September 21st, 2013
Wednesday was the EQB’s monthly meeting, and this one was all about frac sand mining. There are TWO things going on here. The EQB Standards and Criteria, which is not a rulemaking, and then four mandatory rulemaking tasks, two at EQB, and one each at DNR and MPCA. The EQB was supposed to deal with, at some level, both of these assignments.
One is the model Standards and Criteria, “serving suggestions” to be adopted by local government, and the other is four rulemaking tasks at three agencies:
Sec. 105. RULES; SILICA SAND.
(a) The commissioner of the Pollution Control Agency shall adopt rules pertaining to the control of particulate emissions from silica sand projects. The rulemaking is exempt from Minnesota Statutes, section 14.125.
(b) The commissioner of natural resources shall adopt rules pertaining to the reclamation of silica sand mines. The rulemaking is exempt from Minnesota Statutes, section 14.125.
(c) By January 1, 2014, the Department of Health shall adopt an air quality health-based value for silica sand.
(d) The Environmental Quality Board shall amend its rules for environmental review, adopted under Minnesota Statutes, chapter 116D, for silica sand mining and processing to take into account the increased activity in the state and concerns over the size of specific operations. The Environmental Quality Board shall consider whether
the requirements of Minnesota Statutes, section 116C.991, should remain part of the environmental review requirements for silica sand and whether the requirements should be different for different geographic areas of the state. The rulemaking is exempt from Minnesota Statutes, section 14.125.
Both require public input, both have not had enough! It’s our job to make that happen, to get local governments, grassroots groups, and members of the public hollering, kicking and screaming with specific suggestions for developing the protections for us, our communities and natural resources of the areas affected by frac sand mining.
The EQB staff proposed 500 foot setbacks from homes – here’s what that would look like at the capitol (given to me by Donna Buckbee, made by Kelly Stanage!) with the setbacks proposed:
Here’s the EQB packet:
As you can see from my Sept 7 comments above, I was not at all happy with staff Jeff Smyser’s comments about an Advisory Committee, from what he said, he was either clueless, misdirecting/misinforming the EQB, or both.
From the packet, p. 6 of 34:
C. Rulemaking: The Minnesota Legislature also directed the EQB to amend the environmental review rules (Minn. Rules 4410) for silica sand mining and processing to take into account the increased activity in the state and concerns over the size of specific operations. The request for comments regarding the potential rulemaking ended on August 23, 2013. EQB staff received 23 comments. These comments have been documented and routed to agency staff for review.
i. Staff requests Board direction on a question that arose at the August 2nd public meetings.
Members of the public expressed interest in a citizen committee to participate in the rulemaking. It is not clear how a citizen committee would affect the rulemaking process laid out in Minn. Statutes Ch. 14. A multi-step public review and comment process is already required in that statute and we just completed the preliminary step. Rulemaking is essentially creating law: Minnesota Rules have the force and effect of law. Rulemaking is a lengthy process, averaging about two years.
“It is not clear…” NO NO NO! For someone in Smyser’s position, there’s no excuse for statements like this. The statute is very clear about the agencies’ authority to appoint an Advisory Committees and how an advisory committee it would affect rulemaking – it improves the output by providing input before the draft rule is issued:
Each agency may also appoint committees to comment, before publication of a notice of intent to adopt or a notice of hearing, on the subject matter of a possible rulemaking under active consideration within the agency.
Not good… and WORSE when Smyser repeated that line at the meeting, I almost got up and hollered, but I got a chance to make a comment during the meeting, so I waited until then. Earth to EQB, Advisory Committees are common, the norm, in rulemaking proceedings, so get with it!! You’ve got a rulemaking mandate and you need to get moving on it.
The staff had asked for “direction” on a rulemaking committee in their comments in the packet, and the Board never did say anything about it, no discussion and no recommendation.
The meeting got off to a hilarious start, for me anyway! I’d found a table in the back, a good observation location, and plopped my stuff down and wandered around a bit, signing up to speak, and a bit of meet & greet. When I went back, who do you think had taken up the other three spots at my table? Yes, the flacks from the Industrial Sand Council (who as lobbyists are listed under Aggregate Ready Mix Ass.) Peder Larson, _______, and…. (drum roll here!) Dennis Egan right next to me!
Grumpy? NO ONE was happy with the outcome of that meeting. And that’s not only how it was from our table at the back of the room! Egan is just doing what lobbyists, and really all of us in the room, were doing — advocating for our interests. The good news is that now it’s clear where Egan’s interests are. Disclosure is everything, and failure to disclose was his problem.
The first Industrial Sand speaker was dreadful, going on and on, naming all the folks on EQB that they’d met with, lording it over about their special access to these officials — time to exercise some scripting because this guy clearly does NOT understand the impact of his statements alluding to exertions of their influence (ex parte? Unfortunately I can’t find rules about that for EQB), and they’re really pissing off folks in the audience, and probably making their EQB targets uncomfortable too. If he worked for me, I’d put him on the sidelines.
After some ice breaking with Egan (I suggested that in a photo op we could strangle each other!), we did find some common ground, such as incredulous snorts over Chair Fredrickson’s asking what the deadline would be for the “second draft” of Standards and Criteria. Second draft?? Chair, the statutory deadline for finished product is October 1st. Oh well, now they’re talking about February. Bizarre, guess the statute doesn’t mean anything. Guess that also means we’re not getting to public review and comment any time soon… which means WE’D BETTER COMMENT NOW! Before they issue anything for public comment.
Egan was not testifying Wednesday, and he talked publicly only via Stephanie Hemphill, MPR:
About the EQB’s failure to meet the October 1 deadline, that was pretty much the opinion of all of us in the audience, Sen. Matt Schmit too!
Obviously more time is needed to do a good job, and the EQB’s out-of-the-gate performance left a LOT to be desired. But about that deadline, see Minnesota Session Laws, Ch. 114:
(a) By October 1, 2013, the Environmental Quality Board, in consultation with local units of government, shall develop model standards and criteria for mining, processing, and transporting silica sand. These standards and criteria may be used by local units of government in developing local ordinances. The standards and criteria shall be different for different geographic areas of the state.
So let’s get some meetings scheduled around the state, the areas of the state affected by silica sand mining, present or proposed.
And once more with feeling, there are TWO things going on here. One, the EQB Standards and Criteria, which is not a rulemaking, and then secondly, four mandatory rulemaking tasks, two at EQB, and one each at DNR and MPCA.