1997 Minnesota Statutes

CHAPTER 115B. Environmental response and liability

     115B.01 Citation. 

    Sections 115B.01 to 115B.24 may be cited as the 
 environmental response and liability act.  

    HIST: 1983 c 121 s 1 

     115B.02 Definitions. 

    Subdivision 1.    Application.  For the purposes of 
 sections 115B.01 to 115B.20, the following terms have the 
 meanings given them.  

    Subd. 1a.    Account.  "Account" means the environmental 
 response, compensation and compliance account established under 
 section 115B.20.  

    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 commissioner of 
 agriculture for actions, duties, or authorities relating to 
 agricultural chemicals, or for other substances, the pollution 
 control agency. 

    Subd. 3a.    Agricultural chemical.  "Agricultural 
 chemical" has the meaning given in section 18D.01, subdivision 3.

    Subd. 4.    Commissioner.  "Commissioner" means the 
 commissioner of agriculture for actions, duties, or authorities 
 related to agricultural chemicals or the commissioner of the 
 pollution control agency for other substances. 

    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, United States Code, 
 title 42, section 9601 et seq. 

    Subd. 7.  MS 1990 Renumbered subd 1a 

    Subd. 8.    Hazardous substance.  "Hazardous substance" 
 means:  

    (a) Any commercial chemical designated pursuant to the 
 Federal Water Pollution Control Act, under United States Code, 
 title 33, section 1321(b)(2)(A); 

    (b) Any hazardous air pollutant listed pursuant to the 
 Clean Air Act, under United States Code, title 42, 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 11, 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 United States Code, title 
 42, section 6903, which is listed or has the characteristics 
 identified under United States Code, title 42, section 6921, not 
 including any hazardous waste the regulation of which has been 
 suspended by act of Congress.  

    Subd. 9a.    Institutional controls.  "Institutional 
 controls" means legally enforceable restrictions, conditions, or 
 controls on the use of real property, groundwater, or surface 
 water located at or adjacent to a facility where response 
 actions are taken that are reasonably required to assure that 
 the response actions are protective of public health or welfare 
 or the environment.  Institutional controls include 
 restrictions, conditions, or controls enforceable by contract, 
 easement, restrictive covenant, statute, ordinance, or rule, 
 including official controls such as zoning, building codes, and 
 official maps.  An affidavit required under section 115B.16, 
 subdivision 2, or similar notice of a release recorded with real 
 property records is also an institutional control. 

    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; 

    (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; and 

    (4) the state or an agency of the state is not an owner of 
 real property solely because it holds title to the property in 
 trust for taxing districts as a result of forfeiture of title 
 for nonpayment of taxes. 

    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 308A, 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, by-product, or special nuclear 
 material from a nuclear incident, as those terms are defined in 
 the Atomic Energy Act of 1954, under United States Code, title 
 42, section 2014, if the release is subject to requirements with 
 respect to financial protection established by the federal 
 nuclear regulatory commission under United States Code, title 
 42, section 2210; 

    (c) Release of source, by-product or special nuclear 
 material from any processing site designated pursuant to the 
 Uranium Mill Tailings Radiation Control Act of 1978, under 
 United States Code, title 42, 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 18B.01, subdivision 18.  

    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, on-site treatment or 
 incineration, provision of alternative water supplies, any 
 monitoring and maintenance, and institutional controls 
 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 off-site 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, United States Code, title 42, 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 United States Code, 
 title 42, section 9604(b), and any emergency assistance which 
 may be provided under the Disaster Relief Act of 1974, United 
 States Code, title 42, 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 22.

    HIST: 1983 c 121 s 2; 1987 c 186 s 15; 1989 c 209 art 2 s 1; 
 1989 c 335 art 4 s 106; 1989 c 356 s 7; 1990 c 586 s 1; 1990 c 
 597 s 52-54; 1997 c 216 s 99,100 

     115B.03 Responsible person. 

    Subdivision 1.    General rule.  For the purposes of 
 sections 115B.01 to 115B.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 the 
 person 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 
 employment:  

    (a) The employee is subject to liability under section 
 115B.04 or 115B.05 only if the employee's conduct with respect 
 to the hazardous substance was negligent under circumstances in 
 which the employee knew that the substance was hazardous and 
 that the conduct, if negligent, could result in serious harm.  

    (b)  The person's employer shall be considered a person 
 responsible for the release or threatened release and is subject 
 to liability under section 115B.04 or 115B.05 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 associating that person with the 
 release; or 

    (e) took action which significantly contributed to the 
 release after that person 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 115B.01 to 115B.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.  

    Subd. 4.    Tax-forfeited land.  (a) The state, an 
 agency of the state, or a political subdivision that may be 
 considered an owner of tax-forfeited real property is not a 
 person responsible for a release or threatened release from a 
 facility in or on the property under subdivision 3, clause (d). 

    (b) The state, an agency of the state, or a political 
 subdivision is not an operator of a facility in or on 
 tax-forfeited land solely as a result of actions taken to 
 manage, sell, or transfer the land in accordance with chapter 
 282 and other laws applicable to tax-forfeited land.  

    (c) Nothing in this subdivision relieves the state, a state 
 agency, or a political subdivision from liability for causing or 
 significantly contributing to the release of a hazardous 
 substance from a facility in or on the land. 

    Subd. 5.    Eminent domain.  (a) The state, an agency of 
 the state, or a political subdivision is not a responsible 
 person under this section solely as a result of the acquisition 
 of property, or as a result of providing funds for the 
 acquisition of such property either through loan or grant, if 
 the property was acquired by the state, an agency of the state, 
 or a political subdivision (1) through exercise of the power of 
 eminent domain, (2) through negotiated purchase in lieu of, or 
 after filing a petition for the taking of the property through 
 eminent domain, (3) after adopting a redevelopment or 
 development plan under sections 469.001 to 469.134 describing 
 the property and stating its intended use and the necessity of 
 its taking, (4) after adopting a layout plan for highway 
 development under sections 161.15 to 161.241 describing the 
 property and stating its intended use and the necessity of its 
 taking, or (5) through the use of a loan to purchase 
 right-of-way in the seven-county metropolitan area under section 
 473.167.  

    (b) A person who acquires property from the state, an 
 agency of the state, or a political subdivision, is not a 
 responsible person under this section solely as a result of the 
 acquisition of property if the property was acquired by the 
 state, agency, or political subdivision through exercise of the 
 power of eminent domain or by negotiated purchase after filing a 
 petition for the taking of the property through eminent domain, 
 after adopting a redevelopment or development plan under 
 sections 469.001 to 469.134 describing the property and stating 
 its intended use and the necessity of its taking, or after 
 adopting a layout plan for highway development under sections 
 161.15 to 161.241 describing the property and stating its 
 intended use and the necessity of its taking. 

    Subd. 6.    Mortgages.  (a) A mortgagee is not a 
 responsible person under this section solely because the 
 mortgagee becomes an owner of real property through foreclosure 
 of the mortgage or by receipt of the deed to the mortgaged 
 property in lieu of foreclosure. 

    (b) A mortgagee of real property where a facility is 
 located or a holder of a security interest in facility assets or 
 inventory is not an operator of the facility for the purpose of 
 this section solely because the mortgagee or holder has a 
 capacity to influence the operation of the facility to protect 
 its security interest in the real property or assets. 

    Subd. 7.    Contract for deed vendors.  A contract for 
 deed vendor who is otherwise not a responsible party for a 
 release or a threatened release of a hazardous substance from a 
 facility is not a responsible person under this section solely 
 as a result of a termination of the contract for deed under 
 section 559.21. 

    Subd. 8.    Trustees.  A trustee who is not otherwise a 
 responsible party for a release or threatened release of a 
 hazardous substance from a facility is not a responsible person 
 under this section solely because the facility is among the 
 trust assets or solely because the trustee has the capacity to 
 direct the operation of the facility. 

    Subd. 9.    Personal representatives of estates.  A 
 personal representative, guardian, or conservator of an estate 
 who is not otherwise a responsible party for a release or 
 threatened release of a hazardous substance from a facility is 
 not a responsible person under this section solely because the 
 facility is among the assets of the estate or solely because the 
 personal representative, guardian, or conservator has the 
 capacity to direct the operation of the facility. 

    HIST: 1983 c 121 s 3; 1986 c 444; 1990 c 586 s 2; 1991 c 223 s 
 1-3; 1991 c 347 art 2 s 1,2; 1995 c 168 s 1,2; 1996 c 359 s 1; 
 1997 c 200 art 2 s 1 

     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 
 115B.17, subdivision 6.  

    Subd. 4.    Liability of political subdivisions.  (a) 
 The liability of a political subdivision under this section is 
 subject to the limits imposed under section 466.04, subdivision 
 1, except when the political subdivision is liable under this 
 section as the owner or operator of a disposal facility as 
 defined in section 115A.03, subdivision 10.  

    (b) When a political subdivision is liable as an owner or 
 operator of a disposal facility, the liability of each political 
 subdivision is limited to $400,000 at each facility unless the 
 facility was owned or operated under a valid joint powers 
 agreement by three or more political subdivisions, in which case 
 the aggregate liability of all political subdivisions that are 
 parties to the joint powers agreement is limited to $1,200,000.  

    (c) The limits on the liability of a political subdivision 
 for ownership or operation of a disposal facility apply to the 
 costs of response action incurred between the date a request for 
 response action is issued by the agency and the date one year 
 after the construction certificate of completion is approved by 
 the commissioner, excluding the costs of negotiation of a 
 consent order agreement. 

    (d) When a political subdivision takes response action as 
 the owner or operator of a disposal facility between the dates 
 in paragraph (c), it may receive, after approval by the agency, 
 reimbursement of any amount spent pursuant to an approved work 
 plan that exceeds the applicable liability limit specified in 
 this subdivision. 

    Subd. 4a.    Claims by mixed municipal solid waste 
 disposal facilities.  (a) Except as provided in paragraph (b), 
 liability under this section for claims by owners or operators 
 of mixed municipal solid waste disposal facilities that accept 
 waste on or after April 9, 1994, and are not qualified 
 facilities under section 115B.39, subdivision 2, is limited to 
 liability for response costs exceeding the amount of available 
 financial assurance funds required under section 116.07, 
 subdivision 4h. 

    (b) This subdivision does not affect liability under this 
 section for claims based on the illegal disposal of waste at a 
 facility. 

    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 that person 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 115B.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 the defendant 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 the 
 defendant knew or should have known, and that the defendant 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 115B.01 to 115B.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 postclosure 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, United States Code, 
 title 42, 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 postclosure 
 liability fund under United States Code, title 42, 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 commissioner or agency pursuant to section 
 115B.17 or in accordance with the national hazardous substance 
 response plan pursuant to the Federal Superfund Act, under 
 United States Code, title 42, 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.  

    HIST: 1983 c 121 s 4; 1986 c 444; 1987 c 186 s 15; 1989 c 325 
 s 29; 1991 c 337 s 53; 1994 c 639 art 1 s 1 

     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 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 that person 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 the defendant 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 the 
 defendant knew or should have known, and that the defendant 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 115B.01 to 115B.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 postclosure 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, United States Code, 
 title 42, 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 postclosure 
 liability fund under United States Code, title 42, 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 
 commissioner or agency pursuant to section 115B.17 or in 
 accordance with the national hazardous substance response plan 
 pursuant to the Federal Superfund Act, under United States Code, 
 title 42, 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.  

    HIST: 1983 c 121 s 5; 1Sp1985 c 8 s 1; 1986 c 444; 1987 c 186 
 s 15 

     115B.055 Effect of removing and repealing certain 
  provisions. 

    Subdivision 1.    Joint and several liability for personal 
 injury.  The enactment of Laws 1983, chapter 121, section 5, 
 relating to joint and several liability, and the subsequent 
 amendment of section 115B.05 as provided in this act, shall not 
 be construed in any way as a determination of legislative intent 
 regarding the applicability of joint and several liability in 
 any action brought under section 115B.05.  The determination of 
 whether joint and several liability applies in any action 
 brought under section 115B.05 shall be based solely on 
 applicable statutory and common law. 

    Subd. 2.    Causation of personal injury.  In any action 
 brought under section 115B.05, or under any other law, to 
 recover damages for death, personal injury, or disease arising 
 out of the release of a hazardous substance, the enactment of 
 Laws 1983, chapter 121, section 7, and subsequent repeal of 
 section 115B.07 under this act, relating to proof of causation, 
 shall not be construed in any way as a determination of 
 legislative intent regarding the legal principles applicable to 
 the proof of the causal connection between the release and the 
 death, injury, or disease.  The legal principles applicable to 
 the proof of causation shall be determined solely on the basis 
 of applicable statutory and common law. 

    HIST: 1Sp1985 c 8 s 17 

     115B.06 Application to past actions.  

    Subdivision 1.    Application of section 115B.05.  
 Section 115B.05 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 July 1, 
 1983. 

    Subd. 2. Repealed, 1Sp1985 c 8 s 19 

    HIST: 1983 c 121 s 6; 1Sp1985 c 8 s 2 

  115B.07 Repealed, 1Sp1985 c 8 s 19 

     115B.08 Liability under section 115B.04; apportionment 
  and contribution. 

    Subdivision 1.    Right of apportionment; factors.  Any 
 person held jointly and severally liable under section 115B.04 
 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 that defendant's 
 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 115B.04 and establishes a 
 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.  

    HIST: 1983 c 121 s 8; 1986 c 444 

     115B.09 Liability under section 115B.05; comparative 
  fault and contribution. 

    The provisions of sections 604.01 and 604.02, subdivisions 
 1 and 2, apply to any action for damages under section 115B.05.  

    HIST: 1983 c 121 s 9; 1Sp1985 c 8 s 3 

     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 115B.01 to 115B.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 
 115B.01 to 115B.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 115B.01 to 115B.15 or by an insurer or 
 guarantor, whether by right of subrogation or otherwise.  

    HIST: 1983 c 121 s 10 

     115B.11 Statute of limitations. 

    No person may recover 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.  

    HIST: 1983 c 121 s 11 

     115B.12 Other remedies preserved. 

    Nothing in sections 115B.01 to 115B.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 115B.01 to 115B.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 115B.01 to 115B.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.  

    HIST: 1983 c 121 s 12 

     115B.13 Double recovery prohibited. 

    A person who recovers response costs or damages pursuant to 
 sections 115B.01 to 115B.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 115B.01 to 115B.15.  

    HIST: 1983 c 121 s 13 

     115B.14 Award of costs. 

    Upon motion of a party prevailing in an action under 
 sections 115B.01 to 115B.15 the court may award costs, 
 disbursements and reasonable attorney fees and witness fees to 
 that party.  

    HIST: 1983 c 121 s 14 

     115B.15 Application of sections 115B.01 to 115B.14. 

    Sections 115B.01 to 115B.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 115B.01 
 to 115B.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.  

    HIST: 1983 c 121 s 15 

     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 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 115B.04 and 115B.05 
 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 
 115B.04 and 115B.05 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 account.  

    HIST: 1983 c 121 s 16; 1986 c 444; 1989 c 335 art 4 s 106 

     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 commissioner may take removal action which the 
 commissioner deems necessary to protect the public health or 
 welfare or the environment if the commissioner 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 commissioner 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 
 commissioner is authorized to act pursuant to subdivision 1 or 
 whenever the agency or commissioner 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 commissioner 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 115B.01 to 115B.18.  

    Subd. 2a.    Cleanup standards.  In determining the 
 appropriate standards to be achieved by response actions taken 
 or requested under this section to protect public health and 
 welfare and the environment from a release or threatened 
 release, the commissioner shall consider the planned use of the 
 property where the release or threatened release is located. 

    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 115B.03, 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 that person 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 
 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 commissioner 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 115B.01 to 115B.18, or to other 
 public agencies concerned with the implementation of sections 
 115B.01 to 115B.18.  

    Subd. 6.    Recovery of expenses.  Any reasonable and 
 necessary expenses incurred by the agency or commissioner 
 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 115B.04 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 115B.04 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 115B.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 115B.04 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 115B.04 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 account.

    Subd. 8. Repealed, 1990 c 597 s 73 

    Subd. 9.    Actions relating to occupational safety and 
 health.  The agency, commissioner, 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 
 commissioner 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 of health 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 commissioner 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 
 commissioner of the pollution control agency.  

    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 115B.04, 
 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 pollution control 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 
 pollution control agency adopts rules establishing state 
 criteria for determining priorities among releases and 
 threatened releases.  The pollution control 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 
 pollution control 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 pollution control agency, and 
 other appropriate factors.  

    Subd. 14.    Requests for review, investigation, and 
 oversight.  (a) The commissioner may, upon request, assist a 
 person in determining whether real property has been the site of 
 a release or threatened release of a hazardous substance, 
 pollutant, or contaminant.  The commissioner may also assist in, 
 or supervise, the development and implementation of reasonable 
 and necessary response actions.  Assistance may include review 
 of agency records and files, and review and approval of a 
 requester's investigation plans and reports and response action 
 plans and implementation. 

    (b) Except as otherwise provided in this paragraph, the 
 person requesting assistance under this subdivision shall pay 
 the agency for the agency's cost, as determined by the 
 commissioner, of providing assistance.  A state agency, 
 political subdivision, or other public entity is not required to 
 pay for the agency's cost to review agency records and files.  
 Money received by the agency for assistance under this section 
 must be deposited in the environmental response, compensation, 
 and compliance fund. 

    (c) When a person investigates a release or threatened 
 release in accordance with an investigation plan approved by the 
 commissioner under this subdivision, the investigation does not 
 associate that person with the release or threatened release for 
 the purpose of section 115B.03, subdivision 3, paragraph (d). 

    Subd. 15.    Acquisition of property.  The agency may 
 acquire, by purchase or donation, an interest in real property, 
 including easements, restrictive covenants, and leases, that the 
 agency determines is necessary for response action.  The 
 validity and duration of a restrictive covenant or nonpossessory 
 easement acquired under this subdivision shall be determined in 
 the same manner as the validity and duration of a conservation 
 easement under chapter 84C, unless the duration is otherwise 
 provided in the agreement.  The agency may acquire an easement 
 by condemnation only if the agency is unable, after reasonable 
 efforts, to acquire an interest in real property by purchase or 
 donation.  The provisions of chapter 117 govern condemnation 
 proceedings by the agency under this subdivision.  A donation of 
 an interest in real property to the agency is not effective 
 until the agency executes a certificate of acceptance.  The 
 state is not liable under this chapter solely as a result of 
 acquiring an interest in real property under this subdivision. 

