SF 1314

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 provisions 
  1.3             relating to the voluntary investigation and cleanup 
  1.4             program; establishing the environmental improvement 
  1.5             pilot program; amending Minnesota Statutes 1994, 
  1.6             sections 115B.03, by adding subdivisions; 115B.17, by 
  1.7             adding a subdivision; 115B.175, subdivisions 2 and 3; 
  1.8             and 115B.178, subdivision 1. 
  1.9   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.10     Section 1.  Minnesota Statutes 1994, section 115B.03, is 
  1.11  amended by adding a subdivision to read: 
  1.12     Subd. 8.  [TRUSTEES.] A trustee who is not otherwise a 
  1.13  responsible party for a release or threatened release of a 
  1.14  hazardous substance from a facility is not a responsible person 
  1.15  under this section solely because the facility is among the 
  1.16  trust assets or solely because the trustee has the capacity to 
  1.17  direct the operation of the facility. 
  1.18     Sec. 2.  Minnesota Statutes 1994, section 115B.03, is 
  1.19  amended by adding a subdivision to read: 
  1.20     Subd. 9.  [PERSONAL REPRESENTATIVES OF ESTATES.] A personal 
  1.21  representative of an estate, who is not otherwise a responsible 
  1.22  party for a release or threatened release of a hazardous 
  1.23  substance from a facility, is not a responsible person under 
  1.24  this section solely because a facility is among the assets of 
  1.25  the estate or solely because the personal representative has the 
  1.26  capacity to direct the operation of the facility. 
  1.27     Sec. 3.  Minnesota Statutes 1994, section 115B.17, is 
  2.1   amended by adding a subdivision to read: 
  2.2      Subd. 2a.  [CLEANUP STANDARDS.] In determining the 
  2.3   appropriate standards to be achieved by response actions taken 
  2.4   or requested under this section to protect public health and 
  2.5   welfare and the environment from a release or threatened 
  2.6   release, the commissioner shall consider the planned use of the 
  2.7   property where the release or threatened release is located. 
  2.8      Sec. 4.  Minnesota Statutes 1994, section 115B.175, 
  2.9   subdivision 2, is amended to read: 
  2.10     Subd. 2.  [PARTIAL RESPONSE ACTION PLANS; CRITERIA FOR 
  2.11  APPROVAL.] (a) The commissioner may approve a voluntary response 
  2.12  action plan submitted under this section that does not require 
  2.13  removal or remedy of all releases and threatened releases at an 
  2.14  identified area of real property if the commissioner determines 
  2.15  that all of the following criteria have been met: 
  2.16     (1) if reuse or development of the property is proposed, 
  2.17  the voluntary response action plan provides for all response 
  2.18  actions required to carry out the proposed reuse or development 
  2.19  in a manner that protects public health and welfare and the 
  2.20  environment meets the same standards for protection that apply 
  2.21  to response actions taken or requested under section 115B.17, 
  2.22  subdivision 1 or 2; 
  2.23     (2) the response actions and the activities associated with 
  2.24  any reuse or development proposed for the property will not 
  2.25  aggravate or contribute to releases or threatened releases that 
  2.26  are not required to be removed or remedied under the voluntary 
  2.27  response action plan, and will not interfere with or 
  2.28  substantially increase the cost of response actions to address 
  2.29  the remaining releases or threatened releases; and 
  2.30     (3) the owner of the property agrees to cooperate with the 
  2.31  commissioner or other persons acting at the direction of the 
  2.32  commissioner in taking response actions necessary to address 
  2.33  remaining releases or threatened releases, and to avoid any 
  2.34  action that interferes with the response actions. 
  2.35     (b) Under paragraph (a), clause (3), an owner may be 
  2.36  required to agree to any or all of the following terms necessary 
  3.1   to carry out response actions to address remaining releases or 
  3.2   threatened releases: 
  3.3      (1) to provide access to the property to the commissioner 
  3.4   and the commissioner's authorized representatives; 
  3.5      (2) to allow the commissioner, or persons acting at the 
  3.6   direction of the commissioner, to undertake activities at the 
  3.7   property including placement of borings, wells, equipment, and 
  3.8   structures on the property; and 
  3.9      (3) to grant easements or other interests in the property 
  3.10  to the agency for any of the purposes provided in clause (1) or 
  3.11  (2). 
