SF 507

3rd Engrossment - 79th Legislature (1995 - 1996) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to the environment; modifying the petroleum 
  1.3             tank release cleanup program; providing for payment 
  1.4             for a site assessment prior to tank removal; modifying 
  1.5             reimbursement provisions; adding requirements for tank 
  1.6             monitoring; establishing registration requirements; 
  1.7             modifying program and liability provisions; clarifying 
  1.8             liability for oil discharges; amending Minnesota 
  1.9             Statutes 1994, sections 88.171, subdivision 2; 
  1.10            115C.02, by adding subdivisions; 115C.03, subdivision 
  1.11            10; 115C.09, subdivisions 2, 3, 3b, and 3c; 115C.11, 
  1.12            subdivisions 1 and 2; 115C.12; 115C.13; 115E.01, by 
  1.13            adding subdivisions; 115E.04, subdivision 2; 115E.06; 
  1.14            and 115E.061; proposing coding for new law in 
  1.15            Minnesota Statutes, chapters 115C; and 116. 
  1.16  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.17                             ARTICLE 1
  1.18     Section 1.  Minnesota Statutes 1994, section 115C.02, is 
  1.19  amended by adding a subdivision to read: 
  1.20     Subd. 11a.  [PREREMOVAL SITE ASSESSMENT.] "Preremoval site 
  1.21  assessment" means actions defined in section 115A.092 which are 
  1.22  taken by a registered consultant or the consultant's 
  1.23  subcontractor prior to the removal of a petroleum storage tank 
  1.24  in order to determine whether a release has occurred in the area 
  1.25  immediately surrounding the tank. 
  1.26     Sec. 2.  Minnesota Statutes 1994, section 115C.02, is 
  1.27  amended by adding a subdivision to read: 
  1.28     Subd. 12a.  [RESIDENTIAL SITE.] "Residential site" means a 
  1.29  site containing a residence used for permanent habitation by an 
  1.30  applicant.  A residence may be part of a multipurpose or 
  2.1   multidwelling building, but shall not include multidwelling 
  2.2   units which contain more than two separate residences, or 
  2.3   buildings such as hotels, hospitals, motels, dormitories, 
  2.4   sanitariums, nursing homes, schools or other buildings used for 
  2.5   educational purposes, or correctional institutions. 
  2.6      Sec. 3.  Minnesota Statutes 1994, section 115C.03, 
  2.7   subdivision 10, is amended to read: 
  2.8      Subd. 10.  [RETENTION OF CORRECTIVE ACTION RECORDS.] A 
  2.9   person who applies for reimbursement under this chapter and a 
  2.10  contractor or consultant who has billed the applicant for 
  2.11  corrective action services that are part of the claim for 
  2.12  reimbursement must maintain prepare and retain all records 
  2.13  related to the claim for reimbursement corrective action 
  2.14  services for a minimum of five seven years from the date the 
  2.15  claim for reimbursement is submitted to the board. corrective 
  2.16  action services are performed, including, but not limited to, 
  2.17  invoices submitted to applicants, subcontractor invoices, 
  2.18  receipts for equipment rental, and all other goods rented or 
  2.19  purchased, personnel time reports, mileage logs, and expense 
  2.20  accounts.  An applicant must obtain and retain records necessary 
  2.21  to document costs submitted in a claim for reimbursement for 
  2.22  corrective action services for seven years from the date the 
  2.23  claim is submitted to the board. 
  2.24     Sec. 4.  Minnesota Statutes 1994, section 115C.09, 
  2.25  subdivision 2, is amended to read: 
  2.26     Subd. 2.  [RESPONSIBLE PERSON ELIGIBILITY.] (a) A 
  2.27  responsible person who has incurred reimbursable costs after 
  2.28  June 4, 1987, in response to a release, may apply to the board 
  2.29  for partial reimbursement under subdivision 3 and rules adopted 
  2.30  by the board.  The board may consider applications for 
  2.31  reimbursement at the following stages:  
  2.32     (1) after the commissioner approves a plan for corrective 
  2.33  action actions related to soil contamination excavation and 
  2.34  treatment or after the commissioner determines that further soil 
  2.35  excavation and treatment should not be done; 
  2.36     (2) after the commissioner determines that the corrective 
  3.1   action plan actions described in clause (1) has have been fully 
  3.2   constructed or, installed, or completed; 
  3.3      (3) after the commissioner approves a comprehensive plan 
  3.4   for corrective action that will adequately address the entire 
  3.5   release, including groundwater contamination if necessary; 
  3.6      (4) after the commissioner determines that the corrective 
  3.7   action necessary to adequately address the release has been 
  3.8   fully constructed or installed; and 
  3.9      (5) periodically afterward as the corrective action 
  3.10  continues operation, but no more frequently than four times per 
  3.11  12-month period unless the application is for more than $2,000 
  3.12  in reimbursement. 
  3.13     (b) The commissioner shall review a plan, and provide an 
  3.14  approval or disapproval to the responsible person and the board, 
  3.15  within 60 days in the case of a plan submitted under paragraph 
  3.16  (a), clause (1), and within 120 days in the case of a plan 
  3.17  submitted under paragraph (a), clause (3), or the commissioner 
  3.18  shall explain to the board why additional time is necessary.  
