1st Engrossment - 83rd Legislature (2003 - 2004) Posted on 12/15/2009 12:00am
1.1 A bill for an act 1.2 relating to the environment; modifying provisions 1.3 relating to the petroleum tank release cleanup fund; 1.4 amending Minnesota Statutes 2002, sections 115C.02, 1.5 subdivision 14; 115C.08, subdivision 4; 115C.09, 1.6 subdivision 3, by adding a subdivision; 115C.11, 1.7 subdivision 1; 115C.13; proposing coding for new law 1.8 in Minnesota Statutes, chapter 115C. 1.9 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 1.10 Section 1. Minnesota Statutes 2002, section 115C.02, 1.11 subdivision 14, is amended to read: 1.12 Subd. 14. [TANK.] "Tank" means any one or a combination of 1.13 containers, vessels, and enclosures, including structures and 1.14 appurtenances connected to them, that is, or has been, used to 1.15 contain
or, dispense, store, or transport petroleum. 1.16 "Tank" does not include: 1.17 (1) a mobile storage tank used to transport petroleum from1.18 one location to another, except a mobile storage tank with a1.19 capacity of 500 gallons or less used only to transport home1.20 heating fuel on private property; or1.21 (2)pipeline facilities, including gathering lines, 1.22 regulated under the Natural Gas Pipeline Safety Act of 1968, 1.23 United States Code, title 49, chapter 24, or the Hazardous 1.24 Liquid Pipeline Safety Act of 1979, United States Code, title 1.25 49, chapter 29. 1.26 Sec. 2. Minnesota Statutes 2002, section 115C.08, 1.27 subdivision 4, is amended to read: 2.1 Subd. 4. [EXPENDITURES.] (a) Money in the fund may only be 2.2 spent: 2.3 (1) to administer the petroleum tank release cleanup 2.4 program established in this chapter; 2.5 (2) for agency administrative costs under sections 116.46 2.6 to 116.50, sections 115C.03 to 115C.06, and costs of corrective 2.7 action taken by the agency under section 115C.03, including 2.8 investigations; 2.9 (3) for costs of recovering expenses of corrective actions 2.10 under section 115C.04; 2.11 (4) for training, certification, and rulemaking under 2.12 sections 116.46 to 116.50; 2.13 (5) for agency administrative costs of enforcing rules 2.14 governing the construction, installation, operation, and closure 2.15 of aboveground and underground petroleum storage tanks; 2.16 (6) for reimbursement of the environmental response, 2.17 compensation, and compliance account under subdivision 5 and 2.18 section 115B.26, subdivision 4; 2.19 (7) for administrative and staff costs as set by the board 2.20 to administer the petroleum tank release program established in 2.21 this chapter; 2.22 (8) for corrective action performance audits under section 2.23 115C.093; and2.24 (9) for contamination cleanup grants, as provided in 2.25 paragraph (c); and 2.26 (10) to assess and remove abandoned underground storage 2.27 tanks under section 115C.094 and, if a release is discovered, to 2.28 pay for the specific consultant and contractor services costs 2.29 necessary to complete the tank removal project, including, but 2.30 not limited to, excavation soil sampling, groundwater sampling, 2.31 soil disposal, and completion of an excavation report. 2.32 (b) Except as provided in paragraph (c), money in the fund 2.33 is appropriated to the board to make reimbursements or payments 2.34 under this section. 2.35 (c) $6,200,000 is annually appropriated from the fund to 2.36 the commissioner of trade and economic development for 3.1 contamination cleanup grants under section 116J.554. Of this 3.2 amount, the commissioner may spend up to $120,000 annually for 3.3 administration of the contamination cleanup grant program. The 3.4 appropriation does not cancel and is available until expended. 3.5 The appropriation shall not be withdrawn from the fund nor the 3.6 fund balance reduced until the funds are requested by the 3.7 commissioner of trade and economic development. The 3.8 commissioner shall schedule requests for withdrawals from the 3.9 fund to minimize the necessity to impose the fee authorized by 3.10 subdivision 2. Unless otherwise provided, the appropriation in 3.11 this paragraph may be used for: 3.12 (1) project costs at a qualifying site if a portion of the 3.13 cleanup costs are attributable to petroleum contamination; and 3.14 (2) the costs of performing contamination investigation if 3.15 there is a reasonable basis to suspect the contamination is 3.16 attributable to petroleum. 3.17 Sec. 3. Minnesota Statutes 2002, section 115C.09, 3.18 subdivision 3, is amended to read: 3.19 Subd. 3. [REIMBURSEMENTS; SUBROGATION; APPROPRIATION.] (a) 3.20 The board shall reimburse an eligible applicant from the fund 3.21 for 90 percent of the total reimbursable costs incurred at the 3.22 site, except that the board may reimburse an eligible applicant 3.23 from the fund for greater than 90 percent of the total 3.24 reimbursable costs, if the applicant previously qualified for a 3.25 higher reimbursement rate. For costs associated with a release 3.26 from a tank in transport, the board may reimburse 90 percent of 3.27 costs over $10,000, with the maximum reimbursement not to exceed 3.28 $100,000. 