SF 2010

as introduced - 79th Legislature (1995 - 1996) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to commerce; petroleum tank release cleanup; 
  1.3             regulating reimbursement; providing enforcement 
  1.4             authority to the commissioner of commerce; making 
  1.5             various technical changes; amending Minnesota Statutes 
  1.6             1994, sections 115C.02, subdivision 8, and by adding a 
  1.7             subdivision; 115C.03, subdivision 8; 115C.06; and 
  1.8             115C.09, as amended; Minnesota Statutes 1995 
  1.9             Supplement, sections 115C.02, subdivision 11a; 
  1.10            115C.092, subdivision 1; 115C.10, subdivision 1; 
  1.11            115C.11, subdivision 1; and 115C.12; proposing coding 
  1.12            for new law in Minnesota Statutes, chapter 115C; 
  1.13            repealing Minnesota Statutes 1994, section 115C.11, 
  1.14            subdivisions 3 and 4; Minnesota Statutes 1995 
  1.15            Supplement, section 115C.11, subdivision 2. 
  1.16  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.17     Section 1.  Minnesota Statutes 1994, section 115C.02, is 
  1.18  amended by adding a subdivision to read: 
  1.19     Subd. 2a.  [APPLICANT.] "Applicant" means a person eligible 
  1.20  under section 115C.09 to receive reimbursement from the fund. 
  1.21     Sec. 2.  Minnesota Statutes 1994, section 115C.02, 
  1.22  subdivision 8, is amended to read: 
  1.23     Subd. 8.  [OWNER.] "Owner" means a person who holds title 
  1.24  to, controls, or possesses an interest in a tank.  "Owner" does 
  1.25  not include a person who holds an interest in a tank solely for 
  1.26  financial security, unless through foreclosure or other related 
  1.27  actions the holder of a security interest has taken possession 
  1.28  of the tank and fails to take all necessary corrective action as 
  1.29  a volunteer under section 115C.09 this chapter.  The state or an 
  1.30  agency of the state is not an owner solely because it holds 
  2.1   title to a tank or to real property where the tank is located in 
  2.2   trust for taxing districts as a result of forfeiture of title 
  2.3   for nonpayment of taxes. 
  2.4      Sec. 3.  Minnesota Statutes 1995 Supplement, section 
  2.5   115C.02, subdivision 11a, is amended to read: 
  2.6      Subd. 11a.  [PREREMOVAL SITE ASSESSMENT.] "Preremoval site 
  2.7   assessment" means actions defined in section 115C.092 which are 
  2.8   taken by a registered consultant or the consultant's 
  2.9   subcontractor prior to the removal of a petroleum storage tank 
  2.10  in order to determine whether a release has occurred in the area 
  2.11  immediately surrounding the tank. 
  2.12     Sec. 4.  Minnesota Statutes 1994, section 115C.03, 
  2.13  subdivision 8, is amended to read: 
  2.14     Subd. 8.  [CLASSIFICATION OF DATA.] Except as otherwise 
  2.15  provided in this subdivision, data obtained from a person under 
  2.16  subdivision 6 or 7 is public data as defined in section 13.02.  
  2.17  Upon certification by the subject of the data that the data 
  2.18  relates to sales figures, processes or methods of production 
  2.19  unique to that person, or information that would tend to 
  2.20  adversely affect the competitive position of that person, the 
  2.21  commissioner shall classify the data as private or nonpublic 
  2.22  data as defined in section 13.02.  Data classified as private or 
  2.23  nonpublic under this subdivision may be disclosed when relevant 
  2.24  in a proceeding under sections 115C.03 to 115C.10 this chapter. 
  2.25     Sec. 5.  Minnesota Statutes 1994, section 115C.06, is 
  2.26  amended to read: 
  2.27     115C.06 [EFFECT ON OTHER LAW.] 
  2.28     Subdivision 1.  [ACTIONS UNDER CHAPTER 115B.] Sections 
  2.29  115C.03 to 115C.10 do This chapter does not limit any actions 
  2.30  initiated by the agency under chapter 115B.  
  2.31     Subd. 2.  [DUTY TO NOTIFY AND TAKE ACTION FOR RELEASE.] 
  2.32  Sections 115C.03 to 115C.10 do This chapter does not limit a 
  2.33  person's duty to notify the agency and take action related to a 
  2.34  release as provided in section 115.061. 
  2.35     Sec. 6.  Minnesota Statutes 1994, section 115C.09, as 
  2.36  amended by Laws 1995, chapter 240, article 1, sections 4, 5, 6, 
  3.1   and 7, is amended to read: 
  3.2      115C.09 [REIMBURSEMENT TO RESPONSIBLE AND OTHER PERSONS.] 
  3.3      Subdivision 1.  [REIMBURSABLE COSTS.] (a) The board shall 
  3.4   provide partial reimbursement to eligible responsible 
  3.5   persons applicants for reimbursable costs incurred after June 4, 
  3.6   1987.  
