March 2nd, 2014
The Minesota Pollution Control Agency (MPCA) is in charge of organizing the three rulemakings mandated by last year’s silica sand bill, and it’s really not that complicated — narrow specific issues. From the Session Law, here’s what they’re supposed to do.
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.
Do notice that each directive for rulemaking says that “The rulemaking is exempt from Minnesota Statutes, section 14.125.“ That’s code words for “take your time, we’re in no hurry to see anything accomplished. Dawdle, go around in circles, fall down, and get lost along the way…” Folks, that’s just what we’re experiencing in this rulemaking process, molasses on a cold day in hell.
Initially, the MPCA resisted forming an Advisory Committee. Those of us who’ve participated in rulemaking before know that the Advisory Committee is where it happens, where you can have some meaningful input, because in the world of rulemaking, you can’t adopt a rule that is substantially different than that offered for comment by the agency. Therefore has to happen at the draft stage, before the agency releases it. But this MPCA is the same MPCA that worked very hard to avoid having a Citizen’s Advisory Committee, despite it being expressly authorized by statute. Once more, with feeling:
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.
MPCA staff’s report to the EQB stated inexplicably that they were “confused,” claiming ignorance of how rulemakign works and the impact of comments at this stage:
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.
As I said in comments prior to, during, and after the meeting, “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.
Here’s how the Dept. of Health explains the role of Advisory Committee members (link to their entire Rulemaking Manual below, it could be helpful for those stuck in this molasses process, yes this is about Health, but the intrinsic role and function of an Advisory Committee remains the same):
- Advice, not voting. The role of the Advisory Committee is to advise [the agency] on the development of these rules. [The agency] looks to the Advisory Committee for its expertise in these regulations.] The Advisory Committee does not have voting authority on what will go in the rules; the [Commissioner] makes any final decisions. The Advisory Committee does, however, have the power of persuasion and the power that comes from having the information needed to make these rules workable.
- Represent your interest group. Each of you likely represents an interest group in one way or another, be it [for example: small hospitals or large hospitals, urban hospitals or rural hospitals, large health care organizations or small health care organizations, consumers, hospital administrators, hospital accounting departments, hospital professional organizations], and so on. We encourage you to maintain communication with others who share your interests.
- Consensus. Our goal is to achieve consensus on as many issues as possible. Even where there is disagreement on some issues, we hope to make the rules as workable as possible for those who have to comply with them.
- Reasonable comments and suggestions. We will carefully consider all comments and suggestions about the rules. You will have the most success persuading [the agency] with your comments and suggestions if you give reasons along the same lines as how [the agency] has to justify the need for and reasonableness of everything in the rules.
And now, about ten months after the legislation was passed, TEN MONTHS, rulemaking is flailing about, there is no language proposed, and staff has no language. What’s going on? My money is on one path — that they’ll stall and bamboozle with bullshit and take in a few general comments, and then hand the draft rule that they want, without any draft, without any review by the Committee, to the agency to issue a SONAR, Notice and put out for public comment, totally blowing off the Citizens Advisory Committee.
Whatever their intent, the impact is that tempest is a fugiting and there’s nothing to show for the time slowly ticking away.
Why would I say such a thing? First, again, there is no draft language for the Committee to review. None, nada, nothing for any of the three rules they’re charged with drafting. So what exactly are they doing?