    Subd. 16.    Disposition of property acquired for response 
 action.  (a) If the commissioner determines that real or 
 personal property acquired by the agency for response action is 
 no longer needed for response action purposes, the commissioner 
 may: 

    (1) transfer the property to the commissioner of 
 administration to be disposed of in the manner required for 
 other surplus property subject to conditions the commissioner 
 determines necessary to protect the public health and welfare or 
 the environment, or to comply with federal law; 

    (2) transfer the property to another state agency, a 
 political subdivision, or special purpose district as provided 
 in paragraph (b); or 

    (3) if required by federal law, take actions and dispose of 
 the property as required by federal law.  

    (b) If the commissioner determines that real or personal 
 property acquired by the agency for response action must be 
 operated, maintained, or monitored after completion of other 
 phases of the response action, the commissioner may transfer 
 ownership of the property to another state agency, a political 
 subdivision, or special purpose district that agrees to accept 
 the property.  A state agency, political subdivision, or special 
 purpose district is authorized to accept and implement the terms 
 and conditions of a transfer under this paragraph.  The 
 commissioner may set terms and conditions for the transfer that 
 the commissioner considers reasonable and necessary to ensure 
 proper operation, maintenance, and monitoring of response 
 actions, protect the public health and welfare and the 
 environment, and comply with applicable federal and state laws 
 and regulations.  The state agency, political subdivision, or 
 special purpose district to which the property is transferred is 
 not liable under this chapter solely as a result of acquiring 
 the property or acting in accordance with the terms and 
 conditions of the transfer.  

    (c) If the agency acquires property under subdivision 15, 
 the commissioner may lease or grant an easement in the property 
 to a person during the implementation of response actions if the 
 lease or easement is compatible with or necessary for response 
 action implementation. 

    (d) The proceeds of a sale, lease, or other transfer of 
 property under this subdivision by the commissioner or by the 
 commissioner of administration shall be deposited in the 
 environmental response, compensation, and compliance account.  
 Any share of the proceeds that the agency is required by federal 
 law or regulation to reimburse to the federal government is 
 appropriated from the account to the agency for that purpose.  
 Except for section 94.16, subdivision 2, the provisions of 
 section 94.16 do not apply to real property sold by the 
 commissioner of administration which was acquired under 
 subdivision 15. 

    Subd. 17.    Settlements; general authority.  In 
 addition to the general authority vested in the agency to settle 
 any claims under sections 115B.01 to 115B.18, the agency may 
 exercise the settlement authorities provided in subdivisions 17 
 to 20.  If the agency does not obtain complete relief for all of 
 its claims under sections 115B.01 to 115B.18, pursuant to a 
 settlement, the agency may bring claims under those sections 
 against any person who is not a party to the settlement, but the 
 settlement shall reduce the liability of any person who is not a 
 party to the settlement by the amount of the settlement. 

    Subd. 18.    Contribution protection for settlors.  
 Notwithstanding anything to the contrary in section 115B.08 or 
 any other law, a person who resolves its liability to the agency 
 under sections 115B.01 to 115B.18 in a settlement shall not be 
 liable for any claim for contribution regarding matters 
 addressed in the settlement.  Except as otherwise provided in 
 the settlement, a party to a settlement retains any right under 
 section 115B.08 or any other law to bring a claim for 
 contribution against any person who is not a party to the 
 settlement.  Any claim for contribution against a person who is 
 not a party to the settlement shall be subordinate to any claim 
 asserted against such person by the agency. 

    Subd. 19.    Reimbursement under certain settlements.  
 (a) When the agency determines that some but not all persons 
 responsible for a release are willing to implement response 
 actions, the agency may agree, pursuant to a settlement of its 
 claims under sections 115B.01 to 115B.18, to reimburse the 
 settling parties for response costs incurred to take the 
 actions.  The agency may agree to reimburse any amount which 
 does not exceed the amount that the agency estimates may be 
 attributable to the liability of responsible persons who are not 
 parties to the settlement.  Reimbursement may be provided only 
 for the cost of conducting remedial design and constructing 
 remedial action pursuant to the terms of the settlement.  
 Reimbursement under this subdivision shall be paid only upon the 
 agency's determination that the remedial action approved by the 
 agency has been completed in accordance with the terms of the 
 settlement.  The agency may use money appropriated to it for 
 actions authorized under section 115B.20, subdivision 2, clause 
 (2), to pay reimbursement under this subdivision. 

    (b) The agency may agree to provide reimbursement under a 
 settlement only when all of the following requirements have been 
 met: 

    (1) the agency has made the determination under paragraph 
 (c) regarding persons who are not participating in the 
 settlement, and has provided written notice to persons 
 identified under paragraph (c), clauses (1) and (2), of their 
 opportunity to participate in the settlement or in a separate 
 settlement under subdivision 20; 

    (2) the release addressed in the settlement has been 
 assigned a priority pursuant to agency rules adopted under 
 subdivision 13, and the priority is at least as high as a 
 release for which the agency would be allowed to allocate funds 
 for remedial action under the rules; 

    (3) an investigation of the release addressed in the 
 settlement has been completed in accordance with a plan approved 
 by the agency; and 

    (4) the agency has approved the remedial action to be 
 implemented under the settlement. 

    (c) Before entering into a settlement providing for 
 reimbursement under this subdivision, the agency shall determine 
 that there are one or more persons who meet any of the following 
 criteria who are not participating in the settlement: 

    (1) persons identified by the agency as responsible for the 
 release addressed in the settlement but who are likely to have 
 only minimal involvement in actions leading to the release, or 
 are insolvent or financially unable to pay any significant share 
 of response action costs; 

    (2) persons identified by the agency as responsible for the 
 release other than persons described in clause (1) and who are 
 unwilling to participate in the settlement or to take response 
 actions with respect to the release; 

    (3) persons whom the agency has reason to believe are 
 responsible for the release addressed in the settlement but whom 
 the agency has been unable to identify; or 

    (4) persons identified to the agency by a party to the 
 proposed settlement as persons who are potentially responsible 
 for the release but for whom the agency has insufficient 
 information to determine responsibility. 

    (d) Except as otherwise provided in this subdivision, a 
 decision of the agency under this subdivision to offer or agree 
 to provide reimbursement in any settlement, or to determine the 
 amount of reimbursement it will provide under a settlement, is a 
 matter of agency discretion in the exercise of its enforcement 
 authority.  In exercising discretion in this matter, the agency 
 may consider, among other factors, the degree of cooperation 
 with the agency that has been shown prior to the settlement by 
 the parties seeking reimbursement. 

    (e) The agency may require as a term of settlement under 
 this subdivision that the parties receiving reimbursement from 
 the agency waive any rights they may have to bring a claim for 
 contribution against persons who are not parties to the 
 settlement. 

    Subd. 20.    Settlements with de minimis parties and 
 parties with limited financial resources.  (a) The agency may 
 agree to separately settle its claims under sections 115B.01 to 
 115B.18 with any persons: 

    (1) whose liability for response costs or response actions, 
 in the determination of the agency, is minimal in comparison 
 with the liability of other persons responsible for the release; 
 or 

    (2) who are responsible for a release but, in the 
 determination of the agency, are insolvent or financially unable 
 to pay any significant share of their liability for the response 
 costs. 

    (b) A settlement under this subdivision may require the 
 parties to pay a fixed amount in money or in kind toward the 
 implementation of response actions, and may include a premium 
 for the risk of additional future response costs or response 
 action requirements.  The agency may require as a term of a 
 settlement under this subdivision that the settling responsible 
 persons waive any rights they may have to bring a claim for 
 contribution against persons who are not parties to the 
 settlement. 

    (c) All amounts paid to the agency under a settlement 
 entered into pursuant to this subdivision shall be deposited in 
 the account and are appropriated to the agency to pay for 
 response actions and associated administrative and legal costs 
 related to the release addressed in the settlement, including 
 reimbursement for response costs under subdivision 19. 

    HIST: 1983 c 121 s 17; 1986 c 444; 1987 c 186 s 15; 1988 c 685 
 s 23; 1989 c 325 s 30; 1989 c 335 art 4 s 36; 1990 c 528 s 1; 
 1990 c 597 s 69; 1992 c 512 s 1; 1995 c 168 s 3; 1997 c 216 s 
 101-106 

     115B.175 Voluntary response actions; liability 
  protection; procedures. 

    Subdivision 1.    Protection from liability; scope.  (a) 
 Subject to the provisions of this section, a person who is not 
 otherwise responsible under sections 115B.01 to 115B.18 for a 
 release or threatened release will not be responsible under 
 those sections for the release or threatened release if the 
 person undertakes and completes response actions to remove or 
 remedy all known releases and threatened releases at an 
 identified area of real property in accordance with a voluntary 
 response action plan approved by the commissioner. 

    (b) The liability protection provided under this 
 subdivision applies to releases or threatened releases at the 
 identified property that are not required to be removed or 
 remedied by the approved voluntary response action plan if the 
 requirements of subdivision 2 are met. 

    Subd. 2.    Partial response action plans; criteria for 
 approval.  (a) The commissioner may approve a voluntary 
 response action plan submitted under this section that does not 
 require removal or remedy of all releases and threatened 
 releases at an identified area of real property if the 
 commissioner determines that all of the following criteria have 
 been met: 

    (1) if reuse or development of the property is proposed, 
 the voluntary response action plan provides for all response 
 actions required to carry out the proposed reuse or development 
 in a manner that meets the same standards for protection that 
 apply to response actions taken or requested under section 
 115B.17, subdivision 1 or 2; 

    (2) the response actions and the activities associated with 
 any reuse or development proposed for the property will not 
 aggravate or contribute to releases or threatened releases that 
 are not required to be removed or remedied under the voluntary 
 response action plan, and will not interfere with or 
 substantially increase the cost of response actions to address 
 the remaining releases or threatened releases; and 

    (3) the owner of the property agrees to cooperate with the 
 commissioner or other persons acting at the direction of the 
 commissioner in taking response actions necessary to address 
 remaining releases or threatened releases, and to avoid any 
 action that interferes with the response actions. 

    (b) Under paragraph (a), clause (3), an owner may be 
 required to agree to any or all of the following terms necessary 
 to carry out response actions to address remaining releases or 
 threatened releases: 

    (1) to provide access to the property to the commissioner 
 and the commissioner's authorized representatives; 

    (2) to allow the commissioner, or persons acting at the 
 direction of the commissioner, to undertake reasonable and 
 necessary activities at the property including placement of 
 borings, wells, equipment, and structures on the property, 
 provided that the activities do not unreasonably interfere with 
 the proposed reuse or redevelopment; and 

    (3) to grant easements or other interests in the property 
 to the agency for any of the purposes provided in clause (1) or 
 (2). 

    (c) An agreement under paragraph (a), clause (3), must 
 apply to and be binding upon the successors and assigns of the 
 owner.  The owner shall record the agreement, or a memorandum 
 approved by the commissioner that summarizes the agreement, with 
 the county recorder or registrar of titles of the county where 
 the property is located. 

    Subd. 3.    Submission and approval of voluntary response 
 action plans.  (a) A person shall submit a voluntary response 
 action plan to the commissioner under section 115B.17, 
 subdivision 14.  The commissioner may provide assistance to 
 review voluntary response action plans or supervise response 
 action implementation under that subdivision. 

    (b) A voluntary response action plan submitted for approval 
 of the commissioner must include an investigation report that 
 describes the methods and results of an investigation of the 
 releases and threatened releases at the identified area of real 
 property.  The commissioner must not approve the voluntary 
 response action plan unless the commissioner determines that the 
 nature and extent of the releases and threatened releases at the 
 identified area of real property have been adequately identified 
 and evaluated in the investigation report. 

    (c) Response actions required in a voluntary response 
 action plan under this section must meet the same standards for 
 protection that apply to response actions taken or requested 
 under section 115B.17, subdivision 1 or 2. 

    (d) When the commissioner approves a voluntary response 
 action plan, the commissioner may include in the approval an 
 acknowledgment that, upon certification of completion of the 
 response actions as provided in subdivision 5, the person 
 submitting the plan will receive the protection from liability 
 provided under this section. 

    Subd. 4.    Performance of response actions does not 
 associate persons with release.  Persons specified in 
 subdivision 6 or 6a, paragraph (c), do not associate themselves 
 with, or aggravate or contribute to, any release or threatened 
 release identified in an approved voluntary response action plan 
 for the purpose of subdivision 7, clause (1), or section 
 115B.03, subdivision 3, clause (d), as a result of performance 
 of the response actions required in accordance with the plan and 
 the direction of the commissioner.  Nothing in this section 
 relieves a person of any liability for failure to exercise due 
 care in performing a response action. 

    Subd. 5.    Certification of completion of response 
 actions.  (a) Response actions taken under an approved 
 voluntary response action plan are not completed until the 
 commissioner certifies completion in writing. 

    (b) Certification of completion of response actions taken 
 under a voluntary response action plan that does not require 
 removal or remedy of all releases and threatened releases is 
 subject to compliance by the owner, and the owner's successors 
 and assigns, with the terms of the agreement required under 
 subdivision 2, paragraph (a), clause (3). 

    Subd. 6.    Persons protected from liability.  In 
 addition to the person who undertakes and completes response 
 actions, and subject to the provisions of subdivision 7, the 
 liability protection provided by this section applies to the 
 following persons when the commissioner issues the certificate 
 of completion of response actions under subdivision 5: 

    (1) the owner of the identified property, if the owner is 
 not responsible for any release or threatened release identified 
 in the approved voluntary response action plan; 

    (2) a person providing financing to the person who 
 undertakes and completes the response actions, or who acquires 
 or develops the identified property; and 

    (3) a successor or assign of any person to whom the 
 liability protection applies. 

    Subd. 6a.    Voluntary response actions by responsible 
 persons.  (a) Notwithstanding subdivision 1, paragraph (a), 
 when a person who is responsible for a release or threatened 
 release under sections 115B.01 to 115B.18 undertakes and 
 completes response actions, the protection from liability 
 provided by this section applies to persons described in 
 paragraph (c) if the response actions are undertaken and 
 completed in accordance with this subdivision. 

    (b) The response actions must be undertaken and completed 
 in accordance with a voluntary response action plan approved as 
 provided in subdivision 3.  Notwithstanding subdivision 2, a 
 voluntary response action plan submitted by a person who is 
 responsible for the release or threatened release must require 
 remedy or removal of all releases and threatened releases at the 
 identified area of real property.  The identified area of real 
 property must correspond to the boundaries of a parcel that is 
 either separately platted or is the entire parcel. 

    (c) Subject to the provisions of subdivision 7, when the 
 commissioner issues a certificate of completion under 
 subdivision 5 for response actions completed at an identified 
 area of real property in accordance with this subdivision, the 
 liability protection under this section applies to: 

    (1) a person who acquires the identified real property 
 after approval of the voluntary response action plan; 

    (2) a person providing financing for response actions or 
 development at the identified real property after approval of 
 the response action plan, whether the financing is provided to 
 the person undertaking the response actions or other person who 
 acquires or develops the property; and 

    (3) a successor or assign of a person to whom the liability 
 protection applies under this paragraph. 

    (d) When the commissioner issues a certificate of 
 completion for response actions completed by a responsible 
 person, the commissioner and the responsible person may enter 
 into an agreement that resolves the person's future liability to 
 the agency under sections 115B.01 to 115B.18 for the release or 
 threatened release addressed by the response actions. 

    Subd. 7.    Persons not protected from liability.  The 
 protection from liability provided by this section does not 
 apply to: 

    (1) a person who aggravates or contributes to a release or 
 threatened release that was not remedied under an approved 
 voluntary response action plan; 

    (2) a person who was responsible under sections 115B.01 to 
 115B.18 for a release or threatened release identified in the 
 approved voluntary response action plan before taking an action 
 that would have made the person subject to the protection under 
 subdivision 6 or 6a; or 

    (3) a person who obtains approval of a voluntary response 
 action plan for purposes of this section by fraud or 
 misrepresentation, or by knowingly failing to disclose material 
 information, or who knows that approval was so obtained before 
 taking an action that would have made the person subject to the 
 protection under subdivision 6 or 6a. 

    Subd. 8.    Other rights and authorities not affected.  
 Nothing in this section affects the authority of the agency or 
 commissioner to exercise any powers or duties under this chapter 
 or other law with respect to any release or threatened release, 
 or the right of the agency, the commissioner, or any other 
 person to seek any relief available under this chapter against 
 any party who is not subject to the liability protection 
 provided under this section. 

    HIST: 1992 c 512 s 2; 1993 c 287 s 1-3; 1995 c 168 s 4,5; 1997 
 c 216 s 107,108 

     115B.177 Owner of real property affected by off-site 
  release. 

    Subdivision 1.    Determination or agreement by 
 commissioner.  (a) The commissioner may issue a written 
 determination or enter into an agreement to take no action under 
 sections 115B.01 to 115B.18 against a person who owns real 
 property subject to a release of a hazardous substance, or 
 pollutant or contaminant, if the commissioner finds that the 
 release originates from a source on adjacent or nearby real 
 property and that the person is not otherwise responsible for 
 the release. 

    (b) A determination issued or agreement entered into under 
 this section must be conditioned upon the following: 

    (1) agreement by the person to allow entry upon the 
 property to the commissioner and the authorized representatives 
 of the commissioner to take response actions to address the 
 release, including in appropriate cases an agreement to grant 
 easements to the state for that purpose; 

    (2) agreement by the person to avoid any interference with 
 the response actions to address the release taken by or at the 
 direction of the agency or the commissioner, and to avoid 
 actions that contribute to the release; 

    (3) invalidation of the determination or agreement if the 
 commissioner receives new information indicating that the 
 property owned by the person is a source of the release or that 
 the person is otherwise responsible for the release; and 

    (4) any other condition that the commissioner deems 
 reasonable and necessary to ensure that the agency and 
 commissioner can adequately respond to the release. 

    Subd. 2.    Scope and effect of determination or 
 agreement.  (a) A determination issued or agreement entered 
 into under this section may extend to the successors and assigns 
 of the person to whom it originally applies, if the successors 
 and assigns are not otherwise responsible for the release and 
 are bound by the conditions in the determination or agreement. 

