A brief description of the types of written assurances for protection from liability for agricultural chemicals (pesticides and fertilizers) that may be available to voluntary parties from the Minnesota Department of Agriculture (MDA) under Minnesota Statutes 115B (Minnesota Environmental Response and Liability Act).
All investigations and response actions for agricultural chemical investigations must be reviewed and approved by the MDA Agricultural Voluntary Investigation & Cleanup (AgVIC) staff. The degree of investigation and/or remediation required for a site may vary considerably as a result of the specific written assurance requested. Available written assurances are as follows: 1) Technical Assistance Approval Letters, 2) No Action Letters, 3) No Association Determination Letters, 4) Offsite Source Determination Letters, and 5) Certificates of Completion.
Technical Assistance Approval Letters are used when MDA staff has reviewed plans or reports submitted by a voluntary party relating to the investigation or cleanup of a contaminated property. These types of letters are issued when the voluntary party is solely interested in receiving MDA technical assistance. They may be used when the voluntary party is interested in having MDA determine the adequacy of an investigation, or in having MDA staff serve as a third party reviewer (e.g., to help settle disputes between parties about the need for cleanup on a property). It may also be used in situations where other types of assurances do not apply. Technical Assistance Approval Letters will list the reports included in the review and may contain comments or modifications to the proposed or completed work.
Technical Assistance Approval Letters are not issued when the voluntary party is interested in assurances from the MDA regarding future administrative actions or liability protection. A Technical Assistance Approval Letter protects a voluntary party from associating themselves with the release while conducting approved actions and may be the only type of written assurance available to certain voluntary parties who may not meet statutory qualifications for such assurances.
No Action Letters provide a degree of assurance regarding future Superfund administrative and related enforcement actions (Corrective Action Orders, etc.) by the MDA and is the type of assurance letter most often issued by the MDA. No action letters can be issued to the voluntary party regardless of whether the party is a responsible person or not, as defined by the Minnesota Superfund law. The assurances provided in No Action letters apply only to the parties identified in the Agricultural Voluntary Investigation and Cleanup (AgVIC) Application, unless other parties are explicitly identified, such as lenders and successor/owners.
Examples of cases where No Action Letters may be issued are:
A Limited No Action Letter may be issued depending on the completeness of the investigation or cleanup performed, the specific boundaries of the investigation or cleanup, or an abbreviated list of contaminants analyzed. Examples of cases where Limited No Action Letters may be issued are:
Limited No Action Letters will contain disclaimers stating why they are limited to certain conditions. Please note that sites with potential impacts (determined by MDA staff) that are unaddressed/not investigated, by decision of the voluntary party, will be forwarded to the MDA technical staff for prioritization, which may lead to required follow-up and requested work at some point in the future.
A No Action Letter will list the reports or information that are the basis for issuing the letter. These letters will then indicate that based on the review of the above-mentioned documents the MDA will refrain from authorized but unnecessary administrative or enforcement (Corrective Action Orders, etc.) actions. [Note: This does not preclude other department enforcement response for discovered non-compliance with facility and enforcement regulatory provisions of the Minnesota Pesticide and Fertilizer Laws.] All No Action letters will incorporate some standard disclaimers and limitations which define the application of MDA assurances to the specific circumstances addressed in the letter. One of the disclaimers contained in these letters is the "new information" provision reserving the authority of MDA to take other action if information obtained after issuance of the letter warrants such action. In addition, there may be comments and modifications included on the attachment to the No Action letter. It is the MDA staff’s experience that these letters have been sufficient to allow property transactions to occur.
No Association Determination Letters may be issued when a party wants to develop a site or expand an existing operation and does not want to become associated with a previous release. A No Association Determination Letter is not needed for actions taken in regard to an MDA approved investigation or cleanup providing these actions are conducted in accordance with the MDA approval letter and are carried through to completion.
No Association Determination Letters can only be issued for actions at a property that is subject to contamination from a known release or a threatened release. This means the voluntary party will need to conduct a Phase II ESA that demonstrates the presence of contamination (unless contamination has been documented previously) and submit the investigation results to the MDA for approval. In addition, a Phase I ESA should be completed. The recognized environmental conditions identified in the Phase I at the property will need to be characterized sufficiently to identify any situations which should be addressed in the letter. The voluntary party must also agree to cooperate with future response actions and avoid actions which may contribute to the release.
In order to qualify for a No Association Letter, the requesting voluntary party must provide sufficient information about the current and planned operations to demonstrate that their proposed actions would not be expected to associate the party with the release. Property buyers or builders have requested a No Association Letter for all or some of following proposed actions, with adequate explanation about each:
If the property is being transferred to a new owner to continue the same type of business using or handling agricultural chemicals, the MDA may not be able to issue a No Association Letter to the new owner.
An Off-Site Source Determination Letter may be issued when the voluntary party who owns property has demonstrated, to the satisfaction of the MDA, that the contamination on the subject property results from an off-site source (a neighboring property). A letter for an off-site source may be issued for a property where it is demonstrated, by an approved Phase I and Phase II Investigation Report that:
An Off-site Source Determination Letter will state that the MDA will not take cleanup enforcement action against the voluntary party. However, the statute authorizing these letters requires that the owner of the property will cooperate with any future investigation and cleanup of the release by providing certain items outlined in the Letter. This could include access to the property in the future or granting easements to install and maintain remedial equipment. In addition, the property owner will be required to avoid actions that would interfere with future response actions or contribute to the release.
The Land Recycling Act of 1992 provided that persons who undertake and complete voluntary cleanup actions approved by the MDA, and who are not otherwise legally responsible for the contamination, are protected from liability for cleanup, if the MDA issues a Certificate of Completion for the site. Further amendments in 1993 allow a responsible party to conduct cleanups and gain liability protection for their successors, lenders and other parties who are not otherwise responsible for the release.
Certificates of Completion are only issued after the response actions are approved and completed. Thus, if a property does not require a response action, the property is not eligible for a Certificate of Completion. Because of the broad exclusion of liability offered by a Certification of Completion, generally a more rigorous and comprehensive investigation will be required at sites requesting one. Because this type of investigation may be more rigorous than normally required by the MDA, there may be some costs associated with the investigation that may not be eligible for reimbursement from the Agricultural Chemical Response and Reimbursement Account (ACRRA). The determination of eligible costs is made by the ACRRA Board.
Certificates of Completion based on partial response actions . The MDA may approve partial response action plans (plans that address some, but not all of the contamination at a particular property) if the cleanup includes all actions needed to carry out any reuse or development of the property in a manner that protects public health, welfare and the environment.
Partial Response Action Plans can only be approved when the person conducting the response actions is not otherwise considered a responsible party for the release or threatened release. (A Land Recycling Act cleanup by a responsible party must address all releases and threatened releases at the property). As in Off-Site Source Determinations, Partial Response Action Plans will require the owner of the property to agree to cooperate with any additional cleanup actions needed to complete a full cleanup of all remaining contamination.
It is important to remember that before the MDA can approve a full or partial response action plan for a certificate of completion, the voluntary party must investigate all releases and threatened releases at the property. This means conducting both soil and ground water investigation activities.
For further information please contact the MDA at 651-201-6697.
NOTE: Except for No Action letters, these assurances are issued under discretionary authority expressly provided under Minnesota Statute 115B. No Action letters are also discretionary, but are issued pursuant to the authority of the MDA to exercise discretion in its enforcement action.
Cathy Villas-Horns, Incident Response Supervisor
651-201-6697 or Cathy.Villas-Horns@state.mn.us
Pesticide & Fertilizer Management Division