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DOR-SEY & WHITNEY LLP Mr. Dale Trippler March 21, 1996 • Page 4 As the MPCA itself acknowledges, the current database skews the waste-in allocation. Certainly, If all of the pounds of materialsprocessed at the Schnizter site were included in the waste-in inventory, the Village of Saint Anthony would 13: a de minimis or de micromis party. This is the desired result and conforms to the agency's suggested de minimis and de micromis policy, where 'small parties can avoid the significant transaction costs associated with having to defend and participate in the extended superfund process. 4. The PRPs should not be asked to 12a,v for extensive cleanup at Schnittier. The MPCA was aware of contamination at the Schnitzer site since 1984 and the agency negotiated a cleanup agreement (consent order) with Schnitzer in June of 1987. The property was sold in 1987 and an escrow fund of$750,000 was established from the proceeds of the sale and from insurance to pay for the cleanup. The burden and risks of the cleanup, therefore, should properly fall on the owner and operator of the property. Aside from the statute of limitation considerations set otit in Minn. Stat. 115B.11, to the extent the cleanup costs are due to some new reiriedy needed to meet the current owners new use for the property, this burden would seem to rest with the owner of the property. To the extent the MPCA Is imposing a new cleanup requirement different from the 1987 consent agreement, it would seem appropriate for the state to pick up a share of the cleanup costs singe a significant amount of time and money has been utilized with no apparent remedy in place. Lastly, to the extent the total cleanup costs were underestimated at the time of the • 1987 sale due to a mistake of fact or unknown conditions, the excess costs might be appropriate for allocation among Schnitzer, the current owner, the insurance company and the PRPs, although any apportionment should reflect the factors set forth in Minn. Stat. 1156.08 and not simply a volumetric allocation based on a limited waste-in survey. 5. Request for Ad The Village of Saint Anthony requests that the MPCA redesignate Saint Anthony a de minimis or de micromis party on the Schnitzer PRP list. We believe the legal and equitable considerations outlined above provide a rationale basis for this determination and also provide a structure for negotiating a settlement. Nothing herein should be construed as an admission of liability, but rather as settlement negotiations not admissible under applicable rules of evidence. We look further to meeting with you on Friday to further the discussions on this matter. •