HF 2689

as introduced - 79th Legislature (1995 - 1996) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act
  1.2             relating to the environment; providing for 
  1.3             reimbursements from the solid waste fund for the cost 
  1.4             of closing portions of open county-owned landfills; 
  1.5             amending Minnesota Statutes 1994, sections 115B.39, 
  1.6             subdivision 2; 115B.40, subdivisions 2 and 7; and 
  1.7             115B.412, subdivisions 4, 8, and 9; Minnesota Statutes 
  1.8             1995 Supplement, sections 115B.40, subdivision 4; 
  1.9             115B.42, subdivisions 1 and 2; and 115B.50, 
  1.10            subdivision 1. 
  1.11  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.12     Section 1.  Minnesota Statutes 1994, section 115B.39, 
  1.13  subdivision 2, is amended to read: 
  1.14     Subd. 2.  [DEFINITIONS.] (a) In addition to the definitions 
  1.15  in this subdivision, the definitions in sections 115A.03 and 
  1.16  115B.02 apply to sections 115B.39 to 115B.46, except as 
  1.17  specifically modified in this subdivision. 
  1.18     (b) "Cleanup order" means a consent order between 
  1.19  responsible persons and the agency or an order issued by the 
  1.20  United States Environmental Protection Agency under section 106 
  1.21  of the federal Superfund Act. 
  1.22     (c) "Closed qualified facility" means a mixed municipal 
  1.23  solid waste disposal facility, including adjacent property used 
  1.24  for solid waste disposal, that: 
  1.25     (1) is or was permitted by the agency; 
  1.26     (2) stopped accepting solid waste, except demolition 
  1.27  debris, for disposal by April 9, 1994; and 
  1.28     (3) stopped accepting demolition debris for disposal by 
  2.1   June 1, 1994, except that demolition debris may be accepted 
  2.2   until May 1, 1995, at a permitted area where disposal of 
  2.3   demolition debris is allowed, if the area where the demolition 
  2.4   debris is deposited is at least 50 feet from the fill boundary 
  2.5   of the area where mixed municipal solid waste was deposited.  
  2.6      (d) "Closure" means actions to prevent or minimize the 
  2.7   threat to public health and the environment posed by a mixed 
  2.8   municipal solid waste disposal facility that has stopped 
  2.9   accepting waste or by a closed portion of a mixed municipal 
  2.10  solid waste disposal facility that continues to accept waste, by 
  2.11  controlling the sources of releases or threatened releases at 
  2.12  the facility or from the closed portion of the facility.  
  2.13  "Closure" includes removing contaminated equipment and liners; 
  2.14  applying final cover; grading and seeding final cover; 
  2.15  installing wells, borings, and other monitoring devices; 
  2.16  constructing groundwater and surface water diversion structures; 
  2.17  and installing gas control systems and site security systems, as 
  2.18  necessary.  The commissioner may authorize use of final cover 
  2.19  that includes processed materials that meet the requirements in 
  2.20  Code of Federal Regulations, title 40, section 503.32, paragraph 
  2.21  (a). 
  2.22     (d) (e) "Contingency action" means organized, planned, or 
  2.23  coordinated courses of action to be followed in case of fire, 
  2.24  explosion, or release of solid waste, waste by-products, or 
  2.25  leachate that could threaten human health or the environment. 
  2.26     (e) (f) "Corrective action" means steps taken to repair 
  2.27  facility structures including liners, monitoring wells, 
  2.28  separation equipment, covers, and aeration devices and to bring 
  2.29  the facility into compliance with design, construction, 
  2.30  groundwater, surface water, and air emission standards. 
  2.31     (f) (g) "Decomposition gases" means gases produced by 
  2.32  chemical or microbial activity during the decomposition of solid 
  2.33  waste. 
  2.34     (g) (h) "Environmental response action" means response 
  2.35  action at a qualified facility, including corrective action, 
  2.36  closure, postclosure care; contingency action; environmental 
  3.1   studies, including remedial investigations and feasibility 
  3.2   studies; engineering, including remedial design; removal; 
  3.3   remedial action; site construction; and other similar 
  3.4   cleanup-related activities.  
