Minnesota Session Laws - 1988, Regular Session

  

                         Laws of Minnesota 1988 

                        CHAPTER 651-S.F.No. 412 
           An act relating to real property; creating a lien 
          against real property where the state has incurred 
          cleanup expenses and the owner is liable for the 
          expenses under Minnesota Statutes, chapter 115B or 
          115C; providing procedures for implementation and 
          enforcement of the lien; proposing coding for new law 
          in Minnesota Statutes, chapter 514. 
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 

          ENVIRONMENTAL LIEN FOR STATE CLEANUP ACTION EXPENSES 
    Section 1.  [514.671] [DEFINITIONS.] 
    Subdivision 1.  [APPLICABILITY.] The definitions in this 
section apply to sections 1 to 6.  
    Subd. 2.  [AGENCY.] "Agency" means the pollution control 
agency. 
    Subd. 3.  [CLEANUP ACTION.] "Cleanup action" means 
corrective action or response action. 
    Subd. 4.  [CLEANUP ACTION EXPENSES.] "Cleanup action 
expenses" means expenses incurred for cleanup action under 
section 115B.17 or 115C.03, that are recoverable by the state 
under section 115B.04 or 115C.04. 
    Subd. 5.  [COMMISSIONER.] "Commissioner" means the 
commissioner of the pollution control agency. 
    Subd. 6.  [CORRECTIVE ACTION.] "Corrective action" has the 
meaning given in section 115C.02, subdivision 4. 
    Subd. 7.  [ENVIRONMENTAL LIEN.] "Environmental lien" means 
a lien for cleanup action expenses under sections 1 to 6.  
    Subd. 8.  [RELEASE.] "Release" in relation to a substance 
entering the environment has the meanings given in sections 
115B.02, subdivision 15, and 115C.02, subdivision 12. 
    Subd. 9.  [RESPONSE ACTION.] "Response action" means 
remedial and removal action as defined in section 115B.02, 
subdivisions 16 and 17. 
    Sec. 2.  [514.672] [ENVIRONMENTAL LIEN.] 
    Subdivision 1.  [LIEN AMOUNT; PROPERTY SUBJECT TO 
LIEN.] All cleanup action expenses for which a person is liable 
to the state under section 115B.04 or 115C.04, constitute a lien 
in favor of the state upon all real property that:  
    (1) is owned by the person at the time the environmental 
lien notice is filed; and 
    (2) is subject to or affected by the cleanup action. 
    Subd. 2.  [ATTACHMENT.] An environmental lien attaches when:
    (1) cleanup action costs are first incurred by the state 
with respect to a cleanup action; 
    (2) the person referred to in subdivision 1 is provided, by 
certified or registered mail, written notice of potential 
liability; and 
    (3) a lien notice is filed as provided in section 3. 
    Subd. 3.  [CONTINUATION OF LIEN.] An environmental lien 
continues until the liability for the cleanup action costs, or a 
judgment against the person referred to in subdivision 1 arising 
out of the liability, is satisfied or becomes unenforceable 
through operation of the statute of limitations under section 
115B.11 or 541.05, subdivision 1, clause (2), unless the lien is 
released under subdivision 5. 
     Subd. 4.  [LIEN PRIORITY.] An environmental lien is subject 
to the rights of any other person, including an owner, 
purchaser, holder of a mortgage or security interest, or 
judgment lien creditor, whose interest is perfected before a 
lien notice has been filed as provided in section 3.  The rights 
of such other person must be afforded the same protections 
against an environmental lien as are afforded against a judgment 
lien which arises out of an unsecured obligation and which 
arises as of the time of the filing of the lien notice as 
provided in section 3.  
    Subd. 5.  [RELEASE.] (a) The commissioner shall release an 
environmental lien if: 
    (1) the environmental lien is satisfied; 
    (2) a legally enforceable agreement satisfactory to the 
agency under chapter 115B, or the commissioner under chapter 
115C, has been executed relating to taking the cleanup action or 
reimbursing the agency for the cleanup action expenses; 
    (3) a claim or judgment for the cleanup action expenses is 
satisfied; or 
    (4) the environmental lien is unenforceable. 
    (b) The commissioner or the agency may release an 
environmental lien if the attachment or enforcement of the 
environmental lien is determined by the agency or commissioner 
not to be in the public interest. 
