HF 4410

1st Engrossment - 93rd Legislature (2023 - 2024) Posted on 03/21/2024 03:43pm

A bill for an act
relating to environment; modifying enforcement authority; appropriating money;
amending Minnesota Statutes 2022, sections 115.071, subdivisions 1, 3, 4, by
adding subdivisions; 116.07, subdivision 9, by adding subdivisions; 116.11;
Minnesota Statutes 2023 Supplement, section 115.03, subdivision 1.

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

Section 1.

Minnesota Statutes 2023 Supplement, section 115.03, subdivision 1, is amended
to read:

Subdivision 1.

Generally.

(a) The commissioner is given and charged with the following
powers and duties:

(1) to administer and enforce all laws relating to the pollution of any of the waters of
the state;

(2) to investigate the extent, character, and effect of the pollution of the waters of this
state and to gather data and information necessary or desirable in the administration or
enforcement of pollution laws, and to make such classification of the waters of the state as
it may deem advisable;

(3) to establish and alter such reasonable pollution standards for any waters of the state
in relation to the public use to which they are or may be put as it shall deem necessary for
the purposes of this chapter and, with respect to the pollution of waters of the state, chapter
116;

(4) to encourage waste treatment, including advanced waste treatment, instead of stream
low-flow augmentation for dilution purposes to control and prevent pollution;

(5) to adopt, issue, reissue, modify, deny, deleted text begin or deleted text end revoke, new text begin reopen, new text end enter into new text begin , new text end or enforce
reasonable orders, permits, variances, standards, rules, schedules of compliance, and
stipulation agreements, under such conditions as it may prescribe, in order to prevent, control
or abate water pollution, or for the installation or operation of disposal systems or parts
thereof, or for other equipment and facilities:

(i) requiring the discontinuance of the discharge of sewage, industrial waste or other
wastes into any waters of the state resulting in pollution in excess of the applicable pollution
standard established under this chapter;

(ii) prohibiting or directing the abatement of any discharge of sewage, industrial waste,
or other wastes, into any waters of the state or the deposit thereof or the discharge into any
municipal disposal system where the same is likely to get into any waters of the state in
violation of this chapter and, with respect to the pollution of waters of the state, chapter
116, or standards or rules promulgated or permits issued pursuant thereto, and specifying
the schedule of compliance within which such prohibition or abatement must be
accomplished;

(iii) prohibiting the storage of any liquid or solid substance or other pollutant in a manner
which does not reasonably assure proper retention against entry into any waters of the state
that would be likely to pollute any waters of the state;

(iv) requiring the construction, installation, maintenance, and operation by any person
of any disposal system or any part thereof, or other equipment and facilities, or the
reconstruction, alteration, or enlargement of its existing disposal system or any part thereof,
or the adoption of other remedial measures to prevent, control or abate any discharge or
deposit of sewage, industrial waste or other wastes by any person;

(v) establishing, and from time to time revising, standards of performance for new sources
taking into consideration, among other things, classes, types, sizes, and categories of sources,
processes, pollution control technology, cost of achieving such effluent reduction, and any
nonwater quality environmental impact and energy requirements. Said standards of
performance for new sources shall encompass those standards for the control of the discharge
of pollutants which reflect the greatest degree of effluent reduction which the agency
determines to be achievable through application of the best available demonstrated control
technology, processes, operating methods, or other alternatives, including, where practicable,
a standard permitting no discharge of pollutants. New sources shall encompass buildings,
structures, facilities, or installations from which there is or may be the discharge of pollutants,
the construction of which is commenced after the publication by the agency of proposed
rules prescribing a standard of performance which will be applicable to such source.
Notwithstanding any other provision of the law of this state, any point source the construction
of which is commenced after May 20, 1973, and which is so constructed as to meet all
applicable standards of performance for new sources shall, consistent with and subject to
the provisions of section 306(d) of the Amendments of 1972 to the Federal Water Pollution
Control Act, not be subject to any more stringent standard of performance for new sources
during a ten-year period beginning on the date of completion of such construction or during
the period of depreciation or amortization of such facility for the purposes of section 167
or 169, or both, of the Federal Internal Revenue Code of 1954, whichever period ends first.
Construction shall encompass any placement, assembly, or installation of facilities or
equipment, including contractual obligations to purchase such facilities or equipment, at
the premises where such equipment will be used, including preparation work at such
premises;

