Memo - Justus Lumber Property-Enviromental Investigation
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Administrative Services Department
Office of the City Manager
Memorandum
To:
From:
Date:
Subject:
Honorable Mayor and Members of the City Council
Steven C. Mielke, City Manager
March 9, 2001
Justus Lumber Property-Environmental Investigation
For a period of time, the staff has been in discussions with the owners of Justus
Lumber concerning the environmental conditions at the Justus Lumber site.
The purpose of the discussion at the Work Session is to update the City Council on the
current status of discussions between Justus Lumber and the city, and to obtain
consent from the Council to continue researching alternatives into an investigation of
the property.
Backaround
Over the past year or so, staff has learned of two potential pollution issues on the
Justus property. Bl!t prior to describing those, it must be understood that the majority
of the Justus property was at one point occupied by a manufactured gas plant, and
subsequently by a municipal solid waste landfill operated by the city. After those uses
had concluded, the city sold the property to Justus Lumber for the current use.
There are two primary issues of environmental concern that are being discussed, a
dilapidated storm sewer pipe on a city easement that is draining into Nine Mile Creek
with a low level of pollutants, and a potential pollution source due to the previous
manufactured gas plant coal tar residues.
Storm Sewer Pipe
The storm sewer pipe is in a condition where the city has not been able to fully examine
the pipe. It is an old corrugated metal pipe that has deteriorated and collapsed to such
a point that it is beyond repair. There appears to be perched water surrounding the
pipe with subsurface drainage flowing out of the pipe and into Nine Mile Creek.
The staff and Justus Lumber both agree that the appropriate solution is to abandon the
existing pipe and easement, and to reconstruct the private sewer connections to a new
storm sewer pipe constructed with the Excelsior Boulevard project. Justus Lumber is
working with a consulting firm to determine the cost of such a relocation. Under normal
city policy, the abandonment of pipes such as these would be a city cost with
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reconnections from their current position to the new pipe being a city-borne expense. It
is hoped that this project can be constructed in 2001.
Manufactured Gas Plant
The manufactured gas plant investigation is a much more costly and complicated
venture. The coal tar residue was found under the site while Justus Lumber was doing
some investigatory work necessary for financing purposes of their property. With the
finding of this residue, it is likely that the Minnesota Pollution Control Agency would
require an investigation of the property to determine if there are environmental impacts
associated with this finding. Should there be impacts, it could lead to a remediation
project.
I have attached two documents for the Council's review. The first is a proposed Phase
II investigation of the former manufactured gas plant site by Bob Kaiser of American
Engineering and Testing (AET). I have also attached a letter from Mr. Jon ScoII, of
Linquist and Venum, outlining potential revenue sources to carry out the Phase II
investigation.
In the simplest terms, it would appear that an investigation is a necessary response. At
the outside, this investigation could cost $250,000. Prior to proceeding, staff would
recommend that we obtain additional comments and opinions regarding the best way to
proceed. Secondly, staff would suggest that revenue sources for the investigation and
potential remediation be identified prior to beginning.
The Justus property owners, Jim Justus and Peter Throdahl will be in attendance at the
meeting. They wish to keep the property a viable site for future owners and uses. In
order to do so, the site will need to be identified and investigated for possible business
disruptions and remedial actions, if any are necessary.
Staff will provide additional background at the Work Session.
Mayorccjususlumberenvironment
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Former Manufactured Gas Plant
Hopkins, Minnesota
Phase II Investigation
Scope of Work
The subject property, located in Hopkins, Minnesota, is bounded by 11 th Avenue South on the east,
Nine Mile Creek on the west, Excelsior Boulevard (COlmty Road No.3) on the north, and railroad
tracks on the south. The site was occupied by a manufactured gas plant from the turn of the century
to sometime in the late 1920's or 1930's. After the gas plant was sold, the site was used as a Public
Works Department storage area and at least in pali a solid waste landfill in the 1960's. The site is
presently the location of the Justus Lumber Company and a gas station.
This scope of work is designed to evaluate the former manufactured gas plant only. The information
developed will be helpful in evaluating the impacts ofthe landfill also but a full assessment of the
former manufactured gas plant al1d the lal1dfill would require a more extensive evaluation. Also, this
scope of work is the initial evaluation of the former manufactured gas plant site. Further
investigations may be necessary before a response action plan can be prepared.
It is assumed that prior to proceeding with any investigation, the site would be enrolled into the
Minnesota Pollution Control Agency (MPCA) Voluntary Investigation and Cleanup (VI C) Program.
Scope of Work
. Prepare a Work Plan pUrsuant to the VIC Program for submission to the MPCAfor approval.
. Prepare a Site Safety Plan.
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Advance 18 hollow stem auger, standard penetration borings to a depth of 35 feet below
grade. Theborings will be located in and around the area of the former manufactured gas
plant site, which is generally the location of the present Justus Lumber building and to the
north of the building. Most of these borings will be located in the area formerly occupied
by the landfill and will likely encounter landfill debris and methane gas. Soil samples will
be collected at two foot intervals from 5 feet below grade to 35 feet below grade. Soil
samples will be field screened for volatile organics with a photo-ionization detector (PID).
One soil sample will be collected every 5 feet, from 5 feet to 35 feet, for Diesel Range
Organics (DRO) analysis. In addition, three samples per boring will be collected for volatile
organic compounds (VOC's), semi-volatile organic compounds (SVOC's), RCRA metals,
and cyanide. These samples will generally be collected at the fill/natural soil interface, the
endofthe boring (33 to 35 feet), and one other location based on field observations and
screening results.
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Complete six of the above described borings as water table monitoring wells in accordance
with the Minnesota Department of Health (MDH) Well Code and develop these wells. These
wells will be constructed with 10 foot PVC screens and PVC riser pipe to intersect the water
table at about 20 feet below grade.