  3.12     (c) An agreement under paragraph (a), clause (3), must 
  3.13  apply to and be binding upon the successors and assigns of the 
  3.14  owner.  The owner shall record the agreement, or a memorandum 
  3.15  approved by the commissioner that summarizes the agreement, with 
  3.16  the county recorder or registrar of titles of the county where 
  3.17  the property is located. 
  3.18     Sec. 5.  Minnesota Statutes 1994, section 115B.175, 
  3.19  subdivision 3, is amended to read: 
  3.20     Subd. 3.  [SUBMISSION AND APPROVAL OF VOLUNTARY RESPONSE 
  3.21  ACTION PLANS.] (a) A person shall submit a voluntary response 
  3.22  action plan to the commissioner under section 115B.17, 
  3.23  subdivision 14.  The commissioner may provide assistance to 
  3.24  review voluntary response action plans or supervise response 
  3.25  action implementation under that subdivision. 
  3.26     (b) A voluntary response action plan submitted for approval 
  3.27  of the commissioner must include an investigation report that 
  3.28  describes the methods and results of an investigation of the 
  3.29  releases and threatened releases at the identified area of real 
  3.30  property.  The commissioner must not approve the voluntary 
  3.31  response action plan unless the commissioner determines that the 
  3.32  nature and extent of the releases and threatened releases at the 
  3.33  identified area of real property have been adequately identified 
  3.34  and evaluated in the investigation report. 
  3.35     (c) Response actions required in a voluntary response 
  3.36  action plan under this section must meet the same standards for 
  4.1   protection of public health and welfare and the environment that 
  4.2   apply to response actions taken or requested under section 
  4.3   115B.17, subdivision 1 or 2. 
  4.4      (d) When the commissioner approves a voluntary response 
  4.5   action plan, the commissioner may include in the approval an 
  4.6   acknowledgment that, upon certification of completion of the 
  4.7   response actions as provided in subdivision 5, the person 
  4.8   submitting the plan will receive the protection from liability 
  4.9   provided under this section. 
  4.10     Sec. 6.  Minnesota Statutes 1994, section 115B.178, 
  4.11  subdivision 1, is amended to read: 
  4.12     Subdivision 1.  [DETERMINATION.] (a) The commissioner may 
  4.13  issue determinations that certain actions proposed to be taken 
  4.14  at real property subject to a release or threatened release of a 
  4.15  hazardous substance or pollutant or contaminant will not 
  4.16  constitute conduct associating the person with the release or 
  4.17  threatened release for the purpose of section 115B.03, 
  4.18  subdivision 3, clause (d).  Proposed actions that may be covered 
  4.19  by a determination under this section include response actions 
  4.20  approved by the commissioner to address the release or 
  4.21  threatened release, actions to improve or develop the real 
  4.22  property, loans secured by the real property, or other similar 
  4.23  actions.  A determination may be subject to terms and conditions 
  4.24  deemed reasonable by the commissioner.  When a person takes 
  4.25  actions in accordance with a determination issued under this 
  4.26  subdivision, the actions do not associate the person with the 
  4.27  release for the purpose of section 115B.03, subdivision 3, 
  4.28  clause (d). 
  4.29     (b) If a person requesting a determination proposes to take 
  4.30  response actions at real property, The commissioner may also 
  4.31  issue a determination under paragraph (a) that certain actions 
  4.32  taken in the past at the real property did not constitute 
  4.33  conduct associating the person requesting the determination with 
  4.34  the release or threatened release for purposes of section 
  4.35  115B.03, subdivision 3, clause (d), or shall take response 
  4.36  actions in accordance with a response action plan approved by 
  5.1   the commissioner.  A person requesting a determination under 
  5.2   this paragraph shall first conduct an investigation approved by 
  5.3   the commissioner that identifies the nature and extent of the 
  5.4   release or threatened release.  Any such determination shall be 
  5.5   limited to the represented facts of the past actions and shall 
  5.6   not apply to actions that are not represented or disclosed.  The 
  5.7   determination may be subject to such other terms and conditions 
  5.8   as the commissioner deems reasonable. 