(vi) establishing and revising pretreatment standards to prevent or abate the discharge
of any pollutant into any publicly owned disposal system, which pollutant interferes with,
passes through, or otherwise is incompatible with such disposal system;

(vii) requiring the owner or operator of any disposal system or any point source to
establish and maintain such records, make such reports, install, use, and maintain such
monitoring equipment or methods, including where appropriate biological monitoring
methods, sample such effluents in accordance with such methods, at such locations, at such
intervals, and in such a manner as the agency shall prescribe, and providing such other
information as the agency may reasonably require;

(viii) notwithstanding any other provision of this chapter, and with respect to the pollution
of waters of the state, chapter 116, requiring the achievement of more stringent limitations
than otherwise imposed by effluent limitations in order to meet any applicable water quality
standard by establishing new effluent limitations, based upon section 115.01, subdivision
13, clause (b), including alternative effluent control strategies for any point source or group
of point sources to insure the integrity of water quality classifications, whenever the agency
determines that discharges of pollutants from such point source or sources, with the
application of effluent limitations required to comply with any standard of best available
technology, would interfere with the attainment or maintenance of the water quality
classification in a specific portion of the waters of the state. Prior to establishment of any
such effluent limitation, the agency shall hold a public hearing to determine the relationship
of the economic and social costs of achieving such limitation or limitations, including any
economic or social dislocation in the affected community or communities, to the social and
economic benefits to be obtained and to determine whether or not such effluent limitation
can be implemented with available technology or other alternative control strategies. If a
person affected by such limitation demonstrates at such hearing that, whether or not such
technology or other alternative control strategies are available, there is no reasonable
relationship between the economic and social costs and the benefits to be obtained, such
limitation shall not become effective and shall be adjusted as it applies to such person;

(ix) modifying, in its discretion, any requirement or limitation based upon best available
technology with respect to any point source for which a permit application is filed after July
1, 1977, upon a showing by the owner or operator of such point source satisfactory to the
agency that such modified requirements will represent the maximum use of technology
within the economic capability of the owner or operator and will result in reasonable further
progress toward the elimination of the discharge of pollutants; deleted text begin and
deleted text end

(x) requiring that applicants for wastewater discharge permits evaluate in their
applications the potential reuses of the discharged wastewater; new text begin and
new text end

new text begin (xi) when appropriate, requiring parties who enter into a negotiated agreement to settle
an enforcement matter with the agency to reimburse the agency according to this clause for
oversight costs that are incurred by the agency and associated with implementing the
negotiated agreement, including oversight costs exceeding $25,000. Oversight costs may
include but are not limited to any costs associated with inspections, sampling, monitoring,
modeling, risk assessment, permit writing, engineering review, economic analysis and
review, and other record or document review. The agency's legal and litigation costs are
not covered by this clause. In addition to settlement agreements, the commissioner has
discretion as to whether to apply this clause in cases when the agency is using schedules of
compliance to bring a class of regulated parties into compliance. Oversight funds reimbursed
under this item are to be deposited in a settlement oversight reimbursement account
established in the environmental fund. The commissioner shall manage the account. Earnings,
such as interest, dividends, and any other earnings arising from assets of the account, must
be credited to the account. Funds remaining in the account at the end of a fiscal year remain
in the account. Money in the account is appropriated to the commissioner for the purposes
of the environmental fund;
new text end

(6) to require to be submitted and to approve plans and specifications for disposal systems
or point sources, or any part thereof and to inspect the construction thereof for compliance
with the approved plans and specifications thereof;

(7) to prescribe and alter rules, not inconsistent with law, for the conduct of the agency
and other matters within the scope of the powers granted to and imposed upon it by this
chapter and, with respect to pollution of waters of the state, in chapter 116, provided that
every rule affecting any other department or agency of the state or any person other than a
member or employee of the agency shall be filed with the secretary of state;