. Install and develop three monitoring wells designed to monitor the ground water at an
interval of 45 to 50 feet below grade. Due to the potential contaminant sources in the area
(landfill and former manufactured gas plant) these wells will be constructed with a double
casing. The oversized steel casing will be installed to a depth of 3 5 feet below grade. This
casing is designed to prevent cross contamination when installing the monitoring well and
will be sealed to prevent the creation of a pathway for vertical migration of contamination.
After the casing is set, the boring will be continued using hollow stem, standard penetration
boring techniques from 35 to 50 feet below grade. Soil samples will be field screened with
a PID. Soil samples will be collected every 5 feet for DRO analysis and one additional soil
sample per boring will be collected for VOC, SY~C, RCRA metals, and cyanide analysis.
These three borings will be completed as monitoring wells utilizing stainless steel screens
and black steel riser pipe. One of these wells will be located near the present monitoring
well MW - H. The other two will be co-located near two of the water table monitoring wells
described above.
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Soil cuttings and drilling mud generated by soil borings will be containerized and disposed
at a sanitary landfill. Water from developing and purging the wells will be containerized for
disposal in the sanitary sevver,
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· Two rounds of groundwater sampling will be collected from the twelve monitoring wells
which include: the three existing water table weHs,the six new water table wells and the
three fifty-foot monitoring wells. Sampling will be conducted according to MPCA's low
flow sampling techniques. The first round of sampling will include analysis for VOC's,
SVOC's(8270), RCRA metals, and cyanide. The second round of samples will also be
analyzed for the above described parameters however, the second round samples may be
analyzed using more sensitive methods such as; MDH rv1ethod 465 for VOC's and 8270 SIM
for selected SVOC's if, after evaluating the first round results, the more sensitive methods
are deemed appropriate. Depth to groundwater measurements will be conducted at each
sampling event to allow evaluation of groundwater flow direction in both the vertical and
horizontal directions.
· Two rounds of surface water sampling will be conducted from Nine Mile Creek. The
sampling locations will include: an upstream location, near the south end of the box culvert
at County Road No.3; at a downstream location, near the southern property line; and the
storm sewer outlet (if there is flow in the storm sewer). Creek and storm sewer samples will
be analyzed for VOC's and SVOC's (8270). Second rOlmd creek sample SVOC analyses
may be performed by Method 8270 SIM, if appropriate.
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A written report will be prepared upon completion offield work and chemical analysis. The
Remedial Investigation Report will include logs of soil borings, monitoring well construction
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details, results of soil screening and chemical analyses, cross sections, and
opinions/recommendations regarding further environmental work/remediation, as necessary,
As this is an initial investigation, the above scope of work will likely generate additional questions
and issues requiring further assessment in order to allow an understanding of the environmental
impacts of the former manufactured gas plant. The following is a list of some of the additional
investigations that may be recommended:
. Additional ground water monitoring wells including; water table wells, intermediate
depth wells (50 feet deep), top of bedrock wells (screened at the soil bedrock
interface at about 100 feet deep), and bedrock monitoring wells.
· Additional monitoring well sampling rounds
· Hydraulic conductivity tests and pumping tests to evaluate hydrogeologic conditions
for ground water analysis,
· Additional creek water sampling locations and evaluation of creek sediments.
Additional soil borings to determine degree, extent, and depth of ' contamination.
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Test pits to further characterize subsurface conditions.
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Former Manufactured Gas Plant
Hopkins, Minnesota
Phase II Investigation
Estimated Cost
Preparation of Work Plan and Site Safety Plan. . . . . . . . . . . . . . . . . . . . . . . . . . .. $2,500
Soil Borings and Well Installation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. $43,000
Soil Screening and Sampling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. $6,800
Gromldwater and Surface Water Sampling. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. $15,200
Analytical Chemistry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ., $64,500
Report Preparation and Meetings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ., $15,000
Total .................................................... $147,000
Additional investigation will likely be necessary after completing the above scope of work. It is
advised to budget an additional $100,000 to be used for such investigations.
LINDQUIST & VENNUM P.L.L.P.
. ATTORNEYSATLAW
IN DENVER
4200 IDS CENTER liNDQUIST, VENNUM & CHRISTENSEN P.L.L.P.
80 SOUTH EIGHTH STREET 600 17TH STREET, SUITE 2125
MINNEAPOLIS, MINNESOTA 55402-2205 DENVER, COLORADO 80202-5401
TELEPHONE: 612-371-3211 TELEPHONE: 303-573-5900
Jonathan P. Scoll
(612) 371-3546
jscoll@lindquist.com
February 27, 2001
Steven Mielke
City Manager
City of Hopkins
1010 First Street South
Hopkins, MN 55343
Re: Former Manufactured Gas Plant
3301 ph Avenue South
Hopkins, MN
Dear Mr. Mielke:
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The following responds to your request for a discussion of the legal implications and financing
options for contamination apparently associated with a manufactured gas plant ("MGP") on
property located at 330 11th Avenue South in the City of Hopkins ("Justus Lumber Site").
This letter provides: (i) a brief synopsis of the ownership and operational history of the Justus
Lumber Site; (ii) a summary of recent environmental investigations; (iii) an analysis of possible
legal liability ofthe City; (iv) analysis ofthe use of indemnity or environmental insurance to
address this problem and the feasibility of doing so; (v) a synopsis of available third party
funding sources for investigation and cleanup; and (vi) suggestions regarding possible legislative
assistance.
1. SITE HISTORY AND RECENT INVESTIGATIONS.
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From approximately 1910 to 1930, a manufactured gas plant operated on the Justus Lumber Site.
Manufactured gas is heating and illuminating gas produced from coal, through a process called
"coal gasification." Prior to the exploitation of natural gas, and beginning around 1880, almost
every good sized city in America had a manufactured gas plant. It is estimated that at the
industry's peak, in the 1920s and 1930s, there were more than 10,000 such gas plants in
operation in North America and Europe. By the 1940s, such plants began to be replaced by
lower cost natural gas delivered over a network of pipelines, and by the 1950s, coal gasification
had ceased. Closed MGP plants were typically demolished, frequently before the advent of
modem environmental regulations.
