2nd Engrossment - 79th Legislature (1995 - 1996) Posted on 12/15/2009 12:00am
1.1 A bill for an act 1.2 relating to commerce; petroleum tank release cleanup; 1.3 regulating reimbursement; providing enforcement 1.4 authority to the commissioner of commerce; making 1.5 various technical changes; amending Minnesota Statutes 1.6 1994, sections 115C.02, by adding a subdivision; 1.7 115C.03, subdivision 8; 115C.06; and 115C.09, as 1.8 amended; Minnesota Statutes 1995 Supplement, sections 1.9 115C.02, subdivision 11a; 115C.092, subdivision 1; 1.10 115C.10, subdivision 1; 115C.11, subdivision 1; and 1.11 115C.12; proposing coding for new law in Minnesota 1.12 Statutes, chapter 115C; repealing Minnesota Statutes 1.13 1994, section 115C.11, subdivisions 3 and 4; Minnesota 1.14 Statutes 1995 Supplement, section 115C.11, subdivision 1.15 2. 1.16 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 1.17 Section 1. Minnesota Statutes 1994, section 115C.02, is 1.18 amended by adding a subdivision to read: 1.19 Subd. 2a. [APPLICANT.] "Applicant" means a person eligible 1.20 under section 115C.09 to receive reimbursement from the fund. 1.21 Sec. 2. Minnesota Statutes 1995 Supplement, section 1.22 115C.02, subdivision 11a, is amended to read: 1.23 Subd. 11a. [PREREMOVAL SITE ASSESSMENT.] "Preremoval site 1.24 assessment" means actions defined in section 115C.092 which are 1.25 taken by a registered consultant or the consultant's 1.26 subcontractor prior to the removal of a
petroleum storagetank 1.27 in order to determine whether a release has occurred in the area 1.28 immediately surrounding the tank. 1.29 Sec. 3. Minnesota Statutes 1994, section 115C.03, 1.30 subdivision 8, is amended to read: 2.1 Subd. 8. [CLASSIFICATION OF DATA.] Except as otherwise 2.2 provided in this subdivision, data obtained from a person under 2.3 subdivision 6 or 7 is public data as defined in section 13.02. 2.4 Upon certification by the subject of the data that the data 2.5 relates to sales figures, processes or methods of production 2.6 unique to that person, or information that would tend to 2.7 adversely affect the competitive position of that person, the 2.8 commissioner shall classify the data as private or nonpublic 2.9 data as defined in section 13.02. Data classified as private or 2.10 nonpublic under this subdivision may be disclosed when relevant 2.11 in a proceeding under sections 115C.03 to 115C.10this chapter. 2.12 Sec. 4. Minnesota Statutes 1994, section 115C.06, is 2.13 amended to read: 2.14 115C.06 [EFFECT ON OTHER LAW.] 2.15 Subdivision 1. [ACTIONS UNDER CHAPTER 115B.] Sections2.16 115C.03 to 115C.10 doThis chapter does not limit any actions 2.17 initiated by the agency under chapter 115B. 2.18 Subd. 2. [DUTY TO NOTIFY AND TAKE ACTION FOR RELEASE.] 2.19 Sections 115C.03 to 115C.10 doThis chapter does not limit a 2.20 person's duty to notify the agency and take action related to a 2.21 release as provided in section 115.061. 2.22 Sec. 5. Minnesota Statutes 1994, section 115C.09, as 2.23 amended by Laws 1995, chapter 240, article 1, sections 4, 5, 6, 2.24 and 7, is amended to read: 2.25 115C.09 [REIMBURSEMENT TO RESPONSIBLE AND OTHER PERSONS.] 2.26 Subdivision 1. [REIMBURSABLE COSTS.] (a) The board shall 2.27 provide partialreimbursement to eligible responsible2.28 personsapplicants for reimbursable costs incurred after June 4,2.29 1987. 2.30 (b) The following costs are reimbursable for purposes of 2.31 this sectionchapter: 2.32 (1) corrective action costs incurred by the responsible2.33 personapplicant and documented in a form prescribed by the 2.34 board, except the costs related to the physical removal of a 2.35 tank; 2.36 (2) costs that the responsible person is legally obligated 3.1 to pay as damages to third parties for bodily injury, property 3.2 damage, or corrective action costs incurred by a third party 3.3 caused by a release where the responsible person's liability for 3.4 the costs has been established by a court order , consent decree,3.5 or acourt-approved stipulation ofsettlement approved before3.6 May 11, 1994, for which the responsible party has assigned its3.7 rights to reimbursement under this section to a third-party3.8 claimant; and3.9 (3) up to 180 days worth of interest costs ,associated with 3.10 the financing of corrective action and incurred by the applicant 3.11 in a written financing contract signed by the applicant and 3.12 executed after May 25, 1991 , associated with the financing of3.13 corrective action. Interest costs are not eligible for 3.14 reimbursement to the extent they exceed two percentage points 3.15 above the adjusted prime rate charged by banks, as defined in 3.16 section 270.75, subdivision 5, at the time the financing 3.17 contract was executed; and 3.18 (4) preremoval site assessment costs incurred by the 3.19 applicant and eligible for reimbursement under section 115C.092. 3.20 (c) A cost for liability to a third party is incurred by 3.21 the responsible person when an order or consent decree3.22 establishing the liabilitycourt-approved settlement is entered 3.23 that sets forth the specific costs attributed to the liability. 