Each component of the Minnesota Department of Agriculture (MDA) Incident Response Program is briefly described in this program overview. Detailed information on nearly every aspect of the program is available in other guidance documents.
The MDA is lead agency for response to, and cleanup of, agricultural chemical contamination (pesticides and fertilizers) in Minnesota. This lead role was an outcome of the 1989 Minnesota Groundwater Protection Act which provided the MDA authority for agricultural chemical contamination under the Minnesota Environmental Response and Liability Act (MERLA - the Minnesota "Superfund") and created a reimbursement fund for the partial reimbursement of agricultural chemical cleanup costs (Agricultural Chemical Response and Reimbursement Account - ACRRA). The program operates under the primary authorities of Minnesota Chapters: 115B (MERLA); 18B (Pesticide Control Law); 18C (Fertilizer Law); 18D (Agricultural Chemical Liability, Incident, and Enforcement Law); and, 18E (ACRRA).
The MDA Incident Response Program focuses on four major areas of work: 24 hour emergency response; comprehensive facility investigations and cleanups; the Agricultural Voluntary Investigation & Cleanup (AgVIC); and, the ACRRA Reimbursement Program.
The Incident Response Program and other units within the MDA maintain databases on incident sites and agricultural chemical facilities.
All agricultural chemical incidents should be reported to the state duty officer upon discovery. The duty officer is available 24 hours a day at 1-800-422-0798 (greater Minnesota) or 651-649-5451 (Twin Cities Metropolitan area). There is a limited exemption for reporting small spills by licensed applicators. Failure to properly report an incident may jeopardize eligibility for partial reimbursement from ACRRA.
New incident sites are identified in a variety of ways. These include: as a result of a spill; pre-construction sampling by a facility; site assessment sampling by a facility or a potential buyer; routine sampling by MDA inspectors; and, third party reports of contamination, such as dead vegetation on or adjacent to a facility or sampling results of water supply wells.
All new reports of incidents are directed to the emergency response (spills) team. The MDA spills team are responsible for directing and assisting with the response and cleanup of emergency incidents. For other incidents they will determine if the incident site is stabilized and should be closed. If the incident may require additional investigation and it is stable, the spills team will forward the file to technical staff to be prioritized. MDA field staff will respond in person for most incidents.
Before a file is prioritized, the facility owner or other responsible party is given the option to enter the MDA AgVIC. The AgVIC is designed to provide rapid response and a high level of service for property transfers, business transactions and other voluntary actions. Each AgVIC project is tailored to the specific needs and deadlines of the voluntary party. AgVIC staff can provide binding written assurances from MERLA liability.
AgVIC staff are funded from MERLA which requires that MERLA expenditures be recovered. Therefore, voluntary parties must agree to reimburse AgVIC staff costs into the state MERLA account. Generally cleanup costs at AgVIC sites, except for MDA staff costs, are eligible for partial reimbursement from ACRRA.
Sites not entering the AgVIC are forwarded to a technical staff for prioritization. The MDA prioritizes incident sites using both quantitative and qualitative considerations. The EPA Hazard Ranking System (HRS-2) Preliminary Assessment (PA) Scoresheet, using standard pesticide and regional data, is used to assure a systematic approach to assessing site specific risk. This approach provides a general measure of risk for the groundwater, surface water and direct soil exposure pathways. However, it does not consider important risk factors such as the quantity of products used at a site, the length of operations at a site, the amount and quality of the data, and the extent and magnitude of soil contamination. Therefore, the final assessment of risk is always site specific based on MDA staff professional judgment.
Just because an incident site is prioritized does not mean the MDA will eventually require a cleanup. Sites get prioritized because the process provides a systematic approach to assessing the potential risk to human health and the environment. Some sites, after going through the prioritization process, are closed by technical staff. Other sites, especially those with primarily fertilizer contamination, may benefit from a cleanup but likely will never be requested to do one because the relative priority of the site is low. Market forces, such as site assessments prior to the sale of a property, may eventually encourage many low priority sites to enter AgVIC. Facilities may enter AgVIC at any time up to the point when they are formally requested to conduct a comprehensive facility investigation.
A high priority site will be requested to conduct a comprehensive facility investigation. The facility will receive a formal letter of request to conduct the investigation. Generally, the MDA project manager will call the facility and may arrange a visit to the site prior to sending the letter of request.
