BFI Waste Systems of North America, LLC, d/b/a Pine Bend Landfill, petitioner, Respondent,
Laura Bishop, in her capacity as the Commissioner of the Minnesota Pollution Control Agency, et al., Appellants.
County District Court File No. 19HA-CV-17-1629
Gregory A. Bromen, Daniel Q. Poretti, Brandie L. Morgenroth,
Nilan Johnson Lewis, P.A., Minneapolis, Minnesota (for
Ellison, Attorney General, Philip S. Pulitzer, Max H. Kieley,
Colin P. O'Donovan, Assistant Attorneys General, St.
Paul, Minnesota (for appellants)
Considered and decided by Connolly, Presiding Judge;
Bjorkman, Judge; and Florey, Judge.
Pursuant to Minn. Stat. § 473.848 (2018), the Minnesota
Pollution Control Agency (MPCA) has the authority to issue an
administrative penalty order (APO) for a violation of the
restrictions on waste disposal contained in section 473.848
or a landfill permit incorporating those restrictions.
Under section 473.848, a landfill that accepts waste for
deposit or placement into the landfill is "a
person" who "dispose[d] of" waste.
commissioner of the MPCA,  challenges the district court's
summary-judgment dismissal of an APO issued by the MPCA to
respondent, a landfill owner. The MPCA asserts that the
district court erred by granting summary judgment to
respondent on the grounds that the APO was in excess of the
MPCA's authority and unsupported by substantial evidence
and by denying the MPCA's motion for summary judgment.
Respondent asks that we affirm and offers two constitutional
arguments, raised below but unaddressed by the district
court, as alternative grounds.
conclude that the MPCA had the authority to issue the APO,
and respondent violated the APO, but because a genuine issue
of material fact remains over whether the penalty was
warranted, and because respondent's constitutional
arguments are unavailing, we reverse and remand for further
Twin Cities metropolitan area generates a significant amount
of garbage each year. Some of it is processed at
resource-recovery facilities that burn it for energy and
recover materials, such as metals, and some of it ends up in
landfills. Respondent owns and operates one of the four major
landfills serving the metropolitan area, the Pine Bend
imposes statutory restrictions on the disposal of
metropolitan area garbage, with the goal of reducing the
amount that ends up in landfills and increasing the amount
that goes to resource-recovery facilities. See Minn.
Stat. § 473.848. In 1985, the legislature started down
this path by requiring that, after January 1, 1990,
"waste disposal facilities located in the metropolitan
area may not accept mixed municipal solid waste for disposal
unless the waste has been transferred to the disposal
facility from a resource-recovery facility identified by the
[metropolitan] council." 1985 Minn. Laws ch. 274, §
35, at 1227.
1989, the legislature altered the statutory language, placing
the onus on "person[s]" "dispos[ing]" of
waste, rather than landfills accepting waste. 1989 Minn. Laws
ch. 325, § 66, at 2215. In addition, in 1989, the
legislature established certification requirements as a means
for regulating compliance with the disposal restriction.
See id. Section 473.848 currently reads, in relevant
Subdivision 1. Restriction. (a) For the purposes of
implementing the waste management policies in section 115A.02
and metropolitan area goals related to landfill abatement
established under this chapter, a person may not dispose of
unprocessed mixed municipal solid waste generated in the
metropolitan area at a waste disposal facility unless the
waste disposal facility meets the standards in section
(1) The waste has been certified as unprocessible by a county
under subdivision 2; or
(2)(i) the waste has been transferred to the disposal
facility from a resource recovery facility;
(ii) no other resource recovery facility serving the
metropolitan area is capable of processing the waste; and
(iii) the waste has been certified as unprocessible by the
operator of the resource recovery facility under
. . . .
Subd. 2. County certification; office approval. (a) By
April 1 of each year, each county shall submit an annual
certification report to the office detailing:
(1) the quantity of waste generated in the county that
was not processed prior to transfer to a disposal facility
during the year preceding the report;
(2) the reasons the waste was not processed;
(3) a strategy for development of techniques to ensure
processing of waste including a specific timeline for
implementation of those techniques; and
(4) any progress made by the county in reducing the amount
of unprocessed waste.
. . . .
Subd. 3. Facility certification. The operator of each
resource recovery facility that receives waste from
counties in the metropolitan area shall certify as
unprocessible each load of mixed municipal solid waste it
does not process. Certification must be made to each county
that sends its waste to the facility at intervals specified
by the county. Certification must include at least the
number and size of loads certified as unprocessible and the
reasons the waste is unprocessible. Loads certified as
unprocessible must include the loads that would otherwise
have been processed but were not processed because the
facility was not in operation, but nothing in this section
relieves the operator of its contractual obligations to
process mixed municipal solid waste.
. . . .
Subd. 5. Definition. For the purpose of this section, waste
is "unprocessed" if it has not, after collection
and before disposal, undergone separation of materials for
resource recovery through recycling, incineration for
energy production, production and use of refuse-derived
fuel, composting, or any combination of these processes so
that the weight of the waste remaining that must be
disposed of in a mixed municipal solid waste disposal
facility is not more than 35 percent of the weight before
processing, on an annual average.
statute generally prohibits persons from disposing of
unprocessed metropolitan waste unless a county or
resource-recovery facility certifies the waste as
unprocessible. Despite numerous amendments, it appears that
the landfill-abatement statute was, for years, unenforced.
2005, oversight of section 474.848 was transferred to the
MPCA. See 2005 Minn. Laws 1st Spec. Sess. ch. 1,
art. 2, § 161, at 2171-72. By statute, the MPCA was
required to revise the metropolitan long-range-policy plan
for waste management. See Minn. Stat. §
473.149, subd. 1 (2018). In early 2011, the MPCA published a
policy plan, and one of its objectives was to ensure
compliance with section 473.848. Under section 473.848,
subdivision 4, the MPCA was permitted to "adopt
standards for determining when waste is unprocessible"
for purposes of certification. The policy plan includes
standards for making that determination: waste is
"unprocessible when all reasonably available capacity
within the [metropolitan area] processing system is fully
utilized at 100 percent of its operating capacity." The
geographic location of resource-recovery facilities is
considered in determining "reasonably available
2012, the legislature required the MPCA to prepare a report
on how compliance with section 473.848 might be achieved.
See 2012 Minn. Laws ch. 272, § 93, at 1125. The
legislation stated that the MPCA could not require compliance
with section 473.848 before February 15, 2013. Id.
In October 2012, the MPCA submitted a report to the
legislature. The report stated that the metropolitan
landfills and resource-recovery facilities were "not in
compliance with the restriction on disposal," and it
proposed amendments to landfill permits "to restrict
landfills from accepting unprocessed metropolitan [waste]
unless the waste has been certified by the county as
to the landfill-permit strategy, the MPCA issued a permit to
respondent on July 30, 2015, containing language drawn from
permittee shall not dispose of unprocessed mixed municipal
solid waste generated in the ...