Office of the Revisor of Statutes
Minnesota Session Laws - 1995, Regular Session
Key: (1) language to be deleted (2) new language
CHAPTER 168-H.F.No. 1479
An act relating to the environment; establishing an
environmental improvement pilot program to promote
voluntary compliance with environmental requirements;
modifying provisions relating to the voluntary
investigation and cleanup program; amending Minnesota
Statutes 1994, sections 115B.03, by adding
subdivisions; 115B.17, by adding a subdivision;
115B.175, subdivisions 2 and 3; 115B.178, subdivision
1; and 116.02.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1. Minnesota Statutes 1994, section 115B.03, is
amended by adding a subdivision to read:
Subd. 8. [TRUSTEES.] A trustee who is not otherwise a
responsible party for a release or threatened release of a
hazardous substance from a facility is not a responsible person
under this section solely because the facility is among the
trust assets or solely because the trustee has the capacity to
direct the operation of the facility.
Sec. 2. Minnesota Statutes 1994, section 115B.03, is
amended by adding a subdivision to read:
Subd. 9. [PERSONAL REPRESENTATIVES OF ESTATES.] A personal
representative of an estate who is not otherwise a responsible
party for a release or threatened release of a hazardous
substance from a facility is not a responsible person under this
section solely because the facility is among the assets of the
estate or solely because the personal representative has the
capacity to direct the operation of the facility.
Sec. 3. Minnesota Statutes 1994, section 115B.17, is
amended by adding a subdivision to read:
Subd. 2a. [CLEANUP STANDARDS.] In determining the
appropriate standards to be achieved by response actions taken
or requested under this section to protect public health and
welfare and the environment from a release or threatened
release, the commissioner shall consider the planned use of the
property where the release or threatened release is located.
Sec. 4. Minnesota Statutes 1994, section 115B.175,
subdivision 2, is amended to read:
Subd. 2. [PARTIAL RESPONSE ACTION PLANS; CRITERIA FOR
APPROVAL.] (a) The commissioner may approve a voluntary response
action plan submitted under this section that does not require
removal or remedy of all releases and threatened releases at an
identified area of real property if the commissioner determines
that all of the following criteria have been met:
(1) if reuse or development of the property is proposed,
the voluntary response action plan provides for all response
actions required to carry out the proposed reuse or development
in a manner that protects public health and welfare and the
environment meets the same standards for protection that apply
to response actions taken or requested under section 115B.17,
subdivision 1 or 2;
(2) the response actions and the activities associated with
any reuse or development proposed for the property will not
aggravate or contribute to releases or threatened releases that
are not required to be removed or remedied under the voluntary
response action plan, and will not interfere with or
substantially increase the cost of response actions to address
the remaining releases or threatened releases; and
(3) the owner of the property agrees to cooperate with the
commissioner or other persons acting at the direction of the
commissioner in taking response actions necessary to address
remaining releases or threatened releases, and to avoid any
action that interferes with the response actions.
(b) Under paragraph (a), clause (3), an owner may be
required to agree to any or all of the following terms necessary
to carry out response actions to address remaining releases or
threatened releases:
(1) to provide access to the property to the commissioner
and the commissioner's authorized representatives;
(2) to allow the commissioner, or persons acting at the
direction of the commissioner, to undertake activities at the
property including placement of borings, wells, equipment, and
structures on the property; and
(3) to grant easements or other interests in the property
to the agency for any of the purposes provided in clause (1) or
(2).
(c) An agreement under paragraph (a), clause (3), must
apply to and be binding upon the successors and assigns of the
owner. The owner shall record the agreement, or a memorandum
approved by the commissioner that summarizes the agreement, with
the county recorder or registrar of titles of the county where
the property is located.
Sec. 5. Minnesota Statutes 1994, section 115B.175,
subdivision 3, is amended to read:
Subd. 3. [SUBMISSION AND APPROVAL OF VOLUNTARY RESPONSE
ACTION PLANS.] (a) A person shall submit a voluntary response
action plan to the commissioner under section 115B.17,
subdivision 14. The commissioner may provide assistance to
review voluntary response action plans or supervise response
action implementation under that subdivision.
