SF 1086

as introduced - 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.09, subdivision 3; 115C.11, 
  1.6             subdivision 1; 115C.13. 
  1.7   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.8      Section 1.  Minnesota Statutes 2002, section 115C.02, 
  1.9   subdivision 14, is amended to read: 
  1.10     Subd. 14.  [TANK.] "Tank" means any one or a combination of 
  1.11  containers, vessels, and enclosures, including structures and 
  1.12  appurtenances connected to them, that is, or has been, used to 
  1.13  contain or dispense petroleum.  
  1.14     "Tank" does not include: 
  1.15     (1) a mobile storage tank used to transport petroleum from 
  1.16  one location to another, except a unless the mobile storage tank 
  1.17  with a capacity of 500 gallons or less used only to transport 
  1.18  home heating fuel on private property contains lubricating oil 
  1.19  and the aggregate capacity of the mobile storage tanks located 
  1.20  at the petroleum distributor's site is greater than 1,000 
  1.21  gallons; or 
  1.22     (2) pipeline facilities, including gathering lines, 
  1.23  regulated under the Natural Gas Pipeline Safety Act of 1968, 
  1.24  United States Code, title 49, chapter 24, or the Hazardous 
  1.25  Liquid Pipeline Safety Act of 1979, United States Code, title 
  1.26  49, chapter 29. 
  2.1      For the purposes of clause (1), "petroleum distributor" 
  2.2   means a person who is in business to sell petroleum products to 
  2.3   the public. 
  2.4      Sec. 2.  Minnesota Statutes 2002, section 115C.09, 
  2.5   subdivision 3, is amended to read: 
  2.6      Subd. 3.  [REIMBURSEMENTS; SUBROGATION; APPROPRIATION.] (a) 
  2.7   The board shall reimburse an eligible applicant from the fund 
  2.8   for 90 percent of the total reimbursable costs incurred at the 
  2.9   site, except that the board may reimburse an eligible applicant 
  2.10  from the fund for greater than 90 percent of the total 
  2.11  reimbursable costs, if the applicant previously qualified for a 
  2.12  higher reimbursement rate.  
  2.13     Not more than $1,000,000 may be reimbursed for costs 
  2.14  associated with a single release, regardless of the number of 
  2.15  persons eligible for reimbursement, and not more than $2,000,000 
  2.16  may be reimbursed for costs associated with a single tank 
  2.17  facility. 
  2.18     (b) A reimbursement may not be made from the fund under 
  2.19  this chapter until the board has determined that the costs for 
  2.20  which reimbursement is requested were actually incurred and were 
  2.21  reasonable. 
  2.22     (c) When an applicant has obtained responsible competitive 
  2.23  bids or proposals according to rules promulgated under this 
  2.24  chapter prior to June 1, 1995, the eligible costs for the tasks, 
  2.25  procedures, services, materials, equipment, and tests of the low 
  2.26  bid or proposal are presumed to be reasonable by the board, 
  2.27  unless the costs of the low bid or proposal are substantially in 
  2.28  excess of the average costs charged for similar tasks, 
  2.29  procedures, services, materials, equipment, and tests in the 
  2.30  same geographical area during the same time period. 
  2.31     (d) When an applicant has obtained a minimum of two 
  2.32  responsible competitive bids or proposals on forms prescribed by 
  2.33  the board and where the rules promulgated under this chapter 
  2.34  after June 1, 1995, designate maximum costs for specific tasks, 
  2.35  procedures, services, materials, equipment and tests, the 
  2.36  eligible costs of the low bid or proposal are deemed reasonable 
  3.1   if the costs are at or below the maximums set forth in the rules.
  3.2      (e) Costs incurred for change orders executed as prescribed 
  3.3   in rules promulgated under this chapter after June 1, 1995, are 
  3.4   presumed reasonable if the costs are at or below the maximums 
  3.5   set forth in the rules, unless the costs in the change order are 
  3.6   above those in the original bid or proposal or are 
  3.7   unsubstantiated and inconsistent with the process and standards 
  3.8   required by the rules. 
  3.9      (f) A reimbursement may not be made from the fund in 
  3.10  response to either an initial or supplemental application for 
  3.11  costs incurred after June 4, 1987, that are payable under an 
  3.12  applicable insurance policy, except that if the board finds that 
  3.13  the applicant has made reasonable efforts to collect from an 
  3.14  insurer and failed, the board shall reimburse the applicant. 
