Minnesota Legislature
Office of the Revisor of Statutes
Minnesota Session Laws - 1983, Regular Session
Key: (1) language to be deleted (2) new language
Laws of Minnesota 1983
CHAPTER 121--H.F.No. 76
An act relating to the environment; establishing an
environmental response, compensation and compliance
fund to pay for removal and remedial action associated
with certain hazardous substances released into the
environment and for other purposes; providing for
liability for cleanup costs, personal injury, economic
loss, and damage to natural resources resulting from
releases of hazardous substances; providing for
studies; imposing taxes, fees, and penalties;
providing for injunctive relief; appropriating money;
amending Minnesota Statutes 1982, sections 115A.24,
subdivision 1; 466.01, by adding a subdivision; and
466.04, subdivision 1; proposing new law coded in
Minnesota Statutes, chapter 116; proposing new law
coded as Minnesota Statutes, chapter 115B; repealing
Minnesota Statutes 1982, section 115A.24, subdivision
2.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1. [115B.01] [CITATION.]
Sections 1 to 24 may be cited as the Environmental Response
and Liability Act.
Sec. 2. [115B.02] [DEFINITIONS.]
Subdivision 1. [APPLICATION.] For the purposes of sections
1 to 20, the following terms have the meanings given them.
Subd. 2. [ACT OF GOD.] "Act of God" means an unanticipated
grave natural disaster or other natural phenomenon of an
exceptional, inevitable, and irresistible character, the effects
of which could not have been prevented or avoided by the
exercise of due care or foresight.
Subd. 3. [AGENCY.] "Agency" means the pollution control
agency.
Subd. 4. [DIRECTOR.] "Director" means the director of the
pollution control agency.
Subd. 5. [FACILITY.] "Facility" means:
(a) Any building, structure, installation, equipment, pipe
or pipeline (including any pipe into a sewer or publicly owned
treatment works), well, pit, pond, lagoon, impoundment, ditch,
landfill, storage container, motor vehicle, rolling stock, or
aircraft;
(b) Any watercraft of any description, or other artificial
contrivance used or capable of being used as a means of
transportation on water; or
(c) Any site or area where a hazardous substance, or a
pollutant or contaminant, has been deposited, stored, disposed
of, or placed, or otherwise come to be located.
"Facility" does not include any consumer product in
consumer use.
Subd. 6. [FEDERAL SUPERFUND ACT.] "Federal Superfund Act"
means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. Section 9601 et seq.
Subd. 7. [FUND.] "Fund" means the environmental response,
compensation and compliance fund established under section 20.
Subd. 8. [HAZARDOUS SUBSTANCE.] "Hazardous substance"
means:
(a) Any commercial chemical designated pursuant to the
Federal Water Pollution Control Act, under 33 U.S.C. Section
1321(b)(2)(A);
(b) Any hazardous air pollutant listed pursuant to the
Clean Air Act, under 42 U.S.C. Section 7412; and
(c) Any hazardous waste.
"Hazardous substance" does not include natural gas, natural
gas liquids, liquefied natural gas, synthetic gas usable for
fuel, or mixtures of such synthetic gas and natural gas, nor
does it include petroleum, including crude oil or any fraction
thereof which is not otherwise a hazardous waste.
Subd. 9. [HAZARDOUS WASTE.] "Hazardous waste" means:
(a) Any hazardous waste as defined in section 116.06,
subdivision 13, and any substance identified as a hazardous
waste pursuant to rules adopted by the agency under section
116.07; and
(b) Any hazardous waste as defined in the Resource
Conservation and Recovery Act, under 42 U.S.C. Section 6903,
which is listed or has the characteristics identified under 42
U.S.C. Section 6921, not including any hazardous waste the
regulation of which has been suspended by act of Congress.
Subd. 10. [NATURAL RESOURCES.] "Natural resources" has the
meaning given it in section 116B.02, subdivision 4.
Subd. 11. [OWNER OF REAL PROPERTY.] "Owner of real
property" means a person who is in possession of, has the right
of control, or controls the use of real property, including
without limitation a person who may be a fee owner, lessee,
renter, tenant, lessor, contract for deed vendee, licensor,
licensee, or occupant; provided that:
(1) A lessor of real property under a lease which in
substance is a financing device and is treated as such under the
United States Internal Revenue Code, common law, or statute, is
not an owner of the real property;
(2) A public utility holding a public utility easement is
an owner of the real property described in the easement only for
the purpose of carrying out the specific use for which the
easement was granted; and
(3) Any person holding a remainder or other nonpossessory
interest or estate in real property is an owner of the real
property beginning when that person's interest or estate in the
real property vests in possession or that person obtains the
unconditioned right to possession, or to control the use of, the
real property.
Subd. 12. [PERSON.] "Person" means any individual,
partnership, association, public or private corporation or other
entity including the United States government, any interstate
body, the state and any agency, department or political
subdivision of the state.
Subd. 13. [POLLUTANT OR CONTAMINANT.] "Pollutant or
contaminant" means any element, substance, compound, mixture, or
agent, other than a hazardous substance, which after release
from a facility and upon exposure of, ingestion, inhalation, or
assimilation into any organism, either directly from the
environment or indirectly by ingestion through food chains, will
or may reasonably be anticipated to cause death, disease,
behavioral abnormalities, cancer, genetic mutation,
physiological malfunctions (including malfunctions in
reproduction) or physical deformations, in the organisms or
their offspring.
"Pollutant or contaminant" does not include natural gas,
natural gas liquids, liquefied natural gas, synthetic gas usable
for fuel, or mixtures of such synthetic gas and natural gas.
Subd. 14. [PUBLIC UTILITY EASEMENT.] "Public utility
easement" means an easement used for the purposes of
transmission, distribution, or furnishing, at wholesale or
retail, natural or manufactured gas, or electric or telephone
service, by a public utility as defined in section 216B.02,
subdivision 4, a cooperative electric association organized
under the provisions of chapter 308, a telephone company as
defined in section 237.01, subdivisions 2 and 3, or a
municipality producing or furnishing gas, electric, or telephone
service.
Subd. 15. [RELEASE.] "Release" means any spilling,
leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping, or disposing into the
environment which occurred at a point in time or which continues
to occur.
"Release" does not include:
(a) Emissions from the engine exhaust of a motor vehicle,
rolling stock, aircraft, watercraft, or pipeline pumping station
engine;
(b) Release of source, byproduct, or special nuclear
material from a nuclear incident, as those terms are defined in
the Atomic Energy Act of 1954, under 42 U.S.C. Section 2014, if
the release is subject to requirements with respect to financial
protection established by the federal nuclear regulatory
commission under 42 U.S.C. Section 2210;
(c) Release of source, byproduct or special nuclear
material from any processing site designated pursuant to the
Uranium Mill Tailings Radiation Control Act of 1978, under 42
U.S.C. Section 7912(a)(1) or 7942(a); or
(d) Any release resulting from the application of
fertilizer or agricultural or silvicultural chemicals, or
disposal of emptied pesticide containers or residues from a
pesticide as defined in section 18A.21, subdivision 25.
Subd. 16. [REMEDY OR REMEDIAL ACTION.] "Remedy" or
"remedial action" means those actions consistent with permanent
remedy taken instead of or in addition to removal actions in the
event of a release or threatened release of a hazardous
substance, or a pollutant or contaminant, into the environment,
to prevent, minimize or eliminate the release in order to
protect the public health or welfare or the environment.
"Remedy" or "remedial action" includes, but is not limited
to:
(a) Actions at the location of the release such as storage,
confinement, perimeter protection using dikes, trenches, or
ditches, clay cover, neutralization, cleanup of released
hazardous substances, pollutants or contaminants, or
contaminated materials, recycling or reuse, diversion,
destruction, segregation of reactive wastes, dredging or
excavations, repair or replacement of leaking containers,
collection of leachate and runoff, onsite treatment or
incineration, provision of alternative water supplies, and any
monitoring and maintenance reasonably required to assure that
these actions protect the public health and welfare and the
environment; and
(b) The costs of permanent relocation of residents and
businesses and community facilities when the agency determines
that, alone or in combination with other measures, relocation is
more cost effective than and environmentally preferable to the
transportation, storage, treatment, destruction, or secure
disposition offsite of hazardous substances, or pollutants or
contaminants, or may otherwise be necessary to protect the
public health or welfare.
"Remedy" or "remedial action" does not include offsite
transport of hazardous substances, pollutants or contaminants,
or contaminated materials or their storage, treatment,
destruction, or secure disposition offsite unless the agency
determines that these actions:
(1) Are more cost effective than other remedial actions;
(2) Will create new capacity to manage hazardous substances
in addition to those located at the affected facility, in
compliance with section 116.07 and subtitle C of the Solid Waste
Disposal Act, 42 U.S.C. Section 6921 et seq.; or
(3) Are necessary to protect the public health or welfare
or the environment from a present or potential risk which may be
created by further exposure to the continued presence of the
hazardous substances, pollutants or contaminants, or
contaminated materials.
