Minnesota Session Laws - 1993, Regular Session

  
    Laws of Minnesota 1993 

                        CHAPTER 303-S.F.No. 502 
           An act relating to health; asbestos abatement; 
          modifying provisions relating to asbestos-related 
          work, licenses, and fees; providing penalties; 
          appropriating money; amending Minnesota Statutes 1992, 
          sections 326.71, subdivisions 3, 4, 5, 6, 8, and by 
          adding subdivisions; 326.72; 326.73; 326.74; 326.75; 
          326.76; 326.78; 326.785; 326.79; 326.80; and 326.81; 
          repealing Minnesota Statutes 1992, sections 326.71, 
          subdivision 7. 
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
    Section 1.  Minnesota Statutes 1992, section 326.71, 
subdivision 3, is amended to read: 
    Subd. 3.  [ASBESTOS-CONTAINING MATERIAL.] 
"Asbestos-containing material" means material that contains more 
than one percent asbestos by weight microscopic visual 
estimation by area.  
    Sec. 2.  Minnesota Statutes 1992, section 326.71, 
subdivision 4, is amended to read: 
    Subd. 4.  [ASBESTOS-RELATED WORK.] "Asbestos-related work" 
means the enclosure, repair, removal, or encapsulation of 
asbestos-containing material in a quantity that meets or exceeds 
the United States Environmental Protection Agency's requirement 
of 260 lineal feet of friable asbestos asbestos-containing 
material on pipes or, 160 square feet of friable asbestos 
asbestos-containing material on other facility components, or a 
total of 35 cubic feet of friable asbestos-containing material 
on or off all facility components in one facility.  In the case 
of single or multifamily residences, "asbestos-related work" 
also means the enclosure, repair, removal, or encapsulation of 
greater than ten but less than 260 lineal feet of friable 
asbestos-containing material on pipes or ducts or greater than 
six but less than 160 square feet of friable asbestos-containing 
material on other facility components.  This provision excludes 
asbestos-containing vinyl floor tiles and sheeting under 160 
square feet.  Asbestos-related work includes asbestos abatement 
area preparation; enclosure, removal, encapsulation, or repair 
operations; and an air quality monitoring specified in rule to 
assure that the abatement and adjacent areas are not 
contaminated with asbestos fibers during the project and after 
completion. 
    Sec. 3.  Minnesota Statutes 1992, section 326.71, is 
amended by adding a subdivision to read: 
    Subd. 4a.  [ASBESTOS INSPECTOR.] "Asbestos inspector" means 
an individual who inspects a site for the presence and condition 
of asbestos-containing material, or who reinspects a site to 
assess the condition of previously identified 
asbestos-containing material or the presence of other 
asbestos-containing material. 
    Sec. 4.  Minnesota Statutes 1992, section 326.71, is 
amended by adding a subdivision to read: 
    Subd. 4b.  [ASBESTOS MANAGEMENT ACTIVITY.] "Asbestos 
management activity" means the performance of periodic 
inspections to determine the existence and condition of 
asbestos-containing material, the development of site specific 
written programs for the maintenance of asbestos-containing 
material in a condition which prevents the release of asbestos 
fibers, the development of site specific written programs 
governing response procedures in the event of an asbestos fiber 
release episode, and the development of project specifications 
for asbestos-related work projects. 
    Sec. 5.  Minnesota Statutes 1992, section 326.71, is 
amended by adding a subdivision to read: 
    Subd. 4c.  [ASBESTOS MANAGEMENT PLANNER.] "Asbestos 
management planner" means an individual who develops a written 
site specific asbestos-containing material maintenance plan and 
a written site specific asbestos fiber release episode response 
plan addressing asbestos-containing material at the site. 
    Sec. 6.  Minnesota Statutes 1992, section 326.71, is 
amended by adding a subdivision to read: 
    Subd. 4d.  [ASBESTOS PROJECT DESIGNER.] "Asbestos project 
designer" means an individual who designs the asbestos-related 
work project specifications. 
