Bill Text: MN HF1321 | 2013-2014 | 88th Legislature | Introduced
Bill Title: Public waters administrative penalty orders provided, civil penalties provided, implementation plan required, and rulemaking exemption provided.
Sponsorship: Partisan Bill (Democrat 1)
Status: (Introduced - Dead) 2013-03-06 - Introduction and first reading, referred to Civil Law [HF1321 Detail]
Download: Minnesota-2013-HF1321-Introduced.html
1.2relating to waters; providing for administrative penalty orders; providing civil
1.3penalties; requiring an implementation plan; providing a rulemaking exemption;
1.4proposing coding for new law in Minnesota Statutes, chapter 103G.
1.5BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
1.6 Section 1. [103G.252] ADMINISTRATIVE PENALTY ORDERS.
1.7The commissioner may issue an order requiring violations to be corrected and
1.8administratively assessing monetary penalties for violations of chapters 84, 103F,
1.9and 103G, rules, orders, agreements, settlements, licenses, registrations, or permits
1.10for activities affecting the course, current, or cross-section of public waters, or the
1.11appropriation or diversion of waters of the state. The commissioner must follow the
1.12procedures in section 103G.253 when issuing an administrative penalty order. The
1.13maximum monetary amount of an administrative penalty order is $10,000 for each violator
1.14for all violations by that violator identified in an inspection or review of compliance.
1.15 Sec. 2. [103G.253] ADMINISTRATIVE PENALTY ORDER PROCEDURE.
1.16 Subdivision 1. Contents of order. An order assessing an administrative penalty
1.17under section 103G.252 must include:
1.18(1) a concise statement of the facts alleged to constitute a violation;
1.19(2) a reference to the law, rule, order, agreement, settlement, license, registration,
1.20or permit that has been violated;
1.21(3) a statement of the corrective order and the amount of the administrative penalty
1.22to be imposed and the factors upon which it is based; and
1.23(4) a statement of the person's right to review the order.
2.1 Subd. 2. Amount of penalty; considerations. (a) In determining the amount or
2.2requirements of a penalty under section 103G.252, the commissioner may consider:
2.3(1) the willfulness of the violation;
2.4(2) the history of past violations;
2.5(3) the number of violations;
2.6(4) the economic benefit gained by the person by allowing or committing the
2.7violation; and
2.8(5) other factors as justice may require, if the commissioner specifically identifies
2.9the additional factors in the commissioner's order.
2.10(b) For a second or subsequent violation, the commissioner shall, in determining the
2.11amount or requirements of a penalty, consider:
2.12(1) the factors in paragraph (a);
2.13(2) the similarity of the most recent previous violation and the violation to be
2.14penalized;
2.15(3) the time elapsed since the last violation;
2.16(4) the number of previous violations; and
2.17(5) the response of the person to the most recent previous violation identified.
2.18 Subd. 3. Corrective order. (a) The commissioner may issue an order requiring the
2.19violations cited in the order to be corrected within the time period specified in the order.
2.20Corrective orders may require repair, restoration, replacement, and monetary restitution as
2.21determined by the commissioner.
2.22(b) The person to whom the order was issued shall provide information to the
2.23commissioner before the 31st day after the order was received demonstrating that the
2.24violation has been corrected or that the person has developed a corrective plan. The
2.25commissioner shall determine whether the violation has been corrected or whether the
2.26corrective plan is acceptable and notify the person to whom the order was issued of the
2.27commissioner's determination.
2.28 Subd. 4. Penalty. (a) Except as provided in paragraph (c), if the commissioner
2.29determines that the violation has been corrected or the person to whom the order was
2.30issued has developed a corrective plan acceptable to the commissioner, the monetary
2.31penalty may be forgiven in whole or in part.
2.32(b) Unless the person requests review of the order under subdivision 5 before the
2.33monetary penalty is due, the penalty in the order is due and payable on the 31st day after
2.34the order was received.
2.35(c) For repeated or serious violations, the commissioner may issue an order with a
2.36monetary penalty that shall not be forgiven after the corrective action is taken.
3.1(d) Interest at the rate established in section 549.09 begins to accrue on penalties
3.2under this subdivision on the 31st day after the order with the penalty was received.
3.3 Subd. 5. Expedited administrative hearing. (a) Within 30 days after receiving an
3.4order, the person to whom the order was issued may request an expedited hearing, using
3.5the procedures adopted under section 14.51, to review the commissioner's action. The
3.6hearing request must specifically state the reasons for seeking review of the order. The
3.7person to whom the order was issued and the commissioner are the parties to the expedited
3.8hearing. The commissioner must notify the person to whom the order was issued of
3.9the time and place of the hearing at least 15 days before the hearing. The expedited
3.10hearing must be held within 30 days after a request for hearing has been filed with the
3.11commissioner unless the parties agree to a later date.
