Minnesota Session Laws - 1991, Regular Session

  

                         Laws of Minnesota 1991 

                        CHAPTER 305-H.F.No. 977 
           An act relating to the environment; prescribing who 
          must prevent, prepare for, and respond to worst case 
          discharges of oil and hazardous substances; describing 
          response plans; authorizing the commissioners of the 
          pollution control agency and departments of 
          agriculture and public safety to order compliance; 
          providing for good samaritan assistance; authorizing 
          cooperation between public and private responders; 
          requiring the establishment of a single answering 
          point system; authorizing citizens advisory groups; 
          providing penalties; amending Minnesota Statutes 1990, 
          section 116.072, subdivision 1; proposing coding for 
          new law as Minnesota Statutes, chapter 115E. 
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
     Section 1.  [115E.01] [DEFINITIONS.] 
    Subdivision 1.  [SCOPE.] The definitions in this section 
apply to this chapter.  Terms that are not defined have the 
meanings given in the Oil Pollution Act of 1990. 
    Subd. 2.  [AGRICULTURAL CHEMICAL.] "Agricultural chemical" 
has the meaning given in section 18D.01, subdivision 3.  
    Subd. 3.  [COMMISSIONERS.] "Commissioners" means the 
commissioner of public safety and 
    (1) the commissioner of agriculture, with respect to 
agricultural chemicals; or 
    (2) the commissioner of the pollution control agency, with 
respect to other hazardous substances and oil. 
    Subd. 4.  [DISCHARGE.] "Discharge" means an intentional or 
unintentional emission, other than natural seepage, and 
includes, but is not limited to, spilling, leaking, pumping, 
pouring, emitting, emptying, or dumping; and also includes 
release as defined in section 115B.02, subdivision 15. 
    Subd. 5.  [FACILITY.] "Facility" means a structure, group 
of structures, equipment, or device, other than a vessel, that 
is used for one or more of the following purposes:  exploring 
for, drilling for, producing, storing, handling, transferring, 
processing, or transporting oil or a hazardous substance.  
Facility includes a motor vehicle, rolling stock, or pipeline 
used for one or more of these purposes.  A facility may be in, 
on, or under land, or in, on, or under waters of the state as 
defined in section 115.01, subdivision 9. 
    Subd. 6.  [HAZARDOUS SUBSTANCE.] "Hazardous substance" has 
the meaning given in section 115B.02, subdivision 8. 
    Subd. 7.  [LEAD AGENCY.] "Lead agency" means:  
    (1) the department of agriculture, with respect to 
agricultural chemicals; or 
    (2) the pollution control agency, for other hazardous 
substances or oil. 
    Subd. 8.  [OIL.] "Oil" means oil of any kind or in any form 
including, but not limited to, petroleum, fuel oil, sludge, oil 
refuse, and oil mixed with wastes other than dredged spoils; and 
also includes petroleum as defined in section 115C.02, 
subdivision 10. 
    Subd. 9.  [OIL POLLUTION ACT OF 1990.] "Oil Pollution Act 
of 1990" means the Oil Pollution Act of 1990, Statutes at Large, 
volume 104, pages 484 to 575.  
    Subd. 10.  [PERSON.] "Person" has the meaning given in 
section 115B.02, subdivision 12. 
    Subd. 11.  [RESPONSE.] "Response" has the meaning given in 
section 115B.02, subdivision 18, and the meaning of corrective 
action given in section 115C.02, subdivision 4.  Response 
includes restoration, rehabilitation, replacement, or 
acquisition of the equivalent of the natural resources affected 
by the discharge of hazardous substances or oil. 
    Subd. 12.  [VESSEL.] "Vessel" means a watercraft or other 
artificial contrivance used, or capable of being used, as a 
means of transportation on water.  It includes a vessel that is 
constructed or adapted to carry, or that carried, oil or 
hazardous substances in bulk as cargo or cargo residue. 
