HF 2683

as introduced - 90th Legislature (2017 - 2018) Posted on 05/21/2017 10:49am

A bill for an act
relating to environment; providing for cleanup at certain priority solid waste
disposal facilities; amending Minnesota Statutes 2016, sections 115B.39,
subdivision 2; 115B.40, subdivision 4; proposing coding for new law in Minnesota
Statutes, chapter 115B.

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

Section 1.

Minnesota Statutes 2016, section 115B.39, subdivision 2, is amended to read:

Subd. 2.

Definitions.

(a) In addition to the definitions in this subdivision, the definitions
in sections 115A.03 and 115B.02 apply to sections 115B.39 to 115B.445, except as
specifically modified in this subdivision.

(b) "Cleanup order" means a consent order between responsible persons and the agency
or an order issued by the United States Environmental Protection Agency under section 106
of the federal Superfund Act.

(c) "Closure" means actions to prevent or minimize the threat to public health and the
environment posed by a mixed municipal solid waste disposal facility that has stopped
accepting waste by controlling the sources of releases or threatened releases at the facility.
"Closure" includes removing contaminated equipment and liners; applying final cover;
grading and seeding final cover; installing wells, borings, and other monitoring devices;
constructing groundwater and surface water diversion structures; and installing gas control
systems and site security systems, as necessary. The commissioner may authorize use of
final cover that includes processed materials that meet the requirements in Code of Federal
Regulations, title 40, section 503.32, paragraph (a).

(d) "Closure upgrade" means construction activity that will, at a minimum, modify an
existing cover so that it satisfies current rule requirements for mixed municipal solid waste
land disposal facilities.

(e) "Contingency action" means organized, planned, or coordinated courses of action to
be followed in case of fire, explosion, or release of solid waste, waste by-products, or
leachate that could threaten human health or the environment.

(f) "Corrective action" means steps taken to repair facility structures including liners,
monitoring wells, separation equipment, covers, and aeration devices and to bring the facility
into compliance with design, construction, groundwater, surface water, and air emission
standards.

(g) new text begin "Custodial" or "custodial care" means actions taken for the care, maintenance, and
monitoring of closure actions at a mixed municipal solid waste disposal facility after
completion of the postclosure period.
new text end

new text begin (h) new text end "Decomposition gases" means gases produced by chemical or microbial activity
during the decomposition of solid waste.

deleted text begin (h) deleted text end new text begin (i) new text end "Dump materials" means nonhazardous mixed municipal solid wastes disposed
at a Minnesota waste disposal site other than a qualified facility prior to 1973.

deleted text begin (i) deleted text end new text begin (j) new text end "Environmental response action" means response action at a qualified facility new text begin or
priority qualified facility new text end , including corrective action, closure, postclosure care; contingency
action; environmental studies, including remedial investigations and feasibility studies;
engineering, including remedial design; removal; remedial action; site construction; and
other similar cleanup-related activities.

deleted text begin (j) deleted text end new text begin (k) new text end "Environmental response costs" means:

(1) costs of environmental response action, not including legal or administrative expenses;
and

(2) costs required to be paid to the federal government under section 107(a) of the federal
Superfund Act, as amended.

new text begin (l) "Owner or operator of a priority qualified facility" means a person, personal
representative, trustee, beneficiary, partnership, sole proprietorship, firm, limited liability
company, cooperative, association, corporation, or other entity that:
new text end

new text begin (1) has possession of, holds title to, or owns a controlling interest in a priority qualified
facility;
new text end

new text begin (2) participates in decision making related to compliance with federal and state
environmental laws and regulations for a priority qualified facility; or
new text end

new text begin (3) has authority or control to make decisions regarding state and federal environmental
laws and regulations for a priority qualified facility.
new text end

new text begin (m) "Priority qualified facility" means:
new text end

new text begin (1) a qualified facility:
new text end

new text begin (i) that is listed on the National Priorities List pursuant to the federal Comprehensive
Environmental Response, Compensation, and Liability Act;
new text end

new text begin (ii) that is listed on the Permanent List of Priorities pursuant to the Minnesota
Environmental Response and Liability Act;
new text end

new text begin (iii) for which a binding agreement pursuant to section 115B.40, subdivision 4, has not
been entered into between the owner or operator of the qualified facility and the
commissioner; and
new text end

new text begin (iv) that is not an excluded facility pursuant to section 115B.405; and
new text end

new text begin (2) property near a facility described in clause (1), if the property was used for mixed
municipal solid waste disposal that did not occur under a permit from the agency and the
commissioner determines that an environmental response action is necessary at the property
to protect public health or welfare or the environment in the vicinity of the permitted mixed
municipal solid waste disposal facility, as described in the most recent agency permit.
new text end

deleted text begin (k) deleted text end new text begin (n) new text end "Postclosure" or "postclosure care" means actions taken for the care, maintenance,
and monitoring of closure actions at a mixed municipal solid waste disposal facility.