3.24 Except as provided in this paragraph, reimbursement may not be 3.25 made for costs of liability to third parties until all eligible 3.26 corrective action costs have been reimbursed. If a corrective 3.27 action is expected to continue in operation for more than one 3.28 year after it has been fully constructed or installed, the board 3.29 may estimate the future expense of completing the corrective 3.30 action and, after subtracting this estimate from the total 3.31 reimbursement available under subdivision 3, reimburse the costs 3.32 for liability to third parties. The total reimbursement may not 3.33 exceed the limit set forth in subdivision 3. 3.34 Subd. 2. [RESPONSIBLE PERSON ELIGIBILITY.] (a)A 3.35 responsible person who has incurred reimbursable costs after 3.36 June 4, 1987, in response to a release, may apply to the board 4.1 for partialreimbursement under subdivision 3 and rules adopted4.2 by the board. 4.3 Subd. 2a. [APPLICATION FOR REIMBURSEMENT.] (a) The board 4.4 may consider applications for reimbursement at the following 4.5 stages: 4.6 (1) after the commissioner approves corrective actions 4.7 related to soil excavation and treatment or after the 4.8 commissioner determines that further soil excavation and 4.9 treatment should not be done. Remedial investigation costs such 4.10 as soil borings monitoring wells, and well searches are 4.11 reimbursable at this stage, but corrective action costs relating 4.12 to the construction and installation of a comprehensive 4.13 corrective action design system are not; and 4.14 (2) after the commissioner determines that the corrective4.15 actions described in clause (1) have been fully constructed,4.16 installed, or completed;4.17 (3)after the commissioner approves a comprehensive plan 4.18 for corrective action that will adequately address the entire 4.19 release, including groundwater contamination if necessary ;4.20 (4) after the commissioner determines that the corrective4.21 action necessary to adequately address the release has been4.22 fully constructed or installed; and4.23 (5) periodically afterward as the corrective action4.24 continues operation, but no, for corrective action costs related 4.25 to the construction and installation of a comprehensive 4.26 corrective action design system. An applicant shall not submit 4.27 an application for reimbursement more frequently than four times 4.28 per 12-month period unless the application is for more than 4.29 $2,000 in reimbursement. 4.30 (b) The commissioner shall review a plan, and provide an 4.31 approval or disapproval to the responsible personapplicant and 4.32 the board, within 60 days in the case of a plan submitted under 4.33 paragraph (a), clause (1), and within 120 days in the case of a 4.34 plan submitted under paragraph (a), clause (3)(2), or the 4.35 commissioner shall explain to the board why additional time is 4.36 necessary. The board shall consider a complete application 5.1 within 60 days of submission of the application under paragraph 5.2 (a), clausesclause (1) and (2), and within 120 days of 5.3 submission of the application under paragraph (a), clauses (3)5.4 and (4)clause (2), or the board shall explain for the record 5.5 why additional time is necessary. For purposes of the preceding 5.6 sentence, board consideration of an application is timely if it 5.7 occurs at the regularly scheduled meeting following the 5.8 deadline. Board staff may review applications submitted to the 5.9 board simultaneous toat the same time the commissioner's5.10 commissioner consideration ofconsiders the appropriateness of 5.11 the corrective action, but the board may not act on the 5.12 application until after the commissioner's approval is received. 5.13 (c) A reimbursement may not be made unless the board 5.14 determines that the commissioner has determined that the 5.15 corrective action was appropriate in terms of protecting public 5.16 health, welfare, and the environment. 5.17 Subd. 3. [REIMBURSEMENTS; SUBROGATION; APPROPRIATION.] (a) 5.18 The board shall reimburse a responsible person who is eligible5.19 under subdivision 2an eligible applicant from the fund in the 5.20 following amounts: 5.21 (1) 90 percent of the total reimbursable costs on the first 5.22 $250,000 and 75 percent on any remaining costs in excess of 5.23 $250,000 on a site; or 5.24 (2) for corrective actions at a residential site used as a 5.25 permanent residence at the time the release was discovered, 92.5 5.26 percent of the total reimbursable costs on the first $100,000 5.27 and 100 percent of any remaining costs in excess of $100,000. 5.28 Not more than $1,000,000 may be reimbursed for costs 5.29 associated with a single release, regardless of the number of 5.30 persons eligible for reimbursement, and not more than $2,000,000 5.31 may be reimbursed for costs associated with a single tank 5.32 facility. 5.33 (b) A reimbursement may not be made from the fund under 5.34 this subdivisionchapter until the board has determined that the 5.35 costs for which reimbursement is requested were actually 5.36 incurred and were reasonable. 