    Sec. 7.  Minnesota Statutes 1992, section 326.71, 
subdivision 5, is amended to read: 
    Subd. 5.  [COMMISSIONER.] "Commissioner" means the 
commissioner of health and the commissioner's authorized 
delegates.  
    Sec. 8.  Minnesota Statutes 1992, section 326.71, 
subdivision 6, is amended to read: 
    Subd. 6.  [CONTRACTING ENTITY.] "Contracting entity" means 
a public or private body, board, natural person, corporation, 
partnership, proprietorship, joint venture, fund, authority, or 
similar entity that contracts with an employer or a person to do 
asbestos-related work for the benefit of the contracting entity. 
    Sec. 9.  Minnesota Statutes 1992, section 326.71, 
subdivision 8, is amended to read: 
    Subd. 8.  [EMPLOYER PERSON.] "Employer Person" means an 
individual, body, board, corporation, partnership, 
proprietorship, joint venture, fund, authority, or similar 
entity directly or indirectly employing an employee.  This 
term also applies to private employers and to the state, its 
political subdivisions, and any boards, commissions, schools, 
institutions, or authorities created or recognized by them. 
    Sec. 10.  Minnesota Statutes 1992, section 326.72, is 
amended to read: 
    326.72 [ASBESTOS LICENSE.] 
    Subdivision 1.  [WHEN LICENSE REQUIRED.] An employer or 
other A person within the state intending to directly perform or 
cause to be performed through subcontracting or similar 
delegation any asbestos-related work either for financial gain 
or with respect to the employer's or person's own property shall 
first apply for and obtain a license from the commissioner.  The 
license shall be in writing, be dated when issued, contain an 
expiration date, be signed by the commissioner, and give the 
name and address of the employer or person to whom it is issued. 
     The domiciled owner of a single family residence is not 
required to hold a license or pay a project permit fee to 
conduct asbestos-related work in the domiciled residence. 
    Subd. 2.  [DISPLAY OF LICENSE.] Licensees shall post a sign 
with the words, in letters four or more inches high, "licensed 
by the state of Minnesota for asbestos work" project permit, 
obtained from the commissioner after compliance with the 
provisions of section 326.74 and rules promulgated under section 
326.78, in a conspicuous place outside of the asbestos abatement 
work area.  The actual license or a copy certified by the 
commissioner shall be readily available at the work site for 
inspection by the commissioner, other public officials charged 
with the health, safety, and welfare of the state's citizens, 
and the contracting entity.  
    Sec. 11.  Minnesota Statutes 1992, section 326.73, is 
amended to read: 
    326.73 [EMPLOYEE ASBESTOS CERTIFICATIONS.] 
    Subdivision 1.  [ASBESTOS-RELATED WORK CERTIFICATION.] 
Before an employee individual performs asbestos-related work, 
the employee individual shall first obtain a certificate from 
the commissioner certifying that the employee individual is 
qualified to perform the work.  No certificate shall be issued 
unless the employee individual has shown evidence of training or 
experience in the general commercial building construction 
trades, has taken a course of training in asbestos control and 
removal, passed an examination in those subjects, and 
demonstrated to the commissioner the ability to perform 
asbestos-related work safely in accordance with the current 
state-of-the-art technology.  The commissioner shall specify the 
course of training necessary.  The certificate issued by the 
commissioner shall be in writing, be dated when issued, contain 
an expiration date, be signed by the commissioner, and contain 
the name and address of the employee individual to whom it is 
issued.  The certificate shall be carried by the employee 
individual and be readily available for inspection by the 
commissioner, other public officials charged with the health, 
safety, and welfare of the state's citizens, and the contracting 
entity.  
    Subd. 2.  [ASBESTOS INSPECTOR CERTIFICATION.] Before an 
individual performs an asbestos inspection, the individual shall 
first obtain a certificate from the commissioner.  The 
commissioner shall issue an asbestos inspector certificate to an 
individual who has shown evidence of completion of training on 
asbestos inspection specified by the commissioner in rule, 
passed an examination in that subject, and has shown evidence of 
experience as required by rule.  The certificate issued by the 
commissioner shall be in writing, be dated when issued, contain 
an expiration date, be signed by the commissioner, and contain 
the name and address of the individual to whom it is issued. 