    (c) An environmental lien is unenforceable if: 
    (1) the lien is unenforceable under subdivision 3; or 
    (2) a determination is made by a court that the 
environmental lien is unenforceable. 
    (d) The commissioner shall execute the release of an 
environmental lien and file the release as provided in section 
3, subdivision 2. 
    Sec. 3.  [514.673] [ENVIRONMENTAL LIEN NOTICE.] 
    Subdivision 1.  [CONTENTS.] An environmental lien notice 
must state:  
    (1) the name of the record owner of the real property where 
the environmental lien attached; 
    (2) the legal description of the real property where the 
environmental lien attached; 
    (3) a statement that the real property described in the 
notice is subject to or affected by a cleanup action for which 
cleanup action expenses have been incurred;  
    (4) a statement that the owner is potentially liable for 
cleanup action expenses under section 115B.04 or 115C.04; and 
    (5) a statement that an environmental lien has attached to 
the described real property. 
    Subd. 2.  [FILING.] Any notice, release, or other document 
required to be filed under sections 1 to 6 must be filed in the 
office of the county recorder or the registrar of titles of the 
county where the real property is located.  An attestation, 
certification, or acknowledgment is not required as a condition 
of filing.  The filing or mailing of any notice, release, or 
other document under sections 1 to 6 is the responsibility of 
the commissioner or the commissioner's designee.  A copy of an 
environmental lien notice must also be sent to each record owner 
and mortgagee of the real property by registered or certified 
mail. 
    Subd. 3.  [APPROVAL BY AGENCY OR PETROLEUM TANK RELEASE 
COMPENSATION BOARD.] (a) The commissioner may not file an 
environmental lien notice until the agency board for cleanup 
action expenses incurred under chapter 115B, or the petroleum 
tank release compensation board for cleanup action expenses 
incurred under chapter 115C, the person referred to in section 
2, subdivision 1, and each record owner and mortgagee of the 
real property have been notified in writing of the 
commissioner's intention to file the lien notice and the 
requirements for filing the lien under paragraph (b) have been 
met. 
    (b) By 30 days after receiving notification from the 
commissioner under paragraph (a), the agency board or petroleum 
tank release compensation board, after notice and opportunity 
for the person referred to in section 2, subdivision 1, to 
appear before the appropriate board, shall approve or disapprove 
of the filing of the lien by the commissioner.  If the 
appropriate board disapproves of the filing, the lien may not be 
filed.  If the appropriate board approves of the filing or, in 
the case of the petroleum tank release compensation board, takes 
no action on the matter within the 30 day period, the 
commissioner may file the lien notice.  
    Sec. 4.  [514.674] [LIEN ENFORCEMENT: LIMITATION.] 
    Subdivision 1.  [FORECLOSURE PROCEDURE.] Subject to the 
provisions of subdivision 2, an environmental lien may be 
enforced by foreclosure in the manner provided for foreclosure 
of judgment liens under chapter 550.  
    Subd. 2.  [PROPERTY USED FOR PRODUCTION OF INCOME.] If the 
person referred to in section 2, subdivision 1, used the real 
property for the production of income at the time the lien 
attached, the lien may not be foreclosed until the person ceases 
to use the property for the production of income or the real 
property is transferred to another person.  An environmental 
lien upon real property subject to this foreclosure limitation 
remains enforceable notwithstanding any law limiting the 
enforceability of a judgment arising out of the liability of the 
person referred to in section 2, subdivision 1.  
    Sec. 5.  [514.675] [LIEN DOES NOT AFFECT OTHER REMEDIES.] 
     Nothing in sections 1 to 6 affects the right of the state 
to bring an action to recover cleanup action expenses under 
section 115B.04 or 115C.04.  
    Sec. 6.  [514.676] [AMOUNTS RECEIVED TO SATISFY LIEN.] 
    Amounts received by the agency to satisfy all or a part of 
an environmental lien must be deposited in the state treasury 
and credited to the fund from which the expenses were paid. 
    Approved April 26, 1988