6.1 (c) When an applicant has obtained responsible competitive 6.2 bids or proposals according to rules promulgated under this 6.3 chapter prior to June 1, 1995, the eligible costs for the tasks, 6.4 procedures, services, materials, equipment, and tests of the low 6.5 bid or proposal are presumed to be reasonable by the board, 6.6 unless the costs of the low bid or proposal are substantially in 6.7 excess of the average costs charged for similar tasks, 6.8 procedures, services, materials, equipment, and tests in the 6.9 same geographical area during the same time period. 6.10 (d) When an applicant has obtained a minimum of two 6.11 responsible competitive bids or proposals on forms prescribed by 6.12 the board and where the rules promulgated under this chapter 6.13 after June 1, 1995, designate maximum costs for specific tasks, 6.14 procedures, services, materials, equipment and tests, the 6.15 eligible costs of the low bid or proposal are deemed reasonable 6.16 if the costs are at or below the maximums set forth in the rules. 6.17 (e) Costs incurred for change orders executed as prescribed 6.18 in rules promulgated under this chapter after June 1, 1995, are 6.19 presumed reasonable if the costs are at or below the maximums 6.20 set forth in the rules, unless the costs in the change order are 6.21 above those in the original bid or proposal or are 6.22 unsubstantiated and inconsistent with the process and standards 6.23 required by the rules. 6.24 (f) A reimbursement may not be made from the fund under6.25 this subdivisionin response to either an initial or 6.26 supplemental application for costs incurred after June 4, 1987, 6.27 that are payable under an applicable insurance policy, except 6.28 that if the board finds that the responsible personapplicant 6.29 has made reasonable efforts to collect from an insurer and 6.30 failed, the board shall reimburse the responsible person under6.31 this subdivisionapplicant. 6.32 (g) If the board reimburses a responsible personan 6.33 applicant for costs for which the responsible personapplicant 6.34 has petroleum tank leakage or spillinsurance coverage, the 6.35 board is subrogated to the rights of the responsible person6.36 applicant with respect to that insurance coverage, to the extent 7.1 of the reimbursement by the board. The board may request the 7.2 attorney general to bring an action in district court against 7.3 the insurer to enforce the board's subrogation rights. 7.4 Acceptance by a responsible personan applicant of reimbursement 7.5 constitutes an assignment by the responsible personapplicant to 7.6 the board of any rights of the responsible personapplicant with 7.7 respect to any insurance coverage applicable to the costs that 7.8 are reimbursed. Notwithstanding this paragraph, the board may 7.9 instead request a return of the reimbursement under subdivision 7.10 5 and may employ against the responsible partyapplicant the 7.11 remedies provided in that subdivision, except where the board 7.12 has knowingly provided reimbursement because the responsible7.13 personapplicant was denied coverage by the insurer. 7.14 (h) Money in the fund is appropriated to the board to make 7.15 reimbursements under this sectionchapter. A reimbursement to a 7.16 state agency must be credited to the appropriation account or 7.17 accounts from which the reimbursed costs were paid. 7.18 (i) The board may reduce the amount of reimbursement to be 7.19 made under this sectionchapter if it finds that the responsible7.20 personapplicant has not complied with a provision of this 7.21 chapter, a rule or order issued under this chapter, or one or 7.22 more of the following requirements: 7.23 (1) the agency was given notice of the release as required 7.24 by section 115.061; 7.25 (2) the responsible personapplicant, to the extent 7.26 possible, fully cooperated with the agency in responding to the 7.27 release; and 7.28 (3) the state and federal rules and regulations applicable 7.29 to the condition or operation of the tank when the noncompliance 7.30 caused or failed to mitigate the release. 7.31 (j) The reimbursement may be reduced as much as 100 percent 7.32 for failure by the responsible personapplicant to comply with 7.33 the requirements in paragraph (i), clauses (1) to (3). In 7.34 determining the amount of the reimbursement reduction, the board 7.35 shall consider: 7.36 (1) the reasonable determination by the agency of the 8.1 environmental impact of the noncompliance; 8.2 (2) whether the noncompliance was negligent, knowing, or 8.3 willful; 8.4 (3) the deterrent effect of the award reduction on other 8.5 tank owners and operators; and 8.6 (4) the amount of reimbursement reduction recommended by 8.7 the commissioner. 