HF 1612

as introduced - 82nd Legislature (2001 - 2002) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to waters; providing for administrative 
  1.3             penalty orders; modifying water appropriation permit 
  1.4             provisions; establishing fees; providing civil 
  1.5             penalties; amending Minnesota Statutes 2000, sections 
  1.6             103G.271, subdivisions 1, 5, and 5a; and 103G.301, 
  1.7             subdivision 2; proposing coding for new law in 
  1.8             Minnesota Statutes, chapter 103G. 
  1.9   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.10     Section 1.  [103G.252] [ADMINISTRATIVE PENALTY ORDERS.] 
  1.11     The commissioner may issue an order requiring violations to 
  1.12  be corrected and administratively assessing monetary penalties 
  1.13  for violations of chapters 103F and 103G, rules, orders, 
  1.14  agreements, settlements, licenses, registrations, or permits for 
  1.15  activities affecting the course, current, or cross section of 
  1.16  public waters or appropriating or diverting waters of the 
  1.17  state.  The commissioner must follow the procedures in section 
  1.18  103G.253 when issuing an administrative penalty order.  The 
  1.19  maximum monetary amount of an administrative penalty order is 
  1.20  $10,000 for each violator for all violations by that violator 
  1.21  identified in an inspection or review of compliance. 
  1.22     Sec. 2.  [103G.253] [ADMINISTRATIVE PENALTY ORDER 
  1.23  PROCEDURE.] 
  1.24     Subdivision 1.  [CONTENTS OF ORDER.] An order assessing an 
  1.25  administrative penalty under section 103G.252 must include: 
  1.26     (1) a concise statement of the facts alleged to constitute 
  1.27  a violation; 
  2.1      (2) a reference to the law, rule, order, agreement, 
  2.2   settlement, license, registration, or permit that has been 
  2.3   violated; 
  2.4      (3) a statement of the corrective order or the amount of 
  2.5   the administrative penalty to be imposed and the factors upon 
  2.6   which it is based; and 
  2.7      (4) a statement of the person's right to review the order. 
  2.8      Subd. 2.  [AMOUNT OF PENALTY; CONSIDERATIONS.] (a) In 
  2.9   determining the amount or requirements of a penalty under 
  2.10  section 103G.252, the commissioner may consider: 
  2.11     (1) the willfulness of the violation; 
  2.12     (2) the gravity of the violation, including damage to 
  2.13  humans, animals, air, water, land, forests, or other natural 
  2.14  resources of the state; 
  2.15     (3) the history of past violations; 
  2.16     (4) the number of violations; 
  2.17     (5) the economic benefit gained by the person by allowing 
  2.18  or committing the violation; and 
  2.19     (6) other factors as justice may require, if the 
  2.20  commissioner specifically identifies the additional factors in 
  2.21  the commissioner's order. 
  2.22     (b) For a second or subsequent violation, the commissioner 
  2.23  shall, in determining the amount or requirements of a penalty, 
  2.24  consider: 
  2.25     (1) the factors in paragraph (a); 
  2.26     (2) the similarity of the most recent previous violation 
  2.27  and the violation to be penalized; 
  2.28     (3) the time elapsed since the last violation; 
  2.29     (4) the number of previous violations; and 
  2.30     (5) the response of the person to the most recent previous 
  2.31  violation identified. 
  2.32     Subd. 3.  [CORRECTIVE ORDER.] (a) The commissioner may 
  2.33  issue an order requiring the violations cited in the order to be 
  2.34  corrected within 30 calendar days from the date the order is 
  2.35  received.  Corrective orders may require repair, restoration, 
  2.36  replacement, and monetary restitution as determined by the 
  3.1   commissioner. 
  3.2      (b) The person to whom the order was issued shall provide 
  3.3   information to the commissioner before the 31st day after the 
  3.4   order was received demonstrating that the violation has been 
  3.5   corrected or that the person has developed a corrective plan 
  3.6   acceptable to the commissioner.  The commissioner shall 
  3.7   determine whether the violation has been corrected and notify 
  3.8   the person to whom the order was issued of the commissioner's 
  3.9   determination. 
  3.10     Subd. 4.  [PENALTY.] (a) Except as provided in paragraph 
  3.11  (c), if the commissioner determines that the violation has been 
  3.12  corrected or the person to whom the order was issued has 
  3.13  developed a corrective plan acceptable to the commissioner, the 
  3.14  monetary penalty shall be forgiven. 
