Office of the Revisor of Statutes
Minnesota Session Laws - 1999, Regular Session
Key: (1) language to be deleted (2) new language
CHAPTER 158-S.F.No. 1541
An act relating to the environment; modifying and
making permanent the environmental improvement pilot
program; amending Minnesota Statutes 1998, sections
114C.20; 114C.21, subdivisions 1, 4, and by adding
subdivisions; 114C.22; 114C.24, subdivisions 2, 3, 4,
and 5; 114C.25; 114C.26; 114C.27; and 114C.28;
repealing Minnesota Statutes 1998, sections 114C.21,
subdivisions 9 and 11; 114C.29; 114C.30; and 114C.31.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1. Minnesota Statutes 1998, section 114C.20, is
amended to read:
114C.20 [ENVIRONMENTAL IMPROVEMENT PILOT PROGRAM
ESTABLISHED.]
An environmental improvement pilot program is established
to promote voluntary compliance with environmental requirements.
Sec. 2. Minnesota Statutes 1998, section 114C.21,
subdivision 1, is amended to read:
Subdivision 1. [APPLICABILITY.] As used in sections
114C.20 to 114C.31 114C.28, the terms defined in this section
have the meanings given.
Sec. 3. Minnesota Statutes 1998, section 114C.21, is
amended by adding a subdivision to read:
Subd. 2a. [ENVIRONMENTAL MANAGEMENT
SYSTEM.] "Environmental management system" means a documented,
systematic procedure or practice that reflects the regulated
entity's due diligence in preventing, detecting, and correcting
violations of environmental requirements. Due diligence
encompasses the regulated entity's systematic efforts,
appropriate to the size and nature of its business, to prevent,
detect, and correct violations of environmental requirements and
must be consistent with any criteria used by the United States
Environmental Protection Agency to define due diligence in
federal audit policies or regulations.
Sec. 4. Minnesota Statutes 1998, section 114C.21,
subdivision 4, is amended to read:
Subd. 4. [ENVIRONMENTAL AUDIT; AUDIT.] "Environmental
audit" or "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 regulated entity may use an
evaluation form developed by the regulated entity, prepared by a
consultant, or prescribed or approved by the commissioner. The
final audit document must be designated as an "audit report" and
must include the date of the final written report of findings
for the audit.
Sec. 5. Minnesota Statutes 1998, section 114C.21, is
amended by adding a subdivision to read:
Subd. 10a. [REGULATED MATERIAL.] "Regulated material"
means the chemicals, wastes, or substances generated or released
by a facility that make the facility subject to an environmental
requirement.
Sec. 6. Minnesota Statutes 1998, section 114C.22, is
amended to read:
114C.22 [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 two years 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
submit findings from the facility's environmental management
system;
(2) for a major facility, prepare a an environmental audit
program pollution prevention plan and submit progress reports in
accordance with sections 115D.07 to 115D.09 subdivision 3;
(3) for a facility that is not a major facility, examine
pollution prevention opportunities steps that could be taken to
eliminate or reduce the generation or release of regulated
materials 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 findings from the facility's environmental
management system. 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, including a certification
that the facility's environmental management system meets the
requirements of section 114C.21, subdivision 2a, if the report
contains findings from the facility's environmental management
system;
(2) a disclosure of all violations of environmental
requirements that were identified in the environmental audit or
self-evaluation by the facility's environmental management
system 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.
Subd. 3. [ENVIRONMENTAL AUDIT PROGRAM POLLUTION PREVENTION
PLAN.] An environmental audit program pollution prevention plan
must establish a program identifying the specific technically
and economically practicable steps that could be taken to
eliminate or reduce the generation or release of regulated
materials.
Each environmental audit program pollution prevention plan
must include:
(1) a policy statement articulating upper management
support for eliminating or reducing the generation or release of
regulated materials at the facility;
(2) a description of the current processes generating or
releasing regulated materials that specifically describes the
types, sources, and quantities of regulated materials currently
being generated or released by the facility;
(3) a description of the current and past practices used to
eliminate or reduce the generation or release of regulated
materials at the facility and an evaluation of the effectiveness
of these practices;
(4) an assessment of technically and economically
practicable options available to eliminate or reduce the
generation or release of regulated materials at the facility,
including options such as changing the raw materials, operating
techniques, equipment and technology, personnel training, and
other practices used at the facility. The assessment may
include a cost benefit analysis of the available options;
(5) a statement of objectives based on the assessment in
clause (4) and a schedule for achieving those objectives.
Wherever technically and economically practicable, the
objectives for eliminating or reducing the generation or release
of each regulated material at the facility must be expressed in
numeric terms based on a specified base year that is no earlier
than 1987. Otherwise, the objectives must include a clearly
stated list of actions designed to lead to the establishment of
numeric objectives as soon as practicable;
(6) an explanation of the rationale and environmental
benefit for each objective established for the facility;
(7) a listing of options that were considered not to be
economically and technically practicable; and
(8) a certification, signed and dated by the facility
manager and an officer of the company under penalty of section
609.63, attesting to the accuracy of the information in the plan.
A summary containing the information described in clause
(5) must be submitted with the facility's initial environmental
audit report. Subsequent environmental audit reports, submitted
more than one year after the initial submittal, must include a
progress report which describes the success in meeting the
objectives included in the summary. After the first submission
of the facility's progress report, progress reports are required
only if at least one year has elapsed since the previous
submission of a progress report.