Subd. 17. [REMOVE OR REMOVAL.] "Remove" or "removal" means:
(a) The cleanup or removal of a released hazardous
substance, or a pollutant or contaminant, from the environment;
(b) Necessary actions taken in the event of a threatened
release of a hazardous substance, or a pollutant or contaminant,
into the environment;
(c) Actions necessary to monitor, test, analyze, and
evaluate a release or threatened release of a hazardous
substance, or a pollutant or contaminant;
(d) Disposal or processing of removed material; or
(e) Other actions necessary to prevent, minimize, or
mitigate damage to the public health or welfare or the
environment, which may otherwise result from a release or
threatened release.
"Remove" or "removal" includes, but is not limited to,
security fencing or other measures to limit access, provision of
alternative water supplies, temporary evacuation and housing of
threatened individuals not otherwise provided for, action taken
pursuant to the Federal Superfund Act, under 42 U.S.C. Section
9604(b), and any emergency assistance which may be provided
under the Disaster Relief Act of 1974, 42 U.S.C. Section 5121 et
seq.
Subd. 18. [RESPOND OR RESPONSE.] "Respond" or "response"
means remove, removal, remedy, and remedial action.
Subd. 19. [WATER.] "Water" has the meaning given to the
term "waters of the state" in section 115.01, subdivision 9.
Sec. 3. [115B.03] [RESPONSIBLE PERSON.]
Subdivision 1. [GENERAL RULE.] For the purposes of
sections 1 to 20, and except as provided in subdivisions 2 and
3, a person is responsible for a release or threatened release
of a hazardous substance, or a pollutant or contaminant, from a
facility if the person:
(a) Owned or operated the facility:
(1) when the hazardous substance, or pollutant or
contaminant, was placed or came to be located in or on the
facility;
(2) when the hazardous substance, or pollutant or
contaminant, was located in or on the facility but before the
release; or
(3) during the time of the release or threatened release;
(b) Owned or possessed the hazardous substance, or
pollutant or contaminant, and arranged, by contract, agreement
or otherwise, for the disposal, treatment or transport for
disposal or treatment of the hazardous substance, or pollutant
or contaminant; or
(c) Knew or reasonably should have known that waste he
accepted for transport to a disposal or treatment facility
contained a hazardous substance, or pollutant or contaminant,
and either selected the facility to which it was transported or
disposed of it in a manner contrary to law.
Subd. 2. [EMPLOYEES AND EMPLOYERS.] When a person who is
responsible for a release or threatened release as provided in
subdivision 1 is an employee who is acting in the scope of his
employment:
(a) The employee is subject to liability under section 4 or
5 only if his conduct with respect to the hazardous substance
was negligent under circumstances in which he knew that the
substance was hazardous and that his conduct, if negligent,
could result in serious harm.
(b) His employer shall be considered a person responsible
for the release or threatened release and is subject to
liability under section 4 or 5 regardless of the degree of care
exercised by the employee.
Subd. 3. [OWNER OF REAL PROPERTY.] An owner of real
property is not a person responsible for the release or
threatened release of a hazardous substance from a facility in
or on the property unless that person:
(a) was engaged in the business of generating,
transporting, storing, treating, or disposing of a hazardous
substance at the facility or disposing of waste at the facility,
or knowingly permitted others to engage in such a business at
the facility;
(b) knowingly permitted any person to make regular use of
the facility for disposal of waste;
(c) knowingly permitted any person to use the facility for
disposal of a hazardous substance;
(d) knew or reasonably should have known that a hazardous
substance was located in or on the facility at the time right,
title, or interest in the property was first acquired by the
person and engaged in conduct by which he associated himself
with the release; or
(e) took action which significantly contributed to the
release after he knew or reasonably should have known that a
hazardous substance was located in or on the facility.
For the purpose of clause (d), a written warranty,
representation, or undertaking, which is set forth in an
instrument conveying any right, title or interest in the real
property and which is executed by the person conveying the
right, title or interest, or which is set forth in any
memorandum of any such instrument executed for the purpose of
recording, is admissible as evidence of whether the person
acquiring any right, title, or interest in the real property
knew or reasonably should have known that a hazardous substance
was located in or on the facility.
Any liability which accrues to an owner of real property
under sections 1 to 15 does not accrue to any other person who
is not an owner of the real property merely because the other
person holds some right, title, or interest in the real property.
An owner of real property on which a public utility
easement is located is not a responsible person with respect to
any release caused by any act or omission of the public utility
which holds the easement in carrying out the specific use for
which the easement was granted.
Sec. 4. [115B.04] [LIABILITY FOR RESPONSE COSTS AND
NATURAL RESOURCES; LIMITATIONS AND DEFENSES.]
Subdivision 1. [LIABILITY.] Except as otherwise provided
in subdivisions 2 to 12, and notwithstanding any other provision
or rule of law, any person who is responsible for a release or
threatened release of a hazardous substance from a facility is
strictly liable, jointly and severally, for the following
response costs and damages which result from the release or
threatened release or to which the release or threatened release
significantly contributes:
(a) All reasonable and necessary response costs incurred by
the state, a political subdivision of the state or the United
States;
(b) All reasonable and necessary removal costs incurred by
any person; and
(c) All damages for any injury to, destruction of, or loss
of natural resources, including the reasonable costs of
assessing such injury, destruction, or loss.
Subd. 2. [LIABILITY FOR POLLUTANT OR CONTAMINANT
EXCLUDED.] There is no liability under this section for response
costs or damages which result from the release of a pollutant or
contaminant.
Subd. 3. [LIABILITY FOR A THREATENED RELEASE.] Liability
under this section for a threatened release of a hazardous
substance is limited to the recovery by the agency of reasonable
and necessary response costs as provided in section 17,
subdivision 6.
Subd. 4. [LIABILITY OF POLITICAL SUBDIVISIONS.] The
liability of a political subdivision under this section is
subject to the limits imposed under section 466.04, subdivision
1.
Subd. 5. [TRANSPORTATION OF HOUSEHOLD REFUSE.] A person
who accepts only household refuse for transport to a treatment
or disposal facility is not liable under this section for the
release or threatened release of any hazardous substance unless
he knew or reasonably should have known that the hazardous
substance was present in the refuse. For the purpose of this
subdivision, household refuse means garbage, trash, or septic
tank sanitary wastes generated by single or multiple residences,
hotels, motels, restaurants and other similar facilities.
Subd. 6. [DEFENSE TO CERTAIN CLAIMS BY POLITICAL
SUBDIVISIONS AND PRIVATE PERSONS.] It is a defense to a claim by
a political subdivision or private person for recovery of the
costs of its response actions under this section that the
hazardous substance released from the facility was placed or
came to be located in or on the facility before April 1, 1982,
and that the response actions of the political subdivision or
private person were not authorized by the agency as provided in
section 17, subdivision 12. This defense applies only to
response costs incurred on or after July 1, 1983.
Subd. 7. [DEFENSE FOR INTERVENING ACTS.] It is a defense
to liability under this section that the release or threatened
release was caused solely by:
(a) An act of God;
(b) An act of war;
(c) An act of vandalism or sabotage; or
(d) An act or omission of a third party or the plaintiff.
"Third party" for the purposes of clause (d) does not
include an employee or agent of the defendant, or a person in
the chain of responsibility for the generation, transportation,
storage, treatment, or disposal of the hazardous substance.
The defenses provided in clauses (c) and (d) apply only if
the defendant establishes that he exercised due care with
respect to the hazardous substance concerned, taking into
consideration the characteristics of the hazardous substance in
light of all relevant facts and circumstances which he knew or
should have known, and that he took precautions against
foreseeable acts or omissions and the consequences that could
foreseeably result from those acts or omissions.
Subd. 8. [INTERVENING ACTS OF PUBLIC AGENCIES.] When the
agency or the federal environmental protection agency assumes
control over any release or threatened release of a hazardous
substance by taking removal actions at the site of the release,
the persons responsible for the release are not liable under
sections 1 to 15 for any subsequent release of the hazardous
substance from another facility to which it has been removed.
Subd. 9. [RELEASES SUBJECT TO CERTAIN PERMITS OR
STANDARDS; FEDERAL POST-CLOSURE FUND.] It is a defense to
liability under this section that:
(a) The release or threatened release was from a hazardous
waste facility as defined under section 115A.03, for which a
permit had been issued pursuant to section 116.07 or pursuant to
subtitle C of the Solid Waste Disposal Act, 42 U.S.C. Section
6921 et seq., the hazardous substance was specifically
identified in the permit, and the release was within the limits
allowed in the permit for release of that substance;
(b) The hazardous substance released was specifically
identified in a federal or state permit and the release is
within the limits allowed in the permit;
(c) The release resulted from circumstances identified and
reviewed and made a part of the public record of a federal or
state agency with respect to a permit issued or modified under
federal or state law, and the release conformed with the permit;
(d) The release was any part of an emission or discharge
into the air or water and the emission or discharge was subject
to a federal or state permit and was in compliance with control
rules or regulations adopted pursuant to state or federal law;
(e) The release was the introduction of any hazardous
substance into a publicly owned treatment works and the
substance was specified in, and is in compliance with,
applicable pretreatment standards specified for that substance
under state and federal law; or
(f) Liability has been assumed by the federal post-closure
liability fund under 42 U.S.C. Section 9607(k).
