' opinion on the topic. Maybe a conference call is appropriate. Matt Ledvina, P.E. ml l edvi na@n rgi n c .cam 612.339.2316 Direct 61.2.325.8589 cell 612.347.6780 Fax From: Matthew Ledvina Sent: Tuesday, May 11, 2004 2:58 PM To: dave.1ucas@co.sherburne~.mn.us; Curtiss.hoffman@pca.state.mn.us; -cathy Holland-Hanson (E-mail); `john.elks@pca.state.mn.us' Cc: srohlf@ci.elk-river.mn.us; Rebecca Haug (rhaug@ci.elk-river.mn.us) subject: Elk River Landfill - Review of Phase ~/TI Report for Msw Expansion Steve Rohlf requested that Y provide comments to you concerning the Phase I/zI Report for MSW Ex ansion. The report was prepared by,GeoMatrix for wMZ. The City developed a detailed comment letter (9/24/02) concerning the Work Plan for this effort. Although wMS never formally responded to the comments provided, the scope of the field work was expanded to address concerns expressed. As requested, the number of borings was expanded from 36 to 50 and the depth of select borings was increased to establish an extensive soil boring data set. The physical testing program was greatly expanded to verify the subtle differentiation of soil deposits. z am comfortable that the field program has substantially met the goals intended and the site has been characterized with a few exceptions noted herein. The geology of the site is complex. The report does a very food job of presenting the field results. All the data that was collected was used in the development.of the hydrogeologic interpretations presented. Future work efforts at the site will bridge the data gaps that have been identified. The interpretations contained in the report are comprehensive and are presented in a straight-forward meaningful way with the use of conceptual models and dimensional graphics. Specific comments: page 7, surface water: several statements are made concerning the surface water management. It is indicated that the wetland in the southwest portion of the site Page 1 FW Elk River Landfill - Review of Phase ITI Report for MSW Expansion.tx•t will not be affected by the development of the site. The engineering design for surface water routin will result in a significant change in the hydraulics for the wetland area. The a~fects on the wetland are unknown at this time. The significance of localized groundwater recharge from infiltration at the sedimentation ponds is unknown at this time. zt may be appropriate to assess impacts to the wetland area and groundwater using a technical approach. pa e 10, Water Well Survey: A comprehensive updated water well survey.is presented. The Ridges of Rice wake community water supply well is located approximately 2/3 mile downgrad7ent of the site. The ppotential for impacts to this well is very small considering the well cased to a depth of nearly 300,feet, however GRL should consider the inclusion of this well in the residential well monitoring program. page 15, Continuous Till layer: A discussion is pprovided regarding the fine-grained soil deposits (till) separating the "upper outwash" unit from the lower outwash" unit. Tt is stated that the thickness of the till deposits varies from 5 to more than 50 feet at the Site. Figure 15 presents a Till zsopach Map which shows areas of the site where the till thickness is less than ten feet. Although ~t is not stated within the text of the report or on the map, it is implied that the till la er is continuous throughout the site. The available boring data suggest that the till layer is continuous, however, the borings in the west central portion of the site do not extend to an adequate de th to definitively make this conclusion. ~t should be noted that borings 9, 16 (~), 24, 25 to do not provide evidence that the till is continuous. rt should be further noted that the geologie cross-sections which depict a cantinuous till layer for this portion of the site are interpretive. There exists a possibility that the till is discontinuous at the site and the upper and lower outwash units are in hydraulic connection. It should be noted that the absence of the till layer is the situation which is present for the existing landfill area in the vicinity of the ERL shop. Discontinuity of the till layer has implications for establishing an effective groundwater monitoring system at the site. Page 20, Groundwater Discharge: The report states that groundwater in the north central pportion of the site flows northwest and is interpreted to discharge to Rice `ake/Tibbits Brook. zt is understood that wMZ.has conducted additional site investigation related to the groundwater impacts from the existing waste deposit. No data has yet been presented to support this groundwater discharge conclusion. page 22, Groundwater Monitoring: wMZ proposes the addition of one nested piezometer in the lower outwash to evaluate the hydraulic gradient across •the till layer. Given the concerns regarding the continuity of till layer, the piezometer should be utilized as a monitoring well and included in the proposed monitoring work plan. A second nested monitoring well (p322C location suggested) should be installed along the western portion of the south boundary for similar gradient and water quality monitoring purposes. A maximum spacing of 400 feet between downgradient compliance boundary monitoring wells has be used for the existing landfill. zt is suggested that this maximum spacing be maintained for the landfill expansion. This implies that several additional upper outwash monitoring wells would be included in the manitoring network. page 22, well installation schedule: The report states that the current network of monitoring wells is sufficient to monitor the expansion of the fi17 area through cell 20. The southerly limit of fill of Cell 20 would correspond to plan stat7on 246,100 based on available enggineering plans for site development. From the conceptual Hydrogeologic Model, Figure 17, a southwesterly component to groundwater flow from portions of the proposed fill area is apparent.. There are no monitoring wells existing or planned within a reasonably close distance that would intercept these groundwater flow lines. The suitability of the existing network of wells to monitor the development of the site through cell 20 is questionable. Page 2 FW Elk .River Landfill - Review of Phase IIZ Report for MSW.Expansion:txt The expected life of the facility is more than 19 years. The total remain7ng life of the existing permitted landfill area and the expansion area is more than 28 years. The ex7sting and proposed monitoring wells are located at the distance roughly 200,feet from the ultimate fill boundaries. The functionality of an early warning monitoring system during the operational life of the site with wells located in the proposed positions is questionable. The overall schedule for the placement of monitoring wells in relation to the site development needs to be further evaluated. A sequenced approach to monitoring system development is necessary when landfill development progresses in a downgradient fashion and the projected life/capacity of the proposed development is extended. It is suggested that the wells proposed far the southern property boundary be moved northward to a position which coincides with the ten-year waste fill limit. These wells would subsequently be replaced with wells located at the south property boundary.when the fill progresses to this point. It should be noted that if the waste receiving rates decrease, the wells would be in position to monitor the facility on an expanded time frame. conclusion: overall, the report does a very good job of characterizing the. complex geology of the expansion site, z think one of the next steps will be to sit down with WMI to discuss the approach to the monitoring network. wMZ is proposing well installation this summer, so this should happen soon. For wMI's benefit, it would be appropriate for the city, county and the MPCA to be on the same proverbial page. het me know what you think of these comments. Thanks, Matt. Matthew ~edvina, PE mlledvina~ergltd.com 612.339.2316 Direct 612.325.8589 Cell 612.339.4990 Fax Page 3 il< River Landfill - supplemental phase xxx Hydrogeologic Evaluation work Plan Msw Expansion Area.t~ From: Matthew Ledvina [mlledvina@nrginc.com7 sent: Thursday, August 19, 2004 3:31 pM To: 7ohnson, Terry; srohlf@ci.elk-river.mn.us Cc: dave.lucas@co.sherburne.mn.us; jeidem@geomatrix.com; john.elks@pca.state.mn.us Subject: Elk River Landfill - supplemental Phase xxx Hydrogeologic Evaluation worst Plan, MSW Expansion Area Hi Terry and Steve: As requested, x have completed a review of the Elk River Landfill - supplemental Phase xxx Hydrogeologic Evaluation work Plan, Msw Expansion Area. This work plan was developed in response to MPCA and City of Elk River comments concerning the March 2004 Hydrogeologic Evaluation Report. xn general, the work plan will provide important supplemental information for the need to develop a component of the monitoring system targeting the lower outwash deposit. Figure 2 presents the proposed locations for deep soil boring and piezometer construction. To provide complete areal coverage of the expansion area, it is suggested that an additional nested piezometer be constructed at the location of-316 owA. Thzs will provide better elevation control on the piezometric surface and enable a more comprehensive flow interpretation for the lower outwash. With the additional geologic information collected at the 316 OwA location will also provide information on the thickness of the till layer, the soil boring at the s6S1 location would not be required (in my opinion). Adjacent borings (s65 and s66) have tagged the top of ti 11 in this area and the only additional information for the 6651 location would be the till thickness. I want to state that discussions relating to the spacing of groundwater monitoring wells along the compliance boundary and the need for additional wells along an interim development boundary have not been completed. These discussions are deferred at this time and additional wells may need to be constructed in the future for the implementation of a complete and acceptable groundwater monitoring system for the Msw expansion area. x have contacted john Elks at the MPCA to discuss my review of the work Plan. john indicated that he will-forward comments next week. x am open to discussion on the details concerning the scope of the work Plan. please give a call with questions. Regards, Matt. Matt Ledvina mlledvina@nrginc.com 612.339.2316 Direct 612.325.8589 Cell 612.347.6780 Fax Page 1 Page 1 of 1 Perry, Jack Y. From: Johnson, Terry [Tjohnson8@wm.com] Sent: Wednesday, March 10, 2010 12;20 PM To: Perry, Jack Y. Subject: FW: Elk River Landfill -Work Plan for Interim Monitoring Wells for SDA Another City approval for work in the SDA (south expansion). We probably have several of these if we dig deeply, l.et me know how far you want me to go with these. Terry From: Matthew Ledvina [mailto:miledvina@nrg-Ilc.com] Sent: Friday, July 11, 20Q8 2:23 PM To: Johnson, Terry; jeldem@geomatrlx.com; 'John.elks@pca.state.mn.us` Cc: Dave Lucas; Haug, Rebecca Subject: l=1k River Landfill -Work Plan for Interim Monitoring Wells for SDA I reviewed the Wark Plan which was recently developed by WMI and Geomatrix (AMEC) for two interim wells along the 10-year phase boundary of the SDA. The proposed plan is acceptable. In reviewing the lithology in the vicinity of 321-OWA and 322-OWA, boring results from SB-17, SB-18 and SB-19 indicate the occurrence of fine-grained deposits (SM and ML/CL) in the vicinity of the well screens. Cross-sections from the Hydrogeologic Evaluation Report far the SDA indicate that the top of the finer-grained deposits is at roughly elevation 942 feet, while the target elevation for the base of the well screens is elevation 940 feet. Wfth the potential vertical variability of the fine-grained deposits, the City requests that no more than 50 percent of the length of the screen penetrate Into SM and ML/CL deposits that may occur in these locations. This will help to ensure the suitability of these wells in providing groundwater samples for the unconfined outwash water table aquifer. Please contact me if you have any questions or comments. Regards, Matt. Matthew L. Ledvina, F.E. mlledvlnaCa~NRG-k,LC.com (612) 339-2316 Direct (612) 669-8589'Celi (612) 347-6780 Fax llVaste Management recycles enough paper every year to save 41 million trees. By not printing this email, you can help save even more. This email has been scanned for all viruses by the MessageLabs SkyScan sezvice. (http://www.messagelabs.com) 3/10/2010 E1k~River Landfill - P304C Work Plan Page 1 of 2 Perry, Jack Y. .~ .. . .. . From: Johnson, Terry [Tjohnson8@wm.cornJ Sent: Wednesday, March 10, 2010 12:18 PM To: Perry, Jack Y. Subject: FW: Elk River landfill - P304C Work Plan Jack, Here is a City approval far investigation that resulted in two monitor wells that are located west of the City trail. These wells were formally included into our permanent Monitoring program. Although I have not seen the exact overlay boundary I believe these wells are outside of that boundary. Tom. ~ ~.. ~-~ .