  3.19  The board shall consider a complete application within 60 days 
  3.20  of submission of the application under paragraph (a), clauses 
  3.21  (1) and (2), and within 120 days of submission of the 
  3.22  application under paragraph (a), clauses (3) and (4), or the 
  3.23  board shall explain for the record why additional time is 
  3.24  necessary.  For purposes of the preceding sentence, board 
  3.25  consideration of an application is timely if it occurs at the 
  3.26  regularly scheduled meeting following the deadline.  Board staff 
  3.27  may review applications submitted to the board simultaneous to 
  3.28  the commissioner's consideration of the appropriateness of the 
  3.29  corrective action, but the board may not act on the application 
  3.30  until after the commissioner's approval is received. 
  3.31     (c) A reimbursement may not be made unless the board 
  3.32  determines that the commissioner has determined that the 
  3.33  corrective action was appropriate in terms of protecting public 
  3.34  health, welfare, and the environment. 
  3.35     Sec. 5.  Minnesota Statutes 1994, section 115C.09, 
  3.36  subdivision 3, is amended to read: 
  4.1      Subd. 3.  [REIMBURSEMENTS; SUBROGATION; APPROPRIATION.] (a) 
  4.2   The board shall reimburse a responsible person who is eligible 
  4.3   under subdivision 2 from the account for in the following 
  4.4   amounts: 
  4.5      (1) 90 percent of the total reimbursable costs on the first 
  4.6   $250,000 and 75 percent on any remaining costs in excess of 
  4.7   $250,000 on a site; or 
  4.8      (2) for corrective actions at a residential site used as a 
  4.9   permanent residence at the time the release was discovered, 92.5 
  4.10  percent of the total reimbursable costs on the first $100,000 
  4.11  and 100 percent of any remaining costs in excess of $100,000. 
  4.12     Not more than $1,000,000 may be reimbursed for costs 
  4.13  associated with a single release, regardless of the number of 
  4.14  persons eligible for reimbursement, and not more than $2,000,000 
  4.15  may be reimbursed for costs associated with a single tank 
  4.16  facility. 
  4.17     (b) A reimbursement may not be made from the account under 
  4.18  this subdivision until the board has determined that the costs 
  4.19  for which reimbursement is requested were actually incurred and 
  4.20  were reasonable. 
  4.21     (c) When an applicant has obtained responsible competitive 
  4.22  bids or proposals according to rules promulgated under this 
  4.23  chapter prior to June 1, 1995, the eligible costs for the tasks, 
  4.24  procedures, services, materials, equipment, and tests of the low 
  4.25  bid or proposal are presumed to be reasonable by the board, 
  4.26  unless the costs of the low bid or proposal are substantially in 
  4.27  excess of the average costs charged for similar tasks, 
  4.28  procedures, services, materials, equipment, and tests in the 
  4.29  same geographical area during the same time period. 
  4.30     (d) When an applicant has obtained a minimum of two 
  4.31  responsible competitive bids or proposals on forms prescribed by 
  4.32  the board and where the rules promulgated under this chapter 
  4.33  after June 1, 1995, designate maximum costs for specific tasks, 
  4.34  procedures, services, materials, equipment and tests, the 
  4.35  eligible costs of the low bid or proposal are deemed reasonable 
  4.36  if the costs are at or below the maximums set forth in the rules.
  5.1      (e) Costs incurred for change orders executed as prescribed 
  5.2   in rules promulgated under this chapter after June 1, 1995, are 
  5.3   presumed reasonable if the costs are at or below the maximums 
  5.4   set forth in the rules, unless the costs in the change order are 
  5.5   above those in the original bid or proposal or are 
  5.6   unsubstantiated and inconsistent with the process and standards 
  5.7   required by the rules. 
  5.8      (c) (f) A reimbursement may not be made from the account 
  5.9   under this subdivision in response to either an initial or 
  5.10  supplemental application for costs incurred after June 4, 1987, 
  5.11  that are payable under an applicable insurance policy, except 
  5.12  that if the board finds that the responsible person has made 
  5.13  reasonable efforts to collect from an insurer and failed, the 
  5.14  board shall reimburse the responsible person under this 
  5.15  subdivision. 
  5.16     (d) (g) If the board reimburses a responsible person for 
  5.17  costs for which the responsible person has petroleum tank 
  5.18  leakage or spill insurance coverage, the board is subrogated to 
  5.19  the rights of the responsible person with respect to that 
  5.20  insurance coverage, to the extent of the reimbursement by the 
  5.21  board.  The board may request the attorney general to bring an 
  5.22  action in district court against the insurer to enforce the 
  5.23  board's subrogation rights.  Acceptance by a responsible person 
  5.24  of reimbursement constitutes an assignment by the responsible 
  5.25  person to the board of any rights of the responsible person with 
  5.26  respect to any insurance coverage applicable to the costs that 
  5.27  are reimbursed.  Notwithstanding this paragraph, the board may 
  5.28  instead request a return of the reimbursement under subdivision 
  5.29  5 and may employ against the responsible party the remedies 
  5.30  provided in that subdivision, except where the board has 
  5.31  knowingly provided reimbursement because the responsible person 
  5.32  was denied coverage by the insurer. 