3.29 Not more than $1,000,000 may be reimbursed for costs 3.30 associated with a single release, regardless of the number of 3.31 persons eligible for reimbursement, and not more than $2,000,000 3.32 may be reimbursed for costs associated with a single tank 3.33 facility. 3.34 (b) A reimbursement may not be made from the fund under 3.35 this chapter until the board has determined that the costs for 3.36 which reimbursement is requested were actually incurred and were 4.1 reasonable. 4.2 (c) When an applicant has obtained responsible competitive 4.3 bids or proposals according to rules promulgated under this 4.4 chapter prior to June 1, 1995, the eligible costs for the tasks, 4.5 procedures, services, materials, equipment, and tests of the low 4.6 bid or proposal are presumed to be reasonable by the board, 4.7 unless the costs of the low bid or proposal are substantially in 4.8 excess of the average costs charged for similar tasks, 4.9 procedures, services, materials, equipment, and tests in the 4.10 same geographical area during the same time period. 4.11 (d) When an applicant has obtained a minimum of two 4.12 responsible competitive bids or proposals on forms prescribed by 4.13 the board and where the rules promulgated under this chapter 4.14 after June 1, 1995, designate maximum costs for specific tasks, 4.15 procedures, services, materials, equipment and tests, the 4.16 eligible costs of the low bid or proposal are deemed reasonable 4.17 if the costs are at or below the maximums set forth in the rules. 4.18 (e) Costs incurred for change orders executed as prescribed 4.19 in rules promulgated under this chapter after June 1, 1995, are 4.20 presumed reasonable if the costs are at or below the maximums 4.21 set forth in the rules, unless the costs in the change order are 4.22 above those in the original bid or proposal or are 4.23 unsubstantiated and inconsistent with the process and standards 4.24 required by the rules. 4.25 (f) A reimbursement may not be made from the fund in 4.26 response to either an initial or supplemental application for 4.27 costs incurred after June 4, 1987, that are payable under an 4.28 applicable insurance policy, except that if the board finds that 4.29 the applicant has made reasonable efforts to collect from an 4.30 insurer and failed, the board shall reimburse the applicant. 4.31 (g) If the board reimburses an applicant for costs for 4.32 which the applicant has insurance coverage, the board is 4.33 subrogated to the rights of the applicant with respect to that 4.34 insurance coverage, to the extent of the reimbursement by the 4.35 board. The board may request the attorney general to bring an 4.36 action in district court against the insurer to enforce the 5.1 board's subrogation rights. Acceptance by an applicant of 5.2 reimbursement constitutes an assignment by the applicant to the 5.3 board of any rights of the applicant with respect to any 5.4 insurance coverage applicable to the costs that are reimbursed. 5.5 Notwithstanding this paragraph, the board may instead request a 5.6 return of the reimbursement under subdivision 5 and may employ 5.7 against the applicant the remedies provided in that subdivision, 5.8 except where the board has knowingly provided reimbursement 5.9 because the applicant was denied coverage by the insurer. 5.10 (h) Money in the fund is appropriated to the board to make 5.11 reimbursements under this chapter. A reimbursement to a state 5.12 agency must be credited to the appropriation account or accounts 5.13 from which the reimbursed costs were paid. 5.14 (i) The board may reduce the amount of reimbursement to be 5.15 made under this chapter if it finds that the applicant has not 5.16 complied with a provision of this chapter, a rule or order 5.17 issued under this chapter, or one or more of the following 5.18 requirements: 5.19 (1) the agency was given notice of the release as required 5.20 by section 115.061; 5.21 (2) the applicant, to the extent possible, fully cooperated 5.22 with the agency in responding to the release; 5.23 (3) the state rules applicable after December 22, 1993, to 5.24 operating an underground storage tank and appurtenances without 5.25 leak detection; 5.26 (4) the state rules applicable after December 22, 1998, to 5.27 operating an underground storage tank and appurtenances without 5.28 corrosion protection or spill and overfill protection; and 5.29 (5) the state rule applicable after November 1, 1998, to 5.30 operating an aboveground tank without a dike or other structure 5.31 that would contain a spill at the aboveground tank site. 5.32 (j) The reimbursement may be reduced as much as 100 percent 5.33 for failure by the applicant to comply with the requirements in 5.34 paragraph (i), clauses (1) to (5). In determining the amount of 5.35 the reimbursement reduction, the board shall consider: 5.36 (1) the reasonable determination by the agency that the 6.1 noncompliance poses a threat to the environment; 6.2 (2) whether the noncompliance was negligent, knowing, or 6.3 willful; 6.4 (3) the deterrent effect of the award reduction on other 6.5 tank owners and operators; 6.6 (4) the amount of reimbursement reduction recommended by 6.7 the commissioner; and 6.8 (5) the documentation of noncompliance provided by the 6.9 commissioner. 