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Steve Mielke
February 27,2001
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Byproducts of the gas manufacturing process that could not be recycled, sold or given away were
often simply disposed of on-site or buried. The waste products found at such sites are typically
tars, oils, inorganic spent oxides, benzene, toluene, ethyl benzene, and xylene; volatile organic
compounds ("VOCs"); semi-volatile organic compounds ("SVOCs"); phenolics; polynuclear
aromatic hydrocarbons ("P AHs"); cyanides and metals. The primary waste constituent ofMGPs
is coal tar, a dense, non-aqueous phase liquid ("DNAPL"), which, when present in soil, can
migrate downward through groundwater until a low-permeability layer, such as clay or rock, is
encountered. Thus, pools of coal tar can be encountered at the bottom of an aquifer, becoming a
continuous source of ground water contamination. The toxicity ofMGP coal tars and residues is
little understood and is a concern to environmental agencies, such as the MPCA.
From what is known, the Hopkins MGP facility was a relatively modest operation. The extent of
on-site disposal from the plant at this point is not certain, but does not appear to have been as
extensive as disposal at other, higher profile, MGP sites throughout the State. (See discussion of
other sites, under Section 7, "Legislation," below.)
The facility was apparently constructed by the Village of West Minneapolis or Hopkins to supply
gas to customers. The gas piping system from the plant was entirely local and not connected to
the larger and more extensive gas piping systems of the City of Minneapolis. Real estate records
show the underlying title to the plant site as of May 8, 1918, vested in the Village of West
Minneapolis. On August 14, 1929, title was transferred to the Minneapolis Suburban Gas
Company, and on November 30, 1935, to the Minneapolis Gas Light Company. We assume the
Village is the corporate predecessor of the City of Hopkins and that Minnegasco is the corporate
successor to these companies, but have not done the actual research required into the corporate
history involved.
Available records indicate that the Minneapolis Suburban Gas Company decommissioned the
plant soon after acquisition and tore it down. The gas utility connected the Hopkins gas network
to the mains of the Minneapolis network. After a series of intermediate transfers (e.g., a transfer
on April 29, 1949, to the Minneapolis Moline Company, and a subsequent transfer by that
company to a James Lawrence), the City of Hopkins again acquired the site in November, 1964.
From available evidence, it appears at various times to have been used for sewage treatment as
well as a storage/ maintenance facility for the Hopkins Public Works Department. It was
acquired in September of 1970 by Justus Lumber from the City of Hopkins.
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Steve Mielke
February 27,2001
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2. RECENT ENVIRONMENTAL INVESTIGATIONS.
There have been several environmental investigations ofthe Justus Lumber Site in recent years.
The site was studied by Braun Intertec, which prepared a Site History Review for the City of
Hopkins, dated June 12, 1991. Braun also performed an Environmental Subsurface Investigation
for the City and Justus Lumber Company, dated April 2, 1992. In connection with the
development ofthe Holiday Stationstore, American Engineering Testing performed a
geotechnical investigation, dated May 4, 1992. Braun Intertec prepared a site investigation of
waste deposits on the site for the City, Site Investigation Plan - Hopkins Municipal Waste
Disposal Site, January 15, 1992. These various investigations have identified other
environmental issues affecting the site, such as the use of portions of it for municipal waste
disposal, and for a sewage treatment tank or pond, as well as discharge from a storm sewer
culvert into Nine Mile Creek, and discharge of chlorinated solvents with a suspected off-site
source observed at Nine Mile Creek. This letter does not address those other issues.
The MGP plant came to light through a Phase I environmental investigation by Wenck
Associates in September, 2000, which included analysis ofa 1937 photograph. Following this
Phase I assessment, Wenck performed a limited subsurface investigation of the suspected area of
the MGP facility. On September 25,2000, a series of borings at various depths was carried out,
several of which encountered tar residue at approximately 22 to 23 feet below ground surface.
Analysis ofthe residues indicated constituents associated with an MGP.
The City has since retained American Engineering Testing ("AET") to prepare a formal
investigative work plan and advise it on appropriate technical and regulatory procedures. AET
has had experience with large scale MGP plants in Rochester, Minnesota, and elsewhere. In
January, 2001, AET submitted to the City a proposed "Phase II Investigation - Scope of Work"
outlining an investigative regime to fully assess and characterize the contamination resulting
from the MGP plant and possible impacts therefrom. The AET work plan is necessarily
tentative, since additional discovery in the course of the investigation may warrant further
investigations in turn. The plan proposed entails eighteen borings to a depth of35 feet below
grade to collect soil samples; six ofthese borings would be completed as ground water
monitoring wells, and, in addition, three deep ground water monitoring wells would be installed
at intervals of 45 to 50 feet below grade.
The installation and sampling of the wells, as well as laboratory and analytical work, report
preparation, etc., are estimated to cost between $147,000 and $247,000. The actual cleanup cost
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of the contamination itself cannot be estimated reliably at this time. AET may be able to supply
some "order of magnitude" figures, based on its prior experience.
The City has met with James Justus, a principal of Justus Lumber, the current owner, to explore
timing and potential funding sources for the site. At the moment, Mr. Justus' own timetable
appears to have some flexibility, and it appears that the VIC program enrollment does not create
an immediate regulatory compulsion to address the situation. Mr. Justus has, however, indicated
that at some point in the future, he will need to address the matter, if only in the context of a
required mortgage refinancing. There is, therefore, a degree of latitude available to the City, both
in the short term and on a longer time scale, to responsibly address the issue.
3. LIABILITY OF CITY AS OWNER! OPERATOR OF MGP PLANT.
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It appears that the City, as the owner and operator of the MGP, qualifies as a "person who is
responsible for a release or threatened release of a hazardous substance" on land arid could be
strictly liable, jointly and severally, under the Minnesota Environmental Response and Liability
Act ("MERLA"), Minnesota Statutes, Chapter 115B, for "response costs" incurred by the
MPCA, as well as "reasonable and necessary removal costs" incurred by anyone, as well as
damage to natural resources. Minn. Stat. ~ 115B.04, Subd. 1. In addition, the City may also be
liable for economic loss, death, personal injury or disease suffered by private parties. Minn. Stat.