Subd. 10. [NATURAL RESOURCES.] It is a defense to
liability under this section, for any injury to, destruction of,
or loss of natural resources that:
(a) The natural resources were specifically identified as
an irreversible and irretrievable commitment of natural
resources in an approved final state or federal environmental
impact statement, or other comparable approved final
environmental analysis for a project or facility which was the
subject of a governmental permit or license; and
(b) The project or facility was being operated within the
terms of its permit or license.
Subd. 11. [RENDERING ASSISTANCE IN RESPONSE ACTIONS.] It
is a defense to liability under this section that the response
costs or damages resulted from acts taken or omitted in
preparation for, or in the course of rendering care, assistance,
or advice to the director or agency pursuant to section 17 or in
accordance with the national hazardous substance response plan
pursuant to the Federal Superfund Act, under 42 U.S.C. Section
9605, or at the direction of an on-scene coordinator appointed
under that plan, with respect to any release or threatened
release of a hazardous substance.
Subd. 12. [BURDEN OF PROOF FOR DEFENSES.] Any person
claiming a defense provided in subdivisions 6 to 11 has the
burden to prove all elements of the defense by a preponderance
of the evidence.
Sec. 5. [115B.05] [LIABILITY FOR ECONOMIC LOSS, DEATH,
PERSONAL INJURY AND DISEASE; LIMITATIONS AND DEFENSES.]
Subdivision 1. [LIABILITY.] Except as otherwise provided
in subdivisions 2 to 10, and notwithstanding any other provision
or rule of law, any person who is responsible for the release of
a hazardous substance from a facility is strictly liable,
jointly and severally, for the following damages which result
from the release or to which the release significantly
contributes:
(a) All damages for actual economic loss including:
(1) Any injury to, destruction of, or loss of any real or
personal property, including relocation costs;
(2) Any loss of use of real or personal property;
(3) Any loss of past or future income or profits resulting
from injury to, destruction of, or loss of real or personal
property without regard to the ownership of the property; and
(b) All damages for death, personal injury, or disease
including:
(1) Any medical expenses, rehabilitation costs or burial
expenses;
(2) Any loss of past or future income, or loss of earning
capacity; and
(3) Damages for pain and suffering, including physical
impairment.
Subd. 2. [LIABILITY FOR POLLUTANT OR CONTAMINANT
EXCLUDED.] There is no liability under this section for damages
which result from the release of a pollutant or contaminant.
Subd. 3. [CERTAIN EMPLOYEE CLAIMS NOT COVERED.] Except for
a third party who is subject to liability under section 176.061,
subdivision 5, there is no liability under this section for the
death, personal injury or disease of an employee which is
compensable under chapter 176 as an injury or disease arising
out of and in the course of employment.
Subd. 4. [LIABILITY LIMITATIONS.] The liability of a
political subdivision under this section is subject to the
limits imposed under section 466.04, subdivision 1.
Subd. 5. [TRANSPORTATION OF HOUSEHOLD REFUSE.] A person
who accepts only household refuse for transport to a treatment
or disposal facility is not liable under this section for the
release or threatened release of any hazardous substance unless
he knew or reasonably should have known that the hazardous
substance was present in the refuse. For the purpose of this
subdivision, household refuse means garbage, trash, or septic
tank sanitary wastes generated by single or multiple residences,
hotels, motels, restaurants and other similar facilities.
Subd. 6. [DEFENSE FOR INTERVENING ACTS.] It is a defense
to liability under this section that the release or threatened
release was caused solely by:
(a) An act of God;
(b) An act of war;
(c) An act of vandalism or sabotage; or
(d) An act or omission of a third party or the plaintiff.
"Third party" for the purposes of clause (d) does not
include an employee or agent of the defendant, or a person in
the chain of responsibility for the generation, transportation,
storage, treatment, or disposal of the hazardous substance.
The defenses provided in clauses (c) and (d) apply only if
the defendant establishes that he exercised due care with
respect to the hazardous substance concerned, taking into
consideration the characteristics of the hazardous substance in
light of all relevant facts and circumstances which he knew or
should have known, and that he took precautions against
foreseeable acts or omissions and the consequences that could
foreseeably result from those acts or omissions.
Subd. 7. [INTERVENING ACTS OF PUBLIC AGENCIES.] When the
agency or the federal environmental protection agency assumes
control over any release or threatened release of a hazardous
substance by taking removal actions at the site of the release,
the persons responsible for the release are not liable under
sections 1 to 15 for any subsequent release of the hazardous
substance from another facility to which it has been removed.
Subd. 8. [RELEASES SUBJECT TO CERTAIN PERMITS OR STANDARDS;
FEDERAL POST-CLOSURE FUND.] It is a defense to liability under
this section that:
(a) The release or threatened release was from a hazardous
waste facility as defined under section 115A.03, for which a
permit had been issued pursuant to section 116.07 or pursuant to
subtitle C of the Solid Waste Disposal Act, 42 U.S.C. Section
6921 et seq., the hazardous substance was specifically
identified in the permit, and the release was within the limits
allowed in the permit for release of that substance;
(b) The hazardous substance released was specifically
identified in a federal or state permit and the release is
within the limits allowed in the permit;
(c) The release resulted from circumstances identified and
reviewed and made a part of the public record of a federal or
state agency with respect to a permit issued or modified under
federal or state law, and the release conformed with the permit;
(d) The release was any part of an emission or discharge
into the air or water and the emission or discharge was subject
to a federal or state permit and was in compliance with control
rules or regulations adopted pursuant to state or federal law;
(e) The release was the introduction of any hazardous
substance into a publicly owned treatment works and the
substance was specified in, and is in compliance with,
applicable pretreatment standards specified for that substance
under state and federal law; or
(f) Liability has been assumed by the federal post-closure
liability fund under 42 U.S.C. Section 9607(k).
Subd. 9. [RENDERING ASSISTANCE IN RESPONSE ACTIONS.] It is
a defense to liability under this section that the damages
resulted from acts taken or omitted in preparation for, or in
the course of rendering care, assistance, or advice to the
director or agency pursuant to section 17 or in accordance with
the national hazardous substance response plan pursuant to the
Federal Superfund Act, under 42 U.S.C. Section 9605, or at the
direction of an on-scene coordinator appointed under that plan,
with respect to any release or threatened release of a hazardous
substance.
Subd. 10. [BURDEN OF PROOF FOR DEFENSES.] Any person
claiming a defense provided in subdivisions 6 to 9 has the
burden to prove all elements of the defense by a preponderance
of the evidence.
Sec. 6. [115B.06] [APPLICATION TO PAST ACTIONS.]
Subdivision 1. [APPLICATION OF SECTION 5 AND ADDITIONAL
DEFENSE.] (a) A defendant in an action under section 5 has the
additional defense provided in subdivision 2 for damages caused
or significantly contributed to by the release of a hazardous
substance from a facility if the defendant shows that the
substance was placed or came to be located in or on the facility
wholly before January 1, 1973.
(b) Section 5 does not apply to any claim for damages
arising out of the release of a hazardous substance which was
placed or came to be located in or on the facility wholly before
January 1, 1960.
Subd. 2. [ADDITIONAL DEFENSE.] For a defendant who has
made the showing required in subdivision 1, clause (a), it is a
defense to liability under section 5 that the activity by which
the substance was kept, placed, or came to be located in or on
the facility was not an abnormally dangerous activity. The
determination of whether the activity was an abnormally
dangerous activity shall be made by the court.
Sec. 7. [115B.07] [CAUSATION.]
In any action brought under section 5 or any other law to
recover damages for death, personal injury, or disease arising
out of the release of a hazardous substance, the court may not
direct a verdict against the plaintiff on the issue of causation
if the plaintiff produces evidence sufficient to enable a
reasonable person to find that:
(a) the defendant is a person who is responsible for the
release;
(b) the plaintiff was exposed to the hazardous substance;
(c) the release could reasonably have resulted in
plaintiff's exposure to the substance in the amount and duration
experienced by the plaintiff; and
(d) the death, injury, or disease suffered by the plaintiff
is caused or significantly contributed to by exposure to the
hazardous substance in an amount and duration experienced by the
plaintiff.
Evidence to a reasonable medical certainty that exposure to
the hazardous substance caused or significantly contributed to
the death, injury, or disease is not required for the question
of causation to be submitted to the trier of fact.
Nothing in this section shall be construed to relieve the
plaintiff of the burden of proving that the defendant is a
person who is responsible for the release and of proving the
causal connection between the release of the hazardous substance
for which the defendant is a responsible person and the
plaintiff's death, injury, or disease.