(b) A voluntary response action plan submitted for approval
of the commissioner must include an investigation report that
describes the methods and results of an investigation of the
releases and threatened releases at the identified area of real
property. The commissioner must not approve the voluntary
response action plan unless the commissioner determines that the
nature and extent of the releases and threatened releases at the
identified area of real property have been adequately identified
and evaluated in the investigation report.
(c) Response actions required in a voluntary response
action plan under this section must meet the same standards for
protection of public health and welfare and the environment that
apply to response actions taken or requested under section
115B.17, subdivision 1 or 2.
(d) When the commissioner approves a voluntary response
action plan, the commissioner may include in the approval an
acknowledgment that, upon certification of completion of the
response actions as provided in subdivision 5, the person
submitting the plan will receive the protection from liability
provided under this section.
Sec. 6. Minnesota Statutes 1994, section 115B.178,
subdivision 1, is amended to read:
Subdivision 1. [DETERMINATION.] (a) The commissioner may
issue determinations that certain actions proposed to be taken
at real property subject to a release or threatened release of a
hazardous substance or pollutant or contaminant will not
constitute conduct associating the person with the release or
threatened release for the purpose of section 115B.03,
subdivision 3, clause (d). Proposed actions that may be covered
by a determination under this section include response actions
approved by the commissioner to address the release or
threatened release, actions to improve or develop the real
property, loans secured by the real property, or other similar
actions. A determination may be subject to terms and conditions
deemed reasonable by the commissioner. When a person takes
actions in accordance with a determination issued under this
subdivision, the actions do not associate the person with the
release for the purpose of section 115B.03, subdivision 3,
clause (d).
(b) If a person requesting a determination proposes to take
response actions at real property, The commissioner may also
issue a determination under paragraph (a) that certain actions
taken in the past at the real property did not constitute
conduct associating the person requesting the determination with
the release or threatened release for purposes of section
115B.03, subdivision 3, clause (d). The person requesting a
determination under this paragraph shall conduct an
investigation approved by the commissioner that identifies the
nature and extent of the release or threatened release or shall
take response actions in accordance with a response action plan
approved by the commissioner. Any such determination shall be
limited to the represented facts of the past actions and shall
not apply to actions that are not represented or disclosed. The
determination may be subject to such other terms and conditions
as the commissioner deems reasonable.
Sec. 7. Minnesota Statutes 1994, section 116.02, is
amended to read:
116.02 [POLLUTION CONTROL AGENCY, CREATION.]
Subdivision 1. A pollution control agency, designated as
the Minnesota pollution control agency, is hereby created. The
agency shall consist of nine the commissioner and eight members
appointed by the governor, by and with the advice and consent of
the senate. One of such members shall be a person knowledgeable
in the field of agriculture.
Subd. 2. The membership terms, compensation, removal of
members, and filling of vacancies on the agency shall be as
provided in section 15.0575.
Subd. 3. The membership of the pollution control agency
shall be broadly representative of the skills and experience
necessary to effectuate the policy of sections 116.01 to
116.075, except that no member appointed other than the
commissioner shall be an officer or employee of the state or
federal government. Only two members at one time may be
officials or employees of a municipality or any governmental
subdivision, but neither may be a member ex officio or otherwise
on the management board of a municipal sanitary sewage disposal
system.
Subd. 4. The commissioner shall serve as chair of the
agency. The agency shall elect a chair and such other officers
as it deems necessary.
Subd. 5. The pollution control agency is the successor of
the water pollution control commission, and all powers and
duties now vested in or imposed upon said commission by chapter
115, or any act amendatory thereof or supplementary thereto, are
hereby transferred to, imposed upon, and vested in the Minnesota
pollution control agency, except as to those matters pending
before the commission in which hearings have been held and
evidence has been adduced. The water pollution commission shall
complete its action in such pending matters not later than six
months from May 26, 1967. The water pollution control
commission, as heretofore constituted, is hereby abolished, (a)
effective upon completion of its action in the pending cases, as
hereinbefore provided for; or (b) six months from May 26, 1967,
whichever is the earlier.
Sec. 8. [ENVIRONMENTAL IMPROVEMENT PILOT PROGRAM
ESTABLISHED.]
An environmental improvement pilot program is established
to promote voluntary compliance with environmental requirements.
