HF 435

2nd Engrossment - 80th Legislature (1997 - 1998) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to the environment; amending the Minnesota 
  1.3             Environmental Response and Liability Act; providing 
  1.4             for the use of institutional controls to assure 
  1.5             protectiveness of cleanup remedies; authorizing the 
  1.6             pollution control agency to enter into certain cleanup 
  1.7             settlements; modifying the drycleaner environmental 
  1.8             response and reimbursement law; changing a report 
  1.9             date; appropriating money; amending Minnesota Statutes 
  1.10            1996, sections 115B.02, subdivision 16, and by adding 
  1.11            a subdivision; 115B.17, subdivisions 14, 15, and by 
  1.12            adding subdivisions; 115B.412, subdivision 10; 
  1.13            115B.48, subdivisions 3 and 8; and 115B.49, 
  1.14            subdivision 4. 
  1.15  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.16     Section 1.  Minnesota Statutes 1996, section 115B.02, is 
  1.17  amended by adding a subdivision to read: 
  1.18     Subd. 9a.  [INSTITUTIONAL CONTROLS.] "Institutional 
  1.19  controls" means legally enforceable restrictions, conditions, or 
  1.20  controls on the use of real property, groundwater, or surface 
  1.21  water located at or adjacent to a facility where response 
  1.22  actions are taken that are reasonably required to assure that 
  1.23  the response actions are protective of public health or welfare 
  1.24  or the environment.  Institutional controls include 
  1.25  restrictions, conditions, or controls enforceable by contract, 
  1.26  easement, restrictive covenant, statute, ordinance, or rule, 
  1.27  including official controls such as zoning, building codes, and 
  1.28  official maps.  An affidavit required under section 115B.16, 
  1.29  subdivision 2, or similar notice of a release recorded with real 
  1.30  property records is also an institutional control. 
  2.1      Sec. 2.  Minnesota Statutes 1996, section 115B.02, 
  2.2   subdivision 16, is amended to read: 
  2.3      Subd. 16.  [REMEDY OR REMEDIAL ACTION.] "Remedy" or 
  2.4   "remedial action" means those actions consistent with permanent 
  2.5   remedy taken instead of or in addition to removal actions in the 
  2.6   event of a release or threatened release of a hazardous 
  2.7   substance, or a pollutant or contaminant, into the environment, 
  2.8   to prevent, minimize or eliminate the release in order to 
  2.9   protect the public health or welfare or the environment.  
  2.10     Remedy or remedial action includes, but is not limited to:  
  2.11     (a) Actions at the location of the release such as storage, 
  2.12  confinement, perimeter protection using dikes, trenches, or 
  2.13  ditches, clay cover, neutralization, cleanup of released 
  2.14  hazardous substances, pollutants or contaminants, or 
  2.15  contaminated materials, recycling or reuse, diversion, 
  2.16  destruction, segregation of reactive wastes, dredging or 
  2.17  excavations, repair or replacement of leaking containers, 
  2.18  collection of leachate and runoff, on-site treatment or 
  2.19  incineration, provision of alternative water supplies, and any 
  2.20  monitoring and maintenance, and institutional controls, 
  2.21  reasonably required to assure that these actions protect the 
  2.22  public health and welfare and the environment; and 
  2.23     (b) The costs of permanent relocation of residents and 
  2.24  businesses and community facilities when the agency determines 
  2.25  that, alone or in combination with other measures, relocation is 
  2.26  more cost-effective than and environmentally preferable to the 
  2.27  transportation, storage, treatment, destruction, or secure 
  2.28  disposition off-site of hazardous substances, or pollutants or 
  2.29  contaminants, or may otherwise be necessary to protect the 
  2.30  public health or welfare.  
  2.31     Remedy or remedial action does not include offsite 
  2.32  transport of hazardous substances, pollutants or contaminants, 
  2.33  or contaminated materials or their storage, treatment, 
  2.34  destruction, or secure disposition offsite unless the agency 
  2.35  determines that these actions:  
  2.36     (1) Are more cost-effective than other remedial actions; 
  3.1      (2) Will create new capacity to manage hazardous substances 
  3.2   in addition to those located at the affected facility, in 
  3.3   compliance with section 116.07 and subtitle C of the Solid Waste 
  3.4   Disposal Act, United States Code, title 42, section 6921 et 
  3.5   seq.; or 
  3.6      (3) Are necessary to protect the public health or welfare 
  3.7   or the environment from a present or potential risk which may be 
  3.8   created by further exposure to the continued presence of the 
  3.9   hazardous substances, pollutants or contaminants, or 
  3.10  contaminated materials.  