Sec. 8. [115B.08] [LIABILITY UNDER SECTION 4;
APPORTIONMENT AND CONTRIBUTION.]
Subdivision 1. [RIGHT OF APPORTIONMENT; FACTORS.] Any
person held jointly and severally liable under section 4 has the
right at trial to have the trier of fact apportion liability
among the parties as provided in this section. The burden is on
each defendant to show how his liability should be apportioned.
The court shall reduce the amount of damages in proportion to
any amount of liability apportioned to the party recovering.
In apportioning the liability of any party under this
section, the trier of fact shall consider the following:
(a) The extent to which that party's contribution to the
release of a hazardous substance can be distinguished;
(b) The amount of hazardous substance involved;
(c) The degree of toxicity of the hazardous substance
involved;
(d) The degree of involvement of and care exercised by the
party in manufacturing, treating, transporting, and disposing of
the hazardous substance;
(e) The degree of cooperation by the party with federal,
state, or local officials to prevent any harm to the public
health or the environment; and
(f) Knowledge by the party of the hazardous nature of the
substance.
Subd. 2. [CONTRIBUTION.] If a person is held jointly and
severally liable under section 4 and establishes his
proportionate share of the aggregate liability, the provisions
of section 604.02, subdivisions 1 and 2, shall apply with
respect to contribution and reallocation of any uncollectible
amounts.
Sec. 9. [115B.09] [LIABILITY UNDER SECTION 5; COMPARATIVE
FAULT AND CONTRIBUTION.]
The provisions of sections 604.01, 604.02, subdivisions 1
and 2, apply to any action for damages under section 5, except
that, if the percentage of fault attributable to a defendant is
determined under section 604.01, the liability of the defendant
shall be limited to two times that percentage of the damages
recoverable in the action.
Sec. 10. [115B.10] [NO AVOIDANCE OF LIABILITY; INSURANCE
AND SUBROGATION.]
An owner or operator of a facility or any other person who
may be liable under sections 1 to 15 may not avoid that
liability by means of any conveyance of any right, title, or
interest in real property, or by any indemnification, hold
harmless agreement, or similar agreement. Nothing in this
section shall be construed:
(a) To prohibit any party who may be liable under sections
1 to 15 from entering an agreement by which that party is
insured, held harmless or indemnified for part or all of that
liability;
(b) To prohibit the enforcement of any insurance, hold
harmless or indemnification agreement; or
(c) To bar any cause of action brought by a party who may
be liable under sections 1 to 15 or by an insurer or guarantor,
whether by right of subrogation or otherwise.
Sec. 11. [115B.11] [STATUTE OF LIMITATIONS.]
No person may recover pursuant to sections 1 to 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. 12. [115B.12] [OTHER REMEDIES PRESERVED.]
Nothing in sections 1 to 15 shall be construed to abolish
or diminish any remedy or affect the right of any person to
bring a legal action or use any remedy available under any other
provision of state or federal law, including common law, to
recover for personal injury, disease, economic loss or response
costs arising out of a release of any hazardous substance, or
for removal or the costs of removal of that hazardous
substance. Nothing in sections 1 to 15 shall be construed to
limit or restrict in any way the liability of any person under
any other state or federal law, including common law, for loss
due to personal injury or disease, for economic loss, or for
response costs arising out of any release or threatened release
of a hazardous substance from a facility regardless of the time
at which a hazardous substance was placed or came to be located
in or on the facility. The provisions of sections 1 to 15 shall
not be considered, interpreted, or construed in any way as
reflecting a determination, in whole or in part, of policy
regarding the inapplicability of strict liability, or strict
liability doctrines under any other state or federal law,
including common law, to activities past, present or future,
relating to hazardous substances, or pollutants or contaminants,
or other similar activities.
Sec. 13. [115B.13] [DOUBLE RECOVERY PROHIBITED.]
A person who recovers response costs or damages pursuant to
sections 1 to 15 may not recover the same costs or damages
pursuant to any other law. A person who recovers response costs
or damages pursuant to any other state or federal law may not
recover for the same costs or damages pursuant to sections 1 to
15.
Sec. 14. [115B.14] [AWARD OF COSTS.]
Upon motion of a party prevailing in an action under
sections 1 to 15 the court may award costs, disbursements and
reasonable attorney fees and witness fees to that party.
Sec. 15. [115B.15] [APPLICATION OF SECTIONS 1 TO 14.]
Sections 1 to 14 apply to any release or threatened release
of a hazardous substance occurring on or after July 1, 1983,
including any release which began before July 1, 1983, and
continued after that date. Sections 1 to 14 do not apply to a
release or threatened release which occurred wholly before July
1, 1983, regardless of the date of discovery of any injury or
loss caused by the release or threatened release.
Sec. 16. [115B.16] [DISPOSITION OF FACILITIES.]
Subdivision 1. [CLOSED DISPOSAL FACILITIES; USE OF
PROPERTY.] No person shall use any property on or in which
hazardous waste remains after closure of a disposal facility as
defined in section 115A.03, subdivision 10, in any way that
disturbs the integrity of the final cover, liners, or any other
components of any containment system, or the function of the
disposal facility's monitoring systems, unless the agency finds
that the disturbance:
(a) Is necessary to the proposed use of the property, and
will not increase the potential hazard to human health or the
environment; or
(b) Is necessary to reduce a threat to human health or the
environment.
Subd. 2. [RECORDING OF AFFIDAVIT.] Before any transfer of
ownership of any property which the owner knew or should have
known was used as the site of a hazardous waste disposal
facility as defined in section 115A.03, subdivision 10, or which
the owner knew or should have known is subject to extensive
contamination by release of a hazardous substance, the owner
shall record with the county recorder of the county in which the
property is located an affidavit containing a legal description
of the property that discloses to any potential transferee:
(a) That the land has been used to dispose of hazardous
waste or that the land is contaminated by a release of a
hazardous substance;
(b) The identity, quantity, location, condition and
circumstances of the disposal or contamination to the full
extent known or reasonably ascertainable; and
(c) That the use of the property or some portion of it may
be restricted as provided in subdivision 1.
An owner must also file an affidavit within 60 days after
any material change in any matter required to be disclosed under
clauses (a) to (c) with respect to property for which an
affidavit has already been recorded.
If the owner or any subsequent owner of the property
removes the hazardous substance, together with any residues,
liner, and contaminated underlying and surrounding soil, that
owner may record an affidavit indicating the removal of the
hazardous substance.
Failure to record an affidavit as provided in this
subdivision does not affect or prevent any transfer of ownership
of the property.
Subd. 3. [DUTY OF COUNTY RECORDER.] The county recorder
shall record all affidavits presented to him in accordance with
subdivision 2. The affidavits shall be recorded in a manner
which will assure their disclosure in the ordinary course of a
title search of the subject property.
Subd. 4. [PENALTIES.] (a) Any person who knowingly
violates the provisions of subdivision 1 is subject to a civil
penalty in an amount determined by the court of not more than
$100,000, and shall be liable under sections 4 and 5 for any
release or threatened release of any hazardous substance
resulting from the violation.
(b) Any person who knowingly fails to record an affidavit
as required by subdivision 2 shall be liable under sections 4
and 5 for any release or threatened release of any hazardous
substance from a facility located on that property.
(c) A civil penalty may be imposed and recovered by an
action brought by a county attorney or by the attorney general
in the district court of the county in which the property is
located.
(d) Any civil fines recovered under this subdivision shall
be deposited in the fund.
Sec. 17. [115B.17] [STATE RESPONSE TO RELEASES.]
Subdivision 1. [REMOVAL AND REMEDIAL ACTION.] Whenever
there is a release or substantial threat of release from a
facility of any pollutant or contaminant which presents an
imminent and substantial danger to the public health or welfare
or the environment or whenever a hazardous substance is released
or there is a threatened release of a hazardous substance from a
facility:
(a) The agency may take any removal or remedial action
relating to the hazardous substance, or pollutant or
contaminant, which the agency deems necessary to protect the
public health or welfare or the environment. Before taking any
action the agency shall:
(1) Request any responsible party known to the agency to
take actions which the agency deems reasonable and necessary to
protect the public health or welfare or the environment, stating
the reasons for the actions, a reasonable time for beginning and
completing the actions taking into account the urgency of the
actions for protecting the public health or welfare or the
environment, and the intention of the agency to take action if
the requested actions are not taken as requested;
(2) Notify the owner of real property where the facility is
located or where response actions are proposed to be taken, if
the owner is not a responsible party, that responsible parties
have been requested to take response actions and that the
owner's cooperation will be required in order for responsible
parties or the agency to take those actions; and
(3) Determine that the actions requested by the agency will
not be taken by any known responsible party in the manner and
within the time requested.
(b) The director may take removal action which he deems
necessary to protect the public health or welfare or the
environment if the director determines that the release or
threatened release constitutes an emergency requiring immediate
action to prevent, minimize or mitigate damage to the public
health or welfare or the environment. Before taking any action
the director shall make reasonable efforts in light of the
urgency of the action to follow the procedure provided in clause
(a).