The incident program tries to promote a partnership approach with facility managers, responsible parties, environmental consultants and other involved parties. Our experience indicates sites with a good partnership move faster, cost less and are less stressful for everyone compared to other state regulated cleanup sites. Program staff attempt to focus on outcomes, rather than the process, and are open to innovations which will achieve the desired outcome in a safe manner. The program guidance documents help streamline the process. These documents cover most aspects of the process and were developed using the experience gained on hundreds of prior investigations with the goals of reducing project cost while maintaining an appropriate level of environmental protection.
Most agricultural chemical facilities are not simple sites to investigate. They generally are several acres in size, have multiple potential pesticide contaminants and multiple high risk potential source areas. There generally are no physical indications of contamination such as staining or odor. Although field screening instruments like the nitrate meter and immunoassay kits are helpful in directing a cleanup, they are generally not suitable for the initial assessment which must use expensive laboratory analytical methods. Overland flow can be a significant source of contaminant migration and can result in complex patterns of soil and groundwater contamination. There can be non-point sources of contamination from legal uses of the product. Soil near the ground surface may be clean because of natural degradation and flushing while soil at greater depth, where degradation may not readily occur, may be highly contaminated. Finally, many common pesticides have low health based standards, frequently in the low parts per billion.
Although investigations may be difficult, cleaning up contaminated soil may be relatively inexpensive. Many contaminants are currently registered pesticides which can be legally and safely land applied on fertile soil for natural degradation at a fraction of the cost of most other cleanup options.
The incident program uses a risk based approach to determining cleanup requirements. The investigation assesses the potential contaminant migration pathways (groundwater, surface water, direct soil exposure, etc.) and the potential receptors (people, potable wells, regional aquifers, the environment, etc.) at each site. Cleanup goals are based on the potential threat from contamination at each site. The mere presence of minor contamination, without potential impacts, does not justify a cleanup. Passive degradation of contaminants is an acceptable corrective action at some sites. If contaminants are likely to degrade before they will migrate to potential receptors, passive degradation may be the best corrective action.
The MDA also is actively pursuing pollution prevention activities. Using the information obtained in the incident and other programs, efforts are underway to identify those locations at facilities where new contamination is most likely, and to develop and promote appropriate solutions to prevent it.
The MDA has several options if a responsible party is unwilling or unable to comply with the request for a comprehensive investigation. If the situation warrants it, the MDA may declare an emergency and use MERLA funds and state contractors to conduct any necessary work. For non-emergency situations the MDA will generally order the responsible party to conduct an investigation. An order may include penalties but typically would not if it is complied with. If an order is complied with, a site usually will continue to be eligible for partial reimbursement from ACRRA. There is a formal administrative process to contest and appeal an order.
If an order is not complied with, the MDA may go to court to enforce the order, or may list the site on the state Superfund (MERLA) Permanent List of Priorities (PLP) and use MERLA funds and state contractors to conduct the required work. Work conducted in response to orders or requests made under the sole authority of MERLA is not eligible for ACRRA reimbursement. In addition, the MDA is required to recover money spent under MERLA from the responsible party.
The program is designed to encourage cooperation, and as a result reduce costs, with a carrot and stick approach. Cooperation and compliance is encouraged by reimbursement of costs from the ACRRA. However, if necessary, the MDA may use MERLA authorities which may result in loss of eligibility for the ACRRA and the eventual recovery of MERLA costs from the responsible party. We are pleased to note that the program has seldom needed to use its MERLA authority on comprehensive sites.
The Agricultural Chemical Response and Reimbursement Account (ACRRA) is a program which allows for the reimbursement of up to $279,200 of corrective action costs for each agricultural chemical incident. The first $1000 must be paid by the eligible party. The fund then covers up to 80% of the eligible costs between $1000 and $350,000. Reimbursement decisions are made by an independent board which includes representatives of industry.
A party may apply for reimbursement when the plan for corrective actions (cleanup) is approved even if the corrective actions are not actually underway. There also is a provision for advance payment of costs incurred if the party is not able to pay. To be eligible for ACRRA, the incident must be properly reported, the work must be approved by MDA staff, and the facility should be in compliance with all relevant laws. The fund only pays for corrective action costs. Attorneys fees and third party review costs are not eligible.
651-201-6061 • Fax: 651-201-6112
Pesticide & Fertilizer Management Division