  5.33     (e) (h) Money in the account is appropriated to the board 
  5.34  to make reimbursements under this section.  A reimbursement to a 
  5.35  state agency must be credited to the appropriation account or 
  5.36  accounts from which the reimbursed costs were paid. 
  6.1      (f) (i) The board shall may reduce the amount of 
  6.2   reimbursement to be made under this section if it finds that the 
  6.3   responsible person has not complied with a provision of this 
  6.4   chapter, a rule or order issued under this chapter, or one or 
  6.5   more of the following requirements: 
  6.6      (1) at the time of the release the tank was in substantial 
  6.7   compliance with state and federal rules and regulations 
  6.8   applicable to the tank, including rules or regulations relating 
  6.9   to financial responsibility; 
  6.10     (2) (1) the agency was given notice of the release as 
  6.11  required by section 115.061; 
  6.12     (3) (2) the responsible person, to the extent possible, 
  6.13  fully cooperated with the agency in responding to the release; 
  6.14  and 
  6.15     (4) if the responsible person is an operator, the person 
  6.16  exercised due care with regard to operation of the tank, 
  6.17  including maintaining inventory control procedures. 
  6.18     (3) the state and federal rules and regulations applicable 
  6.19  to the condition or operation of the tank when the noncompliance 
  6.20  caused or failed to mitigate the release. 
  6.21     (g) (j) The reimbursement shall may be reduced as much as 
  6.22  100 percent for failure by the responsible person to comply with 
  6.23  the requirements in paragraph (f) (i), clauses (1) to (4) (3).  
  6.24  In determining the amount of the reimbursement reduction, the 
  6.25  board shall consider:  
  6.26     (1) the likely reasonable determination by the agency of 
  6.27  the environmental impact of the noncompliance; 
  6.28     (2) whether the noncompliance was negligent, knowing, or 
  6.29  willful; 
  6.30     (3) the deterrent effect of the award reduction on other 
  6.31  tank owners and operators; and 
  6.32     (4) the amount of reimbursement reduction recommended by 
  6.33  the commissioner. 
  6.34     (h) (k) A person may assign the right to receive 
  6.35  reimbursement to each lender who advanced funds to pay the costs 
  6.36  of the corrective action or to each contractor or consultant who 
  7.1   provided corrective action services.  An assignment must be made 
  7.2   by filing with the board a document, in a form prescribed by the 
  7.3   board, indicating the identity of the responsible person, the 
  7.4   identity of the assignee, the dollar amount of the assignment, 
  7.5   and the location of the corrective action.  An assignment signed 
  7.6   by the responsible person is valid unless terminated by filing a 
  7.7   termination with the board, in a form prescribed by the board, 
  7.8   which must include the written concurrence of the assignee.  The 
  7.9   board shall maintain an index of assignments filed under this 
  7.10  paragraph.  The board shall pay the reimbursement to the 
  7.11  responsible person and to one or more assignees by a multiparty 
  7.12  check.  The board has no liability to a responsible person for a 
  7.13  payment under an assignment meeting the requirements of this 
  7.14  paragraph. 
  7.15     Sec. 6.  Minnesota Statutes 1994, section 115C.09, 
  7.16  subdivision 3b, is amended to read: 
  7.17     Subd. 3b.  [VOLUNTEER ELIGIBILITY.] (a) Notwithstanding 
  7.18  subdivisions 1 to 3, a person may apply to the board for partial 
  7.19  reimbursement under subdivision 3 who: 
  7.20     (1) is not a responsible person under section 115C.02; 
  7.21     (2) holds legal or equitable title to the property where a 
  7.22  release occurred; and 
  7.23     (3) incurs reimbursable costs on or after May 23, 1989. 
  7.24     (b) A person eligible for reimbursement under this 
  7.25  subdivision must, to the maximum extent possible, comply with 
  7.26  the same conditions and requirements of reimbursement as those 
  7.27  imposed by this section on a responsible person. 
  7.28     (c) The board may reduce the reimbursement to a person 
  7.29  eligible under this subdivision if the person acquired legal or 
  7.30  equitable title to the property from a responsible person who 
  7.31  failed to comply with the provisions of subdivision 3, paragraph 
  7.32  (f) (i), except that the board may not reduce the reimbursement 
  7.33  to a mortgagee who acquires title to the property through 
  7.34  foreclosure or receipt of a deed in lieu of foreclosure. 
  7.35     Sec. 7.  Minnesota Statutes 1994, section 115C.09, 
  7.36  subdivision 3c, is amended to read: 
  8.1      Subd. 3c.  [RELEASE AT REFINERIES AND TANK FACILITIES NOT 
  8.2   ELIGIBLE FOR REIMBURSEMENT.] (a) Notwithstanding other 
  8.3   provisions of subdivisions 1 to 3b, a reimbursement may not be 
  8.4   made under this section for costs associated with a release:  
  8.5      (1) from a tank located at a petroleum refinery; or 
  8.6      (2) from a tank facility, including a pipeline terminal, 
  8.7   with more than 1,000,000 gallons of total petroleum storage 
  8.8   capacity at the tank facility.  
