Office of the Revisor of Statutes
Minnesota Session Laws - 1996, Regular Session
Key: (1) language to be deleted (2) new language
KEY: stricken = old language to be removed
underscored = new language to be added
CHAPTER 308-H.F.No. 2391
An act relating to commerce; petroleum tank release
cleanup; regulating reimbursement; providing
enforcement authority to the commissioner of commerce;
making various technical changes; amending Minnesota
Statutes 1994, sections 115C.02, by adding a
subdivision; 115C.03, subdivision 8; 115C.06; and
115C.09, as amended; Minnesota Statutes 1995
Supplement, sections 115C.02, subdivision 11a;
115C.092, subdivision 1; 115C.10, subdivision 1;
115C.11, subdivision 1; and 115C.12; proposing coding
for new law in Minnesota Statutes, chapter 115C;
repealing Minnesota Statutes 1994, section 115C.11,
subdivisions 3 and 4; Minnesota Statutes 1995
Supplement, section 115C.11, subdivision 2.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1. Minnesota Statutes 1994, section 115C.02, is
amended by adding a subdivision to read:
Subd. 2a. [APPLICANT.] "Applicant" means a person eligible
under section 115C.09 to receive reimbursement from the fund.
Sec. 2. Minnesota Statutes 1995 Supplement, section
115C.02, subdivision 11a, is amended to read:
Subd. 11a. [PREREMOVAL SITE ASSESSMENT.] "Preremoval site
assessment" means actions defined in section 115C.092 which are
taken by a registered consultant or the consultant's
subcontractor prior to the removal of a petroleum storage tank
in order to determine whether a release has occurred in the area
immediately surrounding the tank.
Sec. 3. Minnesota Statutes 1994, section 115C.03,
subdivision 8, is amended to read:
Subd. 8. [CLASSIFICATION OF DATA.] Except as otherwise
provided in this subdivision, data obtained from a person under
subdivision 6 or 7 is public data as defined in section 13.02.
Upon certification by the subject of the data that the data
relates to sales figures, processes or methods of production
unique to that person, or information that would tend to
adversely affect the competitive position of that person, the
commissioner shall classify the data as private or nonpublic
data as defined in section 13.02. Data classified as private or
nonpublic under this subdivision may be disclosed when relevant
in a proceeding under sections 115C.03 to 115C.10 this chapter.
Sec. 4. Minnesota Statutes 1994, section 115C.06, is
amended to read:
115C.06 [EFFECT ON OTHER LAW.]
Subdivision 1. [ACTIONS UNDER CHAPTER 115B.] Sections
115C.03 to 115C.10 do This chapter does not limit any actions
initiated by the agency under chapter 115B.
Subd. 2. [DUTY TO NOTIFY AND TAKE ACTION FOR RELEASE.]
Sections 115C.03 to 115C.10 do This chapter does not limit a
person's duty to notify the agency and take action related to a
release as provided in section 115.061.
Sec. 5. Minnesota Statutes 1994, section 115C.09, as
amended by Laws 1995, chapter 240, article 1, sections 4, 5, 6,
and 7, is amended to read:
115C.09 [REIMBURSEMENT TO RESPONSIBLE AND OTHER PERSONS.]
Subdivision 1. [REIMBURSABLE COSTS.] (a) The board shall
provide partial reimbursement to eligible responsible
persons applicants for reimbursable costs incurred after June 4,
1987.
(b) The following costs are reimbursable for purposes of
this section chapter:
(1) corrective action costs incurred by the responsible
person applicant and documented in a form prescribed by the
board, except the costs related to the physical removal of a
tank;
(2) costs that the responsible person is legally obligated
to pay as damages to third parties for bodily injury, property
damage, or corrective action costs incurred by a third party
caused by a release where the responsible person's liability for
the costs has been established by a court order, consent decree,
or a court-approved stipulation of settlement approved before
May 11, 1994, for which the responsible party has assigned its
rights to reimbursement under this section to a third-party
claimant; and
(3) up to 180 days worth of interest costs, associated with
the financing of corrective action and incurred by the applicant
in a written financing contract signed by the applicant and
executed after May 25, 1991, associated with the financing of
corrective action. Interest costs are not eligible for
reimbursement to the extent they exceed two percentage points
above the adjusted prime rate charged by banks, as defined in
section 270.75, subdivision 5, at the time the financing
contract was executed; and
(4) preremoval site assessment costs incurred by the
applicant and eligible for reimbursement under section 115C.092.