3.12(b) All written arguments must be submitted within ten days following the close
3.13of the hearing. The hearing shall be conducted according to rules adopted under section
3.1414.51, as modified by this subdivision. The Office of Administrative Hearings may,
3.15in consultation with the commissioner of natural resources, adopt rules specifically
3.16applicable to cases under this section.
3.17(c) The administrative law judge shall issue a report making recommendations about
3.18the commissioner's action to the commissioner within 30 days following the close of the
3.19record. The administrative law judge may not recommend a change in the amount of
3.20the proposed penalty or corrective order unless the administrative law judge determines
3.21that, based on the factors in subdivision 2, the monetary penalty or corrective order is
3.22unreasonable.
3.23(d) If the administrative law judge makes a finding that the hearing was requested
3.24solely for purposes of delay or that the hearing request was frivolous, the commissioner
3.25may add to the amount of the penalty the costs charged to the Department of Natural
3.26Resources by the Office of Administrative Hearings for the hearing.
3.27(e) If the administrative law judge issues a report that recommends dismissal of
3.28the order assessing the administrative penalty, the commissioner must refund the costs
3.29charged to the person receiving the order by the Office of Administrative Hearings for
3.30the hearing and reasonable and necessary attorney fees incurred for the hearing. For
3.31purposes of this paragraph, the administrative law judge may recommend attorney fees to
3.32be refunded, not to exceed the amount of the penalty order.
3.33(f) If a hearing has been held, the commissioner may not issue a final order until at
3.34least five days after receipt of the report of the administrative law judge. The person to
3.35whom the order was issued may, within those five days, comment to the commissioner
4.1on the recommendations and the commissioner must consider the comments. The final
4.2order may be appealed according to sections 14.63 to 14.69.
4.3(g) If a hearing has been held and a final order issued by the commissioner, the penalty
4.4must be paid within 30 days after the date the final order is received and the corrective
4.5action must be completed within the time period specified by the final order, unless review
4.6of the final order is requested under sections 14.63 to 14.69. If review is not requested or the
4.7order is reviewed and upheld, the amount due is the penalty, together with interest accruing
4.8from 31 days after the original order was received at the rate established in section 549.09.
4.9 Subd. 6. Alternative dispute resolution. In addition to review under subdivision
4.105, the commissioner may enter into mediation or other alternative dispute resolution
4.11concerning an order issued under this section if the commissioner and the person to whom
4.12the order was issued both agree to mediation or other alternative dispute resolution.
4.13 Subd. 7. Enforcement. (a) The attorney general may proceed on behalf of the state
4.14to enforce penalties that are due and payable under this section in any manner provided by
4.15law for the collection of debts.
4.16(b) The attorney general may petition the district court to file the administrative
4.17order as an order of the court. At any court hearing, the only issues parties may contest are
4.18procedural and notice issues. Once entered, the administrative order may be enforced in
4.19the same manner as a final judgment of the district court.
4.20(c) If a person fails to pay the penalty or comply with a corrective order, the attorney
4.21general may bring a civil action in district court seeking payment of the penalties,
4.22injunctive relief, or other appropriate relief including monetary damages, attorney fees,
4.23costs, and interest.
4.24 Subd. 8. Revocation and suspension of permit, license, or registration. If a person
4.25fails to pay a penalty owed under this section, the commissioner may revoke or refuse to
4.26reissue or renew the related permit, license, or registration issued by the commissioner.
4.27 Subd. 9. Cumulative remedy. The authority of the commissioner to issue a
4.28corrective order assessing penalties is in addition to other remedies available under statutory
4.29or common law, except that the state may not seek civil penalties under any other provision
4.30of law for the violations covered by the administrative penalty order. The payment of a
4.31penalty does not preclude the use of other enforcement provisions, under which penalties
4.32are not assessed, in connection with the violation for which the penalty was assessed.
4.33 Sec. 3. [103G.254] RECOVERY OF LITIGATION COSTS AND EXPENSES.
4.34In any judicial action brought by the attorney general for civil penalties, injunctive
4.35relief, or an action to compel performance under section 103G.253, if the state finally
5.1prevails and if the proven violation was willful, the state, in addition to other penalties
5.2provided by law, may be allowed an amount determined by the court to be the reasonable
5.3value of all or part of the litigation expenses incurred by the state. In determining the
5.4amount of the litigation expenses to be allowed, the court shall give consideration to the
5.5economic circumstances of the defendant.
5.6 Sec. 4. IMPLEMENTATION PLAN; RULEMAKING EXEMPTION.
5.7The commissioner of natural resources shall prepare a plan to implement the
5.8administrative penalty order according to Minnesota Statutes, sections 103G.252 to
5.9103G.254. The commissioner shall provide a 30-day period for public comment on the
5.10plan. The plan must be finalized by December 31, 2013. The plan is exempt from the
5.11rulemaking procedures under Minnesota Statutes, chapter 14, and Minnesota Statutes,
5.12section 14.386, does not apply.