  3.11     Sec. 3.  Minnesota Statutes 1996, section 115B.17, 
  3.12  subdivision 14, is amended to read: 
  3.13     Subd. 14.  [REQUESTS FOR REVIEW, INVESTIGATION, AND 
  3.14  OVERSIGHT.] (a) The commissioner may, upon request, assist a 
  3.15  person in determining whether real property has been the site of 
  3.16  a release or threatened release of a hazardous substance, 
  3.17  pollutant, or contaminant.  The commissioner may also assist in, 
  3.18  or supervise, the development and implementation of reasonable 
  3.19  and necessary response actions.  Assistance may include review 
  3.20  of agency records and files, and review and approval of a 
  3.21  requester's investigation plans and reports and response action 
  3.22  plans and implementation. 
  3.23     (b) Except as otherwise provided in this paragraph, the 
  3.24  person requesting assistance under this subdivision shall pay 
  3.25  the agency for the agency's cost, as determined by the 
  3.26  commissioner, of providing assistance.  A state agency or 
  3.27  political subdivision is not required to pay for the agency's 
  3.28  cost to review agency records and files.  Money received by the 
  3.29  agency for assistance under this section must be deposited in 
  3.30  the environmental response, compensation, and compliance fund. 
  3.31     (c) When a person investigates a release or threatened 
  3.32  release in accordance with an investigation plan approved by the 
  3.33  commissioner under this subdivision, the investigation does not 
  3.34  associate that person with the release or threatened release for 
  3.35  the purpose of section 115B.03, subdivision 3, paragraph (d). 
  3.36     Sec. 4.  Minnesota Statutes 1996, section 115B.17, 
  4.1   subdivision 15, is amended to read: 
  4.2      Subd. 15.  [ACQUISITION OF PROPERTY.] The agency may 
  4.3   acquire, by purchase or donation, an interest in real property, 
  4.4   including easements, restrictive covenants, and leases, that the 
  4.5   agency determines is necessary for response action.  The 
  4.6   validity and duration of a restrictive covenant or nonpossessory 
  4.7   easement acquired under this subdivision shall be determined in 
  4.8   the same manner as the validity and duration of a conservation 
  4.9   easement under chapter 84C.  The agency may acquire an easement 
  4.10  by condemnation only if the agency is unable, after reasonable 
  4.11  efforts, to acquire an interest in real property by purchase or 
  4.12  donation.  The provisions of chapter 117 govern condemnation 
  4.13  proceedings by the agency under this subdivision.  A donation of 
  4.14  an interest in real property to the agency is not effective 
  4.15  until the agency executes a certificate of acceptance.  The 
  4.16  state is not liable under this chapter solely as a result of 
  4.17  acquiring an interest in real property under this subdivision. 
  4.18     Sec. 5.  Minnesota Statutes 1996, section 115B.17, is 
  4.19  amended by adding a subdivision to read: 
  4.20     Subd. 17.  [SETTLEMENTS; GENERAL AUTHORITY.] In addition to 
  4.21  the general authority vested in the agency to settle any claims 
  4.22  under sections 115B.01 to 115B.18, the agency may exercise the 
  4.23  settlement authorities provided in subdivisions 17 to 20.  If 
  4.24  the agency does not obtain complete relief for all of its claims 
  4.25  under sections 115B.01 to 115B.18, pursuant to a settlement, the 
  4.26  agency may bring claims under those sections against any person 
  4.27  who is not a party to the settlement, but the settlement shall 
  4.28  reduce the liability of any person who is not a party to the 
  4.29  settlement by the amount of the settlement. 
  4.30     Sec. 6.  Minnesota Statutes 1996, section 115B.17, is 
  4.31  amended by adding a subdivision to read: 
  4.32     Subd. 18.  [CONTRIBUTION PROTECTION FOR 
  4.33  SETTLORS.] Notwithstanding anything to the contrary in section 
  4.34  115B.08 or any other law, a person who resolves its liability to 
  4.35  the agency under sections 115B.01 to 115B.18 in a settlement 
  4.36  shall not be liable for any claim for contribution regarding 
  5.1   matters addressed in the settlement.  Except as otherwise 
  5.2   provided in the settlement, a party to a settlement retains any 
  5.3   right under section 115B.08 or any other law to bring a claim 
  5.4   for contribution against any person who is not a party to the 
  5.5   settlement.  Any claim for contribution against a person who is 
  5.6   not a party to the settlement shall be subordinate to any claim 
  5.7   asserted against such person by the agency. 