  3.5      (h) (i) "Environmental response costs" means: 
  3.6      (1) costs of environmental response action, not including 
  3.7   legal or administrative expenses; and 
  3.8      (2) costs required to be paid to the federal government 
  3.9   under section 107(a) of the federal Superfund Act, as amended. 
  3.10     (j) "Open qualified facility" means a mixed municipal solid 
  3.11  waste disposal facility that continues to accept solid waste 
  3.12  after April 9, 1994, provided that the facility: 
  3.13     (1) is or was permitted by the agency; 
  3.14     (2) is owned by a county; and 
  3.15     (3) contains, within the permitted bounds of the facility, 
  3.16  portions of the facility that are properly closed under section 
  3.17  115B.40, subdivision 4, as of April 9, 1994. 
  3.18  An open qualified facility does not become a closed qualified 
  3.19  facility upon closure. 
  3.20     (i) (k) "Postclosure" or "postclosure care" means actions 
  3.21  taken for the care, maintenance, and monitoring of closure 
  3.22  actions at a mixed municipal solid waste disposal facility. 
  3.23     (j) (l) "Qualified facility" means a mixed municipal solid 
  3.24  waste disposal facility, including adjacent property used for 
  3.25  solid waste disposal, that: 
  3.26     (1) is or was permitted by the agency; 
  3.27     (2) stopped accepting solid waste, except demolition 
  3.28  debris, for disposal by April 9, 1994; and 
  3.29     (3) stopped accepting demolition debris for disposal by 
  3.30  June 1, 1994, except that demolition debris may be accepted 
  3.31  until May 1, 1995, at a permitted area where disposal of 
  3.32  demolition debris is allowed, if the area where the demolition 
  3.33  debris is deposited is at least 50 feet from the fill boundary 
  3.34  of the area where mixed municipal solid waste was deposited a 
  3.35  closed or open qualified facility. 
  3.36     Sec. 2.  Minnesota Statutes 1994, section 115B.40, 
  4.1   subdivision 2, is amended to read: 
  4.2      Subd. 2.  [PRIORITY LIST LISTS.] (a) The commissioner shall 
  4.3   establish a priority list lists for preventing or responding to 
  4.4   releases of hazardous substances, pollutants and contaminants, 
  4.5   or decomposition gases at qualified facilities.  The 
  4.6   commissioner shall periodically revise the list lists to reflect 
  4.7   changing conditions at facilities that affect priority for 
  4.8   response actions.  The initial priority list for closed 
  4.9   qualified facilities must be established by January 1, 
  4.10  1995.  The initial priority list for open qualified facilities 
  4.11  must be established by January 1, 1997. 
  4.12     (b) The priority list lists required under this subdivision 
  4.13  must be based on the relative risk or danger to public health or 
  4.14  welfare or the environment, taking into account to the extent 
  4.15  possible the population at risk, the hazardous potential of the 
  4.16  hazardous substances at the facility, the potential for 
  4.17  contamination of drinking water supplies, the potential for 
  4.18  direct human contact, and the potential for destruction of 
  4.19  sensitive ecosystems. 