deleted text begin (l) deleted text end new text begin (o) new text end "Qualified facility" means a mixed municipal solid waste disposal facility as
described in the most recent agency permit, including adjacent property used for solid waste
disposal that did not occur under a permit from the agency, that:

(1)(i) is or was permitted by the agency;

(ii) stopped accepting solid waste, except demolition debris, for disposal by April 9,
1994; and

(iii) stopped accepting demolition debris for disposal by June 1, 1994, except that
demolition debris may be accepted until May 1, 1995, at a permitted area where disposal
of demolition debris is allowed, if the area where the demolition debris is deposited is at
least 50 feet from the fill boundary of the area where mixed municipal solid waste was
deposited; deleted text begin or
deleted text end

(2) is or was permitted by the agency deleted text begin ; deleted text end and

(i) stopped accepting waste by January 1, 2000, except that demolition debris, industrial
waste, and municipal solid waste combustor ash may be accepted until January 1, 2001, at
a permitted area where disposal of such waste is allowed, if the area where the waste is
deposited is at least 50 feet from the fill boundary of the area where mixed municipal solid
waste was deposited; or

(ii) stopped accepting waste by January 1, 2019, and is located in a county that meets
all applicable recycling goals in section 115A.551 and that has arranged for all mixed
municipal solid waste generated in the county to be delivered to and processed by a resource
recovery facility located in the county for at least 20 years new text begin ; or
new text end

new text begin (3) is or was permitted by the agency and stopped accepting waste for disposal by January
1, 2009, and for which the postclosure care period ended on July 26, 2013 new text end .

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 2.

Minnesota Statutes 2016, section 115B.40, subdivision 4, is amended to read:

Subd. 4.

Qualified facility not under cleanup order; duties.

(a) The owner or operator
of a qualified facility that is not subject to a cleanup order shall:

(1) complete closure activities at the facility, or enter into a binding agreement with the
commissioner to do so, as provided in paragraph (e), within one year from the date the
owner or operator is notified by the commissioner under subdivision 3 of the closure activities
that are necessary to properly close the facility in compliance with facility's permit, closure
orders, or enforcement agreement with the agency, and with the solid waste rules in effect
at the time the facility stopped accepting waste;

(2) undertake or continue postclosure new text begin and custodial new text end care at the facility until the date of
notice of compliance under subdivision 7;

(3) in the case of qualified facilities defined in section 115B.39, subdivision 2, paragraph
deleted text begin (l) deleted text end new text begin (o) new text end , clause (1), transfer to the commissioner of revenue for deposit in the remediation
fund established in section 116.155 any funds required for proof of financial responsibility
under section 116.07, subdivision 4h, that remain after facility closure and any postclosure
care and response action undertaken by the owner or operator at the facility including, if
proof of financial responsibility is provided through a letter of credit or other financial
instrument or mechanism that does not accumulate money in an account, the amount that
would have accumulated had the owner or operator utilized a trust fund, less any amount
used for closure, postclosure care, and response action at the facility; deleted text begin and
deleted text end

(4) in the case of qualified facilities defined in section 115B.39, subdivision 2, paragraph
deleted text begin (l) deleted text end new text begin (o) new text end , clause (2), transfer to the commissioner of revenue for deposit in the remediation
fund established in section 116.155 an amount of cash that is equal to the sum of their
approved current contingency action cost estimate and the present value of their approved
estimated remaining postclosure care costs required for proof of financial responsibility
under section 116.07, subdivision 4h deleted text begin . deleted text end new text begin ; and
new text end

new text begin (5) in the case of qualified facilities defined in section 115B.39, subdivision 2, paragraph
(o), clause (3), transfer to the commissioner of revenue for deposit in the remediation fund
established in section 116.155 an amount of cash that is equal to the sum of their approved
current contingency action cost estimate and any funds required for proof of financial
responsibility under section 116.07, subdivision 4h, that remain after facility closure and
any postclosure and custodial care and response action undertaken by the owner or operator
at the facility.
new text end