(c) A cost for liability to a third party is incurred by
the responsible person when an order or consent decree
establishing the liability court-approved settlement is entered
that sets forth the specific costs attributed to the liability.
Except as provided in this paragraph, reimbursement may not be
made for costs of liability to third parties until all eligible
corrective action costs have been reimbursed. If a corrective
action is expected to continue in operation for more than one
year after it has been fully constructed or installed, the board
may estimate the future expense of completing the corrective
action and, after subtracting this estimate from the total
reimbursement available under subdivision 3, reimburse the costs
for liability to third parties. The total reimbursement may not
exceed the limit set forth in subdivision 3.
Subd. 2. [RESPONSIBLE PERSON ELIGIBILITY.] (a) A
responsible person who has incurred reimbursable costs after
June 4, 1987, in response to a release, may apply to the board
for partial reimbursement under subdivision 3 and rules adopted
by the board.
Subd. 2a. [APPLICATION FOR REIMBURSEMENT.] (a) The board
may consider applications for reimbursement at the following
stages:
(1) after the commissioner approves corrective actions
related to soil excavation and treatment or after the
commissioner determines that further soil excavation and
treatment should not be done. Remedial investigation costs such
as soil borings monitoring wells, and well searches are
reimbursable at this stage, but corrective action costs relating
to the construction and installation of a comprehensive
corrective action design system are not; and
(2) after the commissioner determines that the corrective
actions described in clause (1) have been fully constructed,
installed, or completed;
(3) after the commissioner approves a comprehensive plan
for corrective action that will adequately address the entire
release, including groundwater contamination if necessary;
(4) after the commissioner determines that the corrective
action necessary to adequately address the release has been
fully constructed or installed; and
(5) periodically afterward as the corrective action
continues operation, but no, for corrective action costs related
to the construction and installation of a comprehensive
corrective action design system. An applicant shall not submit
an application for reimbursement more frequently than four times
per 12-month period unless the application is for more than
$2,000 in reimbursement.
(b) The commissioner shall review a plan, and provide an
approval or disapproval to the responsible person applicant and
the board, within 60 days in the case of a plan submitted under
paragraph (a), clause (1), and within 120 days in the case of a
plan submitted under paragraph (a), clause (3) (2), or the
commissioner shall explain to the board why additional time is
necessary. The board shall consider a complete application
within 60 days of submission of the application under paragraph
(a), clauses clause (1) and (2), and within 120 days of
submission of the application under paragraph (a), clauses (3)
and (4) clause (2), or the board shall explain for the record
why additional time is necessary. For purposes of the preceding
sentence, board consideration of an application is timely if it
occurs at the regularly scheduled meeting following the
deadline. Board staff may review applications submitted to the
board simultaneous to at the same time the commissioner's
commissioner consideration of considers the appropriateness of
the corrective action, but the board may not act on the
application until after the commissioner's approval is received.
(c) A reimbursement may not be made unless the board
determines that the commissioner has determined that the
corrective action was appropriate in terms of protecting public
health, welfare, and the environment.
Subd. 3. [REIMBURSEMENTS; SUBROGATION; APPROPRIATION.] (a)
The board shall reimburse a responsible person who is eligible
under subdivision 2 an eligible applicant from the fund in the
following amounts:
(1) 90 percent of the total reimbursable costs on the first
$250,000 and 75 percent on any remaining costs in excess of
$250,000 on a site; or
(2) for corrective actions at a residential site used as a
permanent residence at the time the release was discovered, 92.5
percent of the total reimbursable costs on the first $100,000
and 100 percent of any remaining costs in excess of $100,000.
Not more than $1,000,000 may be reimbursed for costs
associated with a single release, regardless of the number of
persons eligible for reimbursement, and not more than $2,000,000
may be reimbursed for costs associated with a single tank
facility.
(b) A reimbursement may not be made from the fund under
this subdivision chapter until the board has determined that the
costs for which reimbursement is requested were actually
incurred and were reasonable.
