2006 Minnesota Statutes

CHAPTER 114C. ENVIRONMENTAL REGULATORY INNOVATIONS

POLICY

114C.01 POLICY.
The legislature recognizes that Minnesota's existing environmental laws play a critical role in
protecting the environment. However, the legislature finds that environmental protection could be
further enhanced by authorizing innovative advances in environmental regulatory methods. It is
the policy of the legislature that Minnesota should develop environmental regulatory methods that:
(1) encourage facility owners and operators to assess the pollution they emit or cause,
directly and indirectly, to the air, water, and land;
(2) encourage facility owners and operators to innovate, set measurable and verifiable goals,
and implement the most effective pollution prevention, source reduction, or other pollution
reduction strategies for their particular facilities, while complying with verifiable and enforceable
pollution limits;
(3) encourage superior environmental performance and continuous improvement toward
sustainable levels of resource usage and minimization of pollution discharges;
(4) reward facility owners and operators that reduce pollution to levels below what is
required by applicable law;
(5) consolidate into one permit environmental requirements that are currently included in
different permits, sometimes issued by different state or local agencies;
(6) reduce the time and money spent by agencies and facility owners and operators on
paperwork and other administrative tasks that do not benefit the environment;
(7) increase public participation and encourage stakeholder consensus in the development of
innovative environmental regulatory methods and in monitoring the environmental performance
of projects under this chapter;
(8) encourage groups of facilities and communities to work together to reduce pollution to
levels below what is required by applicable law;
(9) provide reasonable technical assistance to facilitate meaningful stakeholder participation;
and
(10) increase levels of trust and communication among agencies, regulated parties, and
the public.
History: 1996 c 437 s 1

114C.02 DEFINITIONS.
    Subdivision 1. Scope. For the purposes of this chapter, the definitions in this section have
the meanings given them.
    Subd. 2. Pollution prevention. "Pollution prevention" has the meaning given in section
115D.03.
    Subd. 3. Source reduction. "Source reduction" has the meaning given in section 115A.03.
    Subd. 4. Stakeholders. "Stakeholders" means citizens in the communities near the
project site, facility workers, government representatives, business groups, educational groups,
environmental groups, or other Minnesota citizens or public interest groups.
    Subd. 5. State or local agency. "State or local agency" means any agency, department,
board, bureau, office or other instrumentality of the state, any political subdivision of the state,
any public corporation, any municipality, and any other local unit of government.
History: 1996 c 437 s 2

MINNESOTA XL PROJECT

114C.10 ESTABLISHMENT OF MINNESOTA XL PERMIT PROJECT.
    Subdivision 1. Project. The Pollution Control Agency is authorized to establish and
implement a permit project under sections 114C.10 to 114C.19. The purpose of the project is to
work toward the policy goals listed in section 114C.01 by issuing and studying the effect of
permits that require permittees to reduce overall levels of pollution below what is required by
applicable law, but which grant greater operational flexibility than current law would otherwise
allow. Permits issued under this project shall be called Minnesota XL permits.
    Subd. 2. Report to legislature. By January 15, 1998, the commissioner of the Pollution
Control Agency shall report to the legislature on implementation of the project, the environmental
results of the project, and recommendations for future legislation to further the policy of this
chapter.
History: 1996 c 437 s 3