- Prom: Matthew ledvina [mailto:mlledvina@ergitd.com] Sent: Wednesday, March 05, 2003 2:35 PM T®: jeidem@geomatrix.com; Johnson, Terry Cc: dave.lucas@co.sherburne.mn.us; jason.chan@pca.state.mn.us; srohlf@ci.elk-river.mn.us Subject; Elk River Landflli - P304C Work Plan Jim and Terry: i reviewed the work plan and can offer comments as discussed with Jim on March 5. Overall, the plan is acceptable as a first phase of investigation for the groundwater contamination in the vicinity of well P304C. ® if the geoprobe technique is unsuccessful and Hollow stem auger techniques are used, headspace VOC readings should be conducted for split spoon samples that are collected. ® The areal distribution of boring locations is generally acceptable however you should consider relocating B5 to the north of B1 to be closer to the likely source of the contamination which is presumed to be the unlined portion of the landfill.. You should also consider additional probes to the east of P304C closer to the waste deposit. Follow-up report should include a discussion of the mechanisms and pathways for presumed LFG-impacted groundwater migrating to the P304C area and C-horizon. Good luck with the fieldwork. Matt. Matthew 1. ledvina, P.E, Environmental Resource Group 80 South 8th Street 1000 iDS Center Minneapolis, MN 55402 612 339-2316 612 339-4990 Fax 3/10/2010 Elk River Landfill - P30~C Work Plan Page 2 of 2 Vllaste Management recycles enough paper every year to save 41 miliian trees. gy not printing this email, you can help save even more. This email has been scanned for all viruses by the MessageLabs S1cyScan service. (http://www.messagelabs.eorn) 3/10/2010 revised solid waste zoning ~ Page 1 of 1 revised solid w~s~e z®ni~g Joanna C. Larson ~jlarsonC~wenck.com~ Sent: Thursday, March 11, 2010 10:54 AM To; Waiters, Debra [dwalters@wm.com] Cc: Stolz, Stephanie [SStolz@wm.com] Attachments: Solid Waste Zoning.pdf (8 MB) Deb, As we discussed this morning, attached is the current solid waste facility zoning area overlay unto the existing landfill features at the Elk River Landfill, showing the northern boundary at the City of Elk River limits. I will be in the office today until about 1:30 this afternoon and then available by cell phone if you need. Thanks, Joanna C. Larson, P.E. Wenck Assaciates, lnc. ~.80o Pioneer Creek Center PO Box 24g Maple Plain, MN 55359-049 X763) 479-4232 email: ilarson~wenck.com EXHIBIT 160 http://burnt 10/owa/?ae=Item&t=IPM.Note&id=RgAAAADj WtkhehFpQgRQCeIvInRG%2f~BwByHFUM... 3/11/2010 s t j ~ ~r r~~.f~ w ~~~• \, _ _ __ e ~ ~ ~y~ aeej avv~wv~w+arswr•+vav~sanrr:reuawxts+a'i r ~ ~,i s j, j ~ ~\~ ~ ~' 005 0 OSZ ... . ~y ~ ~ - -~ i a ~ ~~ t ~k ~ f ~~ ~ ya ~,.? tit ~ } r ?~ s ~ ~ k f ~~ F ~ * z 1d 1<L ~ - .,~" Ea a ~ '~ ,~ r 1 6 ~' ~ { i 7i~x s ~i.. ~ ~-y~ ~~ : ~s ~, ,~.. 4 { ~ ~ ~ d I ~ ~~ a J n S ~ '.- i - - ~=h r~'s~,. } .ice _ ~ mss' ~ '_ ~¢ c jc~ ~ ~ ro"... cf ~• ~ ~ z`• ~ ~: ~; k t ~ R~~+YtA f ~ i hP 1 ~ - _- - ~ r ^,-~ ~. [ yr~ ~Se . ,,. ,,. r 1}' =~ ~ .-cry.. s l ~ ~ ~ ~ 1 ~~ 41.s.~+°. ~ ~ ~ `fir k~,r - ~ s_ ~ " xY £, .~ ~ C~ ~ ~ f• ~ 'max ~„ ~~ ~,' i f l / t ~ t ~ s ",~ ~ k~4 4th ~ ~~ ~ ~l r t' ~r t ~ `, ~~~~ ~ t (~ ~+ v3~w' r ~ik 5ai~ ~ k `~ + l.~,r-'=' r °~ ~2`f X79- -•, ~ V~ l~~i ~:. T d ~~ ~ ~ ~ 2' ~ p~'Y I / - -l;. ~ f L ~ r ~ s ~ m ~wro ~ --rn--r>~ I.~.~~~ •.) -~~. Tom. .. _.. _ ,~ ~ ~ ~ ~" ~ .; ~ ~ } ~ .. ~ ir~~ ~~ I~ I gj r ~ ~7 u at' x F T ~ Y - /~ #A it ~ t '~~'" * /.~ .LYE , F i ~ st.~ r~ ,~ ~ •~ ~ ii - i;'rf~~.>`k ~ I t ~~ .af`ea"c ¢-~ 5'• ~. 1 ~ a 1 +' ~~ s ~, ~~ ~ ~ a '} , ~ ~' s I J ._ tt 1 s ct , !( , ~ j . l,.r~r..~ ~ ~ I ~~ tl~ ~- ~ ~~ fft Y~ 1 ~ f ,u4~ k ~': ,~'~ •~ ~ 1' ~ k - ~ i ~' .~.. ! ~L ~ is _ f'.~- `~' t SNeM Bu!mIF oW ~- _ ~s 7 ~w _~ ~ r f ts~ i f f r k AtgewWGd bA15tt3 - . - / ~ ~,. = '~ r - t ~ Bnoiuop 6UOSi~c3..;.::, _. ,. . ,. _,, .y ,. .: n ' 6~~~0 r. 3yw- } yR~~'S S; Al - S !~ ~ ~ 1.". tepepum811a'J ~ ~ ~k.. . weparna,Waaoa uoc~B~ ~...... eerobwuoz emeM gyros s°Y~< ~ Pu ~ ,~ ~ tt r ~.., `~rk~" n~ , tat 06/09/98 12;56 'x`4417425 CITY/ELK RIVER Debs~~ McDonald USA Waste Services, lr',c, 825 Easf 2nd Street L~li~e Earth, ]v1N 56013 RE: Llk River .Landfill, AppIxcatian for 1'eruut Ivlodificatic~z~ Dear 1V]s. IvlcDonald: Q}ooz The fol (Awing corrunents are a suaura-ary of the concerns and reclutzemcnts frvm the lvlinnesota Pollution Control Agency (N.tl'CA), Sherburne Cpun and the Cit of EIk River rc ardin Applicatia~ f~~r Permit n'lodi~ication, dated t~pri1 199. y g ~; Your 1. °l'hc final cavcr system s}xdll be designed aeeurding the ~zzutvt:ipal solid ~ttste (1VlS W) standuzds. 2. It is taoted that the liner and leauhate collection system kor the proposed deiliolition cell dues not meet design ar,d constructiUn standards for MS W and/or industrial. waste disposal sires. As a result, only demolition defaris and new eonstxuctxotz debris wilt be allowed f+ar disposal in the proposed axes. Sea Attachment A fnr dcfizutiQns of allowable waste ,materials. 3. A. liner system shall be t'equired for the deniolitian debris horizarttal expansion arc3 and shall b.e reg2tired to have a mi~umum ~i~. inclzas ~~fclly anti a 40 m.ii kle.Eible menlbraae liner_ Tlta clay shall have a ttxa~irnum pe~T1eAbility of 1U'~ cmisec, Scc Aitachnladnt I3 for nA/nG requirements for liner eonstruclxUt~. 4_ 'The 906,300 cubic yards of axe space capacity proposed far the praposecl deveInrment shall be catttttecl as a partiozx cf the 4,~'b,2t)(? cubic yarrds of "r~:serve caPs~Gity" for the site. 5, Tlaa plan Sheets shall be revised tc~ show the devalaptneut oC the site qtr two-year phases. Deveiupment clans siiall indicate the sequr:rice ot'ftlling tar each phase, access to rize working face and placement of final cover. The ecigineering repart shu[1 be revised to irzc:luds a narrative to describe haw each develripment phase will be filled, hc~w surface wK fee wilt lae matlaged and how vehicle aCcoss wilt be provided, ~ d. Tha Platt sheets Find engineering repart shall he revlsc;d to provide vehicle access f'or operation and m~untenance of the new lcachatC managetnent facilities, existing and future landitil gas (LFG) ~ extraction. systctn coiriponents acid rzaaintenanaa of final cover. 7. 7'he post-closure aperatioti and .enaialt~:nance perit~tl for the proposed developrrtent shall be modiFed to cover 30 ys;ars. EXIiI13IT 161 06/08/88 12:68 'i~`441742b CITY/EI.K RIVER X003 Page 2 June $, 1 g9S 8. "i~1e engineering report shall be modified to include procedures which will be used m protect tha batrter IayerunderlYing the dentcslitiatz debris during filling operations considering ilze physical chsracteristics of the waste 1ztateriai, 9. The plan sheets and cngitxeering report sha11 ba madi>F`ied to indicate the cttuztagement of LFCr condensate in a mannee consistent with that of N!S W ieachate. l t), ~'he stu•#'sce water nian~;emant plan shall be ittaditicd to tie ~ttio existing and future suriace water control features for closed pgrtions ~f the Lvest slvptr. Surface w.3ter poztding areas within tlt~:1311 area shall tic el,i,~,sted, ~~ design tiFsw~face wastx control structures shall Ue rnodifted to provide a CantttlU4us t1T.l3I C4Vtrr Sy5[zrtl. ! I. The pr4pct5ed leschate snanagemr:ne systenn shall be modified to eli,ninate pt~rential problems with operatic~rt and maintenance. Specifically, the letlchatc sump area and force main shall be designed to provide izostprotection, I?. ping! c©ver slapcs shall be cattslracted with a maximun14H:1V grade in accordance with approved plans. All Erausition areas where s:lopcs chattgc: gradt4 shall not e.cceed 4H:1 V, 17. "lhe leaehate collection Gild rtxt~nagement system sha11 be operated to maintain a ma.Yimum Head of one foot on the >7•~trrier Layer for the liner. l~. A'b0 toot buffer ar~~-~, shall U~ maintained bet~vecn the wa5le aird the propony line. if cornpliaaic~ bouztdary wells fire required bcyartd the pzoperty bourticlztry; a variance team the ~olitl Waste 1Vlanztgement Rules will be required. '!he May ~ 1, 199A technical meraorartdun~ prepaerd by Wenck Associates ~vhiah provides supplertaental tlosign in.forniation shall be incorporated into the modified plan sheets rind engineering report. Tftherca are any additional oomnxznts ar questions regarditlg this matter, please contest us. Sinceaely, Bill Acinstron~ Ntirmesota l'P~o'llution C;onLea! Agency Steve Rr~hll' City ot" F.lk River cc: .Iohn ICellzls, Elk River I,andfi11 Matthew Ledvina, Liesch ,Associates Jlm Simonet, ERecaTeeh IVl;idwest, rnc, >2od Ambrosie, Wettek Associates .r° t:~C~ ~~d' !., ~ ~-°' 1Jave'Luaas. -~ . Shcrbu~e'Caunty ~~ . ~.. l~brnnnelpr3g•~f1132iH1:i11t980603.dna OSA A5'IE June 17, 1998 Mr. Bill Armstrong, P.E. Minnesota Pollution Control Agency S00 Lafayette Road St. Paul, MN 55155 Mr, Dave Lucas. Sherburne County P.Q, Box 320 Elk River, MN 55330 Mr. Steve Rohlf City of Elk River P.O. Box 490 EIk River, MN 55330 RE: Ekk River Landfill -Request for Permit Modification ,Dear Gentlemen: 825 East Second Street 131ue Earth, Minnesota 56013 (5tl7) 526-2194 (btl7) 526-2195 FaK I am writing on behalf of Elk River Landfill to respond to your June 8, 19981etter which contained comments on the April 1998, Application for Permit Modification, submitted by Wenck Associates, Inc. All comments contained in the June 8, 19981etter, have been addressed in a revised Application for Petmit Modification, which was submitsed to your offices on June 9,1998. In addition, these comment responses, as addressed in the revised Permit Modifications, follow agreements reached in earlier telephone conversations and meetings where we were able to dlseuss your concerns. It is our understanding that ali items, with one exception nafed below, have been addressed in a manner which enables continued protection of the existing waste deposit and meets and exceeds regulatory requirements. Please refer to she revised Application for 1'errnit Modification, dated June 1998 foe detailed information. Comment #14 seems to reflect a misunderstanding. Comment #14 currently states the following: "A 200 foot buffer area shall be maintained between the waste and the property line. If compliance boundary welts are required beyond the property boundary, a variance from the solid Vlraste Management Rules will be required." From canversadons and meetings with the MpCA, we believe Comment #14 was meant to have said the following; "A 20d foot butler area shall be maintained between the waste and the property line, s~be~d the gr~p.~rty li_.„.__ ne if ad~tluate easeroerit(~~.,~re irLn,. ace. If compliance boundary wells are required beyond the property boundary, a variance from the Solid Waste Management Rules will be required:' We understand Dave Lucas discussed this comment with Ms. A.rny Hadiarus, MPCA . ~ Hydrogeologist, and she concurred with our interpretation. She indicated to Mr. Lucas she will forward a letter which will amend Comment #14 to reflect the above interpretation. Elk River Landfill is in discussions and is currently working with the adjacent northern property owner to acquire an easement beyond the property line. We are committed to obtaining this easement as part of the approval process for the proposed permit modification and believe this response satisfies the amended comment #ld. We appreciate your coordinated efforts an this project. Please call me with any questions. Sincerely, USA WASTE SERVICES, INC. Debra A, McDonald, P.E. cc: Itod Ambrosie, Wenck Associates Amy Hadiarus, MICA Terry Johnson, USA John Kellas, ERL Matt Ledvina, Liesch Jim Simonet, EnecoTech Midwest, Inc. Item #b .1. Memorandum TO: MA~'OR AND CITY COUNCIL FROM: STEPI~EN ROHLI+', BUILDING ANA ZONING ADMINISTRATOR .5 ~ DATE: MARCII 20, 2000 SUBJECT: RENEWAL OF CONDITIONAL USE PERMIT AND SOLID WASTE LICENSE TO OPERATE A SOLID WASTE FACILITY BY THE ELI. RIVER LANDFILL/P.H. CASE # CU 00-4 1. Request The Elk River Landfill is requesting approval for the renewal of their conditional use permit and solid waste license. The same issues are addressed in both the license and conditional use permit. 2. Attachments • Vicinity map. • Site map and "Explanation of Request" by the Elk River Landfill. • A memo from Matt Ledvina, City Environmental Consultant, dated, 2/21/00. • Solid Waste Facility License and Conditional Use Permit for the Landfill. Language that is proposed to be deleted has been underlined and language proposed to be added is in bold type. The legal description of the affected property is "Exhibit A" attached to the CUP. 3. Baclc~raund I The landfill started operation in 1972 on forty acres. Gravel deposits on the site were removed and the resulting hole was filled with solid waste. This original cell was unlined !i or had no means of recapturing leachate (rain water or run-off that is contaminated from ~ coming in contact with the waste). Regulation of the landfill was done only through Sherburne County and the Minnesota Pollution Control Agency (MPCA). In 1987, the city successfully negotiated with the owners of the landhll. They agreed to subject themselves to city regulation in return for being allowed to expand, The landfill site now consists of approximately 140 acres and the city has control of a solid waste license and conditional use permit on the operation. These permits are required to be renewed every four years. EXIIIBIT 162 13065 Orono Parkway m P.O. Box 490 • Blk River, MN 55330 • TDD & Phone: (612) 441-7420 ®Fax: (612) 441-7425 4. Review Ori~iYial contamination The city's major concern regarding the landfill was controlling the contamination generating from that original unlined cell prior to it leaving the boundaries of the site. Ground water in tills area is estimated to be moving approximately 50 feet per year laterally and the contamination 5 to 25 feet. The first step in the effort to mitigate the contamination was to define the geo-hydrology of the area. The glacial deposits and associated stratification of the soils in the area made this a time consuming and difficult task. This effort has been pretty much complete and remedial actions (clean-up) has begun. The current attempt at remedial action is using active gas venting (sucking the gases from the waste) to remove the volatile organic eampounds from the ground water also. The details of how this is to be accomplished, as well as a contingency plan if it does not work, are specified in the attached license and conditional use permit. Approval of cells 14 to 17 The landfill is divided into cells. Past city reviews included the approval of the cells through number 13. The Council typically approves the concept of the cells contingent on staff having the final approval of the construction details. Approval of cells 14 through 17, which are consistent with the long-range plan at the landfill, is part of this current request.