“Two Cats Have Died, and I’m Not Feeling So Good Myself”* Origins of Minnesota’s State Superfund Law Stephen J. Lee Valley of the Drums near Louisville, St. Louis Park wells from the Reilly Kentucky; and Times Beach, Missouri, Tar and Chemical plant; solvents n 1962, Rachel Carson’s hit the national news.1 found in Woodbury wells; birds groundbreaking book Silent In Minnesota, a dramatic mired in tar pits at an abandoned Spring exposed the devastat- example took place on July 4, 1973, Duluth refinery. These and scores of ing effects of the pesticide when 3,000 barrels of chemical other landfills, dumps, and industrial DDT on birds and began to raise the wastes burned at the Pollution Con- sites were the subject of frequent public’s environmental conscious- trols Inc. site in Shakopee, rocketing news stories and public meetings ness. By the 1970s and 1980s, hazard- flaming barrels into the night sky to attended by vocal, angry, and scared Ious chemical waste sites were being compete with area fireworks. Con- neighbors. News stories at the time discovered across the nation at an taminated former waste disposal featured sensational photos of dead alarming rate. Public awareness of the sites were discovered in Minnesota cows and a bald child as new prob- threats to life and health they caused throughout the 1970s: gooey drums lem sites kept being discovered.2 grew as the disasters at places such as removed from the Ironwood landfill Existing state and federal laws did Love Canal in Niagara Falls, New York; near Spring Valley; creosote found in not adequately define who should pay to investigate and clean up toxic sites; *The article title and pull quotes are taken from a few of the 400 tips called in to the Min- above: Barrels of hazardous waste buried in nesota Pollution Control Agency (MPCA) Strike Force hotline by the end of 1982, many the Waste Disposal Engineering (WDE) landfill from current or former MPCA employees. in Andover, October 1975. 30 MINNESOTA HISTORY Some 3,000 barrels of chemical wastes burned at Shakopee’s Pollution Controls Inc. site, July 1973. for victims’ medical treatment and 1,500 dumps began to be replaced all, yet they were introduced without illness compensation; for loss of prop- with “sanitary landfills”—low spots, thought of their potential hazards or erty value; or for other consequences trenches, or swamps in which gar- of their eventual disposal. Origins of Minnesota’s State Superfund Law of hazardous waste disposal: the bage was collected and compacted, One example of a popular chem- polluting companies, the victims, or then covered with a layer of ash, inert ical that later caused issues was the general public? In the early 1980s, debris, or soil. Layer upon layer kept trichloroethylene, a synthetic solvent the nation and many states, including being added. Early landfills were used to degrease metal parts. Its use, Minnesota, enacted laws to address not lined or constructed to control along with similar chemicals contain- the growing problem, but no one gases or leachate; hence, when pre- ing chlorine, began to rise sharply foresaw the extent of the crisis or the cipitation fell it percolated through in the 1940s. Concern grew among time it would take to deal with past the layers, leaching out decaying workers over illness caused by work- disposal of hazardous wastes. soluble components. The leachate place toxicity and among the general often carried harmful elements, and public, as it learned about how these eventually it seeped down into the chemicals were used in products they The problem develops groundwater. Groundwater moving consumed, such as decaffeinated Before the mid-twentieth century, away from a dump or unlined landfill coffee, which had traces or more of most refuse was food waste and other carried those contaminants away and the solvent. In the 1970s, most uses of organic garbage, wood, fabric, metal, became unusable or unhealthy as a trichloroethylene began to be phased or glass. The League of Minnesota water supply.3 out, but its lingering effects, as well as Municipalities advised members in Where did the contaminants effects of many other synthetic chem- 1922 that they had “four methods of come from? As the twentieth century icals, were just beginning to play out.4 disposing of garbage: dumping in progressed, industrial and house- As cases of contaminated water landfills or in deep waters, feeding to hold waste began to include solvents, supplies cropped up around the hogs, incineration, and reduction.” petrochemicals, and other synthetic country, they discredited beliefs in Dumps were the most common materials more hazardous and toxic long-held truisms such as “out of method, but they attracted vermin, than previous kinds of garbage. sight, out of mind,” “underlying soil smelled bad, and posed fire hazards. While useful, these chemical prod- will filter out anything harmful,” Consequently, in the 1960s, the state’s ucts typically