    Subd. 13.  [WORST CASE DISCHARGE.] "Worst case discharge" 
means: 
    (1) in the case of a vessel, sudden loss of the entire 
contents of the vessel in weather conditions that impede 
cleanup; 
    (2) for each tank of a storage tank facility, sudden loss 
of the entire contents of the tank in weather conditions that 
impede cleanup; 
    (3) in the case of railroad rolling stock facilities, 
sudden loss of the contents of the maximum expected number of 
the rail cars containing oil or hazardous substance of a train 
onto land or into water in weather conditions that impede 
cleanup; 
    (4) in the case of truck and trailer rolling stock 
facilities, sudden loss of the entire contents of the truck or 
trailer onto land or into water in weather conditions that 
impede cleanup; 
    (5) in the case of a pipeline facility, sudden loss of the 
contents of the pipeline which would be expected from complete 
failure of the pipeline onto land or into water in weather 
conditions that impede cleanup; 
    (6) in the case of oil or hazardous substance transfer 
facilities, sudden loss of the largest volume which could occur 
during transfer into or out of a facility; or 
    (7) the worst case discharge for the facility as described 
by regulations under the Oil Pollution Act of 1990 if the 
regulations, when adopted, describe a discharge worse than one 
described in clauses (1) to (6). 
    Sec. 2.  [115E.02] [DUTY TO PREVENT DISCHARGES.] 
    A person who owns or operates a vessel or facility 
transporting, storing, or otherwise handling hazardous 
substances or oil or who is otherwise in control of hazardous 
substances or oil shall take reasonable steps to prevent the 
discharge of those materials in a place or manner that might 
cause pollution of the land, waters, or air of the state or that 
might threaten the public's safety or health. 
    Sec. 3.  [115E.03] [DUTY TO PREPARE FOR RESPONSE TO 
DISCHARGES.] 
    Subdivision 1.  [GENERAL PREPAREDNESS.] A person who owns 
or operates a vessel or facility transporting, storing, or 
otherwise handling hazardous substances or oil or who is 
otherwise in control of hazardous substances or oil shall be 
prepared at all times to rapidly and thoroughly recover 
discharged hazardous substances or oil that were under that 
person's control and to take all other actions necessary to 
minimize or abate pollution of land, waters, and air of the 
state and to protect the public's safety and health. 
    Subd. 2.  [SPECIFIC PREPAREDNESS.] The following persons 
shall comply with the specific requirements of subdivisions 3 
and 4 and section 4: 
    (1) persons who own or operate a vessel that is constructed 
or adapted to carry, or that carried, oil or hazardous 
substances in bulk as cargo or cargo residue; 
    (2) persons who own or operate trucks or cargo trailer 
rolling stock transporting an average monthly aggregate total of 
more than 100,000 gallons of oil or hazardous substance as cargo 
in Minnesota; 
    (3) persons who own or operate railroad car rolling stock 
transporting an aggregate total of more than 100,000 gallons of 
oil or hazardous substance as cargo in Minnesota in any calendar 
month; 
    (4) persons who own or operate facilities containing 
100,000 gallons or more of oil or hazardous substance in tank 
storage at any time; 
    (5) persons who own or operate facilities where there is 
transfer of an average monthly aggregate total of more than 
100,000 gallons of oil or hazardous substances to or from 
vessels, tanks, rolling stock, or pipelines, except for 
facilities where the primary transfer activity is the retail 
sales of motor fuels; 
    (6) persons who own or operate hazardous liquid pipeline 
facilities through which more than 100,000 gallons of oil or 
hazardous substance is transported in any calendar month; and 
    (7) persons required to demonstrate preparedness under 
section 5. 
    Subd. 3.  [LEVEL OF PREPAREDNESS.] A person described in 
subdivision 2 shall maintain a level of preparedness that 
ensures that effective response can reliably be made to worst 
case discharges. 
