Minnesota Session Laws - 1992, Regular Session

  

                         Laws of Minnesota 1992 

                        CHAPTER 490-S.F.No. 2430 
           An act relating to the environment; adding sanctions 
          and procedures relating to petroleum tank release 
          consultants and contractors; requiring a report to the 
          legislature; amending Minnesota Statutes 1990, 
          sections 115C.01; 115C.02, subdivision 1, and by 
          adding subdivisions; 115C.03, by adding a subdivision; 
          116.48, by adding a subdivision; Minnesota Statutes 
          1991 Supplement, section 115C.09, subdivisions 5 and 
          7; proposing coding for new law in Minnesota Statutes, 
          chapter 115C. 
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
    Section 1.  Minnesota Statutes 1990, section 115C.01, is 
amended to read: 
    115C.01 [CITATION.] 
    Sections 115C.01 to 115C.10 This chapter may be cited as 
the "petroleum tank release cleanup act." 
    Sec. 2.  Minnesota Statutes 1990, section 115C.02, 
subdivision 1, is amended to read: 
    Subdivision 1.  [APPLICABILITY.] The definitions in this 
section apply to sections 115C.02 to 115C.10 this chapter. 
    Sec. 3.  Minnesota Statutes 1990, section 115C.02, is 
amended by adding a subdivision to read: 
    Subd. 5a.  [CONSULTANT.] "Consultant" means an individual, 
partnership, association, private corporation, or any other 
legal entity that provides consulting services.  Consulting 
services include the rendering of professional opinion, advice, 
or analysis regarding a release. 
    Sec. 4.  Minnesota Statutes 1990, section 115C.02, is 
amended by adding a subdivision to read: 
    Subd. 5b.  [CONTRACTOR.] "Contractor" means an individual, 
partnership, association, private corporation, or any other 
legal entity that provides contractor services.  Contractor 
services means products and services within a scope of work that 
can be defined by typical written plans and specifications 
including, but not limited to, excavation, treatment of 
contaminated soil and groundwater, soil borings and well 
installations, laboratory analysis, surveying, electrical work, 
plumbing, carpentry, and equipment. 
    Sec. 5.  Minnesota Statutes 1990, section 115C.03, is 
amended by adding a subdivision to read: 
    Subd. 10.  [RETENTION OF RECORDS.] A person who applies for 
reimbursement under this chapter and a contractor or consultant 
who has billed the applicant for services that are part of the 
claim for reimbursement must maintain all records related to the 
claim for reimbursement for a minimum of five years from the 
date the claim for reimbursement is submitted to the board. 
    Sec. 6.  [115C.045] [KICKBACKS.] 
    A consultant or contractor, as a condition of performing 
services, may not agree to pay or forgive the nonreimbursable 
portion of an application for reimbursement submitted under this 
chapter.  An applicant may not accept forgiveness or demand 
payment from a consultant or contractor for the nonreimbursable 
portion of an application for reimbursement submitted under this 
chapter.  
    Sec. 7.  [115C.065] [CONSULTANT'S OR CONTRACTOR'S DUTY TO 
NOTIFY.] 
    A consultant or contractor involved in the removal of a 
petroleum tank shall immediately notify the agency if field 
instruments or laboratory tests indicate the presence of any 
petroleum contamination in excess of state guidelines. 
    Sec. 8.  Minnesota Statutes 1991 Supplement, 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 applicant for reimbursement:  
    (1) misrepresents or omits a fact relevant to a 
determination made by the board or the commissioner under this 
section; 
    (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; or 
    (4) has entered an agreement to settle or compromise any 
portion of the incurred costs, in which case the amount returned 
must be prorated in proportion to the amount of the settlement 
or compromise. 
    (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 applicant.  If the board's demand for return of the 
reimbursement is based on willful actions of the applicant, the 
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. 9.  Minnesota Statutes 1991 Supplement, section 
115C.09, subdivision 7, is amended to read: 
    Subd. 7.  [DUTY TO PROVIDE INFORMATION.] (a) 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.  The board 
may obtain access to information required to be made available 
under this subdivision in the manner provided in section 
115C.03, subdivision 7. 
    (b) After reimbursement has been granted, an agreement to 
settle or compromise any portion of the incurred costs must be 
reported to the board by the parties to the agreement. 
    Sec. 10.  [115C.11] [CONSULTANTS AND CONTRACTORS; 
SANCTIONS.] 
    Subdivision 1.  [REGISTRATION.] (a) All consultants and 
contractors must register with the board in order to participate 
in the petroleum tank release cleanup program. 
    (b) The board must maintain a list of all registered 
consultants and a list of all registered contractors including 
an identification of the services offered. 
    (c) An applicant who applies for reimbursement must use a 
registered consultant and contractor in order to be eligible for 
reimbursement. 
    (d) The commissioner must inform any person who notifies 
