language to be deleted (2) new language
Laws of Minnesota 1991 CHAPTER 305-H.F.No. 977 An act relating to the environment; prescribing who must prevent, prepare for, and respond to worst case discharges of oil and hazardous substances; describing response plans; authorizing the commissioners of the pollution control agency and departments of agriculture and public safety to order compliance; providing for good samaritan assistance; authorizing cooperation between public and private responders; requiring the establishment of a single answering point system; authorizing citizens advisory groups; providing penalties; amending Minnesota Statutes 1990, section 116.072, subdivision 1; proposing coding for new law as Minnesota Statutes, chapter 115E. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: Section 1. [115E.01] [DEFINITIONS.] Subdivision 1. [SCOPE.] The definitions in this section apply to this chapter. Terms that are not defined have the meanings given in the Oil Pollution Act of 1990. Subd. 2. [AGRICULTURAL CHEMICAL.] "Agricultural chemical" has the meaning given in section 18D.01, subdivision 3. Subd. 3. [COMMISSIONERS.] "Commissioners" means the commissioner of public safety and (1) the commissioner of agriculture, with respect to agricultural chemicals; or (2) the commissioner of the pollution control agency, with respect to other hazardous substances and oil. Subd. 4. [DISCHARGE.] "Discharge" means an intentional or unintentional emission, other than natural seepage, and includes, but is not limited to, spilling, leaking, pumping, pouring, emitting, emptying, or dumping; and also includes release as defined in section 115B.02, subdivision 15. Subd. 5. [FACILITY.] "Facility" means a structure, group of structures, equipment, or device, other than a vessel, that is used for one or more of the following purposes: exploring for, drilling for, producing, storing, handling, transferring, processing, or transporting oil or a hazardous substance. Facility includes a motor vehicle, rolling stock, or pipeline used for one or more of these purposes. A facility may be in, on, or under land, or in, on, or under waters of the state as defined in section 115.01, subdivision 9. Subd. 6. [HAZARDOUS SUBSTANCE.] "Hazardous substance" has the meaning given in section 115B.02, subdivision 8. Subd. 7. [LEAD AGENCY.] "Lead agency" means: (1) the department of agriculture, with respect to agricultural chemicals; or (2) the pollution control agency, for other hazardous substances or oil. Subd. 8. [OIL.] "Oil" means oil of any kind or in any form including, but not limited to, petroleum, fuel oil, sludge, oil refuse, and oil mixed with wastes other than dredged spoils; and also includes petroleum as defined in section 115C.02, subdivision 10. Subd. 9. [OIL POLLUTION ACT OF 1990.] "Oil Pollution Act of 1990" means the Oil Pollution Act of 1990, Statutes at Large, volume 104, pages 484 to 575. Subd. 10. [PERSON.] "Person" has the meaning given in section 115B.02, subdivision 12. Subd. 11. [RESPONSE.] "Response" has the meaning given in section 115B.02, subdivision 18, and the meaning of corrective action given in section 115C.02, subdivision 4. Response includes restoration, rehabilitation, replacement, or acquisition of the equivalent of the natural resources affected by the discharge of hazardous substances or oil. Subd. 12. [VESSEL.] "Vessel" means a watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water. It includes a vessel that is constructed or adapted to carry, or that carried, oil or hazardous substances in bulk as cargo or cargo residue. Subd. 13. [WORST CASE DISCHARGE.] "Worst case discharge" means: (1) in the case of a vessel, sudden loss of the entire contents of the vessel in weather conditions that impede cleanup; (2) for each tank of a storage tank facility, sudden loss of the entire contents of the tank in weather conditions that impede cleanup; (3) in the case of railroad rolling stock facilities, sudden loss of the contents of the maximum expected number of the rail cars containing oil or hazardous substance of a train onto land or into water in weather conditions that impede cleanup; (4) in the case of truck and trailer rolling stock facilities, sudden loss of the entire contents of the truck or trailer onto land or into water in weather conditions that impede cleanup; (5) in the case of a pipeline facility, sudden loss of the contents of the pipeline which would be expected from complete failure of the pipeline onto land or into water in weather conditions that impede cleanup; (6) in the case of oil or hazardous substance transfer facilities, sudden loss of the largest volume which could occur during transfer into or out of a facility; or (7) the worst case discharge for the facility as described by regulations under the Oil Pollution Act of 1990 if the regulations, when adopted, describe a discharge worse than one described in clauses (1) to (6). Sec. 2. [115E.02] [DUTY TO PREVENT DISCHARGES.] A person who owns or operates a vessel or facility transporting, storing, or otherwise handling hazardous substances or oil or who is otherwise in control of