  8.9      (b) Paragraph (a), clause (2), does not apply to 
  8.10  reimbursement for costs associated with a release from a tank 
  8.11  facility:  
  8.12     (1) owned or operated by a person engaged in the business 
  8.13  of mining iron ore or taconite; 
  8.14     (2) owned by a political subdivision, a housing and 
  8.15  redevelopment authority, an economic development authority, or a 
  8.16  port authority that acquired the tank facility prior to May 23, 
  8.17  1989; or 
  8.18     (3) owned by a person: 
  8.19     (i) who acquired the tank facility prior to May 23, 1989; 
  8.20     (ii) who did not use the tank facility for the bulk storage 
  8.21  of petroleum; and 
  8.22     (iii) who is not affiliated with the party who used the 
  8.23  tank facility for the bulk storage of petroleum. 
  8.24     Sec. 8.  [115C.092] [TANK REMOVALS; PAYMENT FOR PREREMOVAL 
  8.25  SITE ASSESSMENT.] 
  8.26     Subdivision 1.  [PREREMOVAL SITE ASSESSMENT; 
  8.27  REIMBURSEMENT.] (a) Preremoval site assessment costs which are 
  8.28  in compliance with the requirements of this chapter and with 
  8.29  rules promulgated under this chapter shall be reimbursable.  The 
  8.30  applicant shall obtain written competitive proposals for the 
  8.31  preremoval site assessment on a form prescribed by the board 
  8.32  utilizing, as appropriate, tasks and costs established in rules 
  8.33  promulgated under this chapter governing the initial site 
  8.34  assessment. 
  8.35     (b) If contamination is found at the site, the board shall 
  8.36  reimburse an applicant upon submission of the applicant's first 
  9.1   application for reimbursement under section 115C.09, subdivision 
  9.2   2.  If no contamination is found at the site, the board shall 
  9.3   reimburse the applicant upon provision by the applicant of 
  9.4   documentation that the tank or tanks have been removed from the 
  9.5   site. 
  9.6      (c) Notwithstanding any provision in this subdivision to 
  9.7   the contrary, the board shall not reimburse for a preremoval 
  9.8   site assessment which is done for the purposes of facilitating a 
  9.9   property transfer.  The board shall presume that a preremoval 
  9.10  site assessment is done for the purposes of facilitating a 
  9.11  property transfer if the property is transferred within three 
  9.12  months of incurring preremoval site assessment costs. 
  9.13     Subd. 2.  [REQUIREMENTS OF A PREREMOVAL SITE ASSESSMENT.] 
  9.14  The preremoval site assessment shall include a preremoval site 
  9.15  assessment report to the tank owner as prescribed in subdivision 
  9.16  3 and (1) three borings if one tank is to be removed, or (2) 
  9.17  five borings if more than one tank is to be removed.  The 
  9.18  placement of the borings shall be based on the tank system 
  9.19  location, estimated depth and gradient of groundwater, and the 
  9.20  maximum probability of encountering evidence of petroleum 
  9.21  contamination. 
  9.22     Subd. 3.  [REPORT TO TANK OWNER.] The consultant shall 
  9.23  prepare a preremoval site assessment report which must include 
  9.24  the following: 
  9.25     (1) a summary of any unusual site features affecting the 
  9.26  preremoval site assessment and subsequent corrective action; 
  9.27     (2) the opinion of the consultant as to the presence and 
  9.28  relative magnitude of any petroleum contamination on the site; 
  9.29     (3) the recommendation of the consultant as to whether 
  9.30  further corrective action is needed, including groundwater 
  9.31  remediation; 
  9.32     (4) the recommendation of the consultant as to whether the 
  9.33  contaminated soil, if any, should be excavated and the volume of 
  9.34  soil that should be excavated; 
  9.35     (5) a statement as to whether a petroleum tank release was 
  9.36  reported to the agency and the date and time of that report, if 
 10.1   any; and 
 10.2      (6) the signature of the consultant or contractor, and the 
 10.3   date the report was prepared.  
 10.4      If further corrective action is recommended by the 
 10.5   consultant, the preremoval site assessment report and any 
 10.6   additional information gathered by the consultant during the 
 10.7   assessment shall be used for securing competitive bids or 
 10.8   proposals on forms prescribed by the board to implement 
 10.9   corrective actions at the site, consistent with rules 
 10.10  promulgated under this chapter. 
 10.11     Subd. 4.  [BID AND INVOICE FORMS; AGENCY FACT SHEETS.] By 
 10.12  August 1, 1995, the board shall prescribe a preremoval site 
 10.13  assessment bid and invoice form as described in subdivision 1 
 10.14  and the agency shall publish fact sheets applicable to the 
 10.15  preremoval site assessment. 