- These cells, as are all of those that were constructed after the original cell, are designed with a liner and leachate collection system to control the escape of contaminates. The stipulation that staff has final approval of the construction details is contained in the license and conditional use permit. Bio-reactor (leachate recirculation) The landfill is proposing something a little experimental. with cells 14 through 17 called bio-reaction. Instead of the leachate being pumped out of the landfill and taken to a treatment facility, they are proposing to reintroduce it into the waste through a system of pipes. The benefits to the landfill are the waste will be more compressed, leaving them with more capacity, and they can avoid some of the cost for treating leachate. The benefit to the environment is a quicker decomposition, and consequently quicker stabilization, of the waste. There is a concern with the life expectancy of the liner under the waste. Speeding-up the decomposition process is a good thing. A number ofbio-reactor pilot projects have been tried in Minnesota so that MPCA can analyze the results. Because of problems, all but three of these have been ordered to cease. MPCA appears to be on top of this issue. Staff feels comfortable with MPCA making the final decision regarding bio-reaction. It appears unlikely that MPCA will approve leachate recirculation. 3 fa 1 slopes In Minnesota, landfill construction is typically done with 5 to 1 finished slopes (one foot of vertical fall in five feet horizontally). To increase their capacity, the landfill is proposing 3 to 1 slopes, Approval of the 3 to 1 slopes allows the Landfill to gain approximately 1,500,400 cubic yards of disposal area an the same footprint that is approved by the city's current permits. The concerns with these steeper slopes are erosion control and maintenance. MPCA will allow the Landfill to go to 3 to 1 slopes, if they meet the fallowing criteria: • Waste Management (the parent company) has to accept responsibility for long term maintenance at the landfill, not just Elk River Landfill, Inc. • An escrow account, not a letter of credit as is the current situation, has to be set up for post closure and contingency action. • Certain design criteria have to be met such as a minimum factor of safety regarding slope failure, using Geo-net to secuxe the slopes, and a maximum of 40 feet vertical tiers. So far the Landfill has not mot MPCA's criteria regarding 3 to 1 slopes. Again staff feels comfortable with MPCA making the final decision on this issue. Screettin~ A 200 foot buffer strip exists around the.Landfill, except to the north where the La,~ldfill extends out of the City Elk River into Livonia Township. The site map included with this memo shows the proposed finished contouurs of the landfill. The 200 foot buffer strip is denoted by a dashed line on the_site map. You will note that the proposed finished contours extend into the 200 foot buffer strip in several locations. This is necessary because of elevation changes. Staff is satisfied that the Landfill has done their best to n7inirnize the disruption of the buffer strip. Language dealing with the protection of the trees remaining in the buffer strip is included in the attached permits. The permits also reference a screening plan for the Landfill that was developed by Tim Edgeton, Sherburne County forester. End-use Staff is recommending that the Landfill develop an end-use plan for their facility that is required to be approved by the city. Is the Landfill to be a grassy vacant hill forever or is there some practical use fox this property in future? The proposed permits requires that the Landfill submits an end--use plan as part of their next renewal process in four years. Traffic Waste Management has greatly increased doe rate of waste delivery to the Landfill over previous owners. Access to the site is via U.S. Trunk Highway 169. This access has protected turn lanes and a southbound acceleration lane. Staff feels that traffic associated with this operation is adequately addressed. 5. Recommendation The FIanning Commission is recommending approval of the renewal of the Elk River Landfill's conditional use permit and solid waste facility license with tlxe changes to these documents proposed by staff. The major changes in the conditions contained in these documents include: + Bio-reactor (leachate recirculation) is approved contingent on approval by MPCA and Sherburne County. If this system is not functioning properly the city has the ability to stop the process and have the Landfill return to conventional waste disposal and leachate treatment. • Approval of cells 14 through 17 is contingent on city staff's review and approval of the construction details. • 3 to 1 slopes are approved contingent on approval by MPCA and Sherburne County. + An end-use plan is made part of the next renewal of the city's permits for the Landfill. If approved with 3 to 1 slopes, the Landfill will have approximately 8,500,000 cubic yards of remaining capacity, which staff estimates will last 10 to 15 years. ~~- '~ ~- ~_ ~ E I II I_I _ J ~~~ ~ ~I-~ _ ~~ N ~T i ~~,~ ~ ~ C gY 9~~~Ka 1~ µi`LS 1 i a~n - N CIA y~~f"~iL Y If ~Ib L .~ Explanation of Request Y'ermit rVlodification The Elk River Landfill, Ina. (ERL) is permitted by the 1dIPCA and also has a City of Elk River License and Conditional Use Permit. We have submitted a permit modification request, which improves the design of the facility and provides for a more efficient leachate collection system and more efficient use of the designated landfill footprint. Detailed information can be found in the permit modification engineering report and plans. In general the major design improvements include the conversion from gravity leachate collection lines which drained to the leachate storage tank, to leachate lines which drain to an internal sump pump from which leachate is pumped to storage tanks via a force main. The improved design does not include an increase in footprints, nor does it include an increase in the ultimate capacity of the facility. The design now incorporates an earth berm along the western and southern portion of the landfill footprint. The berm allows far more efficient use of landfill airspace and also allows for an increased visual screen along the western and southern sides of the facility. Because of the footprint required for the berm, the number of landfill cells decreases from 18 to 17. The modified design also changes the final cover slope from S:1's to 3:1's and includes the use of "benches" in the final contour plan and the use of a geonet drainage layer in the final cover system. The benched final contour plan is very similar to a farm field terrace system concept, which is often used to minimize erosion. The benches provide a break in surface water flow and also offer excellent access to the upper portions ofthe landfill. During review of the 3:1 slopes and the cover components, detailed engineering analysis, including slope stability review, surface water control and erosion control, was completed. Three to one slopes are successfully used at other landfill facilities across the nation. Please refer attached plan sheets for detailed information. Leachate xecirct~lation The second project under consideration is leachate recirculation. Currently leachate from the facility is trucked over 60 miles to the wastewater treatment plant in St. Paul. The leachate recirculation project proposes to treat leachate on-site through a series of perforated pipes laid in trenches at 30-foot height intervals within the active landfill cell. Leachate will be force mained into the pipes at timed intervals and allowed to saturate the waste. Recirculation of leachate at the facility provides a number of benefits, including elimination of reduction in tanker trucks hauling to off site treatment plant; a "cleanings" or filtering affect on the leachate; and, more importantly, the acceleration of decomposition of the waste deposit and rapid waste stabilization, The accelerated decomposition results in the production of more methane gas which can be utilized at the gas to energy plant located at the facility. Rapid stabilization of the waste minimizes the opportunity for long term adverse environmental impacts. Leachate Recirculation is being successfully completed at many landfills across the nation. .j., 1:. 1 .4'~ ,* .. 4 '~ N.4„•' .~t': ~ ), ~`M.. .. 4:eS .I•• ~: fi': . February 21, 2000 •~" . - ~ ... -- ,.. ~. - ~' Mr. Steve Rohif ~ ~ ~ . , - . City of Elk River • ~ ~ .' .93065 Orono Parkway ~ ~ - , •, • - . - ' Box 490 ~ ~ ~ _ ~ . ilk River, MN 55330 •_ ..: •. ~ .. . , . - . :. - ~ ~ ~ . . _ . -• ' RE; ' • Elk River t.andfiii-CUP and License AmendmentslRenewal ~ ,.._, . ' . ~ .. .. ~, :.. i.. ;:~,,;~ Dear Steve: ~ ... ~ . ~ ... .. _. - • " . . ~~. This Letter is sent to transmit my suggested modifications to the conditional use permit and the . license agreement for the Elk River Landfill (ERL). I have reviewed the specific language of the documents and have made my suggested modifications in ink on the respective pages. • • On page 4, of the license agreement the "Permit Application" is referenced.' The following ••~ 'comments have not• been resolved. 1 would recommend that the canditians identified as follows ~. be added to the licens®. . ' . ~ ~ ~ ~ ~ ~ •~ • =•1. Leachate:~Management System - No new tanks are proposed for storage ~af leachate generated-within the additional 44 acres (Cells 12a-97) of landfill expansion. The new laridfil( liner area. will be .entirely serviced by the .existing: ieachate~ station #3....Additional . leachate management~'arid sfoiage'facilities must ~be constructed, •as'.riecessary; 'such•.that • ~ . the leachate head does not exceeds a •maximum: of 12 inches for.'anjr Liner cell..;::: .... 2. ERL shall continue to monitor the leachate head on a weekly basis for all cells to demonstrate compliance with the maximum head levels allowed. The results shall be • • ~ submitted to the City on a quarteriy basis. - .. ~~ 3. The rationale for the landfill liner leak detection design shall be identified. The sampling and ~ ~ contingency action protocols for liner leaks shall be outlined in the Qperations Plan for the .. - site. ~ ~ :. -. 4. The quality of final cover soils and vegetation is critical to the implementation of final cover design which calls for steepened sldeslopes. The topsail specification for the final cover design and other finished grading construction .identifies that #opsoil comply with MNDOT 3877.28 standard specifications. The Construction Quality Assurance Program must be . amended to document compliance with topsoil sampling and testing for every 1000 cubic yards. .. . ~~ < 5, The proposed basegrade plan .indicates that there will be areas which, will require soli fill ' prior to construction of the liner system. ~ The engineering. report requires that •subgrade..fili soils be: compacted.to 95% standard proctor density (ASTM p698).; The Construction Quality _., ' i. {~V'f~®N~FYN ~P'i 14. RGJ®iI ~{VG LA~®iU~ ` ~ ~ ~ 9D0 Second Avenuo South MinneapnUm, MN 55402 ' .. phone 61a.339.475D fnz 612.359.4990. i Page 2 February 22, 2000 Assurance Program must be amended to document ~compiiance with the compaction specification to ensure the stability of the liner system. Compaction testing for subgrade fill must be conducted on a frequency of one per 10,000 square feet far each foot of soil placed. 6. Operation of the Active Gas Control System (AGCS) is currently being conducted by Power Strategies, inc. with the goal of optimizing power generation. The AGCS was originally implemented as a means of m(tigating migration of landfill gas and ongoing contamination of the groundwater in the unlined portion of the landfill. Operation of the AGCS must be managed by ERL personnel with the orig(nai goals of the AGCS system used as the primary conditions of operation. 7. ERL shall develop a current AGCS Operation and Monitoring Plan which is based on operating experience of the system and which takes into consideration the contractual arrangements with Power Strategies, 8. The vegetation within the 200 feet buffer area in the southeast, south and southwest areas of the site shall be maintained. ERL shall develop an inventory of "significant" trees. A HBuffer and Screening Plan" shall be developed by ER(r and approved by staff which identifies the foss of significant trees from the inventory and a proposal to mitigate tree Pass to maintain and enhance the screening of the landfi{i and operations. The plan shalt address the preservation of the buffer during construction, throughout the operational period of the landfill and through the final Dover construction. 9. The proposals for implementing three to one final cover sideslopes and leachate recirculation are conditionally approved pending MPCA approval. Please contact me if you have additional questions or comments. My phone number at ERG is 612-339-2316. Thank you. Sincerely, E vino me t I eso ces Group, L-LC Matthew I... l.edvina, P.E. Project Manager G:\Clients\Client A-I.iCity of Elk River\t_etters 2000\It000220.doc "'p';Q'6J#""Q~11000 ~~kY0 0012 ~31V0 - '91A'7'plQNl N3A1!! Ml3 aoi 03Wd3t1d trtr•I1r 1011 q/ H111 M1Wl plyl {IV I~IarawlrY oon-ulmn PwaM~hwwaaox ~igwla r gran ~ Y1053P87W'A!lYq~ 3t~18l13HS } I ~l!lOIN7 tl3ARl N13 I ~~U~ uw axnwi '~' filul urc K7i,A00Y1 +"0w 9 ~ e ~ lir~~ ~~ ~ ;~;. .z'+~v :: ~ ::' Oxnls~- I \ P{101 j ' ti."'r'~~T '' ±.•ff'JJ.„•~ -.- .. :,::.. F~~ Mr•e ~~~R~i ~ € f~ w~ ~ ..~fi:.. :'}' ~ ~ ~ ., '}~ A I i?•f ! , • ~' F. , • }}t 1. ~' tt`• ~soullx ..,,,. 7~I 3 ~j ':;~'7 ~ ~ . ~ ~ :::: ~~' i5; ~ ~ i:; ii;' , ~ ~1? ~ •b ~• tiP i~ i i 8 ~'~~~~ ~ !~ e * ~: 1 ~;~ . ~ bOMi N ~~~ ,i' ~ ~ ^ i ~ ~ ` ~ ~, ,.