BFI Waste Sys. of N. Am., LLC v. Bishop, A18-0963

927 N.W.2d 314

BFI WASTE SYSTEMS OF NORTH AMERICA, LLC, d/b/a Pine Bend Landfill, petitioner, Respondent,

v.Laura BISHOP, in her capacity as the Commissioner of the Minnesota Pollution Control Agency, et al., Appellants.

A18-0963

Court of Appeals of Minnesota.

Filed April 8, 2019

Gregory A. Bromen, Daniel Q. Poretti, Brandie L. Morgenroth, Nilan Johnson Lewis, P.A., Minneapolis, Minnesota (for respondent)

Keith 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.

FLOREY, Judge

Appellant, commissioner of the MPCA,¹ 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.

We 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 proceedings.

FACTS

The 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 Landfill.

Minnesota 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.

In 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 part:

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 473.849 and:

(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 subdivision 3.

....

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.

The 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.

In 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 capacity."

In 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 unprocessible."²

Pursuant to the landfill-permit strategy, the MPCA issued a permit to respondent on July 30, 2015, containing language drawn from section 473.848 :

The permittee shall not dispose of unprocessed mixed municipal solid waste generated in the metropolitan area at the facility unless:

(1) the waste has been certified as unprocessible by a county under [ section] 473.848, 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 [ section] 473.848, subdivision 3.

The permit also stated that pursuant to section 473.848, subdivision 2, and the policy plan, "the determination to certify waste will be made by the [m]etropolitan [c]ounties through certification reports submitted to the MPCA. The MPCA will use these reports to determine whether the permittee is in compliance with the restriction on disposal requirement." Essentially, the MPCA’s strategy was to allow for after-the-fact certification of waste by the counties and to use this retroactive-certification process to determine if landfills had actually disposed of uncertified waste.

On March 31, 2017, the MPCA issued an APO to respondent. The APO alleged that, in 2016, respondent disposed of 236,001 tons of unprocessed metropolitan waste at Pine Bend Landfill. The APO alleged that, during this same period, resource-recovery facilities serving the metropolitan area processed a combined total of 96,177 tons less than their total capacities. The APO stated that the counties certified only 830 tons of waste as unprocessible. From this information, the MPCA concluded that respondent violated section 473.848 and its landfill permit by accepting unprocessed, uncertified waste. The APO assessed a $ 20,000 "nonforgivable" penalty against respondent, the maximum amount allowed. See Minn. Stat. § 116.072 (2016). The APO was not based upon any specific loads or tons that were in violation of the disposal restriction, but rather the aforementioned aggregate statistics. As for the APO penalty, the violation was deemed to be "serious."

In May 2017, respondent petitioned the district court for review of the APO pursuant to Minn. Stat. § 116.072, subd. 7. Both parties moved for summary judgment. In April 2018, the district court granted summary judgment...