~ 115B.05, Subd. 1.
There are two possible limitations on the liability of the City in this instance. The first arises
under MERLA itself. Minn. Stat. ~ 115B.04, Subd. 6 provides that it is a "defense to a claim by
a political subdivision or private person for recovery of the cost of its response actions * * * 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 [MPCA] as provided in Section 115B.17, Subd. 12." In other
words, for very old contamination, the "response actions" must be authorized by the Agency
pursuant to its general authority and rulemaking power to prioritize the disposal site in question
and place it on the State's permanent list of priorities, under Minn. Stat. ~ 115B.17, Subd. 13.
We may assume that the Hopkins MGP site is not on this list. Two things need be noted about
this "defense": it applies only vis-a-vis third parties, and not against the MPCA itself. It does
not provide a defense to an involuntary enforcement action, should the MPCA initiate one.
Moreover, the fact that the site is not now on the State's list of priorities does not mean it could
not be placed thereon in the future by administrative rulemaking.
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. The second defense is found under the State's Municipal Tort Claims Act. A political
subdivision, such as the City, has a statutory "cap" on liability. Under Minn. Stat. S 466.04,
Subd. 1 (1), the ordinary liability of a municipality is limited to $300,000 per claimant. However,
in the present instance, Minn. Stat. S 466.04, Subd. 1(3) would provide for a $1,000,000 cap "for
any number of claims arising out of a single occurrence" with respect to claims "arising on or
after January 1,2000." It may be assumed that any claimants would urge that their "claim arose"
after January 1,2000, notwithstanding the release ofthe contaminants decades earlier. The
amount of the limitation in S 466.04, Subd. 1(3) is doubled "when the claim arises out ofthe
release or threatened release of a hazardous substance, whether the claim is brought under
Sections Il5B.Ol to 115B.15 or under any other law." Thus, the liability ofthe City is capped.
with respect to this single MGP site at $2,000,000. (For purposes ofthis letter, the
contamination is assumed to arise out of a single "occurrence," as the term is used in the statute.
Cf. Wesling Manufacturing Co.. Inc. v. Western National Mutual Insurance Company, 581
N.W.2d 39 (Minn. App. 1998), in which a court characterized as a single "occurrence," the
release of a "slug" of solvent into groundwater, for purposes of interpreting an insurance policy.)
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The "universe" of persons to whom Hopkins might be liable include the present or any future
owner ofthe site, the MPCA, in the event ofan involuntary (compulsory) remediation or cleanup
ofthe site, and, at least theoretically, third parties, such as persons on adjoining property,
claiming injury by e.g., contaminated ground water, etc. Each of these three potential claim
areas involves separate analysis, both of the risks involved, from the environmental and
engineering standpoint, and the application of the statutory provisions cited.
The most probable claimant is Justus Lumber, the landowner itself. This person's injury is
immediate and obvious. For example, a landowner seeking to sell or finance the property will
find it materially difficult to do so with the threat and stigma of the MGP contamination. Thus,
an owner, such as Justus, is in the most immediate position of leverage.
Second in order of probability is the possibility of a state-enforced cleanup. The probability of
this needs to be weighed in light of the size and profile of the site, the extremely limited
enforcement resources ofthe MPCA, the current enrollment of the property by Justus in the
MPCA's Voluntary Investigation and Cleanup (VIC) program, and other factors, all of which
suggest that in the short and middle term, the possibility of an "involuntary" proceeding against
the City to compel a cleanup can be safely categorized as low.
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The greatest unknown is the potential for claims by private third parties, such as persons
claiming injury to drinking water, citizens' suits alleging damages to natural resources, etc., as
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Steve Mielke
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well as, possibly, Nine Mile Creek Watershed District (should leaching from the MGP
contamination into Nine Mile Creek be shown). It would be premature to speculate on the
probability of any such claims.
The liability ofthe City, as described (and possibly limited) above, would extend to all three
classes of claimants. As noted, the liability limitation of Minn. Stat. ~ 466.04, Subd. 1(4) applies
"whether the claim is brought under the Minnesota Environmental Response and Liability Act
[Chapter 115B, or MERLA] or under any other law." MERLA is not, strictly speaking, a tort
statute, but rather an independent basis of strict liability similar to the federal Superfund. The
reference to "any other law" can be read to exclude claims based on other theories besides
MERLA. One obvious theory is nuisance. Minnesota has a long line of nuisance cases, which
have found liability in nuisance for pollution of private landowners' water or land, without
regard for, or even consideration. of, the defense of governmental immunity. There areolder
case-law statements that nuisance is not even a matter of negligence or tort law at all. Johnson v.
Citv of Fairmont, 188 Minn. 451, 247 N.W. 572 (1933). However, we believe that the more
modem view, particularly since the enactment of Minn. Stat. ~ 466.04, Subd. 1, would be to
include all theories ofliability, including strict liability and nuisance under the provisions of the
Tort Claims Act.
4. ADDRESSING/ ELIMINATING POTENTIAL LIABILITY.
There are a number of ways to limit or eliminate the potential liabilities associated with the
investigation or physical remediation of the site. These include an indemnification and
insurance, or a combination of the two. We believe that Hopkins, as a unit of government, has
statutory power to agree to the delivery of an indemnity, although any formal opinion on the
matter is a subject most properly addressed by the City Attorney. There have been a fair number
of instances in which cities have agreed to indemnity arrangements in excess of what would
otherwise have been the municipal "cap" on damages under the Municipal Tort Claims Act. For
example, in the case ofKellev v. City ofSt. Paul, 285 N.W.2d 671 (Minn. 1979), the Minnesota
Supreme Court held that the City of St. Paul could voluntarily agree to indemnify an employee
for a tort judgment against him in excess of the statutory limits on municipal liability.