Second, they are for sure bamboozling them with bullshit, because look what’s posted as materials, from the Silica Sand Advisory Panel page:
Resources for the panel and the public
- Air monitoring data for industrial sand mine/processing plants in Wisconsin
- Report on Silica Sand (2013)
- [DRAFT] Tools to assist local governments in planning for and regulating silica sand projects
- Charting your course – Basic rulemaking
- MDNR – Silica sand rulemaking: reclamation
- Minn. Rules 4410 – Environmental Review
- Minn. Rules 7009 – Minnesota Ambient Air Quality Standards
- Minnesota Rulemaking Manual and Seminar
- MPCA rulemaking for silica sand projects
- Overview of Minnesota formal rulemaking process
- Air monitoring at Minnesota silica sand facilities
- General geospatial information on natural resources
- Silica sand mining and health
- Federal – Compliance Assurance Monitoring
- Federal – State Implementation Plan for Minnesota (SIP)
- Minnesota – Emission Inventory Requirements
- Minnesota – Performance Testing
Environmental Quality Board
Air: State and federal
- Federal – Ambient Air Quality Standards
- Minnesota – Ambient Air Quality Standards
- Definitions and Abbreviations
- Federal – Compliance Assurance Monitoring
- Federal – State Implementation Plan for Minnesota (SIP)
- Minnesota – Emission Inventory Requirements
- Minnesota – Performance Testing
- Federal – Standards of Performance for Calciners and Dryers in Mineral Industries
- Federal – Standards of Performance for Nonmetallic Mineral Processing Plants
- Minnesota – Adopts and incorporates by reference 40 CFR pt. 60, subp. OOO
- Minnesota – Direct Heating Fossil-Fuel-Burning Equipment
- Minnesota – Emission Standards for Visible Air Contaminants
- Minnesota – Fugitive Emissions
- Minnesota – Indirect Heating Fossil-Fuel-Burning Equipment
- Minnesota – Industrial Process Equipment
- Federal – “Title V / Part 70″ Stationary Source Permit Program
- Federal – New Source Review Program
- Minnesota Air Permit Program
OH. MY. DOG.
Now honestly, can you look at that without getting dizzy? If all that crap doesn’t have Committee members, most or all of whom have no experience in rulemaking, ready to commit hari-kari, or go utterly insane, or both…
MPCA, just get to the rulemaking, give the public the draft language, so we can tell you what we think about it. Show us you’re not acting in bad faith.
Feel free to let them know what you think, what you expect of the rulemaking process, and what you want to see for the draft rules:
And in the alternative, methinks we’d best come up with some specific draft language now, if not sooner. Show ‘em how it’s supposed to be done.
February 4th, 2014
It’s caucus day today, and right now what’s humming around in my brain is the need for beefed up regulation of train traffic. There’s the exploding Bakken oil tankers, due to the increased volativity of the crude and need for degasification, and there’s the delay of Amtrak trains through North Dakota, putting people on BUSSES, because of the increased traffic. These are examples of how the rail system is NOT working.
Here are a few resolutions I’m putting in:
I’ve got a list of resolutions, growing by the minute:
- Ban use of polyacrylamide for mining processing in Minnesota (used in silica sand mining, also proposed for use at PolyMet).
- In the interest of public safety, Bakken crude oil must be properly tested, characterized, classified, and where appropriate sufficiently degasified prior to loading onto rail or truck tanker cars, or into pipelines, to identify potential hazards and degasified to lessen volativity prior to transport.
- Amtrak trains must be given priority over freight traffic, particularly through North Dakota, where currently trains are significantly delayed (hours), or passengers are put on busses to go around the oil train traffic.
- AMEND – delete garbage from definition of “renewable” energy sources:
216B.1691 RENEWABLE ENERGY OBJECTIVES.
(a) Unless otherwise specified in law, “eligible energy technology” means an energy technology that generates electricity from the following renewable energy sources:
(3) hydroelectric with a capacity of less than 100 megawatts;
(4) hydrogen, provided that after January 1, 2010, the hydrogen must be generated from the resources listed in this paragraph; or
(5) biomass, which includes, without limitation, landfill gas; an anaerobic digester system; the predominantly organic components of wastewater effluent, sludge, or related by-products from publicly owned treatment works, but not including incineration of wastewater sludge to produce electricity; and an energy recovery facility used to capture the heat value of mixed municipal solid waste or refuse-derived fuel from mixed municipal solid waste as a primary fuel.
- Repeal 216B.1694 INNOVATIVE ENERGY PROJECT.
The Excelsior Energy Mesaba Project was rejected by the Minnesota Public Utilities Commission and the statute should be repealed.
- Develop publicly available state registry of animal abusers, including those convicted of abuse, neglect and hoarding, identifying names, current address and address at time of conviction of those convicted, dates and charges, resolution, and contact information for probation officer.
January 16th, 2014
For quite a while now we’ve been wrestling with how to assure “financial assurance” so that silica sand operators won’t shut down and leave the area looking like the moonscape. Obviously this was not done successfully on the Range where mines closed, leaving barren piles, abandoned buildings and sites, and pits overfilling with water, we need to learn from that mess. So we’ve been talking about it, even to the extent of getting reclamation legislation, which in my mind is in large part to assure “financial assurance” to enable the ability to do reclamation:
Add to that the DNR head’s very scary statements regarding PolyMet mining:
“If we ever get to a point in time where (pollution from the PolyMet site) can’t be handled, (it’ll be) because humanity changed, because World War Z came along and zombies took over. As long as there are people, there’ll be people to fix it,” Landwehr said.