~ i~iii ^ ;r~; A' a ` ; ~' ~ .: r~la ~,. w ~ ~et1361:e Ilil W IQItW AAayor and City Council Steve Rohlf, Building and Zoning Administrator ~~ November 19, 2001 PAodii'ication fo Ef{c River Landfill's Conditional use Permit and Solid Waste License to Aufihorize a New Demolition Disposal Area and an Encroachment into an Existing Buffer Area/p.H. Case # CU O1 ~35 •.i Request The Elk River Landfill is requesting a modification to their existing conditional use permit (CUP) and solid waste facility license (most recent renewal of both was May, 2000) to allow them to dispose of demolition debris over the top of an existing mixed municipal solid waste (MSW) cell. This request necessitates a modification to their grading plan in the area of the proposed demolition debris cell. The modification includes changing the existing 5 to 1 slopes in this area to 3 to 1 slopes, which is consistent with the slopes to the south of the proposed demolition cell and encroaching on the buffer area adjacent to the City's Railroad Hiking Trail, The additional encroachment is due to the slopes and berms associated with the proposed demolition cell. The actual demolition debris will not be deposited any further into the buffer area than where the MSW is currently located. The property affected by this request is already zoned Solid Waste Facility Overlay District. Attachments - A vicinity map showing the location of the Elk River Landfill A A letter dated October 18, 2001, from Matt Ledvina, Environmental consultant for the City of Elk River. - The current Landfill CUP (the Landfill's Solid Waste Facility License was not provided because the language is the same as the CUP). - 'The following submittals from the Ells River Landfill: q A written explanation of their request provided by the Elk River Landfill, dated October 16, 2001. ® Final Cover Grades and surface Water Management, dated January, 2000, which shows the currently approved contours. ® Final Cover Grades, dated June 2001, which shows the proposed contours. • An aerial photo showing Final Cover Grades, dated October 2001. ® A colored version of Final Cover Grades, dated October, 2001. ® A Cross Section showing the proposed grade changes, dated October, 2001. • A landscape plan, dated November 1S, 2001. Review of Issues Specific to the Request A Shoreland District -For over a year, the Ellc River Landfill has struggled to gain approval of an expansion to their demolition debris disposal area in Livonia Township, which still has not been approved. One of the issues that surfaced with this request is that Sherburne County zoning requires landfill's to be located in industxial zones, Apparently, industrial uses are not allowed within the Shoreland District of a Natural Environment Lake under Minnesota Rule 6120.3200. Rice Lake, ad}acent to the west of the Landfill, is a Natural Environment Lake. The Shoreland District for a Natural Environment Lake is 1,000 feet from the ordinary high water mark, therefore, industrial uses are not allowed within 1,000 feet of Rice Lake. The property included in the Landfill's request in front of the City of Elk River also falls within the Shoreland District far Rice Lake. As defined by the city's Shoreland Management Ordinance (adopted from the state's Model Shoreland Ordinance) an industrial use is: "The use of land or building for the production,manufacture, zeaarehousin~ storage, ortransferofgoods, prodauxs, comnzoditie,~ orother wholesale items. " Landfilling does not necessarily fit this definition. Unlike Sherburne County, the City of Elk River does not require that landfills be located in industrial zones. The Legislature of Minnesota has delegated responsibilitytathc local governments of the state to regulate the subdivision, use and development of the shoreland of public waters (M.S. 462). The city previously zoned the Landfill's property to Solid Waste Facility Overlay Zoning District, in which landfills axe a condition use. Section 904.06 (2) (B) of the city's Shoreland Management Ordinance states: "All Permitted, Conditional andProhibited Usesasspecified by theapplicableunderlying Zoning District shall apply". ~~ The Sh1 `oreland Management Ordinance does not so much dictate what land uses go where, but rather how land uses affect the public water. The publication A 1istrict states; "Zoning controls regulate the location of underlying land uses. The shoreland standardsfocusprimarilyon themannerof useC.~ dimensionalstandards)toreduce thepotentially harmful effects on thepublicwdterofozc~r~raaceelingandpaorlyplanneddevelopmentofshoreland areas, to maintain property values, and to preserve the natural characteristics oftheshorelandand adjacent water areas ". Landfills are an interim use, similar to mining activities, which are allowec~~in the Shoreland District of a Natural Environmental Lalce. If done appropriately, in the long term the Landfill will be a grassy slope with no negative affect on Rice Lake. In addition to the normal seven standards for reviewing a conditional use permit found in Section 900.42 of the City of Elk River Code of Ordinances, the city needs to apply "Evaluation Critexia" for conditional uses found in 904.08 {7) of the city's Shoreland Management Ordinance, to ensure the protection of Rice Lake. Tt is staff's interpretation that the city does have the authority to determine the type of land uses in a Shoreland District and that a landfill can be considered. Dave Hills, Regional Hydrologist for the Minnesota Department of Natural Resources agrees with this interpretation. Y~ Technical Issues -Matt Ledvina's attached letter, dated October 18, 2001, addresses the adequacy of the Landfill's proposal on a technical level. The Landfill's proposed 3 to 1 slopes for the demolition area, which are consistent with the cells on either side of it. Other technical concerns, such as storm water management and protection of the cap over the existing MSW cell have been considered on a staff level. If this request is approved, the recommendations contained in Mr. Ledvina's letter should be made conditions of that approval. '~ - Screening and Buffering -Besides the interpretation of the Shoreland Management Ordinance, the mast critical issue involved in this request is screening and buffering. The disposal of demolition debris is not allowed by state rules within 50 feet of a property line and the disposal of municipal solid waste is not allowed within 200 feet. The city's permit is somewhat different in that it requires that a 200 foot buffer strip remain £ree of.the disposal of MSW, demolition debris and associated slopes and ber}ns. The purpose of this buffer is an attempt to preserve adjacent property values and natural amenities by taking advantage of natural screening and buffering. The city's buffer also leaves an area free of landfill activities so that things like monitoring wells can be placed on the landfill property. Through previous approvals, the Landfill has already been allowed to encroach on the 200 foot buffer adjacent to the location of this current request. The city's Railroad Hiking Trail is located to the west of the Landfill, where this expansion is proposed. Because of how close the historic waste fill limit is to the city's property in this location, the city has agreed to allow. monitoring wells on its property. Due to it being in the proximity to the Railroad Hiking Trail, the Park and Recreation Commission has been asked to comment on this request. They believe that it is critical for the Landfill to demonstrate that the hiking trail will be better screened after the work under this proposal is accomplished than it was before, since the advantage of distance from the proposal will be sacrificed. The Park and Recreation Commission did not review the actual screening plan proposed by the Landfill, but the attached landscaping plan does reflect the details recommended by the Planning Commission. Other Landfill Issues ,,, When a request is made to modify an existing CUP, all pertinent issues regarding the subject operation are up for consideration. The following are ongoing issues that the Landfill and staff have been dealing with since the last renewal of their permits: - Fires in existing demolition area -The Landfill first reported a hat spot (fire) in their existing demolition disposal area on the north side of their operation in the ' spring of 2000. Landfill fires can burn below the surface and, therefore, be difficult to squelch. This fire was smothered with earth and assumed out. A second fire, or possibly a flare up of the same one, sprang up in this demolition area this past summer. The introduction of oxygen due to mining recyclables in the demolition area may be one contributing reason for the fires. The Landfill has been required to install heat sensing probes to get an exact location of these fires to aid in suppressing them. Staff is not recommending adding conditions to the Landfill's Cup or License due to this issue. The existing language is adequate and it is a matter of enforcement. - Litter --Since their last renewal, the Landfill has received a Notice of Violation from the Minnesota Pollution Control Agency (MPCA) regarding daily cover last summer. Daily cover, a minimum of six iziches of soil placed over the days refuse, is required to keep the refuse from blowing away and becoming litter. This was an operational problem that was apparently corrected since. Tn addition to the daily cover, the Landfill is required to erect temporary fencing adjacent to active areas to control litter and they are to inspect all trucks leaving the facility to ensure they are free of debris prior to leaving their site. As a last resort to control litter, the Landfill's CUP and license requires that they engage in routine litter removal along Highway 169 for'/z mile on either side of their entrance and from other areas adversely affected a minimum of once per week. Even with these controls, litter is still the number one complaint received by the city concerning the Landfill. Staff is not recommending additional permit language regarding this issue. Again, it is a matter of enforcement. Staff recently requested that the Elk River Police Department step up patrols in this area and ticket trucks with leaky loads (debris blowing off of them). - Contamination -Controlling contamination fromthe original unlined cells prior to it leaving the Landfill site is the city's major concern. The active gas venting system installed at the Landfill is apparently doing some good in this regard. City staff will continue to monitor the situation to discern whether or not this remedial action is adequate. Two specific areas of contamination are of immediate concern. One is in the northeast corner of the Landfill where monitoring wells showed contamination extending close to the Landfill's property line. A change in the gas venting system in this area seems to have brought the contamination in this area under control. Contamination levels in the monitoring wells in this location are now below IV]PCA's intervention limits. The second area is on the west side of the Landfill where an apparently isolated ' plume of contamination is rapidly approaching the Landfill's property boundary. The Landfill is cooperating with staff to aggressively find a solution to neutralizing this contamination, Existing permit language is adequate to address the issue of contamination, therefore, staff is not recommending any changes. Safet - Due to the nature of landfill operations, safety is on ongoing issue. For example, the EIk River Landfill recently moved their scale house further back into their property to avoid waiting trucks stacking onto Highway 169. ~, Waste Management has recently suffered a number of fatalities at their facilities throughout the nation. This has prompted Waste Management to develop "New Disposal Area Safety Rules and Procedures". Fairly recently, there was an accident at the Landfill where a large truck with it's box high in the air dumping it's load tipped over on someone. This caused the city to add a section in the Landfill's license and Cj.JP titled, "Small-Load Dumping Site". This section requires separate areas for residents and commercial haulers to unload their garbage. The city's permits also contain language regarding safety equipment at the Landfill and training. Staff is not recommending that additional language be added to the Landfill's permits at this time, but will consider this again during their next renewal. 9 Al'ext Renewal -- Staff is recommending that this review does not replace the Landfill's next permit renewal, which is scheduled in May of 2004. Staff's main rationale for this is that the Landfill is required as part of their next renewal to develop an end use plan for their property. The Landfill is prematurely in front of the city due to their need for additional area to accommodate demolition debris disposal. They are not prepared at this time to address the issue of an end use plan. It behooves the city not to rush this process in the hopes of gaining a better product. - Leachate Recirculation Leachate, made up of mainly rainwater, is the contaminated liquid generated by landfills. The Landfill is proposing to collect this leachate in a series of pipes and recirculate it through the refuse, There are a couple of advantages to this process: ® Recirculating leachate makes a landfill a bioreactor. Adding liquid speeds up the decomposition of refuse verses the conventional practice of locking it up in a dry tomb. One major concern with landfills is the life expectancy of the liners underneath them, which keep leachate from entering the ground water below. Speeding up the decomposition time of refuse reduces this concern by neutralizing certain contaminates before the liner's usefulness is in question. ® Recirculating leachate causes refuse to settle more, allowing for more capacity on the same footprint. This consequently reduces the need for new landfill space. Differential settle at landfills is also a problem. After a landfill is closed you dan't want water setting on top of it and potentially creating more leachate. Leachate recirculation helps with getting this settlement over before a landfill is closed. Aside benefit to leachate recirculation is that it speeds up the production of landfill gas, making for more efficient energy recovery (the landfill gas is being converted tt~ electricity}, Sherburne County has already approved leachate recirculation at the Elk River Landfill. The city of Elk River also approved it as part of the Landfill's last renewal. This issue only awaits approval by the Minnesota Pollution Control Agency (MPCA) to be put into practice, which is anticipated prior to the next renewal of the Landfill's city permits. Criteria for Review Section 900.42 of the City Code of ®rdinances -The city shall recommend a conditional use permit and the Council shall order the issuance of such a permit only if it finds that such use at the proposed location: i. Will not endanger, injure or detrimentally affect the use