Any indemnity would entail the following variables, which would have to be carefully negotiated
with the prospective indemnitee:
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Steve Mielke
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(a) The parties to be benefitted. For example, would the indemnity be assignable or
pass to a subsequent purchaser from the original indemnitee? Would it cover a
lender?
(b) The time limit: an indemnity should expire by its terms after a fixed period (e.g.,
five years) and specifically provide that only claims received within the indemnity
period would be covered.
(c) What "damages" would the indemnification cover? As noted above, there are
three potential classes of claimants, and the damages asserted by each could be
different. Thus, the indemnity could be limited to defense of an MPCA
enforcement action, but specifically exclude or limit private toxic torts or private
claims for resource damages. In all events, the indemnity should permit the City
to defend outside actions using its own counsel (rather than to reimburse the
indemnitee's own defense expenditures, including attorneys).
(d)
What "deductible" should apply? That is, should the indemnitee be required to
expend its own funds for the first (specified) dollar cost, with the indemnity
covering exposures in excess of that amount? And, as a further cost control, a
cost sharing on any indemnity funding should be considered, i.e., that the
indemnity only cover a specific percentage of the indemnitee's exposure, thereby
providing an incentive to the indemnified party for cost control.
( e) The indemnity should be considered in the context of any environmental
insurance (see Section 5, below, on insurance).
(f) Whose consultant will be used? Normally, the indemnitor, as the one "paying the
piper," gets to select it. The indemnitee may want (and should have) a reasonable
right of approval.
(g)
What constitutes complete performance, i.e., against what benchmark is the
liability of the indemnitor measured? On the governmental enforcement side, it
should be a "no-action! no-association" letter covering the constituents of concern
(or, in the case of an enforcement action, a stipulation of settlement and covenant
not to sue). On the private side (assuming the indemnity covers private toxic
torts, or other civil liability), it would be the payment of a damage award and
expenses oftrial and appeal.
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Steve Mielke
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5. INSURANCE.
The purpose of insurance in this instance would be to provide an owner (and cover as many as
possible successors) with coverage for claims by any third party for on-site or off-site property
damage or bodily injury from the contamination, as well as third-party claims for off-site cleanup
of any pre-existing conditions. Once a Certificate of Completion is obtained from the MPCA,
additional coverages could be provided for cleanup of unknown, pre-existing conditions and for
third party claims for on-site cleanup necessitated by future, more restrictive regulatory standards
or regulations. Thus, an environmental insurance policy would relieve the owner of some of the
risks associated with the current MGP contamination, but would not provide a source of funding
per se. While additional coverage ("cleanup cap cost insurance") indemnifying for unexpected
cleanup costs or overrun conditions is available, we have been advised by an independent
insurance broker, VeNita Schnebele, of Acordia Insurance Brokers of Bloomington, Minnesota,
that such a coverage is often expensive.and unnecessary.
Information obtained from Ms. Schnebele indicates that premiums in the middle five-figure
range would provide coverage for as long as ten years (see summary of Ms. Schnebele's
information attached hereto as Appendix A). The coverage would be on a "claims made" basis,
that is, a claim would have to be made within the policy period itself and not afterwards, as with
"occurrence coverage." Ms. Schnebele has indicated that renewals are available and that at
present, renewal options and renewal premiums are priced competitively, on the theory that once
the contamination has been fully characterized, during the initial coverage, the insurer's risk is
reduced.
It is apparent that any insurance solution would be undertaken not as a substitute, but in
conjunction with a resolution of the ultimate remedy of the site, and a complete settlement of all
liability issues, including a complete release and covenant not to sue in favor ofthe City. It
would be appropriate to consider an insurance solution only after the site is adequately
characterized, remedial costs have been established, and complete sources of funding have been
identified and! or committed.
6. SOURCES OF FUNDING FOR INVESTIGATION AND CLEANUP.
Before any remedy can designed and implemented, the City should identify funding assistance
needed for the investigation and characterization of the site, as well as, over a longer term, funds
available to implement the remedy itself. In addition, funding should be explored for collateral
Doc# 1366045\1
LINDQUIST & VENNUM P.L.L.P.
.
Steve Mielke
February 27, 2001
Page 9
expenses, such as insurance premiums, consultant fees, attorney's fees and the like. The
following is a general discussion of certain funding sources which we have identified:
(a) State or Metropolitan Council Grants. In general, grant monies available through
the Minnesota Department of Trade and Economic Development ("DTED") for environmental
study/ remediation are not likely to be available unless and until a new development on the site is
proposed, since the purpose of the DTED program grants is to spur new private redevelopment of
contaminated commercial/ industrial property. Metropolitan Council funds, e.g., through the Tax
Base Revitalization Account, are likewise keyed to creation of new tax base an~ jobs.
.
(b) Hennepin County. Hennepin County is, at present, the only realistically-available
source of funds which could be tapped for the environmental tasks described in this letter. The
County has a fund with a balance of approximately $6,000,000, derived from a surtax on the
state mortgage registry and deed taxes, authorized by statute, Minn. Stat. SS 383B.80 and
383B.81. The legislation (copy attached as Appendix C) was initially targeted to the remediation
of the National Lead site in St. Louis Park, but, in the opinion of senior Hennepin County staff,
might possibly be available for other uses, including Hopkins. The County is in the process of
formulating guidelines for the use of the funds, and an approach to the County, and possible
participation in this rulemaking/ policy by the City might be helpful.
Hennepin County has also applied to the U.S. Environmental Protection Agency ("EP A") for
grant funds of approximately $150,000. If Excelsior turns out not to need the funding, so that its
project does not go forward, and if a request by Hopkins does not create difficulties with a
neighboring city, and EP A is still willing to fund, Hopkins might be substituted as grant recipient
for that portion, likely to be in the order of $75,000 at most.
.