    Subd. 3.  [ASBESTOS MANAGEMENT PLANNER 
CERTIFICATION.] Before an individual develops an asbestos 
management plan, the individual shall first obtain a certificate 
from the commissioner.  The commissioner shall issue an asbestos 
management planner certificate to an individual who has shown 
evidence of completion of training on asbestos management plan 
development specified by the commissioner in rule, passed an 
examination in that subject, and has shown evidence of 
experience as required by rule.  The certificate issued by the 
commissioner shall be in writing, be dated when issued, contain 
an expiration date, be signed by the commissioner, and contain 
the name and address of the individual to whom it is issued. 
    Subd. 4.  [ASBESTOS PROJECT DESIGNER CERTIFICATION.] Before 
an individual designs an asbestos-related work project, the 
individual shall first obtain a certificate from the 
commissioner.  The commissioner shall issue an asbestos project 
designer certificate to an individual who has shown evidence of 
completion of training on asbestos project design specified by 
the commissioner in rule, passed an examination in that subject, 
and has shown evidence of experience as required by rule.  The 
certificate issued by the commissioner shall be in writing, be 
dated when issued, contain an expiration date, be signed by the 
commissioner, and contain the name and address of the individual 
to whom it is issued. 
    Sec. 12.  Minnesota Statutes 1992, section 326.74, is 
amended to read: 
    326.74 [REPORTING ASBESTOS WORK.] 
    An employer, At least five calendar days before engaging in 
beginning any asbestos-related work, shall give written notice 
shall be given to the commissioner of the project by the person 
holding the license issued under section 326.72, subdivision 1.  
The notice shall contain the following information:  
    (1) a brief description of the work to be performed; 
    (2) the name of the contracting entity; 
    (3) the location and address of the project work site; 
    (4) the approximate duration of the project; 
    (5) the approximate amount of the asbestos involved in the 
project; 
    (6) the name of any project manager; and 
    (7) other information required by the commissioner.  
    Sec. 13.  Minnesota Statutes 1992, section 326.75, is 
amended to read: 
    326.75 [FEES.] 
    Subdivision 1.  [LICENSING FEE.] An employer or other A 
person required to be licensed under section 326.72 shall, 
before receipt of the license and before causing 
asbestos-related work to be performed, pay the commissioner an 
annual license fee of $100.  
    Subd. 2.  [CERTIFICATION FEE.] Employees An individual 
required to be certified under section 326.72 326.73, 
subdivision 1, shall, before performing asbestos-related work, 
pay the commissioner a certification fee of $50 before the 
issuance of the certificate.  The commissioner may establish by 
rule fees required before the issuance of asbestos inspector, 
asbestos management planner, and asbestos project designer 
certificates required under section 326.73, subdivisions 2, 3, 
and 4. 
    Subd. 3.  [PERMIT FEE.] One calendar day before beginning 
asbestos-related work, an employer a person shall pay a project 
permit fee to the commissioner equal to one percent of the total 
costs of the asbestos-related work.  For asbestos-related work 
performed in single or multifamily residences, of greater than 
ten but less than 260 linear feet of asbestos-containing 
material on pipes, or greater than six but less than 160 square 
feet of asbestos-containing material on other facility 
components, a person shall pay a project permit fee of $35 to 
the commissioner. 
    Subd. 3a.  [ASBESTOS-RELATED TRAINING COURSE FEE.] The 
commissioner shall establish by rule a fee to be paid by a 
training course provider upon application for approval or 
renewal of approval of each asbestos-related training course 
required for certification or registration. 
    Subd. 4.  [DEPOSIT OF FEES.] Fees collected under this 
section shall be deposited in the general state government 
special revenue fund. 
    Sec. 14.  Minnesota Statutes 1992, section 326.76, is 
amended to read: 
    326.76 [DUTIES OF CONTRACTING ENTITIES.] 