  5.9      Sec. 7.  [ENVIRONMENTAL IMPROVEMENT PILOT PROGRAM 
  5.10  ESTABLISHED.] 
  5.11     The environmental improvement pilot program is established 
  5.12  to promote voluntary compliance with environmental requirements. 
  5.13     Sec. 8.  [DEFINITIONS.] 
  5.14     Subdivision 1.  [APPLICABILITY.] As used in sections 7 to 
  5.15  15, the terms defined in this section have the meanings given. 
  5.16     Subd. 2.  [AGENCY.] "Agency" means the pollution control 
  5.17  agency. 
  5.18     Subd. 3.  [COMMISSIONER.] "Commissioner" means the 
  5.19  commissioner of the pollution control agency. 
  5.20     Subd. 4.  [ENVIRONMENTAL AUDIT.] "Environmental audit" 
  5.21  means a systematic, documented, and objective review by a 
  5.22  regulated entity of one or more facility operations and 
  5.23  practices related to compliance with one or more environmental 
  5.24  requirements and, if deficiencies are found, a plan for 
  5.25  corrective action.  The final audit document must be designated 
  5.26  as an "audit report" and must include the date of the final 
  5.27  written report of findings for the audit. 
  5.28     Subd. 5.  [ENVIRONMENTAL REQUIREMENT.] "Environmental 
  5.29  requirement" means a requirement in: 
  5.30     (1) a law administered by the agency, a rule adopted by the 
  5.31  agency, a permit or order issued by the agency, an agreement 
  5.32  entered into with the agency, or a court order issued pursuant 
  5.33  to any of the foregoing; or 
  5.34     (2) an ordinance or other legally binding requirement 
  5.35  imposed by a local governmental unit under authority granted by 
  5.36  state law relating to environmental protection, including solid 
  6.1   and hazardous waste management. 
  6.2      Subd. 6.  [FACILITY.] "Facility" means all buildings, 
  6.3   equipment, structures, and other stationary items that are 
  6.4   located on a single site or on contiguous or adjacent sites and 
  6.5   that are owned or operated by the same person. 
  6.6      Subd. 7.  [LOCAL GOVERNMENTAL UNIT.] "Local governmental 
  6.7   unit" means a county, a statutory or home rule city, a town, a 
  6.8   sanitary district, or the metropolitan council. 
  6.9      Subd. 8.  [MAJOR FACILITY.] "Major facility" means an 
  6.10  industrial or municipal wastewater discharge major facility as 
  6.11  defined in rules of the agency; a feedlot that is permitted for 
  6.12  1,000 or more animal units; a large quantity hazardous waste 
  6.13  generator as defined in rules of the agency; a hazardous waste 
  6.14  treatment, storage, or disposal facility that is required to 
  6.15  have a permit under the federal Resource Conservation and 
  6.16  Recovery Act, United States Code, title 42, section 6925; a 
  6.17  major stationary air emission source as defined in rules of the 
  6.18  agency; an air emission source that emits 50 or more tons per 
  6.19  year of any air pollutant regulated under rules of the agency; 
  6.20  or an air emission source that emits 75 tons or more per year of 
  6.21  all air pollutants regulated under rules of the agency. 
  6.22     Subd. 9.  [POLLUTION PREVENTION.] "Pollution prevention" 
  6.23  means the elimination or reduction at the source of the use, 
  6.24  generation, or release of pollutants. 
  6.25     Subd. 10.  [REGULATED ENTITY.] "Regulated entity" means a 
  6.26  public or private organization that is subject to environmental 
  6.27  requirements. 
  6.28     Subd. 11.  [SELF-EVALUATION.] "Self-evaluation" means a 
  6.29  systematic, documented, and objective review by a regulated 
  6.30  entity of one or more facility operations or practices related 
  6.31  to compliance with one or more environmental requirements, based 
  6.32  upon an evaluation form prescribed or approved by the 
  6.33  commissioner. 
  6.34     Subd. 12.  [STATE.] "State" means the pollution control 
  6.35  agency, the attorney general, and all local governmental units. 
