Minnesota Session Laws - 1987, Regular Session

  

                         Laws of Minnesota 1987 

                        CHAPTER 174-H.F.No. 332 
           An act relating to environment; authorizing the 
          pollution control agency to issue administrative 
          orders assessing penalties; establishing a hearing 
          procedure; providing for the distribution and 
          expenditure of monetary penalties; proposing coding 
          for new law in Minnesota Statutes, chapter 116. 
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
    Section 1.  [116.072] [ADMINISTRATIVE PENALTIES FOR 
HAZARDOUS WASTE VIOLATIONS.] 
    Subdivision 1.  [AUTHORITY TO ISSUE PENALTY ORDERS.] The 
director may issue an order requiring violations to be corrected 
and administratively assessing monetary penalties for hazardous 
waste violations under sections 115.061 and 116.07, and 
Minnesota Rules, chapter 7045.  The order must be issued as 
provided in this section. 
    Subd. 2.  [AMOUNT OF PENALTY; CONSIDERATIONS.] (a) The 
director may issue an order assessing a penalty up to $10,000 
for all violations identified during an inspection. 
    (b) In determining the amount of a penalty the director may 
consider: 
    (1) the willfulness of the violation;  
    (2) the gravity of the violation, including damage to 
humans, animals, air, water, land, or other natural resources of 
the state;  
    (3) the history of past violations;  
    (4) the number of violations; 
    (5) the economic benefit gained by the person by allowing 
or committing the violation; and 
    (6) other factors as justice may require, if the director 
specifically identifies the additional factors in the director's 
order. 
    (c) For a violation after an initial violation, the 
director shall, in determining the amount of a penalty, consider 
the factors in paragraph (b) and the: 
    (1) similarity of the most previous violation and the 
violation to be penalized; 
    (2) time elapsed since the last violation; 
    (3) number of previous violations; and 
    (4) response of the person to the most previous violation 
identified. 
    Subd. 3.  [CONTENTS OF ORDER.] An order assessing an 
administrative penalty under this section shall include: 
    (1) a concise statement of the facts alleged to constitute 
a violation;  
    (2) a reference to the section of the statute, rule, 
variance, order, stipulation agreement, or term or condition of 
a permit that has been violated;  
    (3) a statement of the amount of the administrative penalty 
to be imposed and the factors upon which the penalty is based; 
and 
    (4) a statement of the person's right to review of the 
order. 
    Subd. 4.  [CORRECTIVE ORDER.] (a) The director may issue an 
order assessing a penalty and requiring the violations cited in 
the order to be corrected within 30 calendar days from the date 
the order is received.  
    (b) The person to whom the order was issued shall provide 
information to the director before the 31st day after the order 
was received demonstrating that the violation has been corrected 
or that appropriate steps toward correcting the violation have 
been taken.  The director shall determine whether the violation 
has been corrected and notify the person subject to the order of 
the director's determination.  
    Subd. 5.  [PENALTY.] (a) Except as provided in paragraph 
(b), if the director determines that the violation has been 
corrected or appropriate steps have been taken to correct the 
action, the penalty must be forgiven.  Unless the person 
requests review of the order under subdivision 6 or 7 before the 
penalty is due, the penalty in the order is due and payable: 
     (1) on the 31st day after the order was received, if the 
person subject to the order fails to provide information to the 
director showing that the violation has been corrected or that 
appropriate steps have been taken toward correcting the 
violation; or 
     (2) on the 20th day after the person receives the 
director's determination under subdivision 4, paragraph (b), if 
the person subject to the order has provided information to the 
director that the director determines is not sufficient to show 
the violation has been corrected or that appropriate steps have 
been taken toward correcting the violation.  
    (b) For a repeated or serious violation, the director may 
issue an order with a penalty that will not be forgiven after 
the corrective action is taken.  The penalty is due by 31 days 
after the order was received unless review of the order under 
subdivision 6, 7, or 8 has been sought.  
    (c) Interest at the rate established in section 549.09 
begins to accrue on penalties under this subdivision on the 31st 
day after the order with the penalty was received.  
    Subd. 6.  [EXPEDITED ADMINISTRATIVE HEARING.] (a) Within 30 
days after receiving an order or within 20 days after receiving 
notice that the director has determined that a violation has not 
been corrected or appropriate steps have not been taken, the 
person subject to an order under this section may request an 
expedited hearing to review the director's action.  The person 
to whom the order is directed and the director are the parties 