No removal action taken by any person shall be construed as
an admission of liability for a release or threatened release.
Subd. 2. [OTHER ACTIONS.] Whenever the agency or director
is authorized to act pursuant to subdivision 1 or whenever the
agency or director has reason to believe that a release of a
hazardous substance, or a pollutant or contaminant, has occurred
or is about to occur, or that illness, disease, or complaints
thereof may be attributable to exposure to a hazardous
substance, or a pollutant or contaminant, the agency or director
may undertake investigations, monitoring, surveys, testing, and
other similar activities necessary or appropriate to identify
the existence and extent of the release or threat thereof, the
source and nature of the hazardous substances, or pollutants or
contaminants, and the extent of danger to the public health or
welfare or the environment. In addition, the agency may
undertake planning, legal, fiscal, economic, engineering,
architectural, and other studies or investigations necessary or
appropriate to plan and direct a response action, to recover the
costs of the response action, and to enforce the provisions of
sections 1 to 18.
Subd. 3. [DUTY TO PROVIDE INFORMATION.] Any person who the
agency has reason to believe is responsible for a release or
threatened release as provided in section 3, or who is the owner
of real property where the release or threatened release is
located or where response actions are proposed to be taken, when
requested by the agency, or any member, employee or agent
thereof who is authorized by the agency, shall furnish to the
agency any information which he may have or may reasonably
obtain which is relevant to the release or threatened release.
Subd. 4. [ACCESS TO INFORMATION AND PROPERTY.] The agency
or any member, employee or agent thereof authorized by the
agency, upon presentation of credentials, may:
(a) Examine and copy any books, papers, records, memoranda
or data of any person who has a duty to provide information to
the agency under subdivision 3; and
(b) Enter upon any property, public or private, for the
purpose of taking any action authorized by this section purpose
of taking any action authorized by this section including
obtaining information from any person who has a duty to provide
the information under subdivision 3, conducting surveys or
investigations, and taking removal or remedial action.
Subd. 5. [CLASSIFICATION OF DATA.] Except as otherwise
provided in this subdivision, data obtained from any person
pursuant to subdivision 3 or 4 is public data as defined in
section 13.02. Upon certification by the subject of the data
that the data relates to sales figures, processes or methods of
production unique to that person, or information which would
tend to affect adversely the competitive position of that
person, the director shall classify the data as private or
nonpublic data as defined in section 13.02. Notwithstanding any
other law to the contrary, data classified as private or
nonpublic under this subdivision may be disclosed when relevant
in any proceeding under sections 1 to 18, or to other public
agencies concerned with the implementation of sections 1 to 18.
Subd. 6. [RECOVERY OF EXPENSES.] Any reasonable and
necessary expenses incurred by the agency or director pursuant
to this section, including all response costs, and
administrative and legal expenses, may be recovered in a civil
action brought by the attorney general against any person who
may be liable under section 4 or any other law. The agency's
certification of expenses shall be prima facie evidence that the
expenses are reasonable and necessary. Any expenses incurred
pursuant to this section which are recovered by the attorney
general pursuant to section 4 or any other law, including any
award of attorneys fees, shall be deposited in the fund and
credited to a special account for additional response actions as
provided in section 20, subdivision 2, clause (b) or (d).
Subd. 7. [ACTIONS RELATING TO NATURAL RESOURCES.] For the
purpose of this subdivision, the state is the trustee of the
air, water and wildlife of the state. An action pursuant to
section 4 for damages with respect to air, water or wildlife may
be brought by the attorney general in the name of the state as
trustee for those natural resources. Any damages recovered by
the attorney general pursuant to section 4 or any other law for
injury to, destruction of, or loss of natural resources
resulting from the release of a hazardous substance, or a
pollutant or contaminant, shall be deposited in the fund and
credited to a special account for the purposes provided in
section 20, subdivision 2, clause (f).
Subd. 8. [ACTIONS RELATING TO PESTICIDES OR FERTILIZER OR
SOIL OR PLANT AMENDMENTS.] When the commissioner of agriculture
has reported an incident involving the release of pesticides
under the provisions of section 18A.37 or the release of
fertilizers or soil or plant amendments, and the agency
determines that the incident constitutes a release of a
hazardous substance, or a pollutant or contaminant, the agency
shall authorize the commissioner, subject to the provisions of
subdivision 13, to take any action which the agency would be
authorized to take under subdivisions 1 to 4. Subject to the
provisions of section 20, subdivision 3, the agency shall
reimburse the commissioner from the fund for the reasonable and
necessary expenses incurred in taking those actions and may
recover any amount spent from the fund under subdivision 6.
Subd. 9. [ACTIONS RELATING TO OCCUPATIONAL SAFETY AND
HEALTH.] The agency, director and the commissioner of labor and
industry shall make reasonable efforts to coordinate any actions
taken under this section and under sections 182.65 to 182.674 to
avoid duplication or conflict of actions or requirements with
respect to a release or threatened release affecting the safety
of any conditions or place of employment.
Subd. 10. [ACTIONS RELATING TO HEALTH.] The agency and
director shall make reasonable efforts to coordinate and consult
with the commissioner of health in planning and directing
response actions with respect to a release or threatened release
affecting the public health. If the commissioner of health,
upon the request of the agency, takes any actions authorized
under this section, the agency shall reimburse the commissioner
from the fund for the reasonable and necessary expenses incurred
in taking those actions and may recover any amount spent from
the fund under subdivision 6.
Subd. 11. [LIMIT ON ACTIONS BY POLITICAL SUBDIVISIONS.]
When the agency or director has requested a person who is
responsible for a release or threatened release to take any
response action under subdivision 1, no political subdivision
shall request or order that person to take any action which
conflicts with the action requested by the agency or director.
Subd. 12. [AUTHORIZATION OF CERTAIN RESPONSE ACTIONS.] For
the purpose of permitting a political subdivision or private
person to recover response costs as provided in section 4,
subdivision 6, the agency may authorize the political
subdivision to take removal or remedial actions or may authorize
the private person to take removal actions with respect to any
release of a hazardous substance which was placed or came to be
located in the facility before April 1, 1982. The authorization
shall be based on application of the criteria in the rules of
the agency adopted under subdivision 13 or, if the rules have
not been adopted, under the criteria set forth in subdivision 13
on which the rules are required to be based. The authorization
shall not be inconsistent with the criteria. This subdivision
shall not be construed to prohibit a political subdivision or
private person from taking removal or remedial actions without
the authorization of the agency.
Subd. 13. [PRIORITIES; RULES.] By November 1, 1983, the
agency shall establish a temporary list of priorities among
releases or threatened releases for the purpose of taking
remedial action and, to the extent practicable consistent with
the urgency of the action, for taking removal action under this
section. The temporary list, with any necessary modifications,
shall remain in effect until the agency adopts rules
establishing state criteria for determining priorities among
releases and threatened releases. The agency shall adopt the
rules by July 1, 1984. After rules are adopted, a permanent
priority list shall be established, and may be modified from
time to time, according to the criteria set forth in the rules.
Before any list is established under this subdivision the agency
shall publish the list in the State Register and allow 30 days
for comments on the list by the public.
The temporary list and the rules required by this
subdivision shall be based upon the relative risk or danger to
public health or welfare or the environment, taking into account
to the extent possible the population at risk, the hazardous
potential of the hazardous substances at the facilities, the
potential for contamination of drinking water supplies, the
potential for direct human contact, the potential for
destruction of sensitive ecosystems, the administrative and
financial capabilities of the agency, and other appropriate
factors.
Sec. 18. [115B.18] [FAILURE TO TAKE REQUESTED ACTIONS;
CIVIL PENALTIES; ACTION TO COMPEL PERFORMANCE; INJUNCTIVE
RELIEF.]
Subdivision 1. [CIVIL PENALTIES.] Any person responsible
for a release or threatened release from a facility of a
pollutant or contaminant which presents an imminent and
substantial danger to the public health or welfare or the
environment or for a release or threatened release of a
hazardous substance from a facility shall forfeit and pay to the
state 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 person
fails to take reasonable and necessary response actions or to
make reasonable progress in completing response actions
requested as provided in subdivision 3.
The penalty provided under this subdivision 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 section 17, subdivision 6, or by a
separate action in the district court of Ramsey county. All
penalties recovered under this subdivision shall be deposited in
the fund.
Subd. 2. [ACTION TO COMPEL PERFORMANCE.] When any person
who is responsible for a release or threatened release from a
facility of a pollutant or contaminant which presents an
imminent and substantial danger to the public health or welfare
or the environment or for a release or threatened release of a
hazardous substance from a facility, fails to take response
actions or to make reasonable progress in completing response
actions requested as provided in subdivision 3, the attorney
general may bring an action in the name of the state to compel
performance of the requested response actions. If any person
having any right, title, or interest in and to the real property
where the facility is located or where response actions are
proposed to be taken is not a person responsible for the release
or threatened release, the person may be joined as an
indispensable party in an action to compel performance in order
to assure that the requested response actions can be taken on
that property by the responsible parties.
