In Minnesota a bill was recently passed that addresses recovery for exposure to hazardous substances in terms of statutory liability mechanisms rather than an administrative fund remedy.¹ There is, however, a suggestion of a fund remedy in the bill. I would like to give you a little bit of the background to the legislative debates that preceded passage of the bill. Late in 1980, after the federal Superfund was passed, Senator Gene Merriam, Chairman of the state's Agricultue and Natural Resources Committee, asked his staff to draft a bill to fill in some of the holes left in the federal Superfund law. As an offhand remark, the staffer asked, "Do you want me to include something on personal injury?" And the Senator said, "Sure." We have been battling for the last three years because of that brief exchange.

The bill was introduced in 1981. Brief hearings were held that year. In 1982, the bill went through four Committees of the House, plus additional subcommittee hearings, four Committees in the Senate, was passed by both houses, went to conference, came back, was passed again by both bodies and was vetoedby the Governor in March, 1982. His veto was primarily rooted in his doubt about the constitutionality of retroactive liability.

The Governor did, however, offer to work out a compromise, although it became clear that he was not prepared to sign a bill containing personal injury provisions that were retroactive in application. We developed a bill with personal injury liability looking forward only, and cleanup liability applied both prospectively and retroactively. This compromise, however, was never taken up by the Legislature in 1982. As a result, the bill was reintroduced in 1983 and again went through eight Committees and several subcommittees. Again, the controversy centered on the liability provisions.

As they finally emerged, the liability provisions were as follows: for cleanup there is strict, joint and several liability prospectively and retroactively applied, with no limiting dates and no caps on the liability. For economic loss, personal injury, and disease, there is strict liability; there is also joint and several liability in a certain sense because a cap was included such that no defendant must pay more than twice the proportion of the fault attributable to him. These personal injury provisions do not apply for any substances disposed wholly before January 1, 1960.

I would also like to highlight some of the other compromises that resulted, in addition to features that did not [14 ELR 10115] require quite so much hammering out. The bill provides funding for cleanup, with a general fund appropriation of $5 million for the next biennium. This level of funding will not go far to clean up the 61 sites on the Minnesota Pollution Control Agency log, but it will start the process and will satisfy the ten percent match required for federal Superfund site cleanup. A tax on hazardous waste generators will provide about $1.7 million of the fund. The tax is based on the amount and the destination of the waste; the highest tax rate is for untreated waste destined for landfills.

The bill includes a statute of limitations, which may be somewhat unusual in terms of what other states are currently applying. A Minnesota Supreme Court decision has been handed down, however, that is very much in line with what was set forth in this section. The statute of limitations is six years from the date when the cause of action accrued. The bill gives the court some guidelines as to factors to be considered, including when the injury or loss was discovered, when it had sufficiently manifested itself, and when the plaintiff discovered or should have discovered the causal connection between the injury or disease and the release.

The bill contains a number of exclusions, exemptions and defenses. Within the definitional section some exclusions are incorporated. For example, in the definition of a release, we do not include engine exhaust, nuclear releases, or applications of fertilizer or agricultural chemicals. In the definition of a responsible person, we exempt transporters, unless they select the facility to which they are bringing the material or dispose of it in a manner contrary to law. In that same definition we included a fairly elaborate defense for owners of real property if they did not know, nor should they have known, when they acquired the property that the substance was there.

We modified the causation section considerably throughout the course of debate on the bill. That section provides that in any action brought to recover damages for death, personal injury or disease arising out of the release of a hazardous substance the court may not direct a verdict against the plaintiff on the issue of causation if the plaintiff produces evidence sufficient for a reasonable person to find that the defendant is responsible for the release, that the plaintiff was exposed to the hazardous substance, that the release could reasonably have resulted in the plaintiff's exposure to the substance in an amount and duration experienced by the plaintiff, and lastly, that the death, injury, or disease suffered by the plaintiff is caused by or significantly attributed to the exposure experienced by the plaintiff. It was also stipulated that nothing in the causation section should be construed to relieve the plaintiff of the normal burden of proof. Some plaintiff's attorneys believe that if plaintiffs could show each element required by the causation section, the victims would probably be able to win their cases without any assistance from the no-directed-verdict provision.

Late in the hearings this year we began to hear from industry, of all groups! They urged that we incorporate a victim compensation fund in the bill. It may have been a tactic to encourage us to delete all relevant liability sections in favor of further study before enactment. Our response was that, after three years' work on the bill, how could we possibly put together a fund of any value in the remaining time of the session, especially without any prior thought given to whether we needed or wanted a state fund?

The Governor, too, became interested in the idea of a fund. There was concern, in particular, for some victims of arsenic poisoning. Arsenic was used in the 1930s to combat a grasshopper plague. Several people recently dug water wells near the burial areas for the arsenic, and now a least three individuals are permanently disabled because of arsenic poisoning. The Governor was aware of the situation and he proposed that we establish a fund to take care of the victims.

The heads of the Finance and Appropriations Committees informed us that the money was not available for a fund and that they would not vote for a bill containing that provision. The bill therefore requires that, by July 1, 1984, the Legislative Commission on Waste Management, a joint House-Senate Commission that performs oversight functions in the area of solid and hazardous waste, shall conduct a study and make recommendations regarding the creation of a compensation fund. The bill details some of the issues that should be examined.

1. The Minnesota Environmental Response and Liability Act, to be codified at MINN. STAT. § 115B.01 et seq., ELR, STATE SUPERFUND STATUTES 1984, 41-49 (1983).

14 ELR 10114 | Environmental Law Reporter | copyright © 1984 | All rights reserved