  3.15     (b) Unless the person requests review of the order under 
  3.16  subdivision 5 before the monetary penalty is due, the penalty in 
  3.17  the order is due and payable: 
  3.18     (1) on the 31st day after the order was received, if the 
  3.19  person to whom the order was issued fails to provide information 
  3.20  to the commissioner showing that the violation has been 
  3.21  corrected or that appropriate steps have been taken toward 
  3.22  correcting the violation; or 
  3.23     (2) if the person to whom the order was issued has provided 
  3.24  information to the commissioner that the commissioner determines 
  3.25  is not sufficient to show that the violation has been corrected 
  3.26  or that appropriate steps have been taken toward correcting the 
  3.27  violation, on the 20th day after the person receives notice of 
  3.28  the commissioner's determination under this clause. 
  3.29     (c) For repeated or serious violations, the commissioner 
  3.30  may issue an order with a monetary penalty that shall not be 
  3.31  forgiven after the corrective action is taken.  The monetary 
  3.32  penalty is due 31 days after the order was received, unless 
  3.33  review of the order under subdivision 5 is requested. 
  3.34     (d) Interest at the rate established in section 549.09 
  3.35  begins to accrue on penalties under this subdivision on the 31st 
  3.36  day after the order with the penalty was received. 
  4.1      Subd. 5.  [EXPEDITED ADMINISTRATIVE HEARING.] (a) Within 30 
  4.2   days after receiving an order or within 20 days after receiving 
  4.3   notice that the commissioner has determined that a violation has 
  4.4   not been corrected or appropriate steps have not been taken 
  4.5   toward correcting the violation, the person to whom the order 
  4.6   was issued may request an expedited hearing, using the 
  4.7   procedures adopted under section 14.51, to review the 
  4.8   commissioner's action.  The hearing request must specifically 
  4.9   state the reasons for seeking review of the order.  The person 
  4.10  to whom the order was issued and the commissioner are the 
  4.11  parties to the expedited hearing.  The commissioner must notify 
  4.12  the person to whom the order was issued of the time and place of 
  4.13  the hearing at least 15 days before the hearing.  The expedited 
  4.14  hearing must be held within 30 days after a request for hearing 
  4.15  has been filed with the commissioner unless the parties agree to 
  4.16  a later date. 
  4.17     (b) All written arguments must be submitted within ten days 
  4.18  following the close of the hearing.  The hearing shall be 
  4.19  conducted according to rules adopted under section 14.51, as 
  4.20  modified by this subdivision.  The office of administrative 
  4.21  hearings may, in consultation with the commissioner of natural 
  4.22  resources, adopt rules specifically applicable to cases under 
  4.23  this section. 
  4.24     (c) The administrative law judge shall issue a report 
  4.25  making recommendations about the commissioner's action to the 
  4.26  commissioner within 30 days following the close of the record.  
  4.27  The administrative law judge may not recommend a change in the 
  4.28  amount of the proposed penalty or corrective order unless the 
  4.29  administrative law judge determines that, based on the factors 
  4.30  in subdivision 2, the monetary penalty or corrective order is 
  4.31  unreasonable. 
  4.32     (d) If the administrative law judge makes a finding that 
  4.33  the hearing was requested solely for purposes of delay or that 
  4.34  the hearing request was frivolous, the commissioner may add to 
  4.35  the amount of the penalty the costs charged to the department of 
  4.36  natural resources by the office of administrative hearings for 
  5.1   the hearing. 
  5.2      (e) If a hearing has been held, the commissioner may not 
  5.3   issue a final order until at least five days after receipt of 
  5.4   the report of the administrative law judge.  The person to whom 
  5.5   the order was issued may, within those five days, comment to the 
  5.6   commissioner on the recommendations and the commissioner must 
  5.7   consider the comments.  The final order may be appealed 
  5.8   according to sections 14.63 to 14.69. 
  5.9      (f) If a hearing has been held and a final order issued by 
  5.10  the commissioner, the penalty must be paid or the corrective 
  5.11  action commenced within 30 days after the date the final order 
  5.12  is received, unless review of the final order is requested under 
  5.13  sections 14.63 to 14.69.  If review is not requested or the 
  5.14  order is reviewed and upheld, the amount due is the penalty, 
  5.15  together with interest accruing from 31 days after the original 
  5.16  order was received at the rate established in section 549.09. 