  5.8      Sec. 7.  Minnesota Statutes 1996, section 115B.17, is 
  5.9   amended by adding a subdivision to read: 
  5.10     Subd. 19.  [REIMBURSEMENT UNDER CERTAIN SETTLEMENTS.] (a) 
  5.11  When the agency determines that some but not all persons 
  5.12  responsible for a release are willing to implement response 
  5.13  actions, the agency may agree, pursuant to a settlement of its 
  5.14  claims under sections 115B.01 to 115B.18, to reimburse the 
  5.15  settling parties for response costs incurred to take the 
  5.16  actions.  The agency may agree to reimburse any amount which 
  5.17  does not exceed the amount that the agency estimates may be 
  5.18  attributable to the liability of responsible persons who are not 
  5.19  parties to the settlement.  Reimbursement may be provided only 
  5.20  for the cost of conducting remedial design and constructing 
  5.21  remedial action pursuant to the terms of the settlement.  
  5.22  Reimbursement under this subdivision shall be paid only upon the 
  5.23  agency's determination that the remedial action approved by the 
  5.24  agency has been completed in accordance with the terms of the 
  5.25  settlement.  The agency may use money appropriated to it for 
  5.26  actions authorized under section 115B.20, subdivision 2, clause 
  5.27  (2), to pay reimbursement under this subdivision. 
  5.28     (b) The agency may agree to provide reimbursement under a 
  5.29  settlement only when all of the following requirements have been 
  5.30  met: 
  5.31     (1) the agency has made the determination under paragraph 
  5.32  (c) regarding persons who are not participating in the 
  5.33  settlement, and has provided written notice to persons 
  5.34  identified under paragraph (c), clauses (1) and (2), of their 
  5.35  opportunity to participate in the settlement or in a separate 
  5.36  settlement under subdivision 20; 
  6.1      (2) the release addressed in the settlement has been 
  6.2   assigned a priority pursuant to agency rules adopted under 
  6.3   subdivision 13, and the priority is at least as high as a 
  6.4   release for which the agency would be allowed to allocate funds 
  6.5   for remedial action under the rules; 
  6.6      (3) an investigation of the release addressed in the 
  6.7   settlement has been completed in accordance with a plan approved 
  6.8   by the agency; and 
  6.9      (4) the agency has approved the remedial action to be 
  6.10  implemented under the settlement. 
  6.11     (c) Before entering into a settlement providing for 
  6.12  reimbursement under this subdivision, the agency shall determine 
  6.13  that there are one or more persons who meet any of the following 
  6.14  criteria who are not participating in the settlement: 
  6.15     (1) persons identified by the agency as responsible for the 
  6.16  release addressed in the settlement but who are likely to have 
  6.17  only minimal involvement in actions leading to the release, or 
  6.18  are insolvent or financially unable to pay any significant share 
  6.19  of response action costs; 
  6.20     (2) persons identified by the agency as responsible for the 
  6.21  release other than persons described in clause (1) and who are 
  6.22  unwilling to participate in the settlement or to take response 
  6.23  actions with respect to the release; 
  6.24     (3) persons whom the agency has reason to believe are 
  6.25  responsible for the release addressed in the settlement but whom 
  6.26  the agency has been unable to identify; or 
  6.27     (4) persons identified to the agency by a party to the 
  6.28  proposed settlement as persons who are potentially responsible 
  6.29  for the release but for whom the agency has insufficient 
  6.30  information to determine responsibility. 
  6.31     (d) Except as otherwise provided in this subdivision, a 
  6.32  decision of the agency under this subdivision to offer or agree 
  6.33  to provide reimbursement in any settlement, or to determine the 
  6.34  amount of reimbursement it will provide under a settlement, is a 
  6.35  matter of agency discretion in the exercise of its enforcement 
  6.36  authority.  In exercising discretion in this matter, the agency 
  7.1   may consider, among other factors, the degree of cooperation 
  7.2   with the agency that has been shown prior to the settlement by 
  7.3   the parties seeking reimbursement. 