114C.11 MINNESOTA XL PERMITS.
    Subdivision 1. Participation in project. (a) The commissioner of the Pollution Control
Agency may solicit requests for participation and shall select the participants in the project based
on the policy set forth in section 114C.01 and to satisfy the criteria of subdivisions 2 and 3. In
addition, the commissioner shall select participants that collectively represent a variety of facility
types and projects that are expected to reduce air, water, and land pollution. A power generation
facility may not be selected to participate in the project or be issued a Minnesota XL permit unless
its proposal includes a plan for significantly reducing mercury emissions.
(b) The prospective permittees must be regulated by the agency under chapter 115, chapter
116, or both, and voluntarily submit a proposal for a Minnesota XL permit. The proposal must
address the major pollution impact from the facility or facilities included in the proposal.
(c) If, in the course of preparing a Minnesota XL permit for a prospective permittee, the
commissioner concludes that the Minnesota XL permit will not sufficiently promote the policy
of section 114C.01 or meet the issuance criteria in this section, the commissioner may remove
the prospective permittee from the project. In that event, the commissioner shall provide the
prospective permittee with a reasonable amount of time to obtain alternative permits made
necessary by removal from the project.
    Subd. 2. Minimum criteria for Minnesota XL permit issuance. The Pollution Control
Agency may issue and amend a Minnesota XL permit if the agency finds that the following
minimum criteria are met:
(1) the permit will facilitate pollution prevention and source reduction activities by the
facility and result in significantly lower overall levels of pollution from the facility, its customers,
or suppliers than would otherwise be required by applicable laws, without: (i) increasing the
negative impact on the environment, the local community, or worker health and safety; or (ii)
transferring pollution impacts into the product;
(2) the pollution prevention, source reduction, or other pollution reduction goals are
verifiable;
(3) the pollution limits contained in the permit are verifiable and enforceable;
(4) the stakeholder group has been involved through a decision-making process that seeks
consensus in the design of the permit and will have the opportunity for continued involvement
in the implementation and evaluation of it;
(5) the permittee agrees to make available information that it gives the agency about the XL
project, except information that is nonpublic under chapter 13 or confidential under section
116.075, to the stakeholder group in a format that is easily understood;
(6) the permittee agrees to provide an assessment of the success of the project in reducing
the time and money spent at the facility on paperwork and other administrative tasks that do
not directly benefit the environment;
(7) the permittee, the Pollution Control Agency, and other state and local agencies are likely
to expend less time and resources over the long term to administer the Minnesota XL permit than
other types of permits; and
(8) the project is not inconsistent with the federal government's Project XL guidance or any
federal laws governing the Project XL program.
    Subd. 3. Additional criteria. In addition to the minimum criteria in subdivision 2, the
commissioner in selecting participants and the agency in issuing or amending a Minnesota XL
permit, must find that the permit meets one or more of the following criteria:
(1) the permit allows the facility owner or operator as much operational flexibility as can be
reasonably provided consistent with the need to achieve the anticipated pollution reduction and
ensure the verifiability and enforceability of the permit's pollution limits;
(2) the permit provides facility-wide pollution limits where practical, verifiable, and
enforceable;
(3) the permit regulates air, water, and land pollution effects, direct and indirect;
(4) the permit encourages pollution prevention or source reduction;
(5) the permit encourages innovation in the design, production, distribution, use, reuse,
recycling, or disposal of a product such that air, water, and land pollution impacts are minimized
over the life cycle of a product;
(6) the permit reduces the emission of nontoxic pollutants regulated under applicable law;
(7) the permit reduces indoor chemical exposure, water use, or energy use;
(8) the permit minimizes transfer, direct and indirect, of pollution between the air, water,
and land;
(9) the regulatory techniques employed in the permit have potential application to other
permittees;
(10) the permittee agrees to measure and demonstrate the success of the Minnesota XL
permit in addition to the assessment in subdivision 2, clause (6), such as tracking pollution
prevention incentives and initiatives or using surveys to measure any attitudinal changes by
facility personnel or the public;
(11) the permit is multiagency, under subdivision 4.
    Subd. 4. Multiagency Minnesota XL permits. The Pollution Control Agency may include
or vary in a Minnesota XL permit the related requirements of other state or local agencies, if the
Pollution Control Agency, the prospective permittee, and the other state or local agency find
that it is reasonable to do so. Notwithstanding conflicting procedural requirements, the other
agencies may exercise their related permitting, licensing, or other approval responsibilities by
including their requirements in the Minnesota XL permit. The Pollution Control Agency may not
include or vary the related requirements of other state or local agencies in a Minnesota XL permit
unless the other agencies agree to sign the permit. The Minnesota XL permit shall identify any
requirement, the source of which is not the Pollution Control Agency, and identify the source
agency. The commissioner of the Pollution Control Agency and the other agencies may agree to
share inspection or other responsibilities related to the Minnesota XL permit. For purposes of this
subdivision, requirements are related if they have a direct or indirect bearing on environmental
protection or indoor chemical exposure.
    Subd. 5. Environmental Policy Act. Sections 114C.10 to 114C.19 do not supersede the
requirements of chapter 116D and the rules adopted under it.
    Subd. 6. Plans and progress reports under chapters 115D and 115E. A permittee complies
with the plan content and timing requirements of sections 115D.07, 115E.04, and 115E.045 if the
Minnesota XL permit requires the permittee to include in an overall environmental management
plan satisfactory alternative information. A permittee complies with the progress report content
and timing requirements of section 115D.08 if the Minnesota XL permit requires the permittee to
include in its overall reporting requirements satisfactory alternative information, and specifies a
schedule for submitting the information.
History: 1996 c 437 s 4