Sec. 7. Minnesota Statutes 1998, section 114C.24,
subdivision 2, is amended to read:
Subd. 2. [PENALTIES WAIVED.] If, within 90 days after the
report required in section 114C.22, 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 by the environmental management system and
certifies to the commissioner that the violations have been
corrected, the state may not impose or bring an action for any
administrative, civil, or criminal penalties against the owner
or operator of the facility for the reported violations.
Sec. 8. Minnesota Statutes 1998, section 114C.24,
subdivision 3, is amended to read:
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 section 609.671;
(2) a civil or administrative enforcement action, which may
include a penalty, under section 115.071 or 116.072, against the
owner or operator of a facility if:
(i) less than three years have elapsed since the owner or
operator was notified about a violation that resulted in the
imposition of a monetary penalty, or 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 114C.22, subdivision 2 that did not
result in the imposition of a monetary penalty; or
(ii) a violation caused serious harm to public, or presents
an imminent and substantial endangerment to, human health or the
environment; or
(iii) a violation is of the specific terms of an
administrative order, a judicial order or consent decree, a
stipulation agreement, or a schedule of compliance;
(iv) a violation has resulted in a substantial economic
benefit which gives the violator a clear advantage over its
business competitors; or
(v) a violation is identified through a legally mandated
monitoring or sampling requirement prescribed by statute,
regulation, permit, judicial or administrative order, or consent
agreement; or
(3) the an enforcement action is against the owner or
operator of a facility to enjoin an imminent threat to public
health or the environment and substantial danger under section
116.11.
Sec. 9. Minnesota Statutes 1998, section 114C.24,
subdivision 4, is amended to read:
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 or the environmental management system, 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 or the environmental management
system; and
(6) the regulated entity has demonstrated efforts to
implement pollution prevention opportunities.
Sec. 10. Minnesota Statutes 1998, section 114C.24,
subdivision 5, is amended to read:
Subd. 5. [VIOLATIONS DISCOVERED BY THE STATE.] Nothing in
sections 114C.20 to 114C.31 114C.28 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 114C.22,
subdivision 2.
Sec. 11. Minnesota Statutes 1998, section 114C.25, is
amended to read:
114C.25 [GREEN STAR EMBLEM AWARD.]
A regulated entity may display at a facility a "green star"
emblem award designed by the commissioner if:
(1) the regulated entity qualifies for participation in the
environmental improvement program under section 114C.22;
(2) the scope of the regulated entity's audit examines the
facility's compliance with applicable environmental
requirements;
(3) 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) (4) at least one year has two years have elapsed since
the final resolution of a notice of violation, an administrative
penalty order, or a civil or criminal an enforcement action
involving the regulated entity.
After consulting with each other, however, the commissioner
or the county may issue an award if the enforcement action
resulted from minor violations. If the regulated entity is
located in a metropolitan county, the commissioner and the
county must also consult with the metropolitan council before
issuing a green star award.
The emblem award 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. A facility
submitting findings from its environmental management system is
not eligible to receive an award unless the findings are part of
an audit which examines the facility's compliance with
applicable environmental requirements.
Sec. 12. Minnesota Statutes 1998, section 114C.26, is
amended to read:
114C.26 [ACCESS TO DOCUMENTS.]
Subdivision 1. [PUBLIC ACCESS.] After receipt by the
commissioner of a report that complies with section 114C.22,
subdivision 2, 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
114C.22, subdivision 2, except in accordance with the agency's
policy on environmental auditing, as adopted by the agency on
January 24, 1995 provided that the regulated entity is in
compliance with its commitments under sections 114C.22 and
114C.23.
This subdivision does not restrict the ability of the state
to seek monitoring, testing, or sampling data, or information
about the location or nature of spills, releases, or threatened
releases related to a suspected violation even if the
information is contained in an audit report, draft audit papers,
or other document protected under this subdivision.
Subd. 2. [THIRD-PARTY ACCESS.] After receipt by the
commissioner of a report that complies with section 114C.22,
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 114C.22 and 114C.23.
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.
Subd. 4. [EXCEPTIONS.] Nothing in this section or any
policy or rule adopted by the agency on environmental auditing
shall limit the ability of:
(1) the state to seek any information that the state deems
necessary to investigate, prevent, or respond to a situation
that presents an imminent and substantial endangerment to human
health or the environment;
(2) the state to seek any information the state deems
necessary to respond to a continuing violation of any
environmental requirement;
(3) the state to seek information as part of a criminal
investigation; or
(4) the federal government to seek any information it is
authorized to obtain under federal law.
Sec. 13. Minnesota Statutes 1998, section 114C.27, is
amended to read:
114C.27 [NO EFFECT ON OTHER RIGHTS.]
Sections 114C.20 to 114C.29 114C.28 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. 14. Minnesota Statutes 1998, section 114C.28, is
amended to read:
114C.28 [REPORTING REQUIRED BY LAW.]
Nothing in sections 114C.20 to 114C.31 114C.28 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. 15. [REPEALER.]
Minnesota Statutes 1998, sections 114C.21, subdivisions 9
and 11; 114C.29; 114C.30; and 114C.31, are repealed.
Presented to the governor May 10, 1999
Signed by the governor May 13, 1999, 1:25 p.m.
Official Publication of the State of Minnesota
Revisor of Statutes