  3.7      (b) The following costs are reimbursable for purposes of 
  3.8   this section chapter:  
  3.9      (1) corrective action costs incurred by the responsible 
  3.10  person applicant and documented in a form prescribed by the 
  3.11  board, except the costs related to the physical removal of a 
  3.12  tank; 
  3.13     (2) costs that the responsible person is legally obligated 
  3.14  to pay as damages to third parties for bodily injury, property 
  3.15  damage, or corrective action costs incurred by a third party 
  3.16  caused by a release where the responsible person's liability for 
  3.17  the costs has been established by a court order, consent decree, 
  3.18  or a court-approved stipulation of settlement approved before 
  3.19  May 11, 1994, for which the responsible party has assigned its 
  3.20  rights to reimbursement under this section to a third-party 
  3.21  claimant, except that reimbursable costs under this clause must 
  3.22  not exceed (i) $200,000 when the claim is one for death by 
  3.23  wrongful act or omission and $200,000 to a claimant in any other 
  3.24  case; or (ii) $600,000 for any number of claims arising out of a 
  3.25  single occurrence; and 
  3.26     (3) up to 180 days worth of interest costs, incurred after 
  3.27  May 25, 1991, associated with the financing of corrective 
  3.28  action.  Interest costs are not eligible for reimbursement to 
  3.29  the extent they exceed two percentage points above the adjusted 
  3.30  prime rate charged by banks, as defined in section 270.75, 
  3.31  subdivision 5, at the time the financing contract was executed; 
  3.32  and 
  3.33     (4) preremoval site assessment costs. 
  3.34     (c) A cost for liability to a third party is incurred by 
  3.35  the responsible person when an order or consent decree 
  3.36  establishing the liability is entered.  Except as provided in 
  4.1   this paragraph, reimbursement may not be made for costs of 
  4.2   liability to third parties until all eligible corrective action 
  4.3   costs have been reimbursed.  If a corrective action is expected 
  4.4   to continue in operation for more than one year after it has 
  4.5   been fully constructed or installed, the board may estimate the 
  4.6   future expense of completing the corrective action and, after 
  4.7   subtracting this estimate from the total reimbursement available 
  4.8   under subdivision 3, reimburse the costs for liability to third 
  4.9   parties.  The total reimbursement may not exceed the limit set 
  4.10  forth in subdivision 3. 
  4.11     Subd. 2.  [RESPONSIBLE PERSON ELIGIBILITY.] (a) A 
  4.12  responsible person who has incurred reimbursable costs after 
  4.13  June 4, 1987, in response to a release, may apply to the board 
  4.14  for partial reimbursement under subdivision 3 and rules adopted 
  4.15  by the board. 
  4.16     Subd. 2a.  [APPLICATION FOR REIMBURSEMENT.] (a) The board 
  4.17  may consider applications for reimbursement at the following 
  4.18  stages:  
  4.19     (1) after the commissioner approves corrective actions 
  4.20  related to soil excavation and treatment or after the 
  4.21  commissioner determines that further soil excavation and 
  4.22  treatment should not be done, except that corrective action 
  4.23  costs relating to the construction and installation of a 
  4.24  comprehensive corrective action design system are not 
  4.25  reimbursable at this stage; and 
  4.26     (2) after the commissioner determines that the corrective 
  4.27  actions described in clause (1) have been fully constructed, 
  4.28  installed, or completed; 
  4.29     (3) after the commissioner approves a comprehensive plan 
  4.30  for corrective action that will adequately address the entire 
  4.31  release, including groundwater contamination if necessary; 
  4.32     (4) after the commissioner determines that the corrective 
  4.33  action necessary to adequately address the release has been 
  4.34  fully constructed or installed; and 
  4.35     (5) periodically afterward as the corrective action 
  4.36  continues operation, but no, for corrective action costs related 
  5.1   to the construction and installation of a comprehensive 
  5.2   corrective action design system.  An applicant shall not submit 
  5.3   an application for reimbursement more frequently than four times 
  5.4   per 12-month period unless the application is for more than 
  5.5   $2,000 in reimbursement. 
  5.6      (b) The commissioner shall review a plan, and provide an 
  5.7   approval or disapproval to the responsible person applicant and 
  5.8   the board, within 60 days in the case of a plan submitted under 
  5.9   paragraph (a), clause (1), and within 120 days in the case of a 
  5.10  plan submitted under paragraph (a), clause (3) (2), or the 
  5.11  commissioner shall explain to the board why additional time is 
  5.12  necessary.  The board shall consider a complete application 
  5.13  within 60 days of submission of the application under paragraph 
  5.14  (a), clauses clause (1) and (2), and within 120 days of 
  5.15  submission of the application under paragraph (a), clauses (3) 
  5.16  and (4) clause (2), or the board shall explain for the record 
  5.17  why additional time is necessary.  For purposes of the preceding 
  5.18  sentence, board consideration of an application is timely if it 
  5.19  occurs at the regularly scheduled meeting following the 
  5.20  deadline.  Board staff may review applications submitted to the 
  5.21  board simultaneous simultaneously to the commissioner's 
  5.22  consideration of the appropriateness of the corrective action, 
  5.23  but the board may not act on the application until after the 
  5.24  commissioner's approval is received. 
  5.25     (c) A reimbursement may not be made unless the board 
  5.26  determines that the commissioner has determined that the 
  5.27  corrective action was appropriate in terms of protecting public 
  5.28  health, welfare, and the environment. 