8.8 (k) A personAn applicant may assign the right to receive 8.9 reimbursement to each lender who advanced funds to pay the costs 8.10 of the corrective action or to each contractor or consultant who 8.11 provided corrective action services. An assignment must be made 8.12 by filing with the board a document, in a form prescribed by the 8.13 board, indicating the identity of the responsible person8.14 applicant, the identity of the assignee, the dollar amount of 8.15 the assignment, and the location of the corrective action. An 8.16 assignment signed by the responsible personapplicant is valid 8.17 unless terminated by filing a termination with the board, in a 8.18 form prescribed by the board, which must include the written 8.19 concurrence of the assignee. The board shall maintain an index 8.20 of assignments filed under this paragraph. The board shall pay 8.21 the reimbursement to the responsible personapplicant and to one 8.22 or more assignees by a multiparty check. The board has no 8.23 liability to a responsible personan applicant for a payment 8.24 under an assignment meeting the requirements of this paragraph. 8.25 Subd. 3a. [ELIGIBILITY OF OTHER PERSONS.] Notwithstanding8.26 the provisions of subdivisions 1 to 3, the board shall provide8.27 full reimbursement to a person who has taken corrective action8.28 if the board or commissioner of commerce determines thatA 8.29 person who has taken corrective action may apply to the board 8.30 for reimbursement under subdivision 3 if the board determines 8.31 that: 8.32 (1) the person took the corrective action in response to a 8.33 request or order of the commissioner made under this chapter; 8.34 (2) the commissioner has determined that the person was not 8.35 a responsible person under section 115C.02as defined in this 8.36 chapter; and9.1 (3) the costs for which reimbursement is requested were9.2 actually incurred and were reasonablethe board has determined 9.3 the person was not a volunteer under subdivision 3b; and 9.4 (4) the person incurs reimbursable costs on or after June 9.5 4, 1987. 9.6 Notwithstanding subdivision 3, paragraph (a), a person 9.7 eligible for reimbursement under this subdivision shall receive 9.8 100 percent of total reimbursable costs up to $1,000,000. 9.9 Subd. 3b. [VOLUNTEER ELIGIBILITY.] (a) Notwithstanding9.10 subdivisions 1 to 3,A person may apply to the board for partial9.11 reimbursement under subdivision 3 whoif the board determines 9.12 that: 9.13 (1) the person is not a responsible person under section9.14 115C.02as defined in this chapter; 9.15 (2) holds legal or equitable title to the property where a 9.16 release occurred; and 9.17 (3) incurs reimbursable costs on or after May 23, 1989. 9.18 (b) A person eligible for reimbursement under this9.19 subdivision must, to the maximum extent possible, comply with9.20 the same conditions and requirements of reimbursement as those9.21 imposed by this section on a responsible person.9.22 (c)The board may reduce the reimbursement to a person 9.23 eligible under this subdivision if the person acquired legal or 9.24 equitable title to the property from a responsible person who 9.25 failed to comply with the provisions ofsubdivision 3, paragraph 9.26 (i), except that the board may not reduce the 9.27 reimbursement under this provision to a mortgagee who acquires 9.28 title to the property through foreclosure or receipt of a deed 9.29 in lieu of foreclosure. 9.30 Subd. 3c. [RELEASE AT REFINERIES AND TANK FACILITIES NOT 9.31 ELIGIBLE FOR REIMBURSEMENT.] (a) Notwithstanding other9.32 provisions of subdivisions 1 to 3b, aReimbursement may not be 9.33 made under this sectionchapter for costs associated with a 9.34 release: 9.35 (1) from a tank located at a petroleum refinery; or 9.36 (2) from a tank facility, including a pipeline terminal, 10.1 with more than 1,000,000 gallons of total petroleum storage 10.2 capacity at the tank facility. 10.3 (b) Paragraph (a), clause (2), does not apply to 10.4 reimbursement for costs associated with a release from a tank 10.5 facility: 10.6 (1) owned or operated by a person engaged in the business 10.7 of mining iron ore or taconite; 10.8 (2) owned by a political subdivision, a housing and 10.9 redevelopment authority, an economic development authority, or a 10.10 port authority that acquired the tank facility prior to May 23, 10.11 1989; or 10.12 (3) owned by a person: 10.13 (i) who acquired the tank facility prior to May 23, 1989; 10.14 (ii) who did not use the tank facility for the bulk storage 10.15 of petroleum; and 10.16 (iii) who is not affiliated with the party who used the 10.17 tank facility for the bulk storage of petroleum. 10.18 Subd. 3d. [POLITICAL SUBDIVISION ELIGIBILITY.] (a) 10.19 Notwithstanding the provisions of subdivisions 1 to 3,A 10.20 political subdivision that has taken corrective action may apply 10.21 to the board for partialreimbursement under subdivision 3 where10.22 the political subdivisionif the board determines that: 10.23 (1) the political subdivision is not a responsible person 10.24 under section 115C.02as defined by this chapter; and10.25 (2) is not a volunteer under subdivision 3b; and 10.26 (3) incurs reimbursable costs on or after April 8, 1992. 10.27 (b) A political subdivision eligible for reimbursement 10.28 under this subdivision may only apply for reimbursement if the 10.29 identified responsible person has failed to take a corrective 10.30 action ordered by the commissioner. 