114C.12 ISSUANCE, AMENDMENT, AND REVOCATION PROCEDURE.
    Subdivision 1. Stakeholder group. The commissioner of the Pollution Control Agency shall:
(1) ensure that the stakeholder group for each Minnesota XL permit includes members that
represent diversity of stakeholders that emphasizes participation by members from the local
community but does not exclude other stakeholders;
(2) ensure that a decision-making process that seeks consensus is in place; and
(3) ensure that reasonable technical assistance is provided to facilitate stakeholder
understanding of the design, implementation, and evaluation of each Minnesota XL permit.
    Subd. 2. Unified permit action and variance procedure. The Pollution Control Agency
may issue, amend, or revoke Minnesota XL permits using the single permit and variance
procedure in subdivision 4, notwithstanding conflicting state or local procedural requirements.
If a Minnesota XL permit includes variances from applicable state rules or local ordinances or
local regulations, the issuance or amendment of the permit constitutes adoption of a variance to
such state rules or local ordinances or local regulations if the Minnesota XL permit identifies, in
general terms, any state rules or local ordinances or local regulations being varied.
    Subd. 3. Variance standards. Although subdivision 2 establishes the procedure for granting
variances in a Minnesota XL permit, the agency in deciding whether to grant a variance must
apply the substantive standards for granting a variance applicable to the state rule, local ordinance,
or local regulation being varied or find that the variance either:
(1) promotes reduction in overall levels of pollution beyond what is required by applicable
law, consistent with the purposes of this chapter; or
(2) reduces the administrative burden on state or local agencies or the permittee, provided
that alternative monitoring, testing, notification, record keeping, or reporting requirements will
provide the information needed by the state or local agency to ensure compliance.
    Subd. 4. Procedure. (a) The Pollution Control Agency must provide at least 30 days for
public comment on the agency's proposed issuance, amendment, or revocation of a Minnesota
XL permit. Before the start of the public comment period, the commissioner of the Pollution
Control Agency must prepare a draft permit, permit amendment, or notice of permit revocation
and a fact sheet that:
(1) briefly describes the principal facts and the significant factual, legal, methodological, and
policy questions considered by the commissioner and the commissioner's proposed determination;
(2) briefly describes how the permit action proposed by the commissioner meets the criteria
of section 114C.11 and furthers the policy of section 114C.01; and
(3) identifies any rules that would be varied by the commissioner's proposed permit action.
(b) The commissioner shall prepare a public notice of the proposed permit action that:
(1) briefly describes the facility or activity that is the subject of the proposed permit action;
(2) states the commissioner's proposed permit action and whether it includes a variance of
any state rules or local ordinances or local regulations;
(3) identifies an agency person to contact for additional information;
(4) states that the draft permit, permit amendment, or notice of revocation and the fact sheet
are available upon request;
(5) states that comments may be submitted to the agency by the public during the comment
period; and
(6) describes the procedures that the agency will use to make a final decision, including how
persons may request public informational meetings, contested case hearings, and appearances at
public meetings of the agency. The agency or the commissioner may order a public informational
meeting if the comments received during the comment period demonstrate considerable public
interest in the proposed permit action.
(c) The commissioner shall mail the public notice to the applicant, all persons who have
registered with the agency to receive notice of permit actions, and to any interested person upon
request. The commissioner shall make a copy of the public notice available at the agency's main
office and the applicable regional office. The commissioner shall circulate the public notice in the
geographic area of the facility or activity subject to the proposed permit action, either by posting
in public buildings, by publication in local newspapers or periodicals, by publication in the State
Register, or by an alternate method deemed by the commissioner to be more effective such as
an electronic bulletin board or mail service.
(d) The commissioner shall have the discretion to issue, amend, or revoke a Minnesota XL
permit if:
(1) the commissioner has included in the public notice information notifying persons of
their right to request that the decision to issue, amend, or revoke the Minnesota XL permit be
presented to the agency; and
(2) neither the permit applicant, a member of the stakeholders group, or any person
commenting on the proposed issuance, amendment, or revocation of the Minnesota XL permit has
requested, during the comment period, that the decision be made by the agency or requested a
contested case hearing.
If the conditions in clauses (1) and (2) have not been met, or if, prior to the commissioner's
decision, one or more members of the agency request that the decision to issue, amend, or revoke
the Minnesota XL permit be made by the agency, then the agency shall have the sole authority to
make that decision.
    Subd. 5. Permit revocation. (a) The Pollution Control Agency may revoke a Minnesota XL
permit if requested by the permittee or if the agency finds that:
(1) the permittee is in significant noncompliance with the Minnesota XL permit or with
applicable law;
(2) the permittee is not able, or has shown a lack of willingness, to comply with future
pollution reduction deadlines in the Minnesota XL permit;
(3) the permitted facility or activity endangers human health or the environment and the
danger cannot be removed by an amendment to the Minnesota XL permit; or
(4) after proper notification and a reasonable amount of time has passed, the permittee
has not satisfactorily addressed a substantive issue raised by a majority of members of the
stakeholders group.
(b) If the agency revokes a Minnesota XL permit, it shall in its revocation order:
(1) delay any compliance deadlines that had been varied by the Minnesota XL permit if
the agency finds it necessary to provide the permittee a reasonable amount of time to obtain
alternative permits under chapters other than this chapter and under local ordinances and
regulations, and to achieve compliance; and
(2) establish practical interim requirements to replace the requirements of the Minnesota XL
permit that the agency finds the permittee will not be able to comply with between the time of
permit revocation and issuance of the alternative permits, provided that such interim requirements
shall not allow pollution from the facility in excess of that allowed by applicable law at the
time the permit was issued.
(c) The permittee shall comply with the agency's order and with all requirements of the
Minnesota XL permit for which alternative interim requirements have not been established in the
agency's order, until the applicable alternative permits have been issued.
History: 1996 c 437 s 5