and enjoyment of other property in the immediate vicinity or the public health, safety, morals, comfort, convenience or general welfare of the neighborhood or the City. ii. Will be consistent with the comprehensive plan. iii. Will not impede the z~,ormal and orderly development and improvement of surrounding vacant property. iv. Will be served adequately by and will not adversely affect essential public facilities and services including streets, police and fire protection, drainage, refuse disposal, water and sewer systems, parks and schools; and will not, i_n particular, create traffic congestion or interfez•ence with traffic on adjacent and neighboring public thoroughfares. v. Will not involve uses, activities, processes, materials, equipment and conditions of operation that will be detrimental to any persons or property because of excessive traffic, noise, smoke, fumes, glare, odors, dust or vibrations. vi. Will not result in the destruction, loss or damage of a natural, scenic or historic feature of major importance. vii. Will fully comply with all other requirements of the City's Code of Ordinances, including any applicable requirements and standards for the issuance of a license or permit to establish and operate the proposed use in the City of Ellc River. Section 904.08 (7) (A) of the cit~;'s Shareland Management Ordinance -The following additional evaluation criteria and conditions shall be considered in evaluating conditional use permit requests within shoreland areas and a thorough evaluation of the waterbody and the topographic, vegetation, and soils conditions on the site shall be made to ensure: i. the prevention of soil erasion or other possible pollution of public waters, both during and after construction: •. ii, the visibility of structures and other facilities as viewed from public waters is limited. iii. the site is adequate for water supply and on-site sewage treatment; and iv. the types, uses and numbers of watercraft that the project will generate are compatible in relation to the suitability of public waters to safely accommodate these watercraft. Findings/Recommendation MPCA has already approved the request by Elk River Landfill to add demolition debris over cell DC-3. Sherburne County has indicated that they will also approve this request, but are waiting for the City of Elk River to react to it. The Planning Commission found that the Landfill's request met the seven standards listed above for a conditional use permit and the four evaluation criteria list in the city's Shoreland Management Ordinance. Therefore, the City of Elk River Planning Commission is recommending approval of the modification to Elk River Landfill's Solid Waste Facility License and CLIP to allow demolition debris to be deposited over IVISW cell DC-3 under the following conditions: ~. 1. That this approval is conditioned on the recommendations contained in Matt Ledvina's letter, dated October 18, 2001. 2. That Sections 2.) (03) (b) of the Landfill's CUP and Solid Waste Facility License be amended to read: "The demolition debris landfill cell DC-3 shall be located and operated as shown on the June 2001 Permit Application and August 2001 revisions submitted by the Permittee with city staff approving and having the authority to make decisions on the technical issues involved." 3. That three rows of spruce with ten feet spacing between rows and ten feet spacing between trees in each row shall be planted on the city's property in areas adjacent to the proposed demolition cell where no trees currently exist. Other vegetation, such as bushes, shall be planted in these areas as proposed by Landfill. Further, that spruce shall be planted on the Landfill's property at the base of the slope along the entire length of the new demolition debris cell to help screen the operation during the winter. Lastly, that the Landfill provide the city a plan depicting these requirements, prior to the Elk River City Council acting on this request. 4. That this current amendment does not replace the Landfill's requirement to•.renew their Solid Waste Facility License and CUP in May of 2004. pZ 1zg y~ gIf .. '~ ~ sz}a, a(^y !~!/ ~ Z ~ ~ ~ D Q £F ~~ s~ ~ ~ $ t O ~ ~I ~~ ~1 ~I .~<( ~I ~~ ~I ! 3 F N m ~ >` XI b ~ d 7v S t9 ~` W Q U b' ! 7 i °o s a `~ ~ j ~ ~_ ~ ~~ ~ ~. i I I i I _II~ I ~ ~ ...........J-. ~..-.- 1 1 it I ~ t~ p a ~;I --~ ~ ~'`I i I'!, ' :: ,., :I'~/~ ~.~ ~.....~ ~... ..~.~ ~~ . .. ~~..~.... _...~ ~~f 119M NMI[ «...~ _ __ ..~. .~.. ~~. ~. 1 l~;; r~ ~Ilir ~ ~ ~~il ~~tiN~ ' 1 ~', y i . ! ! '1 `~~ E ' I ~, .. H i ~'' 1 ~ Epp i ... I 1 ~, I ~ , ~ .._. R ~ ~ ~ 1 ~ 1 ~ 1 ~ ! n 65 ~ 1 It i CK _ i i s' r ~ 11 ~. n 11 11 1 1 ~ 1`~ •`~ li ~ ~ \~I ' ~ Landmark Environmental LLC May 6, 2010 Ms. Rebecca Haug Environmental Administrator City of Elk River 13065 Orono Parkway Elk River, MN 55330 RE: Elk River Landfill -Request for CUP and License Amendment, February 2010 Dear Ms. Haug: Landmark Environmental has completed a review of the Elk River Landfill (ERL) -Request for CUP and Solid Waste Facility License Amendment project, as directed. The following comments were generated related to ordinance requirements and potential environmental concet7is associated with the proposed landfill expansion. The application expands the authorized. extent of the current landfill and proposes the placement of waste to the south property boundary. This design for the expansion (Cell 18) does not meet the establishment of a suitable buffer zone on the site, as required by City ordinance. The engineering plans for the request show that landfill facility features, uicluding the perimeter access road, soil berms and screening, are located offsite on the property located to the south. The engineering design for landfill expansion will require approval from the State of Minnesota for deviation from thew waste fill setback rule of 200 feet from the property boundary (MN Rules Part 7035.2815, Sub. 5. C.). Page 1-1 Back rg ound The application indicates that the site is 476.8 acres. The site, as indicated in the current CUP/License, is a subarea of the area indicated in the application. Page 2-4 Groundwater The expansion will require the abandonment of monitoring wells/piezometers 2090WA, 2130WA and P213B as part of the development for Cell 18 and this should be complete according to Minnesota Departtnent of Health Water Well Rules. Similarly, landfill gas monitoring probes GP23 and GP24 will require abandomnent and replacement and the Landfill Gas Monitoring Plan will need to be revised accorduigly. Given the construction of liner system up to the south property boundary, it is apparent that wells acid gas probes will be replaced offsite, on adjacent property south of the ERL. A revision to the current Phase N Water Quality Monitoring Work Plan will be required to address the replacement of monitoring welUpiezoteters 2090WA, 2130WA and P213B. ERL has installed numerous monitoring welUpiezometers outside of the current buffer area in order to investigate the nature and extent of contaminant migration associated with the historic unlined waste deposit. For the lined expansion of ERL, monitoring welUpiezometers and gas probes would typically be located within the 200-foot buffer area surrounding the waste deposit. Page 2-7 Proposed Landfill Design From an overall engineering standpoint, the design of the Cell 18 expansion area is feasible/acceptable. The south interior sideslope (a strong area of coticet•n) is proposed as a 3:1 grade, which is standard 2042 W. 981h Street Bloomington, Minnesota 55431 Phone: (952) 887-9601 Fax: (952) 887-9605 www.landmarkenv.com Ms Rebecca Haug May 6, 2010 Page 2 of 3 design. Basegrades are acceptably configured with sufficient vertical separation from the groundwater elevation based on historic monitoring data. The liner system and fmal cover system designs are acceptable and consistent with previous approvals. The design is hissing engineering and construction details related to the leachate management system and other features. The detailed engineeruig design report and construction plans must provide hydraulic calculations for Cell 18 ni relation to the existing leachate management infrastructure to demonstrate sufficient capacity for the added liver area. It is recommended that the CUP and License contain conditions requiring the submittal and staff approval of the detailed engineering reports and construction plans prior to Cell 18 construction. Page 3-6 Gradin /Dg raina~e Plan and Drainage Calculations The conceptual surface water drainage plan is generally acceptable; however modifications are necessary to meet standard landfill design guidelines. The application states that all of the storlnwater is controlled onsite, however, surface water drainage for approximately 4 acres of landfill slope is uncontrolled on the south side of Cell 18. Surface water is currently designed to sheet flow over the perimeter access road and then offsite to the properly to the south. Significant erosion is anticipated for the steep exterior berm slopes which are proposed at a 2:1 ratio. The perimeter access road needs to be redesigned to include an interior ditch with sufficient hydraulic capacity and erosion control protection. Surface water should be routed to Pond P2 or other provisions made if sufficient capacity for P2 is not available. An additional surface water pond may need to be established at an offsite location considering that no buffer is provided adjacent to the south fill limit of Cell 18. Page 3-9 Leachate and Gas Collection Systeln, pa eg_3-10 ERL proposes leachate recirculation for Cell 18. This operation will greatly increase the amount of landfill gas that will be generated from the landfill. The primary concerns relate to landfill gas collection and the prevention of fugitive gas emissions and odors. To provide additional LFG extraction capacity, the design must be modified to place horizontal LFG collection piping within the sand drainage layer at the east west ridge (high point) of the Cell 181iner system. The supplemental LFG collection piping must extend up the sideslopes to enable coluiection to the LFG extraction system and to enable cleanout maintenance. Temporary final cover is proposed as an element of the September 2008 "Leachate Recirculation Permit Application" proposal. The criteria for when an area would receive temporary final cover indicating the maximum length of time of inactive fill operations needs to be identified. Similarly, the maximum area allowed for• inactive fill areas prior to placing temporary final cover need to be identified by the applicant. Page 3-10 Construction Qualiy Assurance Reports ERL must prepare detailed record drawings/documents of the leachate recirculation drainfield construction, which are certified by arl engineer. The drawings will include survey measurements of the drauifield areas to document position within the cell, suitable base contours and piping elevations. All construction must be fully documented. This information is critical in potential problem resolution during later stages of landfill operation. Apuendix B Grading and Drainage Calculation The sedimentation basin design infarrnation for P2 indicates a total storage capacity of 8.7 ac-ft. From the plans submitted, the current capacity of P2 is approxunately 1 ac-ft or less. The design plans Ms Rebecca Haug May 6, 2010 Page 3 of 3 presented with the request do not show the construction of P2 and are not consistent with the calculations. Revised surface water calculations for P2 must be modified to include the appropriate portion of runoff from the area of uncontrolled drainage of the Cell 18 fuial cover slope (as indicated above). Please contact me if you have any questions or comments regarding my review of the ERL request for amendment of the License/CUP. Sincerely, mar n lr 1 ental, LLC ~. Matthew L. Ledvina, P.E. Project Engineer F:~PRQJECTS\CER-City of Elk River~2009-07.01\Corr\Letters 2010\1t100506Haug.doc C o~ BRIGGS May 11, 2010 VIA EMAIL 220C IDS Center as s<~~~tn srn Srra~t ~tilinneapoli; t~iN 5540 2157 tel 6 i ?.J77.8400 fax F12 a7?.t'3550 ~~' Il~~t? P~ ~~~ , Jacl Y. Perr}~ (612> »~-s~9~ jPerry(c~briggs.com City of Ellc River Planning Commission 1.3065 Orono Parkway Ell< River, MN 55330 ATTN: Dana Anderson (dra55330(u?yahoo.com) Paul I3e11 (Paul_Bell(ciprodigy.net) Troy Ives (tpivesta~charter.net) Ez•.ic Johnsozz (ericj 13~c.>Jcharter.net) Pete Lemke Kevin. Scott (kevin_scott(/charter.net) Chad Westberg (crw4383 ct hotmail.com) Re: Elk River Landfill, Int.'s 2/22/].0 CI1P/License amendment application for its 13-acre landfill expansion Dear Planning Commission Members: City Staffs 486-page "packet" raises three issues with ERL's requested CUP1License amendment application :for its proposed i 3-acre landf 11 expansion. These three issues underscore the need for the Planning Commission to carefully scrutinize the matter at band. A. CITY STAFF'S 'I'IFIRF.F., ISSUES City Staff's three issues are as follows: 1. City's environmental consultant Matt Ledvina opines that, though the expansion appears to be "feasible," some of MPCA's landfill permitting requirements have not yet been met. 2. The landfill expansion will remove the screening provided by the trees in the purported)}~ "undisturbed" 8.6-acre "buffer" area. 3. Landfill components will purportedly be located outside of the SWF Overlay District and onto the adjacent 109-acre SDA. Briggs and Morgan, Professional Association Minr~eapoiis I St Paul I ww4~~.briggs.corr t~Aember - Lex ;~'wnd~, a Globa! Association of Independent Laa~.~ Firms BRIGGS n,Nn MORGAN City of Falk River Planning Commission May 11, 2010 Page 2 B. CITY STAFF'S THREE ISSI?FS DO NOT STATE BASES FOR I)ENI,4L 1. Lechina's opinion fails to state a basis for denial To the extent that it is used as a basis for denial, Ledvina's opinion has three fatal problems. First, I.,edvina conspicuous)}~ fails to identify what City requurements are not met. He cannot; there are none. Second, Ledvina's opinion that ERL's plans need to be further developed to satisfy Ml'CA's requirements is t~•ue, but ERL's satisfaction of Ml'CA's requirements is between ERL and the agency. And, third, City can (and thus must) address Ledvina's concerns with 1RI.,'s compliance with MPCA's requirements through CUP conditions, ~.ZOt a denial. T'i°i.skr~ v. Citt~ of 1"Ijtrite Prxrlt, 566 N.W.2d 349, 357 (Minn. App.), re>>ieu~ denied (Minn. Sept. 25, 1997); L'eit USA, Inc. v. ,Sherbet°1Ze Crncnty, No. A08-0581, 2009 WL 605722, at *4 (Minn. App. Mar. 10, 2009), rc~vievv denied (Mann.. May 27, 2009). 