10.31 (c) A political subdivision eligible for reimbursement10.32 under this subdivision must, to the maximum extent possible,10.33 comply with the same conditions and requirements of10.34 reimbursement as those imposed by this section on a responsible10.35 person.10.36 Subd. 4. [REIMBURSEMENT DOES NOT AFFECT OTHER LIABILITY.] 11.1 The right to apply for reimbursement and the receipt of 11.2 reimbursement does not limit the liability of a responsible 11.3 person for damages or costs incurred by a person or the state as 11.4 a result of a release. 11.5 Subd. 5. [RETURN OF REIMBURSEMENT.] (a) The board may 11.6 demand the complete or partial return of any reimbursement made 11.7 under this sectionchapter if the applicant for reimbursement: 11.8 (1) misrepresents or omits a fact relevant to a 11.9 determination made by the board or the commissioner under this 11.10 sectionchapter; 11.11 (2) fails to complete corrective action that the 11.12 commissioner determined at the time of the reimbursement to be 11.13 necessary to adequately address the release, unless the 11.14 reimbursement was made under subdivision 3a; 11.15 (3) fails to reimburse a person for agreed-to amounts for 11.16 corrective actions taken in response to a request by the 11.17 applicant; or 11.18 (4) has entered an agreement to settle or compromise any 11.19 portion of the incurred costs, in which case the amount returned 11.20 must be prorated in proportion to the amount of the settlement 11.21 or compromise. 11.22 (b) If a reimbursement under this subdivisionchapter is 11.23 not returned upon demand by the board, the board may recover the 11.24 reimbursement, with administrative and legal expenses, in a 11.25 civil action in district court brought by the attorney general 11.26 against the applicant. If the board's demand for return of the 11.27 reimbursement is based on willful actions of the applicant, the 11.28 applicant shall also forfeit and pay to the state a civil 11.29 penalty, in an amount to be determined by the court, of not more 11.30 than the full amount of the reimbursement. 11.31 Subd. 6. [FRAUD.] If a person, with intent to defraud, 11.32 issues an invoice or other demand for payment with knowledge 11.33 that it is false in whole or in part, and with knowledge that it 11.34 is being submitted to the board for reimbursement: 11.35 (1) that person shall be considered to have presented a 11.36 false claim to a public body under section 609.465; and 12.1 (2) the board may demand that the person return any money 12.2 received as a result of a reimbursement made on the basis of the 12.3 false invoice or other demand for payment. If the money is not 12.4 returned upon demand by the board, the board may recover the 12.5 money, with administrative and legal expenses, in a civil action 12.6 in district court brought by the attorney general against the 12.7 person. The person shall also forfeit and pay to the state a 12.8 civil penalty, in an amount to be determined by the court, of 12.9 not more than the full amount of the money received by the 12.10 person on the basis of the false invoice or other demand for 12.11 payment. 12.12 Subd. 7. [DUTY TO PROVIDE INFORMATION.] (a) A person who 12.13 submits an application to the board for reimbursement, or who 12.14 has issued invoices or other demands for payment which are the 12.15 basis of an application, shall furnish to the board copies of 12.16 any financial records which the board requests and which are 12.17 relevant to determining the validity of the costs listed in the 12.18 application, or shall make the financial records reasonably 12.19 available to the board for inspection and auditing. The board 12.20 may obtain access to information required to be made available 12.21 under this subdivisionchapter in the manner provided in section 12.22 115C.03, subdivision 7. 12.23 (b) After reimbursement has been granted, an agreement to 12.24 settle or compromise any portion of the incurred costs must be 12.25 reported to the board by the parties to the agreement. 12.26 Subd. 8. [LIMITATION ON REIMBURSEMENT OBLIGATION.] The 12.27 amount of the state's obligation to make reimbursement under 12.28 this chapter is limited to the amount available. 12.29 Notwithstanding any other provisions of this chapter, there 12.30 shall be no obligation to the general fund to make a 12.31 reimbursement if there are not sufficient funds in the petroleum 12.32 tank fund. 12.33 Subd. 9. [INSUFFICIENT FUNDS.] The board may not approve 12.34 an application for reimbursement if there are insufficient funds 12.35 available to pay the reimbursement. 12.36 Subd. 10. [DELEGATION OF BOARD'S POWERS.] The board may 13.1 delegate to the commissioner of commerce its powers and duties 13.2 under this sectionchapter. 13.3 Sec. 6. Minnesota Statutes 1995 Supplement, section 13.4 115C.092, subdivision 1, is amended to read: 13.5 Subdivision 1. [PREREMOVAL SITE ASSESSMENT; 13.6 REIMBURSEMENT.] (a) Preremoval site assessment costs which are 13.7 in compliance with the requirements of this chapter and with 13.8 rules promulgated under this chapter shall be reimbursable under 13.9 section 115C.09, subdivision 3. The applicant shall obtain 13.10 written competitive proposals for the preremoval site assessment 13.11 on a form prescribed by the board utilizing, as appropriate, 13.12 tasks and costs established in rules promulgated under this 13.13 chapter governing the initial site assessment. 