Ramsey-Washington Project BoardSeptember 25, 2014

1

Waste Delivery & Project Governance Issues

Sara Bergan • Kevin Johnson

Stoel Rives LLP

Ramsey-Washington Project Board • September 25, 2014

Ramsey-Washington Project BoardSeptember 25, 2014

2

Metro Waste Processing Statute

• Minn. Stat. § 473.848 – Restricts disposal of unprocessed Mixed Municipal Solid

Waste (MMSW) unless it has been certified as unprocessible

• MPCA’s 2011 Revised Policy Plan – Maximize use of existing resource recovery facilities – Begin enforcing §473.848– Criteria for determining when MMSW unprocessible

• 2012 MPCA Report to Legislature on § 473.848– Landfills not in compliance with restriction on disposal– Proposes amending landfill permits to restrict landfills from

accepting unprocessed metropolitan MMSW

Ramsey-Washington Project BoardSeptember 25, 2014

3

Metro Statute Litigation

• 8.16.13: WM Petition for Declaratory Order Prohibiting MPCA Enforcement

• 12.20.13: ALJ Dismisses Petition– Determines MPCA strategy is a rule but is

exempt from rulemaking procedure– MPCA Policy Plan is exempt from rulemaking– MPCA action merely enforces § 473.848

• 8.11.14: Court of Appeals Affirms ALJ• 9.10.14: WM Petitions MN Supreme Court• 11.10.14: Supreme Court Deadline to

Grant or Deny

Ramsey-Washington Project BoardSeptember 25, 2014

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Implications of Enforcement

• How Could Enforcement Impact the Newport RDF Facility? – Would Appear to Have Potential to Increase MMSW Delivered – However, MPCA to Enforce Only at MN Landfills

• Ramsey-Washington: ~80,000 tons MMSW Landfilled– 36,000 (Advanced: Eau Claire, WI Facility)– 22,000 (WM: Elk River and Spruce Ridge Facilities in MN)– 22,000 (Republic: Pine Bend Facility in MN)– Current Out-of-State Landfilling Could Continue– Potential to Increase Out-of-State Landfilling Depending Upon

Waste Management and Republic Response

• What’s Next?

Ramsey-Washington Project BoardSeptember 25, 2014

5

Waste Designation Benefits

• Capture 80,000 Tons MMSW Currently Landfilled• More Focused, Predictable Long Range Planning• Mitigate Risks of Private Sector Ownership Changes• More Transparent Financing of Waste Management

Services• Potential for Increased Waste Reduction & Recycling• Other Environmental Benefits of More Robust System,

Such as Greenhouse Gas Reduction

Ramsey-Washington Project BoardSeptember 25, 2014

6

Waste Designation Costs

• Cost and Risk of Public Ownership & Operation• Potential Route Adjustments for Haulers• Landfills Currently Receiving Waste Will Be

Impacted• Hauler Opposition and Potential Legal

Challenges

Ramsey-Washington Project BoardSeptember 25, 2014

7

Ramsey-Washington Project BoardSeptember 25, 2014

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Waste Designation Process

• Considerations:– Joint Designation Plan– Designated Service Areas– Wastes Subject to Designation– Designated Facilities/System– Consistent MPCA Policy Plan, Master Plans and

Designation Plan– Potential Continued Use of Hauler Agreements

Ramsey-Washington Project BoardSeptember 25, 2014

9

Governance Options

Two Primary Options: • Joint Powers Board (Minn. Stat. § 471.59)

– Ramsey-Washington is currently utilizing

• Waste Management District (Minn. Stat. § 115A.62-.72)– Entirely new undertaking; Statute not yet used– MPCA has not promulgated required rules

Ramsey-Washington Project BoardSeptember 25, 2014

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Governance OptionsJoint Powers District

Formation Known, Low Risk, Opportunity to Revise

Complex and Time Consuming; Higher Risk

Organization Characteristics County Board Involvement Mandatory

Separate and Distinct Governmental Entity; Pros and Cons

Powers Counties Can Delegate Powers Held in Common and Subsequently Modify

Once Power is Ceded to District Would Be Difficult to Retrieve

Revenue & Debt Authority Counties Can Delegate Bonding and Service Charge Authorities

Similar

Employment Likely Involve County Employment System

Employees Directly Employed by District

Liability Liabilities of Joint Powers Board Could Reach Back To Counties

Liability Resides with District