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HF 20

as introduced - 91st Legislature, 2020 3rd Special Session (2020 - 2020) Posted on 08/12/2020 12:01pm

KEY: stricken = removed, old language.
underscored = added, new language.
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A bill for an act
relating to environment; modifying provisions for priority qualified facilities;
modifying authority to acquire property interests; amending Minnesota Statutes
2018, sections 115B.17, subdivision 13; 115B.406, subdivisions 1, 9; 115B.407;
116.07, by adding a subdivision; repealing Minnesota Rules, part 7044.0350.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2018, section 115B.17, subdivision 13, is amended to read:


Subd. 13.

Priorities; rules.

By November 1, 1983, the Pollution Control Agency shall
establish a temporary list of priorities among releases or threatened releases for the purpose
of taking remedial action and, to the extent practicable consistent with the urgency of the
action, for taking removal action under this section. The temporary list, with any necessary
modifications, shall remain in effect until the Pollution Control Agency adopts rules
establishing state criteria for determining priorities among releases and threatened releases.
The Pollution Control Agency shall adopt the rules by July 1, 1984. After rules are adopted,
a permanent priority list shall be established, and may be modified from time to time, new text beginusing
the current guidance and tools for the Hazard Ranking System adopted by the federal
Environmental Protection Agency and
new text endaccording to the criteria set forth in the rules. Before
any list is established under this subdivision the Pollution Control Agency shall publish the
list in the State Register and allow 30 days for comments on the list by the public.

The temporary list and the rules required by this subdivision shall be based upon the
relative risk or danger to public health or welfare or the environment, taking into account
to the extent possible the population at risk, the hazardous potential of the hazardous
substances at the facilities, the potential for contamination of drinking water supplies, the
potential for direct human contact, the potential for destruction of sensitive ecosystems, the
administrative and financial capabilities of the Pollution Control Agency, and other
appropriate factors.

Sec. 2.

Minnesota Statutes 2018, section 115B.406, subdivision 1, is amended to read:


Subdivision 1.

Legislative findings.

The legislature recognizes the need to protect the
public health and welfare and the environment at priority qualified facilities. To implement
a timely and effective cleanup and prevent multiparty litigation, the legislature finds it is in
the public interest to direct the commissioner of the Pollution Control Agency tonew text begin:
new text end

new text begin (1)new text end take environmental response actions that the commissioner deems reasonable and
necessary to protect the public health or welfare or the environment at priority qualified
facilities deleted text beginand todeleted text endnew text begin;
new text end

new text begin (2)new text end acquire real property interests at priority qualified facilities to ensure the completion
and long-term effectiveness of environmental response actionsdeleted text begin.deleted text endnew text begin; and
new text end

new text begin (3) prevent both an unjust financial windfall to and double liability of owners and
operators of priority qualified facilities.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment and
applies to actions commenced on or after January 1, 2020.
new text end

Sec. 3.

Minnesota Statutes 2018, section 115B.406, subdivision 9, is amended to read:


Subd. 9.

Environmental deleted text beginresponse costs;deleted text end liens.

new text begin(a) new text endAll environmental response costsnew text begin
and reasonable and necessary expenses
new text end, including administrative and legal expenses, incurred
by the commissioner at a priority qualified facility constitute a lien in favor of the state upon
any real property located in the state, other than homestead property, owned by the owner
or operator of the priority qualified facility who is subject to the requirements of section
115B.40, subdivision 4 or 5. new text beginNotwithstanding section 514.672, a lien under this paragraph
continues until the lien is satisfied or is released according to paragraph (c).
new text end

new text begin (b) If the commissioner conducts an environmental response action at a priority qualified
facility and the environmental response action increases the fair market value of the facility
above the fair market value of the facility that existed before the response action was initiated,
then the state has a lien on the facility for the increase in fair market value of the property
attributable to the response action, valued at the time that construction of the final
environmental response action was completed, not including operation and maintenance.
Notwithstanding section 514.672, a lien under this paragraph continues until the lien is
satisfied or is released according to paragraph (c).
new text end

new text begin (c) new text endA lien under deleted text beginthis subdivisiondeleted text endnew text begin paragraph (a) or (b)new text end attaches when the environmental
response costs are first incurred. deleted text beginNotwithstanding section 514.672, a lien under this
subdivision continues until the lien is satisfied or six years after completion of construction
of the final environmental response action, not including operation and maintenance.
deleted text end Notice,
filing, deleted text beginanddeleted text end releasenew text begin, and enforcementnew text end of the lien are governed by sections 514.671 to 514.676,
except where those requirements specifically are related to only cleanup action expenses
as defined in section 514.671.new text begin The commissioner may release a lien under this subdivision
if the commissioner determines that attachment or enforcement of the lien is not in the
public interest. A lien under this subdivision is not subject to the foreclosure limitation
described in section 514.674, subdivision 2.
new text end Relative priority of a lien under this subdivision
is governed by section 514.672, except that a lien attached to property that was included in
any permit for the priority qualified facility takes precedence over all other liens regardless
of when the other liens were or are perfected. Amounts received to satisfy all or a part of a
lien must be deposited in the remediation fund.new text begin An environmental lien notice for a lien under
paragraph (a) or (b) must state that it is a lien in accordance with this section and identify
whether the property described in the notice was included in any permit for the priority
qualified facility.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment and
applies to actions commenced on or after January 1, 2020.
new text end

Sec. 4.