    (b) Issuance of a determination or execution of an 
 agreement under this section does not affect the authority of 
 the agency or commissioner to take any response action under 
 sections 115B.01 to 115B.18 with respect to the release subject 
 to the determination or agreement, or to take administrative or 
 judicial action under those sections with respect to persons not 
 bound by the determination or agreement. 

    HIST: 1992 c 512 s 3 

     115B.178 Association with release; commissioner's 
  determination. 

    Subdivision 1.    Determination.  (a) The commissioner 
 may issue determinations that certain actions proposed to be 
 taken at real property subject to a release or threatened 
 release of a hazardous substance or pollutant or contaminant 
 will not constitute conduct associating the person with the 
 release or threatened release for the purpose of section 
 115B.03, subdivision 3, clause (d).  Proposed actions that may 
 be covered by a determination under this section include 
 response actions approved by the commissioner to address the 
 release or threatened release, actions to improve or develop the 
 real property, loans secured by the real property, or other 
 similar actions.  A determination may be subject to terms and 
 conditions deemed reasonable by the commissioner.  When a person 
 takes actions in accordance with a determination issued under 
 this subdivision, the actions do not associate the person with 
 the release for the purpose of section 115B.03, subdivision 3, 
 clause (d). 

    (b) The commissioner may also issue a determination under 
 paragraph (a) that certain actions taken in the past at the real 
 property did not constitute conduct associating the person 
 requesting the determination with the release or threatened 
 release for purposes of section 115B.03, subdivision 3, clause 
 (d).  The person requesting a determination under this paragraph 
 shall conduct an investigation approved by the commissioner that 
 identifies the nature and extent of the release or threatened 
 release or shall take response actions in accordance with a 
 response action plan approved by the commissioner.  Any such 
 determination shall be limited to the represented facts of the 
 past actions and shall not apply to actions that are not 
 represented or disclosed.  The determination may be subject to 
 such other terms and conditions as the commissioner deems 
 reasonable. 

    Subd. 2.    Scope and effect of determination.  Section 
 115B.177, subdivision 2, applies to a determination by the 
 commissioner under this section. 

    HIST: 1993 c 287 s 4; 1994 c 639 art 4 s 1; 1995 c 168 s 6 

     115B.179 Commissioner's authority not limited. 

    The commissioner's authority to make a determination or 
 enter into an agreement under section 115B.177 and to make a 
 determination under section 115B.178 does not limit or preclude 
 any other authority of the commissioner under any law. 

    HIST: 1993 c 287 s 5 

     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 115B.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 commissioner 
 of the pollution control agency.  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.  

    HIST: 1983 c 121 s 18; 1987 c 186 s 15 

     115B.19 Purposes of account and taxes. 

    In establishing the environmental response, compensation 
 and compliance account in section 115B.20 and imposing taxes in 
 section 115B.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.

    HIST: 1983 c 121 s 19; 1989 c 335 art 4 s 106 

     115B.20 Environmental response, compensation, and 
  compliance account. 

    Subdivision 1.    Establishment.  (a) The environmental 
 response, compensation, and compliance account is in the 
 environmental fund in the state treasury and may be spent only 
 for the purposes provided in subdivision 2.  

    (b) The commissioner of finance shall administer a response 
 account for the agency and the commissioner of agriculture to 
 take removal, response, and other actions authorized under 
 subdivision 2, clauses (1) to (4) and (10) to (12).  The 
 commissioner of finance shall transfer money from the response 
 account to the agency and the commissioner of agriculture to 
 take actions required under subdivision 2, clauses (1) to (4) 
 and (10) to (12).  

    (c) The commissioner of finance shall administer the 
 account in a manner that allows the commissioner of agriculture 
 and the agency to utilize the money in the account to implement 
 their removal and remedial action duties as effectively as 
 possible. 

    (d) Amounts appropriated to the commissioner of finance 
 under this subdivision shall not be included in the department 
 of finance budget but shall be included in the pollution control 
 agency and department of agriculture budgets. 

    (e) All money recovered by the state under section 115B.04 
 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, must be credited to 
 the environmental response, compensation, and compliance account 
 in the environmental fund and is appropriated to the 
 commissioner of natural resources for purposes of subdivision 2, 
 clause (6), consistent with any applicable term of judgments, 
 consent decrees, consent orders, or other administrative actions 
 requiring payments to the state for such purposes.  Before 
 making an expenditure of money appropriated under this 
 paragraph, the commissioner of natural resources shall provide 
 written notice of the proposed expenditure to the chairs of the 
 senate committee on finance, the house of representatives 
 committee on ways and means, the finance division of the senate 
 committee on environment and natural resources, and the house of 
 representatives committee on environment and natural resources 
 finance. 

    Subd. 2.    Purposes for which money may be spent.  
 Subject to appropriation by the legislature the money in the 
 account may be spent for any of the following purposes:  

    (1) preparation by the agency and the commissioner of 
 agriculture for taking removal or remedial action under section 
 115B.17, or under chapter 18D, including investigation, 
 monitoring and testing activities, enforcement and compliance 
 efforts relating to the release of hazardous substances, 
 pollutants or contaminants under section 115B.17 or 115B.18, or 
 chapter 18D; 

    (2) removal and remedial actions taken or authorized by the 
 agency or the commissioner of the pollution control agency under 
 section 115B.17, or taken or authorized by the commissioner of 
 agriculture under chapter 18D including related enforcement and 
 compliance efforts under section 115B.17 or 115B.18, or chapter 
 18D, 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 United States Code, title 42, section 9604(c)(3) for 
 actions related to facilities other than commercial hazardous 
 waste facilities located under the siting authority of chapter 
 115A; 

    (3) reimbursement to any private person for expenditures 
 made before July 1, 1983, to provide alternative water supplies 
 deemed necessary by the agency or the commissioner of 
 agriculture and the department of health to protect the public 
 health from contamination resulting from the release of a 
 hazardous substance; 

    (4) removal and remedial actions taken or authorized by the 
 agency or the commissioner of agriculture or the pollution 
 control agency under section 115B.17, or chapter 18D, including 
 related enforcement and compliance efforts under section 115B.17 
 or 115B.18, or chapter 18D, 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 United States Code, title 42, 
 section 9604(c)(3) for actions related to commercial hazardous 
 waste facilities located under the siting authority of chapter 
 115A; 

    (5) 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; 

    (6) 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; 

    (7) grants by the agency or the office of environmental 
 assistance 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; 

    (8) intervention and environmental mediation by the 
 legislative commission on waste management under chapter 115A; 

    (9) 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; 

    (10) acquisition of a property interest under section 
 115B.17, subdivision 15; 

    (11) reimbursement, in an amount to be determined by the 
 agency in each case, to a political subdivision that is not a 
 responsible person under section 115B.03, for reasonable and 
 necessary expenditures resulting from an emergency caused by a 
 release or threatened release of a hazardous substance, 
 pollutant, or contaminant; and 

    (12) reimbursement to a political subdivision for 
 expenditures in excess of the liability limit under section 
 115B.04, subdivision 4. 

    Subd. 3.    Limit on certain expenditures.  The 
 commissioner of agriculture or the pollution control agency or 
 the agency may not spend any money under subdivision 2, clause 
 (2) or (4), 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, United States Code, 
 title 42, section 9600 et seq.  The commissioner of agriculture 
 or the pollution control agency or the 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 commissioner of agriculture or the 
 pollution control agency or the agency shall take into account:  

    (1) the urgency of the removal or remedial actions and the 
 priority assigned under the Federal Superfund Act to the release 
 which necessitates those actions; 

    (2) the availability of money in the funds established 
 under the Federal Superfund Act; and 

    (3) 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 account: 

    (1) the proceeds of the taxes imposed pursuant to section 
 115B.22, including interest and penalties; 

    (2) all money recovered by the state under sections 115B.01 
 to 115B.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 116.12; 

    (3) all interest attributable to investment of money 
 deposited in the account; and 

    (4) 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.  The legislative commission 
 on waste management and the commissioner of agriculture shall 
 make recommendations to the standing legislative committees on 
 finance and appropriations regarding appropriations from the 
 account.  

    Subd. 6.    Report to legislature.  Each year, the 
 commissioner of agriculture and the agency shall submit to the 
 senate finance committee, the house ways and means committee, 
 the environment and natural resources committees of the senate 
 and house of representatives, the finance division of the senate 
 committee on environment and natural resources, and the house of 
 representatives committee on environment and natural resources 
 finance, the environmental quality board, and the legislative 
 water commission a report detailing the activities for which 
 money from the account has been spent during the previous fiscal 
 year.  

    HIST: 1983 c 121 s 20; 1987 c 186 s 15; 1989 c 325 s 31; 1989 
 c 326 art 8 s 7; 1989 c 335 art 1 s 269; art 4 s 37-39,106; 1990 
 c 597 s 55; 1993 c 4 s 14; 1994 c 557 s 25; 1995 c 220 s 98; 
 1995 c 247 art 2 s 54; 1996 c 470 s 27; 1997 c 7 art 1 s 31,32 

     115B.21 Taxes; definitions. 

    Subdivision 1.    Application.  The definitions provided 
 in this section and section 115B.02 apply to sections 115B.21 to 
 115B.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. Repealed, 1993 c 172 s 93 

    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. Repealed, 1993 c 172 s 93 

    HIST: 1983 c 121 s 21 

*   NOTE:  See section 115B.241 for repealer.

     115B.22 Hazardous waste generator tax. 

    Subdivision 1. Repealed, 1993 c 172 s 93 

    Subd. 1a.    Taxes imposed.  Until January 1, 2004, a 
 generator of hazardous waste shall pay a tax in an amount equal 
 to the greater of the applicable base tax under subdivision 2a 
 or the quantity tax determined under subdivision 3a. 

    Subd. 2. Repealed, 1993 c 172 s 93 

    Subd. 2a.    Base tax.  (a) The base tax for large 
 quantity generators, as defined in rules of the agency, is $500. 

    (b) The base tax for small quantity generators, as defined 
 in rules of the agency, is $200. 

    (c) The base tax for very small quantity generators, as 
 defined in rules of the agency, that produce more than 100 
 pounds per year of hazardous waste is $50. 

    (d) There is no base tax for very small quantity 
 generators, as defined in rules of the agency, that produce 100 
 pounds or less per year of hazardous waste. 

    Subd. 3. Repealed, 1993 c 172 s 93 

    Subd. 3a.    Quantity tax.  (a) The quantity tax does 
 not apply to very small quantity generators, as defined in the 
 rules of the agency.  The quantity tax is determined as provided 
 in paragraphs (b) to (d). 

    (b) Generators of hazardous waste managed using either of 
 the following methods as defined in rules adopted under sections 
 115.03, 116.07, and 116.37 shall pay taxes on the waste at the 
 rate of 1.5 cents per pound of solid or 15 cents per gallon of 
 liquid: 

    (1) hazardous wastes that are hazardous prior to discharge 
 to a publicly owned wastewater treatment works; and 

    (2) hazardous wastes managed as a hazardous waste fuel or 
 using thermal treatment. 

    (c) Generators of hazardous waste managed using any of the 
 following methods as defined in rules adopted under sections 
 115.03, 116.07, and 116.37 are exempt from paying taxes on the 
 wastes: 

    (1) hazardous wastes that are destined for recycling, 
 including waste accumulated, stored, or treated prior to 
 recycling; 

    (2) hazardous waste that is destined for incineration at a 
 permitted hazardous waste incineration facility in Minnesota; 

    (3) hazardous wastes that are either (i) pretreated to a 
 nonhazardous state prior to discharge to a publicly owned 
 treatment works, or (ii) treated to a nonhazardous state after 
 treatment in an on-site treatment system, if the publicly owned 
 treatment works or on-site treatment system is operated in 
 accordance with a national pollution discharge elimination 
 system permit, state disposal system permit, or both, issued by 
 the agency; and 

    (4) hazardous wastes that are neutralized and are not 
 otherwise hazardous waste after neutralizing. 

    (d) Generators of hazardous waste shall pay taxes on 
 hazardous wastes managed using any other method not mentioned in 
 this subdivision at the rate of three cents per pound of solid 
 or 30 cents per gallon of liquid. 

    Subd. 4. Repealed, 1993 c 172 s 93 

    Subd. 4a.    Hazardous wastes not subject to tax.  The 
 taxes imposed by this section do not apply to hazardous wastes 
 generated as a result of a response action or hazardous wastes 
 generated as a result of lead acid battery smelting. 

    Subd. 5. Repealed, 1993 c 172 s 93 

    Subd. 6. Repealed, 1993 c 172 s 93 

    Subd. 7.    Disposition of proceeds.  After 
 reimbursement to the department of revenue for costs incurred in 
 administering sections 115B.22 and 115B.24, the proceeds of the 
 taxes imposed under this section including any interest and 
 penalties shall be deposited in the environmental response, 
 compensation, and compliance account. 

    Subd. 8.    Review of tax by LCWM.  The legislative 
 commission on waste management shall periodically review the 
 taxes and tax rates imposed under this section 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.  

    HIST: 1983 c 121 s 22; 1984 c 644 s 48; 1989 c 335 art 1 s 
 269; art 4 s 40; 1991 c 337 s 54; 1993 c 172 s 64-67; 1993 c 375 
 art 9 s 13 

*   NOTE:  See section 115B.241 for repealer.

   115B.223 Repealed, 1997 c 216 s 160 

*   NOTE:  See section 115B.241 for repealer.

   115B.224 Repealed, 1997 c 216 s 160 

*   NOTE:  See section 115B.241 for repealer.

     115B.23 Severability. 

    If any tax imposed under section 115B.22 is found to be 
 invalid because of the purpose for which the proceeds were 
 appropriated or made available under section 115B.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 115B.20, subdivision 2.  

    HIST: 1983 c 121 s 23 

*   NOTE:  See section 115B.241 for repealer.

     115B.24 Tax administration and enforcement. 

    Subdivision 1.    Annual returns.  Every generator of 
 hazardous waste subject to taxation pursuant to section 115B.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 115B.22 shall make a declaration of 
 estimated hazardous waste generated for the last six months of 
 calendar year 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 115B.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.  

    If the aggregate amount of estimated tax payments made 
 during a fiscal year ending June 30 is equal to or exceeds 
 $80,000, all estimated tax payments in the subsequent calendar 
 year must be paid by means of a funds transfer as defined in 
 section 336.4A-104, paragraph (a).  The funds transfer payment 
 date, as defined in section 336.4A-401, must be on or before the 
 date the estimated tax payment is due.  If the date the 
 estimated tax payment is due is not a funds transfer business 
 day, as defined in section 336.4A-105, paragraph (a), clause 
 (4), the payment date must be on or before the funds transfer 
 business day next following the date the estimated tax payment 
 is due. 

    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 289A.50. 

    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 115B.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 treatment or 
 disposal shall pay the tax imposed by section 115B.22 at the 
 first point at which the hazardous wastes are received by a 
 person in this state for treatment or disposal.  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 115B.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 115B.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 115B.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 115B.22.  

    Subd. 10. Repealed, 1993 c 375 art 9 s 50 

    HIST: 1983 c 121 s 24; 1989 c 335 art 4 s 41; 1990 c 480 art 1 
 s 46; 1991 c 291 art 17 s 1; 1993 c 172 s 70 

*   NOTE:  See section 115B.241 for repealer.

     115B.241 Repealer. 

    Sections 115B.21 to 115B.24 are repealed effective January 
 1, 2004. 

    HIST: 1993 c 172 s 93 

     115B.25 Definitions. 

    Subdivision 1.    Applicability.  The definitions in 
 this section apply to sections 115B.25 to 115B.37. 

    Subd. 1a.    Account.  Except when another account is 
 specified, "account" means the environmental response, 
 compensation, and compliance account established in section 
 115B.20. 

    Subd. 2.    Board.  "Board" means the harmful substance 
 compensation board established in section 115B.27. 

    Subd. 3.    Compensable loss.  "Compensable loss" means 
 a loss that is compensable under section 115B.34. 

    Subd. 4.    Eligible person.  "Eligible person" means a 
 person who is eligible to file a claim with the account under 
 section 115B.29. 

    Subd. 5.    Eligible personal injury.  "Eligible 
 personal injury" means personal injury that is eligible for 
 compensation under section 115B.30. 

    Subd. 6.    Eligible property damage.  "Eligible 
 property damage" means property damage that is eligible for 
 compensation under section 115B.30. 

    Subd. 6a.    Facility.  "Facility" has the meaning given 
 it in section 115B.02, subdivision 5. 

    Subd. 7.  MS 1990 Renumbered subd 1a 

    Subd. 7a.    Harmful substance.  "Harmful substance" 
 means: 

    (1) any commercial chemical designated under the Federal 
 Water Pollution Control Act, United States Code, title 33, 
 section 1321(b)(2)(A); 

    (2) any hazardous air pollutant listed under the Clean Air 
 Act, United States Code, title 42, section 7412; 

    (3) any hazardous waste; 

    (4) petroleum as defined in section 115C.02, subdivision 
 10; and 

    (5) pesticide as defined in chapter 18B, or fertilizer, 
 plant amendment, or soil amendment as defined in chapter 17.  

    Subd. 7b.    Hazardous waste.  "Hazardous waste" has the 
 meaning given in section 115B.02, subdivision 9. 

    Subd. 7c.    Person.  "Person" has the meaning given in 
 section 115B.02, subdivision 12. 

    Subd. 8.    Protected information.  "Protected 
 information" means information provided to the board by a 
 nongovernmental third party, or information provided to the 
 board by a governmental party if access to that information is 
 protected under other law, that is relevant to a determination 
 required of the board under section 115B.33, subdivisions 1, 
 clauses (2) to (4), and 2, clause (2). 

    Subd. 9.    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, by-product, or special nuclear 
 material from a nuclear incident, as those terms are defined in 
 the Atomic Energy Act of 1954, under United States Code, title 
 42, section 2014, if the release is subject to requirements with 
 respect to financial protection established by the federal 
 Nuclear Regulatory Commission under United States Code, title 
 42, section 2210; 

    (c) Release of source, by-product, or special nuclear 
 material from any processing site designated pursuant to the 
 Uranium Mill Tailings Radiation Control Act of 1978, under 
 United States Code, title 42, section 7912(a)(1) or 7942(a); 

    (d) Discharges or designed venting of petroleum from a tank 
 allowed under the rules of the pollution control agency; or 

    (e) The use of a pesticide, fertilizer, plant amendment, or 
 soil amendment in accordance with its labeling. 