  6.36     Sec. 9.  [AUDITS OR SELF-EVALUATIONS.] 
  7.1      Subdivision 1.  [QUALIFICATION TO PARTICIPATE IN 
  7.2   PROGRAM.] For a facility to qualify for participation in the 
  7.3   environmental improvement program, more than one year must have 
  7.4   elapsed since the initiation of an enforcement action that 
  7.5   resulted in the imposition of a penalty involving the facility.  
  7.6   In addition, a regulated entity must: 
  7.7      (1) conduct an environmental audit or a self-evaluation; 
  7.8      (2) for a major facility, prepare a pollution prevention 
  7.9   plan and submit progress reports in accordance with Minnesota 
  7.10  Statutes, sections 115D.07 to 115D.09; 
  7.11     (3) for a facility that is not a major facility, examine 
  7.12  pollution prevention opportunities at the facility; and 
  7.13     (4) submit a report in accordance with subdivision 2. 
  7.14     Subd. 2.  [REPORT.] A regulated entity must submit a report 
  7.15  to the commissioner, and to a local governmental unit if the 
  7.16  report identifies a violation of an ordinance enacted by the 
  7.17  local governmental unit, within 45 days after the date of the 
  7.18  final written report of findings for an environmental audit or 
  7.19  within 45 days after the completion of a self-evaluation.  The 
  7.20  report must contain: 
  7.21     (1) a certification by the owner or operator of the 
  7.22  facility that the requirements of subdivision 1, clauses (1) to 
  7.23  (3), have been met; 
  7.24     (2) a disclosure of all violations of environmental 
  7.25  requirements that were identified in the environmental audit or 
  7.26  self-evaluation and a brief description of proposed actions to 
  7.27  correct the violations; 
  7.28     (3) a commitment signed by the owner or operator of the 
  7.29  facility to correct the violations as expeditiously as possible 
  7.30  under the circumstances; 
  7.31     (4) if more than 90 days will be required to correct the 
  7.32  violations, a performance schedule that identifies the time that 
  7.33  will be needed to correct the violations and a brief statement 
  7.34  of the reasons that support the time periods set out in the 
  7.35  performance schedule; and 
  7.36     (5) a description of the steps the owner or operator has 
  8.1   taken or will take to prevent recurrence of the violations. 
  8.2      Sec. 10.  [REVIEW OF PERFORMANCE SCHEDULES.] 
  8.3      (a) A reasonable performance schedule prepared under 
  8.4   section 9, subdivision 2, clause (4), must be approved by the 
  8.5   commissioner.  In reviewing the reasonableness of a performance 
  8.6   schedule, the commissioner shall take into account information 
  8.7   supplied by the regulated entity, any public comments, and 
  8.8   information developed by agency staff.  The decision about 
  8.9   whether a performance schedule is reasonable must be based on 
  8.10  the following factors: 
  8.11     (1) the nature of the violations; 
  8.12     (2) the environmental and public health consequences of the 
  8.13  violations; 
  8.14     (3) the economic circumstances of the facility; 
  8.15     (4) the availability of equipment and material; and 
  8.16     (5) the time needed to implement pollution prevention 
  8.17  opportunities as an alternative to pollution control approaches 
  8.18  to remedying the violations. 
  8.19  Information submitted to the commissioner by a regulated entity 
  8.20  relating to the factors in clauses (3) to (5) that is trade 
  8.21  secret information as that term is defined in section 13.37 are 
  8.22  nonpublic data. 
  8.23     (b) In the event of a dispute over approval of the 
  8.24  performance schedule, the regulated entity may request a hearing 
  8.25  under the procedures in Minnesota Rules, parts 1400.8510 to 
  8.26  1400.8612.  A performance schedule may be amended by written 
  8.27  agreement between the commissioner and the regulated entity. 
  8.28     Sec. 11.  [PUBLIC DISCLOSURE.] 
  8.29     The commissioner shall publish quarterly the names and 
  8.30  locations of the facilities for which a report has been 
  8.31  submitted under section 9, subdivision 2, and, if a performance 
  8.32  schedule has been submitted, the proposed time period for 
  8.33  completing performance. 