the agency of a release under section 115.061 that the person 
must use a registered consultant or contractor to qualify for 
reimbursement and that a list of registered consultants and 
contractors is available from the board. 
    (e) Work performed by an unregistered consultant or 
contractor is ineligible for reimbursement.  
    (f) Work performed by a consultant or contractor prior to 
being removed from the registration list may be reimbursed by 
the board. 
    Subd. 2.  [DISQUALIFICATION.] (a) The board must 
automatically remove from the registration list for five years a 
consultant or contractor who is convicted in a criminal 
proceeding for submitting false or fraudulent bills that are 
part of a claim for reimbursement under section 115C.09.  The 
board may, in addition, impose one or more of the sanctions in 
paragraph (c).  
    (b) The board may impose sanctions under paragraph (c) on a 
consultant or contractor for any of the following reasons: 
    (1) engaging in conduct that departs from or fails to 
conform to the minimal standards of acceptable and prevailing 
engineering, hydrogeological, or other technical practices 
within the reasonable control of the consultant or contractor; 
    (2) participating in a kickback scheme prohibited under 
section 115C.045; 
    (3) engaging in conduct likely to deceive or defraud, or 
demonstrating a willful or careless disregard for public health 
or the environment; 
    (4) commission of fraud, embezzlement, theft, forgery, 
bribery, falsification or destruction of records, making false 
statements, receiving stolen property, making false claims, or 
obstruction of justice; or 
    (5) revocation, suspension, restriction, limitation, or 
other disciplinary action against the contractor's or 
consultant's license or certification in another state or 
jurisdiction. 
    (c) The board may impose one or more of the following 
sanctions: 
    (1) remove a consultant or contractor from the registration 
list for up to five years; 
    (2) publicly reprimand or censure the consultant or 
contractor; 
    (3) place the consultant or contractor on probation for a 
period and upon terms and conditions the board prescribes; 
    (4) require payment of all costs of proceedings resulting 
in an action instituted under this paragraph; or 
    (5) impose a civil penalty of not more that $10,000, in an 
amount that the board determines will deprive the consultant or 
contractor of any economic advantage gained by reason of the 
consultant's or contractor's conduct or to reimburse the board 
for the cost of the investigation and proceeding.  
    (d) In deciding whether a particular sanction is 
appropriate, the board must consider the seriousness of the 
consultant's or contractor's acts or omissions and any 
mitigating factors. 
    (e) Civil penalties recovered by the state under this 
section must be credited to the account.  
    Subd. 3.  [NOTICE OF SANCTION.] The board must notify a 
consultant or contractor of a proposed sanction at least 30 days 
before the board meeting at which the proposed sanction will be 
considered.  The notice must advise the consultant or contractor 
of: 
    (1) the fact that sanctions are being considered; 
    (2) the reasons for the proposed sanctions in terms 
sufficient to put the consultant or contractor on notice of the 
conduct on which the proposed sanctions are based; 
    (3) the reasons relied on under subdivision 2 for the 
proposed sanctions; 
    (4) the right to request a contested case hearing under 
chapter 14; and 
    (5) the potential effect of sanctions. 
    Subd. 4.  [SANCTION ORDER.] The board may impose sanctions 
after a hearing before the board if a contested case hearing has 
not been requested.  The board's sanction order is final.  The 
sanctions are effective 30 days after the board issues its order.
    Sec. 11.  Minnesota Statutes 1990, section 116.48, is 
amended by adding a subdivision to read: 
    Subd. 8.  [NOTICE OF TANK INSTALLATION OR REMOVAL.] Before 
beginning installation or removal of an underground tank system, 
owners and operators must notify the commissioner.  Notification 
must be in writing or by telephone at least ten days before the 
tank installation or removal.  Owners and operators must 
renotify the commissioner if the date of the tank installation 
or removal changes by more than 48 hours.  The notification must 
include the following information: 
    (1) the name, address, and telephone number of the site 
owner; 
    (2) the location of the site, if different from clause (1); 
    (3) the date of the tank installation or removal; and 
    (4) the name of the contractor or company that will install 
or remove the tank. 
    Sec. 12. [REPORT TO LEGISLATURE.] 
    The commissioners of the pollution control agency and 
commerce shall jointly prepare a report that: 
    (1) describes the corrective action costs for which 
reimbursement has been paid under Minnesota Statutes, section 
115C.09; and 
    (2) lists reasonable charges for corrective action 
services, including consulting, contracting, and disposal 
services. 
The report must be submitted by January 15, 1993, to the 
appropriate committees of the legislature. 
    Presented to the governor April 16, 1992 
    Signed by the governor April 20, 1992, 4:36 p.m.