    HIST: 1Sp1985 c 8 s 4; 1989 c 325 s 32-39; 1989 c 335 art 4 s 
 42; 1991 c 199 art 1 s 19; 1995 c 220 s 99 

     115B.26 Harmful substance compensation account. 

    Subdivision 1. Repealed, 1995 c 220 s 141 

    Subd. 2.    Appropriation.  The amount necessary to pay 
 claims of compensation granted by the agency under sections 
 115B.25 to 115B.37 is appropriated to the agency from the 
 account. 

    Subd. 3.    Payment of claims when account insufficient. 
  If the amount of the claims granted exceeds the amount in the 
 account, the board shall request a transfer from the general 
 contingent account to the harmful substance compensation account 
 as provided in section 3.30.  If no transfer is approved, the 
 board shall pay the claims which have been granted in the order 
 granted only to the extent of the money remaining in the 
 account.  The board shall pay the remaining claims which have 
 been granted after additional money is credited to the account. 

    Subd. 4.    Account transfer request.  At the end of 
 each fiscal year, the board shall submit a request to the 
 petroleum tank release compensation board for transfer to the 
 harmful substance compensation account from the petroleum tank 
 release cleanup fund under section 115C.08, subdivision 5, of an 
 amount equal to the compensation granted by the board for claims 
 related to petroleum releases plus administrative costs related 
 to determination of those claims. 

    HIST: 1Sp1985 c 8 s 5; 1989 c 325 s 40; 1989 c 335 art 4 s 43; 
 1991 c 199 art 1 s 20,21; 1995 c 220 s 100; 1995 c 254 art 1 s 
 96 

     115B.27 Harmful substance compensation board. 

    Subdivision 1.    Establishment of board.  The harmful 
 substance compensation board is established.  The board consists 
 of five members who will serve part time and who will be 
 appointed by the governor with the advice and consent of the 
 senate.  One member must be a physician knowledgeable in 
 toxicology; one member must be a member of the bar of this 
 state; one member must be a health professional knowledgeable in 
 the area of harmful substance injuries; and two members must be 
 members of the general public.  The board shall annually elect a 
 member to serve as chair for a term of one year.  Filling of 
 vacancies on the board and removal of members are governed by 
 section 15.0575. 

    Subd. 2.    Membership terms.  The initial members shall 
 be appointed to terms as follows: 

    (1) two members appointed for six years; 

    (2) two members appointed for four years; 

    (3) the fifth member appointed for two years. 

    At the end of each member's term, the successor shall be 
 appointed for six years and each successor thereafter shall be 
 appointed for six years. 

    Subd. 3.    Compensation and expenses.  Notwithstanding 
 the provisions of section 15.0575, the commissioner of employee 
 relations shall establish the compensation to be paid members of 
 the board, based on the professional expertise and experience of 
 the members.  Expenses shall be paid as provided in the plan for 
 state employees adopted under section 43A.18, subdivision 2. 

    HIST: 1Sp1985 c 8 s 6; 1986 c 444; 1989 c 325 s 41 

     115B.28 Powers and duties of the board. 

    Subdivision 1.    Duties.  In addition to performing 
 duties specified in sections 115B.25 to 115B.37 or in other law, 
 and subject to the limitations on disclosure contained in 
 section 115B.35, the board shall: 

    (1) adopt rules as soon as practicable after all members 
 are appointed, including rules governing practice and procedure 
 before the board, the form and procedure for applications for 
 compensation, and procedures for claims investigations; 

    (2) publicize the availability of compensation and 
 application procedures on a statewide basis with special 
 emphasis on geographical areas surrounding sites identified by 
 the pollution control agency as having releases from a facility 
 where a harmful substance was placed or came to be located prior 
 to July 1, 1983; 

    (3) collect, analyze, and make available to the public, in 
 consultation with the department of health, the pollution 
 control agency, the University of Minnesota medical and public 
 health schools, and the medical community, data regarding 
 injuries relating to exposure to harmful substances; and 

    (4) prepare and transmit by December 31 of each year to the 
 governor and the legislature an annual report to include (a) a 
 summary of board activity under clause (3); (b) data determined 
 by the board from actual cases, including but not limited to 
 number of cases, actual compensation received by each claimant, 
 types of cases, and types of injuries compensated, as they 
 relate to types of harmful substances as well as length of 
 exposure, but excluding identification of the claimants; (c) all 
 administrative costs associated with the business of the board; 
 and (d) board recommendations for legislative changes, further 
 study, or any other recommendation aimed at improving the system 
 of compensation. 

    Subd. 2.    Powers.  In addition to exercising any 
 powers specified in sections 115B.25 to 115B.37 or in other law, 
 the board may: 

    (1) in reviewing a claim, consider any information relevant 
 to the claim, in accordance with the evidentiary standards 
 contained in section 115B.35; 

    (2) contract for consultant or other services necessary to 
 carry out the board's duties under sections 115B.25 to 115B.37; 

    (3) grant reasonable partial compensation on an emergency 
 basis pending the final decision on a claim if the claim is one 
 with respect to which an award will probably be made and undue 
 hardship will result to the claimant if immediate payment is not 
 made; 

    (4) limit access to information collected and maintained by 
 the board and take any other action necessary to protect not 
 public data as defined in section 13.02, subdivision 8a, and 
 protected information, in accordance with the limitations 
 contained in section 115B.35. 

    Subd. 3.    Investigation; obtaining information.  The 
 board may investigate any claim for compensation and for this 
 purpose it may require from the claimant and request from any 
 person information regarding any matter, fact, or circumstance 
 which is relevant to determination of a claim under section 
 115B.33.  In exercising its powers under this subdivision, the 
 board may collect information reasonably calculated to lead to 
 the discovery of evidence admissible under section 115B.35.  The 
 board shall reimburse the person requested to provide 
 information the actual cost of copies of documents, papers, 
 samples, or other tangible items necessary to respond to the 
 request from the board.  In order to obtain this information the 
 board, subject to any applicable privilege, may: 

    (a) request any person to produce documents, papers, books, 
 or other tangible things in the possession, custody, or control 
 of that person; 

    (b) request the sworn testimony of any person as to any 
 relevant fact or opinion; 

    (c) direct written questions to any person and request 
 written answers and objections; 

    (d) request a mental or physical examination of the 
 claimant or autopsy of any deceased person whose death is the 
 basis of the claim, provided that notice is given to the 
 claimant and the claimant receives a copy of the report; and 

    (e) request a waiver of medical privilege by the claimant. 

    The board shall give written notice of any request under 
 this subdivision at least 15 days before the person is expected 
 to comply with the request.  If a person fails or refuses to 
 comply with a request for information relevant to the release of 
 a harmful substance, the board may issue a subpoena for the 
 production of the information and may petition the district 
 court for an order enforcing the subpoena.  If a person fails or 
 refuses to comply with a request for other information relevant 
 to determination of the claim, the board may petition the 
 district court for an order to compel compliance with the 
 request.  If the claimant refuses to comply with a request by 
 the board for information relevant to the claim, the board may 
 dismiss the claim. 

    Subd. 4.    Administrative personnel and services.  The 
 board may appoint an executive director who is not a member of 
 the board.  The executive director is in the unclassified 
 service.  The commissioner of health shall provide staff 
 assistance, administrative services, and office space under a 
 contract with the board.  The board shall reimburse the 
 commissioner for the staff, services, and space provided.  In 
 order to perform its duties, the board may request information 
 from the supervising officer of any state agency or state 
 institution of higher education.  When requesting health data as 
 defined in section 13.38 or sections 144.671 to 144.69, the 
 board must submit a written release signed by the subject of the 
 data or, if the subject is deceased, a representative of the 
 deceased, authorizing release of the data in whole or in part.  
 The supervising officer shall comply with the board's request to 
 the extent possible considering available agency or institution 
 appropriations and may assign agency or institution employees to 
 assist the board in performing its duties under sections 115B.25 
 to 115B.37. 

    HIST: 1Sp1985 c 8 s 7; 1987 c 209 s 1; 1989 c 325 s 42,78; 
 1991 c 199 art 2 s 1 

     115B.29 Eligible persons. 

    Subdivision 1.    Personal injury and certain property 
 claims.  A person may file a claim with the board pursuant to 
 this section for compensation for an eligible injury, or for 
 eligible property damage that could reasonably have resulted 
 from an exposure in Minnesota to a harmful substance released 
 from a facility. 

    Subd. 2. Repealed, 1989 c 325 s 77 

    HIST: 1Sp1985 c 8 s 8; 1989 c 325 s 43 

     115B.30 Eligible injury and damage. 

    Subdivision 1.    Eligible personal injury.  (a) A 
 personal injury which could reasonably have resulted from 
 exposure to a harmful substance released from a facility where 
 it was placed or came to be located is eligible for compensation 
 from the account if:  

    (1) it is a medically verified chronic or progressive 
 disease, illness, or disability such as cancer, organic nervous 
 system disorders, or physical deformities, including 
 malfunctions in reproduction, in humans or their offspring, or 
 death; or 

    (2) it is a medically verified acute disease or condition 
 that typically manifests itself rapidly after a single exposure 
 or limited exposures and the persons responsible for the release 
 of the harmful substance are unknown or cannot with reasonable 
 diligence be determined or located or a judgment would not be 
 satisfied in whole or in part against the persons determined to 
 be responsible for the release of the harmful substance.  

    (b) A personal injury is not compensable from the account 
 if: 

    (1) the injury is compensable under the workers' 
 compensation law, chapter 176; 

    (2) the injury arises out of the claimant's use of a 
 consumer product; 

    (3) the injury arises out of an exposure that occurred or 
 is occurring outside the geographical boundaries of the state; 

    (4) the injury results from the release of a harmful 
 substance for which the claimant is a responsible person; or 

    (5) the injury is an acute disease or condition other than 
 one described in paragraph (a). 

    Subd. 2.    Eligible property damage.  Damage to real 
 property in Minnesota owned by the claimant is eligible for 
 compensation from the account if the damage results from the 
 presence in or on the property of a harmful substance released 
 from a facility where it was placed or came to be located.  
 Damage to property is not eligible for compensation from the 
 account if it results from the release of a harmful substance 
 for which the claimant is a responsible person. 

    Subd. 3.    Time for filing claim.  (a) A claim is not 
 eligible for compensation from the account unless it is filed 
 with the board within the time provided in this subdivision. 

    (b) A claim for compensation for personal injury must be 
 filed within two years after the injury and its connection to 
 exposure to a harmful substance was or reasonably should have 
 been discovered. 

    (c) A claim for compensation for property damage must be 
 filed within two years after the full amount of compensable 
 losses can be determined. 

    (d) Notwithstanding the provisions of this subdivision, 
 claims for compensation that would otherwise be barred by any 
 statute of limitations provided in sections 115B.25 to 115B.37 
 may be filed not later than January 1, 1992. 

    HIST: 1Sp1985 c 8 s 9; 1989 c 325 s 44,78; 1989 c 335 art 4 s 
 106; 1991 c 199 art 1 s 22 

     115B.31 Other actions. 

    Subdivision 1.    Subsequent action or claim prohibited in 
 certain cases.  (a) A person who has settled a claim for an 
 eligible injury or eligible property damage with a responsible 
 person, either before or after bringing an action in court for 
 that injury or damage, may not file a claim with the account for 
 the same injury or damage.  A person who has received a 
 favorable judgment in a court action for an eligible injury or 
 eligible property damage may not file a claim with the account 
 for the same injury or damage, unless the judgment cannot be 
 satisfied in whole or in part against the persons responsible 
 for the release of the harmful substance.  A person who has 
 filed a claim with the board may not file another claim with the 
 board for the same eligible injury or damage, unless the claim 
 was inactivated by the board as provided in section 115B.32, 
 subdivision 1. 

    (b) A person who has filed a claim with the board for an 
 eligible injury or damage, and who has received and accepted an 
 award from the board, is precluded from bringing an action in 
 court for the same eligible injury or damage.  

    (c) A person who files a claim with the board for personal 
 injury or property damage must include all known claims eligible 
 for compensation in one proceeding before the board. 

    Subd. 2.    Use of protected information and board 
 findings.  The findings and decision of the board are 
 inadmissible in any court action.  Protected information may not 
 be used in any court action except to the extent that the 
 information is otherwise available to a party or discovered 
 under the applicable rules of civil or criminal procedure. 

    Subd. 3.    Subrogation by state.  The state is 
 subrogated to all the claimant's rights under statutory or 
 common law to recover losses compensated from the account from 
 other sources, including responsible persons as defined in 
 section 115B.03.  The state may bring a subrogation action in 
 its own name or in the name of the claimant.  The state may not 
 bring a subrogation action against a person who was a party in a 
 court action by the claimant for the same eligible injury or 
 damage, unless the claimant dismissed the action prior to 
 trial.  Money recovered by the state under this subdivision must 
 be deposited in the account.  Nothing in sections 115B.25 to 
 115B.37 shall be construed to create a standard of recovery in a 
 subrogation action.  

    Subd. 4.    Simultaneous claim and court action 
 prohibited.  A claimant may not commence a court action to 
 recover for any injury or damage for which the claimant seeks 
 compensation from the account during the time that a claim is 
 pending before the board.  A person may not file a claim with 
 the board for compensation for any injury or damage for which 
 the claimant seeks to recover in a pending court action.  The 
 time for filing a claim under section 115B.30 or the statute of 
 limitations for any civil action is suspended during the period 
 of time that a claimant is precluded from filing a claim or 
 commencing an action under this subdivision. 

    HIST: 1Sp1985 c 8 s 10; 1986 c 444; 1989 c 325 s 78; 1991 c 
 199 art 1 s 23 

     115B.32 Claim for compensation. 

    Subdivision 1.    Form.  A claim for compensation from 
 the account must be filed with the board in the form required by 
 the board.  When a claim does not include all the information 
 required by subdivision 2 and applicable board rules, the board 
 staff shall notify the claimant of the absence of the required 
 information within 14 days of the filing of the claim.  All 
 required information must be received by the board not later 
 than 60 days after the claimant received notice of its absence 
 or the claim will be inactivated and may not be resubmitted for 
 at least one year following the date of inactivation.  The board 
 may decide not to inactivate a claim under this subdivision if 
 it finds serious extenuating circumstances. 

    Subd. 2.    Required information.  A claimant must 
 provide the following information as part of the claim, provided 
 that nothing in Laws 1985, First Special Session chapter 8, 
 shall be construed to require the claimant to initiate a court 
 action before filing a claim: 

    (1) a sworn verification by the claimant of the facts set 
 forth in the claim to the best of the claimant's knowledge; 

    (2) evidence that the claimant is an eligible person; 

    (3) evidence of the claimant's exposure to a named harmful 
 substance; 

    (4) evidence that the claimant's exposure to the substance 
 in the amount and duration experienced by the claimant could 
 reasonably have been caused or significantly contributed to by 
 the release of a harmful substance from a facility where the 
 substance was placed or came to be located, to the extent the 
 information is available to the claimant; 

    (5) evidence that the exposure experienced by the claimant 
 can cause or can significantly contribute to the injury suffered 
 by the claimant; 

    (6) evidence of the injury eligible for compensation 
 suffered by the claimant and the compensable losses resulting 
 from the injury; 

    (7) evidence of any property damage eligible for 
 compensation and the amount of compensable losses resulting from 
 the damage; 

    (8) information regarding any collateral sources of 
 compensation; and 

    (9) other information required by the rules of the board. 

    Subd. 3.    Death claims.  In any case in which death is 
 claimed as a compensable injury, the claim may be brought on 
 behalf of the claimant by the claimant's estate for compensable 
 medical expenses and by the claimant's trustee for death 
 benefits for the claimant's dependents as defined in section 
 176.111.  

    HIST: 1Sp1985 c 8 s 11; 1989 c 325 s 78; 1991 c 199 art 1 s 24 

     115B.33 Determination of claim. 

    Subdivision 1.    Standard for personal injury.  The 
 board shall grant compensation to a claimant who shows that it 
 is more likely than not that: 

    (1) the claimant suffers a medically verified injury that 
 is eligible for compensation from the account and that has 
 resulted in a compensable loss; 

    (2) the claimant has been exposed to a harmful substance; 

    (3) the release of the harmful substance from a facility 
 where the substance was placed or came to be located could 
 reasonably have resulted in the claimant's exposure to the 
 substance in the amount and duration experienced by the 
 claimant; and 

    (4) the injury suffered by the claimant can be caused or 
 significantly contributed to by exposure to the harmful 
 substance in an amount and duration experienced by the claimant. 

    Subd. 2.    Standard for property damage.  The board 
 shall grant compensation to a claimant who shows that it is more 
 likely than not that: 

    (1) the claimant has suffered property damage that is 
 eligible for compensation and that has resulted in compensable 
 loss; and 

    (2) the presence of the harmful substance in or on the 
 property could reasonably have resulted from the release of the 
 harmful substance from a facility where the substance was placed 
 or came to be located. 

    HIST: 1Sp1985 c 8 s 12; 1989 c 325 s 78; 1991 c 199 art 1 s 25 

     115B.34 Compensable losses. 

    Subdivision 1.    Personal injury losses.  Losses 
 compensable by the account for personal injury are limited to: 

    (a) medical expenses directly related to the claimant's 
 injury; 

    (b) up to two-thirds of the claimant's lost wages not to 
 exceed $2,000 per month or $24,000 per year; 

    (c) up to two-thirds of a self-employed claimant's lost 
 income, not to exceed $2,000 per month or $24,000 per year; 

    (d) death benefits to dependents which the board shall 
 define by rule subject to the following conditions: 

    (1) the rule adopted by the board must establish a schedule 
 of benefits similar to that established by section 176.111 and 
 must not provide for the payment of benefits to dependents other 
 than those dependents defined in section 176.111; 

    (2) the total benefits paid to all dependents of a claimant 
 must not exceed $2,000 per month; 

    (3) benefits paid to a spouse and all dependents other than 
 children must not continue for a period longer than ten years; 

    (4) payment of benefits is subject to the limitations of 
 section 115B.36; and 

    (e) the value of household labor lost due to the claimant's 
 injury or disease, which must be determined in accordance with a 
 schedule established by the board by rule, not to exceed $2,000 
 per month or $24,000 per year. 

