Minnesota's Landfill Cleanup Program: A New Superfund Paradigm

replaced the usual Superfund scenario for a typical, municipal solid waste (MSW) landfill. That scenario includes multiple responsible parties, including local governments; "hazardous substance" evidence that is weak or non-existent; a recalcitrant or bankrupt owner-operator; resource-intensive cost allocation disputes; multimillion dollar remedies; involvement of the U.S. Environmental Protection Agency, U.S. Department of Justice and state authorities; insurance coverage litigation; unknown future liability; and dim cost-recovery prospects. A different outcome for this same MSW landfill may include no responsible party search, allocation disputes or cost-recovery litigation; no evidentiary or proof issues; cleanup of the landfill despite the financial status of the owner-operator; presumptive remedies (no resources spent on remedial investigation/feasibility study (RI/FS)); costs of cleanup borne by the public and/or insurance carriers; no EPA or DOJ overfiling or oversight; potential responsible party (PRP) future liability assumed and relieved by the state; insurance coverage "buy out"; and PRPs' environmental response costs reimbursed by the state. The Minnesota Landfill Cleanup Program (LCP) seeks to accomplish the second outcome based on a "public works" approach to cleanup instead of Superfund's enforcement-driven approach. Under the program, the state will remediate certain landfills and reimburse private parties who have contributed to landfill cleanup. State funding is to be derived from capital bonds, waste disposal fees and a state-led "buy out" of insurance policies issued on landfills. How does this new program work? How does the current implementation of the program measure up to the promises and expectations? Can or should the LCP serve as a model for national Superfund reform, or reform in other states? This article focuses on these inquiries. The LCP was enacted on May 10, 1994, Minn. Stat. §§ 115B.39-115B.46, and includes three basic components from the PRP's perspective: (1) issuance of a notice of compliance; (2) reimbursement of environmental response costs; and (3) the source of funding. The LCP applies only to "qualified facilities," which are defined as solid waste landfills that were permitted