The people who destroyed it are the ones who need to fix it, not the “As long as there are people, there’ll be people to fix it…”
So how to do it? Well, it turns out there is foundational language already in the rules for landfills — something we can use as a starting point. DOH! Why is this just coming out now, in the EQB’s DRAFT? Yes, it’s good to know (sorry, folks, I do not know what’s in every rule in the state) (and apparently I’m not the only one!), but shouldn’t this have been brought out early on when all the local governments started wrestling with this?
|SOLID WASTE MANAGEMENT FACILITIES
|7035.2685||COST ESTIMATES FOR CLOSURE, POSTCLOSURE CARE, AND CORRECTIVE ACTION.|
|7035.2695||FINANCIAL ASSURANCES REQUIRED.|
|7035.2715||TRUST FUND FOR UNRELATED SITES.|
|7035.2720||DEDICATED LONG-TERM CARE TRUST FUNDS.|
|7035.2725||SURETY BOND GUARANTEEING PAYMENT INTO A TRUST FUND.|
|7035.2735||SURETY BOND GUARANTEEING PERFORMANCE.|
|7035.2745||LETTER OF CREDIT.|
|7035.2751||PROPOSALS FOR NONSTANDARDIZED FINANCIAL ASSURANCE MECHANISMS; FACILITIES INITIALLY PERMITTED AFTER JANUARY 1, 2011.|
|7035.2755||USE OF MULTIPLE FINANCIAL ASSURANCE MECHANISMS.|
|7035.2765||USE OF FINANCIAL ASSURANCE MECHANISM FOR MULTIPLE FACILITIES.|
|7035.2775||RELEASE OF OWNER OR OPERATOR FROM FINANCIAL REQUIREMENTS.|
|7035.2785||USE OF A SINGLE MECHANISM FOR FINANCIAL ASSURANCE OF CORRECTIVE ACTION, CLOSURE, AND POSTCLOSURE CARE.|
|7035.2795||INCAPACITY OF OWNERS OR OPERATORS, GUARANTORS, OR FINANCIAL INSTITUTIONS.|
|7035.2805||LANGUAGE REQUIRED FOR FINANCIAL INSTRUMENTS.|
January 9th, 2014
A warm afternoon of Standards & Criteria review…
Free range discussion and comment prep…
Refreshments available at the Co-op’s goodie counter…
Who could ask for more!!!
January 16, 2014, from 3:30 – 6 p.m.
417 Main Street, Red Wing
Join us at Riverbend Market Co-op’s meeting room downstairs for some encouragement, grab some Riverbend refreshments, spread out over tables, and get to it writing comments. I’ll have a big extension cord and strip for those of us with fading batteries. Comments are due January 27, 2014, so we’ve got some time…
Here’s the link to the draft to be reviewed — bring a copy to mark up:
The public comment period has been extended to January 27, 2014.
Comments can be sent via e-mail to: firstname.lastname@example.org
Be there or be square!
Thursday, January 6th, from 3:30-6 p.m.
Special thanks to Riverbend Market Co-op for use of their space — or should I say “our” space? Stop in and shop! Become a member, it’s easy!
January 9th, 2014
I don’t know much about this, but I’m learning. What I do know, what I’ve learned, is that it CAN happen here… it has. That is, we’ve had train derailments here in Red Wing, across the river in Hager City, and down river in Winona. Where there are trains, there are derailments (I’ve not forgotten about low-bridging that Monticello nuclear rotor in downtown Minneapolis in … 1997?) So what’s to prevent a Lac Megantic or Casselton, ND explosion from happening here?
Where there are trains there are risks, but are we aware of the risks? Are there new risks? Are we operating on an outmoded understanding of the risks?
In today’s Washington Post:
If a derailment and explosion the magnitude of the one in Casselton, ND were to happen here in Red Wing, what would that mean? If one the magnitude of Lac Megantic were to happen here, what would that mean?