 10.16     Sec. 9.  Minnesota Statutes 1994, section 115C.11, 
 10.17  subdivision 1, is amended to read: 
 10.18     Subdivision 1.  [REGISTRATION.] (a) All consultants and 
 10.19  contractors who perform corrective action services must register 
 10.20  with the board in order to participate in the petroleum tank 
 10.21  release cleanup program.  In order to register, consultants must 
 10.22  meet and demonstrate compliance with the following criteria: 
 10.23     (1) provide a signed statement to the board verifying 
 10.24  agreement to abide by this chapter and the rules adopted under 
 10.25  it and to include a signed statement with each claim that all 
 10.26  costs claimed by the consultant are a true and accurate account 
 10.27  of services performed; 
 10.28     (2) provide a signed statement that the consultant shall 
 10.29  make available for inspection any records requested by the board 
 10.30  for field or financial audits under the scope of this chapter; 
 10.31     (3) certify knowledge of the requirements of this chapter 
 10.32  and the rules adopted under it; 
 10.33     (4) obtain and maintain professional liability coverage, 
 10.34  including pollution impairment liability; and 
 10.35     (5) agree to submit to the board a certificate or 
 10.36  certificates verifying the existence of the required insurance 
 11.1   coverage. 
 11.2      (b) The board must maintain a list of all registered 
 11.3   consultants and a list of all registered contractors including 
 11.4   an identification of the services offered. 
 11.5      (c) An applicant who applies for reimbursement must use a 
 11.6   All corrective action services must be performed by registered 
 11.7   consultant consultants and contractor in order to be eligible 
 11.8   for reimbursement contractors. 
 11.9      (d) The commissioner must inform any person who notifies 
 11.10  the agency of a release under section 115.061 that the person 
 11.11  must use a registered consultant or contractor to qualify for 
 11.12  reimbursement and that a list of registered consultants and 
 11.13  contractors is available from the board. 
 11.14     (e) Work Reimbursement for corrective action services 
 11.15  performed by an unregistered consultant or contractor 
 11.16  is ineligible for reimbursement subject to reduction under 
 11.17  section 115C.09, subdivision 3, paragraph (i). 
 11.18     (f) Work (e) Corrective action services performed by a 
 11.19  consultant or contractor prior to being removed from the 
 11.20  registration list may be reimbursed without reduction by the 
 11.21  board. 
 11.22     (g) (f) If the information in an application for 
 11.23  registration becomes inaccurate or incomplete in any material 
 11.24  respect, the registered consultant or contractor must promptly 
 11.25  file a corrected application with the board. 
 11.26     (h) (g) Registration is effective on the date a complete 
 11.27  application is received by the board.  The board may 
 11.28  reimburse without reduction the cost of work performed by an 
 11.29  unregistered contractor if the contractor performed the work 
 11.30  within 30 days of the effective date of registration. 
 11.31     Sec. 10.  Minnesota Statutes 1994, section 115C.11, 
 11.32  subdivision 2, is amended to read: 
 11.33     Subd. 2.  [DISQUALIFICATION.] (a) The board must 
 11.34  automatically remove from the registration list for five years a 
 11.35  consultant or contractor who is convicted in a criminal 
 11.36  proceeding for submitting false or fraudulent bills that are 
 12.1   part of a claim for reimbursement under section 115C.09.  The 
 12.2   board may, in addition, impose one or more of the sanctions in 
 12.3   paragraph (c).  
 12.4      (b) The board may impose sanctions under paragraph (c) on a 
 12.5   consultant or contractor for any of the following reasons: 
 12.6      (1) engaging in conduct that departs from or fails to 
 12.7   conform to the minimal standards of acceptable and prevailing 
 12.8   engineering, hydrogeological, or other technical practices 
 12.9   within the reasonable control of the consultant or contractor; 
 12.10     (2) participating in a kickback scheme prohibited under 
 12.11  section 115C.045; 
 12.12     (3) engaging in conduct likely to deceive or defraud, or 
 12.13  demonstrating a willful or careless disregard for public health 
 12.14  or the environment; 
 12.15     (4) commission of fraud, embezzlement, theft, forgery, 
 12.16  bribery, falsification or destruction of records, making false 
 12.17  statements, receiving stolen property, making false claims, or 
 12.18  obstruction of justice; or 
 12.19     (5) revocation, suspension, restriction, limitation, or 
 12.20  other disciplinary action against the contractor's or 
 12.21  consultant's license or certification in another state or 
 12.22  jurisdiction; or 
 12.23     (6) if the person is a consultant, failure to comply with 
 12.24  any of the ongoing obligations for registration as a consultant 
 12.25  in subdivision 1, paragraph (a). 
 12.26     (c) The board may impose one or more of the following 
 12.27  sanctions: 
 12.28     (1) remove a consultant or contractor from the registration 
 12.29  list for up to five years; 
 12.30     (2) publicly reprimand or censure the consultant or 
 12.31  contractor; 
 12.32     (3) place the consultant or contractor on probation for a 
 12.33  period and upon terms and conditions the board prescribes; 
 12.34     (4) require payment of all costs of proceedings resulting 
 12.35  in an action instituted under this paragraph; or 
 12.36     (5) impose a civil penalty of not more than $10,000, in an 
 13.1   amount that the board determines will deprive the consultant or 
 13.2   contractor of any economic advantage gained by reason of the 
 13.3   consultant's or contractor's conduct or to reimburse the board 
 13.4   for the cost of the investigation and proceeding.  
