Minnesota Session Laws - 1998, Regular Session

                            CHAPTER 341-H.F.No. 3297 
                  An act relating to the environment; clarifying the 
                  liability of contractors performing certain response 
                  and development actions under MERLA; clarifying time 
                  for filing an action under MERLA; requiring public 
                  notice of proposed response actions; requiring a 
                  study; amending Minnesota Statutes 1996, sections 
                  115B.03, by adding a subdivision; 115B.11; and 
                  115B.17, by adding a subdivision. 
        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
           Section 1.  Minnesota Statutes 1996, section 115B.03, is 
        amended by adding a subdivision to read: 
           Subd. 10.  [CONTRACTORS.] (a) For the purposes of this 
        subdivision, "contractor" means a person who is not otherwise 
        responsible for a release or threatened release of a hazardous 
        substance, or a pollutant or contaminant, and who, under 
        contract with another person: 
           (1) performs response actions, including investigative, 
        removal, or remedial actions to address the release or 
        threatened release pursuant to a plan approved by the 
        commissioner; or 
           (2) performs development actions at the site of the release 
        or threatened release, such as site preparation, engineering, 
        construction, and similar actions with respect to which the 
        commissioner approves a contingency plan or other conditions 
        which the commissioner deems necessary to protect public health 
        or welfare or the environment. 
           (b) A contractor is not a responsible person for a release 
        or threatened release solely as the result of performing 
        response actions to address that release or threatened release 
        if the contractor performs the response actions in accordance 
        with a plan approved by the commissioner. 
           (c) A contractor who performs development actions, such as 
        site preparation, engineering, construction, or similar actions, 
        at the site of a release or threatened release is not 
        responsible for the release or threatened release solely as a 
        result of performing the development actions if the contractor 
        complies with a contingency plan or other conditions approved by 
        the commissioner.  The contractor must obtain approval from the 
        commissioner for the contingency plan or other conditions: 
           (1) for a site with a known release or threatened release, 
        before the contractor commences the development actions; or 
           (2) for a site with a release or threatened release 
        discovered during the contractor's performance of the 
        development actions, before the contractor performs further 
        development actions at the site after discovery of the release 
        or threatened release. 
           (d) This subdivision shall not apply to a contractor who 
        causes or contributes to a release or threatened release by an 
        act or omission that is negligent, grossly negligent, or that 
        constitutes intentional misconduct. 
           Sec. 2.  Minnesota Statutes 1996, section 115B.11, is 
        amended to read: 
           115B.11 [STATUTE OF LIMITATIONS.] 
           Subdivision 1.  [CONSTRUCTION.] For the purposes of this 
        section, "construction" means actions taken after the selection 
        of remedial action such as excavation, building of structures, 
        installation of equipment or fixtures, and other physical 
        actions to respond to a release or threatened release. 
           Subd. 2.  [ACTION FOR RECOVERY OF COSTS.] (a) An action for 
        recovery of response costs under section 115B.04, including 
        recovery of costs and expenses under section 115B.17, 
        subdivision 6, may be commenced any time after costs and 
        expenses have been incurred but must be commenced no later than 
        six years after initiation of physical on-site construction of a 
        response action.  
           (b) A party prevailing in an action commenced within the 
        time required under paragraph (a) shall be entitled to a 
        declaratory judgment of liability for all future reasonable and 
        necessary costs incurred by that party to respond to the release 
        or threatened release, including costs and expenses under 
        section 115B.17, subdivision 6. 
           Subd. 3.  [ACTION FOR DAMAGES.] No person may 
        recover damages pursuant to sections 115B.01 to 115B.15 unless 
        the action is commenced within six years from the date when the 
        cause of action accrues.  In determining when the cause of 
        action accrues for an action to recover damages for death, 
        personal injury or disease, the court shall consider factors 
        including the following:  
           (a) When the plaintiff discovered the injury or loss; 
           (b) Whether a personal injury or disease had sufficiently 
        manifested itself; and 
           (c) When the plaintiff discovered, or using due diligence 
        should have discovered, a causal connection between the injury, 
        disease, or loss and the release of a hazardous substance.  
           Sec. 3.  Minnesota Statutes 1996, section 115B.17, is 
        amended by adding a subdivision to read: 
           Subd. 2b.  [PUBLIC NOTICE OF PROPOSED RESPONSE 
        ACTIONS.] Before selecting a remedial action to respond to a 
        release or threatened release listed pursuant to subdivision 13, 
        the commissioner shall give written notice of the proposed 
        remedial action to the public by publication of a notice in a 
        newspaper of general circulation in the affected area, and 
        provide an opportunity for submission of comments on the 
        proposed remedial action.  The notice shall also be given by 
        certified mail to all persons known to the commissioner at the 
        time of the notice who the commissioner has reason to believe 
        are responsible for the release or threatened release, including 
        all persons who have previously received a request for response 
        action under subdivision 1 with respect to the release or 
        threatened release. 
           Sec. 4.  [STUDY REGARDING EFFECT OF CHANGES TO STATUTE OF 
        LIMITATIONS.] 
           The commissioner of the pollution control agency, in 
        consultation with other parties who may have cost recovery 
        claims, or their representatives, shall study the implications 
        of the amendments to the statute of limitations in section 2 on 
        both the state and any other parties.  By January 15, 1999, the 
        commissioner shall report to the legislature regarding the 
        following: 
           (1) the number of sites where the state has incurred 
        response costs; 
           (2) the number of potential and commenced cost recovery 
        actions brought by the state or other parties; and 
           (3) estimated fiscal impact of the legislative change on 
        the state and other parties. 
           Sec. 5.  [EFFECTIVE DATE.] 
           Sections 1 to 3 are effective the day following final 
        enactment.  Section 1 applies to response actions and 
        development actions performed after that date.  Section 2 
        applies to actions for recovery of costs commenced on or after 
        that date.  Response costs incurred before the effective date of 
        section 2 are recoverable in an action commenced on or after the 
        effective date of section 2 only if physical on-site 
        construction of the response action was initiated not more than 
        six years before the cost recovery action is commenced.  
        Notwithstanding any provision in this act to the contrary, the 
        running of the statute of limitations imposed by section 2 with 
        respect to cost recovery actions is suspended until July 1, 
        1999.  Section 2 shall not apply to any litigation pending in 
        court on the date of enactment if the statute of limitations 
        under Minnesota Statutes, chapter 115B, has been contested in 
        the litigation.  Section 2 shall not be offered by any party as 
        evidence of the intent, meaning, or application of the statute 
        of limitations under Minnesota Statutes, chapter 115B. 
           Presented to the governor March 27, 1998 
           Signed by the governor March 31, 1998, 10:48 a.m.