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Office of the Revisor of Statutes

Key: (1) language to be deleted (2) new language

  

                         Laws of Minnesota 1987 

                        CHAPTER 389-H.F.No. 606 
           An act relating to environment; establishing a 
          petroleum tank release cleanup program; authorizing 
          state action to prevent or correct health and 
          environmental damage resulting from releases from 
          petroleum storage tanks; establishing a petroleum tank 
          release cleanup fund; establishing a petroleum tank 
          release compensation board; authorizing reimbursement 
          from the fund; requiring rulemaking; providing for 
          administration by the pollution control agency and the 
          department of commerce; requiring certification of 
          tank installers; appropriating money; amending 
          Minnesota Statutes 1986, sections 116.46, by adding 
          subdivisions; 116.47; and 116.48, subdivision 4; 
          proposing coding for new law in Minnesota Statutes, 
          chapter 116; proposing coding for new law as Minnesota 
          Statutes, chapter 115C. 
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
    Section 1.  [115C.01] [CITATION.] 
    Sections 1 to 10 may be cited as the "petroleum tank 
release cleanup act." 
    Sec. 2.  [115C.02] [DEFINITIONS.] 
    Subdivision 1.  [APPLICABILITY.] The definitions in this 
section apply to sections 2 to 10.  
    Subd. 2.  [AGENCY.] "Agency" means the pollution control 
agency.  
    Subd. 3.  [BOARD.] "Board" means the petroleum tank release 
compensation board.  
    Subd. 4.  [CORRECTIVE ACTION.] "Corrective action" means an 
action taken to minimize, eliminate, or clean up a release to 
protect the public health and welfare or the environment.  
    Subd. 5.  [DIRECTOR.] "Director" means the director of the 
pollution control agency.  
    Subd. 6.  [FUND.] "Fund" means the petroleum tank release 
cleanup fund.  
    Subd. 7.  [OPERATOR.] "Operator" means a person in control 
of, or having responsibility for, the daily operation of a tank. 
    Subd. 8.  [OWNER.] "Owner" means a person who holds title 
to, controls, or possesses an interest in a tank.  "Owner" does 
not include a person who holds an interest in a tank solely for 
financial security, unless through foreclosure or other related 
actions the holder of a security interest has taken possession 
of the tank.  
    Subd. 9.  [PERSON.] "Person" means an individual, 
partnership, association, public or private corporation, or 
other legal entity, including the United States government, an 
interstate commission or other body, the state, or any agency, 
board, bureau, office, department, or political subdivision of 
the state. 
    Subd. 10.  [PETROLEUM.] "Petroleum" means:  
    (1) gasoline and fuel oil as defined in section 296.01, 
subdivisions 3 and 4; 
    (2) crude oil or a fraction of crude oil that is liquid at 
a temperature of 60 degrees Fahrenheit and pressure of 14.7 
pounds per square inch absolute; or 
    (3) constituents of gasoline and fuel oil under clause (1) 
and crude oil under clause (2). 
    Subd. 11.  [POLITICAL SUBDIVISION.] "Political subdivision" 
means a county, a town, or a statutory or home rule charter city.
    Subd. 12.  [RELEASE.] "Release" means a spilling, leaking, 
emitting, discharging, escaping, leaching, or disposing of 
petroleum from a tank into the environment whether occurring 
before or after the effective date of sections 1 to 10, but does 
not include discharges or designed venting allowed under agency 
rules.  
    Subd. 13.  [RESPONSIBLE PERSON.] "Responsible person" means 
a person who is an owner or operator of a tank at any time 
during or after the release.  
    Subd. 14.  [TANK.] "Tank" means any one or a combination of 
containers, vessels, and enclosures, including structures and 
appurtenances connected to them, that is, or has been, used to 
contain or dispense petroleum.  
    "Tank" does not include: 
    (1) a mobile storage tank used to transport petroleum from 
one location to another; or 
    (2) pipeline facilities, including gathering lines, 
regulated under the Natural Gas Pipeline Safety Act of 1968, 
United States Code, title 49, chapter 24, or the Hazardous 
Liquid Pipeline Safety Act of 1979, United States Code, title 
49, chapter 29.  
    Sec. 3.  [115C.03] [RESPONSE TO RELEASES.] 