hazardous substances or oil shall take reasonable steps to prevent the discharge of those materials in a place or manner that might cause pollution of the land, waters, or air of the state or that might threaten the public's safety or health. Sec. 3. [115E.03] [DUTY TO PREPARE FOR RESPONSE TO DISCHARGES.] Subdivision 1. [GENERAL PREPAREDNESS.] A person who owns or operates a vessel or facility transporting, storing, or otherwise handling hazardous substances or oil or who is otherwise in control of hazardous substances or oil shall be prepared at all times to rapidly and thoroughly recover discharged hazardous substances or oil that were under that person's control and to take all other actions necessary to minimize or abate pollution of land, waters, and air of the state and to protect the public's safety and health. Subd. 2. [SPECIFIC PREPAREDNESS.] The following persons shall comply with the specific requirements of subdivisions 3 and 4 and section 4: (1) persons who own or operate a vessel that is constructed or adapted to carry, or that carried, oil or hazardous substances in bulk as cargo or cargo residue; (2) persons who own or operate trucks or cargo trailer rolling stock transporting an average monthly aggregate total of more than 100,000 gallons of oil or hazardous substance as cargo in Minnesota; (3) persons who own or operate railroad car rolling stock transporting an aggregate total of more than 100,000 gallons of oil or hazardous substance as cargo in Minnesota in any calendar month; (4) persons who own or operate facilities containing 100,000 gallons or more of oil or hazardous substance in tank storage at any time; (5) persons who own or operate facilities where there is transfer of an average monthly aggregate total of more than 100,000 gallons of oil or hazardous substances to or from vessels, tanks, rolling stock, or pipelines, except for facilities where the primary transfer activity is the retail sales of motor fuels; (6) persons who own or operate hazardous liquid pipeline facilities through which more than 100,000 gallons of oil or hazardous substance is transported in any calendar month; and (7) persons required to demonstrate preparedness under section 5. Subd. 3. [LEVEL OF PREPAREDNESS.] A person described in subdivision 2 shall maintain a level of preparedness that ensures that effective response can reliably be made to worst case discharges. Subd. 4. [DEMONSTRATION OF SATISFACTORY PREPAREDNESS.] A person required to maintain preparedness under subdivision 2 may demonstrate satisfactory preparedness to the commissioner of the lead agency through one or a combination of the following means: (1) adequate response personnel and equipment in the usual employ of the person; (2) adequate response personnel and equipment available from for-hire cleanup contractors with arrangements made for their deployment; (3) adequate response personnel and equipment from a response cooperative or community awareness and emergency response organization meeting guidelines prepared by the lead agency with arrangements made for their deployment; or (4) adequate response personnel and equipment of local, state, or federal public sector response organizations with arrangements made for their deployment. Subd. 5. [DEPARTMENT OF TRANSPORTATION.] The commissioner of transportation may examine the evidence of financial responsibility required under section 1016 of the Oil Pollution Act of 1990 for a vessel and may apply the sanctions in that section. Sec. 4. [115E.04] [PREVENTION AND RESPONSE PLANS.] Subdivision 1. [PLAN CONTENTS.] Persons required to show specific preparedness under section 3, subdivision 2, shall prepare and maintain a prevention and response plan for a worst case discharge. The plan must: (1) describe how it is consistent with the requirements of the national or area contingency plans developed under the Oil Pollution Act of 1990; (2) describe the measures taken to prevent discharges from occurring, including prevention of a worst case discharge, prevention of discharges of lesser magnitude, and prevention of discharges similar to those that have occurred from the vessel or facility during its history of operation; (3) identify the individual or individuals having full authority to implement response actions, and those individuals' qualifications and titles; (4) identify how communication and incident command relationships will be established between the individuals in command of a vessel or facility response and the following persons: (i) individuals in the employ of the owner or operator of the vessel or facility who are responding to the discharge; (ii) appropriate federal, state, and local officials; and (iii) other persons providing emergency response equipment and personnel; (5) describe the facility or vessel and identify the locations and characteristics of potential worst case discharges from the vessel or facility; (6) identify the means under section 3, subdivision 4, that will be used to satisfy the requirement to have adequate equipment and personnel to respond to a worst case discharge; (7) contain copies of contracts, correspondence, or