1999 Minnesota Statutes

     144.991 Administrative penalty order procedure. 

    Subdivision 1.    Amount of penalty; considerations.  
 (a) In determining the amount of a penalty under section 144.99, 
 subdivision 4, the commissioner may consider: 

    (1) the willfulness of the violation; 

    (2) the gravity of the violation, including damage to 
 humans, animals, air, water, land, or other natural resources of 
 the state; 

    (3) the history of past violations; 

    (4) the number of violations; 

    (5) the economic benefit gained by the person by allowing 
 or committing the violation; and 

    (6) other factors as justice may require, if the 
 commissioner specifically identifies the additional factors in 
 the commissioner's order. 

    (b) For a violation after an initial violation, the 
 commissioner shall, in determining the amount of a penalty, 
 consider the factors in paragraph (a) and the: 

    (1) similarity of the most recent previous violation and 
 the violation to be penalized; 

    (2) time elapsed since the last violation; 

    (3) number of previous violations; and 

    (4) response of the person to the most recent previous 
 violation identified. 

    Subd. 2.    Contents of order.  An order assessing an 
 administrative penalty under section 144.99, subdivision 4, must 
 include: 

    (1) a concise statement of the facts alleged to constitute 
 a violation; 

    (2) a reference to the section of the statute, rule, 
 variance, order, stipulation agreement, or term or condition of 
 a permit that has been violated; 

    (3) a statement of the amount of the administrative penalty 
 to be imposed and the factors upon which the penalty is based; 
 and 

    (4) a statement of the person's right to review of the 
 order. 

    Subd. 3.    Corrective order.  (a) The commissioner may 
 issue an order assessing a penalty and requiring the violations 
 cited in the order to be corrected within 30 calendar days from 
 the date the order is received. 

    (b) The person to whom the order was issued shall provide 
 information to the commissioner before the 31st day after the 
 order was received demonstrating that the violation has been 
 corrected or that the person has developed a corrective plan 
 acceptable to the commissioner.  The commissioner shall 
 determine whether the violation has been corrected and notify 
 the person subject to the order of the commissioner's 
 determination. 

    Subd. 4.    Penalty.  (a) Except as provided in 
 paragraph (b), if the commissioner determines that the violation 
 has been corrected or the person to whom the order was issued 
 has developed a corrective plan acceptable to the commissioner, 
 the penalty must be forgiven.  Unless the person requests review 
 of the order under subdivision 5 before the penalty is due, the 
 penalty in the order is due and payable: 

    (1) on the 31st day after the order was received, if the 
 person subject to the order fails to provide information to the 
 commissioner showing that the violation has been corrected or 
 that appropriate steps have been taken toward correcting the 
 violation; or 

    (2) on the 20th day after the person receives the 
 commissioner's determination under paragraph (b), if the person 
 subject to the order has provided information to the 
 commissioner that the commissioner determines is not sufficient 
 to show the violation has been corrected or that appropriate 
 steps have been taken toward correcting the violation. 

    (b) For repeated or serious violations, the commissioner 
 may issue an order with a penalty that will not be forgiven 
 after the corrective action is taken.  The penalty is due by 31 
 days after the order was received unless review of the order 
 under subdivision 5 has been sought. 

    (c) Interest at the rate established in section 549.09 
 begins to accrue on penalties under this subdivision on the 31st 
 day after the order with the penalty was received. 

    Subd. 5.    Expedited administrative hearing.  (a) 
 Within 30 days after receiving an order or within 20 days after 
 receiving notice that the commissioner has determined that a 
 violation has not been corrected or appropriate steps have not 
 been taken, the person subject to an order under this section 
 may request an expedited hearing, using the procedures of 
 Minnesota Rules, parts 1400.8510 to 1400.8612, to review the 
 commissioner's action.  The hearing request must specifically 
 state the reasons for seeking review of the order.  The person 
 to whom the order is directed and the commissioner are the 
 parties to the expedited hearing.  The commissioner must notify 
 the person to whom the order is directed of the time and place 
 of the hearing at least 15 days before the hearing.  The 
 expedited hearing must be held within 30 days after a request 
 for hearing has been filed with the commissioner unless the 
 parties agree to a later date. 

    (b) All written arguments must be submitted within ten days 
 following the close of the hearing.  The hearing shall be 
 conducted under Minnesota Rules, parts 1400.8510 to 1400.8612, 
 as modified by this subdivision.  The office of administrative 
 hearings may, in consultation with the agency, adopt rules 
 specifically applicable to cases under this section.  

    (c) The administrative law judge shall issue a report 
 making recommendations about the commissioner's action to the 
 commissioner within 30 days following the close of the record.  
 The administrative law judge may not recommend a change in the 
 amount of the proposed penalty unless the administrative law 
 judge determines that, based on the factors in subdivision 1, 
 the amount of the penalty is unreasonable. 

    (d) If the administrative law judge makes a finding that 
 the hearing was requested solely for purposes of delay or that 
 the hearing request was frivolous, the commissioner may add to 
 the amount of the penalty the costs charged to the agency by the 
 office of administrative hearings for the hearing. 

    (e) If a hearing has been held, the commissioner may not 
 issue a final order until at least five days after receipt of 
 the report of the administrative law judge.  The person to whom 
 an order is issued may, within those five days, comment to the 
 commissioner on the recommendations and the commissioner will 
 consider the comments.  The final order may be appealed in the 
 manner provided in sections 14.63 to 14.69. 

    (f) If a hearing has been held and a final order issued by 
 the commissioner, the penalty shall be paid by 30 days after the 
 date the final order is received unless review of the final 
 order is requested under sections 14.63 to 14.69.  If review is 
 not requested or the order is reviewed and upheld, the amount 
 due is the penalty, together with interest accruing from 31 days 
 after the original order was received at the rate established in 
 section 549.09. 

    Subd. 6.    Mediation.  In addition to review under 
 subdivision 5, the commissioner is authorized to enter into 
 mediation concerning an order issued under this section if the 
 commissioner and the person to whom the order is issued both 
 agree to mediation. 

    Subd. 7.    Enforcement.  (a) The attorney general may 
 proceed on behalf of the state to enforce penalties that are due 
 and payable under this section in any manner provided by law for 
 the collection of debts. 

    (b) The attorney general may petition the district court to 
 file the administrative order as an order of the court.  At any 
 court hearing, the only issues parties may contest are 
 procedural and notice issues.  Once entered, the administrative 
 order may be enforced in the same manner as a final judgment of 
 the district court. 

    (c) If a person fails to pay the penalty, the attorney 
 general may bring a civil action in district court seeking 
 payment of the penalties, injunctive, or other appropriate 
 relief including monetary damages, attorney fees, costs, and 
 interest. 

    Subd. 8.    Revocation and suspension of permit, license, 
 registration, or certificate.  If a person fails to pay a 
 penalty owed under this section, the agency has grounds to 
 revoke or refuse to reissue or renew a permit, license, 
 registration, or certificate issued by the department. 

    Subd. 9.    Cumulative remedy.  The authority of the 
 agency to issue a corrective order assessing penalties is in 
 addition to other remedies available under statutory or common 
 law, except that the state may not seek civil penalties under 
 any other provision of law for the violations covered by the 
 administrative penalty order.  The payment of a penalty does not 
 preclude the use of other enforcement provisions, under which 
 penalties are not assessed, in connection with the violation for 
 which the penalty was assessed. 

    HIST: 1993 c 206 s 9; 1994 c 465 art 1 s 18,19; 1995 c 165 s 
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