Minnesota Session Laws - 1991, Regular Session

  

                         Laws of Minnesota 1991 

                        CHAPTER 175-H.F.No. 744 
           An act relating to the environment; petrofund; 
          amending Minnesota Statutes 1990, sections 115C.07, 
          subdivision 3; 115C.09, subdivisions 1, 2, 3, 3b, 5, 
          and by adding subdivisions; proposing coding for new 
          law in Minnesota Statutes, chapter 103I. 
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
     Section 1.  [103I.222] [USE OF POLYVINYL CHLORIDE.] 
    The department shall adopt emergency rules within six 
months, and permanent rules within one year, of the effective 
date of this section designed to allow use of flush threaded 
polyvinyl chloride casing and screens used for leak detection 
and monitoring wells at underground or aboveground petroleum 
storage tank sites. 
    Sec. 2.  Minnesota Statutes 1990, section 115C.07, 
subdivision 3, is amended to read: 
    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 June 4, 1987.  
    (c) The board shall adopt emergency rules within four 
months of the effective date of this section, and permanent 
rules within one year of the effective date of this section, 
designed to ensure that costs submitted to the board for 
reimbursement are reasonable.  The rules shall include a 
requirement that persons taking corrective action solicit 
competitive bids, based on unit service costs, except in 
circumstances where the board determines that such solicitation 
is not feasible.  
    (d) The board may adopt rules requiring certification of 
environmental consultants. 
    Sec. 3.  Minnesota Statutes 1990, section 115C.09, 
subdivision 1, is amended to read: 
    Subdivision 1.  [REIMBURSABLE COSTS.] (a) The board shall 
provide partial reimbursement to eligible responsible persons 
for reimbursable costs incurred after June 4, 1987.  
    (b) The following costs are reimbursable for purposes of 
this section:  
    (1) corrective action costs incurred by the responsible 
person, except the costs related to the physical removal of a 
tank; and 
    (2) costs that the responsible person is legally obligated 
to pay as damages to third parties for bodily injury or property 
damage caused by a release if the responsible person's liability 
for the costs has been established by a court order or a consent 
decree; and 
    (3) up to 180 days worth of interest costs, incurred after 
the effective date of this section, associated with the 
financing of corrective action.  Interest costs are not eligible 
for reimbursement to the extent they exceed two percentage 
points above the adjusted prime rate charged by banks, as 
defined in section 270.75, subdivision 5, at the time the 
financing contract was executed. 
    (c) A cost for liability to a third party is incurred by 
the responsible person when an order or consent decree 
establishing the liability is entered.  Except as provided in 
this paragraph, reimbursement may not be made for costs of 
liability to third parties until all eligible corrective action 
costs have been reimbursed.  If a corrective action is expected 
to continue in operation for more than one year after it has 
been fully constructed or installed, the board may estimate the 
future expense of completing the corrective action and, after 
subtracting this estimate from the total reimbursement available 
under subdivision 3, reimburse the costs for liability to third 
parties.  The total reimbursement may not exceed the limit set 
forth in subdivision 3. 
    Sec. 4.  Minnesota Statutes 1990, section 115C.09, 
subdivision 2, is amended to read: 
    Subd. 2.  [RESPONSIBLE PERSON ELIGIBILITY.] (a) A 
responsible person who has incurred reimbursable costs after 
June 4, 1987, in response to a release, may apply to the board 
for partial reimbursement under subdivision 3 and rules adopted 
by the board.  The board may consider applications for 
reimbursement after the commissioner has approved a design for 
corrective action that the commissioner determines will 
adequately address the release.  The board may also consider 
applications when the corrective action has been fully 
constructed or installed and periodically afterward as the 
corrective action continues operation. at the following stages:  
    (1) after the commissioner approves a plan for corrective 
action related to soil contamination; 
    (2) after the commissioner determines that the corrective 
action plan described in clause (1) has been fully constructed 
or installed; 
    (3) after the commissioner approves a comprehensive plan 
for corrective action that will adequately address the entire 
release, including groundwater contamination if necessary; 
    (4) after the commissioner determines that the corrective 
action necessary to adequately address the release has been 
fully constructed or installed; and 
    (5) periodically afterward as the corrective action 
continues operation, but no more frequently than four times per 
12-month period unless the application is for more than $2,000 
in reimbursement. 