  5.29     Subd. 3.  [REIMBURSEMENTS; SUBROGATION; APPROPRIATION.] (a) 
  5.30  The board shall reimburse a responsible person who is eligible 
  5.31  under subdivision 2 an eligible applicant from the fund in the 
  5.32  following amounts: 
  5.33     (1) 90 percent of the total reimbursable costs on the first 
  5.34  $250,000 and 75 percent on any remaining costs in excess of 
  5.35  $250,000 on a site; or 
  5.36     (2) for corrective actions at a residential site used as a 
  6.1   permanent residence at the time the release was discovered, 92.5 
  6.2   percent of the total reimbursable costs on the first $100,000 
  6.3   and 100 percent of any remaining costs in excess of $100,000. 
  6.4      Not more than $1,000,000 may be reimbursed for costs 
  6.5   associated with a single release, regardless of the number of 
  6.6   persons eligible for reimbursement, and not more than $2,000,000 
  6.7   may be reimbursed for costs associated with a single tank 
  6.8   facility. 
  6.9      (b) A reimbursement may not be made from the fund under 
  6.10  this subdivision chapter until the board has determined that the 
  6.11  costs for which reimbursement is requested were actually 
  6.12  incurred and were reasonable. 
  6.13     (c) When an applicant has obtained responsible competitive 
  6.14  bids or proposals according to rules promulgated under this 
  6.15  chapter prior to June 1, 1995, the eligible costs for the tasks, 
  6.16  procedures, services, materials, equipment, and tests of the low 
  6.17  bid or proposal are presumed to be reasonable by the board, 
  6.18  unless the costs of the low bid or proposal are substantially in 
  6.19  excess of the average costs charged for similar tasks, 
  6.20  procedures, services, materials, equipment, and tests in the 
  6.21  same geographical area during the same time period. 
  6.22     (d) When an applicant has obtained a minimum of two 
  6.23  responsible competitive bids or proposals on forms prescribed by 
  6.24  the board and where the rules promulgated under this chapter 
  6.25  after June 1, 1995, designate maximum costs for specific tasks, 
  6.26  procedures, services, materials, equipment and tests, the 
  6.27  eligible costs of the low bid or proposal are deemed reasonable 
  6.28  if the costs are at or below the maximums set forth in the rules.
  6.29     (e) Costs incurred for change orders executed as prescribed 
  6.30  in rules promulgated under this chapter after June 1, 1995, are 
  6.31  presumed reasonable if the costs are at or below the maximums 
  6.32  set forth in the rules, unless the costs in the change order are 
  6.33  above those in the original bid or proposal or are 
  6.34  unsubstantiated and inconsistent with the process and standards 
  6.35  required by the rules. 
  6.36     (f) A reimbursement may not be made from the fund under 
  7.1   this subdivision in response to either an initial or 
  7.2   supplemental application for costs incurred after June 4, 1987, 
  7.3   that are payable under an applicable insurance policy, except 
  7.4   that if the board finds that the responsible person applicant 
  7.5   has made reasonable efforts to collect from an insurer and 
  7.6   failed, the board shall reimburse the responsible person under 
  7.7   this subdivision applicant. 
  7.8      (g) If the board reimburses a responsible person an 
  7.9   applicant for costs for which the responsible person applicant 
  7.10  has petroleum tank leakage or spill insurance coverage, the 
  7.11  board is subrogated to the rights of the responsible person 
  7.12  applicant with respect to that insurance coverage, to the extent 
  7.13  of the reimbursement by the board.  The board may request the 
  7.14  attorney general to bring an action in district court against 
  7.15  the insurer to enforce the board's subrogation rights.  
  7.16  Acceptance by a responsible person an applicant of reimbursement 
  7.17  constitutes an assignment by the responsible person applicant to 
  7.18  the board of any rights of the responsible person applicant with 
  7.19  respect to any insurance coverage applicable to the costs that 
  7.20  are reimbursed.  Notwithstanding this paragraph, the board may 
  7.21  instead request a return of the reimbursement under subdivision 
  7.22  5 and may employ against the responsible party applicant the 
  7.23  remedies provided in that subdivision, except where the board 
  7.24  has knowingly provided reimbursement because the responsible 
  7.25  person applicant was denied coverage by the insurer. 
  7.26     (h) Money in the fund is appropriated to the board to make 
  7.27  reimbursements under this section chapter.  A reimbursement to a 
  7.28  state agency must be credited to the appropriation account or 
  7.29  accounts from which the reimbursed costs were paid. 
  7.30     (i) The board may reduce the amount of reimbursement to be 
  7.31  made under this section chapter if it finds that the responsible 
  7.32  person applicant has not complied with a provision of this 
  7.33  chapter, a rule or order issued under this chapter, or one or 
  7.34  more of the following requirements: 
  7.35     (1) the agency was given notice of the release as required 
  7.36  by section 115.061; 
  8.1      (2) the responsible person applicant, to the extent 
  8.2   possible, fully cooperated with the agency in responding to the 
  8.3   release; and 
  8.4      (3) the state and federal rules and regulations applicable 
  8.5   to the condition or operation of the tank when the noncompliance 
  8.6   caused or failed to mitigate the release. 