13.14 (b) If contamination is found at the site, the board shall 13.15 reimburse an applicant upon submission of the applicant's first 13.16 application for reimbursement under section 115C.09, subdivision 13.17 2. If no contamination is found at the site, the board shall 13.18 reimburse the applicant upon provision by the applicant of 13.19 documentation that the tank or tanks have been removed from the 13.20 site. 13.21 (c) Notwithstanding any provision in this subdivision to 13.22 the contrary, the board shall not reimburse for a preremoval 13.23 site assessment which is done for the purposes of facilitating a 13.24 property transfer. The board shall presume that a preremoval 13.25 site assessment is done for the purposes of facilitating a 13.26 property transfer if the property is transferred within three 13.27 months of incurring preremoval site assessment costs. 13.28 Sec. 7. Minnesota Statutes 1995 Supplement, section 13.29 115C.10, subdivision 1, is amended to read: 13.30 Subdivision 1. [PAYMENT FROM FUND; SUBROGATION; 13.31 APPROPRIATION.] (a) If the cost of authorized actions under 13.32 section 115C.03 exceeds the amount appropriated to the agency 13.33 for the actions and amounts awarded to the agency from the 13.34 federal government, the agency may apply to the board for money 13.35 to pay for the actions from the fund. The board shall pay the 13.36 agency the cost of the proposed actions under section 115C.03 if 14.1 the board finds that the conditions for the agency to be paid 14.2 from the fund have been met, and that an adequate amount exists 14.3 in the fund to pay for the corrective action. If the board pays 14.4 the agency for the cost of authorized actions for which a14.5 responsible person has petroleum tank leakage or spillthere is 14.6 insurance coverage, the board is subrogated to the agency's 14.7 rights with respect to the responsible person and the14.8 responsible person's insurerinsurance, to the extent of the 14.9 board's payment of costs for which the responsible person has14.10 insurance coverage exists, subject to the limitations on an 14.11 agency cost recovery action set forth in section 115C.04, 14.12 subdivision 3. The board may request the attorney general to 14.13 bring an action in district court against the responsible person 14.14 or that person's, the applicant, or the insurer to enforce the 14.15 board's subrogation rights. Acceptance of a payment from the 14.16 board by the agency constitutes an assignment to the board of 14.17 the subrogation rights specified in this subdivision. 14.18 (b) Money in the fund is appropriated to the board for the 14.19 purpose of this subdivision. 14.20 Sec. 8. Minnesota Statutes 1995 Supplement, section 14.21 115C.11, subdivision 1, is amended to read: 14.22 Subdivision 1. [REGISTRATION.] (a) All consultants and 14.23 contractors who perform corrective action services must register 14.24 with the board. In order to register, consultants must meet and 14.25 demonstrate compliance with the following criteria: 14.26 (1) provide a signed statement to the board verifying 14.27 agreement to abide by this chapter and the rules adopted under 14.28 it and to include a signed statement with each claim that all 14.29 costs claimed by the consultant are a true and accurate account 14.30 of services performed; 14.31 (2) provide a signed statement that the consultant shall 14.32 make available for inspection any records requested by the board 14.33 for field or financial audits under the scope of this chapter; 14.34 (3) certify knowledge of the requirements of this chapter 14.35 and the rules adopted under it; 14.36 (4) obtain and maintain professional liability coverage, 15.1 including pollution impairment liability; and 15.2 (5) agree to submit to the board a certificate or 15.3 certificates verifying the existence of the required insurance 15.4 coverage. 15.5 (b) The board must maintain a list of all registered 15.6 consultants and a list of all registered contractors. 15.7 (c) All corrective action services must be performed by 15.8 registered consultants and contractors. 15.9 (d) Reimbursement for corrective action services performed 15.10 by an unregistered consultant or contractor is subject to 15.11 reduction under section 115C.09, subdivision 3, paragraph (i). 15.12 (e) Corrective action services performed by a consultant or 15.13 contractor prior to being removed from the registration list may 15.14 be reimbursed without reduction by the board. 15.15 (f) If the information in an application for registration 15.16 becomes inaccurate or incomplete in any material respect, the 15.17 registered consultant or contractor must promptly file a 15.18 corrected application with the board. 