2007 Minnesota Statutes

115C.09 REIMBURSEMENT.
    Subdivision 1. Reimbursable costs. (a) The board shall provide reimbursement to eligible
applicants for reimbursable costs.
(b) The following costs are reimbursable for purposes of this chapter:
(1) corrective action costs incurred by the applicant and documented in a form prescribed by
the board, except the costs related to the physical removal of a tank;
(2) costs that the responsible person is legally obligated to pay as damages to third parties for
bodily injury, property damage, or corrective action costs incurred by a third party caused by a
release where the responsible person's liability for the costs has been established by a court order
or court-approved settlement; and
(3) up to 180 days of interest costs associated with the financing of corrective action and
incurred by the applicant in a written extension of credit or loan that has been signed by the
applicant and executed after July 1, 2002, provided that the applicant documents that:
(i) the interest costs are incurred as a result of an extension of credit or loan from a financial
institution; and
(ii) the board has not considered the application within the applicable time frame specified in
subdivision 2a, paragraph (c).
Interest costs meeting the requirements of this clause are eligible only when they are incurred
between the date a complete initial application is received by the board, or the date a complete
supplemental application is received by the board, and the date that the board first notifies the
applicant of its reimbursement determination. An application is complete when the information
reasonably required or requested by the board's staff from the applicant has been received by the
board's staff. Interest costs are not eligible for reimbursement to the extent they exceed two
percentage points above the adjusted prime rate charged by banks, as defined in section 270C.40,
subdivision 5 , at the time the extension of credit or loan was executed.
(c) A cost for liability to a third party is incurred by the responsible person when an order or
court-approved settlement is entered that sets forth the specific costs attributed to the liability.
Except as provided in this paragraph, reimbursement may not be made for costs of liability to
third parties until all eligible corrective action costs have been reimbursed. If a corrective action
is expected to continue in operation for more than one year after it has been fully constructed
or installed, the board may estimate the future expense of completing the corrective action and,
after subtracting this estimate from the total reimbursement available under subdivision 3,
reimburse the costs for liability to third parties. The total reimbursement may not exceed the limit
set forth in subdivision 3.
    Subd. 2. Responsible person eligibility. A responsible person who has incurred reimbursable
costs after June 4, 1987, in response to a release, may apply to the board for reimbursement
under subdivision 3.
    Subd. 2a. Application for reimbursement. (a) Applications for reimbursement may be
submitted for consideration by the board at the following stages:
(1) after costs have been incurred, and the associated tasks completed, for excavation
basin soil sampling, excavation of contaminated soil, treatment of contaminated soil, or
remedial investigation tasks such as soil boring drilling, monitoring well installation, vapor risk
assessment, and groundwater receptor survey; corrective action costs relating to the construction
and installation of a comprehensive corrective action design system are not reimbursable at
this stage; and
(2) after costs have been incurred, and the associated tasks completed, for tasks related to
the construction and installation of a comprehensive corrective action design system, but only if
the commissioner has approved a comprehensive plan for corrective action that will adequately
address the entire release, including groundwater contamination if necessary.
(b) An applicant shall not submit an application for reimbursement more frequently than four
times per 12-month period unless the application is for more than $2,000 in reimbursement.
(c) The commissioner shall review a plan, and provide an approval or disapproval to the
applicant and the board, within 60 days in the case of a plan submitted under paragraph (a), clause
(1), and within 120 days in the case of a plan submitted under paragraph (a), clause (2), or the
commissioner shall explain to the board why additional time is necessary. The board shall consider
a complete initial application within 60 days of its submission, and shall consider a complete
supplemental application within 120 days of its submission, or the board shall explain for the
record why additional time is necessary. Board staff may review applications submitted to the
board at the same time the commissioner considers the appropriateness of the corrective action,
but the board may not act on the application until after the commissioner's approval is received.
(d) A reimbursement may not be made unless the board determines that the commissioner
has determined that the corrective action was appropriate in terms of protecting public health,
welfare, and the environment.