(imagine a graphic illustration here — I’m working on it)
Where are these trains coming from, and where are they going? I found this great map, it’s set for Bakken oil, and when you go to this link and there’s a map, look off to the right, and you’ll see destinations. Click on one of the regions and you’ll see that for the middle of the US, you get Hayti, MO and others. For the East Coast, Delaware City refinery shows up. GREAT MAP!
Are we prepared for Bakken oil trains running through town? What about increasing knowledge about explodability of oil tanker cars? What about the discovery that Bakken oil being shipped is more volatile than regular crude oil? What are we doing to address these new risks? Even the federal DOT admits that this is not your father’s crude oil:
The Pipeline and Hazardous Materials Safety Administration (PHMSA) is issuing this safety alert to notify the general public, emergency responders and shippers and carriers that recent derailments and resulting fires indicate that the type of crude oil being transported from the Bakken region may be more flammable than traditional heavy crude oil.
Here’s the full 1_2_14 DOT Rail_Safety_Alert
Here’s another issue with Bakken oil, that of increased corrosion:
Of note in that article is that “Montreal, Maine and Atlantic said last week it was forced to file for bankruptcy because of potential liability in the [Lac Megantic] crash.” Great. So they’re subjecting us to these risks, and derailments and explosions can and do happen, and now they’re ducking financial responsibility? Not acceptable.
Now for photos of wrecks:
This week’s train derailment near Plaster Rock, New Brunswick:
And one in Wisconsin last March:
A photo of the staging area for Bakken oil tankers headed for the Delaware City refinery, just 5 miles north of our home in Port Penn, DE. This parking lot is 14 tracks deep at its deepest, if you go to google earth, look for Delaware City and on the NW edge of town, you’ll see the refinery, and go to the northwest edge, where the refinery turns into corn fields, and there’s the parking lot. It used to be this large oval, like a huge racetrack, and now there’s this new one:
Some examples of derailments from the Red Wing area.
An article I found says this one below was a westbound train, and that the cars were empty. Good! But there are a lot of eastbound full ones coming through these days…
This one is from February, 2012:
Directly across the river in Hager City, WI, another one in 2012, found on the City of Red Wing site:
And another derailment in Hager City triggered an evacuation of the town!
Back in 2008, another report of a derailment in Winona, with tankers going off into the Mississippi:
2 trains collide in Winona County; cars fall into river A 1,000-gallon liquid propane tank near the tracks was leaking, and nitrogen was leaking from one of the trains that derailed in the 5:30 a.m. crash near Dresbach, officials say. Two freight trains collided head-on before dawn this morning in extreme southeastern Minnesota, sending some of the derailed cars into the Mississippi River, authorities said. A 1,000-gallon liquid propane tank stationed next to the tracks in Dresbach and used to heat a switching station was leaking, as was liquid nitrogen from one of the trains, said spokesman Dave Belz of Winona County Emergency Management. The nitrogen is not considered a health hazard, Belz said, but the propane leak has prompted officials to evacuate the 15 residents from a nearby veterans home “because of wind shifts.” Two train crew members were taken to a hospital but only as a precaution, said Mike LoVecchio, a spokesman for Calgary-based Canadian Pacific, the railway that operates the two trains. “We are not counting them as injuries.” LoVecchio said 18 or 19 cars derailed. Authorities on the scene said the number was closer to 40. Emergency Management Deputy Director Joyce Tlougan, said, one of the engines is in the river, “not totally submerged, but it is in there.” The north-south tracks run parallel to the river and Interstate Hwy. 90, where traffic continued to flow normally, Belz said. The tracks are about 20 to 30 feet up a slight embankment from the river, he said. At that spot, LoVecchio said, there is a siding (tracks that act as a passing lane). “How these two trains made contact with each other is obviously part of the investigation,” he said. “We will be doing a comprehensive investigation and cooperating fully with the investigating authorities.” La Crescent Fire Chief Bernie Buehler, the incident commander, said one train coming from Portage, Wis., was pulling 100 cars, and the other was coming from La Crescent, Minn., with 15 cars. Belz said this is the first crash of this type “that I’m aware of” in his 30 years in law enforcement in the area. With the arrival of daybreak, Belz said, emergency personnel turned their immediate attention to containing the leaks and retrieving the cars in the river. Dresbach is about 150 miles southeast of the Twin Cities. The Associated Press contributed to this report. Paul Walsh • 612-673-4482
And back to Red Wing, here’s a report of another derailed train from February, 1999.