 13.5      (d) In deciding whether a particular sanction is 
 13.6   appropriate, the board must consider the seriousness of the 
 13.7   consultant's or contractor's acts or omissions and any 
 13.8   mitigating factors. 
 13.9      (e) Civil penalties recovered by the state under this 
 13.10  section must be credited to the account.  
 13.11     Sec. 11.  Minnesota Statutes 1994, section 115C.12, is 
 13.12  amended to read: 
 13.13     115C.12 [APPEAL OF REIMBURSEMENT DETERMINATION.] 
 13.14     Subdivision 1.  [APPEAL FROM DETERMINATION OF COMMISSIONER 
 13.15  OF COMMERCE.] (a) A person may appeal to the board within 90 
 13.16  days after notice of a reimbursement determination made under 
 13.17  section 115C.09 by submitting a written notice setting forth the 
 13.18  specific basis for the appeal. 
 13.19     (b) The board shall consider the appeal within 90 days of 
 13.20  the notice of appeal.  The board shall notify the appealing 
 13.21  party of the date of the meeting at which the appeal will be 
 13.22  heard at least 30 days before the date of the meeting. 
 13.23     (c) The board's decision must be based on the written 
 13.24  record and written arguments and submissions unless the board 
 13.25  determines that oral argument is necessary to aid the board in 
 13.26  its decision making.  Any written submissions must be delivered 
 13.27  to the board at least 15 days before the meeting at which the 
 13.28  appeal will be heard.  Any request for the presentation of oral 
 13.29  argument must be in writing and submitted along with the notice 
 13.30  of appeal.  An applicant for reimbursement may appeal to the 
 13.31  board a reimbursement determination made by the commissioner of 
 13.32  commerce under authority delegated by the board according to 
 13.33  section 115C.09, subdivision 10.  The commissioner of commerce 
 13.34  shall send written notification of the reimbursement 
 13.35  determination by first class United States mail to the applicant 
 13.36  for reimbursement at the applicant's last known address.  The 
 14.1   applicant for reimbursement must file written notice with the 
 14.2   board of an appeal of a reimbursement determination made by the 
 14.3   commissioner of commerce within 60 days of the date that the 
 14.4   commissioner of commerce sends written notice to the applicant 
 14.5   of the reimbursement determination.  The board shall consider 
 14.6   the appeal within 90 days of receipt of the written notice of 
 14.7   appeal by the applicant for reimbursement. 
 14.8      Subd. 2.  [APPEAL FROM DECISION OF THE BOARD.] (a) An 
 14.9   applicant for reimbursement may appeal a reimbursement 
 14.10  determination of the board as a contested case under chapter 
 14.11  14.  An applicant for reimbursement must provide written 
 14.12  notification to the board of a request for a contested case 
 14.13  within 30 days of the date that the board makes a reimbursement 
 14.14  determination. 
 14.15     (b) This subdivision applies to reimbursement 
 14.16  determinations made by the board as a result of an appeal to the 
 14.17  board under subdivision 1 and reimbursement determinations made 
 14.18  by the board when the board has not delegated its authority to 
 14.19  make reimbursement determinations. 
 14.20     Sec. 12.  Minnesota Statutes 1994, section 115C.13, is 
 14.21  amended to read: 
 14.22     115C.13 [REPEALER.] 
 14.23     Sections 115C.01, 115C.02, 115C.021, 115C.03, 115C.04, 
 14.24  115C.045, 115C.05, 115C.06, 115C.065, 115C.07, 115C.08, 115C.09, 
 14.25  115C.092, 115C.10, 115C.11, and 115C.12, are repealed effective 
 14.26  June 30, 2000. 
 14.27     Sec. 13.  [116.481] [MONITORING.] 
 14.28     Subdivision 1.  [MEASUREMENT OF TANK CAPACITY.] (a) By 
 14.29  September 1, 1996, all aboveground tanks of 2,000 gallons or 
 14.30  more used for storage and subsequent resale of petroleum 
 14.31  products must be equipped with: 
 14.32     (1) a gauge in working order that shows the current level 
 14.33  of product in the tank; or 
 14.34     (2) an audible or visual alarm which alerts the person 
 14.35  delivering fuel into the tank that the tank is within 100 
 14.36  gallons of capacity. 
 15.1      (b) In lieu of the equipment specified in paragraph (a), 
 15.2   the owner or operator of a tank may use a manual method of 
 15.3   measurement which accurately determines the amount of product in 
 15.4   the tank and the amount of capacity available to be used.  This 
 15.5   information must be readily available to anyone delivering fuel 
 15.6   into the tank prior to delivery.  Documentation that a tank has 
 15.7   the available capacity for the amount of product to be delivered 
 15.8   must be transmitted to the person making the delivery. 
 15.9      Subd. 2.  [CONTENTS LABELED.] (a) By December 1, 1995, all 
 15.10  aboveground tanks governed by this section must be numbered and 
 15.11  labeled as to the tank contents, total capacity, and capacity in 
 15.12  volume increments of 500 gallons or less. 
 15.13     (b) Piping connected to the tank must be labeled with the 
 15.14  product carried at the point of delivery and at the tank inlet.  
 15.15  Manifolded delivery points must have all valves labeled as to 
 15.16  product distribution. 