6.10 (k) An applicant may assign the right to receive6.11 reimbursement torequest that the board issue a multiparty check 6.12 that includes each lender who advanced funds to pay the costs of 6.13 the corrective action or to each contractor or consultant who 6.14 provided corrective action services. An assignmentThis request 6.15 must be made by filing with the board a document, in a form 6.16 prescribed by the board, indicating the identity of the 6.17 applicant, the identity of the assigneelender, contractor, or 6.18 consultant, the dollar amount of the assignment, and the 6.19 location of the corrective action. An assignment signed by the6.20 applicant is valid unless terminated by filing a termination6.21 with the board, in a form prescribed by the board, which must6.22 include the written concurrence of the assignee. The board6.23 shall maintain an index of assignments filed under this6.24 paragraph. The board shall pay the reimbursement to the6.25 applicant and to one or more assignees by a multiparty6.26 check.The applicant must submit a request for the issuance of 6.27 a multiparty check for each application submitted to the board. 6.28 Payment under this paragraph does not constitute the assignment 6.29 of the applicant's right to reimbursement to the consultant, 6.30 contractor, or lender. The board has no liability to an 6.31 applicant for a payment under an assignment meetingissued as a 6.32 multiparty check that meets the requirements of this paragraph. 6.33 Sec. 4. Minnesota Statutes 2002, section 115C.09, is 6.34 amended by adding a subdivision to read: 6.35 Subd. 3i. [REIMBURSEMENT; NATURAL DISASTER AREA.] (a) As 6.36 used in this subdivision, "natural disaster area" means a 7.1 geographical area that has been declared a disaster by the 7.2 governor and President of the United States. 7.3 (b) Notwithstanding subdivision 3, paragraph (a), the board 7.4 may reimburse: 7.5 (1) up to 50 percent of an applicant's pre-natural-disaster 7.6 estimated building market value as recorded by the county 7.7 assessor; or 7.8 (2) if the applicant conveys title of the real estate to 7.9 local or state government, up to 50 percent of the 7.10 pre-natural-disaster estimated total market value, not to exceed 7.11 one acre, as recorded by the county assessor. 7.12 (c) Paragraph (b) applies only if the applicant documents 7.13 that: 7.14 (1) the natural disaster area has been declared eligible 7.15 for state or federal emergency aid; 7.16 (2) the building is declared uninhabitable by the 7.17 commissioner because of damage caused by the release of 7.18 petroleum from a petroleum storage tank; and 7.19 (3) the applicant has submitted a claim under any 7.20 applicable insurance policies and has been denied benefits under 7.21 those policies. 7.22 (d) In determining the percentage for reimbursement, the 7.23 board shall consider the applicant's eligibility to receive 7.24 other state or federal financial assistance and determine a 7.25 lesser reimbursement rate to the extent that the applicant is 7.26 eligible to receive financial assistance that exceeds 50 percent 7.27 of the applicant's pre-natural-disaster estimated building 7.28 market value or total market value. 7.29 Sec. 5. [115C.094] [ABANDONED UNDERGROUND STORAGE TANKS.] 7.30 (a) As used in this section, an abandoned underground 7.31 petroleum storage tank means an underground petroleum storage 7.32 tank that was: 7.33 (1) taken out of service prior to December 22, 1988; or 7.34 (2) taken out of service on or after December 22, 1988, if 7.35 the current property owner did not know of the existence of the 7.36 underground petroleum storage tank and could not have reasonably 8.1 been expected to have known of the tank's existence at the time 8.2 the owner first acquired right, title, or interest in the tank. 8.3 (b) The board may contract for: 8.4 (1) a statewide assessment in order to determine the 8.5 quantity, location, cost, and feasibility of removing abandoned 8.6 underground petroleum storage tanks; 8.7 (2) the removal of an abandoned underground petroleum 8.8 storage tank; and 8.9 (3) the removal and disposal of petroleum-contaminated soil 8.10 if the removal is required by the commissioner at the time of 8.11 tank removal. 8.12 (c) Before the board may contract for removal of an 8.13 abandoned petroleum storage tank, the tank owner must provide 8.14 the board with written access to the property and release the 8.15 board from any potential liability for the work performed. 8.16 (d) Money in the fund is appropriated to the board for the 8.17 purposes of this section. 