    (b) The commissioner shall review a plan, and provide an 
approval or disapproval to the responsible person and the board, 
within 60 days in the case of a plan submitted under paragraph 
(a), clause (1), and within 120 days in the case of a plan 
submitted under paragraph (a), clause (3), or the commissioner 
shall explain to the board why additional time is necessary.  
The board shall consider a complete application within 60 days 
of submission of the application under paragraph (a), clauses 
(1) and (2), and within 120 days of submission of the 
application under paragraph (a), clauses (3) and (4), or the 
board shall explain for the record why additional time is 
necessary.  For purposes of the preceding sentence, board 
consideration of an application is timely if it occurs at the 
regularly scheduled meeting following the deadline.  Board staff 
may review applications submitted to the board simultaneous to 
the commissioner's consideration of the appropriateness of the 
corrective action, but the board may not act on the application 
until after the commissioner's approval is received. 
    (b) (c) A reimbursement may not be made unless the board 
determines that the commissioner has determined that the 
corrective action has, or when completed will have, adequately 
addressed the release was appropriate in terms of protecting 
public health, welfare, and the environment. 
    (c) The board shall reduce the amount of reimbursement to 
be made under this section if it finds that the responsible 
person has not complied with one or more of the following 
requirements: 
    (1) at the time of the release the tank was in substantial 
compliance with state and federal rules and regulations 
applicable to the tank, including rules or regulations relating 
to financial responsibility; 
    (2) the agency was given notice of the release as required 
by section 115.061; 
    (3) the responsible person, to the extent possible, fully 
cooperated with the agency in responding to the release; and 
    (4) if the responsible person is an operator, the person 
exercised due care with regard to operation of the tank, 
including maintaining inventory control procedures. 
    (d) The reimbursement shall be reduced as much as 100 
percent for failure by the responsible person to comply with the 
requirements in paragraph (c), clauses (1) to (4).  In 
determining the amount of the reimbursement reduction, the board 
shall consider:  
    (1) the likely environmental impact of the noncompliance; 
    (2) whether the noncompliance was negligent, knowing, or 
willful; 
    (3) the deterrent effect of the award reduction on other 
tank owners and operators; and 
    (4) the amount of reimbursement reduction recommended by 
the commissioner. 
    Sec. 5.  Minnesota Statutes 1990, section 115C.09, 
subdivision 3, is amended to read: 
    Subd. 3.  [REIMBURSEMENT.] (a) The board shall reimburse a 
responsible person who is eligible under subdivision 2 from the 
account for 90 percent of the portion of the total reimbursable 
costs or $1,000,000, whichever is less.  Not more than 
$1,000,000 may be reimbursed for costs associated with a single 
release, regardless of the number of persons eligible for 
reimbursement, and not more than $2,000,000 may be reimbursed 
for costs associated with a single tank facility. 
    (b) A reimbursement may not be made from the account 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 account is appropriated to the board to 
make reimbursements under this section.  A reimbursement to a 
state agency must be credited to the appropriation account or 
accounts from which the reimbursed costs were paid. 
    (d) The board shall reduce the amount of reimbursement to 
be made under this section if it finds that the responsible 
person has not complied with one or more of the following 
requirements: 
    (1) at the time of the release the tank was in substantial 
compliance with state and federal rules and regulations 
applicable to the tank, including rules or regulations relating 
to financial responsibility; 
    (2) the agency was given notice of the release as required 
by section 115.061; 
    (3) the responsible person, to the extent possible, fully 
cooperated with the agency in responding to the release; and 
    (4) if the responsible person is an operator, the person 
exercised due care with regard to operation of the tank, 
including maintaining inventory control procedures. 
    (e) The reimbursement shall be reduced as much as 100 
percent for failure by the responsible person to comply with the 
requirements in paragraph (d), clauses (1) to (4).  In 
determining the amount of the reimbursement reduction, the board 
shall consider:  
    (1) the likely environmental impact of the noncompliance; 
    (2) whether the noncompliance was negligent, knowing, or 
willful; 
    (3) the deterrent effect of the award reduction on other 
tank owners and operators; and 
    (4) the amount of reimbursement reduction recommended by 
the commissioner. 