  3.15     (g) If the board reimburses an applicant for costs for 
  3.16  which the applicant has insurance coverage, the board is 
  3.17  subrogated to the rights of the applicant with respect to that 
  3.18  insurance coverage, to the extent of the reimbursement by the 
  3.19  board.  The board may request the attorney general to bring an 
  3.20  action in district court against the insurer to enforce the 
  3.21  board's subrogation rights.  Acceptance by an applicant of 
  3.22  reimbursement constitutes an assignment by the applicant to the 
  3.23  board of any rights of the applicant with respect to any 
  3.24  insurance coverage applicable to the costs that are reimbursed.  
  3.25  Notwithstanding this paragraph, the board may instead request a 
  3.26  return of the reimbursement under subdivision 5 and may employ 
  3.27  against the applicant the remedies provided in that subdivision, 
  3.28  except where the board has knowingly provided reimbursement 
  3.29  because the applicant was denied coverage by the insurer. 
  3.30     (h) Money in the fund is appropriated to the board to make 
  3.31  reimbursements under this chapter.  A reimbursement to a state 
  3.32  agency must be credited to the appropriation account or accounts 
  3.33  from which the reimbursed costs were paid. 
  3.34     (i) The board may reduce the amount of reimbursement to be 
  3.35  made under this chapter if it finds that the applicant has not 
  3.36  complied with a provision of this chapter, a rule or order 
  4.1   issued under this chapter, or one or more of the following 
  4.2   requirements: 
  4.3      (1) the agency was given notice of the release as required 
  4.4   by section 115.061; 
  4.5      (2) the applicant, to the extent possible, fully cooperated 
  4.6   with the agency in responding to the release; 
  4.7      (3) the state rules applicable after December 22, 1993, to 
  4.8   operating an underground storage tank and appurtenances without 
  4.9   leak detection; 
  4.10     (4) the state rules applicable after December 22, 1998, to 
  4.11  operating an underground storage tank and appurtenances without 
  4.12  corrosion protection or spill and overfill protection; and 
  4.13     (5) the state rule applicable after November 1, 1998, to 
  4.14  operating an aboveground tank without a dike or other structure 
  4.15  that would contain a spill at the aboveground tank site. 
  4.16     (j) The reimbursement may be reduced as much as 100 percent 
  4.17  for failure by the applicant to comply with the requirements in 
  4.18  paragraph (i), clauses (1) to (5).  In determining the amount of 
  4.19  the reimbursement reduction, the board shall consider: 
  4.20     (1) the reasonable determination by the agency that the 
  4.21  noncompliance poses a threat to the environment; 
  4.22     (2) whether the noncompliance was negligent, knowing, or 
  4.23  willful; 
  4.24     (3) the deterrent effect of the award reduction on other 
  4.25  tank owners and operators; 
  4.26     (4) the amount of reimbursement reduction recommended by 
  4.27  the commissioner; and 
  4.28     (5) the documentation of noncompliance provided by the 
  4.29  commissioner. 
  4.30     (k) An applicant may assign the right to receive 
  4.31  reimbursement to request that the board issue a multiparty check 
  4.32  that includes each lender who advanced funds to pay the costs of 
  4.33  the corrective action or to each contractor or consultant who 
  4.34  provided corrective action services.  An assignment This request 
  4.35  must be made by filing with the board a document, in a form 
  4.36  prescribed by the board, indicating the identity of the 
  5.1   applicant, the identity of the assignee lender, contractor, or 
  5.2   consultant, the dollar amount of the assignment, and the 
  5.3   location of the corrective action.  An assignment signed by the 
  5.4   applicant is valid unless terminated by filing a termination 
  5.5   with the board, in a form prescribed by the board, which must 
  5.6   include the written concurrence of the assignee.  The board 
  5.7   shall maintain an index of assignments filed under this 
  5.8   paragraph.  The board shall pay the reimbursement to the 
  5.9   applicant and to one or more assignees by a multiparty 
  5.10  check.  The applicant must submit a request for the issuance of 
  5.11  a multiparty check for each application submitted to the board.  
  5.12  Payment under this paragraph does not constitute the assignment 
  5.13  of the applicant's right to reimbursement to the consultant, 
  5.14  contractor, or lender.  The board has no liability to an 
  5.15  applicant for a payment under an assignment meeting issued as a 
  5.16  multiparty check that meets the requirements of this paragraph. 