    Subd. 2.    Property damage losses.  (a) Losses 
 compensable by the account for property damage are limited to 
 the following losses caused by damage to the principal residence 
 of the claimant: 

    (1) the reasonable cost of replacing or decontaminating the 
 primary source of drinking water for the property not to exceed 
 the amount actually expended by the claimant or assessed by a 
 local taxing authority, if the department of health has 
 confirmed that the remedy provides safe drinking water and 
 advised that the water not be used for drinking or determined 
 that the replacement or decontamination of the source of 
 drinking water was necessary, up to a maximum of $25,000; 

    (2) losses incurred as a result of a bona fide sale of the 
 property at less than the appraised market value under 
 circumstances that constitute a hardship to the owner, limited 
 to 75 percent of the difference between the appraised market 
 value and the selling price, but not to exceed $25,000; and 

    (3) losses incurred as a result of the inability of an 
 owner in hardship circumstances to sell the property due to the 
 presence of harmful substances, limited to the increase in costs 
 associated with the need to maintain two residences, but not to 
 exceed $25,000.  

    (b) In computation of the loss under paragraph (a), clause 
 (3), the board shall offset the loss by the amount of any income 
 received by the claimant from the rental of the property.  

    (c) For purposes of paragraph (a), the following 
 definitions apply: 

    (1) "appraised market value" means an appraisal of the 
 market value of the property disregarding any decrease in value 
 caused by the presence of a harmful substance in or on the 
 property; and 

    (2) "hardship" means an urgent need to sell the property 
 based on a special circumstance of the owner including 
 catastrophic medical expenses, inability of the owner to 
 physically maintain the property due to a physical or mental 
 condition, and change of employment of the owner or other member 
 of the owner's household requiring the owner to move to a 
 different location. 

    (d) Appraisals are subject to board approval.  The board 
 may adopt rules governing approval of appraisals, criteria for 
 establishing a hardship, and other matters necessary to 
 administer this subdivision. 

    HIST: 1Sp1985 c 8 s 13; 1989 c 325 s 45; 1991 c 199 art 1 s 26 

     115B.35 Determination of claims. 

    Subdivision 1.    Assignment of claims.  The chair of 
 the board shall assign each claim that has been accepted for 
 filing to one member of the board, except that no claims shall 
 be assigned to either of the two members appointed to the board 
 as members of the general public. 

    Subd. 2.    Treatment of protected information.  In 
 making a preliminary or final decision under this section, the 
 board shall examine protected information outside of the 
 presence of the claimant, the claimant's attorney, or any other 
 person except staff to the board.  The board, the board's staff, 
 and any other person who obtains access to protected information 
 under this section may not reveal protected information to any 
 person except as provided in this section. 

    Subd. 3.    Evidence admissible in claim proceedings.  
 In the determination of a claim, the board may admit and give 
 probative effect to evidence that possesses probative value 
 commonly accepted by reasonable and prudent persons in the 
 conduct of their affairs.  The board shall give effect to the 
 rules of privilege recognized by law.  The board may exclude 
 incompetent, irrelevant, immaterial, and repetitious evidence. 

    Subd. 4.    Preliminary decision.  The board member to 
 whom the claim is assigned shall review all materials filed in 
 support of the claim and may cause an investigation to be 
 conducted into the validity of the claim.  The board member may 
 make a preliminary decision on the basis of the papers filed in 
 support of the claim and the report of any investigation of it. 
 The decision must be in writing and include the reasons for the 
 decision, subject to the limitations on disclosure of protected 
 information. 

    Subd. 5.    Circulation of preliminary decision.  Copies 
 of the preliminary decision made under subdivision 4 must be 
 circulated to the other board members as soon as practicable.  
 On receipt of the preliminary decision, the members have 20 days 
 to challenge it by written notice to the members who made the 
 decision.  If no other member challenges the preliminary 
 decision, a copy must be sent to the claimant who may challenge 
 the decision by written notice to the board within 30 days of 
 receipt of the decision.  If the board member relies on 
 protected information to deny a claim, the preliminary decision 
 must include a statement to this effect.  If no notice is 
 received within the required time, the preliminary decision 
 becomes a final decision of the board.  

    Subd. 6.    Challenges.  If a board member or a claimant 
 challenges a preliminary decision made pursuant to subdivision 
 4, the full board shall order the claimant to appear before the 
 board.  The appearance is not a contested case hearing under 
 chapter 14.  The claimant may produce further evidence to 
 support the claim, including books, studies, reports, and any 
 other written material and oral testimony of witnesses, 
 including experts.  The board members may ask questions of the 
 claimant and any witnesses presented by the claimant.  After the 
 appearance, the board shall make a final decision on the claim 
 as soon as practicable.  The decision must be in writing and 
 include the reasons for the decision, subject to the limits on 
 disclosure of protected information.  A copy of each final 
 decision must be sent to the claimant, including, for a claim 
 that is granted, an explanation of the form in which the claim 
 will be paid.  If the final decision of the board relies on 
 protected information to deny a claim, the decision shall 
 include a statement to this effect.  At the claimant's request, 
 the board shall disclose to the claimant that portion of the 
 protected information relied on by the board and shall provide 
 the claimant with an opportunity to provide additional 
 information relevant to the element of the standard that has not 
 been demonstrated.  The board shall make a final decision based 
 on all available information.  

    Subd. 7.    Record.  Any appearance by a claimant or 
 witnesses must be tape recorded but a formal record pursuant to 
 chapter 14 is not required. 

    Subd. 8.    Appeal.  A final decision of the board made 
 under this section is conclusive on all matters decided.  There 
 is no right to judicial review of a final decision of the board. 

    Subd. 9.    Remedies and penalties.  A board member, 
 board staff person, or other person who reveals protected 
 information in violation of this section is subject to the civil 
 remedies contained in section 13.08 and the penalties in section 
 13.09. 

    HIST: 1Sp1985 c 8 s 14; 1986 c 444 

     115B.36 Amount and form of payment. 

    If the board decides to grant compensation, it shall 
 determine the net uncompensated loss payable to the claimant by 
 computing the total amount of compensable losses payable to the 
 claimant and subtracting the total amount of any compensation 
 received by the claimant for the same injury or damage from 
 other sources including, but not limited to, all forms of 
 insurance and social security and any emergency award made by 
 the board.  The board shall pay compensation in the amount of 
 the net uncompensated loss, provided that no claimant may 
 receive more than $250,000.  In the case of a death, the total 
 amount paid to all persons on behalf of the claimant may not 
 exceed $250,000. 

    Compensation from the account may be awarded in a lump sum 
 or in installments at the discretion of the board. 

    HIST: 1Sp1985 c 8 s 15; 1991 c 199 art 1 s 27 

     115B.37 Attorney fees. 

    The board may by rule limit the fee charged by any attorney 
 for representing a claimant before the board. 

    HIST: 1Sp1985 c 8 s 16 

     115B.39 Landfill cleanup program; establishment. 

    Subdivision 1.    Establishment.  The landfill cleanup 
 program is established to provide environmental response at 
 qualified facilities and is to be administered by the 
 commissioner. 

    Subd. 2.    Definitions.  (a) In addition to the 
 definitions in this subdivision, the definitions in sections 
 115A.03 and 115B.02 apply to sections 115B.39 to 115B.445, 
 except as specifically modified in this subdivision. 

    (b) "Cleanup order" means a consent order between 
 responsible persons and the agency or an order issued by the 
 United States Environmental Protection Agency under section 106 
 of the federal Superfund Act. 

    (c) "Closure" means actions to prevent or minimize the 
 threat to public health and the environment posed by a mixed 
 municipal solid waste disposal facility that has stopped 
 accepting waste by controlling the sources of releases or 
 threatened releases at the facility.  "Closure" includes 
 removing contaminated equipment and liners; applying final 
 cover; grading and seeding final cover; installing wells, 
 borings, and other monitoring devices; constructing groundwater 
 and surface water diversion structures; and installing gas 
 control systems and site security systems, as necessary.  The 
 commissioner may authorize use of final cover that includes 
 processed materials that meet the requirements in Code of 
 Federal Regulations, title 40, section 503.32, paragraph (a). 

    (d) "Contingency action" means organized, planned, or 
 coordinated courses of action to be followed in case of fire, 
 explosion, or release of solid waste, waste by-products, or 
 leachate that could threaten human health or the environment. 

    (e) "Corrective action" means steps taken to repair 
 facility structures including liners, monitoring wells, 
 separation equipment, covers, and aeration devices and to bring 
 the facility into compliance with design, construction, 
 groundwater, surface water, and air emission standards. 

    (f) "Decomposition gases" means gases produced by chemical 
 or microbial activity during the decomposition of solid waste. 

    (g) "Environmental response action" means response action 
 at a qualified facility, including corrective action, closure, 
 postclosure care; contingency action; environmental studies, 
 including remedial investigations and feasibility studies; 
 engineering, including remedial design; removal; remedial 
 action; site construction; and other similar cleanup-related 
 activities.  

    (h) "Environmental response costs" means: 

    (1) costs of environmental response action, not including 
 legal or administrative expenses; and 

    (2) costs required to be paid to the federal government 
 under section 107(a) of the federal Superfund Act, as amended. 

    (i) "Postclosure" or "postclosure care" means actions taken 
 for the care, maintenance, and monitoring of closure actions at 
 a mixed municipal solid waste disposal facility. 

    (j) "Qualified facility" means a mixed municipal solid 
 waste disposal facility, including adjacent property used for 
 solid waste disposal, that: 

    (1) is or was permitted by the agency; 

    (2) stopped accepting solid waste, except demolition 
 debris, for disposal by April 9, 1994; and 

    (3) stopped accepting demolition debris for disposal by 
 June 1, 1994, except that demolition debris may be accepted 
 until May 1, 1995, at a permitted area where disposal of 
 demolition debris is allowed, if the area where the demolition 
 debris is deposited is at least 50 feet from the fill boundary 
 of the area where mixed municipal solid waste was deposited. 

    HIST: 1994 c 639 art 1 s 2; 1997 c 7 art 1 s 33 

     115B.40 Program. 

    Subdivision 1.    Response to releases.  The 
 commissioner may take any environmental response action, 
 including emergency action, related to a release or threatened 
 release of a hazardous substance, pollutant or contaminant, or 
 decomposition gas from a qualified facility that the 
 commissioner deems reasonable and necessary to protect the 
 public health or welfare or the environment under the standards 
 required in sections 115B.01 to 115B.24.  The commissioner may 
 undertake studies necessary to determine reasonable and 
 necessary environmental response actions at individual 
 facilities.  The commissioner may develop general work plans for 
 environmental studies, presumptive remedies, and generic 
 remedial designs for facilities with similar characteristics.  
 Prior to selecting environmental response actions for a 
 facility, the commissioner shall hold at least one public 
 informational meeting near the facility and provide for 
 receiving and responding to comments related to the selection.  
 The commissioner shall design, implement, and provide oversight 
 consistent with the actions selected under this subdivision. 

    Subd. 2.    Priority list.  (a) The commissioner shall 
 establish a priority list for preventing or responding to 
 releases of hazardous substances, pollutants and contaminants, 
 or decomposition gases at qualified facilities.  The 
 commissioner shall periodically revise the list to reflect 
 changing conditions at facilities that affect priority for 
 response actions.  The initial priority list must be established 
 by January 1, 1995. 

    (b) The priority list required under this subdivision must 
 be based on 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 facility, the potential for 
 contamination of drinking water supplies, the potential for 
 direct human contact, and the potential for destruction of 
 sensitive ecosystems. 

    Subd. 3.    Notification.  By September 1, 1994, the 
 commissioner shall notify the owner or operator of, and persons 
 subject to a cleanup order at, each qualified facility of 
 whether the requirements of subdivision 4 or 5 have been met.  
 If the requirements have not been met at a facility, the 
 commissioner, by the earliest practicable date, shall notify the 
 owner or operator and persons subject to a cleanup order of what 
 actions need to be taken.  

    Subd. 4.    Qualified facility not under cleanup order; 
 duties.  (a) The owner or operator of a qualified facility 
 that is not subject to a cleanup order shall: 

    (1) complete closure activities at the facility, or enter 
 into a binding agreement with the commissioner to do so, as 
 provided in paragraph (d), within one year from the date the 
 owner or operator is notified by the commissioner under 
 subdivision 3 of the closure activities that are necessary to 
 properly close the facility in compliance with facility's 
 permit, closure orders, or enforcement agreement with the 
 agency, and with the solid waste rules in effect at the time the 
 facility stopped accepting waste; 

    (2) undertake or continue postclosure care at the facility 
 until the date of notice of compliance under subdivision 7; 

    (3) transfer to the commissioner of revenue for deposit in 
 the solid waste fund established in section 115B.42 any funds 
 required for proof of financial responsibility under section 
 116.07, subdivision 4h, that remain after facility closure and 
 any postclosure care and response action undertaken by the owner 
 or operator at the facility including, if proof of financial 
 responsibility is provided through a letter of credit or other 
 financial instrument or mechanism that does not accumulate money 
 in an account, the amount that would have accumulated had the 
 owner or operator utilized a trust fund, less any amount used 
 for closure, postclosure care, and response action at the 
 facility; 

    (4) provide the commissioner with a copy of all applicable 
 comprehensive general liability insurance policies and other 
 liability policies relating to property damage, certificates, or 
 other evidence of insurance coverage held during the life of the 
 facility; and 

    (5) enter into a binding agreement with the commissioner to:

    (i) take any actions necessary to preserve the owner or 
 operator's rights to payment or defense under insurance policies 
 included in clause (4); cooperate with the commissioner in 
 asserting claims under the policies; and, within 60 days of a 
 request by the commissioner, but no earlier than July 1, 1996, 
 assign only those rights under the policies related to 
 environmental response costs; 

    (ii) cooperate with the commissioner or other persons 
 acting at the direction of the commissioner in taking additional 
 environmental response actions necessary to address releases or 
 threatened releases and to avoid any action that interferes with 
 environmental response actions, including allowing entry to the 
 property and to the facility's records and allowing entry and 
 installation of equipment; and 

    (iii) refrain from developing or altering the use of 
 property described in any permit for the facility except after 
 consultation with the commissioner and in conformance with any 
 conditions established by the commissioner for that property, 
 including use restrictions, to protect public health and welfare 
 and the environment. 

    (b) The owner or operator of a qualified facility that is a 
 political subdivision may use a portion of any funds established 
 for response at the facility, which are available directly or 
 through a financial instrument or other financial arrangement, 
 for closure or postclosure care at the facility if funds 
 available for closure or postclosure care are inadequate and 
 shall assign the rights to any remainder to the commissioner. 

    (c) The agreement required in paragraph (a), clause (5), 
 must be in writing and must apply to and be binding upon the 
 successors and assigns of the owner.  The owner shall record the 
 agreement, or a memorandum approved by the commissioner that 
 summarizes the agreement, with the county recorder or registrar 
 of titles of the county where the property is located. 

    (d) A binding agreement entered into under paragraph (a), 
 clause (1), may include a provision that the owner or operator 
 will reimburse the commissioner for the costs of closing the 
 facility to the standard required in that clause. 

    Subd. 5.    Qualified facility under cleanup order; 
 duties.  (a) For a qualified facility that is subject to a 
 cleanup order, persons identified in the order shall complete 
 construction of the remedy required under the cleanup order and: 

    (1) for a federal order, receive a concurrent determination 
 of the United States Environmental Protection Agency and the 
 agency or commissioner that the remedy is functioning properly 
 and is performing as designed; or 

    (2) for a state order, receive acknowledgment from the 
 agency or commissioner that the obligations under the order for 
 construction of the remedy have been met. 

    (b) The owner or operator of a qualified facility that is 
 subject to a cleanup order, in addition to any applicable 
 requirement in paragraph (a), shall comply with subdivision 4, 
 paragraph (a), clauses (3) to (5). 

    Subd. 6.    Commissioner; duties.  (a) If the owner or 
 operator of a qualified facility fails to comply with 
 subdivision 4, paragraph (a), clause (1) or (2), the 
 commissioner shall: 

    (1) undertake or complete closure activities at the 
 facility in compliance with the solid waste rules in effect at 
 the time the commissioner takes action under this clause; and 

    (2) undertake or continue postclosure care at the facility 
 as required under subdivision 2. 

    (b) If a facility has been properly closed under 
 subdivision 4, but the applicable closure requirements are less 
 environmentally protective than closure requirements in the 
 solid waste rules in effect on January 1, 1993, the commissioner 
 shall determine whether the facility should be closed to the 
 higher standards and, if so, shall undertake additional closure 
 activities at the facility to meet those standards.  The 
 commissioner may determine that additional closure activities 
 are unnecessary only if it is likely that response actions will 
 be taken in the near future and that those response actions will 
 result in removal or significant alteration of the closure 
 activities or render the closure activities unnecessary.  

    Subd. 7.    Notice of compliance; effects.  (a) The 
 commissioner shall provide written notice of compliance to the 
 appropriate owner or operator or person subject to a cleanup 
 order when: 

    (1) the commissioner determines that the requirements of 
 subdivision 4 or 5 have been met; and 

    (2) the person who will receive the notice has submitted to 
 the commissioner a written waiver of any claims the person may 
 have against any other person for recovery of any environmental 
 response costs related to a qualified facility that were 
 incurred prior to the date of notice of compliance. 

    (b) Beginning on the date of the notice of compliance: 

    (1) the commissioner shall assume all obligations of the 
 owner or operator or person for environmental response actions 
 under the federal Superfund Act and any federal or state cleanup 
 orders and shall undertake all further action under subdivision 
 1 at or related to the facility that the commissioner deems 
 appropriate and in accordance with the priority list; and 

    (2) the commissioner may not seek recovery against the 
 owner or operator of the facility or any responsible person of 
 any costs incurred by the commissioner for environmental 
 response action at or related to the facility, except: 

    (i) to the extent of insurance coverage held by the owner 
 or operator or responsible person; or 

    (ii) as provided in section 115B.402. 

    (c) The commissioner and the attorney general shall 
 communicate with the United States Environmental Protection 
 Agency addressing the manner and procedure for the state's 
 assumption of federal obligations under paragraph (b), clause 
 (1). 

    Subd. 8.    Statutes of limitations.  (a) With respect 
 to claims for recovery of environmental response costs related 
 to qualified facilities, the running of all applicable periods 
 of limitation under state law is suspended until July 1, 2004. 