(c) When an applicant has obtained responsible competitive
bids or proposals according to rules promulgated under this
chapter prior to June 1, 1995, the eligible costs for the tasks,
procedures, services, materials, equipment, and tests of the low
bid or proposal are presumed to be reasonable by the board,
unless the costs of the low bid or proposal are substantially in
excess of the average costs charged for similar tasks,
procedures, services, materials, equipment, and tests in the
same geographical area during the same time period.
(d) When an applicant has obtained a minimum of two
responsible competitive bids or proposals on forms prescribed by
the board and where the rules promulgated under this chapter
after June 1, 1995, designate maximum costs for specific tasks,
procedures, services, materials, equipment and tests, the
eligible costs of the low bid or proposal are deemed reasonable
if the costs are at or below the maximums set forth in the rules.
(e) Costs incurred for change orders executed as prescribed
in rules promulgated under this chapter after June 1, 1995, are
presumed reasonable if the costs are at or below the maximums
set forth in the rules, unless the costs in the change order are
above those in the original bid or proposal or are
unsubstantiated and inconsistent with the process and standards
required by the rules.
(f) A reimbursement may not be made from the fund under
this subdivision in response to either an initial or
supplemental application for costs incurred after June 4, 1987,
that are payable under an applicable insurance policy, except
that if the board finds that the responsible person applicant
has made reasonable efforts to collect from an insurer and
failed, the board shall reimburse the responsible person under
this subdivision applicant.
(g) If the board reimburses a responsible person an
applicant for costs for which the responsible person applicant
has petroleum tank leakage or spill insurance coverage, the
board is subrogated to the rights of the responsible person
applicant with respect to that insurance coverage, to the extent
of the reimbursement by the board. The board may request the
attorney general to bring an action in district court against
the insurer to enforce the board's subrogation rights.
Acceptance by a responsible person an applicant of reimbursement
constitutes an assignment by the responsible person applicant to
the board of any rights of the responsible person applicant with
respect to any insurance coverage applicable to the costs that
are reimbursed. Notwithstanding this paragraph, the board may
instead request a return of the reimbursement under subdivision
5 and may employ against the responsible party applicant the
remedies provided in that subdivision, except where the board
has knowingly provided reimbursement because the responsible
person applicant was denied coverage by the insurer.
(h) Money in the fund is appropriated to the board to make
reimbursements under this section chapter. A reimbursement to a
state agency must be credited to the appropriation account or
accounts from which the reimbursed costs were paid.
(i) The board may reduce the amount of reimbursement to be
made under this section chapter if it finds that the responsible
person applicant has not complied with a provision of this
chapter, a rule or order issued under this chapter, or one or
more of the following requirements:
(1) the agency was given notice of the release as required
by section 115.061;
(2) the responsible person applicant, to the extent
possible, fully cooperated with the agency in responding to the
release; and
(3) the state and federal rules and regulations applicable
to the condition or operation of the tank when the noncompliance
caused or failed to mitigate the release.
(j) The reimbursement may be reduced as much as 100 percent
for failure by the responsible person applicant to comply with
the requirements in paragraph (i), clauses (1) to (3). In
determining the amount of the reimbursement reduction, the board
shall consider:
(1) the reasonable determination by the agency of the
environmental impact of the noncompliance;
(2) whether the noncompliance was negligent, knowing, or
willful;
(3) the deterrent effect of the award reduction on other
tank owners and operators; and
(4) the amount of reimbursement reduction recommended by
the commissioner.
(k) A person An applicant may assign the right to receive
reimbursement to each lender who advanced funds to pay the costs
of the corrective action or to each contractor or consultant who
provided corrective action services. An assignment must be made
by filing with the board a document, in a form prescribed by the
board, indicating the identity of the responsible person
applicant, the identity of the assignee, the dollar amount of
the assignment, and the location of the corrective action. An
assignment signed by the responsible person applicant is valid
unless terminated by filing a termination with the board, in a
form prescribed by the board, which must include the written
concurrence of the assignee. The board shall maintain an index
of assignments filed under this paragraph. The board shall pay
the reimbursement to the responsible person applicant and to one
or more assignees by a multiparty check. The board has no
liability to a responsible person an applicant for a payment
under an assignment meeting the requirements of this paragraph.