  8.7      (j) The reimbursement may be reduced as much as 100 percent 
  8.8   for failure by the responsible person applicant to comply with 
  8.9   the requirements in paragraph (i), clauses (1) to (3).  In 
  8.10  determining the amount of the reimbursement reduction, the board 
  8.11  shall consider:  
  8.12     (1) the reasonable determination by the agency of the 
  8.13  environmental impact of the noncompliance; 
  8.14     (2) whether the noncompliance was negligent, knowing, or 
  8.15  willful; 
  8.16     (3) the deterrent effect of the award reduction on other 
  8.17  tank owners and operators; and 
  8.18     (4) the amount of reimbursement reduction recommended by 
  8.19  the commissioner. 
  8.20     (k) A person An applicant may assign the right to receive 
  8.21  reimbursement to each lender who advanced funds to pay the costs 
  8.22  of the corrective action or to each contractor or consultant who 
  8.23  provided corrective action services.  An assignment must be made 
  8.24  by filing with the board a document, in a form prescribed by the 
  8.25  board, indicating the identity of the responsible person 
  8.26  applicant, the identity of the assignee, the dollar amount of 
  8.27  the assignment, and the location of the corrective action.  An 
  8.28  assignment signed by the responsible person applicant is valid 
  8.29  unless terminated by filing a termination with the board, in a 
  8.30  form prescribed by the board, which must include the written 
  8.31  concurrence of the assignee.  The board shall maintain an index 
  8.32  of assignments filed under this paragraph.  The board shall pay 
  8.33  the reimbursement to the responsible person applicant and to one 
  8.34  or more assignees by a multiparty check.  The board has no 
  8.35  liability to a responsible person an applicant for a payment 
  8.36  under an assignment meeting the requirements of this paragraph. 
  9.1      Subd. 3a.  [ELIGIBILITY OF OTHER PERSONS.] Notwithstanding 
  9.2   the provisions of subdivisions 1 to 3, the board shall 
  9.3   provide full 100 percent reimbursement to a person who has taken 
  9.4   corrective action if the board or commissioner of commerce 
  9.5   determines that: 
  9.6      (1) the person took the corrective action in response to a 
  9.7   request or an order of the commissioner made under this chapter; 
  9.8      (2) the commissioner has determined that the person was not 
  9.9   a responsible person under section 115C.02; and 
  9.10     (3) the costs for which reimbursement is requested were 
  9.11  actually incurred and were reasonable. 
  9.12     Subd. 3b.  [VOLUNTEER ELIGIBILITY.] (a) Notwithstanding 
  9.13  subdivisions 1 to 3, a person may apply to the board for partial 
  9.14  reimbursement under subdivision 3 who: 
  9.15     (1) is not a responsible person under section 115C.02 as 
  9.16  defined in this chapter; 
  9.17     (2) holds legal or equitable title to the property where a 
  9.18  release occurred; and 
  9.19     (3) incurs reimbursable costs on or after May 23, 1989. 
  9.20     (b) A person eligible for reimbursement under this 
  9.21  subdivision chapter must, to the maximum extent possible, comply 
  9.22  with the same conditions and requirements of reimbursement as 
  9.23  those imposed by this section on a responsible person. 
  9.24     (c) The board may reduce the reimbursement to a person 
  9.25  eligible under this subdivision chapter if the person acquired 
  9.26  legal or equitable title to the property from a responsible 
  9.27  person who failed to comply with the provisions of subdivision 
  9.28  3, paragraph (i), except that the board may not reduce the 
  9.29  reimbursement to a mortgagee who acquires title to the property 
  9.30  through foreclosure or receipt of a deed in lieu of foreclosure. 
  9.31     Subd. 3c.  [RELEASE AT REFINERIES AND TANK FACILITIES NOT 
  9.32  ELIGIBLE FOR REIMBURSEMENT.] (a) Notwithstanding other 
  9.33  provisions of subdivisions 1 to 3b, a reimbursement may not be 
  9.34  made under this section chapter for costs associated with a 
  9.35  release:  
  9.36     (1) from a tank located at a petroleum refinery; or 
 10.1      (2) from a tank facility, including a pipeline terminal, 
 10.2   with more than 1,000,000 gallons of total petroleum storage 
 10.3   capacity at the tank facility.  
 10.4      (b) Paragraph (a), clause (2), does not apply to 
 10.5   reimbursement for costs associated with a release from a tank 
 10.6   facility:  
 10.7      (1) owned or operated by a person engaged in the business 
 10.8   of mining iron ore or taconite; 
 10.9      (2) owned by a political subdivision, a housing and 
 10.10  redevelopment authority, an economic development authority, or a 
 10.11  port authority that acquired the tank facility prior to May 23, 
 10.12  1989; or 
 10.13     (3) owned by a person: 
 10.14     (i) who acquired the tank facility prior to May 23, 1989; 
 10.15     (ii) who did not use the tank facility for the bulk storage 
 10.16  of petroleum; and 
 10.17     (iii) who is not affiliated with the party who used the 
 10.18  tank facility for the bulk storage of petroleum. 
 10.19     Subd. 3d.  [POLITICAL SUBDIVISION ELIGIBILITY.] (a) 
 10.20  Notwithstanding the provisions of subdivisions 1 to 3, a 
 10.21  political subdivision may apply to the board for partial 
 10.22  reimbursement under subdivision 3 this chapter where the 
 10.23  political subdivision: 
 10.24     (1) is not a responsible person under section 115C.02 as 
 10.25  defined by this chapter; and 
 10.26     (2) incurs reimbursable costs on or after April 8, 1992. 
