HF 3429

2nd Engrossment - 85th Legislature (2007 - 2008) 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 a rulemaking exemption;
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 84, 103F, and
103G, rules, orders, agreements, settlements, licenses, registrations, or permits for
activities affecting the course, current, or cross-section of public waters, appropriation
or diversion of waters of the state, or harvest, control, or destruction of aquatic plants.
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 the related 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 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 Minnesota Statutes, sections 103G.252 to
103G.254. The commissioner shall provide a 30-day period for public comment on the
plan. The plan must be finalized by December 31, 2008. The plan is exempt from the
rulemaking procedures under Minnesota Statutes, chapter 14, and Minnesota Statutes,
section 14.386, does not apply.
new text end