 15.17     Subd. 3.  [SITE DIAGRAM.] (a) All tanks at a facility shall 
 15.18  be shown on a site diagram which is permanently mounted in an 
 15.19  area accessible to delivery personnel.  The diagram shall show 
 15.20  the number, capacity, and contents of tanks and the location of 
 15.21  piping, valves, storm sewers, and other information necessary 
 15.22  for emergency response, including the facility owner's or 
 15.23  operator's telephone number. 
 15.24     (b) Prior to delivering product into an underground or 
 15.25  aboveground tank, delivery personnel shall: 
 15.26     (1) consult the site diagram, where applicable, for proper 
 15.27  delivery points, tank and piping locations, and valve settings; 
 15.28     (2) visually inspect the tank, piping, and valve settings 
 15.29  to determine that the product being delivered will flow only 
 15.30  into the appropriate tank; and 
 15.31     (3) determine, using equipment and information available at 
 15.32  the site, that the available capacity of the tank is sufficient 
 15.33  to hold the amount being delivered. 
 15.34  Delivery personnel must remain in attendance during delivery. 
 15.35     Subd. 4.  [CAPACITY OF TANK.] A tank may not be filled from 
 15.36  a transport vehicle compartment containing more than the 
 16.1   available capacity of the tank, unless the hose of the transport 
 16.2   vehicle is equipped with a manually operated shut-off nozzle. 
 16.3      Subd. 5.  [EXEMPTION.] Aboveground and underground tanks 
 16.4   located at refineries, pipeline terminals, and river terminals 
 16.5   are exempt from this section. 
 16.6      Sec. 14.  [EFFECTIVE DATE.] 
 16.7      Sections 2 and 5, paragraph (a), are effective retroactive 
 16.8   to June 4, 1987.  Section 5, paragraphs (c) to (k), section 7, 
 16.9   and section 8, subdivision 4, are effective the day following 
 16.10  final enactment.  Section 10 is effective January 1, 1996.  All 
 16.11  other sections are effective August 1, 1995.  Sections 1 and 8 
 16.12  apply only to preremoval site assessments begun on or after 
 16.13  August 1, 1995. 
 16.14                             ARTICLE 2
 16.15     Section 1.  Minnesota Statutes 1994, section 88.171, 
 16.16  subdivision 2, is amended to read: 
 16.17     Subd. 2.  [PROHIBITED MATERIALS.] No person shall conduct, 
 16.18  cause, or permit open burning of oils, rubber, plastics, 
 16.19  chemically treated materials, or other materials which produce 
 16.20  excessive or noxious smoke including, but not limited to, tires, 
 16.21  railroad ties, chemically treated lumber, composite shingles, 
 16.22  tar paper, insulation, composition board, sheetrock, wiring, 
 16.23  paint, or paint filters.  Except as specifically authorized by 
 16.24  the commissioner of the pollution control agency as an emergency 
 16.25  response to an oil spill, no person shall conduct, cause, or 
 16.26  permit open burning of oil. 
 16.27     Sec. 2.  Minnesota Statutes 1994, section 115E.01, is 
 16.28  amended by adding a subdivision to read: 
 16.29     Subd. 3a.  [DAMAGES.] "Damages" means damages of any kind 
 16.30  for which liability may exist under the laws of this state 
 16.31  resulting from, arising out of, or related to the discharge or 
 16.32  threatened discharge of hazardous substances or oil. 
 16.33     Sec. 3.  Minnesota Statutes 1994, section 115E.01, is 
 16.34  amended by adding a subdivision to read: 
 16.35     Subd. 11a.  [RESPONSE AREA.] "Response area" means the area 
 16.36  designated by the federal on-scene coordinator, the commissioner 
 17.1   of the pollution control agency, or the commissioner of 
 17.2   agriculture in which response to a discharge is occurring. 
 17.3      Sec. 4.  Minnesota Statutes 1994, section 115E.01, is 
 17.4   amended by adding a subdivision to read: 
 17.5      Subd. 11b.  [RESPONSE COSTS.] "Response costs" means the 
 17.6   costs of response that are incurred after a discharge of oil or 
 17.7   hazardous substances has occurred, or, where there is a 
 17.8   substantial threat of discharge of oil or hazardous substances, 
 17.9   the costs to prevent, minimize, or mitigate a discharge. 
 17.10     Sec. 5.  Minnesota Statutes 1994, section 115E.01, is 
 17.11  amended by adding a subdivision to read: 
 17.12     Subd. 11c.  [RESPONSIBLE PARTY.] "Responsible party" means 
 17.13  a responsible party as defined in section 1001 of the Oil 
 17.14  Pollution Act of 1990. 
 17.15     Sec. 6.  Minnesota Statutes 1994, section 115E.04, 
 17.16  subdivision 2, is amended to read: 
 17.17     Subd. 2.  [TIMING.] (a) A person required to be prepared 
 17.18  under section 115E.03, other than a person who owns or operates 
 17.19  a motor vehicle, rolling stock, or a facility that stores less 
 17.20  than 250,000 gallons of oil or a hazardous substance, shall 
 17.21  complete the response plan required by this section by March 1, 
 17.22  1993, unless one of the commissioners orders the person to 
 17.23  demonstrate preparedness at an earlier date under section 
 17.24  115E.05.  Plans must be updated every three years.  Plans must 
 17.25  be updated before three years following a significant discharge, 
 17.26  upon significant change in vessel or facility operation or 
 17.27  ownership, upon significant change in the national or area 
 17.28  contingency plans under the Oil Pollution Act of 1990, or upon 
 17.29  change in the capabilities or role of a person named in a plan 
 17.30  who has an important response role.  