(b) The owner or operator of a qualified facility that is not subject to a cleanup order
shall:

(1) in the case of qualified facilities defined in section 115B.39, subdivision 2, paragraph
deleted text begin (l) deleted text end new text begin (o) new text end , clause (1), provide the commissioner with a copy of all applicable comprehensive
general liability insurance policies and other liability policies relating to property damage,
certificates, or other evidence of insurance coverage held during the life of the facility; and

(2) enter into a binding agreement with the commissioner to:

(i) in the case of qualified facilities defined in section 115B.39, subdivision 2, paragraph
deleted text begin (l) deleted text end new text begin (o) new text end , clause (1), take any actions necessary to preserve the owner or operator's rights to
payment or defense under insurance policies included in clause (1); cooperate with the
commissioner in asserting claims under the policies; and, within 60 days of a request by
the commissioner, but no earlier than July 1, 1996, assign only those rights under the policies
related to environmental response costs;

(ii) cooperate with the commissioner or other persons acting at the direction of the
commissioner in taking additional environmental response actions necessary to address
releases or threatened releases and to avoid any action that interferes with environmental
response actions, including allowing entry to the property and to the facility's records and
allowing entry and installation of equipment; and

(iii) refrain from developing or altering the use of property described in any permit for
the facility except after consultation with the commissioner and in conformance with any
conditions established by the commissioner for that property, including use restrictions, to
protect public health and welfare and the environment.

(c) The owner or operator of a qualified facility defined in section 115B.39, subdivision
2, paragraph deleted text begin (l) deleted text end new text begin (o) new text end , clause (1), that is a political subdivision may use a portion of any funds
established for response at the facility, which are available directly or through a financial
instrument or other financial arrangement, for closure or postclosure care at the facility if
funds available for closure or postclosure care are inadequate and shall assign the rights to
any remainder to the commissioner.

(d) The agreement required in paragraph (b), clause (2), must be in writing and must
apply to and be binding upon the successors and assigns of the owner. The owner shall
record the agreement, or a memorandum approved by the commissioner that summarizes
the agreement, with the county recorder or registrar of titles of the county where the property
is located.

(e) A binding agreement entered into under paragraph (a), clause (1), may include a
provision that the owner or operator will reimburse the commissioner for the costs of closing
the facility to the standard required in that clause.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 3.

new text begin [115B.406] PRIORITY QUALIFIED FACILITIES.
new text end

new text begin Subdivision 1. new text end

new text begin Legislative findings. new text end

new text begin 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 to 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 and to
acquire real property interests at priority qualified facilities to ensure the completion and
long-term effectiveness of environmental response actions.
new text end

new text begin Subd. 2. new text end

new text begin Notifying owner or operator of priority qualified facility. new text end

new text begin Within 30 days
after the effective date of this section, or within 30 days after section 115B.39, subdivision
2, paragraph (m), applies to a facility, whichever is later, the commissioner must notify the
owner or operator of a qualified facility that the facility is a priority qualified facility under
section 115B.39, subdivision 2, paragraph (m). Within 60 days after being notified under
this subdivision, the owner or operator of a priority qualified facility must enter into a
binding agreement with the commissioner according to section 115B.40, subdivision 4,
paragraph (b).
new text end

new text begin Subd. 3. new text end

new text begin State response. new text end

new text begin If the owner or operator of a priority qualified facility fails to
enter into a binding agreement according to subdivision 2 and the commissioner determines
that environmental response actions are reasonable and necessary to protect public health
or welfare or the environment:
new text end

new text begin (1) the commissioner must assume all obligations of the owner or operator for
environmental response actions under the federal Superfund Act and any federal or state
cleanup orders and undertake further action under section 115B.40, subdivision 1, at or
related to the priority qualified facility that the commissioner deems reasonable and
necessary;
new text end

new text begin (2) the commissioner must not seek recovery against responsible persons who are not
the owner or operator of a priority qualified facility of any costs incurred by the commissioner
for environmental response action at or related to the facility, except as provided under
section 115B.40, subdivision 7, paragraph (b), clause (2), item (i) or (ii); and
new text end