  4.20     Sec. 3.  Minnesota Statutes 1995 Supplement, section 
  4.21  115B.40, subdivision 4, is amended to read: 
  4.22     Subd. 4.  [QUALIFIED FACILITY NOT UNDER CLEANUP ORDER; 
  4.23  DUTIES.] (a) The owner or operator of a qualified facility that 
  4.24  is not subject to a cleanup order shall: 
  4.25     (1) complete closure activities at the facility, or enter 
  4.26  into a binding agreement with the commissioner to do so, as 
  4.27  provided in paragraph (d), within one year from the date the 
  4.28  owner or operator is notified by the commissioner under 
  4.29  subdivision 3 of the closure activities that are necessary to 
  4.30  properly close the facility in compliance with facility's 
  4.31  permit, closure orders, or enforcement agreement with the 
  4.32  agency, and with the solid waste rules in effect at the time the 
  4.33  facility stopped accepting waste; 
  4.34     (2) undertake or continue postclosure care at the facility 
  4.35  until the date of notice of compliance under subdivision 7; 
  4.36     (3) at closed qualified facilities only, transfer to the 
  5.1   commissioner of revenue for deposit in the solid waste fund 
  5.2   established in section 115B.42 any funds required for proof of 
  5.3   financial responsibility under section 116.07, subdivision 4h, 
  5.4   that remain after facility closure and any postclosure care and 
  5.5   response action undertaken by the owner or operator at the 
  5.6   facility including, if proof of financial responsibility is 
  5.7   provided through a letter of credit or other financial 
  5.8   instrument or mechanism that does not accumulate money in an 
  5.9   account, the amount that would have accumulated had the owner or 
  5.10  operator utilized a trust fund, less any amount used for 
  5.11  closure, postclosure care, and response action at the facility; 
  5.12     (4) provide the commissioner with a copy of all applicable 
  5.13  comprehensive general liability insurance policies and other 
  5.14  liability policies relating to property damage, certificates, or 
  5.15  other evidence of insurance coverage held during the life of the 
  5.16  facility; and 
  5.17     (5) enter into a binding agreement with the commissioner to:
  5.18     (i) take any actions necessary to preserve the owner or 
  5.19  operator's rights to payment or defense under insurance policies 
  5.20  included in clause (4); cooperate with the commissioner in 
  5.21  asserting claims under the policies; and, within 60 days of a 
  5.22  request by the commissioner, but no earlier than July 1, 1996, 
  5.23  assign only those rights under the policies related to 
  5.24  environmental response costs; 
  5.25     (ii) cooperate with the commissioner or other persons 
  5.26  acting at the direction of the commissioner in taking additional 
  5.27  environmental response actions necessary to address releases or 
  5.28  threatened releases and to avoid any action that interferes with 
  5.29  environmental response actions, including allowing entry to the 
  5.30  property and to the facility's records and allowing entry and 
  5.31  installation of equipment; and 
  5.32     (iii) refrain from developing or altering the use of 
  5.33  property described in any permit for the facility except after 
  5.34  consultation with the commissioner and in conformance with any 
  5.35  conditions established by the commissioner for that property, 
  5.36  including use restrictions, to protect public health and welfare 
  6.1   and the environment. 
  6.2      (b) The owner or operator of a qualified facility that is a 
  6.3   political subdivision may use a portion of any funds established 
  6.4   for response at the facility, which are available directly or 
  6.5   through a financial instrument or other financial arrangement, 
  6.6   for closure or postclosure care at the facility if funds 
  6.7   available for closure or postclosure care are inadequate and 
  6.8   shall assign the rights to any remainder to the commissioner. 
  6.9      (c) The agreement required in paragraph (a), clause (5), 
  6.10  must be in writing and must apply to and be binding upon the 
  6.11  successors and assigns of the owner.  The owner shall record the 
  6.12  agreement, or a memorandum approved by the commissioner that 
  6.13  summarizes the agreement, with the county recorder or registrar 
  6.14  of titles of the county where the property is located. 
  6.15     (d) A binding agreement entered into under paragraph (a), 
  6.16  clause (1), may include a provision that the owner or operator 
  6.17  will reimburse the commissioner for the costs of closing the 
  6.18  facility to the standard required in that clause. 
  6.19     Sec. 4.  Minnesota Statutes 1994, section 115B.40, 
  6.20  subdivision 7, is amended to read: 
  6.21     Subd. 7.  [NOTICE OF COMPLIANCE; EFFECTS.] (a) The 
  6.22  commissioner shall provide written notice of compliance to the 
  6.23  appropriate owner or operator or person subject to a cleanup 
  6.24  order when: 
  6.25     (1) the commissioner determines that the requirements of 
  6.26  subdivision 4 or 5 have been met; and 
  6.27     (2) the person who will receive the notice has submitted to 
  6.28  the commissioner a written waiver of any claims the person may 
  6.29  have against any other person for recovery of any environmental 
  6.30  response costs related to a qualified facility that were 
  6.31  incurred prior to the date of notice of compliance. 
