HF 789

1st Engrossment - 84th Legislature (2005 - 2006) Posted on 12/15/2009 12:00am

A bill for an act
relating to waters; providing for administrative
penalty orders; providing civil penalties; requiring
an implementation plan; providing for expedited
rulemaking; proposing coding for new law in Minnesota
Statutes, chapter 103G.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

new text begin [103G.252] ADMINISTRATIVE PENALTY ORDERS.
new text end

new text begin The commissioner may issue an order requiring violations to
be corrected and administratively assessing monetary penalties
for violations of chapters 103F and 103G, rules, orders,
agreements, settlements, licenses, registrations, or permits for
activities affecting the course, current, or cross section of
public waters or appropriating or diverting waters of the
state. The commissioner must follow the procedures in section
103G.253 when issuing an administrative penalty order. The
maximum monetary amount of an administrative penalty order is
$10,000 for each violator for all violations by that violator
identified in an inspection or review of compliance.
new text end

Sec. 2.

new text begin [103G.253] ADMINISTRATIVE PENALTY ORDER
PROCEDURE.
new text end

new text begin Subdivision 1. new text end

new text begin Contents of order. new text end

new text begin An order assessing an
administrative penalty under section 103G.252 must include:
new text end

new text begin (1) a concise statement of the facts alleged to constitute
a violation;
new text end

new text begin (2) a reference to the law, rule, order, agreement,
settlement, license, registration, or permit that has been
violated;
new text end

new text begin (3) a statement of the corrective order and the amount of
the administrative penalty to be imposed and the factors upon
which it is based; and
new text end

new text begin (4) a statement of the person's right to review the order.
new text end

new text begin Subd. 2. new text end

new text begin Amount of penalty; considerations. new text end

new text begin (a) In
determining the amount or requirements of a penalty under
section 103G.252, the commissioner may consider:
new text end

new text begin (1) the willfulness of the violation;
new text end

new text begin (2) the gravity of the violation, including damage to
humans, animals, air, water, land, forests, or other natural
resources of the state;
new text end

new text begin (3) the history of past violations;
new text end

new text begin (4) the number of violations;
new text end

new text begin (5) the economic benefit gained by the person by allowing
or committing the violation; and
new text end

new text begin (6) other factors as justice may require, if the
commissioner specifically identifies the additional factors in
the commissioner's order.
new text end

new text begin (b) For a second or subsequent violation, the commissioner
shall, in determining the amount or requirements of a penalty,
consider:
new text end

new text begin (1) the factors in paragraph (a);
new text end

new text begin (2) the similarity of the most recent previous violation
and the violation to be penalized;
new text end

new text begin (3) the time elapsed since the last violation;
new text end

new text begin (4) the number of previous violations; and
new text end

new text begin (5) the response of the person to the most recent previous
violation identified.
new text end

new text begin Subd. 3. new text end

new text begin Corrective order. new text end

new text begin (a) The commissioner may
issue an order requiring the violations cited in the order to be
corrected within the time period specified in the order.
Corrective orders may require repair, restoration, replacement,
and monetary restitution as determined by the commissioner.
new text end

new text begin (b) The person to whom the order was issued shall provide
information to the commissioner before the 31st day after the
order was received demonstrating that the violation has been
corrected or that the person has developed a corrective plan.
The commissioner shall determine whether the violation has been
corrected or whether the corrective plan is acceptable and
notify the person to whom the order was issued of the
commissioner's determination.
new text end

new text begin Subd. 4. new text end

new text begin Penalty. new text end

new text begin (a) Except as provided in paragraph
(c), if the commissioner determines that the violation has been
corrected or the person to whom the order was issued has
developed a corrective plan acceptable to the commissioner, the
monetary penalty may be forgiven in whole or in part.
new text end

new text begin (b) Unless the person requests review of the order under
subdivision 5 before the monetary penalty is due, the penalty in
the order is due and payable on the 31st day after the order was
received.
new text end

new text begin (c) For repeated or serious violations, the commissioner
may issue an order with a monetary penalty that shall not be
forgiven after the corrective action is taken.
new text end

new text begin (d) Interest at the rate established in section 549.09
begins to accrue on penalties under this subdivision on the 31st
day after the order with the penalty was received.
new text end

new text begin Subd. 5. new text end

new text begin Expedited administrative hearing. new text end

new text begin (a) Within 30
days after receiving an order, the person to whom the order was
issued may request an expedited hearing, using the procedures
adopted under section 14.51, to review the commissioner's
action. The hearing request must specifically state the reasons
for seeking review of the order. The person to whom the order
was issued and the commissioner are the parties to the expedited
hearing. The commissioner must notify the person to whom the
order was issued of the time and place of the hearing at least
15 days before the hearing. The expedited hearing must be held
within 30 days after a request for hearing has been filed with
the commissioner unless the parties agree to a later date.
new text end