    Subdivision 1.  [CORRECTIVE ACTION ORDERS.] If there is a 
release, the director may order a responsible person to take 
reasonable and necessary corrective actions.  The director shall 
notify the owner of real property where corrective action is 
ordered to be taken that responsible persons have been ordered 
to take corrective action and that the owner's cooperation will 
be required for responsible persons to take that action.  When 
the director has ordered a responsible person to take a 
corrective action, a political subdivision may not request or 
order the person to take an action that conflicts with the 
action ordered by the director. 
    Subd. 2.  [AGENCY AND COMPELLED PERFORMANCE CORRECTIVE 
ACTIONS.] The agency may take corrective action or request the 
attorney general to bring an action to compel performance of a 
corrective action if: 
    (1) a responsible person cannot be identified; 
    (2) an identified responsible person cannot or will not 
comply with the order issued under subdivision 1; or 
    (3) an administrative or judicial proceeding on an order 
issued under subdivision 1 is pending. 
    Subd. 3.  [EMERGENCY CORRECTIVE ACTION.] To assure an 
adequate response to a release, the director may take corrective 
action without following the procedures of subdivision 1 if the 
director determines that the release constitutes a clear and 
immediate danger requiring immediate action to prevent, 
minimize, or mitigate damage to the public health and welfare or 
the environment.  Before taking an action under this 
subdivision, the director shall make all reasonable efforts, 
taking into consideration the urgency of the situation, to order 
a responsible person to take a corrective action and notify the 
owner of real property where the corrective action is to be 
taken.  
    Subd. 4.  [RELEASE IS A PUBLIC NUISANCE.] A release is a 
public nuisance and may be enjoined in an action, in the name of 
the state, brought by the attorney general. 
    Subd. 5.  [INVESTIGATIONS.] If the director has reason to 
believe that a release has occurred, the director may undertake 
reasonable investigations necessary to identify the existence, 
source, nature, and extent of a release, the responsible 
persons, and the extent of danger to the public health and 
welfare or the environment. 
    Subd. 6.  [DUTY TO PROVIDE INFORMATION.] A person who the 
director has reason to believe is a responsible person, or the 
owner of real property where corrective action is ordered to be 
taken, or who might otherwise have information concerning a 
release, shall, when requested by the director or any member, 
employee, or agent of the agency who is authorized by the 
director, furnish to the director any information that person 
may have or may reasonably obtain that is relevant to the 
release.  
    Subd. 7.  [ACCESS TO INFORMATION AND PROPERTY.] The 
director or any member, employee, or agent of the agency 
authorized by the director, may, upon presentation of official 
agency credentials, take any of the following actions:  
    (1) examine and copy books, papers, records, memoranda, or 
data of a person who has a duty to provide information to the 
director under subdivision 6; and 
    (2) enter upon public or private property for the purpose 
of taking action authorized by this section, including obtaining 
information from a person who has a duty to provide the 
information under subdivision 6, conducting surveys and 
investigations, and taking corrective action. 
    Subd. 8.  [CLASSIFICATION OF DATA.] Except as otherwise 
provided in this subdivision, data obtained from a person under 
subdivision 6 or 7 is public data as defined in section 13.02.  
Upon certification by the subject of the data that the data 
relates to sales figures, processes or methods of production 
unique to that person, or information that would tend to 
adversely affect the competitive position of that person, the 
director shall classify the data as private or nonpublic data as 
defined in section 13.02.  Data classified as private or 
nonpublic under this subdivision may be disclosed when relevant 
in a proceeding under sections 3 to 10. 
    Sec. 4.  [115C.04] [LIABILITY FOR RESPONSE COSTS.] 
    Subdivision 1.  [CORRECTIVE ACTION LIABILITY.] A 
responsible person is liable for the cost of the corrective 
action taken by the agency under section 3, subdivisions 2 and 
3, including the cost of investigating the release and 
administrative and legal expenses, if:  
    (1) the responsible person has failed to take a corrective 
action ordered by the director and the agency has taken the 
action; 
    (2) the agency has taken corrective action in an emergency 
under section 3, subdivision 3; or 
    (3) the agency has taken corrective action because a 
responsible person could not be identified.  
    Subd. 2.  [AVOIDANCE OF LIABILITY.] (a)  A responsible 
person may not avoid the liability by means of a conveyance of 
any right, title, or interest in real property; or by any 
indemnification, hold harmless agreement, or similar agreement.  
    (b) This subdivision does not:  
    (1) prohibit a person who may be liable from entering an 
agreement by which the person is insured, held harmless, or 
indemnified for part or all of the liability; 
    (2) prohibit the enforcement of an insurance, hold 
harmless, or indemnification agreement; or 
    (3) bar a cause of action brought by a person who may be 
liable or by an insurer or guarantor, whether by right of 
subrogation or otherwise. 