    Subd. 3. Reimbursements; subrogation; appropriation. (a) The board shall reimburse an
eligible applicant from the fund for 90 percent of the total reimbursable costs incurred at the site,
except that the board may reimburse an eligible applicant from the fund for greater than 90 percent
of the total reimbursable costs, if the applicant previously qualified for a higher reimbursement
rate. For costs associated with a release from a tank in transport, the board may reimburse 90
percent of costs over $10,000, with the maximum reimbursement not to exceed $100,000.
Not more than $1,000,000 may be reimbursed for costs associated with a single release,
regardless of the number of persons eligible for reimbursement, and not more than $2,000,000
may be reimbursed for costs associated with a single tank facility.
(b) A reimbursement may not be made from the fund under this chapter until the board
has determined that the costs for which reimbursement is requested were actually incurred and
were reasonable.
(c) When an applicant has obtained responsible competitive bids or proposals according
to rules promulgated under this chapter prior to June 1, 1995, the eligible costs for the tasks,
procedures, services, materials, equipment, and tests of the low bid or proposal are presumed to
be reasonable by the board, unless the costs of the low bid or proposal are substantially in excess
of the average costs charged for similar tasks, procedures, services, materials, equipment, and
tests in the same geographical area during the same time period.
(d) When an applicant has obtained a minimum of two responsible competitive bids or
proposals on forms prescribed by the board and where the rules promulgated under this chapter
after June 1, 1995, designate maximum costs for specific tasks, procedures, services, materials,
equipment and tests, the eligible costs of the low bid or proposal are deemed reasonable if the
costs are at or below the maximums set forth in the rules.
(e) Costs incurred for change orders executed as prescribed in rules promulgated under this
chapter after June 1, 1995, are presumed reasonable if the costs are at or below the maximums set
forth in the rules, unless the costs in the change order are above those in the original bid or proposal
or are unsubstantiated and inconsistent with the process and standards required by the rules.
(f) A reimbursement may not be made from the fund in response to either an initial or
supplemental application for costs incurred after June 4, 1987, that are payable under an
applicable insurance policy, except that if the board finds that the applicant has made reasonable
efforts to collect from an insurer and failed, the board shall reimburse the applicant.
(g) If the board reimburses an applicant for costs for which the applicant has insurance
coverage, the board is subrogated to the rights of the applicant with respect to that insurance
coverage, to the extent of the reimbursement by the board. The board may request the attorney
general to bring an action in district court against the insurer to enforce the board's subrogation
rights. Acceptance by an applicant of reimbursement constitutes an assignment by the applicant to
the board of any rights of the applicant with respect to any insurance coverage applicable to the
costs that are reimbursed. Notwithstanding this paragraph, the board may instead request a return
of the reimbursement under subdivision 5 and may employ against the applicant the remedies
provided in that subdivision, except where the board has knowingly provided reimbursement
because the applicant was denied coverage by the insurer.
(h) Money in the fund is appropriated to the board to make reimbursements under this
chapter. A reimbursement to a state agency must be credited to the appropriation account or
accounts from which the reimbursed costs were paid.
(i) The board may reduce the amount of reimbursement to be made under this chapter if it
finds that the applicant has not complied with a provision of this chapter, a rule or order issued
under this chapter, or one or more of the following requirements:
(1) the agency was given notice of the release as required by section 115.061;
(2) the applicant, to the extent possible, fully cooperated with the agency in responding
to the release;
(3) the state rules applicable after December 22, 1993, to operating an underground storage
tank and appurtenances without leak detection;
(4) the state rules applicable after December 22, 1998, to operating an underground storage
tank and appurtenances without corrosion protection or spill and overfill protection; and
(5) the state rule applicable after November 1, 1998, to operating an aboveground tank
without a dike or other structure that would contain a spill at the aboveground tank site.
