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Commissioner Peder A. Larson April 15, 1997 Page 3 with the process used by the EPA illustrates the defects in the MPCA's process. Under the federal process, before a de minimis settlement can become effective, the settlement must be published in the Federal Register. The MPCA has no plan to provide the public with any notice of a proposed de minimis settlement. The EPA must allow a thirty (30) day period for public comments from those who are not parties to the settlement. Your staff has indicated they will not accept any public comment. The government may withdraw from the settlement if the comments "disclose facts or considerations which indicate the proposed settlement is inappropriate, improper or inadequate." We met with your staff and attempted to raise these issues and concerns. We left the meeting with the impression that the MPCA staff had "made up its mind" on the Schnitzer matter and would not consider any new evidence. Under the federal process, when a settlement is reached providing for private parry cleanup (such as at the Schnitzer site), the settlement must be entered in court as a consent decree. The MPCA is proceeding with an administrative settlement and has no plan to seek judicial review. In the federal process,. a consent decree must be lodged with the Court at least thirty (30) days before it is signed and entered. Finally, under the federal process, the Court - - not the environmental agency that is interested in the outcome -- is to complete an independent evaluation of the public comments received on the settlement. Without these procedural safeguards in place, the MPCA's de minimis settlement process is fatally flawed. The MPCA should not and can not go forward with that process. VALUATION CONCERNS FOR THE DE MF IMIS PROCESS The Group acknowledges that as a property owner the University may select a cleanup option that considers or allows for a proposed development. However, the Group is under no legal obligation to pay for a more expensive cleanup option. In this case, to accommodate the interests of the Hubbard group, the University intends to spend approximately $4,900,000 (without any contingencies) to clean up a site it purchased for approximately $700,000. Other, much cheaper options are available to satisfy the concerns of public health and safety, but they do not meet the desires of the proposed developer. We understand that to proceed with a de minimis settlement the MPCA must first establish the value of reasonable and necessary cleanup expenses. We do not believe that the MPCA can establish that figure without causing irreparable harm to the members of the Group. The imprimatur of the state that $4.9 million is the reasonable and necessary cost of a clean up of this site to protect human health and the environment would be very unfair to the Group. Therefore, the University's current cleanup estimate of $4.9 million (without any contingencies) for an unrestricted cleanup should not be applied. The University's estimated cost for cleanup to a restricted use should also not be used since there is very little difference in cost. The most appropriate number for reasonable and necessary response costs would appear to be that I