 10.27     (b) A political subdivision eligible for reimbursement 
 10.28  under this subdivision may only apply for reimbursement if the 
 10.29  identified responsible person has failed to take a corrective 
 10.30  action ordered by the commissioner. 
 10.31     (c) A political subdivision eligible for reimbursement 
 10.32  under this subdivision must, to the maximum extent possible, 
 10.33  comply with the same conditions and requirements of 
 10.34  reimbursement as those imposed by this section chapter on a 
 10.35  responsible person. 
 10.36     Subd. 4.  [REIMBURSEMENT DOES NOT AFFECT OTHER LIABILITY.] 
 11.1   The right to apply for reimbursement and the receipt of 
 11.2   reimbursement does not limit the liability of a responsible 
 11.3   person for damages or costs incurred by a person or the state as 
 11.4   a result of a release. 
 11.5      Subd. 5.  [RETURN OF REIMBURSEMENT.] (a) The board may 
 11.6   demand the complete or partial return of any reimbursement made 
 11.7   under this section chapter if the applicant for reimbursement:  
 11.8      (1) misrepresents or omits a fact relevant to a 
 11.9   determination made by the board or the commissioner under this 
 11.10  section chapter; 
 11.11     (2) fails to complete corrective action that the 
 11.12  commissioner determined at the time of the reimbursement to be 
 11.13  necessary to adequately address the release, unless the 
 11.14  reimbursement was made under subdivision 3a; 
 11.15     (3) fails to reimburse a person for agreed-to amounts for 
 11.16  corrective actions taken in response to a request by the 
 11.17  applicant; or 
 11.18     (4) has entered an agreement to settle or compromise any 
 11.19  portion of the incurred costs, in which case the amount returned 
 11.20  must be prorated in proportion to the amount of the settlement 
 11.21  or compromise. 
 11.22     (b) If a reimbursement under this subdivision chapter is 
 11.23  not returned upon demand by the board, the board may recover the 
 11.24  reimbursement, with administrative and legal expenses, in a 
 11.25  civil action in district court brought by the attorney general 
 11.26  against the applicant.  If the board's demand for return of the 
 11.27  reimbursement is based on willful actions of the applicant, the 
 11.28  applicant shall also forfeit and pay to the state a civil 
 11.29  penalty, in an amount to be determined by the court, of not more 
 11.30  than the full amount of the reimbursement. 
 11.31     Subd. 6.  [FRAUD.] If a person, with intent to defraud, 
 11.32  issues an invoice or other demand for payment with knowledge 
 11.33  that it is false in whole or in part, and with knowledge that it 
 11.34  is being submitted to the board for reimbursement:  
 11.35     (1) that person shall be considered to have presented a 
 11.36  false claim to a public body under section 609.465; and 
 12.1      (2) the board may demand that the person return any money 
 12.2   received as a result of a reimbursement made on the basis of the 
 12.3   false invoice or other demand for payment.  If the money is not 
 12.4   returned upon demand by the board, the board may recover the 
 12.5   money, with administrative and legal expenses, in a civil action 
 12.6   in district court brought by the attorney general against the 
 12.7   person.  The person shall also forfeit and pay to the state a 
 12.8   civil penalty, in an amount to be determined by the court, of 
 12.9   not more than the full amount of the money received by the 
 12.10  person on the basis of the false invoice or other demand for 
 12.11  payment.  
 12.12     Subd. 7.  [DUTY TO PROVIDE INFORMATION.] (a) A person who 
 12.13  submits an application to the board for reimbursement, or who 
 12.14  has issued invoices or other demands for payment which are the 
 12.15  basis of an application, shall furnish to the board copies of 
 12.16  any financial records which the board requests and which are 
 12.17  relevant to determining the validity of the costs listed in the 
 12.18  application, or shall make the financial records reasonably 
 12.19  available to the board for inspection and auditing.  The board 
 12.20  may obtain access to information required to be made available 
 12.21  under this subdivision chapter in the manner provided in section 
 12.22  115C.03, subdivision 7. 
 12.23     (b) After reimbursement has been granted, an agreement to 
 12.24  settle or compromise any portion of the incurred costs must be 
 12.25  reported to the board by the parties to the agreement. 
 12.26     Subd. 8.  [LIMITATION ON REIMBURSEMENT OBLIGATION.] The 
 12.27  amount of the state's obligation to make reimbursement under 
 12.28  this chapter is limited to the amount available.  
 12.29  Notwithstanding any other provisions of this chapter, there 
 12.30  shall be no obligation to the general fund to make a 
 12.31  reimbursement if there are not sufficient funds in the petroleum 
 12.32  tank fund. 
 12.33     Subd. 9.  [INSUFFICIENT FUNDS.] The board may not approve 
 12.34  an application for reimbursement if there are insufficient funds 
 12.35  available to pay the reimbursement. 
 12.36     Subd. 10.  [DELEGATION OF BOARD'S POWERS.] The board may 
 13.1   delegate to the commissioner of commerce its powers and duties 
 13.2   under this section. 