other documents showing that adequate personnel and equipment as described in section 3, subdivision 4, will be available to respond to a worst case discharge; (8) describe the actions that will be taken by the persons described in section 3, subdivision 4, in the event of a worst case discharge; and (9) describe the training, equipment testing, periodic drills, and unannounced drills that will be used to ensure that the persons and equipment described in section 3, subdivision 4, are ready for response. A plan submitted to the federal government under the Oil Pollution Act of 1990 or prepared under other law may be used to satisfy the requirements in clauses (1) to (9) provided that the information required by clauses (1) to (9) is included in the plan. Subd. 2. [TIMING.] A person required to be prepared under section 3 shall complete the response plan required by this section by March 1, 1993, unless one of the commissioners orders the person to demonstrate preparedness at an earlier date under section 5. Plans must be updated every three years. Plans must be updated before three years following a significant discharge, upon significant change in vessel or facility operation or ownership, upon significant change in the national or area contingency plans under the Oil Pollution Act of 1990, or upon change in the capabilities or role of a person named in a plan who has an important response role. Subd. 3. [NOTIFICATION.] (a) The commissioner of public safety must be notified when any of the following takes place: (1) submission of the plan to the federal government; (2) granting of exemptions or extensions of time by the federal government for submission of the plan; or (3) completion of the plan if submission to the federal government is not required. (b) Notification under this subdivision must be on a form prescribed by the commissioner of public safety and must include: (1) a description of the facility or vessel; (2) a description of the activities involving oil or hazardous substances; (3) a description of the types of materials being handled, including whether agricultural chemicals are involved; and (4) other information required by the commissioner. (c) The commissioner of public safety shall transmit a copy of the notification to the other commissioners as appropriate, depending on the types of materials involved. Subd. 4. [REVIEW OF PREVENTION AND RESPONSE PLAN.] (a) A copy of the prevention and response plan must be submitted to any of the commissioners who request it and to an official of a political subdivision with appropriate jurisdiction upon the official's request, or the plan and equipment and material named in the plan may be examined upon the request of an authorized agent of a commissioner or official. (b) Upon the request of one or more of the commissioners, a person shall demonstrate the adequacy of prevention and response plans and preparedness measures by conducting announced or unannounced drills, calling persons and organizations named in a prevention and response plan and verifying roles and capabilities, locating and testing response equipment, questioning response personnel, or other means that in the judgment of the requesting commissioner demonstrate preparedness. Before requesting an unannounced drill, the requesting commissioner shall notify the other commissioners that a drill will be requested and invite them to participate in or witness the drill. If an unannounced drill is conducted to the satisfaction of the commissioners, the person conducting the drill may not be required to conduct an additional unannounced drill in the same calendar year. Subd. 5. [CITIZENS ADVISORY GROUPS.] The commissioner of the pollution control agency, the department of agriculture, or the department of public safety may establish, or a local official may request a commissioner to establish, a citizens advisory group following a discharge of oil or a hazardous substance. The purpose of the citizens advisory group is to facilitate exchange of information and concerns related to the discharge and response between the owner or operator of the vessel or facility, the governmental responders, and the affected members of the public. Sec. 5. [115E.05] [ORDERS AND INJUNCTIONS; ENFORCEMENT.] Subdivision 1. [AMENDMENT TO PLAN.] If one or more of the commissioners finds the prevention and response plans or preparedness measures of a person do not meet the requirements of this chapter, the commissioner or commissioners making the finding may by order require that reasonable amendments to the plan or reasonable additional preventive or preparedness measures be implemented in a timely fashion. If more than one commissioner makes the finding, the order must be a joint order. Subd. 2. [COMPLIANCE.] If oil or a hazardous substance is discharged while it is under the control of a person not identified in section 3, subdivision 2, any one of the commissioners may by order require the person to comply with the prevention and response plan requirements of sections 3 and 4 in a timely manner if: (1) land, water, or air of the state is polluted or threatened; or (2) human life, safety, health, natural resources, or property is damaged or threatened. Subd. 3. [FINANCIAL ASSURANCE FOR RESPONSE.] (a) For purposes of this subdivision, "ordering commissioner" means: (1) the commissioner of the pollution control agency; (2) the commissioner of natural resources; (3) the commissioner of agriculture; or (4) two or more of these commissioners acting jointly. (b) The ordering commissioner may issue an order under this subdivision if the ordering commissioner determines that adequate response is not being made or that other circumstances exist which indicate adequate response will not continue. When ordered by the ordering commissioner the owner or operator of a vessel or facility responsible for the discharge of a hazardous substance or oil shall provide financial assurance acceptable to the ordering commissioner. The financial assurance must be in the amount necessary to cover the reasonable response costs, as determined within one year after discharge by the ordering commissioner, of any additional response that is determined to be reasonable and necessary under applicable laws and regulations. (c) The ordering commissioner may issue only one financial assurance order under this subdivision for a single incident involving the discharge of hazardous substances or oil. (d) This subdivision may be enforced by the ordering commissioner under section 115.071. (e) An order issued under this subdivision shall cease to be effective upon completion of a response in accordance with applicable laws and regulations. Subd. 4. [OTHER ENFORCEMENT POWERS.] For the purposes of enforcing this chapter, the commissioner of the pollution control agency may exercise the regulatory and enforcement powers in chapters 115 and 116 and the commissioner of the department of agriculture may exercise the regulatory and enforcement powers in chapters 18B, 18C, and 18D. Sec. 6. [115E.06] [GOOD SAMARITAN.] (a) A person listed in this paragraph who is rendering assistance in response to a discharge of a hazardous substance or oil is not liable for response costs that result from actions taken or failed to be taken in the course of the assistance unless the person is grossly negligent or engages in willful misconduct: (1) a member of a cooperative or community awareness and emergency response group in compliance with standards in rules adopted by the pollution control agency; (2) an employee or official of the political subdivision where the response takes place, or a political subdivision that has a mutual aid agreement with that subdivision; (3) a member or political subdivision sponsor of a hazardous materials incident response team or special chemical assessment team designated by the commissioner of the department of public safety; (4) a person carrying out the directions of: (i) the commissioner of the pollution control agency, the commissioner of agriculture, the commissioner of natural resources, or the commissioner of public safety; or (ii) the United States Coast Guard or Environmental Protection Agency on-scene coordinator consistent with a national contingency plan under the Oil Pollution Act of 1990; and (5) a for-hire response contractor. (b) This section does not exempt from liability responsible persons with respect to the discharge under chapter 115B or 115C or responsible parties with respect to the discharge under chapter 18B or 18D. Sec. 7. [115E.07] [COOPERATION BETWEEN PRIVATE AND PUBLIC RESPONDERS.] Political subdivisions and state agencies may arrange with persons to provide resources of state and local government so that the persons may comply with section 3, subdivision 4. Sec. 8. [115E.08] [COORDINATION.] Subdivision 1. [APPOINTMENT.] The commissioner of public safety shall coordinate state agency preparedness for response to discharges of oil or hazardous substances. Subd. 2. [DUTIES.] The commissioner of public safety shall at least annually assess the preparedness of each state agency for carrying out its responsibilities under sections 1 to 9 and shall chair regular meetings of representatives of each agency to prepare for coordinated response. The commissioner shall develop an incident command system for use by state agency responders in consultation with the affected state agencies. Following each major incident, the commissioner shall review the performance of each responding agency and the adequacy of the overall response and shall report to the agencies involved and the governor. The commissioner shall also identify opportunities for state agencies to coordinate with federal departments and agencies and political subdivisions of the state for preparedness and response actions. Subd. 3. [JURISDICTION.] Except as otherwise provided, the following agencies have primary responsibility for the specified areas in carrying out the duties and authorities of this chapter: (1) the department of agriculture, for agricultural chemicals; (2) the department of public safety, for public safety and protection of property; (3) the department of natural resources, for assessment and rehabilitation of water resources; (4) the pollution control