    Subd. 4.  [DEMONSTRATION OF SATISFACTORY PREPAREDNESS.] A 
person required to maintain preparedness under subdivision 2 may 
demonstrate satisfactory preparedness to the commissioner of the 
lead agency through one or a combination of the following means: 
    (1) adequate response personnel and equipment in the usual 
employ of the person; 
    (2) adequate response personnel and equipment available 
from for-hire cleanup contractors with arrangements made for 
their deployment; 
    (3) adequate response personnel and equipment from a 
response cooperative or community awareness and emergency 
response organization meeting guidelines prepared by the lead 
agency with arrangements made for their deployment; or 
    (4) adequate response personnel and equipment of local, 
state, or federal public sector response organizations with 
arrangements made for their deployment. 
    Subd. 5.  [DEPARTMENT OF TRANSPORTATION.] The commissioner 
of transportation may examine the evidence of financial 
responsibility required under section 1016 of the Oil Pollution 
Act of 1990 for a vessel and may apply the sanctions in that 
section.  
    Sec. 4.  [115E.04] [PREVENTION AND RESPONSE PLANS.] 
    Subdivision 1.  [PLAN CONTENTS.] Persons required to show 
specific preparedness under section 3, subdivision 2, shall 
prepare and maintain a prevention and response plan for a worst 
case discharge.  The plan must: 
    (1) describe how it is consistent with the requirements of 
the national or area contingency plans developed under the Oil 
Pollution Act of 1990; 
    (2) describe the measures taken to prevent discharges from 
occurring, including prevention of a worst case discharge, 
prevention of discharges of lesser magnitude, and prevention of 
discharges similar to those that have occurred from the vessel 
or facility during its history of operation; 
    (3) identify the individual or individuals having full 
authority to implement response actions, and those individuals' 
qualifications and titles; 
    (4) identify how communication and incident command 
relationships will be established between the individuals in 
command of a vessel or facility response and the following 
persons: 
    (i) individuals in the employ of the owner or operator of 
the vessel or facility who are responding to the discharge; 
    (ii) appropriate federal, state, and local officials; and 
    (iii) other persons providing emergency response equipment 
and personnel; 
    (5) describe the facility or vessel and identify the 
locations and characteristics of potential worst case discharges 
from the vessel or facility; 
    (6) identify the means under section 3, subdivision 4, that 
will be used to satisfy the requirement to have adequate 
equipment and personnel to respond to a worst case discharge; 
    (7) contain copies of contracts, correspondence, or other 
documents showing that adequate personnel and equipment as 
described in section 3, subdivision 4, will be available to 
respond to a worst case discharge; 
    (8) describe the actions that will be taken by the persons 
described in section 3, subdivision 4, in the event of a worst 
case discharge; and 
    (9) describe the training, equipment testing, periodic 
drills, and unannounced drills that will be used to ensure that 
the persons and equipment described in section 3, subdivision 4, 
are ready for response. 
    A plan submitted to the federal government under the Oil 
Pollution Act of 1990 or prepared under other law may be used to 
satisfy the requirements in clauses (1) to (9) provided that the 
information required by clauses (1) to (9) is included in the 
plan. 
    Subd. 2.  [TIMING.] A person required to be prepared under 
section 3 shall complete the response plan required by this 
section by March 1, 1993, unless one of the commissioners orders 
the person to demonstrate preparedness at an earlier date under 
section 5.  Plans must be updated every three years.  Plans must 
be updated before three years following a significant discharge, 
upon significant change in vessel or facility operation or 
ownership, upon significant change in the national or area 
contingency plans under the Oil Pollution Act of 1990, or upon 
change in the capabilities or role of a person named in a plan 
who has an important response role. 
    Subd. 3.  [NOTIFICATION.] (a) The commissioner of public 
safety must be notified when any of the following takes place: 
    (1) submission of the plan to the federal government; 
    (2) granting of exemptions or extensions of time by the 
federal government for submission of the plan; or 
    (3) completion of the plan if submission to the federal 
government is not required. 
    (b) Notification under this subdivision must be on a form 
prescribed by the commissioner of public safety and must include:
    (1) a description of the facility or vessel; 
    (2) a description of the activities involving oil or 
hazardous substances; 
    (3) a description of the types of materials being handled, 
including whether agricultural chemicals are involved; and 
    (4) other information required by the commissioner.  