2. City Staffs concern with the removal of the screening provided by the trees in the undisturbed 8.6-acre "buffer" area fails to state a basis for denial To the extent that it is used as a basis for denial, City Staffs concern with the removal of the screening provided by the trees in the undisturbed 8.6-acre "buffer" area has three fatal problems. First; the photographs, with site line diagrams, from MPCA's EIS tell a much different story than. that which is verbally described by City Staff.I See Ex, 169. "There is absolutely .nothing in the photographs which indicates how the "[r]emoval of the existing trees and buffer would have a substantial impact on the visibility of the Landfill, making landfill operations a City Staff describes the "buffer" area and its threatened impact as follows: The existing buffer consists of a mostly native, undisturbed area witih an elevated topographic terrain. "l'he existing terrain, which is covered by several hundred native, mature 11•ees, acts as a visual screen of the Landfill. if solid waste were to be deposited in this area, all of the existing trees would be removed and tl~e existing elevated terrain reduced and excavated to accommodate the deposit of solid waste. Removal of the existing, trees and buffer would have a substantial impact on the visibility of the Landfill inalcin~ landfill operations clearly visible from 2~ 1st Avenue azld potentially the residential areas to the west, for an extended period of time while the 13.7-acre existing buffer area is filled with solid waste and a new buffer is established to the south, on the adjoining property. 5/7/10 City Staff Report at 4 ~( (3) (emphasis added). BRIGGS ANA MORGAN City of Ell: River .Planning Commission May l 1, 201 {} Page 3 clearly visible ti•om 221. st Avenue and, potentially, the residential areas to the west, for an extended period of time." 5!7!10 City Staff Repoz•t at 4 ! (3). Rather, it is undisputed that the 13-acre landfill expansion would not: disturb the portion of the 8.6-acre "buffer" area which is within 200 feet of the railroad bed on the west and «•ithin 200 feet o:f I-lwy. 169 on the east. And the trees in the middle area of the "buffer" which will be affected by die landfill expansion would clearly not be screening either "221st Avenue," let alone the "residential areas to the west." At mast; the trees which will be "remov[ed]" from the middle area of the "buffer" provide screening to but a portion of the adjacent 109-acre SDA which is already (1) within the ME Overlay District, (2) permitted for mining and (3) substantially disturbed by mining activities. Second, any further destruction ofd the "buffer" area will be pursuant to "filler's mining operations therein, not ERL's proposed. landh_lling after the mining. City cannot in good faith ignore Tiller's contemporaneously submitted mining CUP application far the 8.6-acre "buffer" area, pazticzzl:~z-ly given that it has no legitimate basis to deny this mining application. And., third, City's concern with screening can (and thus must) be addressed by CUPiLicense conditions rattler than a denial.. 7'risko, Sfi61vT.W.2d at 357; I~eit US.9, Inc., 2009 VdL 605722; at *4. 3. City's concern with landfill components being purported located outside of the SWF Overlay District and into the adjacent 1.09-acre SDA is barred by C'ity's representations to the courts Statements in its previous pleadings are binding on City; and they are considered judicial admissions. See .Knud..sen v. titzited States, 254 1° .3d 747, 752 (8th Cir. 2001); Pnstscr°iiat Enters. v. Cin~ of Bridgetnn, 905 F.2d 223, 227-28 {8th Cir. 1990) (treating statements by parties made in briefs as judicial admission). City is otherwise bound by the representations of its counsel. .See Burner Ser~Jice & C'nmbu.stion Contrnls C'a. v. City of t1~linneapolis•, 312 Minn. 104, 113, 250 N.W.2d 224, 229 (1.977) (city bound by stipulation entered into by city att.orney); see alsn Link v. LT'ahash R.R. Cn., 370 U.S. 626, 633-34, reh'g a'er7ied, 371 tJ.S. 873 (1962). On April 28, 2010, City's counsel repeated the following same highlighted. representation three times to the Minnesota Court of Appeals: In this setting, the district court's declaz•ation that [ERL] "is entitled to proceed v,~ith its proposed expansion" appears to either [{1}] compel the City to legalize [ERL's] 2009 proposed expansion, or [(2}] prohibits the City from enforcing its la1vs against that expansion. 7'he parties agreed below that [ERL] needed to secure at least a rezoning of the SDA in order to lawfully use that area for landfilling. [ERL] applied not. just for a rezoning but also for a reguiding of the SDA., which the City and the MPCA in the EIS concluded was also required. The 6 R i G G 5 ANa M O R G A N City of Elk River Planning Commission May 11, 2010 Page 4 district court agreed ~~=ith the City in its Order and Order for Judgment that "an expansion of the landfill requi~•es a rezoning of the SDA to a solid ~~=aste facility overlay district," and that "the [comprehensive guide] Plan must be amended before [City] can decide ~~-hether to grant the rezoning. (Order and Order for Judgment at 25 (emphasis added).) Thus, be decreeing that [ERL] "is entitled to proceed with its proposed expansion," after recognizing that "the expansion of the landfill requires" a rezoning crJ2d that the guide plan must be amended before a rezoning decision, the district court's declaratory judgment has the same effect. as an injunction. Either [(] )] it requires the City to make the expansion la~s=ful by re~uidit~ the SDA and then rezoning it, or [(2)] it prohibits the City from enforcine the existing Guide Plan and Zoning ordinance against fERL'sl expansion. Because [ERL's] opening brief never mentions what the district court decreed, even when arguing that it is "nat a ruling of serious, perhaps irreparable consequence," [ERL] has provided no alternative interpretation of the declaratory judgment that does not, directly or indirectly, either [{ l )] compel t11e City to l~islatively amend its Guide Plan or7.,oning ordinance or [(2)] prohibit the City from enforcing its Guide Plan or Zoning ordinance against the proposed expansion. 4/28/10 Appeal City Opp. to Dis. Br. at 6-7 (bracketed infoi7nation and emphasis added; italics in original). In seeking a stay of the enforcement of the District Court's 4;2/10 Order as City understood its meaning (i. e., as a mandatory injunction), City's counsel repeated on May 3, 2010 this same representation to the District Court. 5/3/10 I'RL 1 City Stay Br. at 3-4. City's counsel's May 3, 2010 representation teas as follows: [1']he Court's declat•ation that [ERL] "is entitled to proceed ~s=ith its proposed expansion" appears to either [(1)] compel the City to legalize (F..,RL'sl 2009 proposed expansion, or [(2)] prohibits the City from enforcing its laws against that expansion. la'. at 3 {bracketed information and emphasis added). City's counsel added: Thus, by decreeing that [ERL] "is entitled to proceed with its proposed expansion," after recognizing that "the expansion of the landfill requires" a rezoning and that the guide plan must be amended before a rezoning decision, the Court's declaratory judgment either [(1)] requires the City to ~r~ake the expansion la~-ful by re uiding the SDA and then rezonin wit, or [(2)] it prohibits the City B R I G G S ANU M O R G A N City of Elk River Planning Commission Mav l 1..2010 Page 5 from enforcin;? the existing: Guide Plan and 7onin~ ordinance a~~ainst [ERL`s~2 proposed expansion. Icl. at 3-~ (bracketed information and emphasis added; italics in original.). Unless and until the District Court issues City's requested Minn. R. Civ. P. G2.03 stay, City must proceed with its ongoing permitting involving the landfill expansion consistent with its counsel's above representations -that is, that City is "compet[ed]" or "require[d]" by the 4/2110 Order to recognize that the SWF Overlay District has been extended to the adjacent 109-acre SDA. The May 7; 2010 Cite Staff report nevertheless maintains that the "Current Zoning" for the adjacent 1.09-acre SDA is "A1(ME)," not "A1(i'V1E)(SWF)" as is required by City's counsel's above judicial representations. if City changes its mind and now wishes, as reflected in the May 7, 20}0 City Staff report, to act as if'Cite is not "compet[ed]" or "require[d]" by the ~I2/10 Order to recognize t}.•rat the SV~~F Overlay District has been extended to the adjacent 109-acre SDA, then. it must inform both the Court of Appeals and the District Court of its new position. As the District Court instructed. City at the April 2, 2010 hearing on ERL 's Motion to Supplement the Record in ERL II, City "cannot have it both ways." And City must elect which way it's going to go on this issue before the scheduled 8:00 a.rn. May 19, 2010 stay hearing. .Properly scrutinized, ERL is entitled to the approvat of its requested Ct1P/License amendment for its 13-acre landf 11 expansion.. Alternatively, City should delay its decision until. the District Court issues its ERL 11 ruling and/or City addresses Tiller's pending February 22, 2010 mining C[IP application. ~:. .~ . e , J~'P%lcg Attachment cc: J. Baker (via email) B. Jeffry (via email) M. Ayers (via email) D. Walters (via email) S. Stolz (via email} J, Asmus (~~ia email) 250(9A6~~6 Sight Line Over Top of Berm Northbound Highway 169 _ `}' Figure 22 Visual impact Analysis Location 2 No Build f ~- existing Ground 11 CROSS 5~GTlC}N THROUGH SIGHT 1.4NE Sca le: 1 "-260' 3' ~ .+ N C7 [ ~, cs Yom, O { ~ f3: I ~ ~- ~ Photo Date: June 23, 2Q05 i ~ t > ~. ~ ~ ~ ~ ~ r r ~ i '° ~ ~ ~s~g~ ~, ~t2 q ~ s~ 'ft ~ ~ 3 ' ( 3 / ~ .4 l ` 'r .~ Akk a 3 -2- t o ?' ~ k~ d a~- t '~' ' ' % i I , x 5 a~ e f< F 2 ~~ 3 ~ ~ f I l I I VE 3 a ~ ~` t ~ ~ ~ I S ~ ~PY - ~k ~~ ~ ~ y X.1"k~ 4 Y ~ ~~ ~ ~ ~?'~' I ~ ~~ I y ~% z ~'~ 4.. ~~ ~ -~Y~ 1~ ~~~~ ~~ , ~ ~ ~ t I .~F ~~y~ ~ S d ~ ( I ~ XT fi~~~ 1 ~~ ~ ) ~, ~ r ~ r 'X ~l ~~~ ~y ~~~ ~ ~rw I CC ~ ~ JY~ ,~ ~- fj: -I ~7 v s r ~ ~ -~ ~ ~ E ~~ (fy cn ~ I ~ ~ m ~ .rz s ~ ~ r~ ~~ s~ ~ ~ ~~> ~ C ~ ~ ~ ` ~ o ~~ ~ ~ z r ~. I ~~ ~? nQ I ~ ~~a ~~~ f ~ ~ ~ ~ ~ ~ ~ o ~ i .-,. ~ ~ ~ ~ t ~' ti , ,~ ~ ~ ~ `~ I,;q~y ~ 'w ;. ~ ~ ~ € ~y' € 1n ~ I ~. ti] ~ 5. h, ~ ~ 4*~ ~ G1 ~~ `~~ ~t ~ k ~3 ~ ~ ~° 7a ~ _ ~ ~ •~p Fj s~o. ?` p ~' E, t ~ ~:dn (t ~~~ g ~ ~ T I ~~ ~ ~~ :. ~ ~ se N 1~~~ ~ ~ ~ ~ ~ i ~ Po ~ $1 , ~ rv ~ { v~ ~.f ~~ ~. ~ 4+9x _~ a ~ ~ ~ ~ ~ ~ ~ ~ ~ . ~ ~ ~ ~' w Ctl Eastbound lane 221 st, Ave. _ ..ti.- _______ -------------------~~ `MGCain Sight Line VIE~f FROM LOCRTION 5 LOOKING EAST l=figure 33 Visual Impact Analysis Location 5 No Suild CROSS SECT90N THRr~UGH SIGHT LINE `- Existing Gresund Scale: 1"=1GG' Eastbound Lane - ~ Sight Line Over Top of Berm 221 st. Ave. - ,.~- - - " Ti0(~, THROUGH SIGHT LINE ~ Existing Ground CRASS SEC s;.~s~: ~~=~oa• n a R c ~McCaln' VIEW FROM LOCATION 6 LOOKING NORTHEAST Figure 38 Visuai Impact Analysis Location 6 NO BUilCi T 4 ~ ^.{ c} ~ m Y ~. Photo Date: June 23. 20D5 n ~ ~, `3' ,q, ~, m t ~ ~ ~,. Jj S va2~ '~ ' ` fY ' A ' .r1 Pk> v'4~ pr . S '. 5 ~ ~j - ~ ..G Rro a P y~ ~, ~+ }~ 3 ~ 'N ,~ x ~ ~ tY E, s. ~ ~a ~~¢ ~ x~~ ~ ,~. a~tj ~ ~ } ~ " ~ i ~ ti "1~ t rs4 ~ i,. ~~}3, i{qy +raj ~ ,wm .y. "~ ~ °u y ~ ~ ~ Y - , "~' '`' t c -~~ 1 ~ ~' a" ~ ,. ,@ ~., X ~ # s ~ , a ° ~ ;f q,1 ~ , ak t ~ F ~ ~ b ~ ~ A Y5 I1I R ~ '~' ' K # ~'.~ a `+I ~ +r`A.~s3~ .3~~ 1 ~~T ¢vk y{a~?.gp* ,y~ ~~ I t,/ t ' ,~~ ~ ~ ~ i t O ~ ~ .~~ ` ~ r . ~ 4~ P ~yS ~~ ~ 3 ~ i' ' ~~ ~ 1 °f ~~ *, ~'' ' t am ' ~ d H ' ~ ~ LJ S $S>~% ~ &%~YSY ~ ~ t~ f + ~ '~ ~' '~ ~y. k4$-}`~~- S§~~5~'~ d g~„~a ~a ~"~4 &~ 3 4' ."2 S~"Y.£,~, $° ,+` •~ p~•~y _~ iF~ y ~^ a I?~/ S f { ' a { . 4 ~. F ~ ~ m ' ~ ~ . ~ ~ ~ ~ ~ ~ ' ~~~,~ E ~ cn yry , 3& are ~x~~ ~~ BS,~&' g3{ G7 ~1 e° i '$" ~5 E ff r ~ R' ' _f -.3 . S ' fi ti ~s~ ;~e k ~ s a ~ ~ , .. ~ ,g%,iyaaA ~ # 44 '~9 7r e ~ y~ ~ tt ~ # § $ k++~ t , y~ ~ ~ ,qv+ 1 ~ ~ ~ ~ ~~~1 ? ~~ n,~ ~:T L' ~ ~ ~ ~ ~... .,,}~ ~ y~.a~°`" ~.p a.~ ~ ~( 3~iR'~ Yu ilk i Y f t~°J d 3 g~ + ~ y §, Fa n. 'y~2, Ate` k I ' ' ' ~ ; '@ / ~ ~ . n a+~v,~3 .~ bnx ~ `~ S3i'" Y+ r~~ ~ r d fl~ k "f ~ S 4 ~• ~ P t 'P" ~~ y.,~t ~„ # ~ t ~ -- ~ Y k + ~ C ~ d}$F 3^ ~~ e T~'"y'~n 't~ £ ~ L, 9 r~ ~ ~ •~ ~P•' ~ I ~~~ t~ ~q~ ~ k a { ~~~ 1FL ~ .6 Y' X33 ~ ~`~ .R "`., kz" ~ Z ~ ~i `~ ~~ ~d~ y' s'm ~ `~.~ F ~ ~.,C ~ ~ ~ ~ ' sA ~, A., ~y, ~ ~ ~J ~ t ~s ~ ba of a ~ ~~,'. ~~+ - s~.M~{£t`~: +tb ~~ t ~& „7'. '`°6,~~~~~ #9 f i 1 ,. _ ~ x ~' in C ~y to o Z ~ ~ o a~.~~ tX~ =,; to -, ~ co~,rn ~~~ ~ n~ STATE OF MINNESOTA IN COURT OF APPEALS CASE NO. A10-689 Elk River Landfill, Inc., Respondent, v. City of Elk River, Minnesota, RESPONDENT ELK RIVER LANDFILL INC.'S REPLY MEMORANDUM OF LAW IN SUPPORT OF ITS RULE 127 MOTION TO DISMISS APPELLANT CITY OF ELK RIVER, MINNESOTA'S IMPROPER APPEAL Appellant. INTRODUCTION Per its 4/16/10 Statement of the Case at 2-3, City originally argued for this Court's jurisdiction based on the district court's 4/2/10 Order being a "final judgment" - i.e., under Rule 103.03(x). ERL thus moved to dismiss due to this Court's lack of jurisdiction under Rule 103.03(a). Beneath the din of City's barrage of personal attacks against ERL and its counsel, City quietly accepts the two key admissions from City's 4/16/10 Statement of the Case at 2-3 which underlie ERL's 4/21/10 Motion to Dismiss -namely, (1) "[t]he district court did not grant summary judgment for City or for [ERL] on [ERL's] contract claim" and (2) there was "no" "district court entry of a final partial judgment for immediate appeal pursuant to Minn. R. Civ. App. P. 104.01." Because of its silent concession, City was forced to oppose ERL`s motion to dismiss by adding an entirely new jurisdictional argument that was not included in its 4/16/10 Statement of the Case. Even though City's 4/16/10 Statement of the Case conspicuously omitted an mention of an "injunction" or "injunctive relief," let alone ~ citation to Rule 103.03(b)'s allowance for appeals "from an order which grants, refuses, dissolves or refuses to dissolve, an injunction," City now rests its appeal on Rule 103.03(b), arguing that "[t]he district court's declaratory judgment has the effect of an injunction." 