Subd. 3. [REQUESTS FOR RESPONSE ACTIONS.] A request for
emergency removal action shall be made by the director. Other
requests for response actions shall be made by the agency. A
request shall be in writing, shall state the action requested,
the reasons for the action, and a reasonable time by which the
action must be begun and completed taking into account the
urgency of the action for protection of the public health or
welfare or the environment.
Subd. 4. [INJUNCTIVE RELIEF.] The release or threatened
release of a hazardous substance, or a pollutant or contaminant,
shall constitute a public nuisance and may be enjoined in an
action, in the name of the state, brought by the attorney
general.
Sec. 19. [115B.19] [PURPOSES OF FUND AND TAXES.]
In establishing the environmental response, compensation
and compliance fund in section 20 and imposing taxes in section
22 it is the purpose of the legislature to:
(a) Encourage treatment and disposal of hazardous waste in
a manner that adequately protects the public health or welfare
or the environment;
(b) Encourage responsible parties to provide the response
actions necessary to protect the public and the environment from
the effects of the release of hazardous substances;
(c) Encourage the use of alternatives to land disposal of
hazardous waste including resource recovery, recycling,
neutralization, and reduction;
(d) Provide state agencies with the financial resources
needed to prepare and implement an effective and timely state
response to the release of hazardous substances, including
investigation, planning, removal and remedial action;
(e) Compensate for increased governmental expenses and loss
of revenue and to provide other appropriate assistance to
mitigate any adverse impact on communities in which commercial
hazardous waste processing or disposal facilities are located
under the siting process provided in chapter 115A;
(f) Recognize the environmental and public health costs of
land disposal of solid waste and of the use and disposal of
hazardous substances and to place the burden of financing state
hazardous waste management activities on those whose products
and services contribute to hazardous waste management problems
and increase the risks of harm to the public and the environment.
Sec. 20. [115B.20] [ENVIRONMENTAL RESPONSE, COMPENSATION
AND COMPLIANCE FUND.]
Subdivision 1. [ESTABLISHMENT.] The environmental
response, compensation and compliance fund is created as an
account in the state treasury and may be spent only for the
purposes provided in subdivision 2.
Subd. 2. [PURPOSES FOR WHICH MONEY MAY BE SPENT.] Subject
to appropriation by the legislature the money in the fund may be
spent for any of the following purposes:
(a) Preparation by the agency for taking removal or
remedial action under section 17, including investigation,
monitoring and testing activities, enforcement and compliance
efforts relating to the release of hazardous substances,
pollutants or contaminants under section 17 or 18;
(b) Removal and remedial actions taken or authorized by the
agency or director under section 17, including related
enforcement and compliance efforts under section 17 or 18, and
payment of the state share of the cost of remedial action which
may be carried out under a cooperative agreement with the
federal government pursuant to the Federal Superfund Act, under
42 U.S.C. Section 9604(c)(3) for actions related to facilities
other than commercial hazardous waste facilities located under
the siting authority of chapter 115A;
(c) Reimbursement to any private person for expenditures
made before July 1, 1983 to provide alternative water supplies
deemed necessary by the agency and the department of health to
protect the public health from contamination resulting from the
release of a hazardous substance;
(d) Removal and remedial actions taken or authorized by the
agency or director under section 17 including related
enforcement and compliance efforts under section 17 or 18, and
payment of the state share of the cost of remedial action which
may be carried out under a cooperative agreement with the
federal government pursuant to the Federal Superfund Act, under
42 U.S.C. Section 9604(c)(3) for actions related to commercial
hazardous waste facilities located under the siting authority of
chapter 115A;
(e) Compensation as provided by law, after submission by
the waste management board of the report required under section
115A.08, subdivision 5, to mitigate any adverse impact of the
location of commercial hazardous waste processing or disposal
facilities located pursuant to the siting authority of chapter
115A;
(f) Planning and implementation by the commissioner of
natural resources of the rehabilitation, restoration or
acquisition of natural resources to remedy injuries or losses to
natural resources resulting from the release of a hazardous
substance;
(g) Inspection, monitoring and compliance efforts by the
agency, or by political subdivisions with agency approval, of
commercial hazardous waste facilities located under the siting
authority of chapter 115A;
(h) Grants by the agency or the waste management board to
demonstrate alternatives to land disposal of hazardous waste
including reduction, separation, pretreatment, processing and
resource recovery, for education of persons involved in
regulating and handling hazardous waste;
(i) Intervention and environmental mediation by the
legislative commission on waste management under chapter 115A;
and
(j) Grants by the agency to study the extent of
contamination and feasibility of cleanup of hazardous substances
and pollutants or contaminants in major waterways of the state.
Subd. 3. [LIMIT ON CERTAIN EXPENDITURES.] The director or
agency may not spend any money under subdivision 2, clause (b)
or (d) for removal or remedial actions to the extent that the
costs of those actions may be compensated from any fund
established under the Federal Superfund Act, 42 U.S.C. Section
9600 et seq. The director or agency shall determine the extent
to which any of the costs of those actions may be compensated
under the federal act based on the likelihood that the
compensation will be available in a timely fashion. In making
this determination the director or agency shall take into
account:
(a) The urgency of the removal or remedial actions and the
priority assigned under the Federal Superfund Act to the release
which necessitates those actions;
(b) The availability of money in the funds established
under the Federal Superfund Act; and
(c) The consistency of any compensation for the cost of the
proposed actions under the Federal Superfund Act with the
national contingency plan, if such a plan has been adopted under
that act.
Subd. 4. [REVENUE SOURCES.] Revenue from the following
sources shall be deposited in the environmental response,
compensation and compliance fund:
(a) The proceeds of the taxes imposed pursuant to section
22, including interest and penalties;
(b) All money recovered by the state under sections 1 to 18
or under any other statute or rule related to the regulation of
hazardous waste or hazardous substances, including civil
penalties and money paid under any agreement, stipulation or
settlement but excluding fees imposed under section 25;
(c) All interest attributable to investment of money
deposited in the fund; and
(d) All money received in the form of gifts, grants,
reimbursement or appropriation from any source for any of the
purposes provided in subdivision 2, except federal grants.
Subd. 5. [RECOMMENDATION BY LCWM.] The legislative
commission on waste management shall make recommendations to the
standing legislative committees on finance and appropriations
regarding appropriations from the fund.
Subd. 6. [REPORT TO LEGISLATURE.] By November 1, 1984, and
each year thereafter, the agency shall submit to the senate
finance committee, the house appropriations committee and the
legislative commission on waste management a report detailing
the activities for which money from the environmental response,
compensation and compliance fund has been spent during the
previous fiscal year.
Sec. 21. [115B.21] [TAXES; DEFINITIONS.]
Subdivision 1. [APPLICATION.] The definitions provided in
this section and section 2 apply to sections 21 to 24.
Subd. 2. [COMMISSIONER.] "Commissioner" means the
commissioner of revenue.
Subd. 3. [GENERATOR.] "Generator" means a person who
generates hazardous waste and who is required to disclose the
generation of hazardous waste under the hazardous waste rules of
the agency adopted under section 116.07.
Subd. 4. [LONG TERM CONTAINMENT.] "Long term containment"
means land disposal or storage for a period of more than one
year.
Subd. 5. [TREATMENT.] "Treatment" means any material,
technique or process designed to change the physical, chemical
or biological character or composition of a hazardous waste in
order to: (a) neutralize it; (b) render it nonhazardous or less
hazardous; (c) render it safer to transport, store or dispose
of; (d) make it amenable to storage; or (e) reduce its volume.
Subd. 6. [WASTEWATER TREATMENT UNIT.] "Wastewater
treatment unit" means a device which is part of a wastewater
treatment facility subject to regulation pursuant to the federal
Clean Water Act under 33 U.S.C. Section 1317(b) or 1342.
Sec. 22. [115B.22] [HAZARDOUS WASTE GENERATOR TAX.]
Subdivision 1. [TAXES IMPOSED; EXCLUSIONS.] Each generator
of hazardous waste shall pay the taxes imposed by this section
based upon the volume and destination of the hazardous wastes
generated. The taxes imposed by this section do not apply to
hazardous wastes destined for recycling or reuse including waste
accumulated, stored, or physically, chemically, or biologically
treated before recycling or reuse, to used crankcase oil, to
hazardous waste which is generated as a result of any response
action, or to hazardous waste which meets applicable
pretreatment standards or compliance schedules and is discharged
to a public sewage treatment works.
Subd. 2. [LONG-TERM CONTAINMENT WITHOUT TREATMENT.]
Hazardous waste destined for long-term containment without
treatment shall be taxed at the rate of 32 cents per gallon of
liquid or $32 per cubic yard of solid.
Subd. 3. [LONG TERM CONTAINMENT AFTER TREATMENT.]