    (c) The commissioner of public safety shall transmit a copy 
of the notification to the other commissioners as appropriate, 
depending on the types of materials involved. 
    Subd. 4.  [REVIEW OF PREVENTION AND RESPONSE PLAN.] (a) A 
copy of the prevention and response plan must be submitted to 
any of the commissioners who request it and to an official of a 
political subdivision with appropriate jurisdiction upon the 
official's request, or the plan and equipment and material named 
in the plan may be examined upon the request of an authorized 
agent of a commissioner or official. 
    (b) Upon the request of one or more of the commissioners, a 
person shall demonstrate the adequacy of prevention and response 
plans and preparedness measures by conducting announced or 
unannounced drills, calling persons and organizations named in a 
prevention and response plan and verifying roles and 
capabilities, locating and testing response equipment, 
questioning response personnel, or other means that in the 
judgment of the requesting commissioner demonstrate 
preparedness.  Before requesting an unannounced drill, the 
requesting commissioner shall notify the other commissioners 
that a drill will be requested and invite them to participate in 
or witness the drill.  If an unannounced drill is conducted to 
the satisfaction of the commissioners, the person conducting the 
drill may not be required to conduct an additional unannounced 
drill in the same calendar year. 
     Subd. 5.  [CITIZENS ADVISORY GROUPS.] The commissioner of 
the pollution control agency, the department of agriculture, or 
the department of public safety may establish, or a local 
official may request a commissioner to establish, a citizens 
advisory group following a discharge of oil or a hazardous 
substance.  The purpose of the citizens advisory group is to 
facilitate exchange of information and concerns related to the 
discharge and response between the owner or operator of the 
vessel or facility, the governmental responders, and the 
affected members of the public. 
    Sec. 5.  [115E.05] [ORDERS AND INJUNCTIONS; ENFORCEMENT.] 
    Subdivision 1.  [AMENDMENT TO PLAN.] If one or more of the 
commissioners finds the prevention and response plans or 
preparedness measures of a person do not meet the requirements 
of this chapter, the commissioner or commissioners making the 
finding may by order require that reasonable amendments to the 
plan or reasonable additional preventive or preparedness 
measures be implemented in a timely fashion.  If more than one 
commissioner makes the finding, the order must be a joint order. 
    Subd. 2.  [COMPLIANCE.] If oil or a hazardous substance is 
discharged while it is under the control of a person not 
identified in section 3, subdivision 2, any one of the 
commissioners may by order require the person to comply with the 
prevention and response plan requirements of sections 3 and 4 in 
a timely manner if: 
    (1) land, water, or air of the state is polluted or 
threatened; or 
    (2) human life, safety, health, natural resources, or 
property is damaged or threatened. 
    Subd. 3.  [FINANCIAL ASSURANCE FOR RESPONSE.] (a) For 
purposes of this subdivision, "ordering commissioner" means: 
    (1) the commissioner of the pollution control agency; 
    (2) the commissioner of natural resources; 
    (3) the commissioner of agriculture; or 
    (4) two or more of these commissioners acting jointly. 
    (b) The ordering commissioner may issue an order under this 
subdivision if the ordering commissioner determines that 
adequate response is not being made or that other circumstances 
exist which indicate adequate response will not continue.  When 
ordered by the ordering commissioner the owner or operator of a 
vessel or facility responsible for the discharge of a hazardous 
substance or oil shall provide financial assurance acceptable to 
the ordering commissioner.  The financial assurance must be in 
the amount necessary to cover the reasonable response costs, as 
determined within one year after discharge by the ordering 
commissioner, of any additional response that is determined to 
be reasonable and necessary under applicable laws and 
regulations.  
    (c) The ordering commissioner may issue only one financial 
assurance order under this subdivision for a single incident 
involving the discharge of hazardous substances or oil. 
    (d) This subdivision may be enforced by the ordering 
commissioner under section 115.071.  
