2006 Minnesota Statutes

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.20. 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 defined in section 115B.39, subdivision 2, paragraph (l), clause (1).
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 defined in section
115B.39, subdivision 2, paragraph (l), clause (1), 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 (e), 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) in the case of qualified facilities defined in section 115B.39, subdivision 2, paragraph (l),
clause (1), transfer to the commissioner of revenue for deposit in the remediation fund established
in section 116.155 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; and
(4) in the case of qualified facilities defined in section 115B.39, subdivision 2, paragraph (l),
clause (2), transfer to the commissioner of revenue for deposit in the remediation fund established
in section 116.155 an amount of cash that is equal to the sum of their approved current contingency
action cost estimate and the present value of their approved estimated remaining postclosure care
costs required for proof of financial responsibility under section 116.07, subdivision 4h.
(b) The owner or operator of a qualified facility that is not subject to a cleanup order shall:
(1) in the case of qualified facilities defined in section 115B.39, subdivision 2, paragraph (l),
clause (1), 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
(2) enter into a binding agreement with the commissioner to:
(i) in the case of qualified facilities defined in section 115B.39, subdivision 2, paragraph
(l), clause (1), take any actions necessary to preserve the owner or operator's rights to payment
or defense under insurance policies included in clause (1); 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.
(c) The owner or operator of a qualified facility defined in section 115B.39, subdivision 2,
paragraph (l), clause (1), 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.
(d) The agreement required in paragraph (b), clause (2), 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.
(e) 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, paragraphs (a),
clause (3) or (4); and (b).
    Subd. 6. Commissioner; duties. (a) If the owner or operator of a qualified facility that is
subject to the requirements of subdivision 4, paragraph (a), 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) in the case of qualified facilities defined in section 115B.39, subdivision 2, paragraph
(l), clause (1), 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 defined in section 115B.39, subdivision 2, paragraph
(l), clause (1), 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.
History: 1994 c 639 art 1 s 3; 1995 c 220 s 130; 1999 c 231 s 134-140; 2003 c 128 art 2 s
25; 2004 c 228 art 1 s 73