114C.13 FEES.
Minnesota XL permittees shall continue to be subject to the same fee structures they would
have been subject to if they had obtained the permits that the Minnesota XL permit replaces.
History: 1996 c 437 s 6

114C.14 ENFORCEMENT AND JUDICIAL REVIEW.
    Subdivision 1. Enforcement. A Minnesota XL permit may be enforced in any manner
provided by law for the enforcement of permits issued under chapter 115 or 116, except for
requirements of other state or local agencies that are included in the permit and except that the
defense in section 609.671, subdivision 14, also applies to any misdemeanor action taken under
section 115.071, subdivision 2, paragraph (a). Requirements of other state or local agencies may
be enforced using whatever authorities would be available if the requirements had been included
in permits, licenses, or other approvals issued directly by the other agencies. The other agencies
shall consult with the commissioner of the Pollution Control Agency prior to taking any action
enforcing a Minnesota XL permit.
    Subd. 2. Judicial review. Any person aggrieved by a final decision of the Pollution Control
Agency to issue, amend, or revoke a Minnesota XL permit may obtain judicial review pursuant
to sections 14.63 to 14.69.
History: 1996 c 437 s 7

VARIANCES

114C.19 VARIANCES THAT PROMOTE POLLUTION REDUCTIONS OR REDUCE
UNNECESSARY ADMINISTRATIVE BURDEN.
In addition to the grounds for granting a variance set forth in section 116.07, subdivision 5,
the Pollution Control Agency may grant variances from its rules in order to:
(1) promote reduction in overall levels of pollution beyond what is required by applicable
law, consistent with the purposes of this chapter; or
(2) reduce the administrative burden on the agency or the permittee, provided that alternative
monitoring, testing, notification, record keeping, or reporting requirements will provide the
information needed by the agency to ensure compliance.
History: 1996 c 437 s 8

ENVIRONMENTAL AUDIT PILOT PROGRAM

114C.20 ENVIRONMENTAL IMPROVEMENT PROGRAM ESTABLISHED.
An environmental improvement program is established to promote voluntary compliance
with environmental requirements.
History: 1995 c 168 s 8; 1996 c 437 s 24; 1999 c 158 s 1; 2000 c 260 s 94

114C.21 DEFINITIONS.
    Subdivision 1. Applicability. As used in sections 114C.20 to 114C.28, the terms defined in
this section have the meanings given.
    Subd. 2. Agency. "Agency" means the Pollution Control Agency.
    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.
    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; 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.
    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 charter 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;
or a major source as defined in Minnesota Rules, parts 7007.0100, subpart 13, and 7007.0200,
subpart 2.
    Subd. 9.[Repealed, 1999 c 158 s 15]
    Subd. 10. Regulated entity. "Regulated entity" means a public or private organization
that is subject to environmental requirements.
    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.
    Subd. 11.[Repealed, 1999 c 158 s 15]
    Subd. 12. State. "State" means the Pollution Control Agency, the attorney general, and all
local governmental units.
History: 1995 c 168 s 9; 1996 c 359 s 3-5; 1996 c 437 s 24; 1999 c 158 s 2-5; 2000 c
260 s 94; 2001 c 187 s 1

