Generally, persons who owned or operated a facility when it was contaminated, or who transported or disposed of the contaminant, can be held responsible. However, under the "innocent landowner exclusion," an owner of contaminated property may not be liable if he or she did not know or had no reason to know of the contamination and was in no way associated with the contamination. In addition to the persons named by statute as "responsible" for the contamination, courts have extended liability to those who held an interest in any corporation responsible for the contamination and who had the power to prevent the damage from occurring. Therefore, corporate officers, directors, and even shareholders can be held personally liable for the cleanup.

In addition, parent and successor corporations have also been held liable under Superfund. An employee may be liable only if he or she knew the substance was hazardous and acted negligently, but an employer is responsible regardless of the degree of care exercised by an employee. Responsible persons are also referred to as "potentially responsible parties" or PRPs.

PRPs may have to pay the costs incurred by the state to clean up and remove the damage or contamination. In the case of release of hazardous substances, which MERLA distinguishes from contaminants, PRPs may be liable for economic loss and personal injury. The only defense to the Superfund laws recognized by the courts is that the release of contaminants was caused by an act of God, an act of vandalism or war, or an act of a third party.

Once a contaminated site has been discovered, an extensive system of assessment, cleanup, and monitoring begins. Researchers must determine the total scope and effect of the contamination as well as the best way to conduct the cleanup. Also, monitoring of the site may go on for many years after the initial cleanup has been completed.

Solid Waste

Solid waste management in Minnesota is the subject of numerous legislative acts and the responsibility of a host of administrative agencies, but jurisdiction lies with each county, which sets local ordinances, zoning rules, and land-use controls. Counties may revoke the license of or pursue criminal actions against companies that fail to properly dispose of their solid waste. In addition, a new law enacted in 1995 also authorizes counties to issue fines against such companies.

The Office of Waste Management, the Legislative Commission on Waste Management, and the EQB review various aspects of solid waste management and policy. Also, regional organizations, such as the Metropolitan Council of the Twin-Cities metropolitan area, have authority to make rules in their districts. The MPCA is responsible for issuing permits to solid waste management facilities. Facilities with state permits are allowed to operate subject to state operating requirements and environmental monitoring regulations.

Minnesota law prohibits placing waste tires, lead-acid batteries, used motor oil, major appliances, yard waste, used fluorescent lightbulbs, and phone books in landfills. Often the rules regulating what can be placed in the trash are more strict for businesses than for households. Disposal of ash from solid waste incinerators is regulated, and rules governing the use of ash, such as in road paving, have been proposed.

Infectious Waste

Asbestos

Asbestos exposure in the workplace is governed by the federal Occupational Safety and Health Administration (OSHA) and is enforced by the Minnesota Department of Labor and Industry and the DOH. In most instances, state laws mirror federal laws, but they impose stricter penalties on violators and require greater employee access to information.

The basic legal requirement for all areas of business except construction is to maintain a workplace that is free of asbestos hazards. If the concentration of airborne asbestos fibers rises above a certain level (the "threshold level"), a business must begin air monitoring and medical surveillance of employees. If the levels rise above specified maximum levels ("permissible exposure limits"), businesses must provide employees with protective clothing and equipment, such as respirators, and make sure that they are used. The protective gear must be removed only in designated changing rooms and stored in closed containers to prevent spreading asbestos in the air. The gear must be cleaned weekly, taking care not to release asbestos.

Requirements for construction, including alteration, repair, painting, and decorating, are somewhat different from general industry standards. The strictest rules apply to asbestos abatement activities, while short-term, small-scale activities and construction operations where asbestos does not exceed a threshold level for more than 30 days per year are exempt from some requirements. Medical surveillance is required less often under the construction standard than under the general industry standard. Demolition of buildings, except for apartment buildings with fewer than four units, must be reported to the MPCA and the EPA at least ten days prior to the start of asbestos removal or, if there is no asbestos involved, at least ten days prior to demolition.

Under both the general industry and construction standards, employers must institute a training program for employees who may be exposed to asbestos concentrations above a threshold level. Violations of asbestos standards may result in monetary and criminal penalties.

Storage Tanks

In Minnesota, water quality rules require that persons who own any stored liquid substance that may cause pollution obtain a storage permit from the MPCA. Storage tank owners are also subject to rules governing the operation of the tanks to prevent overfilling or spilling. Other regulations control the number of years that an underground tank can remain in the ground and the ways in which these tanks can be repaired. All new and existing underground tanks must possess a device to indicate if they are leaking, and they must be monitored every month to check for releases, which must immediately be reported and mitigated. In addition, the MPCA requires ten days' notice of installation or removal of an underground tank, and only MPCA-certified contractors can perform installation and removal. Certain information about new tanks must be reported after installation. Above-ground liquid storage tanks need a "general permit," which requires meeting several criteria covering spill containment and emergency response. Information and forms are available from the MPCA's Tanks and Spills Unit.