The County also has a "contaminated lands capital budget," containing several hundred thousand
dollars, in its general fund. This fund is limited to sites that the County either owns or has had a
"vested interest" in. As such, it would appear inapplicable, but there may in fact be a policy
reason for extending it to the Justus Lumber Site. Hopkins and the County had a long
relationship on the disposal of municipal and other wastes along Excelsior Boulevard. For
example, in October of 1945, the County, as the owner of what is now the "Venturi an" site
immediately west ofthe Justus Lumber Site, entered into an agreement with the City allowing
the City to dispose municipal waste on this County-owned land. According to anecdotal
evidence, and the earlier Braun Intertec studies, both the County and City may have used
portions ofthe Venturian property, and very possibly the Justus Lumber Site itself, for waste
disposal. This history, murky as it is, would provide an argument that the County would be
Doc# 1366045\1
LINDQUIST & VENNUM P.L.L.P.
.
Steve Mielke
February 27,2001
Page 10
justified in applying funds out of its "contaminated lands capital budget," to the Justus
Lumber Site.
(c) Minnegasco. There may be some recourse against Minnegasco itself, for certain
costs of investigation and cleanup. There is authority for recovery of such costs for MGP plants
from current natural gas customers of a gas utility, through the utility's rate-setting process. See
Interstate Power Rates Change Request, 574 N.W.2d 408 (Minn. 1998), a Minnesota State
Supreme Court decision. In Interstate Power, our Supreme Court upheld a determination by the
Minnesota Public Utilities Commission ("MPUC") ordering rate recovery from current natural
gas customers for investigation and cleanup costs of two former MGP sites in Rochester and
Albert Lea.
.
Recovery ofMGP cleanup expenses from a utility involves rate making and other considerations
beyond the scope of this letter; it should be noted, however, that other legal standards than those
of "Superfund" may apply. For example, the question of whether a gas utility can recover costs
from customers depends, in part, on whether there is evidence of "imprudence or fault" in the
management sense (not the Superfund sense) on the part of the company. It is assumed inthis
instance, as in Interstate Power, that the utility involved, or its predecessor, was not "imprudent"
or at fault in acquiring the Hopkins MGP site and subsequently demolishing the plant. It
presumably followed the standard practices of the day, by which fault in such an instance would
be measured.
In Interstate Power, the Court looked beyond Superfund issues to the question of whether, as
between the utility's shareholders and! or the rate-paying public, the public should pay the costs
for which the company, as an entity, was undeniably liable. As in Interstate Power, it appears
that a corporate predecessor ofMinnegasco acquired the Hopkins MGP plant during the
Depression, primarily to expand its customer base. The same equitable and policy positions can
be advanced. The modem customers of the utility should bear at least some fraction of the cost
of the hidden contamination associated with the utility's expansion. The fact that the property
itself is no longer owned by the utility (and has not been in decades) should not be determinative.
Interstate Power specifically found that for purposes of the rate making procedure, the site in
question need only have been "used and useful," for rate making purposes, at the time of
pollution, and not at the time of the rate making itself.
.
The larger issue which might be appropriately surfaced in discussions with Minnegasco, as well
as with the MPCA, is the large number ofMGP sites around the state. See the discussion under
legislation, Section 7, below. Cleanup ofthese old sites could, as the Court noted in Interstate
Doc# 1366045\1
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.
.
LINDQUIST & VENNUM P.L.L.P.
Steve Mielke
February 27,2001
Page 11
Power, be passed on to current customers; it is likely that a legislative solution will be based on
this same policy point.
7. LEGISLATION.
There are three legislative alternatives which can be considered regarding the Justus
Lumber Site:
(a) Generic Legislation. A policy argument might be made for former MGP sites
along the lines made in 1994 when the Minnesota Landfill Cleanup Program (Minn. Stat. ~~
115B.39-115B.445) was enacted. At that time, legislators recognized that all the State's
permitted sanitary landfills were an environmental problem. The landfills were typically either
owned by governmental units or by business without sufficient assets to investigate and clean
them up. To address the situation, the legislation adopted a "no fault" approach to cleanup,
doing away with the former fault-related enforcement mechanism, and mandated a State takeover
for responsibility for site cleanup and long term care. Funding for the Landfill Cleanup Program
comes from the State's solid waste fee and from $90,000,000 in general obligation bonds. There
is a dedicated solid waste fund in the State treasury for the program.
There appear to be approximately fifteen MGP sites that could be addressed by generic
legislation for site investigation and cleanup. Appendix B to this letter is a listing and
description of such sites. However, unlike the landfill case, it is by no means certain that the
Legislature will deem MGP sites a problem suitable for a generic legislative remedy:
. MGP sites may not have the priority with the MPCA that old landfills had, at the
time of the Landfill Cleanup Act legislation.
. In many instances, former MGP sites have been redeveloped, so that structures
now exist over the disposal areas. Investigation and cleanup at a redeveloped
property could be very difficult and expensive.
. The MPCA itself is, in general, not currently supporting new legislative initiatives
under the Ventura administration.
. Of the fifteen sites that could be covered by "generic" legislation, Hopkins is the
only one that appears to have a pressing need, prompted by a private owner. The
Doc# 1366045\1
.
.
.
LINDQUIST & VENNUM P.L.L.P.
Steve Mielke
February 27,2001
Page 12
municipalities where the other sites are located may thus have less incentive or
desire to support such legislation.
The problem of paying for a statewide "MGP site cleanup program" may be soluble. The State
solid waste tax, which paY$ for the Landfill Cleanup Program, generates approximately
$53,000,000 per year. $22,000,000 per year is being used to close landfills, but the amount will
almost certainly decline as landfills are cleaned up and closed. $20,000,000 per year goes to the
Minnesota Office of Environmental Assessment, to assist county solid waste programs. This
leaves an excess of approximately $11,000,000 per year. The Legislature is currently
considering using this excess to clean up old municipal dumps and, accordingly, has directed the
MPCA to assess whether there is a pressing need to clean up approximately 1800 old,
unpermitted and largely undocumented dumps in the state. The MPCA staffhave finished an
assessment of these sites and are recommending to the Legislature that no new programs are
needed to clean up these sites, since they do not pose a pressing environmental hazard. Thus, it
would be possible to argue for using some ofthese excess funds for a targeted MGP cleanup
program.