(j) The reimbursement may be reduced as much as 100 percent for failure by the applicant to
comply with the requirements in paragraph (i), clauses (1) to (5). In determining the amount of
the reimbursement reduction, the board shall consider:
(1) the reasonable determination by the agency that the noncompliance poses a threat
to the environment;
(2) whether the noncompliance was negligent, knowing, or willful;
(3) the deterrent effect of the award reduction on other tank owners and operators;
(4) the amount of reimbursement reduction recommended by the commissioner; and
(5) the documentation of noncompliance provided by the commissioner.
(k) An applicant may request that the board issue a multiparty check that includes each
lender who advanced funds to pay the costs of the corrective action or to each contractor or
consultant who provided corrective action services. This request must be made by filing with the
board a document, in a form prescribed by the board, indicating the identity of the applicant,
the identity of the lender, contractor, or consultant, the dollar amount, and the location of the
corrective action. The applicant must submit a request for the issuance of a multiparty check for
each application submitted to the board. Payment under this paragraph does not constitute the
assignment of the applicant's right to reimbursement to the consultant, contractor, or lender. The
board has no liability to an applicant for a payment issued as a multiparty check that meets
the requirements of this paragraph.
    Subd. 3a. Eligibility of other persons. A person who has taken corrective action may apply
to the board for reimbursement under subdivision 3 if the board determines that:
(1) the person took the corrective action in response to a request or order of the commissioner
made under this chapter;
(2) the commissioner has determined that the person was not a responsible person as defined
in this chapter;
(3) the board has determined the person was not a volunteer under subdivision 3b; and
(4) the person incurs reimbursable costs on or after June 4, 1987.
Notwithstanding subdivision 3, paragraph (a), a person eligible for reimbursement under this
subdivision shall receive 100 percent of total reimbursable costs up to $1,000,000.
    Subd. 3b. Volunteer eligibility. (a) A person may apply to the board for reimbursement
under subdivision 3 if the board determines that:
(1) the person is not a responsible person as defined in this chapter;
(2) holds legal or equitable title to the property where a release occurred; and
(3) incurs reimbursable costs on or after May 23, 1989.
(b) The board may reduce the reimbursement to a person eligible under this subdivision if
the person acquired legal or equitable title to the property from a responsible person who failed to
comply with subdivision 3, paragraph (i), except that the board may not reduce the reimbursement
under this provision to a mortgagee who acquires title to the property through foreclosure or
receipt of a deed in lieu of foreclosure.
    Subd. 3c. Release at refineries and tank facilities not eligible for reimbursement. (a)
Reimbursement may not be made under this chapter for costs associated with a release:
(1) from a tank located at a petroleum refinery; or
(2) from a tank facility, including a pipeline terminal, with more than 1,000,000 gallons of
total petroleum storage capacity at the tank facility.
(b) Paragraph (a), clause (2), does not apply to reimbursement for costs associated with a
release from a tank facility:
(1) owned or operated by a person engaged in the business of mining iron ore or taconite;
(2) owned by a political subdivision, a housing and redevelopment authority, an economic
development authority, or a port authority that acquired the tank facility prior to May 23, 1989; or
(3) owned by a person:
(i) who acquired the tank facility prior to May 23, 1989;
(ii) who did not use the tank facility for the bulk storage of petroleum; and
(iii) who is not affiliated with the party who used the tank facility for the bulk storage of
petroleum.
    Subd. 3d. Political subdivision eligibility. (a) A political subdivision that has taken
corrective action may apply to the board for reimbursement under subdivision 3 if the board
determines that:
(1) the political subdivision is not a responsible person as defined by this chapter;
(2) is not a volunteer under subdivision 3b; and
(3) incurs reimbursable costs on or after April 8, 1992.
(b) A political subdivision eligible for reimbursement under this subdivision may only
apply for reimbursement if the identified responsible person has failed to take a corrective action
ordered by the commissioner.
    Subd. 3e. Department of Transportation eligibility. The Department of Transportation may
apply to the board and is eligible for reimbursement of reimbursable costs associated with property
that the department has acquired under section 115C.021, subdivision 3a, if corrective action
pursuant to a plan reviewed and approved by the commissioner of the Pollution Control Agency
in accordance with applicable rules and guidance documents was taken on the entire property so
acquired. Notwithstanding subdivision 3, paragraph (a), the Department of Transportation shall
receive 100 percent of total reimbursable costs associated with a single release up to $1,000,000.
