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But what if the local governmental unit does not look out for the public interest? Who looks out for the public good then? . . . “This is just a flagrant violation…(the landowner) went ahead and did the diking and the city never said “boo”.” . . . Someone has to protect the public’s interest -- and we’re hoping that will be you, Governor Ventura.
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State of Minnesota 130 State Capitol Saint Paul, MN 55155
January 22, 2001 RE: Who Will Protect the Public? Dear Governor Ventura, The Public could rationally assume that the governmental unit closest to a problem should be the party to look out for and protect the public interest. But what if the local governmental unit does not look out for the public interest? Who looks out for the public good then? On December 1st, 2000, the Department of Natural Resources (DNR) wrote a letter to the City of Burnsville admonishing it for failure to enforce its own floodplain regulations on the Richard McGowan property. (This property is the same property proposed for construction of the Black Dog amphitheater.) The City responded to the DNR by saying that, for the present time, they will not force Richard McGowan to comply with Burnsville’s Floodplain Ordinance. Is this failure to enforce regulations an isolated instance or a recurring pattern of Burnsville’s selective enforcement or non-enforcement of its laws and regulations? A quick history lesson. In 1969, the Minnesota Pollution Control Agency licensed the McGowan property as a sanitary landfill for non-hazardous wastes. As part of the permit, the City of Burnsville agreed to inspect the Freeway Sanitary Landfill 75 times. Burnsville’s own records show that they did not inspect the landfill, not even once. In addition to the main MPCA “permitted” landfill, there are vast quantities of garbage, demolition materials and other potentially toxic wastes that were deposited on the floodplain in a “non-permitted” portion of the McGowan property, just feet away from the Minnesota River. A portion of the $24,000,000 that the taxpayers are going to spend cleaning up this mess relates to this illegally deposited waste. This potentially criminal action has been known by, and ignored by, the city of Burnsville for years." The lack of inspections, combined with landfill operator McGowan’s acceptance of hazardous materials (heavy metal, acids, and bases) into the landfill, caused the landfill to pollute the groundwater beneath and in the vicinity of the landfill. Much of this pollution ends up in the Minnesota River. The landfill is still listed as a U. S. EPA’s Superfund site -- one of the most toxic and dangerous sites in our state and the nation. In the early ‘90s, McGowan raised a dike along the Minnesota River to protect his quarry and Freeway Landfill from flooding. This dike work was done without the mandatory Federal or State permits and with total disregard for its potential flooding impacts on upstream areas. In 1993, a City of Burnsville employee wrote a memo alerting city officials to these violations (name and memo furnished on request). Not only did city officials ignore these potentially criminal actions for 7 years, but they continued to watch as McGowan built the dike 10 feet higher and filled in even more wetlands. In a May 31, 2000 letter to the City of Burnsville, the U. S. Army Corps of Engineers found “repeated violations of the Clean Water Act since 1994” on the McGowan property. Despite this warning, Burnsville continued to ignore its own environmental rules on the McGowan property. A representative of the Lower Minnesota River Watershed District characterizes the City’s failure this way: “This is just a flagrant violation…(the landowner) went ahead and did the diking and the city never said “boo”.” Back in 1990, the City and McGowan reached agreement for the construction of the Hennepin County Waste Transfer Station on the McGowan property. The DNR’s letter states, “The lowest floor of the (Waste Transfer) structure…is well below the Regulatory Flood Protection Elevation (RFPE) also, the structure is not flood proofed in accordance with the State Building Code…. It is our understanding that the construction of the (Waste Transfer) facility and the associated floodplain fill was not performed under the city’s Conditional Use Permit process.” We now know that this second dike protecting the Waste Transfer Station consists of garbage that is covered by dirt. This dike violates Federal, State and Burnsville rules. Again, the City ignored its own environmental rules and allowed Mr. McGowan to construct and operate this facility. It seems readily apparent that the City of Burnsville is not able or willing to enforce its own laws and regulations on the McGowan property. If Burnsville cannot police itself, who then will hold Burnsville responsible for their malfeasance? It won’t be the Minnesota Pollution Control Agency [MPCA]. The MPCA is supposed to be the ultimate government unit responsible for protecting the public’s interest in our environment. However, it also stood by while McGowan’s “sanitary” landfill became one of the nation’s worst toxic Superfund sites. On November 3, 2000, the MPCA signed a “Closure Agreement” with Burnsville and McGowan, which -- among other things -- included lending Burnsville $2,463,000.00 to help build a parking lot for an amphitheater. This sweetheart loan is for 30 years at 4.5 percent interest with no collateral other than the revenues from an unbuilt amphitheater. It’s this loan and other MPCA assistance which would allow McGowan’s controversial amphitheater to be built. Question: Does the MPCA have the legal authority to make this loan for this purpose? Does the “Closure Agreement” start the badly needed clean up of this Superfund Site? The answer is no, because the “Closure Agreement” has been put into “escrow” for up to 2 years. Then, if the contingencies in the escrow are not met, the ”Closure Agreement” expires, with no further plans to clean up this toxic dump. We have written Karen Studders, Commissioner for the MPCA, to ask her to explain to us why the MPCA has acted as it has, but we have not received an answer from her. Whatever the reason, we now know that Burnsville can’t or won’t enforce its own environmental laws and regulations. The MPCA has also failed us. Perhaps it’s time for the Governor’s Office to step in and do the job that the City and the MPCA has failed to do. Someone has to protect the public’s interest -- and we’re hoping that will be you, Governor Ventura. Signed, Edward Kulak Bernard Mischel
Burnsville citizens CC: Minnesota State House of Representatives,
All Members
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