new text begin (b) All written arguments must be submitted within ten days
following the close of the hearing. The hearing shall be
conducted according to rules adopted under section 14.51, as
modified by this subdivision. The Office of Administrative
Hearings may, in consultation with the commissioner of natural
resources, adopt rules specifically applicable to cases under
this section.
new text end

new text begin (c) The administrative law judge shall issue a report
making recommendations about the commissioner's action to the
commissioner within 30 days following the close of the record.
The administrative law judge may not recommend a change in the
amount of the proposed penalty or corrective order unless the
administrative law judge determines that, based on the factors
in subdivision 2, the monetary penalty or corrective order is
unreasonable.
new text end

new text begin (d) If the administrative law judge makes a finding that
the hearing was requested solely for purposes of delay or that
the hearing request was frivolous, the commissioner may add to
the amount of the penalty the costs charged to the Department of
Natural Resources by the Office of Administrative Hearings for
the hearing.
new text end

new text begin (e) If the administrative law judge issues a report that
recommends dismissal of the order assessing the administrative
penalty, the commissioner must refund the costs charged to the
person receiving the order by the Office of Administrative
Hearings for the hearing and reasonable and necessary attorney
fees incurred for the hearing. For purposes of this paragraph,
the administrative law judge may recommend attorney fees to be
refunded, not to exceed the amount of the penalty order.
new text end

new text begin (f) If a hearing has been held, the commissioner may not
issue a final order until at least five days after receipt of
the report of the administrative law judge. The person to whom
the order was issued may, within those five days, comment to the
commissioner on the recommendations and the commissioner must
consider the comments. The final order may be appealed
according to sections 14.63 to 14.69.
new text end

new text begin (g) If a hearing has been held and a final order issued by
the commissioner, the penalty must be paid within 30 days after
the date the final order is received and the corrective action
must be completed within the time period specified by the final
order, unless review of the final order is requested under
sections 14.63 to 14.69. If review is not requested or the
order is reviewed and upheld, the amount due is the penalty,
together with interest accruing from 31 days after the original
order was received at the rate established in section 549.09.
new text end

new text begin Subd. 6. new text end

new text begin Alternative dispute resolution. new text end

new text begin In addition to
review under subdivision 5, the commissioner may enter into
mediation or other alternative dispute resolution concerning an
order issued under this section if the commissioner and the
person to whom the order was issued both agree to mediation or
other alternative dispute resolution.
new text end

new text begin Subd. 7. new text end

new text begin Enforcement. new text end

new text begin (a) The attorney general may
proceed on behalf of the state to enforce penalties that are due
and payable under this section in any manner provided by law for
the collection of debts.
new text end

new text begin (b) The attorney general may petition the district court to
file the administrative order as an order of the court. At any
court hearing, the only issues parties may contest are
procedural and notice issues. Once entered, the administrative
order may be enforced in the same manner as a final judgment of
the district court.
new text end

new text begin (c) If a person fails to pay the penalty or comply with a
corrective order, the attorney general may bring a civil action
in district court seeking payment of the penalties, injunctive
relief, or other appropriate relief including monetary damages,
attorney fees, costs, and interest.
new text end

new text begin Subd. 8. new text end

new text begin Revocation and suspension of permit, license, or
registration. new text end

new text begin If a person fails to pay a penalty owed under
this section, the commissioner may revoke or refuse to reissue
or renew a permit, license, or registration issued by the
commissioner.
new text end

new text begin Subd. 9. new text end

new text begin Cumulative remedy. new text end

new text begin The authority of the
commissioner to issue a corrective order assessing penalties is
in addition to other remedies available under statutory or
common law, except that the state may not seek civil penalties
under any other provision of law for the violations covered by
the administrative penalty order. The payment of a penalty does
not preclude the use of other enforcement provisions, under
which penalties are not assessed, in connection with the
violation for which the penalty was assessed.
new text end

Sec. 3.

new text begin [103G.254] RECOVERY OF LITIGATION COSTS AND
EXPENSES.
new text end

new text begin In any judicial action brought by the attorney general for
civil penalties, injunctive relief, or an action to compel
performance under section 103G.253, if the state finally
prevails and if the proven violation was willful, the state, in
addition to other penalties provided by law, may be allowed an
amount determined by the court to be the reasonable value of all
or part of the litigation expenses incurred by the state. In
determining the amount of the litigation expenses to be allowed,
the court shall give consideration to the economic circumstances
of the defendant.
new text end

Sec. 4. new text begin IMPLEMENTATION PLAN; RULEMAKING EXEMPTION.
new text end

new text begin The commissioner of natural resources shall prepare a plan
to implement the administrative penalty order according to
sections 1 to 3. The commissioner may use the expedited
rulemaking process in Minnesota Statutes, section 14.389, to
adopt the plan.
new text end