(b) Specific Legislative Approvriation for the Justus Lumber Site Onlv. A narrower
bill, as compared to generic legislation, might be easier to pass. The City of Hopkins can
convincingly argue that the cost of cleanup is well in excess of available local resources.
Legislators would want a credible estimate of cleanup costs and would want assurances of
alternative or supplemental funding sources, such as those discussed in this letter.
As a legislative strategy, it might be worthwhile to ally with an Iron Range city, such as Hibbing
or Virginia, since these municipalities, despite the use ofDTED, Community Development
Block Grants and Redevelopment Grants may still have funding needs. Legislation to assist Iron
Range cities often finds a sympathetic ear at the State Legislature.
(c) Targeted Use of Mortgage Deed Tax. Ifthe National Lead! Golden Auto site is
not going to proceed at any time in the foreseeable future, the City could seek an amendment to
the legislation directing the use of the mortgage and deed tax, mentioned above, Section 6(b), for
the Justus Lumber Site.
There is also, as noted above, the possibility that Hennepin County could agree to pay for a
portion of the Justus cleanup from the existing fund, without the need for legislative amendment.
Conversation should be initiated with Hennepin County on this topic.
Doc# 1366045\1
.
.
.
LINDQUIST & VENNUM P.L.L.P.
Steve Mielke
February 27, 2001
Page 13
In summary, the Justus Lumber Site has the potential for a significant financial exposure on the
part of the City based on MERLA liability. There are, however, a number of ways to address
potential costs: (i) skillful negotiation with private sector stakeholders; (ii) creative pursuit of
outside funding sources and! or insurance; and (iii) possible legislative approaches. These offer
the prospect that the City can sensibly manage this risk and, at the same time advance, insofar as
the blic interest is involved, the salability and ultimate redevelopment of the site.
Doc# 1366045\1
.
.
.
APPENDIX A
Schnebele Memo on Environmental insurance (February 23, 2001)
Insurer
American International Speciality Lines Insurance Company or Gulf
Insurance Company
First Named Insured
City of Hopkins
Second Named Insured
TBD
Additional Insured
TBD
Policy Period
Refer to options
Coverage
Coverage is written on a Claims Made basis
Sudden and gradual pollution coverage
Coverage Description
.
Third-party Claims for on-site Property Damage
Third-party Claims for on-site Bodily Injury
Third-party Claims for off-site cleanup of pre-existing conditions
Third-party Claims for off-site Property Damage
Third-party Claims for off-site Bodily Injury
.
.
Refer to Options offered for Deductibles and Limits of Liability
Coverages and Coverage Section Limits, Deductible Options and One-Time Premiums
Five (5) year term
$5,000,000/ $5,000,000
$10,000,000/ $10,000,000
$50-$60,000
$85-$95,000
$40-$50,000
$75-$85,000
Ten (10) year term
$5,000,000/ $5,000,000
$10,000,000/ $10,000,000
$80-$95,000
$135-$150,000
$65-$80,000
$120-$135,000
Doc# 1366045\1
A-I
.
.
.
The Deductible applies per incident. However, if a single incident involves more than one coverage, the
deductible will only apply once. We would also seek to cap the deductible, for the policy term at three
(3) times the individual deductible.
Insured Property
(Insert Legal Description)
Retro Active Date
Not Applicable
Continuity Date
Policy Inception
We can likely provide additional coverages, for no additional premium, to be triggered upon receipt of
the Certificate of Completion. We need to meet and discuss the specifics before this can be offered.
These coverages would include:
· Discovery of unknown, pre-existing conditions, on-site cleanup
· Third-party Claims for on-site cleanup of pre-existing conditions
Clean-Up Cost Cap Coverage is available, however, it cannot be quoted until the approved Remediation
Action Plan is provided. Program parameters, for discussion purposes only, would be roughly as
follows:
Retention = Cost to clean-up known contaminants
Corridor Retention = 10% - 20% of the cost
Premium Indication
Est. $1,000,000
$100 - $200,000
$45 - $55,000
Policy Conditions
1. Policy Conditions will be confirmed upon request for a formal quotation.
2. Premium is 100% earned after one year.
3. Premium is subject to Minnesota Surplus Lines Tax of3%.
Premium is due within thirty (30) days of the effective date of policy or fifteen (15) days
from the date of binding, whichever comes later. (Premium financing is available.)
The following information will be required:
· Receipt of the approved response action plan - when available
· Receipt of a Certificate of Completion from the MPCA - when available
· Receipt of a completed, signed original application
Doc# 1366045\1
A-2
.
APPENDIX B
INVENTORY OF MANUFACTURED
GAS PLANTS IN MINNESOTA
There are an estimated 34 known MGP sites in Minnesota. Ofthese, an estimated 11 have
been completely cleaned up, or nearly so, I and the remaining 23 appear not yet cleaned up. Seven
of the remaining 23 are actively involved in site investigations. That leave 16 sites that appear not
to be, or in the process of being, cleaned up. One ofthese, Stillwater Site II, is a complete unknown,
even as to location. Thus, we are left with a possible 15 sites for generic legislation (Adams,
Bemidji, Crookston, Duluth (2 sites), Fergus Falls, Mankato, St. Cloud, St. Paul, Winona, Hopkins,
Jasper, Renville, Slayton and West Minneapolis).
Sawmill Run (a Minneapolis site owned by the Chicago, St. Paul, Minneapolis and Omaha
Railroad) is the only MGP site with a Certificate of Completion. (A Certificate of Completion,
issued by the MPCA when response actions have been completed, triggers the protection from
MERLA (state superfund) cleanup liability, to persons who undertake and complete voluntary
cleanup actions and who are not otherwise legally responsible for the contamination. (The Land
Recycling Act of 1992, Minn. Stat. S 115B.175))
.