4/28/10 City Opp. Br. at 1 {emphasis added). City's argument is expressly based on the district court's declaratory judgment pronouncement that "'[ERL] is entitled to proceed with its proposed landfill expansion."' Id. (quoting 4/2/10 Order at 32 ~ 3). The threshold problem for City's new jurisdictional argument is that the district court is not authorized under the Minnesota Declaratory Judgments Act to compel City's zoning approvals. And, as successfully argued by City, the district court dismissed ERL's mandamus claim for just such a mandatory injunction. 4/2/10 Order at 22-24, 32 ¶ 2. Regardless, this Court's jurisdiction has to be determined by what the district court actuall did do, not what City speculates "the district court appears to have believed," "likely believed" or "implies." 4/28/10 City Opp. Br. at 13, 11. City obviously wishes to forestall any more rulings from the district court. But, in order to avoid conferring jurisdiction by guesswork, City needs to follow the tried and true course in such situations of asking the district court for (1) a Rule 54.02 amendment to its ruling, (2} a Rule 115.11 request for reconsideration to clarify the order, or (3) some other appropriate relief. 2 ARGUMENT I. THERE WAS NO "EFFECT[IVE]" PERMANENT MANDATORY INJUNCTION A. The district court had no authority under ERL's declaratory judgment action to issue a permanent mandatory injunction "The declaratory judgments law was not designed to supplant other remedies well established and working satisfactorily." Farmers & Merchants Bank of Cochrane, Wis. v. Billstein, 204 Minn. 224, 227, 283 N.W. 138, 139 (1938) (citations omitted). Indeed declaratory judgment actions are statutorily limited. Under the Minnesota Declaratory Judgments Act, a district court is only empowered to declare parties' respective rights or status. Minn. Stat. § 555.01 provides that a district court "shall have power to declare rights, status, and other legal relations." (Emphasis added). Chapter 555 does not authorize a district court to compel a municipality to make a particular decision on a zoning request. The lack of any specific authorization in chapter 555 to compel a municipal zoning action means that, in order to obtain its desired relief, ERL would have to pursue two separate actions. In its first action, ERL would have to, as it has done, obtain from the district court a declaration that City's failure to approve of the expansion of the SWF Overlay District onto the adjacent 109-acre SDA was arbitrary. Then, in its second action, ERL would have to obtain from the district court either a mandamus order or a mandatory injunction compelling City to approve of the requested SWF Overlay District expansion. 3 The Minnesota Supreme Court addressed the analogous issue 40 years ago in deciding that a writ of mandamus to challenge a city zoning determination was appropriate because certiorari relief would not result in an order compelling the city to take the requested zoning action. See Curry v. Young, 285 Minn. 3 87, 394-96, 173 N.W.2d 410, 414 (1969). In Curry, the district court issued a writ of mandamus compelling the city to approve the applicant's request for a variance from the city's setback requirements. Id. at 388, 173 N.W.2d at 411. On appeal, the city argued that the mandamus relief was inappropriate because the applicant was required to proceed by certiorari. Id. at 392, 173 N.W.2d at 413. The Minnesota Supreme Court disagreed. The Court held that, because the issuance of a writ of certiorari -like the declaratory judgment ruling here -could not compel the city to grant the requested setback variance, mandamus relief was appropriate. The Court reasoned as follows: A review by certiorari mi ht lead to a decision that the city was wrong, but it would not provide the relief plaintiffs seek. An example of the evils that can exist in review by certiorari and the multiplicity of suits it creates is found in State ex rel. Spurck v. Civil Service Board, 226 Minn. 240, 32 N.W.2d 574. In that case...we held that mandamus is a proper remedy to compel an administrative agency to perform duties required under a decision in a case reviewed by certiorari. See, also, State ex rel. Jenkins v. Ernest, 197 Minn. 599, 600, 268 N.W. 208, 209, where we said: 'It is, of course, well settled that a writ of Mandamus brought against the proper appointing authority or authorities is the ~~ropriate remedy to compel reinstatement when an officer or appointee has been discharged; and if it is shown that his dismissal was in violation of the civil service laws he will be restored to his former position. '* * * Mandamus cannot be used for the purpose of reviewing the decision of an officer, board, or tribunal which acted within the jurisdiction conferred upon it by law. It can properly be issued only to compel the performance of a duty 4 which the law clearly and positively requires such officer, board or tribunal to perform.' These decisions are not always easy to reconcile, but in the present case it comes down to a question of whether plaintiffs have a right to the variance which they seek and to a building permit after such variance is granted. To compel plaintiffs to review the action of the city council by certiorari and then, if the right is found to exist, to enforce it by mandamus simply requires two actions where relief ought to be available in one. Under these circumstances we conclude that the rights of plaintiffs can be determined and enforced in this action, no matter what name we give to the proceeding. Id. at 395-96, 173 N.W.2d at 414-15 (emphasis added). As determined by the district court (4/2/10 Order at 22-24, 32 ¶ 2), the Supreme Court has now dictated that routine challenges to municipal zoning decisions are to be brought as a declaratory judgment action. Mendota Golf v. City of Mendota Heights, 708 N.W.2d 162, 179 (Minn. 2006). But the Supreme Court did not, in so doing, even arguably expand the relief available under declaratory judgment actions to allow a -- declaratory judgment ruling against a municipality on a zoning issue to compel the municipality's zoning approval. City cites no case law to the contrary. Accordingly, the district court simply had no authority to issue the purported "effect[ive]" permanent mandatory injunction. B. City successfully persuaded the district court to dismiss ERL's mandamus claim which sought lust such a permanent mandatory injunction Expressly aware that its declaratory judgment claim, "standing alone," could not compel City's zoning approvals, ERL also brought a mandamus claim. 12/8/09 ERL S.J. Opp. Br. at 9 ("[s]tanding alone, ERL's declaratory judgment action would not provide ERL with an alternate 'adequate remedy' to its requested mandamus relief'). But City 5 successfully argued to the district court for the dismissal of ERL's mandamus claim. 4/2/10 Order at 22-24, 32 ¶ 2.1 C. The district court did not intend to issue an "effectfivel" permanent mandatory iniunction With regard to the district court's declaratory judgment pronouncement that "[ERL] is entitled to proceed with its proposed landfill expansion" (4/2/10 Order at 32 ¶ 3), the most that City can say is "the effect of the [district] court's declaration is in many respects like the effect of an injunction." 4/28/10 City Opp. Br. at 4 (emphasis added). In support of this contention, City adds that "the district court's order for entry of judgment im lies that it did not see any need to say more about the contract claim in light of the relief granted." Id. at 12 (emphasis added); see also id. ("[ERL]'s list of unanswered rhetorical questions about the contract claim ignores the likely prospect that the district court did not attempt to answer them because the answers no longer mattered to that court, in light of the relief granted [ERL] on the declaratory judgment claim") (emphasis added). Stated otherwise, City argues that "[w]hat [ERL] forgets is that in this case, the district court spears to have believed that there was nothing further for it to decide -unlike courts that believe there is a need for further proceedings at the district court level, but want to authorize an appeal by adding the words required by Rule 54.02 to accomplish that result." Id. at 14 (emphasis added); see also id. ("[u]nder these ~ Based on the district court's declaratory judgment ruling in favor of ERL, ERL's mandamus (or mandatory injunction) claim would now be ripe. As it relates to mandamus, City would have to concede that such a mandamus petition would now be sufficiently "ministerial (i.e. involving no exercise of discretion)." 12/14/09 City S.J. Reply Br. at 8. 6 circumstances, the fact that the district court did not include those 'magic words' but ordered the entry of judgment anyway, is another reflection that the district court likel believed that its decision was final 'so far as the court issuing the order is concerned"') (emphasis added). There are, however, several aspects of the district court's order which lead to the exact opposite conclusion. Tellingly, the district court's purported issuance of permanent mandatory injunction under declaratory judgment would have, according to City, issued (1}without authority under ch. 555, (2) without briefing or oral argument on the issue, (3) without analysis of or ruling on any of the injunction factors, (4) without a bond, and (5) in contravention of its denial of ERL's related mandamus claim. And an injunction does not "automatic[ally]" follow from a declaratory judgment in the zoning context. See, e.g., Bosse v. City of OtterTail, No. A07-2248, 2008 WL 2889474, at *4 (Minn. App. July 29, 2008) (Attach. 4) ("permanent injunctive relief for a zoning-ordinance violation [determined per a declaratory judgment ruling] is not automatic and, like all claims for such relief, requires a showing that there is no adequate legal remedy and that an injunction is necessary to prevent great and irreparable injury"}. D. ERL's ost-decision communications with the Minnesota Pollution Control Agency do not support City's contention that the district court issued an "effect(ivel" permanent mandatory injunction Based on its improper submission of post-decision evidence (Clark Aff. Ex. B),Z City charges that the "efforts by fERLI to leave out the words of the declaratory judgment 2 E1ZL, objects to and hereby moves to strike this post-decision communication and all references thereto. This Court should disregard and strike City's extra-record evidence presented. See Fluoroware, Inc. v. Chubb Group of Ins. Cos., 545 N.W.2d 678, 684 7 in its brief to this Court, while treating them as banner headline in all other forums, demonstrates that the motion to dismiss is not well-founded." 4/28/10 City Opp. Br. at 11 (emphasis added); see also id. at 2 ("[werywhere but in this Court, [ERL] attributes great and immediate effect to the district court's declarations") (emphasis added); id. at 1- 2 ("[t]he declaration ... is never mentioned in [ERL)'s twelve-page brief to this Court, but its words are the centerpiece of attempts by [ERL], since the judgment was entered, to secure approval by the Minnesota Pollution Control Agency ('MPCA') of a permit far a 109-acre expansion") (emphasis added). Besides being a continuation from below of its irrelevant personal attacks on ERL and its counsel, City's accusations actually backfire. ERL was necessarily required in its initial motion to dismiss brief to base its challenge to this Court's jurisdiction over City's appeal on the bases for jurisdiction which were asserted by City in its 4/16/10 Statement of the Case at 1-3. To this end, ERL quoted much of City's jurisdictional statement, as well as City's answers to the jurisdictional questions in the Rule 133 form. 4/21/10 ERL Br. at 4-5. ERL did not address City's new Rule 103.03(b) basis for jurisdiction because Rule 103.03(b} and "injunction" or "injunctive relief' were "never mentioned" in City's 4/16/10 Statement of the Case, even though City describes its jurisdictional answer in its Statement of the Case as "an extensive answer to the question." 4/28/10 City Opp. Br. at 4 (emphasis added). (Minn. App. 1996) (striking material not presented to trial court); see also Minn. R. Civ. App. P. 110.01 ("The papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal in all cases"). But, to the extent that this Court disagrees with its objection, ERL submits its own extra-record communications with MPCA. See below and Attach. 5. 8 By its own logic, City's notable omission "demonstrates" that its opposition to ERL's "motion to dismiss is not well-founded." Id. at 11. City's argument otherwise inadvertently highlights ERL's laudable efforts to work cooperatively with the regulatory bodies. ERL has for over 18 months, if not longer, satisfied all of MPCA's requirements for its proposed landfill expansion. Yet, even though there is no rule barring it from proceeding with its MPCA permitting without local approvals, ERL voluntarily agreed to MPCA's staying of its public noticing of the State permit until ERL received some direction from the district court. Thus, for City to suggest that ERL was instead using the 4/2/10 Order "to secure approval by [MPCA]" is, at best, disingenuous.3 Worse yet for City, its argument also discloses its apparent complete disregard for its judicially-recognized "cooperat[ion]" obligation under the parties' 2003 Host Community Agreement (2003 HCA) by attempting to interfere with MPCA's permitting process for the landfill expansion. 