biodegrade slowly if at “burning will take care of wastes.” SPRING 2020 31 The need for special handling of haz- Links from a specific waste, in a ardous waste had become apparent. particular dump, to a contaminated Federal and state rules were proposed well, to a resultant disease were diffi- to require careful handling of haz- cult to prove without extensive study. ardous wastes from their generation Contaminant behavior in ground- to their permanent destruction or water was not well understood. isolation. Groundwater may exist in several In 1977, allegations of illness layers underneath a site and may flow and death, not yet proven, began to in unexpected directions. Toxicology mount in Minnesota. Sandra Gar- of many contaminants and/or their debring, executive director of the breakdown products was not well Minnesota Pollution Control Agency known, especially at low levels, and (MPCA), wrote in the formal doc- especially over long periods or life- ument that initiated Minnesota’s time exposure. procedures to create rules for manag- Furthermore, remediation ing future hazardous waste that “The (cleanup) methods were not fully need to adopt the hazardous waste developed. Would it be sensible or fair regulation arises because of the . to dig up contaminants from a dump As executive director of the Minnesota Pol- human death and illness, contam- lution Control Agency, Sandra Gardebring just to bury them somewhere else? inated wells and groundwater, . initiated procedures to manage future haz- People could wish for permanent, contaminated soil, polluted surface ardous waste. in-place destruction of contamina- water and polluted air.”5 tion, but the technology to do so did A 1979 study commissioned by the state estimated that 128,000 tons of potentially hazardous wastes were “ . trucks are dumping hundreds of generated each year in Minnesota. gallons of oil . seeping into the A disposal method was documented for only 46 percent of that waste. ground.” Categories included explosives, sol- and disposed of. The new laws, how- not exist. Beyond determining the vents, oil, halogenated hydrocarbons ever, did not establish responsibility magnitude of cleanup and the process (containing chlorine), metals, acids, for fixing current and future pollu- for remediation, perhaps the most caustics, and miscellaneous sludges. tion caused by past disposal of those contentious issue was who should pay That same year, the MPCA finalized same hazardous wastes. to clean up current problems from its state rules for hazardous waste past disposal: The companies that had management. In 1980, the legislature profited from making the products Legal and practical problems formed a Waste Management Board that led to the waste? The victims of and directed it to work toward finding Doing something about old disposal the waste? Society as a whole, using sites suitable for future hazardous sites wasn’t easy. Minnesota officials general taxes, since presumably all waste processing and disposal facili- had to determine the scale of prob- had benefited from the products that ties in Minnesota.6 lems caused by previously dumped had created the waste? At the federal level, the Envi- industrial wastes. Documentation The common law of torts (gen- ronmental Protection Agency about sites and wastes was scanty. erally, a wrongful act that results in (EPA) issued hazardous waste rules, Much past disposal had been legal, injury to another person, property, or effective in 1980. The federal rules or at least not clearly illegal, and the like) governs liability for damage provided for uniform national waste may have been considered an appro- to property and bodily injury. In the identification and management while priate disposal method at the time. absence of a specific law, a person allowing states to establish more Many dumps contained waste from a alleging sickness or other loss due specific local rules. Both the federal wide variety of sources. Many of the to toxic waste exposure would need and the Minnesota hazardous waste companies or individuals that had to prove that the wrongdoer acted rules were designed to ensure future dumped the wastes were defunct or negligently or carelessly in disposing hazardous waste was properly tracked dead.7 of waste, that the waste then trav- 32 MINNESOTA HISTORY TYPES OF LIABILITY, DEFINED RETROACTIVE LIABILITY means a person or company is large company with deep pockets, which may later attempt to responsible for the current or future consequences of their recover its cost from the other disposers. past actions, even if those past actions complied with the laws and practices at the time. CLEANUP LIABILITY means a person or company is respon- sible for the cost of cleaning up the contamination. STRICT LIABILITY means a person or company is respon- sible for the costs of cleanup or damages even if they hadn’t NATURAL RESOURCE DAMAGE LIABILITY means a person acted negligently or carelessly.