    (f) A responsible person may assign the right to receive 
reimbursement to each lender, who advanced funds to pay the 
costs of the corrective action, or to each contractor, who 
provided corrective action services.  An assignment must be made 
by filing with the board a document, in a form prescribed by the 
board, indicating the identity of the responsible person, the 
identity of the assignee, the dollar amount of the assignment 
and the location of the corrective action.  An assignment signed 
by the responsible person is valid unless terminated by filing a 
termination with the board, in a form prescribed by the board, 
which must include the written concurrence of the assignee.  The 
board shall maintain an index of assignments filed under this 
paragraph.  The board shall pay the reimbursement to the 
responsible person and to one or more assignees by a multiparty 
check.  The board has no liability to a responsible person for a 
payment under an assignment meeting the requirements of this 
paragraph. 
    Sec. 6.  Minnesota Statutes 1990, section 115C.09, 
subdivision 3b, is amended to read: 
    Subd. 3b.  [VOLUNTEER ELIGIBILITY.] (a) Notwithstanding 
subdivisions 1 to 3, a person may apply to the board for partial 
reimbursement under subdivision 3 who: 
    (1) is not a responsible person under section 115C.02; 
    (2) holds legal or equitable title to the property where a 
release occurred; and 
    (3) incurs reimbursable costs on or after May 23, 1989. 
    (b) A person eligible for reimbursement under this 
subdivision must, to the maximum extent possible, comply with 
the same conditions and requirements of reimbursement as those 
imposed by this section on a responsible person. 
    (c) The board may reduce the reimbursement to a person 
eligible under this subdivision if the person acquired legal or 
equitable title to the property from a responsible person who 
failed to comply with the provisions of subdivision 2 3, 
paragraph (c) (d). 
    Sec. 7.  Minnesota Statutes 1990, section 115C.09, 
subdivision 5, is amended to read: 
    Subd. 5.  [RETURN OF REIMBURSEMENT.] (a) The board may 
demand the complete or partial return of any reimbursement made 
under this section if the responsible person applicant for 
reimbursement:  
    (1) misrepresents or omits a fact relevant to a 
determination made by the board or the commissioner under this 
section; or 
    (2) fails to complete corrective action that the 
commissioner determined at the time of the reimbursement to be 
necessary to adequately address the release, unless the 
reimbursement was made under subdivision 3a; or 
    (3) fails to reimburse a person for agreed-to amounts for 
corrective actions taken in response to a request by the 
applicant.  
    (b) If a reimbursement under this subdivision is not 
returned upon demand by the board, the board may recover the 
reimbursement, with administrative and legal expenses, in a 
civil action in district court brought by the attorney general 
against the responsible person applicant.  If the board's demand 
for return of the reimbursement is based on willful actions of 
the responsible person applicant, the responsible person 
applicant shall also forfeit and pay to the state a civil 
penalty, in an amount to be determined by the court, of not more 
than the full amount of the reimbursement. 
    Sec. 8.  Minnesota Statutes 1990, section 115C.09, is 
amended by adding a subdivision to read: 
    Subd. 6.  [CONSULTANT AND CONTRACTOR FRAUD.] If a person, 
with intent to defraud, issues an invoice or other demand for 
payment with knowledge that it is false in whole or in part, and 
with knowledge that it is being submitted to the board for 
reimbursement:  
    (1) that person shall be considered to have presented a 
false claim to a public body under section 609.465; and 
    (2) the board may demand that the person return any money 
received as a result of a reimbursement made on the basis of the 
false invoice or other demand for payment.  If the money is not 
returned upon demand by the board, the board may recover the 
money, with administrative and legal expenses, in a civil action 
in district court brought by the attorney general against the 
person.  The person shall also forfeit and pay to the state a 
civil penalty, in an amount to be determined by the court, of 
not more than the full amount of the money received by the 
person on the basis of the false invoice or other demand for 
payment.  
    Sec. 9.  Minnesota Statutes 1990, section 115C.09, is 
amended by adding a subdivision to read: 
    Subd. 7.  [DUTY TO PROVIDE INFORMATION.] A person who 
submits an application to the board for reimbursement, or who 
has issued invoices or other demands for payment which are the 
basis of an application, shall furnish to the board copies of 
any financial records which the board requests and which are 
relevant to determining the validity of the costs listed in the 
application, or shall make the financial records reasonably 
available to the board for inspection and auditing.  
    Sec. 10.  [EFFECTIVE DATE.] 
    Sections 1 to 9 are effective on the day following final 
enactment, except for section 4, subdivision 2, paragraph (b), 
which is effective on October 1, 1991. 
    Presented to the governor May 21, 1991 
    Signed by the governor May 24, 1991, 5:40 p.m.