    A contracting entity intending to have asbestos-related 
work or asbestos management activity performed for its benefit 
shall include in the specifications and contracts for the work a 
requirement that the work be performed by contractors and 
subcontractors licensed or certified by the commissioner under 
sections 326.70 to 326.81 and in accordance with rules 
prescribed by the commissioner related to asbestos abatement and 
asbestos management activity.  No contracting entity shall allow 
asbestos-related work or asbestos management activity to be 
performed for its benefit unless it has seen that the employer 
person has a valid license or certificate.  A contracting 
entity's failure to comply with this section does not relieve an 
employer a person from any of its responsibilities under 
sections 326.70 to 326.81. 
    Sec. 15.  Minnesota Statutes 1992, section 326.78, is 
amended to read: 
    326.78 [DUTIES OF THE COMMISSIONER.] 
    Subdivision 1.  [RULEMAKING.] The commissioner shall adopt 
and begin enforcement of rules necessary to implement sections 
326.70 to 326.81.  The rules adopted shall not be duplicative of 
rules adopted by the commissioner of the department of labor and 
industry.  The rules shall include rules in the following areas: 
    (1) application, enclosure, removal, and encapsulation 
procedures; 
    (2) license and certificate qualification requirements; 
    (3) examinations for obtaining a license and certificate; 
    (4) training necessary for employee individual 
certification; 
    (5) qualifications for managers of asbestos abatement 
projects; 
    (6) abatement and asbestos management activity 
specifications; 
    (7) any contractor bonding and insurance requirements 
deemed necessary by the commissioner; 
    (8) license and certificate issuance and revocation 
procedures; 
    (9) suspension or revocation of licenses or certificates; 
    (10) license and certificate suspension and revocation 
criteria; 
    (11) cleanup standards; 
    (12) continuing education requirements; and 
    (13) other rules necessary to implement sections 326.70 to 
326.81.  
    Subd. 2.  [ISSUANCE OF LICENSES AND CERTIFICATES.] The 
commissioner may issue licenses to employers persons and 
certificates to individuals who meet the criteria in sections 
326.70 to 326.82 and the commissioner's rules.  Licenses and 
certificates shall be valid for at least 12 months, except that 
the initial certificate will be issued to expire one year after 
the completion date on the approved training course diploma.  
    Subd. 3.  [DELEGATION.] The commissioner may, in writing, 
delegate the inspection and enforcement authority granted in 
sections 326.70 to 326.82 to other state agencies regulating 
asbestos. 
    Subd. 4.  [ACCESS TO INFORMATION AND PROPERTY.] (a) Any 
person who the commissioner has reason to believe is engaged in 
asbestos-related work or asbestos management activity, or who is 
the owner of real property where the asbestos-related work or 
asbestos management activity is being undertaken, when requested 
by the commissioner, or any member, employee, or agent thereof 
who is authorized by the commissioner, shall furnish the 
commissioner any information that the person may have or may 
reasonably obtain that is relevant to the asbestos-related 
work or asbestos management activity within five working days of 
the request. 
    (b) The commissioner or any person authorized by the 
commissioner, upon presentation of credentials, and with reason 
to believe that violation of sections 326.70 to 326.82 may be 
occurring, may:  
    (1) examine and copy any books, papers, records, memoranda, 
or data related to the asbestos-related project of any person 
who has a duty to provide information to the department 
commissioner under paragraph (a); and 
    (2) enter upon any public or private property to take 
action authorized by this section including obtaining 
information from any person who has a duty to provide the 
information under paragraph (a), and conducting surveys or 
investigations.  
    Subd. 5.  [SUBPOENAS.] In matters under investigation by or 
pending before the commissioner under sections 326.70 to 326.82, 
the commissioner may issue subpoenas and compel the attendance 
of witnesses and the production of papers, books, records, 
documents, and other relevant evidentiary material.  A person 
failing or refusing to comply with the subpoena or order may, 
upon application by the commissioner to the district court in 
any district, be ordered by the court to comply with the order 
or subpoena.  The commissioner may also administer oaths and 
affirmations to witnesses.  Depositions may be taken within or 
without the state in the manner provided by law for the taking 
of depositions in civil actions.  A subpoena or other process or 
paper may be served upon any person anywhere within the state by 
an officer authorized to serve subpoenas in civil actions, with 
the same fees and mileage costs paid, and in the manner as 
prescribed by law, for process of the state district courts.  