Sec. 9. [DEFINITIONS.]
Subdivision 1. [APPLICABILITY.] As used in this act, the
terms defined in this section have the meanings given.
Subd. 2. [AGENCY.] "Agency" means the pollution control
agency.
Subd. 3. [ENVIRONMENTAL REQUIREMENT.] "Environmental
requirement" means a requirement in (1) a law administered by
the agency, a rule adopted by the agency, a permit or order
issued by the agency, an agreement entered into with the agency,
or a court order issued pursuant to any of the foregoing; or (2)
an ordinance or other legally binding requirement of a local
government unit under authority granted by state law relating to
environmental protection, including solid and hazardous waste
management.
Subd. 4. [ENVIRONMENTAL AUDIT.] "Environmental audit"
means a systematic, documented, and objective review by a
regulated entity of one or more facility operations and
practices related to compliance with one or more environmental
requirements and, if deficiencies are found, a plan for
corrective action. The final audit document must be designated
as an "audit report" and must include the date of the final
written report of finding for the audit.
Subd. 5. [COMMISSIONER.] "Commissioner" means the
commissioner of the pollution control agency.
Subd. 6. [FACILITY.] "Facility" means all buildings,
equipment, structures, and other stationary items that are
located on a single site or on contiguous or adjacent sites and
that are owned or operated by the same person.
Subd. 7. [LOCAL GOVERNMENTAL UNIT.] "Local governmental
unit" means a county, a statutory or home rule city, a town, a
sanitary district, or the metropolitan area.
Subd. 8. [MAJOR FACILITY.] "Major facility" means an
industrial or municipal wastewater discharge major facility as
defined in rules of the agency; a feedlot that is permitted for
1,000 or more animal units; a large quantity hazardous waste
generator as defined in rules of the agency; a hazardous waste
treatment, storage, or disposal facility that is required to
have a permit under the federal Resource Conservation and
Recovery Act, United States Code, title 42, section 6925; a
major stationary air emission source as defined in rules of the
agency; an air emission source that emits 50 or more tons per
year of any air pollutant regulated under rules of the agency;
or an air emission source that emits 75 tons or more per year of
all air pollutants regulated under rules of the agency.
Subd. 9. [POLLUTION PREVENTION.] "Pollution prevention"
means the elimination or reduction at the source of the use,
generation, or release of pollutants.
Subd. 10. [REGULATED ENTITY.] "Regulated entity" means a
public or private organization that is subject to environmental
requirements.
Subd. 11. [SELF-EVALUATION.] "Self-evaluation" means a
systematic, documented, and objective review by a regulated
entity of one or more facility operations and practices related
to compliance with one or more environmental requirements, based
upon an evaluation form prescribed or approved by the
commissioner.
Subd. 12. [STATE.] "State" means the pollution control
agency, the attorney general, and all local governmental units.
Sec. 10. [AUDITS OR SELF-EVALUATIONS.]
Subdivision 1. [QUALIFICATION TO PARTICIPATE IN
PROGRAM.] For a facility to qualify for participation in the
environmental improvement program, more than one year must have
elapsed since the initiation of an enforcement action that
resulted in the imposition of a penalty involving the facility.
In addition, a regulated entity must:
(1) conduct an environmental audit or a self-evaluation;
(2) for a major facility, prepare a pollution prevention
plan and submit progress reports in accordance with Minnesota
Statutes, sections 115D.07 to 115D.09;
(3) for a facility that is not a major facility, examine
pollution prevention opportunities at the facility; and
(4) submit a report in accordance with subdivision 2.
Subd. 2. [REPORT.] A regulated entity must submit a report
to the commissioner, and to a local governmental unit if the
report identifies a violation of an ordinance enacted by the
local governmental unit or of another legally binding
requirement imposed by the local governmental unit, within 45
days after the date of the final written report of findings for
an environmental audit or within 45 days after the completion of
a self-evaluation. The report must contain:
(1) a certification by the owner or operator of the
facility that the applicable requirements of subdivision 1,
clauses (1) to (4), have been met;
(2) a disclosure of all violations of environmental
requirements that were identified in the environmental audit or
self-evaluation and a brief description of proposed actions to
correct the violations;
(3) a commitment signed by the owner or operator of the
facility to correct the violations as expeditiously as possible
under the circumstances;
(4) if more than 90 days will be required to correct the
violations, a performance schedule that identifies the time that
will be needed to correct the violations and a brief statement
of the reasons that support the time periods set out in the
performance schedule; and
(5) a description of the steps the owner or operator has
taken or will take to prevent recurrence of the violations.