 13.3      Sec. 7.  Minnesota Statutes 1995 Supplement, section 
 13.4   115C.092, subdivision 1, is amended to read: 
 13.5      Subdivision 1.  [PREREMOVAL SITE ASSESSMENT; 
 13.6   REIMBURSEMENT.] (a) Preremoval site assessment costs which are 
 13.7   in compliance with the requirements of this chapter and with 
 13.8   rules promulgated under this chapter shall be reimbursable under 
 13.9   section 115C.09, subdivision 3.  The applicant shall obtain 
 13.10  written competitive proposals for the preremoval site assessment 
 13.11  on a form prescribed by the board utilizing, as appropriate, 
 13.12  tasks and costs established in rules promulgated under this 
 13.13  chapter governing the initial site assessment. 
 13.14     (b) If contamination is found at the site, the board shall 
 13.15  reimburse an applicant upon submission of the applicant's first 
 13.16  application for reimbursement under section 115C.09, subdivision 
 13.17  2.  If no contamination is found at the site, the board shall 
 13.18  reimburse the applicant upon provision by the applicant of 
 13.19  documentation that the tank or tanks have been removed from the 
 13.20  site. 
 13.21     (c) Notwithstanding any provision in this subdivision to 
 13.22  the contrary, the board shall not reimburse for a preremoval 
 13.23  site assessment which is done for the purposes of facilitating a 
 13.24  property transfer.  The board shall presume that a preremoval 
 13.25  site assessment is done for the purposes of facilitating a 
 13.26  property transfer if the property is transferred within three 
 13.27  months of incurring preremoval site assessment costs. 
 13.28     Sec. 8.  Minnesota Statutes 1995 Supplement, section 
 13.29  115C.10, subdivision 1, is amended to read: 
 13.30     Subdivision 1.  [PAYMENT FROM FUND; SUBROGATION; 
 13.31  APPROPRIATION.] (a) If the cost of authorized actions under 
 13.32  section 115C.03 exceeds the amount appropriated to the agency 
 13.33  for the actions and amounts awarded to the agency from the 
 13.34  federal government, the agency may apply to the board for money 
 13.35  to pay for the actions from the fund.  The board shall pay the 
 13.36  agency the cost of the proposed actions under section 115C.03 if 
 14.1   the board finds that the conditions for the agency to be paid 
 14.2   from the fund have been met, and that an adequate amount exists 
 14.3   in the fund to pay for the corrective action.  If the board pays 
 14.4   the agency for the cost of authorized actions for which a 
 14.5   responsible person has petroleum tank leakage or spill there is 
 14.6   insurance coverage, the board is subrogated to the agency's 
 14.7   rights with respect to the responsible person and the 
 14.8   responsible person's insurer insurance, to the extent of the 
 14.9   board's payment of costs for which the responsible person has 
 14.10  insurance coverage exists, subject to the limitations on an 
 14.11  agency cost recovery action set forth in section 115C.04, 
 14.12  subdivision 3.  The board may request the attorney general to 
 14.13  bring an action in district court against the responsible person 
 14.14  or that person's, the applicant, or the insurer to enforce the 
 14.15  board's subrogation rights.  Acceptance of a payment from the 
 14.16  board by the agency constitutes an assignment to the board of 
 14.17  the subrogation rights specified in this subdivision. 
 14.18     (b) Money in the fund is appropriated to the board for the 
 14.19  purpose of this subdivision.  
 14.20     Sec. 9.  Minnesota Statutes 1995 Supplement, section 
 14.21  115C.11, subdivision 1, is amended to read: 
 14.22     Subdivision 1.  [REGISTRATION.] (a) All consultants and 
 14.23  contractors who perform corrective action services must register 
 14.24  with the board.  In order to register, consultants must meet and 
 14.25  demonstrate compliance with the following criteria: 
 14.26     (1) provide a signed statement to the board verifying 
 14.27  agreement to abide by this chapter and the rules adopted under 
 14.28  it and to include a signed statement with each claim that all 
 14.29  costs claimed by the consultant are a true and accurate account 
 14.30  of services performed; 
 14.31     (2) provide a signed statement that the consultant shall 
 14.32  make available for inspection any records requested by the board 
 14.33  for field or financial audits under the scope of this chapter; 
 14.34     (3) certify knowledge of the requirements of this chapter 
 14.35  and the rules adopted under it; 
 14.36     (4) obtain and maintain professional liability coverage, 
 15.1   including pollution impairment liability; and 
 15.2      (5) agree to submit to the board a certificate or 
 15.3   certificates verifying the existence of the required insurance 
 15.4   coverage. 
 15.5      (b) The board must maintain a list of all registered 
 15.6   consultants and a list of all registered contractors. 
 15.7      (c) All corrective action services must be performed by 
 15.8   registered consultants and contractors. 
 15.9      (d) Reimbursement for corrective action services performed 
 15.10  by an unregistered consultant or contractor is subject to 
 15.11  reduction under section 115C.09, subdivision 3, paragraph (i). 
 15.12     (e) Corrective action services performed by a consultant or 
 15.13  contractor prior to being removed from the registration list may 
 15.14  be reimbursed without reduction by the board. 
 15.15     (f) If the information in an application for registration 
 15.16  becomes inaccurate or incomplete in any material respect, the 
 15.17  registered consultant or contractor must promptly file a 
 15.18  corrected application with the board. 