Subd. 3a. [ELIGIBILITY OF OTHER PERSONS.] Notwithstanding
the provisions of subdivisions 1 to 3, the board shall provide
full reimbursement to a person who has taken corrective action
if the board or commissioner of commerce determines that A
person who has taken corrective action may apply to the board
for reimbursement under subdivision 3 if the board determines
that:
(1) the person took the corrective action in response to a
request or order of the commissioner made under this chapter;
(2) the commissioner has determined that the person was not
a responsible person under section 115C.02 as defined in this
chapter; and
(3) the costs for which reimbursement is requested were
actually incurred and were reasonable the board has determined
the person was not a volunteer under subdivision 3b; and
(4) the person incurs reimbursable costs on or after June
4, 1987.
Notwithstanding subdivision 3, paragraph (a), a person
eligible for reimbursement under this subdivision shall receive
100 percent of total reimbursable costs up to $1,000,000.
Subd. 3b. [VOLUNTEER ELIGIBILITY.] (a) Notwithstanding
subdivisions 1 to 3, A person may apply to the board for partial
reimbursement under subdivision 3 who if the board determines
that:
(1) the person is not a responsible person under section
115C.02 as defined in this chapter;
(2) holds legal or equitable title to the property where a
release occurred; and
(3) incurs reimbursable costs on or after May 23, 1989.
(b) A person eligible for reimbursement under this
subdivision must, to the maximum extent possible, comply with
the same conditions and requirements of reimbursement as those
imposed by this section on a responsible person.
(c) The board may reduce the reimbursement to a person
eligible under this subdivision if the person acquired legal or
equitable title to the property from a responsible person who
failed to comply with the provisions of subdivision 3, paragraph
(i), except that the board may not reduce the
reimbursement under this provision to a mortgagee who acquires
title to the property through foreclosure or receipt of a deed
in lieu of foreclosure.
Subd. 3c. [RELEASE AT REFINERIES AND TANK FACILITIES NOT
ELIGIBLE FOR REIMBURSEMENT.] (a) Notwithstanding other
provisions of subdivisions 1 to 3b, a Reimbursement may not be
made under this section chapter for costs associated with a
release:
(1) from a tank located at a petroleum refinery; or
(2) from a tank facility, including a pipeline terminal,
with more than 1,000,000 gallons of total petroleum storage
capacity at the tank facility.
(b) Paragraph (a), clause (2), does not apply to
reimbursement for costs associated with a release from a tank
facility:
(1) owned or operated by a person engaged in the business
of mining iron ore or taconite;
(2) owned by a political subdivision, a housing and
redevelopment authority, an economic development authority, or a
port authority that acquired the tank facility prior to May 23,
1989; or
(3) owned by a person:
(i) who acquired the tank facility prior to May 23, 1989;
(ii) who did not use the tank facility for the bulk storage
of petroleum; and
(iii) who is not affiliated with the party who used the
tank facility for the bulk storage of petroleum.
Subd. 3d. [POLITICAL SUBDIVISION ELIGIBILITY.] (a)
Notwithstanding the provisions of subdivisions 1 to 3, A
political subdivision that has taken corrective action may apply
to the board for partial reimbursement under subdivision 3 where
the political subdivision if the board determines that:
(1) the political subdivision is not a responsible person
under section 115C.02 as defined by this chapter; and
(2) is not a volunteer under subdivision 3b; and
(3) incurs reimbursable costs on or after April 8, 1992.
(b) A political subdivision eligible for reimbursement
under this subdivision may only apply for reimbursement if the
identified responsible person has failed to take a corrective
action ordered by the commissioner.
(c) A political subdivision eligible for reimbursement
under this subdivision must, to the maximum extent possible,
comply with the same conditions and requirements of
reimbursement as those imposed by this section on a responsible
person.
Subd. 4. [REIMBURSEMENT DOES NOT AFFECT OTHER LIABILITY.]
The right to apply for reimbursement and the receipt of
reimbursement does not limit the liability of a responsible
person for damages or costs incurred by a person or the state as
a result of a release.
Subd. 5. [RETURN OF REIMBURSEMENT.] (a) The board may
demand the complete or partial return of any reimbursement made
under this section chapter 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 chapter;
(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;
(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 chapter 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.