In Minnesota, owners and operators of storage tanks are encouraged to clean up petroleum releases through a system of reimbursement for cleanup. The Petroleum Tank Release Cleanup Act established a fund called the "Petrofund," which owners can tap to help with cleanup costs. Under the same act, the person responsible for the tank is also responsible for any liability incurred from leaks. The Petrofund Act underwent modification in the 1995 legislature, making owners who have their property tested for soil or groundwater contamination from a leaking tank eligible for reimbursement of the cost of such a test. The amended act now requires all above-ground storage tanks to be labeled and equipped with volume gauges and alarms that indicate when the tank is within 100 gallons of capacity.

Electromagnetic Fields

OSHA currently does not regulate EMF exposure in the workplace. In Minnesota, the EQB has authority to regulate electrical and magnetic fields, but currently regulates only electrical fields in certain projects. Minnesota is one of several states that have established electric field limits that apply in or at the edge of electric transmission lines. As more research on the topic is completed, it is expected that litigation and regulation related to EMFs will increase.

Large commercial buildings often have transformer and switching rooms that can generate extremely strong electromagnetic fields, and office wiring can produce high fields. Computer monitors and copy machines are two common pieces of office equipment that produce intense magnetic fields. The fields projected by computer monitors are much stronger at the backs and sides of the monitor than at the front. Offices can be designed to minimize workers' exposure to the sides and backs of other workers' monitors, and thus, their exposure to EMFs.

Stray Voltage

The legal theory of "strict liability" often arises in toxic torts. In Minnesota, a person who keeps a potentially dangerous substance on his or her land is held strictly liable if the substance escapes and causes injury, regardless of whether the escape resulted from negligence. Negligence, trespass, and nuisance are other theories that may apply to environmentally caused injuries and damage.

There are certain limits on the toxic tort claims that can be brought against municipalities in Minnesota. For example, the tort liability of municipalities is limited to $200,000 for wrongful death or other tort injuries, and limited to $600,000 for claims arising from any single occurrence, and awards for punitive damages are not permitted. Also limited is the time within which a tort action can be filed. The limitation generally ranges from three to six years, depending on the nature of claim.

The Minnesota Legislature enacted extensive recycling regulations in 1989 which, in part, established goals for metropolitan counties to recycle at least 35 percent of their solid waste and for rural counties to recycle at least 25 percent of their solid waste. These regulations were based on the recommendations of the governor-appointed Select Committee On Recycling and the Environment (SCORE). Another regulation resulting from SCORE's recommendations holds each county responsible for its own recycling, including curbside collection for metropolitan areas and recycling facilities and information campaigns for all counties. The law also encourages state agencies to purchase recycled materials, and requires schools and local agencies to develop recycling programs. The Minnesota Office of Waste Management administers several grant and low interest loan programs designed to encourage recycling.

As stated earlier, "innocent landowners" have some protection from liability related to contamination of real property. However, to use this defense, an owner must have exercised "due diligence" in determining the condition of the property at the time of purchase. An environmental site assessment can apprise a purchaser of a site's condition and any potential liability. A review of MPCA and EPA records relating to the property and adjacent land is a mandatory part of a site investigation. At the request of the parties involved in a property transfer, the MPCA will conduct the review of its records. The MPCA will also assist with cleanup by commenting on investigation plans and reviewing cleanup plans. Participants are charged for the agency's costs. Businesses that participate in this MPCA program may be eligible for release from some liability connected with contaminated sites.

In an effort to utilize contaminated urban property which to date has been avoided by potential buyers concerned about liability, the state of Minnesota and local governments are pursuing a revitalization initiative. In December 1994, the MPCA and the EPA entered into an agreement whereby the MPCA may release property buyers from liability for cleanup of contaminated sites if the buyers voluntarily undertake cleanup of the property. State and local funding for cleanup efforts is also becoming available through new and expanded financial incentives, from localities that see the potential for substantially increasing the property tax base or providing other public benefits.

Often, an ounce of prevention is worth a pound of cure when it comes to environmental problems stemming from real estate deals. It can be very wise to have a thorough site investigation performed before purchasing any property that may be contaminated or that might contain an underground storage tank. An experienced environmental law attorney can advise on how best to protect one's business in routine real estate transactions.

Dorsey & Whitney, Minnesota Environmental Law Handbook (Government Institutes, Inc., 4 Research Place, #200, Rockville, MD 30850, 921-2300, 2d ed. 1994).

Emergency Response Commission, Department of Public Safety, B-5 State Capitol Building, St. Paul, MN 55155, (612) 297-7372.

Minnesota Small Business Assistance Office, 500 Metro Square, 121 Seventh Place East, St. Paul, MN 55101-2146, (612) 296-3871 or 1-800-657-3858 (free booklet:A Guide to Starting a Business in Minnesota).

Minnesota Pollution Control Agency (MPCA), 520 Lafayette Road North, St. Paul, MN 55155, (612) 296-6300 or 1-800-657-3864 (publications: Business Wastes: What You Don't Know May Cost You: A Guide for Generators of Very Small Quantitites of Waste; Air Quality Small Business Assistance Program; Who Is a Generator of Hazardous Waste and What's a Generator Required by Law to Do?; Used Flourescent Lamps (Businesses); Minnesota Storage Tank Program).

Minnesota Technical Assistance Program (MnTAP), 1313 Fifth Street, SE, #207, Minneapolis, MN 55414-4504, (612) 627-4646 or 1-800-247-0015 (free help on pollution prevention and waste management).