  7.4      (e) The agency may require as a term of settlement under 
  7.5   this subdivision that the parties receiving reimbursement from 
  7.6   the agency waive any rights they may have to bring a claim for 
  7.7   contribution against persons who are not parties to the 
  7.8   settlement. 
  7.9      Sec. 8.  Minnesota Statutes 1996, section 115B.17, is 
  7.10  amended by adding a subdivision to read: 
  7.11     Subd. 20.  [SETTLEMENTS WITH DE MINIMIS PARTIES AND PARTIES 
  7.12  WITH LIMITED FINANCIAL RESOURCES.] (a) The agency may agree to 
  7.13  separately settle its claims under sections 115B.01 to 115B.18 
  7.14  with any persons: 
  7.15     (1) whose liability for response costs or response actions, 
  7.16  in the determination of the agency, is minimal in comparison 
  7.17  with the liability of other persons responsible for the release; 
  7.18  or 
  7.19     (2) who are responsible for a release but, in the 
  7.20  determination of the agency, are insolvent or financially unable 
  7.21  to pay any significant share of their liability for the response 
  7.22  costs. 
  7.23     (b) A settlement under this subdivision may require the 
  7.24  parties to pay a fixed amount in money or in kind toward the 
  7.25  implementation of response actions, and may include a premium 
  7.26  for the risk of additional future response costs or response 
  7.27  action requirements.  The agency may require as a term of a 
  7.28  settlement under this subdivision that the settling responsible 
  7.29  persons waive any rights they may have to bring a claim for 
  7.30  contribution against persons who are not parties to the 
  7.31  settlement. 
  7.32     (c) All amounts paid to the agency under a settlement 
  7.33  entered into pursuant to this subdivision shall be deposited in 
  7.34  the account and are appropriated to the agency to pay for 
  7.35  response actions and associated administrative and legal costs 
  7.36  related to the release addressed in the settlement, including 
  8.1   reimbursement for response costs under subdivision 19. 
  8.2      Sec. 9.  Minnesota Statutes 1996, section 115B.17, is 
  8.3   amended by adding a subdivision to read: 
  8.4      Subd. 21.  [OFFICIAL CONTROLS ADOPTED BY POLITICAL 
  8.5   SUBDIVISION.] Nothing in sections 115B.01 to 115B.18 authorizes 
  8.6   the agency or the commissioner to adopt any land use plan, 
  8.7   zoning requirement, building code requirement, official map, or 
  8.8   similar control for any site or facility.  However, the agency 
  8.9   or commissioner may incorporate official controls adopted by a 
  8.10  political subdivision as institutional controls associated with 
  8.11  remedial action. 
  8.12     Sec. 10.  Minnesota Statutes 1996, section 115B.412, 
  8.13  subdivision 10, is amended to read: 
  8.14     Subd. 10.  [REPORT.] By October December 1 of each year, 
  8.15  the commissioner shall report to the environment and natural 
  8.16  resources committees and to the appropriate finance committees 
  8.17  of the senate and the house of representatives on the 
  8.18  commissioner's activities under sections 115B.39 to 115B.43 and 
  8.19  the commissioner's anticipated activities during future fiscal 
  8.20  years. 
  8.21     Sec. 11.  Minnesota Statutes 1996, section 115B.48, 
  8.22  subdivision 3, is amended to read: 
  8.23     Subd. 3.  [DRYCLEANING FACILITY.] "Drycleaning facility" 
  8.24  means a facility located in this state that is or has been used 
  8.25  for a drycleaning operation, other than: 
  8.26     (1) a coin-operated drycleaning operation; 
  8.27     (2) a facility located on a United States military base; 
  8.28     (3) a uniform service or linen supply facility; 
  8.29     (4) a prison or other penal institution; 
  8.30     (5) a facility on the national priorities list established 
  8.31  under the Federal Superfund Act; or 
  8.32     (6) a facility at which a response action has been taken or 
  8.33  started under section 115B.17 before July 1, 1995, except as 
  8.34  authorized in a settlement agreement approved by the 
  8.35  commissioner by July 1, 1997. 