    (e) An order issued under this subdivision shall cease to 
be effective upon completion of a response in accordance with 
applicable laws and regulations.  
    Subd. 4.  [OTHER ENFORCEMENT POWERS.] For the purposes of 
enforcing this chapter, the commissioner of the pollution 
control agency may exercise the regulatory and enforcement 
powers in chapters 115 and 116 and the commissioner of the 
department of agriculture may exercise the regulatory and 
enforcement powers in chapters 18B, 18C, and 18D. 
    Sec. 6.  [115E.06] [GOOD SAMARITAN.] 
    (a) A person listed in this paragraph who is rendering 
assistance in response to a discharge of a hazardous substance 
or oil is not liable for response costs that result from actions 
taken or failed to be taken in the course of the assistance 
unless the person is grossly negligent or engages in willful 
misconduct: 
    (1) a member of a cooperative or community awareness and 
emergency response group in compliance with standards in rules 
adopted by the pollution control agency; 
    (2) an employee or official of the political subdivision 
where the response takes place, or a political subdivision that 
has a mutual aid agreement with that subdivision; 
    (3) a member or political subdivision sponsor of a 
hazardous materials incident response team or special chemical 
assessment team designated by the commissioner of the department 
of public safety; 
    (4) a person carrying out the directions of:  (i) the 
commissioner of the pollution control agency, the commissioner 
of agriculture, the commissioner of natural resources, or the 
commissioner of public safety; or (ii) the United States Coast 
Guard or Environmental Protection Agency on-scene coordinator 
consistent with a national contingency plan under the Oil 
Pollution Act of 1990; and 
    (5) a for-hire response contractor. 
    (b) This section does not exempt from liability responsible 
persons with respect to the discharge under chapter 115B or 115C 
or responsible parties with respect to the discharge under 
chapter 18B or 18D. 
    Sec. 7.  [115E.07] [COOPERATION BETWEEN PRIVATE AND PUBLIC 
RESPONDERS.] 
    Political subdivisions and state agencies may arrange with 
persons to provide resources of state and local government so 
that the persons may comply with section 3, subdivision 4. 
    Sec. 8.  [115E.08] [COORDINATION.] 
    Subdivision 1.  [APPOINTMENT.] The commissioner of public 
safety shall coordinate state agency preparedness for response 
to discharges of oil or hazardous substances. 
    Subd. 2.  [DUTIES.] The commissioner of public safety shall 
at least annually assess the preparedness of each state agency 
for carrying out its responsibilities under sections 1 to 9 and 
shall chair regular meetings of representatives of each agency 
to prepare for coordinated response.  The commissioner shall 
develop an incident command system for use by state agency 
responders in consultation with the affected state agencies.  
Following each major incident, the commissioner shall review the 
performance of each responding agency and the adequacy of the 
overall response and shall report to the agencies involved and 
the governor.  The commissioner shall also identify 
opportunities for state agencies to coordinate with federal 
departments and agencies and political subdivisions of the state 
for preparedness and response actions. 
      Subd. 3.  [JURISDICTION.] Except as otherwise provided, the 
following agencies have primary responsibility for the specified 
areas in carrying out the duties and authorities of this chapter:
     (1) the department of agriculture, for agricultural 
chemicals; 
    (2) the department of public safety, for public safety and 
protection of property; 
     (3) the department of natural resources, for assessment and 
rehabilitation of water resources; 
    (4) the pollution control agency, for all other matters 
subject to this chapter; and 
    (5) the department of transportation, with respect to 
requirements related to the packaging, labeling, placarding, 
routing, and written reporting on releases of hazardous 
materials that are being transported. 
    Subd. 4.  [ANNUAL REPORT.] The commissioner shall annually 
report to the appropriate committees of the legislature on the 
readiness of state government to respond appropriately to 
discharges of oil or hazardous substances. 
    Sec. 9.  [115E.09] [SINGLE ANSWERING POINT SYSTEM.] 