 17.31     (b) A person who owns or operates a motor vehicle, rolling 
 17.32  stock, or a facility that stores less than 250,000 gallons of 
 17.33  oil or a hazardous substance shall complete the response plan 
 17.34  required by this section by January 1, 1994. 
 17.35     (c) Plans required under section 115E.04 or 115E.045 must 
 17.36  be updated every three years.  Plans must be updated before 
 18.1   three years following a significant discharge, upon significant 
 18.2   change in vessel or facility operation or ownership, upon 
 18.3   significant change in the national or area contingency plans 
 18.4   under the Oil Pollution Act of 1990, or upon change in the 
 18.5   capabilities or role of a person named in a plan who has an 
 18.6   important response role. 
 18.7      Sec. 7.  Minnesota Statutes 1994, section 115E.06, is 
 18.8   amended to read: 
 18.9      115E.06 [GOOD SAMARITAN.] 
 18.10     (a) A person listed in this paragraph who is rendering 
 18.11  assistance in response to a discharge of a hazardous substance 
 18.12  or oil is not liable for response costs that result from actions 
 18.13  taken or failed to be taken in the course of the assistance 
 18.14  unless the person is grossly negligent or engages in willful 
 18.15  misconduct: 
 18.16     (1) a member of a cooperative or community awareness and 
 18.17  emergency response group in compliance with standards in rules 
 18.18  adopted by the pollution control agency; 
 18.19     (2) an employee or official of the political subdivision 
 18.20  where the response takes place, or a political subdivision that 
 18.21  has a mutual aid agreement with that subdivision; 
 18.22     (3) a member or political subdivision sponsor of a 
 18.23  hazardous materials incident response team or special chemical 
 18.24  assessment team designated by the commissioner of the department 
 18.25  of public safety; 
 18.26     (4) a person carrying out the directions of:  (i) the 
 18.27  commissioner of the pollution control agency, the commissioner 
 18.28  of agriculture, the commissioner of natural resources, or the 
 18.29  commissioner of public safety; or (ii) the United States Coast 
 18.30  Guard or Environmental Protection Agency on-scene coordinator 
 18.31  consistent with a national contingency plan under the Oil 
 18.32  Pollution Act of 1990; and 
 18.33     (5) a for-hire response contractor. 
 18.34     (b) This section does not exempt from liability responsible 
 18.35  persons with respect to the discharge under chapter 115B or 115C 
 18.36  or responsible parties with respect to the discharge under 
 19.1   chapter 18B or 18D. 
 19.2      Sec. 8.  Minnesota Statutes 1994, section 115E.061, is 
 19.3   amended to read: 
 19.4      115E.061 [RESPONDER IMMUNITY; OIL DISCHARGES.] 
 19.5      (a) Notwithstanding any other law, a person identified in 
 19.6   section 115E.06, paragraph (a), who is rendering care, 
 19.7   assistance, or advice in response to a discharge or threat of 
 19.8   discharge of oil is not liable for response costs or damages 
 19.9   that result from actions taken or failed to be taken in the 
 19.10  course of rendering the care, assistance, or advice in 
 19.11  accordance consistent with the national contingency plan under 
 19.12  the Oil Pollution Act of 1990, or as otherwise directed by the 
 19.13  federal on-scene coordinator, the commissioner of the pollution 
 19.14  control agency, the commissioner of agriculture, the 
 19.15  commissioner of natural resources, or the commissioner of public 
 19.16  safety. 
 19.17     (b) Paragraph (a) does not apply: 
 19.18     (1) to a responsible person under chapter 115B or 115C 
 19.19  party; 
 19.20     (2) with respect to personal injury or wrongful death; or 
 19.21     (3) if the person rendering assistance is grossly negligent 
 19.22  or engages in willful misconduct; or 
 19.23     (4) to a discharge that occurs outside the response area or 
 19.24  after the response. 
 19.25     (c) Nothing in this section relieves a responsible party 
 19.26  from liability the responsible party otherwise has for the 
 19.27  initial discharge or threat of discharge that necessitated the 
 19.28  response. 
 19.29     (d) Nothing in this section relieves a responsible party 
 19.30  from the following duties: 
 19.31     (1) to take steps to prevent discharges under section 
 19.32  115E.02; 
 19.33     (2) to be prepared for discharges under section 115E.03, 
 19.34  subdivision 1; or 
 19.35     (3) duties under section 115.061. 
 19.36     (e) A responsible party is liable for any response costs 
 20.1   and damages that another person is relieved of under paragraph 
 20.2   (a). 
 20.3      Sec. 9.  [EFFECTIVE DATE.] 
 20.4      Sections 1 to 8 are effective the day following final 
 20.5   enactment.