to the expedited hearing.  The director must notify the person 
to whom the order is directed of the time and place of the 
hearing at least 20 days before the hearing.  The expedited 
hearing must be held within 30 days after a request for hearing 
has been filed with the director unless the parties agree to a 
later date. 
    (b) All written arguments must be submitted within ten days 
following the close of the hearing.  The hearing shall be 
conducted under the conference contested case rules of the 
office of administrative hearings, as modified by this 
subdivision.  The office of administrative hearings may, in 
consultation with the agency, adopt rules specifically 
applicable to cases under this section. 
    (c) The administrative law judge shall issue a report 
making recommendations about the director's action to the 
director within 30 days following the close of the record.  The 
administrative law judge may not recommend a change in the 
amount of the proposed penalty unless the administrative law 
judge determines that, based on the factors in subdivision 2, 
the amount of the penalty is unreasonable. 
    (d) If the administrative law judge makes a finding that 
the hearing was requested solely for purposes of delay or that 
the hearing request was frivolous, the director may add to the 
amount of the penalty the costs charged to the agency by the 
office of administrative hearings for the hearing.  
    (e) If a hearing has been held, the director may not issue 
a final order until at least five days after receipt of the 
report of the administrative law judge.  The person to whom an 
order is issued may, within those five days, comment to the 
director on the recommendations and the director will consider 
the comments.  The final order may be appealed in the manner 
provided in sections 14.63 to 14.69.  
    (f) If a hearing has been held and a final order issued by 
the director, the penalty shall be paid by 30 days after the 
date the final order is received unless review of the final 
order is requested under sections 14.63 to 14.69.  If review is 
not requested or the order is reviewed and upheld, the amount 
due is the penalty, together with interest accruing from 31 days 
after the original order was received at the rate established in 
section 549.09.  
    Subd. 7.  [DISTRICT COURT HEARING.] (a) Within 30 days 
after the receipt of an order or within 20 days of receipt of 
notice that the director has determined that a violation has not 
been corrected or appropriate steps have not been taken, the 
person subject to an order under this section may file a 
petition in district court for review of the order in lieu of 
requesting an administrative hearing under subdivision 6.  The 
petition shall be filed with the court administrator with proof 
of service on the director.  The petition shall be captioned in 
the name of the person making the petition as petitioner and the 
director as respondent.  The petition shall state with 
specificity the grounds upon which the petitioner seeks 
rescission of the order, including the facts upon which each 
claim is based.  
     (b) At trial, the director must establish by a 
preponderance of the evidence that a violation subject to this 
section occurred, the petitioner is responsible for the 
violation, a penalty immediately assessed as provided for under 
subdivision 5, paragraph (b) or (c), is justified by the 
violation, and the factors listed in subdivision 2 were 
considered when the penalty amount was determined and the 
penalty amount is justified by those factors. 
    Subd. 8.  [MEDIATION.] In addition to review under 
subdivision 6 or 7, the director is authorized to enter into 
mediation concerning an order issued under this section if the 
director and the person to whom the order is issued both agree 
to mediation. 
    Subd. 9.  [ENFORCEMENT.] (a) The attorney general may 
proceed on behalf of the state to enforce penalties that are due 
and payable under this section in any manner provided by law for 
the collection of debts.  
    (b) The attorney general may petition the district court to 
file the administrative order as an order of the court.  At any 
court hearing, the only issues parties may contest are 
procedural and notice issues.  Once entered, the administrative 
order may be enforced in the same manner as a final judgment of 
the district court.  
    (c) If a person fails to pay the penalty, the attorney 
general may bring a civil action in district court seeking 
payment of the penalties, injunctive, or other appropriate 
relief including monetary damages, attorney fees, costs, and 
interest.  
    Subd. 10.  [REVOCATION AND SUSPENSION OF PERMIT.] If a 
person fails to pay a penalty owed under this section the agency 
has grounds to revoke or refuse to reissue or renew a hazardous 
waste permit issued by the agency. 
    Subd. 11.  [CUMULATIVE REMEDY.] The authority of the agency 
to issue a corrective order assessing penalties is in addition 
to other remedies available under statutory or common law.  The 
payment of a penalty does not preclude the use of other 
enforcement provisions in connection with the violation for 
which the penalty was assessed. 
    Approved May 20, 1987