    (b) A waiver of claims for recovery of environmental 
 response costs under this section or section 115B.43 is 
 extinguished for that portion of reimbursable costs under 
 section 115B.43 that have not been reimbursed by July 1, 2004. 

    HIST: 1994 c 639 art 1 s 3; 1995 c 220 s 130 

     115B.402 Illegal actions at qualified facilities. 

    The commissioner may recover under section 115B.17, 
 subdivision 6, that portion of the costs of response actions at 
 any qualified facility attributable to a person who otherwise 
 would be responsible for the release or threatened release under 
 section 115B.03, and whose actions related to the release or 
 threatened release were in violation of federal or state 
 hazardous waste management laws in effect at the time of those 
 actions.  The commissioner's determination of the portion of the 
 costs of a response action attributable to a person under this 
 section, based on the volume and toxicity of waste in the 
 facility associated with the person and other factors reasonably 
 related to the contribution of the person to a release or 
 threatened release, is prima facie evidence that those costs are 
 attributable to the person. 

    HIST: 1994 c 639 art 1 s 4 

     115B.405 Excluded facilities. 

    Subdivision 1.    Application.  The owner or operator of 
 a qualified facility may apply to the commissioner for exclusion 
 from the landfill cleanup program under sections 115B.39, 
 115B.40, 115B.41, 115B.412, and 115B.43.  Applications must be 
 received by the commissioner by February 1, 1995.  The owner or 
 operator of a qualified facility that is subject to a federal 
 cleanup order or that includes any portion that is tax-forfeited 
 may not apply for exclusion under this section.  In addition to 
 other information required by the commissioner, an application 
 must include a disclosure of all financial assurance accounts 
 established for the facility.  Applications for exclusion must: 

    (1) show that the operator or owner is complying with the 
 agency's rules adopted under section 116.07, subdivision 4h, and 
 is complying with a financial assurance plan for the facility 
 that the commissioner has approved after determining that the 
 plan is adequate to provide for closure, postclosure care, and 
 contingency action; 

    (2) demonstrate that the facility is closed or is in 
 compliance with a closure schedule approved by the commissioner; 
 and 

    (3) include a waiver of all claims for recovery of costs 
 incurred under sections 115B.01 to 115B.24 and the federal 
 Superfund Act at or related to a qualified facility. 

    Subd. 2.    Evaluation of exclusion status.  Within 90 
 days after the commissioner has received a complete application 
 for exclusion, the commissioner shall notify the owner or 
 operator if the facility is excluded.  If the commissioner finds 
 that the facility does not satisfy the requirements for 
 exclusion, the commissioner shall notify the owner or operator 
 of that fact. 

    Subd. 3.    Restriction on use of property at excluded 
 facilities.  (a) A person may not use any property described 
 in the most recent agency permit issued for an excluded facility 
 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 facility's monitoring systems, unless the 
 agency finds that the disturbance: 

    (1) is necessary to the proposed use of the property and 
 will not increase the potential hazard to human health or the 
 environment; or 

    (2) is necessary to reduce a threat to human health or the 
 environment. 

    (b) Before any transfer of ownership of property described 
 in paragraph (a), the owner must obtain approval from the 
 commissioner.  The commissioner shall approve a transfer if the 
 owner can demonstrate to the satisfaction of the commissioner 
 that persons and property will not be exposed to undue risk from 
 releases of hazardous substances or pollutants or contaminants. 

    (c) After obtaining approval from the commissioner, 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: 

    (1) that the land has been used as a mixed municipal solid 
 waste disposal facility; 

    (2) the identity, quantity, location, condition, and 
 circumstances of the disposal and any release of hazardous 
 substances or pollutants or contaminants from the facility to 
 the full extent known or reasonably ascertainable; and 

    (3) that the use of the property or some portion of it may 
 be restricted as provided in paragraph (a). 

    (d) An owner must also file an affidavit within 60 days 
 after any material change in any matter required to be disclosed 
 under paragraph (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 waste from the 
 facility together with any residues, liner, and contaminated 
 underlying and surrounding soil, that owner may record an 
 affidavit indicating the removal.  Failure to record an 
 affidavit as provided in this paragraph does not affect or 
 prevent any transfer of ownership of the property. 

    (e) The county recorder shall record all affidavits 
 presented in accordance with paragraphs (c) and (d).  The 
 affidavits must be recorded in a manner that will ensure their 
 disclosure in the ordinary course of a title search of the 
 subject property. 

    (f) This subdivision is enforceable under sections 115.071 
 and 116.072. 

    Subd. 4.    Closure.  If the commissioner determines 
 that the owner or operator of an excluded facility did not 
 complete the terms of an approved closure plan by the date in 
 the plan, the commissioner shall complete closure at the 
 facility and may seek cost recovery against the owner or 
 operator under section 115B.17, subdivision 6. 

    HIST: 1994 c 639 art 1 s 5 

     115B.41 Allocation of costs; failure to comply. 

    Subdivision 1.    Allocation and recovery of costs.  (a) 
 A person who is subject to the requirements in section 115B.40, 
 subdivision 4 or 5, paragraph (b), is responsible for all 
 environmental response costs incurred by the commissioner at or 
 related to the facility until the date of notice of compliance 
 under section 115B.40, subdivision 7.  The commissioner may use 
 any funds available for closure, postclosure care, and response 
 action established by the owner or operator.  If those funds are 
 insufficient or if the owner or operator fails to assign rights 
 to them to the commissioner, the commissioner may seek recovery 
 of environmental response costs against the owner or operator in 
 the county of Ramsey or in the county where the facility is 
 located or where the owner or operator resides.  

    (b) In an action brought under this subdivision in which 
 the commissioner prevails, the court shall award the 
 commissioner reasonable attorney fees and other litigation 
 expenses incurred by the commissioner to bring the action.  All 
 costs, fees, and expenses recovered under this subdivision must 
 be deposited in the solid waste fund established in section 
 115B.42. 

    Subd. 2.    Environmental response costs; liens.  All 
 environmental response costs, including administrative and legal 
 expenses, incurred by the commissioner at a qualified facility 
 before the date of notice of compliance under section 115B.40, 
 subdivision 7, constitute a lien in favor of the state upon any 
 real property located in the state, other than homestead 
 property, owned by the owner or operator who is subject to the 
 requirements of section 115B.40, subdivision 4 or 5.  A lien 
 under this subdivision attaches when the environmental response 
 costs are first incurred and continues until the lien is 
 satisfied or becomes unenforceable as for an environmental lien 
 under section 514.672.  Notice, filing, and release of the lien 
 are governed by sections 514.671 to 514.676, except where those 
 requirements specifically are related to only cleanup action 
 expenses as defined in section 514.671.  Relative priority of a 
 lien under this subdivision is governed by section 514.672, 
 except that a lien attached to property that was included in any 
 permit for the solid waste disposal facility takes precedence 
 over all other liens regardless of when the other liens were or 
 are perfected.  Amounts received to satisfy all or a part of a 
 lien must be deposited in the solid waste fund. 

    Subd. 3.    Local government aid; offset.  If an owner 
 or operator fails to comply with section 115B.40, subdivision 4, 
 or 5, paragraph (b), fails to remit payment of environmental 
 response costs incurred by the commissioner before the date of 
 notice of compliance under section 115B.40, subdivision 7, and 
 is a local government unit, the commissioner may seek payment of 
 the costs from any state aid payments, except payments made 
 under section 115A.557, subdivision 1, otherwise due the local 
 government unit.  The commissioner of revenue, after being 
 notified by the commissioner that the local government unit has 
 failed to pay the costs and the amount due, shall pay an annual 
 proportionate amount of the state aid payment otherwise payable 
 to the local government unit into the solid waste fund that 
 will, over a period of no more than five years, satisfy the 
 liability of the local government unit for the costs. 

    Subd. 4.    Disqualification; permits.  If an owner or 
 operator of a qualified facility that is not a local government 
 unit does not undertake closure or postclosure care in 
 compliance with section 115B.40, subdivision 4, the owner or 
 operator is ineligible to obtain or renew a state or local 
 permit or license to engage in a business that manages solid 
 waste.  Failure of an owner or operator that is not a local 
 government unit to complete closure or postclosure care at a 
 qualified facility is prima facie evidence of the lack of 
 fitness of that owner or operator to conduct any solid waste 
 business and is grounds for revocation of any solid waste 
 business permit or license held by that owner or operator. 

    For the purposes of this subdivision and subdivision 2, 
 "owner or operator" means a person, partnership, firm, limited 
 liability company, cooperative, association, corporation, or 
 other entity and includes any entity in which the owner or 
 operator owns a controlling interest. 

    Subd. 5.    Expedited closure.  To expedite compliance 
 with section 115B.40, subdivision 4, a person other than an 
 owner or operator may undertake closure or postclosure care in 
 compliance with that subdivision under an agreement with the 
 commissioner. 

    HIST: 1994 c 639 art 1 s 6; 1995 c 220 s 101,130 

     115B.412 Program operation. 

    Subdivision 1.    Duty to provide information.  Any 
 person who the commissioner has reason to believe has or may 
 obtain information related to the generation, composition, 
 transportation, treatment, or disposal of waste in a qualified 
 facility or who has or may obtain information related to the 
 ownership or operation of a facility shall furnish to the 
 commissioner or the commissioner's designee any information that 
 person may have or may reasonably obtain that is relevant to a 
 release or threatened release at a qualified facility. 

    Subd. 2.    Access to information and property.  The 
 commissioner or a person designated by the commissioner, on 
 presentation of credentials, may: 

    (1) 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 1; and 

    (2) enter upon any property, public or private, for the 
 purpose of taking any action authorized by sections 115B.39 to 
 115B.43 including obtaining information from any person who has 
 a duty to provide the information under subdivision 1, 
 conducting surveys or investigations, and taking response action.

    This subdivision and subdivision 1 are enforceable under 
 sections 115.071 and 116.072.  If the commissioner prevails in 
 an enforcement action under this subdivision, the commissioner 
 may recover all costs, including court costs, attorney fees, and 
 administrative costs, related to the enforcement action.  

    Subd. 3.    Acquisition and disposition of real property. 
  The commissioner may acquire and dispose of real property the 
 commissioner deems reasonably necessary for environmental 
 response actions at or related to a qualified facility under 
 section 115B.17, subdivisions 15 and 16. 

    Subd. 4.    Affected real property; notice.  (a) The 
 commissioner shall provide to affected local government units, 
 to be available as public information, and shall make available 
 to others, on request, a description of the real property 
 described in the original and any revised permits for a 
 qualified facility, along with a description of activities that 
 will be or have been taken on the property under sections 
 115B.39 to 115B.43 and a reasonably accurate description of the 
 types, locations, and potential movement of hazardous 
 substances, pollutants and contaminants, or decomposition gases 
 related to the facility.  The commissioner shall provide and 
 make this information available at the time the facility is 
 placed on the priority list under section 115B.40, subdivision 
 2; shall revise, provide, and make the information available 
 when response actions, other than long-term maintenance actions, 
 have been completed; and shall revise the information over time 
 if significant changes occur that make the information obsolete 
 or misleading. 

    (b) A local government unit that receives information from 
 the commissioner under paragraph (a) shall incorporate that 
 information in any land use plan that includes the affected 
 property and shall notify any person who applies for a permit 
 related to development of the affected property of the existence 
 of the information and, on request, provide a copy of the 
 information. 

    Subd. 5.    Environmental lien.  An environmental lien 
 for environmental response costs incurred, including 
 reimbursements made under section 115B.43, by the commissioner 
 under sections 115B.39 to 115B.445 attaches in the same manner 
 as a lien under sections 514.671 to 514.676 to all the real 
 property described in the original and any revised permits for a 
 qualified facility and any adjacent property owned by the 
 facility owner or operator from the date the first assessment, 
 closure, postclosure care, or response activities related to the 
 facility are undertaken by the commissioner.  For the purposes 
 of filing an environmental lien under this subdivision, the term 
 "cleanup action" as used in sections 514.671 to 514.676 includes 
 all of the costs incurred by the commissioner to assess, close, 
 maintain, monitor, and respond to releases at qualified 
 facilities under sections 115B.39 to 115B.445.  Notwithstanding 
 section 514.672, subdivision 4, a lien under this paragraph 
 takes precedence over all other liens on the property regardless 
 of when the other liens were or are perfected.  For the purpose 
 of this subdivision, "owner or operator" has the meaning given 
 it in section 115B.41, subdivision 4. 

    Subd. 6.    Contracts.  The commissioner shall, to the 
 extent practicable, ensure that contracts for activities or 
 consulting services under this section are entered into with 
 contractors or consultants located within the region where the 
 facility subject to the contracts is located.  The commissioner 
 shall tailor specifications in requests for proposals to the 
 types of activities or services that need to be undertaken at a 
 specific facility or group of facilities located in the same 
 region and shall not include specifications that require 
 specialized expertise or laboratory work not available within 
 the region unless it is necessary to do so to meet the 
 requirements of this section. 

    Subd. 7.    Separate accounting.  The commissioner shall 
 maintain separate accounting for each qualified facility 
 regarding: 

    (1) the amount of financial assurance funds transferred 
 under section 115B.40, subdivisions 4 and 5; and 

    (2) costs of response actions taken at the facility. 

    Subd. 8.    Transfer of title.  The owner of a qualified 
 facility may, as part of the owner's activities under section 
 115B.40, subdivision 4 or 5, offer to transfer title to all the 
 property described in the facility's most recent permit, 
 including any property adjacent to that property the owner 
 wishes to transfer, to the commissioner.  The commissioner may 
 accept the transfer of title if the commissioner determines that 
 to do so is in the best interest of the state. 

    Subd. 9.    Land management plans.  The commissioner 
 shall develop a land use plan for each qualified facility.  All 
 local land use plans must be consistent with a land use plan 
 developed under this subdivision.  Plans developed under this 
 subdivision must include provisions to prevent any use that 
 disturbs the integrity of the final cover, liners, any other 
 components of any containment system, or the function of any 
 monitoring systems unless the commissioner finds that the 
 disturbance: 

    (1) is necessary to the proposed use of the property, and 
 will not increase the potential hazard to human health or the 
 environment; or 

    (2) is necessary to reduce a threat to human health or the 
 environment. 

    Before completing any plan under this subdivision, the 
 commissioner shall consult with the commissioner of finance 
 regarding any restrictions that the commissioner of finance 
 deems necessary on the disposition of property resulting from 
 the use of bond proceeds to pay for response actions on the 
 property, and shall incorporate the restrictions in the plan. 

    Subd. 10.    Report.  By December 1 of each year, the 
 commissioner shall report to the environment and natural 
 resources committees and to the appropriate finance committees 
 of the senate and the house of representatives on the 
 commissioner's activities under sections 115B.39 to 115B.43 and 
 the commissioner's anticipated activities during future fiscal 
 years. 

    Subd. 11.    Rules.  The commissioner may adopt rules 
 necessary to implement sections 115B.39 to 115B.43. 

    HIST: 1994 c 639 art 1 s 7; 1996 c 470 s 27; 1997 c 7 art 1 s 
 34; 1997 c 216 s 109 

     115B.414 Third-party claims; mediation; defense. 

    Subdivision 1.    Third-party claims; definition.  For 
 the purposes of this section, "third-party claims" means claims 
 made against mixed municipal solid waste generators by a 
 responsible person or group of responsible persons under state 
 or federal law for payment of response costs and related costs 
 at a qualified facility, when the claimant or claimants do not 
 produce evidence, other than statistical or circumstantial 
 evidence, that the persons against whom the claims are made ever 
 arranged for disposal or transported for disposal mixed 
 municipal solid waste containing a hazardous substance or 
 pollutant or contaminant to the facility. 

    Subd. 2.    Mediation.  A third-party claim or group of 
 third-party claims that all arise from the same facility may be 
 submitted to the Minnesota office of dispute resolution for 
 mediation under the Minnesota civil mediation act, sections 
 572.31 to 572.40.  The costs of mediation must be allocated 
 equally between the person or persons against whom the claims 
 are made and the person or persons making the claims. 

    Subd. 3.    Partial reimbursement.  A person or persons 
 against whom one or more third-party claims are made may seek 
 reimbursement from the commissioner of one-half of the costs of 
 mediation allocated to the person or persons under subdivision 
 2.  The commissioner shall reimburse the person or persons that 
 request reimbursement unless the commissioner finds that the 
 mediation was not entered into and conducted in good faith by 
 the person or persons seeking reimbursement. 

    Subd. 4.    Defense costs.  If a person or persons 
 against whom one or more third-party claims are made request the 
 person or persons making the claims to submit the claims to 
 mediation and the claimants refuse to submit to mediation or if 
 the person or persons against whom third-party claims are made 
 enter into and conduct the mediation in good faith but the 
 mediation fails to resolve the claims, the person or persons, in 
 cooperation with other persons against whom third-party claims 
 have been made that arise from the same facility, may retain 
 legal counsel to defend them against the claims and may seek 
 partial reimbursement from the commissioner for reasonable 
 attorney fees.  The commissioner shall provide partial 
 reimbursement for reasonable attorney fees under this 
 subdivision of $75 per hour for a maximum number of hours to be 
 established by the commissioner by rule.  The maximum number of 
 hours for reimbursement must increase as the number of persons 
 who collectively retain legal counsel to defend against related 
 claims increases but need not increase proportionately to the 
 increase in the number of persons seeking collective defense.  
 Under no circumstances may a person or group of persons receive 
 reimbursement of more than 75 percent of their reasonable 
 attorney fees under this subdivision. 

    HIST: 1994 c 639 art 1 s 8 

     115B.42 Solid waste fund. 

    Subdivision 1.    Establishment; appropriation; separate 
 accounting.  (a) The solid waste fund is established in the 
 state treasury.  The fund consists of money credited to the fund 
 and interest earned on the money in the fund.  Except as 
 provided in subdivision 2, clause (7), money in the fund is 
 annually appropriated to the commissioner for the purposes 
 listed in subdivision 2. 

    (b) The commissioner of finance shall separately account 
 for revenue deposited in the fund from financial assurance funds 
 or other mechanisms, the metropolitan landfill contingency 
 action trust fund, and all other sources of revenue. 