 15.19     (g) Registration is effective on the date a complete 
 15.20  application is received by the board.  The board may reimburse 
 15.21  without reduction the cost of work performed by an unregistered 
 15.22  contractor if the contractor performed the work within 30 days 
 15.23  of the effective date of registration. 
 15.24     (h) Registration under this section remains in force until 
 15.25  voluntarily terminated by the registrant, or until suspended or 
 15.26  revoked by the commissioner of commerce.  All registrants must 
 15.27  comply with registration criteria under this section. 
 15.28     Sec. 10.  [115C.111] [COMMISSIONER OF COMMERCE; AUTHORITY 
 15.29  TO SANCTION CONSULTANTS AND CONTRACTORS.] 
 15.30     Subdivision 1.  [GROUNDS.] (a) The commissioner of commerce 
 15.31  may impose sanctions under paragraph (b) on a consultant or 
 15.32  contractor for failure to comply with any provision or any rule 
 15.33  or order under this chapter or under chapter 45, or for any of 
 15.34  the following reasons: 
 15.35     (1) engaging in conduct that departs from or fails to 
 15.36  conform to the minimal standards of acceptable and prevailing 
 16.1   engineering, hydrogeological, or other technical practices 
 16.2   within the reasonable control of the consultant or contractor; 
 16.3      (2) participating in a kickback scheme prohibited under 
 16.4   section 115C.045; 
 16.5      (3) engaging in conduct likely to deceive or defraud, or 
 16.6   demonstrating disregard for public health or the environment; 
 16.7      (4) committing fraud, embezzlement, theft, forgery, 
 16.8   bribery, falsifying or destroying records, making false or 
 16.9   misleading statements, receiving stolen property, making false 
 16.10  claims, engaging in deceptive or dishonest practices or 
 16.11  obstruction of justice; 
 16.12     (5) revoking, suspending, restricting, limiting, or taking 
 16.13  other disciplinary action against the contractor's or 
 16.14  consultant's license or certification in another state or 
 16.15  jurisdiction; 
 16.16     (6) engaging in anticompetitive activity; 
 16.17     (7) performing corrective action without having an accurate 
 16.18  and complete registration on file with the board; 
 16.19     (8) having been shown to be incompetent or financially 
 16.20  irresponsible in the course of the contractor's or consultant's 
 16.21  affairs under the registration; 
 16.22     (9) making or assisting another in making any material 
 16.23  misrepresentation or omission to the board, commissioner, 
 16.24  commissioner of commerce, or upon reasonable request has 
 16.25  withheld or concealed information from, or refused to furnish 
 16.26  information to, the board, commissioner, or commissioner of 
 16.27  commerce. 
 16.28     (b) The commissioner of commerce may impose one or more of 
 16.29  the following sanctions: 
 16.30     (1) remove a consultant or contractor from the registration 
 16.31  list for up to five years; 
 16.32     (2) publicly reprimand or censure the consultant or 
 16.33  contractor; 
 16.34     (3) place the consultant or contractor on probation for a 
 16.35  period and upon terms and conditions the commissioner of 
 16.36  commerce prescribes; 
 17.1      (4) require payment of all costs of proceedings resulting 
 17.2   in an action instituted under this section; 
 17.3      (5) impose a civil penalty of not more than $10,000 per 
 17.4   violation, in an amount that the commissioner of commerce 
 17.5   determines will deprive the consultant or contractor of any 
 17.6   economic advantage gained by reason of the consultant's or 
 17.7   contractor's conduct or to reimburse the fund for the cost of 
 17.8   the investigation and proceedings; or 
 17.9      (6) impose any sanction provided under chapter 45. 
 17.10     (c) The commissioner of commerce shall remove from the 
 17.11  registration list for five years a consultant or contractor who 
 17.12  is convicted in a criminal proceeding for submitting false or 
 17.13  fraudulent bills that are part of a claim for reimbursement 
 17.14  under this chapter.  The commissioner of commerce may, in 
 17.15  addition, impose one or more of the sanctions in paragraph (b). 
 17.16     (d) Civil penalties recovered by the state under this 
 17.17  section shall be credited to the fund. 
 17.18     Subd. 2.  [ORDERS.] The commissioner of commerce shall 
 17.19  issue an order requiring a registrant or applicant for 
 17.20  registration to show cause why the registration should not be 
 17.21  revoked or suspended, the registrant censured, or the 
 17.22  application denied.  The order must be calculated to give 
 17.23  reasonable notice of the time and place for hearing on the 
 17.24  matter, and must state the reasons for the entry of the order.  
 17.25  The commissioner of commerce may by order summarily suspend a 
 17.26  registration pending final determination of an order to show 
 17.27  cause.  A hearing on the merits must be held within 30 days of 
 17.28  the issuance of the order of suspension.  All hearings must be 
 17.29  conducted according to the contested case provisions of chapter 
 17.30  14.  After the hearing, the commissioner of commerce shall enter 
 17.31  an order disposing of the matter as the facts require.  If the 
 17.32  registrant or applicant fails to appear at a hearing after 
 17.33  having been duly notified of it, the person shall be considered 
 17.34  in default, and the proceeding may be determined against the 
 17.35  registrant or applicant upon consideration of the order to show 
 17.36  cause, the allegations of which may be considered to be true. 