  5.17     Sec. 3.  Minnesota Statutes 2002, section 115C.11, 
  5.18  subdivision 1, is amended to read: 
  5.19     Subdivision 1.  [REGISTRATION.] (a) All consultants and 
  5.20  contractors who perform corrective action services must register 
  5.21  with the board.  In order to register, consultants must meet and 
  5.22  demonstrate compliance with the following criteria: 
  5.23     (1) provide a signed statement to the board verifying 
  5.24  agreement to abide by this chapter and the rules adopted under 
  5.25  it and to include a signed statement with each claim that all 
  5.26  costs claimed by the consultant are a true and accurate account 
  5.27  of services performed; 
  5.28     (2) provide a signed statement that the consultant shall 
  5.29  make available for inspection any records requested by the board 
  5.30  for field or financial audits under the scope of this chapter; 
  5.31     (3) certify knowledge of the requirements of this chapter 
  5.32  and the rules adopted under it; 
  5.33     (4) obtain and maintain professional liability coverage, 
  5.34  including pollution impairment liability; and 
  5.35     (5) agree to submit to the board a certificate or 
  5.36  certificates verifying the existence of the required insurance 
  6.1   coverage. 
  6.2      (b) The board must maintain a list of all registered 
  6.3   consultants and a list of all registered contractors. 
  6.4      (c) All corrective action services must be performed by 
  6.5   registered consultants and contractors. 
  6.6      (d) Reimbursement for corrective action services performed 
  6.7   by an unregistered consultant or contractor is subject to 
  6.8   reduction under section 115C.09, subdivision 3, paragraph (i). 
  6.9      (e) Corrective action services performed by a consultant or 
  6.10  contractor prior to being removed from the registration list may 
  6.11  be reimbursed without reduction by the board. 
  6.12     (f) If the information in an application for registration 
  6.13  becomes inaccurate or incomplete in any material respect, the 
  6.14  registered consultant or contractor must promptly file a 
  6.15  corrected application with the board. 
  6.16     (g) Registration is effective 30 days after a complete 
  6.17  application is received by the board.  The board may reimburse 
  6.18  without reduction the cost of work performed by an unregistered 
  6.19  contractor if the contractor performed the work within 60 days 
  6.20  of the effective date of registration. 
  6.21     (h) Registration for consultants under this section remains 
  6.22  in force until the expiration date of the professional liability 
  6.23  coverage, including pollution impairment liability, required 
  6.24  under paragraph (a), clause (4), or until voluntarily terminated 
  6.25  by the registrant, or until suspended or revoked by the 
  6.26  commissioner of commerce.  Registration for contractors under 
  6.27  this section expires each year on the anniversary of the 
  6.28  effective date of the contractor's most recent registration and 
  6.29  must be renewed on or before expiration.  Prior to its annual 
  6.30  expiration, a registration remains in force until voluntarily 
  6.31  terminated by the registrant, or until suspended or revoked by 
  6.32  the commissioner of commerce.  All registrants must comply with 
  6.33  registration criteria under this section. 
  6.34     (i) The board may deny a consultant or contractor 
  6.35  registration or request for renewal under this section if the 
  6.36  consultant or contractor: 
  7.1      (1) does not intend to or is not in good faith carrying on 
  7.2   the business of an environmental consultant or contractor; 
  7.3      (2) has filed an application for registration that is 
  7.4   incomplete in any material respect or contains any statement 
  7.5   which, in light of the circumstances under which it is made, 
  7.6   contains any misrepresentation, or is false, misleading, or 
  7.7   fraudulent; 
  7.8      (3) has engaged in any fraudulent, coercive, deceptive, or 
  7.9   dishonest act or practice whether or not such act or practice 
  7.10  involves the business of environmental consulting or 
  7.11  contracting; 
  7.12     (4) has forged another's name to any document whether or 
  7.13  not the document relates to a document approved by the board; 
  7.14     (5) has plead guilty, with or without explicitly admitting 
  7.15  guilt; plead nolo contendere; or been convicted of a felony, 
  7.16  gross misdemeanor, or misdemeanor involving moral turpitude, 
  7.17  including, but not limited to, assault, harassment, or similar 
  7.18  conduct; 
  7.19     (6) has been subject to disciplinary action in another 
  7.20  state or jurisdiction; or 
  7.21     (7) has not paid subcontractors hired by the consultant or 
  7.22  contractor after they have been paid in full by the applicant. 
  7.23     Sec. 4.  Minnesota Statutes 2002, section 115C.13, is 
  7.24  amended to read: 
  7.25     115C.13 [REPEALER.] 
  7.26     Sections 115C.01, 115C.02, 115C.021, 115C.03, 115C.04, 
  7.27  115C.045, 115C.05, 115C.06, 115C.065, 115C.07, 115C.08, 115C.09, 
  7.28  115C.093, 115C.094, 115C.10, 115C.11, 115C.111, 115C.112, 
  7.29  115C.113, 115C.12, and 115C.13, are repealed effective June 30, 
  7.30  2005.