    Subd. 3f.[Expired, 1997 c 246 s 12]
    Subd. 3g.[Repealed, 1Sp2001 c 2 s 162]
    Subd. 3h. Reimbursement; aboveground tanks in bulk plants. (a) As used in this
subdivision, "bulk plant" means an aboveground or underground tank facility with a storage
capacity of more than 1,100 gallons but less than 1,000,000 gallons that is used to dispense
petroleum into cargo tanks for transportation and sale at another location.
(b) Notwithstanding any other provision in this chapter and any rules adopted pursuant
to this chapter, the board shall reimburse 90 percent of an applicant's cost for bulk plant
upgrades or closures completed between June 1, 1998, and November 1, 2003, to comply with
Minnesota Rules, chapter 7151, provided that the board determines the costs were incurred and
reasonable. The reimbursement may not exceed $10,000 per bulk plant. The board may provide
reimbursement under this paragraph for work completed after November 1, 2003, if the work was
contracted for prior to that date and was not completed by that date as a result of an unanticipated
situation, provided that an application for reimbursement under this paragraph, which may be a
renewal of an application previously denied, is submitted prior to December 31, 2005.
(c) For corrective action at a bulk plant located on what is or was railroad right-of-way, the
board shall reimburse 90 percent of total reimbursable costs on the first $40,000 of reimbursable
costs and 100 percent of any remaining reimbursable costs when the applicant can document
that more than one bulk plant was operated on the same section of right-of-way, as determined
by the commissioner of commerce.
    Subd. 3i. Reimbursement; natural disaster area. (a) As used in this subdivision, "natural
disaster area" means a geographical area that has been declared a disaster by the governor and
President of the United States.
(b) Notwithstanding subdivision 3, paragraph (a), the board may reimburse:
(1) up to 50 percent of an applicant's pre-natural-disaster estimated building market value as
recorded by the county assessor; or
(2) if the applicant conveys title of the real estate to local or state government, up to 50
percent of the pre-natural-disaster estimated total market value, not to exceed one acre, as
recorded by the county assessor.
(c) Paragraph (b) applies only if the applicant documents that:
(1) the natural disaster area has been declared eligible for state or federal emergency aid;
(2) the building is declared uninhabitable by the commissioner because of damage caused by
the release of petroleum from a petroleum storage tank; and
(3) the applicant has submitted a claim under any applicable insurance policies and has been
denied benefits under those policies.
(d) In determining the percentage for reimbursement, the board shall consider the
applicant's eligibility to receive other state or federal financial assistance and determine a lesser
reimbursement rate to the extent that the applicant is eligible to receive financial assistance
that exceeds 50 percent of the applicant's pre-natural-disaster estimated building market value
or total market value.
    Subd. 3j. Retail locations and transport vehicles. (a) As used in this subdivision, "retail
location" means a facility located in the metropolitan area as defined in section 473.121,
subdivision 2 , where gasoline is offered for sale to the general public for use in automobiles
and trucks. "Transport vehicle" means a liquid fuel cargo tank used to deliver gasoline into
underground storage tanks during 2002 or 2003 at a retail location.
(b) Notwithstanding any other provision in this chapter, and any rules adopted under this
chapter, the board shall reimburse 90 percent of an applicant's cost for retrofits of retail locations
and transport vehicles completed between January 1, 2001, and September 1, 2006, to comply
with section 116.49, subdivisions 3 and 4, provided that the board determines the costs were
incurred and reasonable. The reimbursement may not exceed $3,000 per retail location and
$3,000 per transport vehicle.
    Subd. 4. Reimbursement does not affect other liability. The right to apply for
reimbursement and the receipt of reimbursement does not limit the liability of a responsible
person for damages or costs incurred by a person or the state as a result of a release.