1.3penalties; requiring an implementation plan; providing a rulemaking exemption;
1.4proposing coding for new law in Minnesota Statutes, chapter 103G.
1.5BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
1.6 Section 1. [103G.252] ADMINISTRATIVE PENALTY ORDERS.
1.7The commissioner may issue an order requiring violations to be corrected and
1.8administratively assessing monetary penalties for violations of chapters 84, 103F,
1.9and 103G, rules, orders, agreements, settlements, licenses, registrations, or permits
1.10for activities affecting the course, current, or cross-section of public waters, or the
1.11appropriation or diversion of waters of the state. The commissioner must follow the
1.12procedures in section 103G.253 when issuing an administrative penalty order. The
1.13maximum monetary amount of an administrative penalty order is $10,000 for each violator
1.14for all violations by that violator identified in an inspection or review of compliance.
1.15 Sec. 2. [103G.253] ADMINISTRATIVE PENALTY ORDER PROCEDURE.
1.16 Subdivision 1. Contents of order. An order assessing an administrative penalty
1.17under section 103G.252 must include:
1.18(1) a concise statement of the facts alleged to constitute a violation;
1.19(2) a reference to the law, rule, order, agreement, settlement, license, registration,
1.20or permit that has been violated;
1.21(3) a statement of the corrective order and the amount of the administrative penalty
1.22to be imposed and the factors upon which it is based; and
1.23(4) a statement of the person's right to review the order.
2.1 Subd. 2. Amount of penalty; considerations. (a) In determining the amount or
2.2requirements of a penalty under section 103G.252, the commissioner may consider:
2.3(1) the willfulness of the violation;
2.4(2) the history of past violations;
2.5(3) the number of violations;
2.6(4) the economic benefit gained by the person by allowing or committing the
2.7violation; and
2.8(5) other factors as justice may require, if the commissioner specifically identifies
2.9the additional factors in the commissioner's order.
2.10(b) For a second or subsequent violation, the commissioner shall, in determining the
2.11amount or requirements of a penalty, consider:
2.12(1) the factors in paragraph (a);
2.13(2) the similarity of the most recent previous violation and the violation to be
2.14penalized;
2.15(3) the time elapsed since the last violation;
2.16(4) the number of previous violations; and
2.17(5) the response of the person to the most recent previous violation identified.
2.18 Subd. 3. Corrective order. (a) The commissioner may issue an order requiring the
2.19violations cited in the order to be corrected within the time period specified in the order.
2.20Corrective orders may require repair, restoration, replacement, and monetary restitution as
2.21determined by the commissioner.
2.22(b) The person to whom the order was issued shall provide information to the
2.23commissioner before the 31st day after the order was received demonstrating that the
2.24violation has been corrected or that the person has developed a corrective plan. The
2.25commissioner shall determine whether the violation has been corrected or whether the
2.26corrective plan is acceptable and notify the person to whom the order was issued of the
2.27commissioner's determination.
2.28 Subd. 4. Penalty. (a) Except as provided in paragraph (c), if the commissioner
2.29determines that the violation has been corrected or the person to whom the order was
2.30issued has developed a corrective plan acceptable to the commissioner, the monetary
2.31penalty may be forgiven in whole or in part.
2.32(b) Unless the person requests review of the order under subdivision 5 before the
2.33monetary penalty is due, the penalty in the order is due and payable on the 31st day after
2.34the order was received.
2.35(c) For repeated or serious violations, the commissioner may issue an order with a
2.36monetary penalty that shall not be forgiven after the corrective action is taken.
3.1(d) Interest at the rate established in section 549.09 begins to accrue on penalties
3.2under this subdivision on the 31st day after the order with the penalty was received.
3.3 Subd. 5. Expedited administrative hearing. (a) Within 30 days after receiving an
3.4order, the person to whom the order was issued may request an expedited hearing, using
3.5the procedures adopted under section 14.51, to review the commissioner's action. The
3.6hearing request must specifically state the reasons for seeking review of the order. The
3.7person to whom the order was issued and the commissioner are the parties to the expedited
3.8hearing. The commissioner must notify the person to whom the order was issued of
3.9the time and place of the hearing at least 15 days before the hearing. The expedited
3.10hearing must be held within 30 days after a request for hearing has been filed with the
3.11commissioner unless the parties agree to a later date.
3.12(b) All written arguments must be submitted within ten days following the close
3.13of the hearing. The hearing shall be conducted according to rules adopted under section
3.1414.51, as modified by this subdivision. The Office of Administrative Hearings may,
3.15in consultation with the commissioner of natural resources, adopt rules specifically
3.16applicable to cases under this section.