8.18 Sec. 6. Minnesota Statutes 2002, section 115C.11, 8.19 subdivision 1, is amended to read: 8.20 Subdivision 1. [REGISTRATION.] (a) All consultants and 8.21 contractors who perform corrective action services must register 8.22 with the board. In order to register, consultants must meet and 8.23 demonstrate compliance with the following criteria: 8.24 (1) provide a signed statement to the board verifying 8.25 agreement to abide by this chapter and the rules adopted under 8.26 it and to include a signed statement with each claim that all 8.27 costs claimed by the consultant are a true and accurate account 8.28 of services performed; 8.29 (2) provide a signed statement that the consultant shall 8.30 make available for inspection any records requested by the board 8.31 for field or financial audits under the scope of this chapter; 8.32 (3) certify knowledge of the requirements of this chapter 8.33 and the rules adopted under it; 8.34 (4) obtain and maintain professional liability coverage, 8.35 including pollution impairment liability; and 8.36 (5) agree to submit to the board a certificate or 9.1 certificates verifying the existence of the required insurance 9.2 coverage. 9.3 (b) The board must maintain a list of all registered 9.4 consultants and a list of all registered contractors. 9.5 (c) All corrective action services must be performed by 9.6 registered consultants and contractors. 9.7 (d) Reimbursement for corrective action services performed 9.8 by an unregistered consultant or contractor is subject to 9.9 reduction under section 115C.09, subdivision 3, paragraph (i). 9.10 (e) Corrective action services performed by a consultant or 9.11 contractor prior to being removed from the registration list may 9.12 be reimbursed without reduction by the board. 9.13 (f) If the information in an application for registration 9.14 becomes inaccurate or incomplete in any material respect, the 9.15 registered consultant or contractor must promptly file a 9.16 corrected application with the board. 9.17 (g) Registration is effective 30 days after a complete 9.18 application is received by the board. The board may reimburse 9.19 without reduction the cost of work performed by an unregistered 9.20 contractor if the contractor performed the work within 60 days 9.21 of the effective date of registration. 9.22 (h) Registration for consultants under this section remains 9.23 in force until the expiration date of the professional liability 9.24 coverage, including pollution impairment liability, required 9.25 under paragraph (a), clause (4), or until voluntarily terminated 9.26 by the registrant, or until suspended or revoked by the 9.27 commissioner of commerce. Registration for contractors under 9.28 this section expires each year on the anniversary of the 9.29 effective date of the contractor's most recent registration and 9.30 must be renewed on or before expiration. Prior to its annual 9.31 expiration, a registration remains in force until voluntarily 9.32 terminated by the registrant, or until suspended or revoked by 9.33 the commissioner of commerce. All registrants must comply with 9.34 registration criteria under this section. 9.35 (i) The board may deny a consultant or contractor 9.36 registration or request for renewal under this section if the 10.1 consultant or contractor: 10.2 (1) does not intend to or is not in good faith carrying on 10.3 the business of an environmental consultant or contractor; 10.4 (2) has filed an application for registration that is 10.5 incomplete in any material respect or contains any statement 10.6 which, in light of the circumstances under which it is made, 10.7 contains any misrepresentation, or is false, misleading, or 10.8 fraudulent; 10.9 (3) has engaged in any fraudulent, coercive, deceptive, or 10.10 dishonest act or practice whether or not the act or practice 10.11 involves the business of environmental consulting or 10.12 contracting; 10.13 (4) has forged another's name to any document whether or 10.14 not the document relates to a document approved by the board; 10.15 (5) has plead guilty, with or without explicitly admitting 10.16 guilt; plead nolo contendere; or been convicted of a felony, 10.17 gross misdemeanor, or misdemeanor involving moral turpitude, 10.18 including, but not limited to, assault, harassment, or similar 10.19 conduct; 10.20 (6) has been subject to disciplinary action in another 10.21 state or jurisdiction; or 10.22 (7) has not paid subcontractors hired by the consultant or 10.23 contractor after they have been paid in full by the applicant. 10.24 Sec. 7. Minnesota Statutes 2002, section 115C.13, is 10.25 amended to read: 10.26 115C.13 [REPEALER.] 10.27 Sections 115C.01, 115C.02, 115C.021, 115C.03, 115C.04, 10.28 115C.045, 115C.05, 115C.06, 115C.065, 115C.07, 115C.08, 115C.09, 10.29 115C.093, 115C.094, 115C.10, 115C.11, 115C.111, 115C.112, 10.30 115C.113, 115C.12, and 115C.13, are repealed effective June 30, 10.31 20052007.