  5.17     Subd. 6.  [ALTERNATIVE DISPUTE RESOLUTION.] In addition to 
  5.18  review under subdivision 5, the commissioner may enter into 
  5.19  mediation or other alternative dispute resolution concerning an 
  5.20  order issued under this section if the commissioner and the 
  5.21  person to whom the order was issued both agree to mediation or 
  5.22  other alternative dispute resolution. 
  5.23     Subd. 7.  [ENFORCEMENT.] (a) The attorney general may 
  5.24  proceed on behalf of the state to enforce penalties that are due 
  5.25  and payable under this section in any manner provided by law for 
  5.26  the collection of debts. 
  5.27     (b) The attorney general may petition the district court to 
  5.28  file the administrative order as an order of the court.  At any 
  5.29  court hearing, the only issues parties may contest are 
  5.30  procedural and notice issues.  Once entered, the administrative 
  5.31  order may be enforced in the same manner as a final judgment of 
  5.32  the district court. 
  5.33     (c) If a person fails to pay the penalty or comply with a 
  5.34  corrective order, the attorney general may bring a civil action 
  5.35  in district court seeking payment of the penalties, injunctive 
  5.36  relief, or other appropriate relief including monetary damages, 
  6.1   attorney fees, costs, and interest. 
  6.2      Subd. 8.  [REVOCATION AND SUSPENSION OF PERMIT, LICENSE, OR 
  6.3   REGISTRATION.] If a person fails to pay a penalty owed under 
  6.4   this section, the commissioner may revoke or refuse to reissue 
  6.5   or renew a permit, license, or registration issued by the 
  6.6   commissioner. 
  6.7      Subd. 9.  [CUMULATIVE REMEDY.] The authority of the 
  6.8   commissioner to issue a corrective order assessing penalties is 
  6.9   in addition to other remedies available under statutory or 
  6.10  common law, except that the state may not seek civil penalties 
  6.11  under any other provision of law for the violations covered by 
  6.12  the administrative penalty order.  The payment of a penalty does 
  6.13  not preclude the use of other enforcement provisions, under 
  6.14  which penalties are not assessed, in connection with the 
  6.15  violation for which the penalty was assessed. 
  6.16     Sec. 3.  [103G.254] [RECOVERY OF LITIGATION COSTS AND 
  6.17  EXPENSES.] 
  6.18     In any judicial action brought by the attorney general for 
  6.19  civil penalties, injunctive relief, or an action to compel 
  6.20  performance under section 103G.253, if the state finally 
  6.21  prevails and if the proven violation was willful, the state, in 
  6.22  addition to other penalties provided by law, may be allowed an 
  6.23  amount determined by the court to be the reasonable value of all 
  6.24  or part of the litigation expenses incurred by the state.  In 
  6.25  determining the amount of the litigation expenses to be allowed, 
  6.26  the court shall give consideration to the economic circumstances 
  6.27  of the defendant. 
  6.28     Sec. 4.  Minnesota Statutes 2000, section 103G.271, 
  6.29  subdivision 1, is amended to read: 
  6.30     Subdivision 1.  [PERMIT REQUIRED.] (a) Except as provided 
  6.31  in paragraph (b), the state, a person, partnership, or 
  6.32  association, private or public corporation, county, 
  6.33  municipality, or other political subdivision of the state may 
  6.34  not appropriate or use waters of the state without a water use 
  6.35  permit from the commissioner.  
  6.36     (b) This section does not apply to use for a water supply 
  7.1   by less than 25 persons for domestic purposes.  
  7.2      (c) The commissioner may issue a state general permit for 
  7.3   temporary appropriation of water to a governmental subdivision 
  7.4   or to the general public for classes of activities that have 
  7.5   minimal impact upon waters of the state.  The general permit may 
  7.6   authorize more than one project and the appropriation or use of 
  7.7   more than one source of water.  Water use permit processing fees 
  7.8   and reports required under subdivision 6 and section 103G.281, 
  7.9   subdivision 3, are required for each project or water source 
  7.10  that is included under a general permit, except that no fee or 
  7.11  report is required for uses totaling less than 15,000,000 
  7.12  gallons annually. 