  6.32     (b) Beginning on the date of the notice of compliance for 
  6.33  closed qualified facilities only: 
  6.34     (1) the commissioner shall assume all obligations of the 
  6.35  owner or operator or person for environmental response actions 
  6.36  under the federal Superfund Act and any federal or state cleanup 
  7.1   orders and shall undertake all further action under subdivision 
  7.2   1 at or related to the facility that the commissioner deems 
  7.3   appropriate and in accordance with the priority list lists; and 
  7.4      (2) the commissioner may not seek recovery against the 
  7.5   owner or operator of the facility or any responsible person of 
  7.6   any costs incurred by the commissioner for environmental 
  7.7   response action at or related to the facility, except: 
  7.8      (i) to the extent of insurance coverage held by the owner 
  7.9   or operator or responsible person; or 
  7.10     (ii) as provided in section 115B.402. 
  7.11     (c) The commissioner and the attorney general shall 
  7.12  communicate with the United States Environmental Protection 
  7.13  Agency addressing the manner and procedure for the state's 
  7.14  assumption of federal obligations under paragraph (b), clause 
  7.15  (1). 
  7.16     Sec. 5.  Minnesota Statutes 1994, section 115B.412, 
  7.17  subdivision 4, is amended to read: 
  7.18     Subd. 4.  [AFFECTED REAL PROPERTY; NOTICE.] (a) The 
  7.19  commissioner shall provide to affected local government units, 
  7.20  to be available as public information, and shall make available 
  7.21  to others, on request, a description of the real property 
  7.22  described in the original and any revised permits for a 
  7.23  qualified facility, along with a description of activities that 
  7.24  will be or have been taken on the property under sections 
  7.25  115B.39 to 115B.43 and a reasonably accurate description of the 
  7.26  types, locations, and potential movement of hazardous 
  7.27  substances, pollutants and contaminants, or decomposition gases 
  7.28  related to the facility.  The commissioner shall provide and 
  7.29  make this information available at the time the facility is 
  7.30  placed on the a priority list under section 115B.40, subdivision 
  7.31  2; shall revise, provide, and make the information available 
  7.32  when response actions, other than long-term maintenance actions, 
  7.33  have been completed; and shall revise the information over time 
  7.34  if significant changes occur that make the information obsolete 
  7.35  or misleading. 
  7.36     (b) A local government unit that receives information from 
  8.1   the commissioner under paragraph (a) shall incorporate that 
  8.2   information in any land use plan that includes the affected 
  8.3   property and shall notify any person who applies for a permit 
  8.4   related to development of the affected property of the existence 
  8.5   of the information and, on request, provide a copy of the 
  8.6   information. 
  8.7      Sec. 6.  Minnesota Statutes 1994, section 115B.412, 
  8.8   subdivision 8, is amended to read: 
  8.9      Subd. 8.  [TRANSFER OF TITLE.] The owner of a closed 
  8.10  qualified facility may, as part of the owner's activities under 
  8.11  section 115B.40, subdivision 4 or 5, offer to transfer title to 
  8.12  all the property described in the facility's most recent permit, 
  8.13  including any property adjacent to that property the owner 
  8.14  wishes to transfer, to the commissioner.  The commissioner may 
  8.15  accept the transfer of title if the commissioner determines that 
  8.16  to do so is in the best interest of the state. 
  8.17     Sec. 7.  Minnesota Statutes 1994, section 115B.412, 
  8.18  subdivision 9, is amended to read: 
  8.19     Subd. 9.  [LAND MANAGEMENT PLANS.] The commissioner shall 
  8.20  develop a land use plan for each closed qualified facility.  All 
  8.21  local land use plans must be consistent with a land use plan 
  8.22  developed under this subdivision.  Plans developed under this 
  8.23  subdivision must include provisions to prevent any use that 
  8.24  disturbs the integrity of the final cover, liners, any other 
  8.25  components of any containment system, or the function of any 
  8.26  monitoring systems unless the commissioner finds that the 
  8.27  disturbance: 
  8.28     (1) is necessary to the proposed use of the property, and 
  8.29  will not increase the potential hazard to human health or the 
  8.30  environment; or 
  8.31     (2) is necessary to reduce a threat to human health or the 
  8.32  environment. 