Subd. 6. [FRAUD.] If a person, with intent to defraud,
issues an invoice or other demand for payment with knowledge
that it is false in whole or in part, and with knowledge that it
is being submitted to the board for reimbursement:
(1) that person shall be considered to have presented a
false claim to a public body under section 609.465; and
(2) the board may demand that the person return any money
received as a result of a reimbursement made on the basis of the
false invoice or other demand for payment. If the money is not
returned upon demand by the board, the board may recover the
money, with administrative and legal expenses, in a civil action
in district court brought by the attorney general against the
person. The person 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 money received by the
person on the basis of the false invoice or other demand for
payment.
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 chapter 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.
Subd. 8. [LIMITATION ON REIMBURSEMENT OBLIGATION.] The
amount of the state's obligation to make reimbursement under
this chapter is limited to the amount available.
Notwithstanding any other provisions of this chapter, there
shall be no obligation to the general fund to make a
reimbursement if there are not sufficient funds in the petroleum
tank fund.
Subd. 9. [INSUFFICIENT FUNDS.] The board may not approve
an application for reimbursement if there are insufficient funds
available to pay the reimbursement.
Subd. 10. [DELEGATION OF BOARD'S POWERS.] The board may
delegate to the commissioner of commerce its powers and duties
under this section chapter.
Sec. 6. Minnesota Statutes 1995 Supplement, section
115C.092, subdivision 1, is amended to read:
Subdivision 1. [PREREMOVAL SITE ASSESSMENT;
REIMBURSEMENT.] (a) Preremoval site assessment costs which are
in compliance with the requirements of this chapter and with
rules promulgated under this chapter shall be reimbursable under
section 115C.09, subdivision 3. The applicant shall obtain
written competitive proposals for the preremoval site assessment
on a form prescribed by the board utilizing, as appropriate,
tasks and costs established in rules promulgated under this
chapter governing the initial site assessment.
(b) If contamination is found at the site, the board shall
reimburse an applicant upon submission of the applicant's first
application for reimbursement under section 115C.09, subdivision
2. If no contamination is found at the site, the board shall
reimburse the applicant upon provision by the applicant of
documentation that the tank or tanks have been removed from the
site.
(c) Notwithstanding any provision in this subdivision to
the contrary, the board shall not reimburse for a preremoval
site assessment which is done for the purposes of facilitating a
property transfer. The board shall presume that a preremoval
site assessment is done for the purposes of facilitating a
property transfer if the property is transferred within three
months of incurring preremoval site assessment costs.
Sec. 7. Minnesota Statutes 1995 Supplement, section
115C.10, subdivision 1, is amended to read:
Subdivision 1. [PAYMENT FROM FUND; SUBROGATION;
APPROPRIATION.] (a) If the cost of authorized actions under
section 115C.03 exceeds the amount appropriated to the agency
for the actions and amounts awarded to the agency from the
federal government, the agency may apply to the board for money
to pay for the actions from the fund. The board shall pay the
agency the cost of the proposed actions under section 115C.03 if
the board finds that the conditions for the agency to be paid
from the fund have been met, and that an adequate amount exists
in the fund to pay for the corrective action. If the board pays
the agency for the cost of authorized actions for which a
responsible person has petroleum tank leakage or spill there is
insurance coverage, the board is subrogated to the agency's
rights with respect to the responsible person and the
responsible person's insurer insurance, to the extent of the
board's payment of costs for which the responsible person has
insurance coverage exists, subject to the limitations on an
agency cost recovery action set forth in section 115C.04,
subdivision 3. The board may request the attorney general to
bring an action in district court against the responsible person
or that person's, the applicant, or the insurer to enforce the
board's subrogation rights. Acceptance of a payment from the
board by the agency constitutes an assignment to the board of
the subrogation rights specified in this subdivision.
(b) Money in the fund is appropriated to the board for the
purpose of this subdivision.
Sec. 8. Minnesota Statutes 1995 Supplement, section
115C.11, subdivision 1, is amended to read:
Subdivision 1. [REGISTRATION.] (a) All consultants and
contractors who perform corrective action services must register
with the board. In order to register, consultants must meet and
demonstrate compliance with the following criteria:
(1) provide a signed statement to the board verifying
agreement to abide by this chapter and the rules adopted under
it and to include a signed statement with each claim that all
costs claimed by the consultant are a true and accurate account
of services performed;
(2) provide a signed statement that the consultant shall
make available for inspection any records requested by the board
for field or financial audits under the scope of this chapter;
(3) certify knowledge of the requirements of this chapter
and the rules adopted under it;
(4) obtain and maintain professional liability coverage,
including pollution impairment liability; and
(5) agree to submit to the board a certificate or
certificates verifying the existence of the required insurance
coverage.