  8.34     Sec. 12.  [ENFORCEMENT.] 
  8.35     Subdivision 1.  [DEFERRED ENFORCEMENT.] The state must 
  8.36  defer for at least 90 days any action to enforce an 
  9.1   environmental requirement against the owner or operator of a 
  9.2   facility if a report that meets the requirements of section 9, 
  9.3   subdivision 2, has been submitted to the commissioner.  If the 
  9.4   report includes a performance schedule, and the performance 
  9.5   schedule is approved under section 10, the state must defer 
  9.6   enforcement for the term of the approved performance schedule 
  9.7   unless the facility fails to meet an interim performance date 
  9.8   contained in the schedule. 
  9.9      Subd. 2.  [PENALTIES WAIVED.] If, within 90 days after the 
  9.10  report required in section 9, subdivision 2, is received by the 
  9.11  commissioner or within the time specified in an approved 
  9.12  performance schedule, the owner or operator of a facility 
  9.13  corrects the violations identified in the audit or 
  9.14  self-evaluation and certifies to the commissioner that the 
  9.15  violations have been corrected the state may not impose any 
  9.16  administrative, civil, or criminal penalties against the owner 
  9.17  or operator of the facility for the reported violations.  
  9.18     Subd. 3.  [EXCEPTIONS.] Notwithstanding subdivisions 1 and 
  9.19  2, the state may at any time bring: 
  9.20     (1) a criminal enforcement action against any person who 
  9.21  commits a knowing violation under Minnesota Statutes, section 
  9.22  609.671; 
  9.23     (2) a civil or administrative enforcement action, which may 
  9.24  include a penalty, under Minnesota Statutes, section 115.071 or 
  9.25  116.072, against the owner or operator of a facility if: 
  9.26     (i) less than one year has elapsed since the final 
  9.27  resolution of a notice of violation, an administrative penalty 
  9.28  order, or a civil or criminal lawsuit that resulted in an 
  9.29  enforcement action being taken against the owner or operator of 
  9.30  a facility for a violation of a requirement that was also shown 
  9.31  as having been violated in the report required under section 9, 
  9.32  subdivision 2; or 
  9.33     (ii) a violation caused serious harm to public health or 
  9.34  the environment; or 
  9.35     (3) an action against the owner or operator of a facility 
  9.36  to enjoin an imminent and substantial threat of serious harm to 
 10.1   public health or the environment. 
 10.2      Subd. 4.  [GOOD FAITH CONSIDERATION.] If the state finds 
 10.3   that one of the conditions in subdivision 3 exists, the state 
 10.4   must take into account the good faith efforts of the regulated 
 10.5   entity to comply with environmental requirements in deciding 
 10.6   whether to pursue an enforcement action, whether an enforcement 
 10.7   action should be civil or criminal, and what, if any, penalty 
 10.8   should be imposed.  In determining whether the regulated entity 
 10.9   has acted in good faith, the state must consider whether: 
 10.10     (1) when noncompliance was discovered, the regulated entity 
 10.11  took corrective action that was timely under the circumstances; 
 10.12     (2) the regulated entity exercised reasonable care in 
 10.13  attempting to prevent the violations and ensure compliance with 
 10.14  environmental requirements; 
 10.15     (3) the noncompliance resulted in significant economic 
 10.16  benefit to the regulated entity; 
 10.17     (4) prior to implementing the audit or self-evaluation 
 10.18  program the regulated entity had a history of good faith efforts 
 10.19  to comply with the environmental requirements; and 
 10.20     (5) the regulated entity demonstrated good faith efforts to 
 10.21  achieve compliance since implementing an environmental auditing 
 10.22  or self-evaluation program. 
 10.23     Subd. 5.  [VIOLATIONS DISCOVERED BY THE STATE.] Nothing in 
 10.24  this act precludes the state from taking any enforcement action 
 10.25  the state is authorized to take with respect to violations 
 10.26  discovered by the state prior to the time a facility has 
 10.27  submitted to the commissioner a report that meets the 
 10.28  requirements of section 9, subdivision 2. 