4/2/10 Order at 20 ("[a]lthough the [2003] HCA does not necessarily mandate [City]'s approval of any expansion proposal, the consideration s City's attacks on ERL contravene the district court's findings of ERL's good citizenship and environmental stewardship, including MPCA's "support[]" for the landfill expansion. The district court found that, [a]t the hearing, [City's Environmental Administrator Rebecca] Haug stated that [ERL] is a ¢~od corporate citizen and that the landfill is a've environmentally sound and proactive facility.' [ERL] is also an ener~y partner with Ci -which has been the only city designated 'Energy City' by the Minnesota Environmental Initiative -and produces green power from the waste to residents. Specifically, [ERL] extracts methane and converts it to electricity for residential homes, and it plans to expand this operation if the landfill were to expand." 4/2/10 Order at 9, Finding 30 (emphasis added); id. at 27 (same). The district court added that MPCA, "the agency charged with examining environmental impacts [with the landfill expansion,] noted mitigating measures and essentiall su orted the landfill's ex ansion." Id. at 27 (emphasis added). 9 exchanged gives fERLI the reasonable expectation that fCityl will approve an application for e~ansion which complies with its legal requirements") (emphasis added); see also id. at 31 (City's "consideration in the [2003] HCA [is] to cooperate with [ERL)'s legal efforts to expand") (emphasis added). Upon being informed on April 8, 2010 of the 4/2/10 Order in favor of ERL against City (Clark Aff., Ex. B), MPCA sent to ERL the very next day a draft of the agency's proposed permit. Attach. 5 at 1. MPCA promised to publicly notice the proposed permit once it received ERL's comments on the draft permit. Id. ("[o]nce [MPCA] hear[s] back from [ERL], [MPCA] will schedule the public notice"). Then, days later and, not coincidentally, right after MPCA admittedly met with City officials, MPCA threatened to both (1) withhold its public noticing of ERL's proposed permit and (2) "revisit" ERL's certificate of need (CON) for its landfill expansion. Regardless of the merits of MPCA's threats, City's efforts to interfere directly contravene City's district court-recognized "cooperat[ion]" obligation.4 II. JUDICIAL ECONOMY AND THE INTERESTS OF JUSTICE SUPPORT DISMISSAL In response to City's argument that an immediate appeal was necessary to protect against the threat that ERL may commence landfilling activities within the adjacent 109- acre SDA, ERL correctly noted that "Rules 62 and 65 of the Minnesota Rules of Civil Procedure and Rule 108 of the Minnesota Rules of Appellate Procedure permit City to a The inapplicability of Rule 103.03(b) also defeats City's attempted reliance on Rule 103.04 to confer appellate jurisdiction. See City 4/28110 Opp. Br. at 11. Rule 103.04 permits this Court to exercise jurisdiction over "any other matter as the interest of justice may require" only "[o]n appeal from or review of an f appealable] order." (Emphasis added). Thus, by its plain terms, Rule 103.04 is not an independent basis for appellate jurisdiction but rather permits appellate review only when a valid appeal already exists. 10 seek a stay of, or an injunction prohibiting, enforcement of the 4/2110 Order pending further proceedings in either the district court or this Court once a full and final judgment is rendered." 4/21110 ERL Br. at 14. City responds by arguing that, "[b]y their own terms, however, Rule 62 and 108 will not apply if the Court dismisses the appeal. Therefore, they provide no 'safeguard' in that setting at all (and thus no reason to dismiss the appeal)." 4/28/10 City Opp. Br. at 10. City also suggests that Rule 65 is unavailable because it only "authoriz[es] an injunction which [ERL] must believe the district court would issue against itself." Id. at 11 (italics in original). Contrary to City's argument, Minn. R. Civ. P. 62 expressly provides potential protective measures for City short of a premature appeal. Rule 62.01 provides that "the court may stay the execution of or any proceedings to enforce a judgment pending the disposition of," among other things, a Rule 60 motion for relief from judgment or order. Moreover, Rule 62.06 provides that, "[w]hen a court has ordered a final judgment on some but not all of the claims presented in the action under the conditions stated in Rule 54.02, the court may stay enforcement of that judgment until the entering of a subsequent judgment or judgments and may prescribe such conditions as are necessary to secure the benefits thereof to the party in whose favor the judgment is entered provides." Likewise, Rule 65's injunction provisions are plainly available to City, if it can establish the requirements for an injunction. And, of course, the injunction would not be sought "against [the district court] itself." Rather it would be sought against ERL to prohibit 11 ERL from taking any actions in furtherance of or to enforce the 4/2/10 Order.5 The fact that City voluntarily chose not to seek relief under Rules 54.02, 60, 62 or 65 does not justify an unauthorized expansion of appellate jurisdiction over anon-appealable order. Regardless, any procedural issues are of City's own making and not a basis to expand this Court's jurisdiction. City was last asked in 1996 to make the necessary approvals for ERL's landfill expansion which was for 53.1 acres. Attach. 6 (Dist. Ct. file, ERL Ex. 45, Tab C). In 1996, City reviewed and issued the necessary approvals - i.e., {1) SWF Overlay District and (2) landfill CUP - at the same time. Id. City nevertheless elected to separately review ERL's March 30, 2009 joint SWF Overlay District and landfill CUP/license amendment applications. 4/16/10 City Stmt. of Case at 4. City likewise elected not to move the district court to consolidate the two resulting district court challenges to City's separate zoning denials - i. e., ERL I and ERL II. s Even if this appeal is dismissed and the district court fully adjudicates the remaining breach of contract claim or otherwise modifies its 4/2/10 Order to provide for proper appeal, there are sufficient built-in permitting and operational protections to ensure that there would be no landfilling into the adjacent 109-acre SDA before this Court's appeal would be final. 4/21/10 ERL Br. at 12-14. City thus argues instead that "when landfilling is likely to begin ignores the dramatic and disruptive effect on the landscape of steps that must precede the use of the area in dispute in this suit for landfilling. Those steps include cutting down the large mature trees currently serving as a buffer on the southern side of the landfill face, substantial grading and removal of earth to shape the land and install a liner prior to landfilling, and other steps that cannot be undone." 4/28/10 City Opp. Br. at 10 (italics in original). City's parade of horribles is wholly misguided. ERL cannot do anything without aCUP/license amendment, the application for which is pending before the district court. City also ignores the fact that the existing 137.4-acre landfill property and the adjacent 109-acre SDA are both within the Mineral Extraction (ME) Overlay District, with an existing or applied mining CUP on the entire property. The existing landfill property will thus be altered by the permitted mining long before, and regardless of, the landfill expansion project. 12 City now wants to use these separate proceedings to suggest that the ERL I appeal must proceed prematurely. In truth, City wants the ERL I appeal to go first because it has literally no defense for its CUP/license amendment denial in ERL II other than what was rejected by the district court's 4/2/10 Order. 4/28/10 City Opp. Br. at 9 ("the district court is destined to issue a ruling overturning the City's permitting and licensing decision"). More critically, City wants to proceed with its ERL I appeal prematurely so that it can at least try to decouple for this Court's review the district court's declaratory judgment ruling from its breach of contract ruling. City's thinly-veiled basis for doing so is its claim that the district court's declaratory judgment ruling is final and appealable while the district court's breach of contract ruling is not final and thus not appealable. Id. at 11 ("rather than having an administrative panel decide whether the interests of justice require consideration of the district court's contract-related analysis, that question should be left for the panel hearing the merits to decide in the first instance"). But these two claims cannot be so simplistically separated. Rather they are in the district court's 4/2/10 Order implicitly and explicitly intertwined. Implicitly, because the district court "conclu[ded]" that City's "reasons to deny" ERL's requested expansion of the SWF Overlay District were "without a rational basis" and "order[ed]" that ERL "is entitled to proceed with its proposed landfill expansion" (4/2/10 Order at 21 and 32 ¶ 3), City clearly failed to comply with its judicially-determined "cooperat[ion]" obligation. Indeed, rather than even try to argue that it complied with its judicially-determined "cooperat[ion]" obligation within the 2003 HCA, City instead unsuccessfully argued to the district court that the "cooperat[ion]" 13 obligation is (1) unenforceable as a mere "recital" (id. at 19-20), (2) invalid as a restriction on prospective zoning authority which was not in clear and unmistakable language (id. at 20 n.14), and (3) otherwise inapplicable to any landfill expansion outside of the existing 137.4-acre landfill property - i.e., within the SDA (id. at 20 n.15). And, explicitly, the district court's declaratory judgment ruling relied, as follows, on City's failure to comply with its "cooperat[ion]" obligation: Finally, the record is clear that several years before the application, [City] was aware of [ERL's] intent to expand the landfill. The landfill's borders also show that within the city of Elk River, it can only expand south. It thus should have been no surprise to [City] when [ERL] began the process to expand into the SDA. Yet despite this knowledge and despite [City'sl consideration in the HCA to cooperate with [ERL'sl legal efforts to expand, the City Council expressed concerns about the location of the proposed expansion and the negative image the landfill supposedly projects upon the city. Furthermore, even with the several years' notice that the landfill will soon reach capacity, it appears that (City] has not made any effort to develop an alternative plan for waste. All of these facts weigh against the rationality of the city's decision. Id. at 31 (emphasis added). Moreover, as discussed on page 3-4 of ERL's initial motion to dismiss, this Court ruled just last year that the local zoning body, let alone the reviewing court, needs to "consider" its contractual obligations to the applicant when determining whether to approve of the zoning request. Veit USA, Inc. v. Sherburne County, No. A08-0581, 2009 WL 605722, at *6 (Minn. App.), review denied (Minn. May 27, 2009} (Attach. 1). Indeed this Court reversed and remanded as "arbitrary" the zoning denial because the 14 local zoning body "did not consider the [parties'] 2002 stipulation" and "ignored the clear purpose of the stipulation." Id. (emphasis added).6 City's final two strawman arguments merit no more response than that the purported arguments attributable to ERL were simply not made. First, ERL nowhere argued or even suggested in its opening brief (or, for that matter, anywhere below} that it sought, as alleged by City, "to receive both the declaratory judgment issued and contract damages." 4/28/10 City Opp. Br. at 13 (emphasis in original). And, second, with regard to the district court's breach of contract ruling in favor of ERL, ERL, not surprisingly, expressed no "substantive disagreement with the district court's decision." Id. Rather City concedes "the list of unanswered rhetorical questions about the contract claim ...that the district court did not attempt to answer." Id. at 12. And, given that it concluded in the present tense that "ERL's causes of action for breach of contract is a cognizable claim" (4/2/10 Order at 20) and held that it "remains a viable claim" (id. at 32 ¶ 2), it is, contrary to City's conjecture, incomprehensible that the district court was done with its analysis of ERL's breach of contract claim. Moreover, despite City's arguments for an effective mootness bar to a final ruling on ERL's breach of contract claim, City never made and the district court never adopted a mootness bar. 6 Unable to distinguish the relevance of this Court's analysis in Veit USA, City is stuck arguing that Veit USA is totally irrelevant because (1) it is an unpublished decision and (2) it dealt with a quasi judicial CUP. City Opp. Br. at 13 n.26. The fact that the decision is unpublished simply reflects that the decision was made based on and did not change the already settled law. And this Court was not just addressing a mining CUP. Rather its ruling was expressly cognizant that the "central issue" with the mining operation was that it was to be "restor[ed]" as a 200-acre "C&D landfill" which needed "a rezone." Veit USA, Inc., 2009 WL 605722, at *4. In other words, there is no good faith basis to distinguish these two highly analogous cases. 15 CONCLUSION Neither City's original basis nor its new basis for arguing for this Court's jurisdiction have been met. Rule 103.03(a)'s requirements that the appeal be from either (1) a final disposition on all claims or (2) a Rule 54.02 ruling have clearly not been met. And Rule 103.03(b)'s requirement that the appeal be from an "injunction" order, though less clear, has also not been met. Before this appeal can be properly reviewed by this Court, City must ask the district court to amend its order to comport with the ~: requirements of either Rule 103.03(a) or 103.03(b), or both. ERL respectfully submits ,. that this is the only way of avoiding the parties' (or this Court's) speculation as to what the district court's order did or intended to do. The stakes at issue are way too high for the appeal to proceed on the mindreading of the district court, particularly when that court has not yet been asked to clear up the confusion. DATED: Apri130, 2010 BRIGGS AND MORGAN, P.A. Jac .Perry (#209272 Jason R. Asmus (#319405) 2200 IDS Center Minneapolis, MN 55402 (612) 977-8400 ATTORNEYS FOR RESPONDENT ELK RIVER LANDFILL INC. 2503334v7 16