    Subd. 2.    Expenditures.  (a) Money in the fund may be 
 spent by the commissioner to: 

    (1) inspect permitted mixed municipal solid waste disposal 
 facilities to: 

    (i) evaluate the adequacy of final cover, slopes, 
 vegetation, and erosion control; 

    (ii) determine the presence and concentration of hazardous 
 substances, pollutants or contaminants, and decomposition gases; 
 and 

    (iii) determine the boundaries of fill areas; 

    (2) monitor and take, or reimburse others for, 
 environmental response actions, including emergency response 
 actions, at qualified facilities; 

    (3) acquire and dispose of property under section 115B.412, 
 subdivision 3; 

    (4) recover costs under section 115B.39; 

    (5) administer, including providing staff and 
 administrative support for, sections 115B.39 to 115B.445; 

    (6) enforce sections 115B.39 to 115B.445; 

    (7) subject to appropriation, administer the agency's 
 groundwater and solid waste management programs; 

    (8) reimburse persons under section 115B.43; and 

    (9) reimburse mediation expenses up to a total of $250,000 
 annually or defense costs up to a total of $250,000 annually for 
 third-party claims for response costs under state or federal law 
 as provided in section 115B.414. 

    HIST: 1992 c 513 art 2 s 26; 1993 c 172 s 71; 1994 c 639 art 3 
 s 1,2; 1995 c 185 s 3; 1995 c 220 s 102; 1997 c 7 art 1 s 35 

     115B.43 Reimbursable parties and expenses. 

    Subdivision 1.    Generally.  Environmental response 
 costs at qualified facilities for which a notice of compliance 
 has been issued under section 115B.40, subdivision 7, are 
 reimbursable as provided in this section. 

    Subd. 2.    Reimbursable persons.  (a) Except as 
 provided in paragraphs (b) to (d), the following persons are 
 eligible for reimbursement under this section: 

    (1) owners or operators, after the owners or operators have 
 agreed to waive all claims for recovery of environmental 
 response costs against any other persons and have agreed to 
 reimburse, on a proportionate basis from each reimbursement 
 received, each person from whom the applicant has collected 
 funds towards reimbursable costs; and 

    (2) persons, other than owners and operators after the 
 persons have agreed to: 

    (i) reimburse, on a proportionate basis from each 
 reimbursement payment received, each person from whom the 
 applicant has collected funds towards reimbursable costs; and 

    (ii) waive all claims for environmental response costs 
 related to the facility and all other qualified facilities, 
 against all other persons. 

    (b) A person is not eligible for reimbursement under this 
 section if the person is an owner or operator who failed to 
 properly close the qualified facility within the time specified 
 in the facility's permit or the solid waste rules in effect at 
 the time the facility stopped accepting waste. 

    (c) A person is not eligible for reimbursement under this 
 section for environmental response costs at a facility if the 
 person's actions relating to a release or threatened release at 
 the facility were in violation of federal or state hazardous 
 waste management laws in effect at the time of those actions. 

    (d) A person is not eligible for reimbursement under this 
 section if, after June 15, 1994, the person files or continues 
 to pursue an action asserting a claim for recovery of 
 environmental response costs relating to a qualified facility, 
 or otherwise seeks contributions for these costs, from another 
 person. 

    Subd. 3.    Reimbursable expenses.  (a) Environmental 
 response costs are eligible for reimbursement under this section 
 to the extent that they: 

    (1) exceed: 

    (i) for each political subdivision that is an owner or 
 operator of the facility, $250,000; and 

    (ii) for a private owner or operator, or a political 
 subdivision that jointly owned or operated the facility with two 
 or more other political subdivisions under a valid joint powers 
 agreement, $750,000; 

    (2) are documented with billings or other proof of project 
 cost; and 

    (3) if the commissioner finds that they were reasonable and 
 necessary under the circumstances.  The commissioner may request 
 further documentation from those requesting reimbursement if it 
 is necessary in the commissioner's judgment. 

    (b) For owners or operators, the following costs are not 
 reimbursable: 

    (1) costs attributable to normal operations of the facility 
 or to activities required under the facility permit and 
 applicable solid waste rules, including corrective action, 
 closure, postclosure, and contingency action; and 

    (2) the acquisition of real property if required of the 
 owner or operator in order to carry out requirements of the 
 facility permit or applicable solid waste rules. 

    Subd. 4.    Reimbursement plan.  The commissioner shall 
 prepare a reimbursement plan and present it by October 1, 1995, 
 to the legislative commission on waste management, the chairs of 
 the senate finance committee and environment and natural 
 resources finance division and the committees on ways and means 
 and environment and natural resources finance of the house of 
 representatives, and owners and operators of, and persons 
 subject to a cleanup order at, qualified facilities.  The plan 
 shall identify sites where reimbursement will occur and the 
 estimated dollar amount for each site and shall set out 
 priorities and payment schedules.  The plan must give first 
 priority for reimbursement to persons who are not owners or 
 operators of qualified facilities. 

    Subd. 5.    Reimbursement timing.  The commissioner 
 shall not issue reimbursement payments before October 15, 1995.  
 The commissioner shall not issue reimbursements for expense 
 statements filed after October 15, 1996, and shall approve or 
 deny all reimbursement requests by October 15, 1997.  The 
 commissioner shall fully reimburse all persons eligible for 
 reimbursement no later than six years after the date of notice 
 of compliance for the facility under section 115B.40, 
 subdivision 7. 

    Subd. 6.    Reimbursement ceiling.  The commissioner 
 shall not issue reimbursements in an amount exceeding $7,000,000 
 per fiscal year. 

    HIST: 1994 c 639 art 1 s 9 

  115B.44 Repealed, 1996 c 370 s 7 

     115B.441 Insurance claims settlement and recovery 
  process; findings and purpose. 

    (a) The legislature finds that: 

    (1) insurers have issued certain insurance policies to 
 their policyholders that may have provided coverage for 
 environmental response costs related to qualified facilities for 
 which their policyholders bear legal responsibility; 

    (2) because the commissioner is required by law to take 
 over responsibility for environmental response actions relating 
 to all qualified facilities, any rights to coverage based upon 
 the insurers' contractual obligations to their policyholders to 
 pay environmental response costs that are assumed by the state 
 related to these facilities, to the extent the obligations may 
 exist, are rights that should fairly accrue to the state; and 

    (3) the resolution of these potential insurance coverage 
 rights should provide a fair share of the cost to the state of 
 taking over these environmental responsibilities consistent with 
 the insurers' potential coverage obligations to their 
 policyholders. 

    (b) The purposes of sections 115B.441 to 115B.445 are: 

    (1) to provide the means for the state and insurers to 
 resolve claims of the state for environmental response costs 
 related to qualified facilities that may be covered by insurance 
 policies of persons who bear legal responsibility for those 
 costs; and 

    (2) to create a fair and efficient settlement process that 
 provides insurers with an opportunity to settle claims based 
 upon a reasonable approximation of the insurers' potential 
 coverage exposure and a fair opportunity for the state to 
 recover claims by legal action from nonsettling insurers. 

    HIST: 1996 c 370 s 1 

     115B.442 Settlement process; information gathering. 

    Subdivision 1.    Selection of qualified facilities.  
 The commissioner and the attorney general shall select qualified 
 facilities for which they intend to make offers of settlement to 
 insurers under section 115B.443.  The first group of qualified 
 facilities, consisting of not less than ten facilities, must be 
 selected within 60 days after March 27, 1996.  Upon selection of 
 a qualified facility under this subdivision, the commissioner 
 shall commence reasonable efforts to identify potential 
 insurance policyholders and insurance coverage for the qualified 
 facility in accordance with this section. 

    Subd. 2.    Potential insurance policyholder.  For the 
 purpose of this section, "potential insurance policyholder" 
 means a person who may bear legal responsibility for 
 environmental response costs related to a qualified facility 
 including the following: 

    (1) a person who has been the subject of a request for 
 response action under section 115B.17, or an order under section 
 106 of the Federal Superfund Act with respect to a qualified 
 facility; 

    (2) an owner or operator of a qualified facility; 

    (3) a person who engaged in commercial, industrial, or 
 other activities generally known to produce waste containing a 
 hazardous substance, or pollutant or contaminant, and whose 
 waste was disposed of at a qualified facility; and 

    (4) a person who engaged in the business of hauling waste 
 for disposal and who accepted waste from one or more persons of 
 the type described in clause (3) for transport to a qualified 
 facility. 

    Subd. 3.    Identification of potential insurance 
 policyholders.  The commissioner may request information from 
 a person that the commissioner has reason to believe is a 
 potential insurance policyholder or has information needed to 
 identify potential insurance policyholders.  The recipient of 
 the request shall provide to the commissioner any information in 
 the person's possession, or which the person can reasonably 
 obtain, that the commissioner requires to identify potential 
 insurance policyholders for a qualified facility and to explain 
 to the commissioner the person's efforts to discover and provide 
 the information.  An owner or operator of a qualified facility 
 shall retain and preserve all documents and other information 
 relevant to the identification of potential insurance 
 policyholders for the qualified facility. 

    Subd. 4.    Identification of potential insurance 
 coverage.  The commissioner may request a person that the 
 commissioner has reason to believe is a potential insurance 
 policyholder to provide, and the recipient of the request shall 
 provide to the commissioner, any information in the person's 
 possession, or which the person can reasonably obtain, regarding 
 the person's potential liability insurance coverage for 
 environmental response costs related to a qualified facility.  A 
 potential insurance policyholder for which evidence of potential 
 coverage has been identified shall cooperate with reasonable 
 requests of the commissioner or the attorney general for 
 assistance in preparing for and negotiating a settlement under 
 this section or in preparing or pursuing a claim under section 
 115B.444 related to that policyholder's potential coverage.  
 Nothing in this subdivision relieves a potential insurance 
 policyholder of any duties imposed upon it pursuant to the 
 terms, conditions, and provisions of its insurance policy, 
 including any duty to cooperate with its insurer in the 
 investigation, negotiation, and settlement of claims or demands, 
 or the defense of suits.  The commissioner may contract for the 
 services of persons to assist in reconstructing insurance 
 policies and potential coverage from incomplete insurance 
 information.  The commissioner may authorize the attorney 
 general to carry out all or a portion of the authority provided 
 in this section. 

    Subd. 5.    Identification of potential coverage by 
 insurers.  The commissioner may request an insurer to make 
 reasonable efforts to identify or confirm potential insurance 
 coverage of any potential insurance policyholder identified 
 under subdivision 4, or may direct the potential insurance 
 policyholder to make this request of an insurer.  An insurer 
 that is requested to identify or confirm potential coverage of a 
 potential insurance policyholder under this subdivision has 90 
 days after receiving the request to confirm coverage or to 
 provide all information in the possession of the insurer that 
 may assist in identifying potential coverage, and to explain the 
 insurer's efforts to discover and provide such information.  An 
 insurer requested to provide information under this subdivision 
 shall preserve all information relevant to the request until any 
 claim relating to the request is resolved. 

    Subd. 6.    Enforcement.  Subdivisions 3 to 5 are 
 enforceable under sections 115.071 and 116.072. 

    HIST: 1996 c 370 s 2 

     115B.443 Settlement process. 

    Subdivision 1.    Determination of facility costs.  
 Beginning not later than one year after selection of a qualified 
 facility under section 115B.442, subdivision 1, the commissioner 
 shall determine the current total estimated amount of 
 environmental response costs incurred and to be incurred by the 
 state for the qualified facility under sections 115B.39 to 
 115B.43, including reimbursement under section 115B.43. 

    Subd. 2.    Settlement offers.  The attorney general and 
 the commissioner shall select one or more insurers who have been 
 identified by the commissioner as providing potential coverage 
 to persons identified under section 115B.442 as potential 
 insurance policyholders for a qualified facility and shall make 
 settlement offers with respect to one or more of the qualified 
 facilities to the selected insurers.  The attorney general and 
 the commissioner shall base the settlement offer on their 
 evaluation of the potential coverage available for environmental 
 response costs under policies issued by the insurer to persons 
 identified as potential insurance policyholders for that 
 qualified facility and on the total estimated costs for the 
 qualified facility, as determined under subdivision 1.  The 
 attorney general shall provide written notice of the settlement 
 to the insurer together with a written explanation of how the 
 offer was calculated.  The attorney general may exclude from a 
 settlement offer claims relating to policyholders who are known 
 by the attorney general to have claims against the insurer for 
 coverage for environmental liabilities at locations other than 
 qualified facilities, or who are actively litigating or settling 
 claims against their insurers relating to any qualified facility.

    Subd. 3.    Settlement negotiations; mediation.  An 
 insurer shall have 60 days after receipt of a settlement offer 
 and written explanation from the state to evaluate the offer, 
 after which the insurer, the commissioner, and the attorney 
 general shall commence negotiations to attempt to reach a 
 settlement with respect to the potential insurance coverage and 
 qualified facilities subject to the settlement offer.  The 
 insurer shall have 180 days to negotiate and commit to a 
 settlement with the state before the attorney general may 
 commence an action under section 115B.444, unless the 
 commissioner and the attorney general agree to extend the 
 negotiation period upon request by the insurer made before 
 expiration of the 180-day period.  Any extension shall be 
 limited to one additional 60-day period. 

    The attorney general, commissioner, and the insurer may 
 agree to use any method of alternative dispute resolution for 
 all or a portion of the issues in the negotiation, or may agree 
 to negotiate all matters directly among themselves.  If the 
 parties do not agree in writing on the manner in which they will 
 negotiate a settlement within 60 days after commencement of the 
 negotiation period, the parties shall submit the negotiation of 
 the settlement to mediation by an independent and neutral 
 mediator selected by the Minnesota office of dispute 
 resolution.  The attorney general shall submit on behalf of all 
 parties a request to the office of dispute resolution to appoint 
 a mediator for the negotiations.  The cost of mediation under 
 this subdivision shall be divided equally between the state and 
 the insurer. 

    Any settlement offer or any proposal, statement, or view 
 expressed or document prepared in the course of negotiation 
 under this section shall not be considered an admission by any 
 party and shall not be admissible in evidence in any judicial 
 proceeding affecting matters subject to settlement negotiation, 
 provided that any matter otherwise admissible in a judicial 
 proceeding is not made inadmissible by virtue of its use in 
 negotiation under this section. 

    Subd. 4.    Participation by affected policyholders.  (a)
 Within 30 days of notifying an insurer of a settlement offer, 
 the attorney general shall make reasonable efforts to notify 
 policyholders who may be affected by settlement negotiations 
 under subdivision 3.  The notification shall inform the 
 policyholder of the commencement of negotiations between the 
 state and the insurer and the manner in which a policyholder, 
 with agreement of the insurer, may participate in the 
 negotiation process.  If the insurer and the state reach a 
 settlement of the state's claims, the attorney general shall 
 provide notice of any proposed settlement to any affected 
 policyholder who makes a written request for such notice. 

    (b) Subject to the limitations of this paragraph, an 
 insurer to whom a settlement offer is made under subdivision 3, 
 and any policyholder who may be affected by the negotiation, may 
 agree to negotiate a resolution of any other outstanding 
 environmental claims, related to the qualified facility or 
 facilities that are subject to the state's settlement offer, 
 within the settlement negotiation process provided under this 
 section.  Environmental claims unrelated to the qualified 
 facility or facilities that are subject to the state settlement 
 offer may be included within the settlement negotiation process 
 provided under this section at the discretion of the attorney 
 general, provided that the state will not bear any costs of 
 mediation or alternative dispute resolution arising from the 
 unrelated claims.  The agreement of the insurer and affected 
 policyholders to negotiate must be reached by the time that the 
 insurer and the state commence negotiations as provided under 
 subdivision 3.  The policyholder shall not participate in the 
 selection of the method of negotiation by the state and the 
 insurer under subdivision 3.  If the attorney general in the 
 attorney general's discretion determines, at any time after the 
 first 60 days of the negotiation period, that continued 
 participation of the policyholders in the negotiation process 
 with the state and the insurer is detrimental to the effective 
 negotiation of a settlement between the state and the insurer, 
 the attorney general shall so notify the insurer and the 
 policyholders.  After such notification by the attorney general, 
 the insurer and policyholders may continue to negotiate 
 separately from the negotiation between the insurer and the 
 state, and may use the same mediator or other person who is 
 facilitating negotiation between the state and the insurer.  
 Policyholders shall be responsible for an equitable share of any 
 costs of mediation or other alternative dispute resolution 
 process in which they participate.  Notwithstanding a 
 determination to discontinue negotiations involving 
 policyholders, the attorney general may engage in an additional 
 30 days of negotiation with the insurer and policyholders if, 
 within the time limit for committing to a settlement provided 
 under subdivision 3, the attorney general finds, in the 
 discretion of the attorney general, that participation by the 
 policyholders in a settlement between the state and the insurer 
 would be beneficial to that settlement. 

 Inability of the insurer or the state to reach a settlement with 
 policyholders under this subdivision shall not preclude a 
 settlement between the state and the insurer. 

    Subd. 5.    Adjustment for retrospective premiums.  A 
 settlement that includes payment of any amount under a policy 
 subject to a retrospective premium plan shall include terms 
 which assure that the settlement does not result in the 
 imposition of any retrospective premium on any policyholder.  In 
 negotiating with respect to any state offer of settlement which 
 is based in whole or in part on coverage known to the insurer to 
 be subject to a retrospective premium plan: 

    (1) the insurer shall calculate the amount of any 
 retrospective premium that would result from payment of the 
 state's settlement offer amount and shall disclose the 
 calculation and the basis for it to the attorney general and the 
 commissioner; and 

    (2) the attorney general and commissioner may reduce the 
 settlement offer amount by the amount of the retrospective 
 premium or agree to assume the obligation to pay the 
 retrospective premium in order to assure that no retrospective 
 premium is imposed on the policyholder. 

    Subd. 6.    Option to settle natural resource damages.  
 An insurer who has received a settlement offer may request the 
 attorney general and the commissioner to address in any 
 settlement under this section natural resource damages related 
 to qualified facilities subject to the settlement offer.  The 
 attorney general and the commissioner, after receiving a request 
 under this subdivision, shall determine an amount to be added to 
 the state's settlement offer that would be sufficient to address 
 and resolve in the settlement any state claims for natural 
 resource damages related to the qualified facilities subject to 
 the settlement. 