 10.29     Sec. 13.  [GREEN STAR EMBLEM.] 
 10.30     A regulated entity may display at a facility a "green star" 
 10.31  emblem designed by the commissioner if: 
 10.32     (a) the regulated entity qualifies for participation in the 
 10.33  environmental improvement program under section 9; 
 10.34     (b) the regulated entity certifies that all violations that 
 10.35  were identified in the audit or self-evaluation of the facility 
 10.36  were corrected within 90 days or within the time specified in an 
 11.1   approved performance schedule or certifies that no violations 
 11.2   were identified in the audit or self-evaluation; and 
 11.3      (c) at least one year has elapsed since the final 
 11.4   resolution of a notice of violation, an administrative penalty 
 11.5   order, or a civil or criminal enforcement action involving the 
 11.6   regulated entity.  The emblem may be displayed for a period of 
 11.7   two years from the time that the commissioner determines that 
 11.8   the requirements of this section have been met. 
 11.9      Sec. 14.  [ACCESS TO DOCUMENTS.] 
 11.10     Subdivision 1.  [PUBLIC ACCESS.] The state may not request, 
 11.11  inspect, or seize a final audit report, draft audit reports, a 
 11.12  self-evaluation form, the notes or papers prepared by the 
 11.13  auditor or the person conducting the self-evaluation in 
 11.14  connection with the audit or self-evaluation, or the internal 
 11.15  documents of a regulated entity establishing, coordinating, or 
 11.16  responding to the audit or self-evaluation, other than the 
 11.17  report required in section 9, subdivision 2, except in 
 11.18  accordance with the agency's policy on environmental auditing, 
 11.19  as adopted by the agency on January 17, 1995. 
 11.20     Subd. 2.  [THIRD-PARTY ACCESS.] After receipt by the 
 11.21  commissioner of a report that complies with section 9, 
 11.22  subdivision 2, the final audit report, draft audit reports, the 
 11.23  self-evaluation form, any notes or papers prepared by the 
 11.24  auditor or the person conducting the self-evaluation, or the 
 11.25  internal documents of the regulated entity establishing, 
 11.26  coordinating, or responding to the audit or self-evaluation 
 11.27  covered by the report are privileged as to all persons other 
 11.28  than the state provided that the regulated entity is in 
 11.29  compliance with its commitments under sections 9 and 10. 
 11.30     Subd. 3.  [NONWAIVER OF PROTECTIONS.] Participation by a 
 11.31  regulated entity in the environmental improvement program does 
 11.32  not waive, minimize, reduce, or otherwise adversely affect the 
 11.33  level of protection or confidentiality that exists, under 
 11.34  current or developing common or statutory law, with respect to 
 11.35  any other documents relating to an environmental audit or 
 11.36  self-evaluation. 
 12.1      Sec. 15.  [REPORTING REQUIRED BY LAW.] 
 12.2      Nothing in sections 7 to 14 alters the obligation of any 
 12.3   regulated entity to report releases, violations, or other 
 12.4   matters that are required to be reported by state or federal 
 12.5   law, rule, permit, or enforcement action. 
 12.6      Sec. 16.  [NO EFFECT ON OTHER RIGHTS.] 
 12.7      Sections 7 to 14 do not affect: 
 12.8      (1) rights of a regulated entity that chooses not to 
 12.9   participate, or is not eligible to participate, in the 
 12.10  environmental improvement pilot program; or 
 12.11     (2) rights of other persons relative to matters addressed 
 12.12  by the environmental improvement pilot program. 
 12.13     Sec. 17.  [REPORT.] 
 12.14     The commissioner, in consultation with the attorney general 
 12.15  and after solicitation of public comment, shall submit a report 
 12.16  to the chairs of the environment and natural resources 
 12.17  committees of the senate and the house of representatives by 
 12.18  January 15, 1999, that evaluates the effectiveness of the 
 12.19  environmental improvement program and includes any 
 12.20  recommendations for program changes. 
 12.21     Sec. 18.  [SURVIVAL OF RIGHTS AND PROTECTIONS.] 
 12.22     All rights and protections provided under this act shall 
 12.23  survive the repeal of the act with respect to any report filed 
 12.24  under section 9, subdivision 2, that is submitted before July 1, 
 12.25  1999. 
 12.26     Sec. 19.  [REPEALER.] 
 12.27     Sections 7 to 17 are repealed effective July 1, 1999.