    The commissioner of public safety shall establish a single 
answering point system for use by persons responsible for 
reporting emergency incidents and conditions involving hazardous 
substances or oil to agencies of the state.  The single 
answering point system must include personnel on duty 24 hours a 
day and equipment adequate to support communication to and from 
the parties responsible for an incident and all state agencies 
responsible for state response to the incident.  The persons at 
the answering point must be trained in the jurisdictions, 
responsibilities, and capabilities of each state agency and 
basic hazardous substance hazard recognition and response 
procedures.  All state agencies shall cooperate with the 
commissioner by including the single answering point system 
telephone number in files, permits, correspondence, and similar 
written material, and by appointing staff to coordinate the 
receipt of reports with the staff of the single answering point 
system. 
    Sec. 10.  Minnesota Statutes 1990, section 116.072, 
subdivision 1, is amended to read: 
    Subdivision 1.  [AUTHORITY TO ISSUE PENALTY ORDERS.] The 
commissioner may issue an order requiring violations to be 
corrected and administratively assessing monetary penalties for 
hazardous waste violations under sections 115.061 and 116.07, 
and chapter 115E, Minnesota Rules, chapter 7045, and rules 
adopted by the agency under section 115.03, subdivision 1, 
paragraph (e), clause (3) or 116.49.  The order must be issued 
as provided in this section. 
    Sec. 11.  [REPORTS.] 
    Subdivision 1.  [DEFINITIONS.] (a) For purposes of this 
section, the terms in this subdivision have the meanings given 
them.  
    (b) "Discharge" has the meaning given in section 1, 
subdivision 4.  
    (c) "Response" has the meaning given in section 1, 
subdivision 11.  
    Subd. 2.  [COMMUNICATION REVIEW; REPORT.] The commissioners 
of public safety, transportation, natural resources, 
agriculture, military affairs, the pollution control agency, and 
other state agencies shall review the adequacy of existing 
radio, telephone, and other communications between local, state, 
federal, private, and other responders to discharges of oil or 
hazardous substances.  The commissioners shall consult with 
representatives of the emergency management and public safety 
agencies of political subdivisions.  The commissioners shall 
jointly report to the legislature by January 1, 1992, on the 
current abilities of public safety, environmental, health, and 
cleanup personnel to communicate, and may prepare 
recommendations for improving communications including 
designation of statewide radio frequencies for emergency use. 
      Subd. 3.  [RESPONSE REVIEW; REPORT.] The commissioner of 
the pollution control agency, in consultation with public and 
private responders, shall review state practices for response 
and follow-up to discharges and shall report to the legislature 
by January 1, 1992.  The report must include:  
    (1) recommendations on preparing, training, and directing 
state, local, and private responders; 
    (2) evaluation of and recommendations on procedures for 
oversight of responses to pipeline and tank discharges, 
including discharges occurring before the effective date of this 
section; 
    (3) evaluation of the adequacy of resources and authorities 
for response oversight; 
    (4) review of procedures and policies for ordering 
financial assurance under section 5, subdivision 3; 
    (5) recommendations on the need for amendments to liability 
provisions in existing law relating to discharges; and 
    (6) review, in consultation with the department of 
transportation, of the federal Hazardous Materials 
Transportation Uniform Safety Act of 1990, Public Law Number 
101-615, and how it interacts with this act. 
    Sec. 12.  [FUNDS; TRAINING.] 
    The commissioners of public safety, the pollution control 
agency, natural resources, agriculture, and transportation shall 
seek federal funding for activities undertaken under this act.  
A portion of any funds received under this section must be used 
by the agencies to train state agency and political subdivision 
personnel in proper recognition of and response to discharges 
and releases. 
    The commissioner of public safety may accept gifts for the 
purpose of ensuring adequate training of state agency and 
political subdivision personnel. 
    Sec. 13.  [EFFECTIVE DATE.] 
    Section 5, subdivision 3, is effective the day following 
final enactment and applies to discharges of hazardous 
substances or oil on or after March 1, 1991. 
    Presented to the governor May 30, 1991 
    Signed by the governor June 3, 1991, 4:18 p.m.