  8.36     Sec. 12.  Minnesota Statutes 1996, section 115B.48, 
  9.1   subdivision 8, is amended to read: 
  9.2      Subd. 8.  [FULL-TIME EQUIVALENCE.] "Full-time equivalence" 
  9.3   means 2,000 hours worked by employees, owners, and others, at 
  9.4   duties related to the drycleaning operation in a drycleaning 
  9.5   facility during a 12-month period beginning July 1 of the 
  9.6   preceding year and running through June 30 of the year in which 
  9.7   the annual registration fee is due.  For those drycleaning 
  9.8   facilities that were in business less than the 12-month period, 
  9.9   full-time equivalence means the total of all of the hours worked 
  9.10  at duties related to the drycleaning operation in the 
  9.11  drycleaning facility, divided by 2,000 and multiplied by a 
  9.12  fraction, the numerator of which is 50 and the denominator of 
  9.13  which is the number of weeks in business during the reporting 
  9.14  period. 
  9.15     Sec. 13.  Minnesota Statutes 1996, section 115B.49, 
  9.16  subdivision 4, is amended to read: 
  9.17     Subd. 4.  [REGISTRATION; FEES.] (a) The owner or operator 
  9.18  of a drycleaning facility shall register on or before July 1 of 
  9.19  each year with the commissioner of revenue in a manner 
  9.20  prescribed by the commissioner of revenue and pay a registration 
  9.21  fee for the facility.  The amount of the fee is: 
  9.22     (1) $500, for facilities with a full-time equivalence of 
  9.23  fewer than five; 
  9.24     (2) $1,000, for facilities with a full-time equivalence of 
  9.25  five to ten; and 
  9.26     (3) $1,500, for facilities with a full-time equivalence of 
  9.27  more than ten. 
  9.28     (b) A person who sells drycleaning solvents for use by 
  9.29  drycleaning facilities in the state shall collect and remit to 
  9.30  the commissioner of revenue in a manner prescribed by the 
  9.31  commissioner of revenue, on or before the 20th day of the month 
  9.32  following the month in which the sales of drycleaning solvents 
  9.33  are made, a fee of: 
  9.34     (1) $3.50 for each gallon of perchloroethylene sold for use 
  9.35  by drycleaning facilities in the state; and 
  9.36     (2) 70 cents for each gallon of hydrocarbon-based 
 10.1   drycleaning solvent sold for use by drycleaning facilities in 
 10.2   the state. 
 10.3      (c) The commissioner shall, after a public hearing but 
 10.4   notwithstanding section 16A.1285, subdivision 4, annually adjust 
 10.5   the fees in this subdivision as necessary to maintain an 
 10.6   unencumbered balance in the account annual income of at least 
 10.7   $1,000,000: 
 10.8      (1) $600,000 beginning July 1, 1997; 
 10.9      (2) $700,000 beginning July 1, 1998; and 
 10.10     (3) $800,000 beginning July 1, 1999. 
 10.11  Any adjustment under this paragraph must be prorated among all 
 10.12  the fees in this subdivision.  Fees adjusted under this 
 10.13  paragraph may not exceed 200 percent of the fees in this 
 10.14  subdivision After adjustment under this paragraph, the fees in 
 10.15  this subdivision must not be greater than two times their 
 10.16  original amount.  The commissioner shall notify the commissioner 
 10.17  of revenue of an adjustment under this paragraph no later than 
 10.18  March 1 of the year in which the adjustment is to become 
 10.19  effective.  The adjustment is effective for sales of drycleaning 
 10.20  solvents made, and annual registration fees due, beginning on 
 10.21  July 1 of the same year. 
 10.22     (d) To enforce this subdivision, the commissioner of 
 10.23  revenue may examine documents, assess and collect fees, conduct 
 10.24  investigations, issue subpoenas, grant extensions to file 
 10.25  returns and pay fees, impose penalties and interest on the 
 10.26  annual registration fee under paragraph (a) and the monthly fee 
 10.27  under paragraph (b), abate penalties and interest, and 
 10.28  administer appeals, in the manner provided in chapters 270 and 
 10.29  289A.  The penalties and interest imposed on taxes under chapter 
 10.30  297A apply to the fees imposed under this subdivision.  
 10.31  Disclosure of data collected by the commissioner of revenue 
 10.32  under this subdivision is governed by chapter 270B. 
 10.33     Sec. 14.  [EFFECTIVE DATE.] 
 10.34     Sections 1, 2, and 4 to 8 are effective July 1, 1997.  
 10.35  Section 4 applies to any interest in real property acquired by 
 10.36  the agency under Minnesota Statutes, section 115B.17, 
 11.1   subdivision 15, regardless of whether the interest was acquired 
 11.2   before or after the effective date of section 4.  Sections 11 to 
 11.3   13 are effective the day following final enactment.