(8) to conduct such investigations, issue such notices, public and otherwise, and hold
such hearings as are necessary or which it may deem advisable for the discharge of its duties
under this chapter and, with respect to the pollution of waters of the state, under chapter
116, including, but not limited to, the issuance of permits, and to authorize any member,
employee, or agent appointed by it to conduct such investigations or, issue such notices and
hold such hearings;

(9) for the purpose of water pollution control planning by the state and pursuant to the
Federal Water Pollution Control Act, as amended, to establish and revise planning areas,
adopt plans and programs and continuing planning processes, including, but not limited to,
basin plans and areawide waste treatment management plans, and to provide for the
implementation of any such plans by means of, including, but not limited to, standards, plan
elements, procedures for revision, intergovernmental cooperation, residual treatment process
waste controls, and needs inventory and ranking for construction of disposal systems;

(10) to train water pollution control personnel and charge training fees as are necessary
to cover the agency's costs. All such fees received must be paid into the state treasury and
credited to the Pollution Control Agency training account;

(11) to provide chloride reduction training and charge training fees as necessary to cover
the agency's costs not to exceed $350. All training fees received must be paid into the state
treasury and credited to the Pollution Control Agency training account;

(12) to impose as additional conditions in permits to publicly owned disposal systems
appropriate measures to insure compliance by industrial and other users with any pretreatment
standard, including, but not limited to, those related to toxic pollutants, and any system of
user charges ratably as is hereby required under state law or said Federal Water Pollution
Control Act, as amended, or any regulations or guidelines promulgated thereunder;

(13) to set a period not to exceed five years for the duration of any national pollutant
discharge elimination system permit or not to exceed ten years for any permit issued as a
state disposal system permit only;

(14) to require each governmental subdivision identified as a permittee for a wastewater
treatment works to evaluate in every odd-numbered year the condition of its existing system
and identify future capital improvements that will be needed to attain or maintain compliance
with a national pollutant discharge elimination system or state disposal system permit; and

(15) to train subsurface sewage treatment system personnel, including persons who
design, construct, install, inspect, service, and operate subsurface sewage treatment systems,
and charge fees as necessary to pay the agency's costs. All fees received must be paid into
the state treasury and credited to the agency's training account. Money in the account is
appropriated to the agency to pay expenses related to training.

(b) The information required in paragraph (a), clause (14), must be submitted in every
odd-numbered year to the commissioner on a form provided by the commissioner. The
commissioner shall provide technical assistance if requested by the governmental subdivision.

(c) The powers and duties given the agency in this subdivision also apply to permits
issued under chapter 114C.

Sec. 2.

Minnesota Statutes 2022, section 115.071, subdivision 1, is amended to read:

Subdivision 1.

Remedies available.

The provisions of sections 103F.701 to 103F.755,
this chapter and chapters 114C, 115A, and 116, and sections 325E.10 to 325E.1251 and
325E.32 and all rules, standards, orders, stipulation agreements, schedules of compliance,
and permits adopted or issued by the agency thereunder or under any other law now in force
or hereafter enacted for the prevention, control, or abatement of pollution may be enforced
by any one or any combination of the following: criminal prosecution; action to recover
civil penalties; injunction; action to compel new text begin or cease new text end performance; or other appropriate
action, in accordance with the provisions of said chapters and this section.

Sec. 3.

Minnesota Statutes 2022, section 115.071, subdivision 3, is amended to read:

Subd. 3.

Civil penalties.

Any person who violates any provision of this chapter or chapter
114C or 116, except any provisions of chapter 116 relating to air and land pollution caused
by agricultural operations which do not involve national pollutant discharge elimination
system permits, or of (1) any effluent standards and limitations or water quality standards,
(2) any permit or term or condition thereof, (3) any national pollutant discharge elimination
system filing requirements, (4) any duty to permit or carry out inspection, entry or monitoring
activities, or (5) any rules, stipulation agreements, variances, schedules of compliance, or
orders issued by the agency, shall forfeit and pay to the state a penalty, in an amount to be
determined by the court, of not more than $10,000 per day of violation except that if the
violation relates to hazardous waste the person shall forfeit and pay to the state a penalty,
in an amount to be determined by the court, of not more than $25,000 per day of violation.