(b) The board must maintain a list of all registered
consultants and a list of all registered contractors.
(c) All corrective action services must be performed by
registered consultants and contractors.
(d) Reimbursement for corrective action services performed
by an unregistered consultant or contractor is subject to
reduction under section 115C.09, subdivision 3, paragraph (i).
(e) Corrective action services performed by a consultant or
contractor prior to being removed from the registration list may
be reimbursed without reduction by the board.
(f) If the information in an application for registration
becomes inaccurate or incomplete in any material respect, the
registered consultant or contractor must promptly file a
corrected application with the board.
(g) Registration is effective on the date 30 days after a
complete application is received by the board. The board may
reimburse without reduction the cost of work performed by an
unregistered contractor if the contractor performed the work
within 30 60 days of the effective date of registration.
(h) Registration under this section remains in force until
voluntarily terminated by the registrant, or until suspended or
revoked by the commissioner of commerce. All registrants must
comply with registration criteria under this section.
Sec. 9. [115C.111] [CONSULTANT AND CONTRACTOR SANCTIONS;
ACTIONS BASED ON CONDUCT OCCURRING BEFORE EFFECTIVE DATE OF
SECTION.]
Subdivision 1. [APPLICATION.] This section applies to
administrative actions based on conduct that occurred before the
effective date of this section.
Subd. 2. [AUTHORITY.] The commissioner of commerce may by
order censure, suspend, or revoke a registrant and require
payment of all costs of proceedings resulting in an action
instituted under this subdivision and impose a civil penalty of
not more than $10,000 if the commissioner of commerce finds:
(i) that the order is in the public interest; and (ii) that the
registrant or, in the case of a registrant that is not a natural
person, any partner, officer, or director, any person occupying
a similar status or performing similar functions, or any person
directly or indirectly controlling the registrant:
(1) has engaged 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) has participated in a kickback scheme prohibited under
section 115C.045;
(3) has engaged in conduct likely to deceive or defraud, or
demonstrated a willful or careless disregard for public health
or the environment;
(4) has committed fraud, embezzlement, theft, forgery,
bribery, falsified or destroyed records, made false statements,
received stolen property, made false claims, or obstructed
justice;
(5) is the subject of an order revoking, suspending,
restricting, limiting, or imposing other disciplinary action
against the contractor's or consultant's license or
certification in another state or jurisdiction; or
(6) if the person is a consultant, has failed to comply
with any of the ongoing obligations for registration as a
consultant in section 115C.11, subdivision 1.
Subd. 3. [AMOUNT OF CIVIL PENALTY.] The civil penalty that
may be imposed under subdivision 2 shall be in an amount that
the commissioner of commerce 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.
Sec. 10. [115C.112] [CONSULTANT AND CONTRACTOR SANCTIONS;
ACTIONS BASED ON CONDUCT OCCURRING ON AND AFTER EFFECTIVE DATE
OF SECTION.]
The commissioner of commerce may by order deny a
registration, censure, suspend, or revoke a registrant and
require payment of all costs of proceedings resulting in an
action instituted under this section and impose a civil penalty
of not more than $10,000 if the commissioner of commerce finds:
(i) that the order is in the public interest; and (ii) that the
registrant or, in the case of a registrant that is not a natural
person, any partner, officer, or director, any person occupying
a similar status or performing similar functions, or any person
directly or indirectly controlling the registrant:
(1) has engaged 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) has participated in a kickback scheme prohibited under
section 115C.045;
(3) has engaged in conduct likely to deceive or defraud, or
demonstrating a willful or careless disregard for public health
or the environment;
(4) has committed fraud, embezzlement, theft, forgery,
bribery, falsified or destroyed records, made false statements,
received stolen property, made false claims, or obstructed
justice;
(5) is the subject of an order revoking, suspending,
restricting, limiting, or imposing other disciplinary action
against the contractor's or consultant's license or
certification in another state or jurisdiction;
(6) if the person is a consultant, has failed to comply
with any of the ongoing obligations for registration as a
consultant in section 115C.11, subdivision 1;
(7) has failed to comply with any provision or any rule or
order under this chapter or chapter 45;
(8) has engaged in anticompetitive activity;
(9) has performed corrective action without having an
accurate and complete registration on file with the board or has
allowed another to perform corrective action when that party
does not have a complete registration on file with the board;
(10) has been shown to be incompetent, untrustworthy, or
financially irresponsible; or
(11) has made or assisted another in making any material
misrepresentation or omission to the board, commissioner,
commissioner of commerce, or upon reasonable request has
withheld or concealed information from, or refused to furnish
information to, the board, commissioner, or commissioner of
commerce.