  7.13     Sec. 5.  Minnesota Statutes 2000, section 103G.271, 
  7.14  subdivision 5, is amended to read: 
  7.15     Subd. 5.  [PROHIBITION ON ONCE-THROUGH WATER USE PERMITS.] 
  7.16  (a) The commissioner may not, after December 31, 1990, issue a 
  7.17  water use permit to increase the volume of appropriation from a 
  7.18  groundwater source for a once-through cooling system using in 
  7.19  excess of 5,000,000 gallons annually. 
  7.20     (b) Except as provided in paragraph (c), Once-through 
  7.21  system water use permits using in excess of 5,000,000 gallons 
  7.22  annually, must be terminated by the commissioner by the end of 
  7.23  their design life but not later than December 31, 2010, unless 
  7.24  the discharge is into a public water basin within a nature 
  7.25  preserve approved by the commissioner and established prior to 
  7.26  January 1, 2001.  Existing once-through systems must not be 
  7.27  expanded and are required to convert to water efficient 
  7.28  alternatives within the design life of existing equipment.  
  7.29     (c) Paragraph (b) does not apply where groundwater 
  7.30  appropriated for use in a once-through system is subsequently 
  7.31  discharged into a wetland or public waters wetland owned or 
  7.32  leased by a nonprofit corporation if: 
  7.33     (1) the membership of the corporation includes a local 
  7.34  government unit; 
  7.35     (2) the deed or lease requires that the area containing the 
  7.36  wetland or public waters wetland be maintained as a nature 
  8.1   preserve; 
  8.2      (3) public access is allowed consistent with the area's 
  8.3   status as a nature preserve; and 
  8.4      (4) by January 1, 2003, the permittee incurs costs of 
  8.5   developing the nature preserve and associated facilities that, 
  8.6   when discounted to 1992 dollars, exceed twice the projected 
  8.7   cost, as determined by the commissioner, of the conversion 
  8.8   required in paragraph (b), discounted to 1992 dollars. 
  8.9   The costs incurred under clause (4) may include preparation of 
  8.10  plans and designs; site preparation; construction of wildlife 
  8.11  habitat structures; planting of trees and other vegetation; 
  8.12  installation of signs and markers; design and construction of 
  8.13  trails, docks, and access structures; and design and 
  8.14  construction of interpretative facilities.  The permittee shall 
  8.15  submit an estimate of the cost of the conversion required in 
  8.16  paragraph (b) to the commissioner by January 1, 1993, and shall 
  8.17  annually report to the commissioner on the progress of the 
  8.18  project and the level of expenditures. 
  8.19     Sec. 6.  Minnesota Statutes 2000, section 103G.271, 
  8.20  subdivision 5a, is amended to read: 
  8.21     Subd. 5a.  [MAINTENANCE OF SURFACE WATER LEVELS.] Except as 
  8.22  provided in subdivision 5, paragraph (c) (b), the commissioner 
  8.23  shall, by January 31, 1994, revoke all existing permits, and may 
  8.24  not issue new permits, for the appropriation or use of 
  8.25  groundwater in excess of 10,000,000 gallons per year for the 
  8.26  primary purpose of maintaining or increasing surface water 
  8.27  levels in the seven-county metropolitan area and in other areas 
  8.28  of concern as determined by the commissioner.  This subdivision 
  8.29  does not apply until January 1, 1998, to a municipality that, by 
  8.30  January 1, 1994, submits a plan acceptable to the commissioner 
  8.31  for maintaining or increasing surface water levels using sources 
  8.32  other than groundwater.  
  8.33     Sec. 7.  Minnesota Statutes 2000, section 103G.301, 
  8.34  subdivision 2, is amended to read: 
  8.35     Subd. 2.  [PERMIT APPLICATION FEES.] (a) An application for 
  8.36  a permit authorized under this chapter, and each request to 
  9.1   amend or transfer an existing permit, must be accompanied by a 
  9.2   permit application fee to defray the costs of receiving, 
  9.3   recording, and processing the application or request to amend or 
  9.4   transfer.  
  9.5      (b) The fee to apply for a permit to appropriate water, a 
  9.6   permit to construct or repair a dam that is subject to dam 
  9.7   safety inspection, or a state general permit or to apply for the 
  9.8   state water bank program is $75.  The application fee for a 
  9.9   permit to work in public waters or to divert waters for mining 
  9.10  must be at least $75, but not more than $500, according to a 
  9.11  schedule of fees adopted under section 16A.1285.