15.19 (g) Registration is effective on the date30 days after a 15.20 complete application is received by the board. The board may 15.21 reimburse without reduction the cost of work performed by an 15.22 unregistered contractor if the contractor performed the work 15.23 within 3060 days of the effective date of registration. 15.24 (h) Registration under this section remains in force until 15.25 voluntarily terminated by the registrant, or until suspended or 15.26 revoked by the commissioner of commerce. All registrants must 15.27 comply with registration criteria under this section. 15.28 Sec. 9. [115C.111] [CONSULTANT AND CONTRACTOR SANCTIONS; 15.29 ACTIONS BASED ON CONDUCT OCCURRING BEFORE EFFECTIVE DATE OF 15.30 SECTION.] 15.31 Subdivision 1. [APPLICATION.] This section applies to 15.32 administrative actions based on conduct that occurred before the 15.33 effective date of this section. 15.34 Subd. 2. [AUTHORITY.] The commissioner of commerce may by 15.35 order censure, suspend, or revoke a registrant and require 15.36 payment of all costs of proceedings resulting in an action 16.1 instituted under this subdivision and impose a civil penalty of 16.2 not more than $10,000 if the commissioner of commerce finds: 16.3 (i) that the order is in the public interest; and (ii) that the 16.4 registrant or, in the case of a registrant that is not a natural 16.5 person, any partner, officer, or director, any person occupying 16.6 a similar status or performing similar functions, or any person 16.7 directly or indirectly controlling the registrant: 16.8 (1) has engaged in conduct that departs from or fails to 16.9 conform to the minimal standards of acceptable and prevailing 16.10 engineering, hydrogeological, or other technical practices 16.11 within the reasonable control of the consultant or contractor; 16.12 (2) has participated in a kickback scheme prohibited under 16.13 section 115C.045; 16.14 (3) has engaged in conduct likely to deceive or defraud, or 16.15 demonstrated a willful or careless disregard for public health 16.16 or the environment; 16.17 (4) has committed fraud, embezzlement, theft, forgery, 16.18 bribery, falsified or destroyed records, made false statements, 16.19 received stolen property, made false claims, or obstructed 16.20 justice; 16.21 (5) is the subject of an order revoking, suspending, 16.22 restricting, limiting, or imposing other disciplinary action 16.23 against the contractor's or consultant's license or 16.24 certification in another state or jurisdiction; or 16.25 (6) if the person is a consultant, has failed to comply 16.26 with any of the ongoing obligations for registration as a 16.27 consultant in section 115C.11, subdivision 1. 16.28 Subd. 3. [AMOUNT OF CIVIL PENALTY.] The civil penalty that 16.29 may be imposed under subdivision 2 shall be in an amount that 16.30 the commissioner of commerce determines will deprive the 16.31 consultant or contractor of any economic advantage gained by 16.32 reason of the consultant's or contractor's conduct or to 16.33 reimburse the board for the cost of the investigation and 16.34 proceeding. 16.35 Sec. 10. [115C.112] [CONSULTANT AND CONTRACTOR SANCTIONS; 16.36 ACTIONS BASED ON CONDUCT OCCURRING ON AND AFTER EFFECTIVE DATE 17.1 OF SECTION.] 17.2 The commissioner of commerce may by order deny a 17.3 registration, censure, suspend, or revoke a registrant and 17.4 require payment of all costs of proceedings resulting in an 17.5 action instituted under this section and impose a civil penalty 17.6 of not more than $10,000 if the commissioner of commerce finds: 17.7 (i) that the order is in the public interest; and (ii) that the 17.8 registrant or, in the case of a registrant that is not a natural 17.9 person, any partner, officer, or director, any person occupying 17.10 a similar status or performing similar functions, or any person 17.11 directly or indirectly controlling the registrant: 17.12 (1) has engaged in conduct that departs from or fails to 17.13 conform to the minimal standards of acceptable and prevailing 17.14 engineering, hydrogeological, or other technical practices 17.15 within the reasonable control of the consultant or contractor; 17.16 (2) has participated in a kickback scheme prohibited under 17.17 section 115C.045; 17.18 (3) has engaged in conduct likely to deceive or defraud, or 17.19 demonstrating a willful or careless disregard for public health 17.20 or the environment; 17.21 (4) has committed fraud, embezzlement, theft, forgery, 17.22 bribery, falsified or destroyed records, made false statements, 17.23 received stolen property, made false claims, or obstructed 17.24 justice; 17.25 (5) is the subject of an order revoking, suspending, 17.26 restricting, limiting, or imposing other disciplinary action 17.27 against the contractor's or consultant's license or 17.28 certification in another state or jurisdiction; 17.29 (6) if the person is a consultant, has failed to comply 17.30 with any of the ongoing obligations for registration as a 17.31 consultant in section 115C.11, subdivision 1; 17.32 (7) has failed to comply with any provision or any rule or 17.33 order under this chapter or chapter 45; 17.34 (8) has engaged in anticompetitive activity; 17.35 (9) has performed corrective action without having an 17.36 accurate and complete registration on file with the board or has 18.1 allowed another to perform corrective action when that party 18.2 does not have a complete registration on file with the board; 18.3 (10) has been shown to be incompetent, untrustworthy, or 18.4 financially irresponsible; or 18.5 (11) has made or assisted another in making any material 18.6 misrepresentation or omission to the board, commissioner, 18.7 commissioner of commerce, or upon reasonable request has 18.8 withheld or concealed information from, or refused to furnish 18.9 information to, the board, commissioner, or commissioner of 18.10 commerce. 