    Subd. 3.  [AGENCY COST RECOVERY.] Reasonable and necessary 
expenses incurred by the agency in taking a corrective action, 
including costs of investigating a release and administrative 
and legal expenses, may be recovered in a civil action in 
district court brought by the attorney general against a 
responsible person.  The agency's certification of expenses is 
prima facie evidence that the expenses are reasonable and 
necessary.  Expenses that are recovered under this section must 
be deposited in the fund.  
    Sec. 5.  [115C.05] [CIVIL PENALTY.] 
    The agency may enforce section 3 using the actions and 
remedies authorized under section 115.071, subdivision 3.  The 
civil penalties recovered by the state must be credited to the 
fund.  
    Sec. 6.  [115C.06] [EFFECT ON OTHER LAW.] 
    Subdivision 1.  [ACTIONS UNDER CHAPTER 115B.] Sections 3 to 
10 do not limit any actions initiated by the agency under 
chapter 115B.  
    Subd. 2.  [DUTY TO NOTIFY AND TAKE ACTION FOR 
RELEASE.] Sections 3 to 10 do not limit a person's duty to 
notify the agency and take action related to a release as 
provided in section 115.061. 
    Sec. 7.  [115C.07] [PETROLEUM TANK RELEASE COMPENSATION 
BOARD.] 
    Subdivision 1.  [ESTABLISHMENT.] The petroleum tank release 
compensation board consists of the director of the pollution 
control agency, the commissioner of commerce, two 
representatives from the petroleum industry, and one 
representative from the insurance industry.  The governor shall 
appoint the members from the insurance and petroleum industry.  
The filling of positions reserved for industry representatives, 
vacancies, membership terms, payment of compensation and 
expenses, and removal of members are governed by section 
15.0575.  The governor shall designate the chair of the board. 
    Subd. 2.  [STAFF.] The commissioner of commerce shall 
provide staff to support the activities of the board. 
    Subd. 3.  [RULES.] (a) The board shall adopt rules 
regarding its practices and procedures, the form and procedure 
for applications for compensation from the fund, procedures for 
investigation of claims and specifying the costs that are 
eligible for reimbursement from the fund.  
    (b) The board may adopt emergency rules under this 
subdivision for one year after the effective date of this 
section.  
    Sec. 8.  [115C.08] [PETROLEUM TANK RELEASE CLEANUP FUND.] 
     Subdivision 1.  [REVENUE SOURCES.] Revenue from the 
following sources must be deposited in the state treasury and 
credited to a petroleum tank release cleanup fund: 
    (1) the proceeds of the fee imposed by subdivision 3; 
    (2) money recovered by the state under sections 4, 5, and 
15, including administrative expenses, civil penalties, and 
money paid under an agreement, stipulation, or settlement; 
    (3) interest attributable to investment of money in the 
fund; 
    (4) money received by the board and agency in the form of 
gifts, grants other than federal grants, reimbursements, or 
appropriations from any source intended to be used for the 
purposes of the fund; and 
    (5) fees charged for the operation of the tank installer 
certification program established under section 15. 
     Subd. 2.  [IMPOSITION OF FEE.] The board shall notify the 
commissioner of revenue if the unexpended balance of the fund 
falls below $1,000,000, and the commissioner of revenue shall 
impose the fee established in subdivision 3 on the use of a tank 
for a 30-day period, within 60 days of receiving notice from the 
board. 
    Subd. 3.  [PETROLEUM TANK RELEASE CLEANUP FEE.] A petroleum 
tank release cleanup fee is imposed on the use of tanks that 
contain petroleum products subject to the inspection fee charged 
in section 296.13.  The fee must be collected in the manner 
provided in sections 296.13 and 296.14.  The fee must be imposed 
as required under subdivision 3, at a rate of $10 per 1,000 
gallons of petroleum products as defined in section 296.01, 
subdivision 2, rounded to the nearest 1,000 gallons.  A 
distributor who fails to pay the fee imposed under this section 
is subject to the penalties provided in section 296.15. 