  8.33     Before completing any plan under this subdivision, the 
  8.34  commissioner shall consult with the commissioner of finance 
  8.35  regarding any restrictions that the commissioner of finance 
  8.36  deems necessary on the disposition of property resulting from 
  9.1   the use of bond proceeds to pay for response actions on the 
  9.2   property, and shall incorporate the restrictions in the plan. 
  9.3      Sec. 8.  Minnesota Statutes 1995 Supplement, section 
  9.4   115B.42, subdivision 1, is amended to read: 
  9.5      Subdivision 1.  [ESTABLISHMENT; APPROPRIATION; SEPARATE 
  9.6   ACCOUNTING.] (a) The solid waste fund is established in the 
  9.7   state treasury.  The fund consists of money credited to the fund 
  9.8   and interest earned on the money in the fund.  Except as 
  9.9   provided in subdivision 2, clause (7), money in the fund is 
  9.10  annually appropriated to the commissioner for the purposes 
  9.11  listed in subdivision 2. 
  9.12     (b) The commissioner of finance shall separately account 
  9.13  for revenue deposited in the fund from financial assurance funds 
  9.14  or other mechanisms, the metropolitan landfill contingency 
  9.15  action trust fund, and all other sources of revenue. 
  9.16     (c) The open qualified facility account is established as 
  9.17  an account within the solid waste fund.  The commissioner of 
  9.18  revenue shall annually deposit into this account a portion of 
  9.19  the funds collected under section 115B.46 or any subsequent 
  9.20  insurance buy-out program replacing that section, sufficient to 
  9.21  provide for the annual budget developed by the commissioner of 
  9.22  the pollution control agency under section 115B.42, subdivision 
  9.23  2, paragraph (e). 
  9.24     Sec. 9.  Minnesota Statutes 1995 Supplement, section 
  9.25  115B.42, subdivision 2, is amended to read: 
  9.26     Subd. 2.  [EXPENDITURES.] (a) Money in the fund, except for 
  9.27  the money in the open qualified facility account, may be spent 
  9.28  by the commissioner to: 
  9.29     (1) inspect permitted mixed municipal solid waste disposal 
  9.30  facilities to: 
  9.31     (i) evaluate the adequacy of final cover, slopes, 
  9.32  vegetation, and erosion control; 
  9.33     (ii) determine the presence and concentration of hazardous 
  9.34  substances, pollutants or contaminants, and decomposition gases; 
  9.35  and 
  9.36     (iii) determine the boundaries of fill areas; 
 10.1      (2) monitor and take, or reimburse others for, 
 10.2   environmental response actions, including emergency response 
 10.3   actions, at closed qualified facilities; 
 10.4      (3) acquire and dispose of property under section 115B.412, 
 10.5   subdivision 3; 
 10.6      (4) recover costs under sections 115B.39 and 115B.46; 
 10.7      (5) administer, including providing staff and 
 10.8   administrative support for, sections 115B.39 to 115B.46; 
 10.9      (6) enforce sections 115B.39 to 115B.46; 
 10.10     (7) subject to appropriation, administer the agency's 
 10.11  groundwater and solid waste management programs; 
 10.12     (8) reimburse persons under section 115B.43; and 
 10.13     (9) reimburse mediation expenses up to a total of $250,000 
 10.14  annually or defense costs up to a total of $250,000 annually for 
 10.15  third-party claims for response costs under state or federal law 
 10.16  as provided in section 115B.414. 
 10.17     (b) Money in the open qualified facility account may be 
 10.18  spent by the commissioner as appropriate to implement sections 
 10.19  115B.39 to 115B.46, only to the extent those sections apply to 
 10.20  open qualified facilities, to: 
 10.21     (1) monitor and take, or reimburse others for, 
 10.22  environmental response actions, including emergency response 
 10.23  actions, at open qualified facilities; 
 10.24     (2) acquire and dispose of property under section 115B.412, 
 10.25  subdivision 3; 
 10.26     (3) recover costs under sections 115B.39 and 115B.46; 
 10.27     (4) administer, including providing staff and 
 10.28  administrative support for, sections 115B.39 to 115B.46; 
 10.29     (5) enforce sections 115B.39 to 115B.46; 
 10.30     (6) subject to appropriation, administer the agency's 
 10.31  groundwater and solid waste management programs, not to exceed 
 10.32  ten percent of expenditures from the open qualified facility 
 10.33  account; 
 10.34     (7) reimburse persons under section 115B.43; and 
 10.35     (8) reimburse mediation expenses up to a total of $250,000 
 10.36  annually or defense costs up to a total of $250,000 annually for 
 11.1   third-party claims for response costs under state or federal law 
 11.2   as provided in section 115B.414. 