agency, for all other matters subject to this chapter; and (5) the department of transportation, with respect to requirements related to the packaging, labeling, placarding, routing, and written reporting on releases of hazardous materials that are being transported. Subd. 4. [ANNUAL REPORT.] The commissioner shall annually report to the appropriate committees of the legislature on the readiness of state government to respond appropriately to discharges of oil or hazardous substances. Sec. 9. [115E.09] [SINGLE ANSWERING POINT SYSTEM.] The commissioner of public safety shall establish a single answering point system for use by persons responsible for reporting emergency incidents and conditions involving hazardous substances or oil to agencies of the state. The single answering point system must include personnel on duty 24 hours a day and equipment adequate to support communication to and from the parties responsible for an incident and all state agencies responsible for state response to the incident. The persons at the answering point must be trained in the jurisdictions, responsibilities, and capabilities of each state agency and basic hazardous substance hazard recognition and response procedures. All state agencies shall cooperate with the commissioner by including the single answering point system telephone number in files, permits, correspondence, and similar written material, and by appointing staff to coordinate the receipt of reports with the staff of the single answering point system. Sec. 10. Minnesota Statutes 1990, section 116.072, subdivision 1, is amended to read: Subdivision 1. [AUTHORITY TO ISSUE PENALTY ORDERS.] The commissioner may issue an order requiring violations to be corrected and administratively assessing monetary penalties for
hazardous wasteviolations under sections 115.061 and 116.07, andchapter 115E, Minnesota Rules, chapter 7045, and rules adopted by the agency under section 115.03, subdivision 1, paragraph (e), clause (3) or 116.49. The order must be issued as provided in this section. Sec. 11. [REPORTS.] Subdivision 1. [DEFINITIONS.] (a) For purposes of this section, the terms in this subdivision have the meanings given them. (b) "Discharge" has the meaning given in section 1, subdivision 4. (c) "Response" has the meaning given in section 1, subdivision 11. Subd. 2. [COMMUNICATION REVIEW; REPORT.] The commissioners of public safety, transportation, natural resources, agriculture, military affairs, the pollution control agency, and other state agencies shall review the adequacy of existing radio, telephone, and other communications between local, state, federal, private, and other responders to discharges of oil or hazardous substances. The commissioners shall consult with representatives of the emergency management and public safety agencies of political subdivisions. The commissioners shall jointly report to the legislature by January 1, 1992, on the current abilities of public safety, environmental, health, and cleanup personnel to communicate, and may prepare recommendations for improving communications including designation of statewide radio frequencies for emergency use. Subd. 3. [RESPONSE REVIEW; REPORT.] The commissioner of the pollution control agency, in consultation with public and private responders, shall review state practices for response and follow-up to discharges and shall report to the legislature by January 1, 1992. The report must include: (1) recommendations on preparing, training, and directing state, local, and private responders; (2) evaluation of and recommendations on procedures for oversight of responses to pipeline and tank discharges, including discharges occurring before the effective date of this section; (3) evaluation of the adequacy of resources and authorities for response oversight; (4) review of procedures and policies for ordering financial assurance under section 5, subdivision 3; (5) recommendations on the need for amendments to liability provisions in existing law relating to discharges; and (6) review, in consultation with the department of transportation, of the federal Hazardous Materials Transportation Uniform Safety Act of 1990, Public Law Number 101-615, and how it interacts with this act. Sec. 12. [FUNDS; TRAINING.] The commissioners of public safety, the pollution control agency, natural resources, agriculture, and transportation shall seek federal funding for activities undertaken under this act. A portion of any funds received under this section must be used by the agencies to train state agency and political subdivision personnel in proper recognition of and response to discharges and releases. The commissioner of public safety may accept gifts for the purpose of ensuring adequate training of state agency and political subdivision personnel. Sec. 13. [EFFECTIVE DATE.] Section 5, subdivision 3, is effective the day following final enactment and applies to discharges of hazardous substances or oil on or after March 1, 1991. Presented to the governor May 30, 1991 Signed by the governor June 3, 1991, 4:18 p.m.
Official Publication of the State of Minnesota
Revisor of Statutes