    Subd. 4.  [EXPENDITURES.] Money in the fund may only be 
spent:  
    (1) to administer the petroleum tank release cleanup 
program established in sections 3 to 10; 
    (2) for agency administrative costs under sections 116.46 
to 116.50, sections 3 to 6, and section 15 and costs of 
corrective action taken by the agency under section 3, including 
investigations; 
    (3) for costs of recovering expenses of corrective actions 
under section 4; and 
    (4) for training, certification, and rulemaking under 
sections 116.46 to 116.50 and section 15.  
    Sec. 9.  [115C.09] [CORRECTIVE ACTION REIMBURSEMENT TO 
RESPONSIBLE PERSONS.] 
    Subdivision 1.  [REIMBURSABLE CORRECTIVE ACTIONS.] The 
board shall provide partial reimbursement for the cost of 
corrective action to eligible responsible persons for releases 
reported after the effective date of sections 1 to 10.  
    Subd. 2.  [RESPONSIBLE PERSON ELIGIBILITY.] (a) A 
responsible person who has taken corrective action in response 
to a release reported after the effective date of sections 1 to 
10 may apply to the board for partial reimbursement under 
subdivision 3 and rules adopted by the board.  
    (b) A reimbursement may not be made unless the board 
determines that: 
    (1) the director has determined that the corrective action 
has adequately addressed the release and that the release no 
longer poses a threat to public health and welfare or the 
environment;  
    (2) at the time of the release the tank was in compliance 
with state and federal rules and regulations applicable to the 
tank, including rules or regulations relating to financial 
responsibility; 
    (3) the agency was given notice of the release as required 
by section 115.061; 
    (4) the responsible person, to the extent possible, fully 
cooperated with the agency in responding to the release; and 
    (5) if the responsible person is an operator, the person 
exercised due care with regard to operation of the tank, 
including maintaining inventory control procedures. 
    Subd. 3.  [REIMBURSEMENT.] (a) The board shall reimburse a 
responsible person who is eligible under subdivision 2 from the 
fund for 75 percent of the portion of the total corrective 
action costs greater than $10,000 and less than $100,000.  
    (b) A reimbursement may not be made from the fund under 
this subdivision until the board has determined that the costs 
for which reimbursement is requested were actually incurred and 
were reasonable. 
    (c) Money in the fund is appropriated to the board to make 
reimbursements under this section.  
    Subd. 4.  [REIMBURSEMENT DOES NOT AFFECT OTHER 
LIABILITY.] The right to apply for reimbursement and the receipt 
of reimbursement does not limit the liability of a responsible 
person for damages or costs incurred by a person or the state as 
a result of a release. 
    Sec. 10.  [115C.10] [FUNDING OF AGENCY ACTIONS.] 
    Subdivision 1.  [PAYMENT FROM THE FUND.] (a) If the cost of 
authorized actions under section 3 exceeds the amount 
appropriated to the agency for the actions and amounts awarded 
to the agency from the federal government, the agency may apply 
to the board for money to pay for the actions from the fund.  
The board shall pay the agency the cost of the proposed actions 
under section 3 if the board finds that the conditions for the 
agency to be paid from the fund have been met, and that an 
adequate amount exists in the fund to pay for the corrective 
action.  
    (b) Money in the fund is appropriated to the board for the 
purpose of this subdivision.  
    Subd. 2.  [FEDERAL FUNDS.] The director shall take actions 
needed to obtain federal funding to carry out the provisions of 
the petroleum tank release cleanup act.  
    Sec. 11.  Minnesota Statutes 1986, section 116.46, is 
amended by adding a subdivision to read: 
    Subd. 2a.  [INSTALLER.] "Installer" means a person who 
places, constructs, or repairs an aboveground or underground 
tank, or permanently takes an aboveground or underground tank 
out of service.  
    Sec. 12.  Minnesota Statutes 1986, section 116.46, is 
amended by adding a subdivision to read: 
    Subd. 9.  [ABOVEGROUND STORAGE TANK.] "Aboveground storage 
tank" means any one or a combination of containers, vessels, and 
enclosures, including structures and appurtenances connected to 
them, that is used to contain or dispense regulated substances, 
and that is not an underground storage tank. 
    Sec. 13.  Minnesota Statutes 1986, section 116.47, is 
amended to read:  
    116.47 [EXEMPTIONS.] 
