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Office of the Revisor of Statutes

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.