Sec. 11. [PUBLIC DISCLOSURE.]
The commissioner shall publish quarterly the names and
locations of the facilities for which a report has been
submitted under section 10, subdivision 2, and, if a performance
schedule has been submitted, the proposed time period for
completing performance.
Sec. 12. [REVIEW OF PERFORMANCE SCHEDULES.]
(a) A reasonable performance schedule prepared under
section 10, subdivision 2, clause (4), must be approved by the
commissioner. In reviewing the reasonableness of a performance
schedule, the commissioner shall take into account information
supplied by the regulated entity, any public comments, and
information developed by agency staff. The decision about
whether a performance schedule is reasonable must be based on
the following factors:
(1) the nature of the violations;
(2) the environmental and public health consequences of the
violations;
(3) the economic circumstances of the facility;
(4) the availability of equipment and material; and
(5) the time needed to implement pollution prevention
opportunities as an alternative to pollution control approaches
to remedying the violations. Information submitted to the
commissioner that is trade secret information, as that term is
defined in Minnesota Statutes, section 13.37, is nonpublic data
under Minnesota Statutes, chapter 13.
(b) In the event of a dispute over approval of the
performance schedule, the regulated entity may request a hearing
under the procedures in Minnesota Rules, parts 1400.8510 to
1400.8612. A performance schedule may be amended by written
agreement between the commissioner and the regulated entity.
Sec. 13. [ENFORCEMENT.]
Subdivision 1. [DEFERRED ENFORCEMENT.] The state must
defer for at least 90 days to enforce an environmental
requirement against the owner or operator of a facility if a
report that meets the requirements of section 10, subdivision 2,
has been submitted to the commissioner. If the report includes
a performance schedule, and the performance schedule is approved
under section 12, the state must defer enforcement for the term
of the approved performance schedule unless the owner or
operator of the facility fails to meet an interim performance
date contained in the schedule.
Subd. 2. [PENALTIES WAIVED.] If, within 90 days after the
report required in section 10, subdivision 2, is received by the
commissioner or within the time specified in an approved
performance schedule, the owner or operator of a facility
corrects the violations identified in the audit or
self-evaluation and certifies to the commissioner that the
violations have been corrected, the state may not impose any
administrative, civil, or criminal penalties against the owner
or operator of the facility for the reported violations.
Subd. 3. [EXCEPTIONS.] Notwithstanding subdivisions 1 and
2, the state may at any time bring:
(1) a criminal enforcement action against any person who
knowingly commits a violation under Minnesota Statutes, section
609.671;
(2) a civil or administrative enforcement action, which may
include a penalty, under Minnesota Statutes, section 115.071 or
116.072, against the owner or operator of a facility if:
(i) less than one year has elapsed since the final
resolution of a notice of violation, an administrative penalty
order, or a civil or criminal lawsuit that resulted in an
enforcement action being taken against the owner or operator of
a facility for a violation of a requirement that was also shown
as having been violated in the report required under section 10,
subdivision 2; or
(ii) a violation caused serious harm to public health or
the environment; or
(3) an action against the owner or operator of a facility
to enjoin an imminent threat to public health or the environment.
Subd. 4. [GOOD FAITH CONSIDERATION.] If the state finds
that one of the conditions in subdivision 3 exists, the state
must take into account the good faith efforts of the regulated
entity to comply with environmental requirements in deciding
whether to pursue an enforcement action, whether an enforcement
action should be civil or criminal, and what, if any, penalty
should be imposed. In determining whether the regulated entity
has acted in good faith, the state must consider whether:
(1) when noncompliance was discovered, the regulated entity
took corrective action that was timely under the circumstances;
(2) the regulated entity exercised reasonable care in
attempting to prevent the violations and ensure compliance with
environmental requirements;
(3) the noncompliance resulted in significant economic
benefit to the regulated entity;
(4) prior to implementing the audit or self-evaluation
program, the regulated entity had a history of good faith
efforts to comply with the environmental requirements;
(5) the regulated entity demonstrated good faith efforts to
achieve compliance since implementing an environmental auditing
or self-evaluation program; and
(6) the regulated entity has demonstrated efforts to
implement pollution prevention opportunities.