In addition, in the discretion of the court, the defendant may be required to:

(a) forfeit and pay to the state a sum which will adequately compensate the state for the
reasonable value of cleanup and other expenses directly resulting from unauthorized discharge
of pollutants, whether or not accidental;

(b) forfeit and pay to the state an additional sum to constitute just compensation for any
loss or destruction to wildlife, fish or other aquatic life and for other actual damages to the
state caused by an unauthorized discharge of pollutants.

As a defense to any of said damages, the defendant may prove that the violation was
caused solely by (1) an act of God, (2) an act of war, (3) negligence on the part of the state
of Minnesota, or (4) an act or failure to act which constitutes sabotage or vandalism, or any
combination of the foregoing clauses.

The civil penalties and damages provided for in this subdivision may be recovered by
a civil action brought by the attorney general new text begin or any person new text end in the name of the state.

Sec. 4.

Minnesota Statutes 2022, section 115.071, subdivision 4, is amended to read:

Subd. 4.

Injunctions.

Any violation of the provisions, rules, standards, orders, stipulation
agreements, variances, schedules of compliance, or permits specified in this chapter and
chapters 114C and 116 deleted text begin shall constitute deleted text end new text begin constitutes new text end a public nuisance and may be enjoined
as provided by law in an action, in the name of the state, brought by the attorney general new text begin or
any person injured by such violation new text end . new text begin Injunctive relief under this subdivision may include
but is not limited to a requirement that a facility or person immediately cease operation or
activities until such time as the commissioner has reasonable assurance that renewed
operation or activities will not violate state pollution requirements, cause harm to human
health, or result in a serious violation of an applicable permit.
new text end

Sec. 5.

Minnesota Statutes 2022, section 115.071, is amended by adding a subdivision to
read:

new text begin Subd. 8. new text end

new text begin Stipulation agreements. new text end

new text begin If a party to a stipulation agreement asserts a good
cause or force majeure claim for an extension of time to comply with a stipulated term, the
commissioner may deny the extension if the assertion is based solely on increased costs.
new text end

Sec. 6.

Minnesota Statutes 2022, section 115.071, is amended by adding a subdivision to
read:

new text begin Subd. 9. new text end

new text begin Compliance when required permit not obtained. new text end

new text begin The commissioner may
require a person or facility that fails to obtain a required permit to comply with any terms
of a permit that would have been issued had the person or facility obtained a permit, including
but not limited to reporting, monitoring, controlling pollutant discharge, and creating and
implementing operations and maintenance plans. The person or facility is subject to liability
and penalties, including criminal liability, for failing to operate in compliance with a permit
not obtained beginning at the time a permit should have been obtained.
new text end

Sec. 7.

Minnesota Statutes 2022, section 116.07, subdivision 9, is amended to read:

Subd. 9.

Orders; investigations.

The deleted text begin agency shall have deleted text end new text begin commissioner has new text end the following
powers and duties for deleted text begin the enforcement of deleted text end new text begin enforcing new text end any provision of this chapter and chapter
114C, relating to air contamination or waste:

(1) to adopt, issue, reissue, modify, deny, revoke, new text begin reopen, new text end enter into or enforce reasonable
orders, schedules of compliance and stipulation agreements;

(2) to require the owner or operator of any emission facility, air contaminant treatment
facility, potential air contaminant storage facility, or any system or facility related to the
storage, collection, transportation, processing, or disposal of waste to establish and maintain
records; to make reports; to install, use, and maintain monitoring equipment or methods;
and to make tests, including testing for odor where a nuisance may exist, in accordance with
methods, at locations, at intervals, and in a manner as the agency shall prescribe; and to
provide other information as the agency may reasonably require;