Fees and mileage and other costs of persons subpoenaed by the 
commissioner shall be paid in the manner prescribed for 
proceedings in district court.  
    Subd. 6.  [CEASE AND DESIST ORDER.] (a) The commissioner 
may issue an order requiring an employer a person to cease 
asbestos-related work or asbestos management activity if the 
commissioner determines that a condition exists that poses an 
immediate danger to the public health.  For purposes of this 
subdivision, an immediate danger to the public health exists if 
the commissioner determines that: 
    (1) air quality standards are being exceeded; 
    (2) asbestos-related work or asbestos management activity 
is being undertaken in a manner violative of applicable state or 
federal law; 
    (3) the employer person or an employee individual working 
at the project site is not licensed or certified, or in 
possession of a current license or certificate, as the case may 
be; or 
    (4) the employer asbestos-related work has not been 
reported the project under section 5 to the commissioner as 
required under section 326.74 and rules prescribed by the 
commissioner.  
    (b) The order is effective for a maximum of 60 days.  
Following issuance of the order, the commissioner shall provide 
the contractor or individual with an opportunity for a hearing 
under the contested case provisions of chapter 14.  At the 
hearing, the commissioner shall decide whether to rescind, 
modify, or reissue the previously made order.  A modified or 
reissued order is effective for a maximum of 60 days from the 
date of modification or reissuance. 
    Subd. 7.  [ORDER FOR CORRECTIVE ACTION.] After notice and 
opportunity for hearing under the contested case provisions of 
chapter 14, the (a) Commissioner may issue an order requiring 
anyone violating sections 326.70 to 326.82 or a rule of the 
commissioner to take corrective action as the commissioner 
determines will accomplish the purpose of the project and 
prevent future violation.  The order for corrective action shall 
contain a date state the conditions that constitute the 
violation, the specific law or rule violated, and the time by 
which the violation must be corrected. 
    (b) If the person believes that the information contained 
in the commissioner's order for corrective action is in error, 
the person may ask the commissioner to reconsider the parts of 
the order that are alleged to be in error.  The request must be 
in writing, delivered to the commissioner by certified mail 
within seven calendar days of receipt of the order and: 
    (1) specify which parts of the order for corrective action 
are alleged to be in error; 
    (2) explain why they are in error; and 
    (3) provide documentation to support the allegation of 
error. 
    The commissioner shall respond to requests made under this 
provision within 15 calendar days after receipt of the request.  
A request for reconsideration does not stay the order for 
corrective action.  After reviewing the request for 
reconsideration, the commissioner may provide additional time to 
comply with the order if necessary.  The commissioner's 
disposition of a request for reconsideration is final. 
    Subd. 8.  [INJUNCTIVE RELIEF.] In addition to any other 
remedy provided by law, the commissioner may bring an action for 
injunctive relief in the district court in Ramsey county or, at 
the commissioner's discretion, in the district court in the 
county in which an asbestos-related work or asbestos management 
activity is being undertaken to halt the work or an activity 
connected with it.  A temporary restraining order or other 
injunctive relief may be granted by the court in the proceeding 
if continuation of the work or an activity connected with it 
would result in an imminent risk of harm to any person.  
    Subd. 9.  [PENALTIES.] (a) A person who violates any of the 
requirements of sections 326.70 to 326.81 or any requirement, 
rule, or order issued under those sections is subject to a civil 
penalty of not more than $10,000 per day of violation.  
Penalties may be recovered in a civil action in the name of the 
state brought by the attorney general. 
    (b) The commissioner may issue an order assessing a penalty 
of not more than $10,000 per violation to any person who 
violates any of the requirements of sections 326.70 to 326.81 or 
any requirement, rule, or order issued under those sections.  A 
person subject to an administrative penalty order may request a 
contested case hearing under chapter 14 within 20 days from date 
of receipt of the penalty order.  If the penalty order is not 
contested within 20 days of receipt, it becomes final and may 
not be contested. 