Minnesota Statutes 2018, section 115B.407, is amended to read:


115B.407 deleted text beginACQUISITION AND DISPOSITIONdeleted text endnew text begin ACQUIRING AND DISPOSINGnew text end
OF REAL PROPERTY AT PRIORITY QUALIFIED FACILITIES.

new text begin Subdivision 1. new text end

new text begin Acquiring and disposing of real property. new text end

(a) The commissioner may
acquire interests in real property by donation or eminent domain at all or a portion of a
priority qualified facility. Condemnation under this section includes acquisition of fee title
or an easement. After acquiring an interest in real property under this section, the
commissioner must take environmental response actions at the priority qualified facility
according to sections 115B.39 to 115B.414 after the legislature makes an appropriation for
that purpose.

(b) The commissioner may dispose of real property acquired under this section according
to section 115B.17, subdivision 16.

(c)new text begin Except as modified by this section,new text end chapter 117 governs condemnation proceedings
by the commissioner under this section. The exceptions under section 117.189 apply to the
use of eminent domain authority under this section.new text begin Section 117.226 does not apply to
properties acquired by the use of eminent domain authority under this section.
new text end

(d) The state is not liable under this chapter solely as a result of acquiring an interest in
real property under this section.

new text begin Subd. 2. new text end

new text begin Eminent domain damages. new text end

new text begin (a) For purposes of this subdivision, the following
terms have the meanings given:
new text end

new text begin (1) "after-market value" means the property value of that portion of the subject property
remaining after a partial taking;
new text end

new text begin (2) "as remediated" means the condition of the property assuming the environmental
response actions selected by the commissioner have been completed, including environmental
covenants and easements and other institutional controls that may apply;
new text end

new text begin (3) "before-market value" means the property value of the entire subject property before
the taking, less the remediation costs;
new text end

new text begin (4) "property value" means the fair market value of the real property, as remediated, less
any reduction in value attributable to the stigma of pollution; and
new text end

new text begin (5) "remediation costs" means the reasonably foreseeable costs and expenses, including
administrative and legal expenses, that the commissioner will incur to implement the
environmental response actions that the commissioner selected for the property according
to section 115B.406, subdivision 3, less the amount, if any, that the property owner
demonstrates was released under section 115B.443, subdivision 8, which must not be greater
than the extent of insurance coverage under policies for the property included in a settlement
consistent with section 115B.443, subdivision 8.
new text end

new text begin (b) The damages awarded for condemnation of real property under this section is the
greater of $500 or:
new text end

new text begin (1) for a total taking of the subject property, the before-market value; or
new text end

new text begin (2) for a partial taking of the subject property, the before-market value less the
after-market value.
new text end

new text begin (c) When awarding damages in a condemnation proceeding under this section, in addition
to any other requirement of chapter 117, the finder of fact must report:
new text end

new text begin (1) the amount determined for the property value of the entire subject property before
the taking; and
new text end

new text begin (2) the itemized amount determined for remediation costs.
new text end

new text begin (d) The commissioner may seek recovery of environmental response costs only to the
extent the costs exceed the lower of the remediation costs or the property value of the entire
subject property before the taking as reported under paragraph (c).
new text end

new text begin (e) If the actual expenses incurred by the commissioner to take environmental response
actions at the priority qualified facility as determined at the time construction of the final
environmental response action was completed would have yielded a higher award of damages
under this section, then the commissioner must reimburse the owner an amount equal to the
amount of damages as if the actual expenses were used instead of the remediation costs,
less any damages already awarded.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment and
applies to actions commenced on or after January 1, 2020.
new text end

Sec. 5.

Minnesota Statutes 2018, section 116.07, is amended by adding a subdivision to
read:


new text begin Subd. 4l. new text end

new text begin Real property interests. new text end

new text begin (a) The commissioner may acquire interests in real
property at a solid waste disposal facility, limited to environmental covenants under chapter
114E and easements for the environmental covenants, when the commissioner determines
the property interests are related to:
new text end

new text begin (1) closure;
new text end

new text begin (2) postclosure care; and
new text end

new text begin (3) any other actions needed after the postclosure care period expires.
new text end

new text begin (b) The state is not liable under this chapter or any other law solely as a result of acquiring
an interest in real property under this section.
new text end

new text begin (c) An environmental covenant under this subdivision must be in accordance with chapter
114E and must be signed and acknowledged by every owner of the fee simple title to the
real property subject to the covenant.
new text end

Sec. 6. new text beginREPEALER.
new text end

new text begin Minnesota Rules, part 7044.0350, new text end new text begin is repealed.
new text end

APPENDIX

Repealed Minnesota Rule: 20-9094

7044.0350 HRS SCORING SYSTEM.

The Pollution Control Agency and the commissioner of agriculture shall score sites under part 7044.0250 utilizing the Hazard Ranking System (HRS) adopted by the United States Environmental Protection Agency, and published in the Federal Register, volume 55, pages 51583 to 51667 (December 14, 1990).