 11.3      (c) Money in the open qualified facility account shall also 
 11.4   be used by the commissioner to reimburse a county or its 
 11.5   political subdivisions for amounts paid as part of a final order 
 11.6   or settlement of a lawsuit for environmental response costs at a 
 11.7   mixed municipal solid waste facility that is not a qualified 
 11.8   facility because the facility did not stop accepting solid waste 
 11.9   by April 9, 1994.  The county or its political subdivisions must 
 11.10  have paid the amounts required by the final order or settlement 
 11.11  by December 31, 1994.  Reimbursement to the county or its 
 11.12  political subdivisions must be completed by December 31, 2000.  
 11.13  Persons eligible for reimbursement under this paragraph are not 
 11.14  subject to the requirements of section 115B.43, subdivision 3, 
 11.15  paragraph (a), clause (1). 
 11.16     (d) Money in the open facility account may also be used by 
 11.17  the commissioner to identify, prioritize, and plan for the 
 11.18  remediation of open dumps in the state that present an 
 11.19  environmental or public health hazard. 
 11.20     (e) The commissioner shall biennially develop a budget 
 11.21  sufficient to implement paragraphs (b), (c), and (d). 
 11.22     Sec. 10.  Minnesota Statutes 1995 Supplement, section 
 11.23  115B.50, subdivision 1, is amended to read: 
 11.24     Subdivision 1.  [RESPONSE ACTIONS BY THE COMMISSIONER.] (a) 
 11.25  In accordance with the priority list lists established under 
 11.26  section 115B.17, subdivision 13, the commissioner shall take all 
 11.27  response actions at or related to a drycleaning facility that 
 11.28  the commissioner determines are reasonable and necessary to 
 11.29  protect the public health or welfare or the environment under 
 11.30  the standards required in sections 115B.01 to 115B.24.  The 
 11.31  commissioner shall review and approve any investigation and 
 11.32  response action plan submitted by an owner or operator of a 
 11.33  drycleaning facility who is taking response actions under 
 11.34  subdivision 2 and shall oversee the implementation of the 
 11.35  approved plans.  In carrying out the duties under this 
 11.36  subdivision, the commissioner may take emergency removal actions 
 12.1   as provided in section 115B.17, subdivision 1, paragraph (b), 
 12.2   and may exercise the authority provided in section 115B.17, 
 12.3   subdivisions 2 to 5, 15, and 16. 
 12.4      (b) The commissioner may not seek recovery against a 
 12.5   current or former owner or operator of a drycleaning facility of 
 12.6   any environmental response costs in excess of $10,000 incurred 
 12.7   by the commissioner at the facility, except: 
 12.8      (1) to the extent of insurance coverage, in excess of 
 12.9   $10,000, held by the owner or operator; or 
 12.10     (2) as provided in section 115B.51. 
 12.11     If the commissioner seeks recovery of environmental 
 12.12  response costs against an owner or operator pursuant to this 
 12.13  paragraph, the owner or operator shall act as directed by the 
 12.14  commissioner to assert any rights of the owner or operator to 
 12.15  any insurance coverage applicable to those costs and, if 
 12.16  coverage is denied, to assign those rights to the commissioner. 
 12.17     (c) Before taking a response action under this subdivision, 
 12.18  the commissioner shall notify the owner or operator of the 
 12.19  facility.  Except for emergency removal actions under section 
 12.20  115B.17, subdivision 1, paragraph (b), the commissioner shall 
 12.21  not take response actions under this subdivision at a 
 12.22  drycleaning facility where an owner or operator of the facility 
 12.23  is taking response actions under subdivision 2 in accordance 
 12.24  with an investigation or response action plan approved by the 
 12.25  commissioner.