Hazardous waste destined for long term containment after
treatment shall be taxed at the rate of 16 cents per gallon of
liquid or $16 per cubic yard of solid.
Subd. 4. [LAND TREATMENT.] Hazardous waste destined for
treatment in or on the land shall be taxed at the rate of $32
per cubic yard.
Subd. 5. [OTHER TREATMENT.] Hazardous waste destined for
treatment, other than as provided in subdivision 6, to produce a
material which is not hazardous, including treatment permitted
by the agency in a sewage treatment works, or hazardous waste
which is destined for destructive treatment by incineration
shall be taxed at the rate of eight cents per gallon of liquid
or $8 per cubic yard of solid.
Subd. 6. [ON-SITE WASTEWATER TREATMENT.] The tax imposed
under this section does not apply to hazardous waste which is
destined for treatment in an on-site wastewater treatment unit
to produce a material which is not hazardous before entering a
public sewer system or waters of the state but the tax does
apply to any residue of treatment which is a hazardous waste.
Subd. 7. [DISPOSITION OF PROCEEDS.] The proceeds of the
taxes imposed under this section including any interest and
penalties shall be deposited in the fund.
Subd. 8. [REVIEW OF TAX BY LCWM.] After the waste
management board submits the plan required under section 115A.11
to the legislative commission on waste management, the
commission shall review the taxes and tax rates imposed under
this section in light of the objectives and recommendations of
the plan, and shall recommend to the standing tax committees of
both houses of the legislature any changes in the taxes or tax
rates which are needed to assist or encourage implementation of
the strategies adopted by the state for management of hazardous
waste.
Sec. 23. [115B.23] [SEVERABILITY.]
If any tax imposed under section 22 is found to be invalid
because of the purpose for which the proceeds were appropriated
or made available under section 20, subdivision 2, the proceeds
of that tax shall not be appropriated or available for the
objectionable purposes, but the tax shall continue to be imposed
and the proceeds shall be appropriated and made available for
other purposes provided in section 20, subdivision 2.
Sec. 24. [115B.24] [TAX ADMINISTRATION AND ENFORCEMENT.]
Subdivision 1. [ANNUAL RETURNS.] Every generator of
hazardous waste subject to taxation pursuant to section 22 shall
file a return relating to the tax due for the preceding calendar
year with the commissioner of revenue by April 15 each year, in
the form prescribed by the commissioner. Payment of the tax, to
the extent not paid in full pursuant to subdivisions 2 and 3,
shall be submitted with the return.
Subd. 2. [DECLARATIONS OF ESTIMATED TAX.] For 1983, every
generator of hazardous waste required to pay a tax pursuant to
section 22 shall make a declaration of estimated hazardous waste
generated for the last six months of calendar 1983 if the tax
can reasonably be estimated to exceed $500. The declaration of
the estimated tax shall be filed by October 15, 1983. The
amount of estimated tax with respect to which a declaration is
required shall be paid in two equal installments by October 15,
1983 and January 15, 1984. For 1984 and subsequent years, every
generator of hazardous waste required to pay a tax pursuant to
section 22 shall make a declaration of estimated hazardous waste
generated for the calendar year if the tax can reasonably be
expected to be in excess of $1,000. The declaration of
estimated tax shall be filed by March 15. The amount of
estimated tax with respect to which a declaration is required
shall be paid in four equal installments on or before the 15th
day of March, June, September, and December.
An amendment of a declaration may be filed in any interval
between installment dates prescribed above but only one
amendment may be filed in each interval. If an amendment of a
declaration is filed, the amount of each remaining installment
shall be the amount which would have been payable if the new
estimate had been made when the first estimate for the calendar
year was made, increased or decreased, as the case may be, by
the amount computed by dividing
(1) the difference between (A) the amount of estimated tax
required to be paid before the date on which the amendment was
made, and (B) the amount of estimated tax which would have been
required to be paid before that date if the new estimate had
been made when the first estimate was made, by
(2) the number of installments remaining to be paid on or
after the date on which the amendment is made.
The commissioner of revenue may grant a reasonable
extension of time for filing any declaration but the extension
shall not be for more than six months.
Subd. 3. [FAILURE TO PAY ESTIMATED TAX.] (a) In case of
any underpayment of estimated tax required by this section,
except as provided in clause (b), there shall be added to the
tax for the taxable year an amount determined at the rate
specified in section 270.75, subdivision 4, upon the amount of
the underpayment for the period of the underpayment.
For purposes of this subdivision, the amount of the
underpayment shall be the excess of
(1) the amount of the installment, over
(2) the amount, if any, of the installment paid on or
before the last date prescribed for payment.
The period of the underpayment shall run from the date the
installment was required to be paid to whichever of the
following dates is the earlier:
(1) April 15, or
(2) With respect to any portion of the underpayment, the
date on which the portion is paid. For purposes of this
paragraph, a payment of estimated tax on any installment date
shall be considered a payment of any previous underpayment only
to the extent the payment exceeds the amount of the installment
determined under this subdivision for the installment date.
(b) Notwithstanding the provisions of clause (a), the
addition to the tax with respect to any underpayment of any
installment shall not be imposed if the total amount of all
payments of estimated tax made on or before the last date
prescribed for the payment of the installment equals or exceeds
the amount which would have been required to be paid on or
before that date if the estimated tax were the lesser of:
(1) For 1985 and thereafter, the tax shown on the return of
the taxpayer for the preceding year or, for 1984, twice the
amount of the tax shown for 1983; or
(2) Eighty percent of the actual liability for the year.
Subd. 4. [REFUNDS OF OVERPAYMENTS OF ESTIMATED TAX.]
Refunds of overpayments of estimated tax shall be made as
provided in section 290.936.
Subd. 5. [EXCHANGE OF INFORMATION.] Notwithstanding the
provisions of section 116.075, the pollution control agency may
provide the commissioner of revenue with the information
necessary for the enforcement of section 22 and this section.
Information disclosed in a return filed pursuant to this section
is public. Information exchanged between the commissioner and
the agency is public unless the information is of the type
determined to be for the confidential use of the agency pursuant
to section 116.075 or is trade secret information classified
pursuant to section 13.37. Information obtained in the course
of an audit of the taxpayer by the department of revenue shall
be nonpublic or private data to the extent that it is not
directly divulged in a return of the tax.
Subd. 6. [PAYMENT BY OUT-OF-STATE GENERATORS.] A generator
of any hazardous waste which is generated outside of this state
and is transported into this state for long-term containment or
treatment as described in section 22, subdivisions 2 to 5 shall
pay the tax imposed by section 22 at the first point at which
the hazardous wastes are received by a person in this state for
storage, treatment or long-term containment. The tax shall be
paid to the person who first receives the wastes in this state
at the time the waste is received and shall be remitted by that
person to the commissioner of revenue quarterly in the form and
manner provided by the commissioner.
Subd. 7. [DUTIES OF THE AGENCY AND METROPOLITAN COUNTIES.]
The agency shall provide to the commissioner the names and
addresses of all persons known to the agency who are subject to
tax under section 22, together with any information which the
agency possesses concerning the amount of hazardous waste
generated and disposed of by those persons. Metropolitan
counties required to regulate hazardous wastes under section
473.811, subdivision 5b, shall provide to the agency the data
and information necessary to allow the agency to carry out its
duties under this subdivision. Upon request by the
commissioner, the agency shall examine returns and reports filed
with the commissioner and notify the commissioner of any
suspected inaccurate or fraudulent declaration or return. The
agency may assist in auditing any person subject to tax under
section 22 when requested by the commissioner.
Subd. 8. [PENALTIES; ENFORCEMENT.] The audit, penalty and
enforcement provisions applicable to taxes imposed under chapter
290 apply to the taxes imposed under section 22 and those
provisions shall be administered by the commissioner.
Subd. 9. [RULES.] The commissioner may adopt temporary and
permanent rules necessary to implement the provisions of this
section and section 22.
Subd. 10. [ADMINISTRATIVE EXPENSES.] Any amount expended
by the commissioner from a general fund appropriation to enforce
and administer section 22 and this section shall be reimbursed
to the general fund and the amount necessary to make the
reimbursement is appropriated from the fund to the commissioner
of finance for transfer to the general fund.
Sec. 25. [116.12] [HAZARDOUS WASTE ADMINISTRATION FEES.]
Subdivision 1. [FEE SCHEDULES.] The agency shall establish
the fees provided in subdivisions 2 and 3 in the manner provided
in section 16A.128 to cover the amount appropriated from the
general fund to the agency for that year for permitting,
monitoring, inspection and enforcement expenses of the hazardous
waste activities of the agency.
The legislature may appropriate additional amounts that
need not be covered by fees or may provide that the fees shall
cover only a portion of the general fund appropriation for the
hazardous waste activities of the agency, in order to assure
adequate funding for the regulatory and enforcement functions of
the agency related to hazardous waste. All fees collected by
the agency under this section shall be deposited in the general
fund.