 18.1      Subd. 3.  [HEARING.] The commissioner of commerce may 
 18.2   delegate to an administrative law judge the authority to conduct 
 18.3   a hearing.  The administrative law judge shall make proposed 
 18.4   findings of fact and submit them to the commissioner of 
 18.5   commerce.  The administrative law judge has the same power as 
 18.6   the commissioner of commerce to:  compel the attendance of 
 18.7   witnesses, examine them under oath, require the production of 
 18.8   books, papers and other evidence, and issue subpoenas and cause 
 18.9   the same to be served and executed in any part of the state. 
 18.10     Subd. 4.  [JUDICIAL REVIEW.] Orders of the commissioner of 
 18.11  commerce shall be subject to judicial review according to 
 18.12  chapter 14. 
 18.13     Subd. 5.  [FRAUDULENT REIMBURSEMENT DEMANDS.] If a 
 18.14  consultant or contractor, with intent to defraud, issues an 
 18.15  invoice or other demand for payment with knowledge that it is 
 18.16  false in whole or in part, and with knowledge that it is being 
 18.17  submitted to the board for reimbursement: 
 18.18     (1) that person shall be considered to have presented a 
 18.19  false claim to a public body under section 609.465; and 
 18.20     (2) the money received as a result of a reimbursement made 
 18.21  on the basis of the false invoice or other demand for payment, 
 18.22  with administrative and legal expenses, may be recovered in a 
 18.23  civil action in district court brought by the attorney general 
 18.24  against the person.  The person shall also forfeit and pay to 
 18.25  the state a civil penalty, in an amount to be determined by the 
 18.26  court, of not more than the full amount of the money received by 
 18.27  the person on the basis of the false invoice or other demand for 
 18.28  payment. 
 18.29     Subd. 6.  [SANCTIONS AGAINST CONSULTANTS OR 
 18.30  CONTRACTORS.] If the consultant or contractor is not a natural 
 18.31  person, the commissioner of commerce may impose the sanctions 
 18.32  under this section for any of the reasons in this section on:  
 18.33  (1) a partner, officer, director, or any person occupying a 
 18.34  similar status or performing similar functions; or (2) a person 
 18.35  directly or indirectly controlling the consultant or contractor 
 18.36  or any employee or agent. 
 19.1      Sec. 11.  Minnesota Statutes 1995 Supplement, section 
 19.2   115C.12, is amended to read: 
 19.3      115C.12 [APPEAL OF REIMBURSEMENT DETERMINATION.] 
 19.4      Subdivision 1.  [APPEAL FROM DETERMINATION OF COMMISSIONER 
 19.5   OF COMMERCE.] An applicant for reimbursement may appeal to the 
 19.6   board a reimbursement determination made by the commissioner of 
 19.7   commerce under authority delegated by the board according to 
 19.8   section 115C.09, subdivision 10, by submitting a written notice 
 19.9   setting forth the specific basis for the appeal.  The 
 19.10  commissioner of commerce shall send written notification of the 
 19.11  reimbursement determination by first class United States mail to 
 19.12  the applicant for reimbursement at the applicant's last known 
 19.13  address.  The applicant for reimbursement must file written 
 19.14  notice with the board of an appeal of a reimbursement 
 19.15  determination made by the commissioner of commerce within 60 
 19.16  days of the date that the commissioner of commerce sends written 
 19.17  notice to the applicant of the reimbursement determination.  The 
 19.18  board shall consider the appeal within 90 days of receipt of the 
 19.19  written notice of appeal by the applicant for reimbursement. 
 19.20     Subd. 2.  [APPEAL FROM DECISION OF THE BOARD.] (a) An 
 19.21  applicant for reimbursement may appeal a reimbursement 
 19.22  determination of the board as a contested case under chapter 
 19.23  14.  An applicant for reimbursement must provide written 
 19.24  notification to the board of a request for a contested case, 
 19.25  setting forth the specific basis for the appeal, within 30 days 
 19.26  of the date that the board makes a reimbursement determination. 
 19.27     (b) This subdivision applies to reimbursement 
 19.28  determinations made by the board as a result of an appeal to the 
 19.29  board under subdivision 1 and reimbursement determinations made 
 19.30  by the board when the board has not delegated its authority to 
 19.31  make reimbursement determinations. 
 19.32     (c) An appeal of a reimbursement determination may only be 
 19.33  made by an applicant as defined by this chapter. 
 19.34     Subd. 3.  [CONTESTED CASE; FINAL DECISION.] The final 
 19.35  decision in a contested case requested by an applicant under 
 19.36  subdivision 2 shall be made by the commissioner of commerce. 
 20.1      Sec. 12.  [REPEALER.] 
 20.2      Minnesota Statutes 1994, section 115C.11, subdivisions 3 
 20.3   and 4; Minnesota Statutes 1995 Supplement, section 115C.11, 
 20.4   subdivision 2, are repealed. 
 20.5      Sec. 13.  [EFFECTIVE DATES.] 
 20.6      Sections 1 to 8 and 11 are effective the day after final 
 20.7   enactment and apply to applications for reimbursement pending on 
 20.8   or filed on or after that date.  Section 9 is effective the day 
 20.9   after final enactment and applies to all current and future 
 20.10  registrants.  Sections 10 and 12 are effective the day after 
 20.11  final enactment and apply to disciplinary actions pending on or 
 20.12  commenced on or after that date.