18.11 Sec. 11. [115C.113] [ORDERS.] 18.12 The commissioner of commerce may issue an order requiring a 18.13 registrant or applicant for registration to show cause why the 18.14 registration should not be revoked or suspended, the registrant 18.15 censured, the application denied, or other sanction imposed 18.16 under section 115C.111 or 115C.112. The order must be 18.17 calculated to give reasonable notice of the time and place for 18.18 hearing on the matter, and must state the reasons for the entry 18.19 of the order. The commissioner of commerce may by order 18.20 summarily suspend a registration pending final determination of 18.21 an order to show cause. A hearing on the merits must be held 18.22 within 30 days of the issuance of the order of summary 18.23 suspension. All hearings must be conducted under chapter 14. 18.24 After the hearing, the commissioner of commerce shall enter an 18.25 order disposing of the matter as the facts require. If the 18.26 registrant or applicant for registration fails to appear at a 18.27 hearing after having been duly notified of it, the person shall 18.28 be considered in default, and the proceeding may be determined 18.29 against the registrant or applicant for registration upon 18.30 consideration of the order to show cause, the allegations of 18.31 which may be considered to be true. 18.32 Sec. 12. Minnesota Statutes 1995 Supplement, section 18.33 115C.12, is amended to read: 18.34 115C.12 [APPEAL OF REIMBURSEMENT DETERMINATION.] 18.35 Subdivision 1. [APPEAL FROM DETERMINATION OF COMMISSIONER 18.36 OF COMMERCE.] An applicant for reimbursement may appeal to the 19.1 board a reimbursement determination made by the commissioner of 19.2 commerce under authority delegated by the board according to 19.3 section 115C.09, subdivision 10, by submitting a written notice 19.4 setting forth the specific basis for the appeal. The 19.5 commissioner of commerce shall send written notification of the 19.6 reimbursement determination by first class United States mail to 19.7 the applicant for reimbursement at the applicant's last known 19.8 address. The applicant for reimbursement must file written 19.9 notice with the board of an appeal of a reimbursement 19.10 determination made by the commissioner of commerce within 60 19.11 days of the date that the commissioner of commerce sends written 19.12 notice to the applicant of the reimbursement determination. The 19.13 board shall consider the appeal within 90 days of receipt of the 19.14 written notice of appeal by the applicant for 19.15 reimbursement. The written notice must set forth the specific 19.16 basis for the appeal. 19.17 Subd. 2. [APPEAL FROM DECISION OF THE BOARD.] (a) An 19.18 applicant for reimbursement may appeal a reimbursement 19.19 determination of the board as a contested case under chapter 19.20 14. An applicant for reimbursement must provide written 19.21 notification to the board of a request for a contested case, 19.22 setting forth the specific basis for the appeal, within 30 days 19.23 of the date that the board makes a reimbursement determination. 19.24 (b) This subdivision applies to reimbursement 19.25 determinations made by the board as a result of an appeal to the 19.26 board under subdivision 1 and reimbursement determinations made 19.27 by the board when the board has not delegated its authority to 19.28 make reimbursement determinations. 19.29 (c) An appeal of a reimbursement determination may only be 19.30 made by an applicant as defined by this chapter. 19.31 Subd. 3. [CONTESTED CASE; FINAL DECISION.] The final 19.32 decision in a contested case requested by an applicant under 19.33 subdivision 2 shall be made by the commissioner of commerce. 19.34 Sec. 13. [REPEALER.] 19.35 Minnesota Statutes 1994, section 115C.11, subdivisions 3 19.36 and 4; Minnesota Statutes 1995 Supplement, section 115C.11, 20.1 subdivision 2, are repealed. 20.2 Sec. 14. [EFFECTIVE DATES.] 20.3 Sections 1 to 7 and 12 are effective the day after final 20.4 enactment and apply to applications for reimbursement pending on 20.5 or filed on or after that date. Section 8 is effective the day 20.6 after final enactment and applies to all current and future 20.7 registrants. Sections 9 to 11 are effective the day after final 20.8 enactment and apply to disciplinary actions pending on or 20.9 commenced on or after that date. Section 13 is effective the 20.10 day following final enactment.