114C.22 AUDITS.
    Subdivision 1. Qualification to participate in program. For a facility to qualify for
participation in the environmental improvement program, more than 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 submit findings from the facility's environmental
management system;
(2) for a major facility, prepare an environmental audit program pollution prevention plan
in accordance with subdivision 3;
(3) for a facility that is not a major facility, examine 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 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 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.
History: 1995 c 168 s 10; 1996 c 437 s 24; 1999 c 158 s 6; 2000 c 260 s 94

114C.23 REVIEW OF PERFORMANCE SCHEDULES.
(a) A reasonable performance schedule prepared under section 114C.22, 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 section 13.37, is nonpublic
data under 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.
History: 1995 c 168 s 12; 1996 c 437 s 24; 2000 c 260 s 94

114C.24 ENFORCEMENT.
    Subdivision 1. Deferred enforcement. The state must defer for at least 90 days enforcement
of an environmental requirement against the owner or operator of a facility if a report that meets
the requirements of section 114C.22, subdivision 2, has been submitted to the commissioner. If
the report includes a performance schedule, and the performance schedule is approved under
section 114C.23, 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 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 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.
    Subd. 3. Exceptions. Notwithstanding subdivisions 1 and 2, the state may at any time bring:
(1) a criminal enforcement action against any person who 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) the owner or operator discloses a violation in the audit report required under section
114C.22, which (A) was part of an enforcement action initiated in the previous three years
involving the imposition of a monetary penalty, or (B) occurred within one year after resolution of
an enforcement action which did not include the imposition of a monetary penalty;
(ii) the owner or operator discloses a violation in the audit report required under section
114C.22 which was also disclosed in a previous audit report submitted within the last year;
(iii) a violation caused serious harm to, or presents an imminent and substantial
endangerment to, human health or the environment;
(iv) 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;
(v) a violation has resulted in a substantial economic benefit which gives the violator a clear
advantage over its business competitors; or
(vi) 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) an enforcement action against the owner or operator of a facility to enjoin an imminent
and substantial danger under section 116.11.
    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 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 program or the environmental management system; and
(6) the regulated entity has demonstrated efforts to implement pollution prevention
opportunities.
    Subd. 5. Violations discovered by the state. Nothing in sections 114C.20 to 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.
    Subd. 6. False statements. (a) A person may not knowingly make a false material statement
or representation in the report filed in accordance with section 114C.22, subdivision 2. As used in
this subdivision, "knowingly" has the meaning given in section 609.671, subdivision 2.
(b) A person found to have knowingly made a false material statement or representation shall
be subject to the administrative penalties and process set forth in section 116.072.
History: 1995 c 168 s 13; 1996 c 359 s 6-9; 1996 c 437 s 24; 1999 c 158 s 7-10; 2000 c
260 s 94; 2001 c 187 s 2

114C.25 GREEN STAR AWARD.
A regulated entity may display at a facility a "green star" 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 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; and
(4) at least two years have elapsed since the final resolution of 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 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.
History: 1995 c 168 s 14; 1996 c 437 s 24; 1999 c 158 s 11; 2000 c 260 s 94

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, the notes or papers prepared by the auditor or the person conducting the
audit, or the internal documents of a regulated entity establishing, coordinating, or responding
to the audit, other than the report required in section 114C.22, subdivision 2, 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, any notes or papers
prepared by the auditor or by the person conducting the audit, and the internal documents of a
regulated entity establishing, coordinating, or responding to the audit 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.
    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.
History: 1995 c 168 s 15; 1996 c 437 s 24; 1999 c 158 s 12; 2000 c 260 s 94

114C.27 NO EFFECT ON OTHER RIGHTS.
Sections 114C.20 to 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 program; or
(2) rights of other persons relative to the matters addressed by the environmental
improvement program.
History: 1995 c 168 s 16; 1996 c 437 s 24; 1999 c 158 s 13; 2000 c 260 s 94

114C.28 REPORTING REQUIRED BY LAW.
Nothing in sections 114C.20 to 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.
History: 1995 c 168 s 17; 1996 c 437 s 24; 1999 c 158 s 14; 2000 c 260 s 94

114C.29 [Repealed, 1999 c 158 s 15]

114C.30 [Repealed, 1999 c 158 s 15]

114C.31 [Repealed, 1999 c 158 s 15]