3.17(c) The administrative law judge shall issue a report making recommendations about
3.18the commissioner's action to the commissioner within 30 days following the close of the
3.19record. The administrative law judge may not recommend a change in the amount of
3.20the proposed penalty or corrective order unless the administrative law judge determines
3.21that, based on the factors in subdivision 2, the monetary penalty or corrective order is
3.22unreasonable.
3.23(d) If the administrative law judge makes a finding that the hearing was requested
3.24solely for purposes of delay or that the hearing request was frivolous, the commissioner
3.25may add to the amount of the penalty the costs charged to the Department of Natural
3.26Resources by the Office of Administrative Hearings for the hearing.
3.27(e) If the administrative law judge issues a report that recommends dismissal of
3.28the order assessing the administrative penalty, the commissioner must refund the costs
3.29charged to the person receiving the order by the Office of Administrative Hearings for
3.30the hearing and reasonable and necessary attorney fees incurred for the hearing. For
3.31purposes of this paragraph, the administrative law judge may recommend attorney fees to
3.32be refunded, not to exceed the amount of the penalty order.
3.33(f) If a hearing has been held, the commissioner may not issue a final order until at
3.34least five days after receipt of the report of the administrative law judge. The person to
3.35whom the order was issued may, within those five days, comment to the commissioner
4.1on the recommendations and the commissioner must consider the comments. The final
4.2order may be appealed according to sections 14.63 to 14.69.
4.3(g) If a hearing has been held and a final order issued by the commissioner, the penalty
4.4must be paid within 30 days after the date the final order is received and the corrective
4.5action must be completed within the time period specified by the final order, unless review
4.6of the final order is requested under sections 14.63 to 14.69. If review is not requested or the
4.7order is reviewed and upheld, the amount due is the penalty, together with interest accruing
4.8from 31 days after the original order was received at the rate established in section 549.09.
4.9 Subd. 6. Alternative dispute resolution. In addition to review under subdivision
4.105, the commissioner may enter into mediation or other alternative dispute resolution
4.11concerning an order issued under this section if the commissioner and the person to whom
4.12the order was issued both agree to mediation or other alternative dispute resolution.
4.13 Subd. 7. Enforcement. (a) The attorney general may proceed on behalf of the state
4.14to enforce penalties that are due and payable under this section in any manner provided by
4.15law for the collection of debts.
4.16(b) The attorney general may petition the district court to file the administrative
4.17order as an order of the court. At any court hearing, the only issues parties may contest are
4.18procedural and notice issues. Once entered, the administrative order may be enforced in
4.19the same manner as a final judgment of the district court.
4.20(c) If a person fails to pay the penalty or comply with a corrective order, the attorney
4.21general may bring a civil action in district court seeking payment of the penalties,
4.22injunctive relief, or other appropriate relief including monetary damages, attorney fees,
4.23costs, and interest.
4.24 Subd. 8. Revocation and suspension of permit, license, or registration. If a person
4.25fails to pay a penalty owed under this section, the commissioner may revoke or refuse to
4.26reissue or renew the related permit, license, or registration issued by the commissioner.
4.27 Subd. 9. Cumulative remedy. The authority of the commissioner to issue a
4.28corrective order assessing penalties is in addition to other remedies available under statutory
4.29or common law, except that the state may not seek civil penalties under any other provision
4.30of law for the violations covered by the administrative penalty order. The payment of a
4.31penalty does not preclude the use of other enforcement provisions, under which penalties
4.32are not assessed, in connection with the violation for which the penalty was assessed.
4.33 Sec. 3. [103G.254] RECOVERY OF LITIGATION COSTS AND EXPENSES.
4.34In any judicial action brought by the attorney general for civil penalties, injunctive
4.35relief, or an action to compel performance under section 103G.253, if the state finally
5.1prevails and if the proven violation was willful, the state, in addition to other penalties
5.2provided by law, may be allowed an amount determined by the court to be the reasonable
5.3value of all or part of the litigation expenses incurred by the state. In determining the
5.4amount of the litigation expenses to be allowed, the court shall give consideration to the
5.5economic circumstances of the defendant.
5.6 Sec. 4. IMPLEMENTATION PLAN; RULEMAKING EXEMPTION.
5.7The commissioner of natural resources shall prepare a plan to implement the
5.8administrative penalty order according to Minnesota Statutes, sections 103G.252 to
5.9103G.254. The commissioner shall provide a 30-day period for public comment on the
5.10plan. The plan must be finalized by December 31, 2013. The plan is exempt from the
5.11rulemaking procedures under Minnesota Statutes, chapter 14, and Minnesota Statutes,
5.12section 14.386, does not apply.