    Sections 116.48 and, 116.49, and section 15 do not apply to:
    (1) farm or residential tanks of 1,100 gallons or less 
capacity used for storing motor fuel for noncommercial purposes; 
tanks of 1,100 gallons or less capacity used for storing heating 
oil for consumptive use on the premises where stored; 
    (2) pipeline facilities, including gathering lines, 
regulated under the Natural Gas Pipeline Safety Act of 1968, 
United States Code, title 49, chapter 24, or the Hazardous 
Liquid Pipeline Safety Act of 1979, United States Code, title 
49, chapter 29;  
    (3) surface impoundments, pits, ponds, or lagoons;  
    (4) storm water or waste water collection systems;  
    (5) flow-through process tanks;  
    (6) tanks located in an underground area, including 
basements, cellars, mineworkings, drifts, shafts, or tunnels, if 
the storage tank is located upon or above the surface of the 
floor; or 
    (7) septic tanks. 
    Sec. 14.  Minnesota Statutes 1986, section 116.48, 
subdivision 4, is amended to read:  
    Subd. 4.  [DEPOSIT INFORMATION.] Beginning January 1, 1986, 
on the effective date of this section and until July 1, 1987, a 
person who deposits transfers the title to regulated substances 
in to be placed directly into an underground storage tank must 
inform the owner or operator in writing of the notification 
requirement of this section.  
    Sec. 15.  [116.491] [TANK INSTALLERS TRAINING AND 
CERTIFICATION.] 
    Subdivision 1.  [REQUIREMENT.] (a) After the effective date 
of rules adopted under subdivision 3, a person may not install, 
repair, or take an aboveground or underground tank permanently 
out of service without first obtaining a certification of 
competence issued by the agency.  
    (b) The agency shall conduct examinations to test the 
competence of applicants for certification, issue documentation 
of certification, and require certification to be renewed at 
reasonable intervals.  The agency may conduct training programs 
for installers. 
    Subd. 2.  [FEES.] The agency may charge fees as are 
necessary to cover the actual costs of processing applications, 
conducting examinations, issuing and renewing certificates, and 
providing training programs.  The fees received under this 
section must be credited to the petroleum tank release cleanup 
fund.  
    Subd. 3.  [RULES.] The agency shall adopt rules containing 
standards of competence for installers and to implement this 
section. 
    Sec. 16.  [INITIAL FUNDING FOR PETROLEUM TANK RELEASE 
CLEANUP FUND.] 
    To provide the initial funding for the petroleum tank 
release cleanup fund, the commissioner of revenue shall impose 
the fee established in section 8, subdivision 3, in the months 
of September and October 1987 for collection during the months 
of October and November 1987.  
    Sec. 17.  [APPROPRIATION.] 
     Subdivision 1.  [PETROLEUM TANK RELEASE CLEANUP FUND.] (a) 
$719,200 is appropriated from the general fund for transfer to 
the petroleum tank release cleanup fund.  
    (b) The amount appropriated in paragraph (a) is 
appropriated from the petroleum tank release cleanup fund and 
must be transferred to the general fund by June 30, 1988. 
    Subd. 2.  [POLLUTION CONTROL AGENCY.] (a) The following 
amounts are appropriated from the petroleum tank release cleanup 
fund for the fiscal years indicated: 
                                    1988        1989
     Pollution Control Agency                                   
     Administration                $386,400     $397,500
     Corrective/Investigative                                   
     Action Costs                  $250,000     $350,000
    (b) Expenses incurred by the agency under section 3 must be 
paid by the agency from the appropriation in this subdivision.  
Before using this appropriation, the agency shall use any 
federal money available to pay for corrective actions, except 
that the fund may be used to pay any state match required by 
federal law.  The director shall report to the petroleum tank 
release compensation board describing the corrective or 
investigative action being taken, the reason that the 
appropriation is being used to pay for that action, and an 
estimate of the cost of that action.  
    (c) The approved complement of the agency is increased by 
eight positions in fiscal year 1988 and by one additional 
position in fiscal year 1989.  
    Subd. 3.  [DEPARTMENT OF COMMERCE.] The following amounts 
are appropriated from the petroleum tank release cleanup fund 
for the fiscal years indicated: 
                                     1988        1989
     Department of Commerce                                   
     Administration                 $82,800      $55,400
    The approved complement of the department of commerce is 
increased by two positions. 
    Sec. 18.  [EFFECTIVE DATE.] 
    Sections 1 to 15 are effective the day following final 
enactment.  The portion of section 14 that relieves a person who 
deposits regulated substances in an underground storage tank 
from the responsibility for informing the owner or operator in 
writing of the notification requirement of Minnesota Statutes, 
section 116.48, is effective retroactively to January 1, 1986. 
Sections 16 and 17 are effective July 1, 1987. 
    Approved June 3, 1987