Subd. 5. [VIOLATIONS DISCOVERED BY THE STATE.] Nothing in
this act precludes the state from taking any enforcement action
the state is authorized to take with respect to violations
discovered by the state prior to the time a regulated entity has
submitted to the commissioner a report that meets the
requirements of section 10, subdivision 2.
Sec. 14. [GREEN STAR EMBLEM.]
A regulated entity may display at a facility a "green star"
emblem designed by the commissioner if:
(1) the regulated entity qualifies for participation in the
environmental improvement program under section 10;
(2) the regulated entity certifies that all violations that
were identified in the audit or self-evaluation of the facility
were corrected within 90 days or within the time specified in an
approved performance schedule or certifies that no violations
were identified in the audit or self-evaluation; and
(3) at least one year has elapsed since the final
resolution of a notice of violation, an administrative penalty
order, or a civil or criminal enforcement action involving the
regulated entity. The emblem may be displayed for a period of
two years from the time that the commissioner determines that
the requirements of this section have been met.
Sec. 15. [ACCESS TO DOCUMENTS.]
Subdivision 1. [PUBLIC ACCESS.] The state may not request,
inspect, or seize a final audit report, draft audit papers, a
self-evaluation form, the notes or papers prepared by the
auditor or the person conducting the self-evaluation in
connection with the audit or self-evaluation, or the internal
documents of a regulated entity establishing, coordinating, or
responding to the audit or self-evaluation, other than the
report required in section 10, subdivision 2, except in
accordance with the agency's policy on environmental auditing,
as adopted by the agency on January 24, 1995.
Subd. 2. [THIRD-PARTY ACCESS.] After receipt by the
commissioner of a report that complies with section 10,
subdivision 2, the final audit report, draft audit reports, the
self-evaluation form, any notes or papers prepared by the
auditor or by the person conducting the self-evaluation in
connection with the audit or self-evaluation, and the internal
documents of a regulated entity establishing, coordinating, or
responding to the audit or self-evaluation covered by the report
are privileged as to all persons other than the state provided
that the regulated entity is in compliance with its commitments
under sections 10 and 12.
Subd. 3. [NONWAIVER OF PROTECTIONS.] Participation by a
regulated entity in the environmental improvement program does
not waive, minimize, reduce, or otherwise adversely affect the
level of protection or confidentiality that exists, under
current or developing common or statutory law, with respect to
any other documents relating to an environmental audit or
self-evaluation.
Sec. 16. [NO EFFECT ON OTHER RIGHTS.]
Sections 8 to 18 do not affect, impair, or alter:
(1) rights of a regulated entity that chooses not to
participate, or is not eligible to participate, in the
environmental improvement pilot program; or
(2) rights of other persons relative to the matters
addressed by the environmental improvement pilot program.
Sec. 17. [REPORTING REQUIRED BY LAW.]
Nothing in this act alters the obligation of any regulated
entity to report releases, violations, or other matters that are
required to be reported by state or federal law, rule, permit,
or enforcement action.
Sec. 18. [SURVIVAL OF RIGHTS AND PROTECTIONS.]
All rights and protections provided under this act shall
survive the repeal of the act with respect to any report filed
under section 10, subdivision 2, that is submitted before July
1, 1999.
Sec. 19. [REPEALER.]
Sections 8 to 18 are repealed effective July 1, 1999.
Sec. 20. [REPORT.]
The commissioner, in consultation with the attorney
general, shall submit a report to the chairs of the environment
and natural resources committees of the senate and the house of
representatives by January 15, 1999, that evaluates the
effectiveness of the environmental improvement pilot program and
recommends whether the program should be extended.
Sec. 21. [EFFECTIVE DATE.]
Section 7 is effective June 1, 1995.
Presented to the governor May 15, 1995
Signed by the governor May 17, 1995, 1:52 p.m.
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Revisor of Statutes