new text begin (3) the commissioner and the attorney general must communicate with the United States
Environmental Protection Agency regarding the manner and procedure for the state's
assumption of federal obligations at the priority qualified facility.
new text end

new text begin Subd. 4. new text end

new text begin Civil penalty. new text end

new text begin An owner or operator of a priority qualified facility is subject
to a civil penalty in an amount to be determined by the court of not more than $20,000 per
day for each day that the owner or operator fails to comply with subdivision 2. The penalty
ceases to accrue when the owner or operator enters into a binding agreement with the
commissioner according to section 115B.40, subdivision 4, paragraph (b), and a payment
agreement for environmental response costs incurred by the commissioner at or related to
the priority qualified facility. The civil penalty may be recovered by an action brought by
the attorney general in the name of the state in connection with an action to recover expenses
of the agency under subdivision 7 or by a separate action in the District Court of Ramsey
County. All penalties recovered under this subdivision must be deposited in the remediation
fund.
new text end

new text begin Subd. 5. new text end

new text begin Disqualification; permits. new text end

new text begin If an owner or operator of a priority qualified facility
that is not a local government unit fails to comply with subdivision 2, the owner or operator
is ineligible to obtain or renew a state or local permit or license to engage in a business that
manages solid waste. Failure of an owner or operator of a priority qualified facility that is
not a local government unit to comply with subdivision 2 is prima facie evidence of the
lack of fitness of the owner or operator to conduct any solid waste business and is grounds
for revocation of any solid waste permit or license held by the owner or operator.
new text end

new text begin Subd. 6. new text end

new text begin Duty to provide information. new text end

new text begin Any person that the commissioner determines
has information regarding the priority qualified facility or the owner or operator of the
priority qualified facility must furnish to the commissioner any information that person may
have or may reasonably obtain that is relevant to the priority qualified facility or the owner
or operator of the priority qualified facility. The commissioner upon presentation of
credentials may examine and copy any books, papers, records, memoranda, or data of a
person that has a duty to provide information to the commissioner and may enter upon any
property, public or private, to take any action authorized by this section, including obtaining
information from a person that has a duty to provide the information.
new text end

new text begin Subd. 7. new text end

new text begin Recovering expenses. new text end

new text begin Any reasonable and necessary expenses incurred by the
commissioner pursuant to this section, including all environmental response costs and
administrative and legal expenses, may be recovered in a civil action brought by the attorney
general against the owner or operator of a priority qualified facility. The commissioner's
certification of expenses is prima facie evidence that the expenses are reasonable and
necessary. Any expenses incurred pursuant to this section that are recovered by the attorney
general, including any award of attorney fees, must be deposited in the remediation fund.
new text end

new text begin Subd. 8. new text end

new text begin Claims prohibited. new text end

new text begin The owner or operator of a priority qualified facility is
barred from bringing any claim based on contract, tort, or statute or using any remedy
available under any other provision of state or federal law, including common law, for
personal injury, disease, economic loss, environmental response costs incurred by the owner
or operator, environmental response costs incurred by the state, or legal and administrative
expenses arising out of a release or threat of release of any hazardous substance, pollutant,
contaminant, or decomposition gases related to the priority qualified facility.
new text end

new text begin Subd. 9. new text end

new text begin Environmental response costs; liens. new text end

new text begin All environmental response costs,
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. A lien
under this subdivision attaches when the environmental response costs are first incurred.
Notwithstanding 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. Notice, filing, and release 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. 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 end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 4.

new text begin [115B.407] ACQUISITION AND DISPOSITION OF REAL PROPERTY AT
PRIORITY QUALIFIED FACILITIES.
new text end

new text begin (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.
new text end

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

new text begin (c) 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 end

new text begin (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 end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 5.

new text begin [115B.408] DEPOSIT OF PROCEEDS.
new text end

new text begin All amounts paid to the state under sections 115B.406 and 115B.407 must be deposited
in the state treasury and credited to the remediation fund.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 6. new text begin REVISOR'S INSTRUCTION.
new text end

new text begin In Minnesota Statutes and Minnesota Rules, the revisor of statutes shall replace all
references to Minnesota Statutes, section 115B.39, subdivision 2, paragraph (l), with
Minnesota Statutes, section 115B.39, subdivision 2, paragraph (o), and shall make all other
necessary changes to preserve the meaning of the text and to conform with the paragraph
relettering in this act.
new text end