(3) to conduct investigations, issue notices, public and otherwise, and order hearings as
it may deem necessary or advisable for the discharge of its duties under this chapter and
chapter 114C, including but not limited to the issuance of permits; and to authorize any
member, employee, or agent appointed by it to conduct the investigations and issue the
notices deleted text begin . deleted text end new text begin ; and
new text end

new text begin (4) when appropriate, to require parties who enter into a negotiated agreement to settle
an enforcement matter with the agency to reimburse the agency according to this clause for
oversight costs that are incurred by the agency and associated with implementing the
negotiated agreement, including oversight costs exceeding $25,000. Oversight costs may
include but are not limited to any costs associated with inspections, sampling, monitoring,
modeling, risk assessment, permit writing, engineering review, economic analysis and
review, and other record or document review. The agency's legal and litigation costs are
not covered by this clause. In addition to settlement agreements, the commissioner has
discretion as to whether to apply this clause in cases where the agency is using schedules
of compliance to bring a class of regulated parties into compliance. Oversight funds
reimbursed under this item are to be deposited in a settlement oversight reimbursement
account established in the environmental fund. The commissioner shall manage the account.
Earnings, such as interest, dividends, and any other earnings arising from assets of the
account, must be credited to the account. Funds remaining in the account at the end of a
fiscal year remain in the account. Money in the account is appropriated to the commissioner
for the purposes of the environmental fund.
new text end

Sec. 8.

Minnesota Statutes 2022, section 116.07, is amended by adding a subdivision to
read:

new text begin Subd. 9a. new text end

new text begin Stipulation agreements. new text end

new text begin If a party to a stipulation agreement asserts a good
cause or force majeure claim for an extension of time to comply with a stipulated term, the
commissioner may deny the extension if the assertion is based solely on increased costs.
new text end

Sec. 9.

Minnesota Statutes 2022, section 116.07, is amended by adding a subdivision to
read:

new text begin Subd. 9b. new text end

new text begin Compliance when required permit not obtained. new text end

new text begin The commissioner may
require a person or facility that fails to obtain a required permit to comply with any terms
of a permit that would have been issued had the person or facility obtained a permit, including
but not limited to reporting, monitoring, controlling pollutant discharge, and creating and
implementing operations and maintenance plans. The person or facility is subject to liability
and penalties, including criminal liability, for failing to operate in compliance with a permit
not obtained beginning at the time a permit should have been obtained.
new text end

Sec. 10.

Minnesota Statutes 2022, section 116.11, is amended to read:

116.11 EMERGENCY POWERS.

new text begin Subdivision 1. new text end

new text begin Imminent and substantial danger. new text end

If there is imminent and substantial
danger to the health and welfare of the people of the state, or of any of them, as a result of
the pollution of air, land, or water, the deleted text begin agency deleted text end new text begin commissioner new text end may by emergency order direct
the immediate discontinuance or abatement of the pollution without notice and without a
hearing or at the request of the deleted text begin agency deleted text end new text begin commissioner new text end , the attorney general may bring an
action in the name of the state in the appropriate district court for a temporary restraining
order to immediately abate or prevent the pollution. The deleted text begin agency deleted text end new text begin commissioner's new text end order or
temporary restraining order deleted text begin shall remain deleted text end new text begin is new text end effective until notice, hearing, and determination
pursuant to other provisions of law, or, in the interim, as otherwise ordered. A final order
of the deleted text begin agency deleted text end new text begin commissioner new text end in these cases deleted text begin shall be deleted text end new text begin is new text end appealable in accordance with chapter
14.

new text begin Subd. 2. new text end

new text begin Other acts of concern. new text end

new text begin (a) The commissioner may exercise the authority under
paragraph (b) when the commissioner has evidence of any of the following:
new text end

new text begin (1) falsification of records;
new text end

new text begin (2) a history of noncompliance with schedules of compliance or terms of a stipulation
agreement;
new text end

new text begin (3) chronic or substantial permit violations; or
new text end

new text begin (4) operating with or without a permit where there is evidence of danger to the health
or welfare of the people of the state or evidence of environmental harm.
new text end

new text begin (b) When the commissioner has evidence of behavior specified in paragraph (a),
regardless of the presence of imminent and substantial danger, the commissioner may
investigate and may:
new text end

new text begin (1) suspend or revoke a permit;
new text end

new text begin (2) issue an order to cease operation or activities;
new text end

new text begin (3) require financial assurances;
new text end

new text begin (4) reopen and modify a permit to require additional terms;
new text end

new text begin (5) require additional agency oversight; or
new text end

new text begin (6) pursue other actions deemed necessary to abate pollution and protect human health.
new text end