    Subd. 5. Return of reimbursement. (a) The board may demand the complete or partial
return of any reimbursement made under this chapter if the applicant for reimbursement:
(1) misrepresents or omits a fact relevant to a determination made by the board or the
commissioner under this chapter;
(2) fails to complete corrective action that the commissioner determined at the time of the
reimbursement to be necessary to adequately address the release, unless the reimbursement was
made under subdivision 3a;
(3) fails to reimburse a person for agreed-to amounts for corrective actions taken in response
to a request by the applicant; or
(4) has entered an agreement to settle or compromise any portion of the incurred costs, in
which case the amount returned must be prorated in proportion to the amount of the settlement
or compromise.
(b) If a reimbursement under this chapter is not returned upon demand by the board, the
board may recover the reimbursement, with administrative and legal expenses, in a civil action
in district court brought by the attorney general against the applicant. If the board's demand for
return of the reimbursement is based on willful actions of the applicant, the applicant shall also
forfeit and pay to the state a civil penalty, in an amount to be determined by the court, of not more
than the full amount of the reimbursement.
    Subd. 6. Fraud. If a person, with intent to defraud, issues an invoice or other demand for
payment with knowledge that it is false in whole or in part, and with knowledge that it is being
submitted to the board for reimbursement:
(1) that person shall be considered to have presented a false claim to a public body under
section 609.465; and
(2) the board may demand that the person return any money received as a result of a
reimbursement made on the basis of the false invoice or other demand for payment. If the money
is not returned upon demand by the board, the board may recover the money, with administrative
and legal expenses, in a civil action in district court brought by the attorney general against the
person. The person shall also forfeit and pay to the state a civil penalty, in an amount to be
determined by the court, of not more than the full amount of the money received by the person
on the basis of the false invoice or other demand for payment.
    Subd. 7. Duty to provide information. (a) A person who submits an application to the
board for reimbursement, or who has issued invoices or other demands for payment which are the
basis of an application, shall furnish to the board copies of any financial records which the board
requests and which are relevant to determining the validity of the costs listed in the application, or
shall make the financial records reasonably available to the board for inspection and auditing. The
board may obtain access to information required to be made available under this chapter in the
manner provided in section 115C.03, subdivision 7.
(b) After reimbursement has been granted, an agreement to settle or compromise any portion
of the incurred costs must be reported to the board by the parties to the agreement.
    Subd. 8. Limitation on reimbursement obligation. The amount of the state's obligation
to make reimbursement under this chapter is limited to the amount available. Notwithstanding
any other provisions of this chapter, there shall be no obligation to the general fund to make a
reimbursement if there are not sufficient funds in the petroleum tank fund.
    Subd. 9. Insufficient funds. The board may not approve an application for reimbursement if
there are insufficient funds available to pay the reimbursement.
    Subd. 10. Delegation of board's powers. The board may delegate to the commissioner of
commerce its powers and duties under this chapter.
History: 1987 c 186 s 15; 1987 c 389 s 9; 1988 c 683 s 4-6; 1989 c 226 s 3; 1989 c 335 art 4
s 106; 1990 c 501 s 5-7; 1991 c 175 s 3-9; 1991 c 233 s 52; 1991 c 294 s 2; 1992 c 414 s 3,4;
1992 c 490 s 8,9; 1993 c 341 art 1 s 11-16; 1994 c 632 art 4 s 44; 1995 c 220 s 130; 1995 c 240
art 1 s 4-7; 1996 c 308 s 5; 1996 c 397 s 2; 1997 c 200 art 2 s 5,6; 1997 c 246 s 12,35; 1Sp1998 c
1 art 3 s 16,17; 1999 c 203 s 2,3; 1Sp2001 c 2 s 130-133; 2002 c 325 s 3; 2003 c 128 art 1 s
132-134; 2005 c 151 art 2 s 17; 1Sp2005 c 1 art 4 s 11,12; 2006 c 252 s 3; 2006 c 281 art 4 s 4