    Subd. 7.    Settlement option for all qualified 
 facilities.  If an insurer has entered settlements with the 
 state under this section with respect to qualified facilities 
 for which the aggregate amount of total estimated environmental 
 response costs equals at least 60 percent of the total estimated 
 environmental response costs for all qualified facilities as 
 determined by the commissioner, the attorney general and the 
 commissioner, upon request of the insurer, may settle with the 
 insurer with respect to the remaining qualified facilities for 
 the amount determined in this subdivision.  The amount of the 
 settlement for the remaining qualified facilities must be the 
 amount that bears the same proportion to the total estimated 
 costs for the remaining facilities that the amount payable under 
 all of the insurer's existing settlements under this section 
 bears to the aggregate of the total estimated costs for the 
 qualified facilities subject to those settlements. 

    Subd. 8.    Scope of release by state; effect of 
 settlement.  Except for any claims excluded from the 
 settlement process under subdivision 2, a settlement under this 
 section shall release a settling insurer, and its policyholders 
 to the extent of their insurance coverage under policies of that 
 insurer, from all liability for all environmental response costs 
 incurred and to be incurred by the state related to the 
 qualified facility or facilities that are the subject of the 
 settlement, including natural resource damages if addressed in 
 the settlement.  Except for claims excluded under subdivision 2, 
 the settlement shall release a settling insurer and its 
 policyholders from liability as described in this subdivision 
 under all insurance policies issued by the insurer, regardless 
 of whether the policies or policyholders were identified by the 
 commissioner or attorney general under section 115B.442. 

    Subd. 9.    Other settlement terms.  (a) An insurer who 
 enters a settlement under this section is not liable for claims 
 for contribution regarding matters addressed in the settlement.  
 As a condition of settlement, an insurer shall waive its rights 
 to seek contribution for any amounts paid in the settlement or 
 to bring a subrogation action against any other person for any 
 amounts paid in the settlement. 

    (b) Settlement under this section does not discharge the 
 liability of an insurer that has not entered a settlement under 
 this section nor of a person to whom a nonsettling insurer has 
 issued insurance coverage to the extent of that coverage. 

    (c) No settlement offer, settlement, or negotiation under 
 this section shall affect any joint and several liability for 
 environmental response costs or damages related to the facility 
 of any person whose liability has not been settled under this 
 section. 

    (d) A settlement under this section or section 115B.444, 
 subdivision 2, paragraph (b), reduces the state's claims for 
 environmental response costs, and natural resource damages if 
 addressed in the settlement, related to qualified facilities 
 subject to the settlement by the amounts paid to the state under 
 the settlement for the facilities. 

    (e) A settlement agreement approved by the attorney general 
 and the commissioner under this section shall be presumed to be 
 a reasonable settlement of the state's claims. 

    Subd. 10.    Reduction of outstanding coverage.  Any 
 amounts paid by an insurer pursuant to a judgment under section 
 115B.444 or settlement under this section reduce the outstanding 
 coverage available under policies of the insurer to the extent 
 permitted under applicable law and policy provisions. 

    HIST: 1996 c 370 s 3 

     115B.444 State action against insurers. 

    Subdivision 1.    State action.  The state, by the 
 attorney general, may bring a state action against any insurer 
 for recovery of all environmental response costs incurred and to 
 be incurred by the state, which costs are related to qualified 
 facilities for which the state has assumed response action 
 obligations or responsibilities under sections 115B.39 to 
 115B.43, and for which costs policyholders of the insurer may be 
 liable.  No assignment of any rights of a policyholder to the 
 state and no judgment against the policyholder is required as a 
 condition for the state bringing an action under this 
 subdivision.  The state shall make reasonable efforts to notify 
 affected policyholders of the state's commencement of an action 
 under this section.  An affected policyholder may intervene in 
 an action under this section.  For purposes of this section, an 
 "affected policyholder" means a policyholder whose rights under 
 an insurance policy relevant to an action under this section may 
 be affected by the action.  All defenses available to a 
 policyholder to any claim of liability for environmental 
 response costs asserted or which could be asserted against it 
 shall be available to the insurer in an action brought by the 
 state under this subdivision.  In any action under this 
 subdivision, the claim of the state shall be limited by the 
 applicable terms, conditions, and provisions of the relevant 
 insurance policy under which coverage may be provided, and the 
 state shall have no greater rights than the rights of the 
 policyholder under its insurance policy subject to the statutory 
 and common law that applies to the determination of those rights.
 Nothing in sections 115B.441 to 115B.445 shall be construed to 
 relieve any policyholder of liability for environmental response 
 costs to the extent of any insurance coverage of the 
 policyholder by reason of the assumption of obligations or 
 responsibilities by the state for environmental response actions 
 under sections 115B.39 to 115B.43.  Before the attorney general 
 may commence an action against an insurer under this 
 subdivision, for any claims with respect to a qualified 
 facility, the attorney general and the commissioner shall 
 present to the insurer a written settlement offer, and shall 
 provide the insurer with an opportunity to negotiate and enter a 
 settlement with the state as provided in section 115B.443.  In 
 any action under this subdivision, the state shall have the same 
 rights as individual policyholders to recover its reasonable 
 expenses and costs of litigation, including attorney fees. 

    Subd. 2.    Actions by policyholders; state approval of 
 settlements.  (a) Except as provided in paragraph (b), nothing 
 in sections 115B.441 to 115B.444 affects the right of a 
 policyholder to bring or pursue any action against, or enter any 
 settlement with, an insurer for any claims for which the state 
 has a right of action against the insurer under this section and 
 that have not been resolved by a settlement or judgment under 
 this section.  The state may intervene in an action in which a 
 policyholder seeks to recover a claim for which the state has a 
 right of action under this section. 

    (b) A policyholder may not enter a settlement that releases 
 an insurer from any claims for which the state has an action 
 under subdivision 1, unless the attorney general has given prior 
 written approval to the settlement and the policyholder agrees 
 to assign to the state any amounts recovered under the 
 settlement from the insurer that are attributable to the 
 resolution of the claims. 

    HIST: 1996 c 370 s 4 

     115B.445 Deposit of proceeds. 

    All amounts paid to the state by an insurer pursuant to any 
 settlement under section 115B.443 or judgment under section 
 115B.444 must be deposited in the state treasury and credited to 
 the solid waste fund. 

    HIST: 1996 c 370 s 5 

  115B.45 Repealed, 1996 c 370 s 7 

  115B.46 Repealed, 1996 c 370 s 7 

     115B.47 Citation. 

    Sections 115B.47 to 115B.51 may be cited as the "drycleaner 
 environmental response and reimbursement law." 

    HIST: 1995 c 252 s 1 

     115B.48 Definitions. 

    Subdivision 1.    Applicability.  The definitions in 
 section 115B.02 and this section apply to sections 115B.47 to 
 115B.51. 

    Subd. 2.    Drycleaner environmental response and 
 reimbursement account; account.  "Drycleaner environmental 
 response and reimbursement account" or "account" means the 
 drycleaner environmental response and reimbursement account 
 established in section 115B.49. 

    Subd. 3.    Drycleaning facility.  "Drycleaning facility"
 means a facility located in this state that is or has been used 
 for a drycleaning operation, other than: 

    (1) a coin-operated drycleaning operation; 

    (2) a facility located on a United States military base; 

    (3) a uniform service or linen supply facility; 

    (4) a prison or other penal institution; 

    (5) a facility on the national priorities list established 
 under the Federal Superfund Act; or 

    (6) a facility at which a response action has been taken or 
 started under section 115B.17 before July 1, 1995, except as 
 authorized in a settlement agreement approved by the 
 commissioner by July 1, 1997. 

    Subd. 4.    Drycleaning operation.  "Drycleaning 
 operation" means commercial cleaning of apparel and household 
 fabrics for the general public, using one or more drycleaning 
 solvents. 

    Subd. 5.    Drycleaning solvent.  "Drycleaning solvent" 
 means a chlorine- or hydrocarbon-based formulation or product 
 that is used as a primary cleaning agent in drycleaning 
 operations. 

    Subd. 6.    Environmental response costs.  
 "Environmental response costs" means those costs described in 
 section 115B.17, subdivision 6. 

    Subd. 7.    Facility.  "Facility" means one or more 
 buildings or parts of a building and the equipment, 
 installations, and structures contained in the building, located 
 on a single site or on contiguous or adjacent sites.  Facility 
 includes any site or area where a hazardous substance, or a 
 pollutant or contaminant, has been deposited, stored, disposed 
 of, or placed, or otherwise comes to be located. 

    Subd. 8.    Full-time equivalence.  "Full-time 
 equivalence" means 2,000 hours worked by employees, owners, and 
 others in a drycleaning facility during a 12-month period 
 beginning July 1 of the preceding year and running through June 
 30 of the year in which the annual registration fee is due.  For 
 those drycleaning facilities that were in business less than the 
 12-month period, full-time equivalence means the total of all of 
 the hours worked in the drycleaning facility, divided by 2,000 
 and multiplied by a fraction, the numerator of which is 50 and 
 the denominator of which is the number of weeks in business 
 during the reporting period. 

    HIST: 1995 c 252 s 2; 1996 c 471 art 2 s 1,2; 1997 c 216 s 
 110,111 

     115B.49 Drycleaner environmental response and 
  reimbursement account. 

    Subdivision 1.    Establishment.  The drycleaner 
 environmental response and reimbursement account is established 
 as an account in the state treasury. 

    Subd. 2.    Revenue sources.  Revenue from the following 
 sources must be deposited in the state treasury and credited to 
 the account: 

    (1) the proceeds of the fees imposed by subdivision 4; 

    (2) interest attributable to investment of money in the 
 account; 

    (3) penalties and interest collected under subdivision 4, 
 paragraph (d); and 

    (4) money received by the commissioner for deposit in the 
 account in the form of gifts, grants, and appropriations. 

    Subd. 3.    Expenditures.  (a) Money in the account may 
 only be used: 

    (1) for environmental response costs incurred by the 
 commissioner under section 115B.50, subdivision 1; 

    (2) for reimbursement of amounts spent by the commissioner 
 from the environmental response, compensation, and compliance 
 account for expenses described in clause (1); 

    (3) for reimbursements under section 115B.50, subdivision 
 2; and 

    (4) for administrative costs of the commissioner of revenue.

    (b) Money in the account is appropriated to the 
 commissioner for the purposes of this subdivision.  The 
 commissioner shall transfer funds to the commissioner of revenue 
 sufficient to cover administrative costs pursuant to paragraph 
 (a), clause (4). 

    Subd. 4.    Registration; fees.  (a) The owner or 
 operator of a drycleaning facility shall register on or before 
 July 1 of each year with the commissioner of revenue in a manner 
 prescribed by the commissioner of revenue and pay a registration 
 fee for the facility.  The amount of the fee is: 

    (1) $500, for facilities with a full-time equivalence of 
 fewer than five; 

    (2) $1,000, for facilities with a full-time equivalence of 
 five to ten; and 

    (3) $1,500, for facilities with a full-time equivalence of 
 more than ten. 

    (b) A person who sells drycleaning solvents for use by 
 drycleaning facilities in the state shall collect and remit to 
 the commissioner of revenue in a manner prescribed by the 
 commissioner of revenue, on or before the 20th day of the month 
 following the month in which the sales of drycleaning solvents 
 are made, a fee of: 

    (1) $3.50 for each gallon of perchloroethylene sold for use 
 by drycleaning facilities in the state; and 

    (2) 70 cents for each gallon of hydrocarbon-based 
 drycleaning solvent sold for use by drycleaning facilities in 
 the state. 

    (c) The commissioner shall, after a public hearing but 
 notwithstanding section 16A.1285, subdivision 4, annually adjust 
 the fees in this subdivision as necessary to maintain annual 
 income of at least: 

    (1) $600,000 beginning July 1, 1997; 

    (2) $700,000 beginning July 1, 1998; and 

    (3) $800,000 beginning July 1, 1999. 

 Any adjustment under this paragraph must be prorated among all 
 the fees in this subdivision.  After adjustment under this 
 paragraph, the fees in this subdivision must not be greater than 
 two times their original amount.  The commissioner shall notify 
 the commissioner of revenue of an adjustment under this 
 paragraph no later than March 1 of the year in which the 
 adjustment is to become effective.  The adjustment is effective 
 for sales of drycleaning solvents made, and annual registration 
 fees due, beginning on July 1 of the same year. 

    (d) To enforce this subdivision, the commissioner of 
 revenue may examine documents, assess and collect fees, conduct 
 investigations, issue subpoenas, grant extensions to file 
 returns and pay fees, impose penalties and interest on the 
 annual registration fee under paragraph (a) and the monthly fee 
 under paragraph (b), abate penalties and interest, and 
 administer appeals, in the manner provided in chapters 270 and 
 289A.  The penalties and interest imposed on taxes under chapter 
 297A apply to the fees imposed under this subdivision.  
 Disclosure of data collected by the commissioner of revenue 
 under this subdivision is governed by chapter 270B. 

    HIST: 1995 c 252 s 3; 1996 c 471 art 2 s 3,4; 1997 c 216 s 112 

*   NOTE:  Subdivision 4, paragraph (d), as added by Laws 1995, 
*chapter 252, section 3, is effective for annual fees due by July 
*1, 1997, and for monthly fees due by July 20, 1997.  Laws 1995, 
*chapter 252, section 7.

     115B.491 Drycleaning facility use fee; facilities to 
  file return. 

    Subdivision 1.    Use fee.  A drycleaning facility that 
 purchases drycleaning solvents for use in Minnesota without 
 paying the seller of drycleaning solvents the fee under section 
 115B.49, subdivision 4, paragraph (b), is subject to an 
 equivalent fee.  Liability for the fee is incurred when 
 drycleaning solvents are received in Minnesota by the 
 drycleaning facility. 

    Subd. 2.    Return required.  On or before the 20th of 
 each calendar month, every drycleaning facility that has 
 purchased drycleaning solvents for use in this state during the 
 preceding calendar month, upon which the fee imposed by section 
 115B.49, subdivision 4, paragraph (b), has not been paid to the 
 seller of the drycleaning solvents, shall file a return with the 
 commissioner of revenue showing the quantity of solvents 
 purchased and a computation of the fee under section 115B.49, 
 subdivision 4, paragraph (d).  The fee must accompany the 
 return.  The return must be made upon a form furnished and 
 prescribed by the commissioner of revenue and must contain such 
 other information as the commissioner of revenue may require. 

    Subd. 3.    Applicability.  All of the provisions of 
 section 115B.49, subdivision 4, paragraph (d), apply to this 
 section. 

    HIST: 1996 c 471 art 2 s 5 

     115B.492 Allocation of payment. 

    In the discretion of the commissioner of revenue, payments 
 received for fees may be credited first to the oldest liability 
 not secured by a judgment or lien.  For liabilities to which 
 payments are applied, the commissioner of revenue may credit 
 payments first to penalties, next to interest, and then to the 
 fee due. 

    HIST: 1996 c 471 art 2 s 6 

     115B.50 Response actions. 

    Subdivision 1.    Response actions by the commissioner.  
 (a) In accordance with the priority list established under 
 section 115B.17, subdivision 13, the commissioner shall take all 
 response actions at or related to a drycleaning facility that 
 the commissioner determines are reasonable and necessary to 
 protect the public health or welfare or the environment under 
 the standards required in sections 115B.01 to 115B.24.  The 
 commissioner shall review and approve any investigation and 
 response action plan submitted by an owner or operator of a 
 drycleaning facility who is taking response actions under 
 subdivision 2 and shall oversee the implementation of the 
 approved plans.  In carrying out the duties under this 
 subdivision, the commissioner may take emergency removal actions 
 as provided in section 115B.17, subdivision 1, paragraph (b), 
 and may exercise the authority provided in section 115B.17, 
 subdivisions 2 to 5, 15, and 16. 

    (b) The commissioner may not seek recovery against a 
 current or former owner or operator of a drycleaning facility of 
 any environmental response costs in excess of $10,000 incurred 
 by the commissioner at the facility, except: 

    (1) to the extent of insurance coverage, in excess of 
 $10,000, held by the owner or operator; or 

    (2) as provided in section 115B.51. 

    If the commissioner seeks recovery of environmental 
 response costs against an owner or operator pursuant to this 
 paragraph, the owner or operator shall act as directed by the 
 commissioner to assert any rights of the owner or operator to 
 any insurance coverage applicable to those costs and, if 
 coverage is denied, to assign those rights to the commissioner. 

    (c) Before taking a response action under this subdivision, 
 the commissioner shall notify the owner or operator of the 
 facility.  Except for emergency removal actions under section 
 115B.17, subdivision 1, paragraph (b), the commissioner shall 
 not take response actions under this subdivision at a 
 drycleaning facility where an owner or operator of the facility 
 is taking response actions under subdivision 2 in accordance 
 with an investigation or response action plan approved by the 
 commissioner. 

    Subd. 2.    Response actions by owners or operators; 
 reimbursement.  (a) At the request of the owner or operator of 
 a drycleaning facility who takes response actions at the 
 facility in accordance with a response action plan approved by 
 the commissioner, the commissioner shall reimburse the owner or 
 operator for all but $10,000 of the environmental response costs 
 incurred by the owner or operator if the commissioner determines 
 that the costs are reasonable and were actually incurred.  If a 
 request for reimbursement is denied, the owner or operator may 
 appeal the decision as a contested case under chapter 14. 

    (b) If the commissioner reimburses an owner or operator for 
 environmental response costs under this subdivision for which 
 the owner or operator has insurance coverage, the commissioner 
 is subrogated to the rights of the owner or operator with 
 respect to that insurance coverage to the extent of the 
 reimbursement.  Acceptance of reimbursement under this 
 subdivision constitutes an assignment by the owner or operator 
 with respect to any insurance coverage applicable to the costs 
 that are reimbursed. 

    Subd. 3.    Limitation on amount that may be spent.  The 
 commissioner may not, in a single fiscal year, make expenditures 
 from the account related to a single drycleaning facility that 
 exceed 20 percent of the balance in the account at the beginning 
 of the fiscal year. 

    HIST: 1995 c 252 s 4 

     115B.51 Illegal actions. 

    The commissioner may recover under section 115B.17, 
 subdivision 6, that portion of the environmental response costs 
 at a drycleaning facility that is attributable to a person who 
 otherwise would be responsible for the release or threatened 
 release under section 115B.03, and whose actions related to the 
 release or threatened release were in violation of federal or 
 state hazardous waste management laws in effect at the time of 
 those actions. 

    HIST: 1995 c 252 s 5