MPCA staff says no one else has requested a Certificate of Completion. They believe the
reason is that a Certificate of Completion is requested only if the property owner needs it for a real
estate transaction or ifit is needed for some other specific transaction (e.g. obtaining environmental
insurance).
Information for this inventory came from:
· "Survey of Town Gas and By-Product Production and Locations in the U.S. (1880-
1950)", a USEP A Feb., 1985 report which surveyed Brown's Directory of American
Gas Companies (an annual publication which, since 1887, lists statistics for the U.S.
gas industry.)
· MPCA's Master Indices System (delisted superfund sites; RCRA sites; hazardous
waste generators; solid waste permits; current state and federal superfund sites;
Minnesota "No Further Action" sites; state dump inventory; RCRA TSD (treatment,
storage and disposal) sites; closed sanitary landfills; VIC sites; NFRAP (sites which
were on CERCLIS (federal superfund) list, then delisted and given back to the state,
"no further action" issued, slim potential of danger)).
I *Brainerd, Dayton's Bluff Yard, Excelsior, FMC, Fairmont, Minneapolis Gas Works,
Red Wing, Rochester, Sawmill Run, Stillwater Site I, and Willmar. (Stillwater, Red Wing and
. possibly Brainerd are still doing some groundwater monitoring as part of cleanup.)
Doc# 1362665\1
B-1
.
.
.
.
USEPA's CERCLIS (superfund list)
· USEP A's archives ofNFRAP sites
· Interview of a number of environmental consultants who have done MGP work in
Minnesota.
· Discussion with numerous PCA staff
· Review of PC A files on VIC-MGP sites
Doc# 1362665\1
B-2
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Minnesota Statutes 2000, 383B.80
APPENDIX C
http://www.revisor.leg.state.mn.us/stats/3 83B/80 .html
Minnesota Statutes 2000, Table of Chapters
. Table of contents for Chapter 383B
383B.80 Hennepin county deed and mortgage tax.
Subdivision 1. Authority to impose; rate. (a) The
governing body of Hennepin county may impose a mortgage registry
and deed tax.
(b) The rate of the mortgage registry tax equals one cent
for each $100 or fraction of the principal.
(c) The rate of the deed tax equals five cents for each
$500 or fraction of the amount.
Subd. 2. General law provisions apply. The taxes
under this section apply to the same base and must be imposed,
collected, administered, and enforced in the same manner as
provided under chapter 287 for the state mortgage registry and
deed taxes. All the provisions of chapter 287 apply to these
taxes, except the rate is as specified in subdivision 1, the
term "Hennepin county" must be substituted for the "state," and
the revenue must be deposited as provided in subdivision 3.
Subd. 3. Deposit of revenues. All revenues from the
tax are for the use of the Hennepin county board of
commissioners and must be deposited in the county's
environmental response fund under section 383B.81.
.
Subd. 4. Expiration. The authority to impose the tax
under this section expires January 1, 2003.
HIST: 1997 c 231 art 16 s 15
Copyright 2000 by the Office of Revisor of Statutes, State of Minnesota.
.
10fl
02/27/2001 12:44 PM
Minnesota Statutes 2000, 383B.81
http://www.revisor.1eg.state.mn.us/stats/3 83B/81.html
Minnesota Statutes 2000, Table of Chapters
. Table of contents for Chapter 383B
383B.81 Environmental response fund.
Subdivision 1. Creation. An environmental response
fund is created for the purposes specified in this section. The
taxes imposed by section 383B.80 must be deposited in the fund.
The board of county commissioners shall administer the fund
either as a county board, a housing and redevelopment authority,
or a regional rail authority.
Subd. 2. Uses of fund. The fund created in
subdivision 1 must be used for the following purposes:
(1) acquisition through purchase or condemnation of lands
or property which are polluted or contaminated with hazardous
substances;
(2) paying the costs associated with indemnifying or
holding harmless the entity taking title to lands or property
from any liability arising out of the ownership, remediation, or
use of the land or property;
(3) paying for the costs of remediating the acquired land
or property;
(4) paying the costs associated with remediating lands or
property which are polluted or contaminated with hazardous
substances; or
.
(5) paying for the costs associated with improving the
property for economic development, recreational, housing,
transportation or rail traffic.
Subd. 3. Matching funds. In expending funds under
this section the county shall seek matching funds from
contamination cleanup funds administered by the commissioners of
the department of trade and economic development, the
metropolitan council, the federal government, the private sector
and any other source.
Subd. 4. City approval. The county may not expend
funds under this section unless the governing body of the city
in which the site is located approves the project.
Subd. 5. Bonds. The county may pledge the proceeds
from the taxes imposed by section 383B.80 to bonds issued under
this chapter and chapters 398A, 462, 469, and 475.
Subd. 6. priorities. The first priority for the use
of the the environmental response fund created in this section
is to clean up the site located in the city of St. Louis Park
known as NL Industries/Tara Corporation/Golden Auto, EPA I.D. No.
MND097891634 and to provide adequate right-of-way for a portion
of the rail line to replace the 29th street line in the city of
Minneapolis, including making rail improvements, changing the
curve of the railroad track and eliminating a switching
facility, and improving the land for economic development. No
money from the environmental response fund may be expended for
remediating the site until the site has been acquired through
purchase or condemnation.
.
Subd. 7. Land sales. Land or property acquired under
this section may be resold at fair market value. Proceeds from
the sale of the land must be deposited in the environmental
lof2
02/27/2001 12:44 PM
Minnesota Statutes 2000, 383B.81
.
.
.
20f2
http://www.revisor.leg.state.mn.us/stats/383B/81.html
response fund.
Subd. 8. DOT assistance. with respect to the site
described in subdivision 6, the commissioner of transportation
shall collaborate with the county and any affected municipality
by providing technical assistance and support in facilitating
the railroad improvement and testing at that portion of the site
to be used for the railroad improvement.
HIST: 1997 c 231 art 16 s 16
Copyright 2000 by the Office of Revisor of Statutes, State of Minnesota.
02/27/2001 12:44 PM