Subd. 2. [HAZARDOUS WASTE GENERATOR FEE.] Each generator
of hazardous waste shall pay a fee on the hazardous waste which
he generates. The agency shall compute the amount of the fee
due based on the hazardous waste disclosures submitted by the
generators and other information available to the agency. The
agency shall annually prepare a statement of the amount of the
fee due from each generator. The fee shall be paid annually
commencing with the first day of the calendar quarter after the
date of the statement.
The agency may exempt generators of small quantities of
hazardous wastes otherwise subject to the fee if it finds that
the cost of administering a fee on those generators is excessive
relative to the proceeds of the fee. The fee shall consist of a
minimum fee for each generator not exempted by the agency and an
additional fee based on the quantity of wastes generated by the
generator.
If any metropolitan counties recover the costs of
administering county hazardous waste regulations by charging
fees, the fees charged by the agency outside of those counties
shall not exceed the fees charged by those counties. The agency
shall not charge a fee in any metropolitan county which charges
such a fee. The agency shall impose a fee calculated as a
surcharge on the fees charged by the metropolitan counties and
by the agency to reflect the agency's expenses in carrying out
its statewide hazardous waste regulatory responsibilities. The
surcharge imposed on the fees charged by the metropolitan
counties shall be collected by the metropolitan counties in the
manner in which the counties collect their generator fees.
Metropolitan counties shall remit the proceeds of the surcharge
to the agency by the last day of the month following the month
in which they were collected.
Subd. 3. [FACILITY FEES.] The agency shall charge an
original permit fee, a reissuance fee and an annual operator's
fee for any hazardous waste facility regulated by the agency.
The agency may include reasonable and necessary costs of any
environmental review required under chapter 116D in the original
permit fee for any hazardous waste facility.
Sec. 26. Minnesota Statutes 1982, section 115A.24,
subdivision 1, is amended to read:
Subdivision 1. [CERTIFICATE.] Except as provided in
subdivision 2, By December 15, 1982, on the basis of and
consistent with its hazardous waste management plan adopted
under section 115A.11, the board shall issue a certificate or
certificates of need for disposal facilities for hazardous
wastes in the state. The certificate or certificates shall
indicate the types and volumes of waste for which disposal
facilities are and will be needed through the year 2000 and the
number, types, sizes, general design and operating
specifications, and function or use of the disposal facilities
needed in the state. The board shall certify need only to the
extent that the board has determined that there are no feasible
and prudent alternatives including waste reduction, separation,
pretreatment, processing, and resource recovery which would
minimize adverse impact upon natural resources, provided that
the board shall require the establishment of at least one
commercial disposal facility in the state. Economic
considerations alone shall not justify certification nor the
rejection of alternatives. Alternatives that are speculative
and conjectural shall not be deemed to be feasible and prudent.
The board shall consider all technologies being developed in
other countries as well as in the United States when it
considers the alternatives to hazardous waste disposal. The
certificate or certificates shall not be subject to the
provisions of chapter 14 but shall be the final determination
required on the matters decided by the certificate or
certificates and shall have the force and effect of law. The
certificate or certificates shall not be amended for five
years. The board and the permitting agencies, in reviewing and
selecting sites, completing environmental impact statements, and
issuing approvals and permits for waste disposal facilities
described in the certificate or certificates of need, shall not
reconsider matters determined in the certification. The board
and the permitting agencies shall be required to make a final
decision approving the establishment of facilities consistent
with the certification. The board and the permitting agencies
shall be required to make a final decision approving the
establishment of at least one commercial disposal facility for
hazardous waste in the state.
Sec. 27. Minnesota Statutes 1982, section 466.01, is
amended by adding a subdivision to read:
Subd. 3. For the purposes of sections 466.01 to 466.15,
"release" and "hazardous substance" have the meanings given in
section 2.
Sec. 28. Minnesota Statutes 1982, section 466.04,
subdivision 1, is amended to read:
Subdivision 1. [LIMITS; PUNITIVE DAMAGES.] Liability of
any municipality on any claim within the scope of sections
466.01 to 466.15 shall not exceed
(a) $100,000 when the claim is one for death by wrongful
act or omission and $100,000 to any claimant in any other case;
(b) $300,000 for any number of claims arising out of a
single occurrence.;
(c) Twice the limits provided in clauses (a) and (b), but
not less than $300,000 per claim, when the claim arises out of
the release or threatened release of a hazardous substance,
whether the claim is brought under sections 1 to 15 or under any
other law.
No award for damages on any such claim shall include
punitive damages.
Sec. 29. [RECOMMENDATIONS CONCERNING ALLOCATION OF
LIABILITY.]
The waste management board shall make recommendations to
the legislature by November 1, 1983 regarding the allocation of
liability among the owners, operators, and users of a hazardous
waste disposal facility established pursuant to sections 115A.18
to 115A.30, including any recommended legislative changes,
taking into consideration the need for the facility, the state's
involvement in the facility, the need to protect the health,
property and environment of the local community from injury and
loss, and the need for incentives to encourage the development
and use of alternatives to land disposal. The recommendations
shall be made after consultation with affected industries,
including insurers, generators, transporters, disposers, and
treaters of hazardous waste, individuals, including academic,
scientific and legal professionals, and groups, including
community and environmental groups.
Sec. 30. [VICTIM COMPENSATION STUDY.]
By July 1, 1984, the legislative commission on waste
management shall conduct a study and make recommendations to the
legislature on the creation of a compensation fund to compensate
persons who are injured as the result of a release of a
hazardous substance and who would not otherwise be adequately
compensated for their injuries. The study shall consider
matters including the following:
(a) The appropriate scope of compensation which should be
provided by the fund including the extent of any compensation
which should be available for medical expenses, disability, loss
of income, physical impairment, and death;
(b) Creation of a simple, speedy, and cost efficient claims
procedure which provides an effective remedy for injured
claimants;
(c) Methods by which compensation can be financed by those
who create or contribute to the risk of injury from hazardous
substance releases, including the manner by which the state may
seek to recover amounts paid from the fund; and
(d) Whether the fund should be established or administered
at the federal or state level and the appropriate degree of
state and federal cooperation in providing compensation.
Sec. 31. [INSURANCE STUDY.]
The commissioner of insurance shall conduct a study of
insurance providing coverage for liability under section 5. The
commissioner shall submit the results of the study, together
with his recommendations, to the legislature by July 1, 1985.
The director of the pollution control agency shall cooperate
with and provide assistance to the commissioner during the
course of the study.
Sec. 32. [APPROPRIATION; COMPLEMENT.]
Subdivision 1. [APPROPRIATION TO FUND.] $5,000,000 is
appropriated from the general fund and transferred to the
environmental response, compensation, and compliance fund
established in section 20. This appropriation is available
until expended.
Subd. 2. [TAX ADMINISTRATION; COMPLEMENT.] $50,000 in
fiscal year 1984 and $40,000 in fiscal year 1985 is appropriated
from the general fund to the commissioner of revenue for the
purposes of administering and enforcing sections 21 to 24. This
appropriation shall be reimbursed to the general fund under the
provisions of section 24, subdivision 10.
The complement of the department of revenue is increased by
two positions.
Subd. 3. [APPROPRIATION FOR RESPONSE ACTIONS; COMPLEMENT.]
$483,700 in fiscal year 1984 and $400,700 in fiscal year 1985 is
appropriated from the environmental response, compensation, and
compliance fund to the pollution control agency for
administrative costs.
The complement of the pollution control agency is increased
by ten positions.
All money in the environmental response, compensation, and
compliance fund not otherwise appropriated is appropriated to
the pollution control agency for the purposes described in
section 20, subdivision 2, clauses (a), (b), and (c). This
appropriation is available until June 30, 1985.
Subd. 4. [APPROPRIATION FOR COMPLIANCE ACTIONS;
COMPLEMENT.] $45,600 in fiscal year 1984 and $56,400 in fiscal
year 1985 is appropriated from the general fund to the attorney
general for the purposes of enforcing this act. This
appropriation shall be reimbursed to the general fund from the
environmental response, compensation, and compliance fund, and
the amount necessary to make the reimbursement is appropriated
to the commissioner of finance for transfer to the general fund.
The complement of the office of the attorney general is
increased by two positions.
Subd. 5. [APPROPRIATION FOR VICTIM COMPENSATION STUDY.]
$20,000 is appropriated from the general fund to the legislative
commission on waste management to carry out the study required
by section 30.
Subd. 6. [APPROPRIATION FOR INSURANCE STUDY.] There is
appropriated from the general fund to the commissioner of
insurance $5,000 for fiscal year 1984, to conduct the study
described in section 31.
Sec. 33. [REPEALER.]
Minnesota Statutes 1982, section 115A.24, subdivision 2, is
repealed.
Sec. 34. [EFFECTIVE DATE.]
Sections 17 to 24 are effective the day following final
enactment. The taxes imposed by section 22 are effective July
1, 1983. The remaining sections of this act are effective July
1, 1983.
Approved May 10, 1983
Official Publication of the State of Minnesota
Revisor of Statutes