Minnesota Session Laws - 1999, Regular Session

                            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.