Sec. 11. [115C.113] [ORDERS.]
The commissioner of commerce may issue an order requiring a
registrant or applicant for registration to show cause why the
registration should not be revoked or suspended, the registrant
censured, the application denied, or other sanction imposed
under section 115C.111 or 115C.112. The order must be
calculated to give reasonable notice of the time and place for
hearing on the matter, and must state the reasons for the entry
of the order. The commissioner of commerce may by order
summarily suspend a registration pending final determination of
an order to show cause. A hearing on the merits must be held
within 30 days of the issuance of the order of summary
suspension. All hearings must be conducted under chapter 14.
After the hearing, the commissioner of commerce shall enter an
order disposing of the matter as the facts require. If the
registrant or applicant for registration fails to appear at a
hearing after having been duly notified of it, the person shall
be considered in default, and the proceeding may be determined
against the registrant or applicant for registration upon
consideration of the order to show cause, the allegations of
which may be considered to be true.
Sec. 12. Minnesota Statutes 1995 Supplement, section
115C.12, is amended to read:
115C.12 [APPEAL OF REIMBURSEMENT DETERMINATION.]
Subdivision 1. [APPEAL FROM DETERMINATION OF COMMISSIONER
OF COMMERCE.] An applicant for reimbursement may appeal to the
board a reimbursement determination made by the commissioner of
commerce under authority delegated by the board according to
section 115C.09, subdivision 10, by submitting a written notice
setting forth the specific basis for the appeal. The
commissioner of commerce shall send written notification of the
reimbursement determination by first class United States mail to
the applicant for reimbursement at the applicant's last known
address. The applicant for reimbursement must file written
notice with the board of an appeal of a reimbursement
determination made by the commissioner of commerce within 60
days of the date that the commissioner of commerce sends written
notice to the applicant of the reimbursement determination. The
board shall consider the appeal within 90 days of receipt of the
written notice of appeal by the applicant for
reimbursement. The written notice must set forth the specific
basis for the appeal.
Subd. 2. [APPEAL FROM DECISION OF THE BOARD.] (a) An
applicant for reimbursement may appeal a reimbursement
determination of the board as a contested case under chapter
14. An applicant for reimbursement must provide written
notification to the board of a request for a contested case,
setting forth the specific basis for the appeal, within 30 days
of the date that the board makes a reimbursement determination.
(b) This subdivision applies to reimbursement
determinations made by the board as a result of an appeal to the
board under subdivision 1 and reimbursement determinations made
by the board when the board has not delegated its authority to
make reimbursement determinations.
(c) An appeal of a reimbursement determination may only be
made by an applicant as defined by this chapter.
Subd. 3. [CONTESTED CASE; FINAL DECISION.] The final
decision in a contested case requested by an applicant under
subdivision 2 shall be made by the commissioner of commerce.
Sec. 13. [REPEALER.]
Minnesota Statutes 1994, section 115C.11, subdivisions 3
and 4; Minnesota Statutes 1995 Supplement, section 115C.11,
subdivision 2, are repealed.
Sec. 14. [EFFECTIVE DATES.]
Sections 1 to 7 and 12 are effective the day after final
enactment and apply to applications for reimbursement pending on
or filed on or after that date. Section 8 is effective the day
after final enactment and applies to all current and future
registrants. Sections 9 to 11 are effective the day after final
enactment and apply to disciplinary actions pending on or
commenced on or after that date. Section 13 is effective the
day following final enactment.
Presented to the governor March 12, 1996
Signed by the governor March 13, 1996, 2:33 p.m.
Official Publication of the State of Minnesota
Revisor of Statutes