    (c) The amount of the penalty shall be based on the past 
history of same or similar violations, the severity of 
violation, the culpability of the person, and other relevant 
factors.  The history of past violations shall include previous 
violations received by the person licensed as a different entity.
    (d) Penalties assessed under sections 326.70 to 326.81 
shall be paid to the commissioner for deposit in the state 
government special revenue fund.  Unpaid penalties shall be 
increased to 125 percent of the original assessed amount if not 
paid within 60 days after the penalty order becomes final.  
After 60 days interest shall accrue on the unpaid penalty 
balance at the rate established in section 549.09. 
    Sec. 16.  Minnesota Statutes 1992, section 326.785, is 
amended to read: 
    326.785 [ASBESTOS CONTAINMENT BARRIERS.] 
    Notwithstanding Minnesota Rules, part 7005.1616 4620.3500, 
subpart 4, item B, subitem (5), containment barriers, in the 
case of tunnel abatement enclosures, are limited to double 
critical barriers. 
    Sec. 17.  Minnesota Statutes 1992, section 326.79, is 
amended to read: 
    326.79 [MISDEMEANOR PENALTY.] 
    A person who: 
    (1) hinders or delays the commissioner or the 
commissioner's authorized representative in the performance of 
the duty to enforce sections 326.70 to 326.81; 
    (2) undertakes asbestos-related work without a license or 
with a revoked, expired, or suspended license; 
    (3) refuses to make a license or certificate accessible to 
either the commissioner or the commissioner's authorized 
representative; 
    (4) uses an employee who does not have a certificate to do 
asbestos-related work; 
    (5) fails to report asbestos-related work as required by 
section 326.74; 
    (6) undertakes asbestos-related work or asbestos management 
activity for which the person is not qualified under department 
rules prescribed by the commissioner; or 
    (7) makes a material false statement related to a license, 
certificate, report, or other document required under sections 
326.70 to 326.81 
is guilty of a misdemeanor and may be sentenced to payment of a 
fine of not more than $700, imprisonment for not more than 30 
days, or both, for each violation.  
    Sec. 18.  Minnesota Statutes 1992, section 326.80, is 
amended to read: 
    326.80 [SUSPENSIONS; REVOCATIONS; DENIALS.] 
    As an alternative, or in addition to, the criminal or any 
other penalties provided in section 326.79 sections 326.70 to 
326.81, the commissioner or the commissioner's designee 
may refuse to grant an initial license or certificate, or may 
suspend or revoke a license or certificate for repeated or 
serious violations of sections 326.70 to 326.81; violations of 
any requirement, rule, or order issued under those sections; 
violations of state or federal laws or regulations related to 
enclosure, repair, removal, encapsulation, or disposal of 
asbestos or asbestos management activity; violations of other 
Minnesota laws that indicate that the person is not fit to 
conduct asbestos-related work or asbestos management activity; 
where final agency action has been taken against a person in 
connection with asbestos-related work or asbestos management 
activity in another state or jurisdiction; or where the person 
has been convicted of a criminal violation in connection with 
asbestos-related work or asbestos management activity in another 
state or jurisdiction.  Any proceeding conducted under this 
section must be in accordance with procedures adopted by rule by 
the commissioner and the contested case procedures of chapter 14.
    Sec. 19.  Minnesota Statutes 1992, section 326.81, is 
amended to read: 
    326.81 [DISCRIMINATION; SANCTIONS.] 
    An employer A person who discriminates against or otherwise 
sanctions an employee who complains to or cooperates with the 
commissioner in administering sections 326.70 to 326.81 is 
guilty of a misdemeanor.  
     Sec. 20.  [APPROPRIATION.] 
    $264,000 is appropriated from the state government special 
revenue fund to the commissioner of health to regulate asbestos 
abatement activities as provided in this act.  $102,000 is for 
fiscal year 1994 and $162,000 is for fiscal year 1995. 
    Sec. 21.  [REPEALER.] 
    Minnesota Statutes 1992, section 326.71, subdivision 7, is 
repealed. 
    Presented to the governor May 17, 1993 
    Signed by the governor May 20, 1993, 2:06 p.m.