okla-quake_wide-df42df8a84055fe96e5682321e4b5cc937030c06-s1500-c85BIG earthquake in Oklahoma today, and are we surprised?   Naaaaah…  Here’s the info, including location, economic impacts, etc., from USGS:

CLICK HERE: USGS Pawnee, OK Earthquake Page

In the news, and they’re making the link between gas wells and earthquakes:

Earthquake Rattles Oklahoma; One Of Strongest Recorded In State

Earthquake Shakes Swath of Country Where Wells Have Drawn Scrutiny

Earthquake rattles Oklahoma, six neighboring states

VIDEO: Dogs react to Oklahoma earthquake

IMPORTANT: The Oklahoma Corporation Commission takes action!

Oklahoma Corporation Commission orders disposal wells shut down near quake epicenter

Consider why fracking and injection of frac waste is allowed…  Why is a pipeline route through earthquake prone area considered?  The impacts of fracking and waste injection is one thing they do NOT want to acknowledge.  From KOTV in June 2014 — USGS should know better:


And when searching, look at this — can you believe:

OGS: Earthquake risk low for proposed disposal wells in Yukon

When the topic of earthquakes and other seismic activity comes up, I always recommend the “bible” of injection into the earth, because this is not a new phenomenon and we’re making this happen, putting people and our water supply at risk:

Gas Migration: Events Preceding Earthquakes, by Khilyuk

When I got this book, it was an older edition, though pricey, but with patience, it could be had for $20.  For about a decade now I’ve been recommending this book, and look at the price now.  Out of bounds for most of us… funny how that works.  I’d guess a library could find a copy, and here it is on google books, “only” $224.00 (GRRRRRRRRRR):

Gas migration: events preceding earthquakes

Elisa Young, a cohort in Ohio, has lived in the epicenter of frack injection triggered earthquakes around Youngstown.  There, after so many earthquakes, the causal connection was acknowledged, but it took too long.  Here’s a Legalectric post from four years ago:

Ohio Earthquakes & Fracking

And now for a complicated sidebar.  Elisa Young asked today how to get the state and federal agencies to communicate about this problem and take action.  How?  Damned if I know — impacts of injecting gas and liquids into the earth are well known.  Yet federal and state agencies are in serious state of denial.  And it’s very difficult at times to get the agencies to show up, to do their job.  It’s even difficult to get their analysis, their own reports, into project permit dockets.  I get really tired of this…

How to get them to weigh in?  In Public Utilities Commission dockets in Minnesota, I’ve had a hard time with state agencies, initially.  For example, in Excelsior Energy’s Mesaba Project docket, there was a claim that coal gasification was “clean” yet the Minnesota Pollution Agency had not, and would not, weigh in on the emissions projected for this coal gasification power plant.  WHAT?  We pushed and pushed, threatened to subpoena, raised this at a PUC meeting, and finally, the PUC issued an Order and wrote a letter to the PCA Commissioner requesting the MPCA lend its expertise to the Commission and show up!

3114835_PUC Letter to MPCA

And a Legalectric post about later subpoena requests on the Mesaba Project:

FOIAs to feds, subpoena requests to state agencies

And subpoena and Data Practices Act requests in that same docket for financial information:

Subpoena Request IRR September 7, 2006

IRRB Data Practices Act Request

Letter to IRRRB June 19, 2006

Letter to IRRRB July 26, 2006

I’ve had similar issues in transmission dockets, where the DOT and DNR would file Comments on environmental scoping, and/or the Draft Environmental Impact Statement, but those Comments would only be sent to the Dept. of Commerce, and were not posted in the PUC docket, so parties and the public had no idea the concerns the agencies may have.  NOT OK.  During the first CapX 2020 routing docket, Brookings 08-1474, it was so egregious, I asked the DOT General Counsel who was present to make comments at the public hearing, and to submit a copy for the routing docket record (the route ultimately turned on DOT easements and that DOT would not allow the transmission line to be built over those easements).   The matter was remanded by the Commission for rehearing based on their routing quandry.  Shortly after, on behalf of No CapX 2020, I subpoenaed testimony and Comments.

Subpoena requests sent! (DOT & DNR)

Subpoena plot thickens (Agreement to testify)

Subpoena request for US Fish & Wildlife

Subpoena Denied(tried to get USFWS, didn’t work.  USFWS Comments had been hidden in EIS Comments)

Notes from Friday

In the Goodhue Wind docket (permit granted, and then much later revoked!):

Goodhue Wind Truth – Subpoena Requests for Bjorklund and Bull

ALJ Sheehy’s Letter to Overland – Denial of Subpoena Requests

Goodhue Wind Docket … REFILE!

When this was attempted in the Sandpiper Pipeline docket, the ALJ denied the Subpoena request.  WHAT?

And an interesting back and forth with a hearing officer about getting information into the record and whether it would take a subpoena to get it, where ultimately, the ALJ agreed that the primary documents would be entered in the record:

NRG in hiding at DNREC hearing

And here’s an aside, use of subpoena regarding Xcel’s plans for coal, served by NY’s A.G.:

New York A.G. serves Xcel with subpoena



AAAAAARGH, how did I miss this?  Though I couldn’t have afforded to attend…

The Sinkhole Conference: Multidisciplinary Conference on Sinkholes and the Engineering and Environmental Impacts of Karst

Friday afternoon is the Karst Field Trip!!!

And it’s in the Post Bulletin too:

What you don’t know about sinkholes can hurt you

I’m remembering how important karst was in the nuclear waste mess, because the “alternate waste mandate” required nuclear waste be sited “in Goodhue County” but Goodhue County is 1/2 active karst, and the rest “transition” or “covered” karst.  Karst was the major factor that lead to the sites in Florence Township, based on the USGS maps at the time.  This map above would rule out Goodhue County!

It’s a conference week!  Tuesday and Wednesday, it was an asbestos-like fiber conference about health and environmental impacts.  Alan’s interest, and I had piles of work to do, good environment at the EPA library!






Male Eastern Bluebird (Sialia sialis) on a stump with a green background

Many thanks to the “little birdie” who brought this decades old report to my attention:

Rulemaking – Legislative Auditor-93-04-1

Yes, this is a report from the Minnesota Legislative Auditor from 1993, and if you read it, you’ll see little has changed is so many years…  The issues raised are issues we’ve been raising in the Public Utilities Commission rulemaking for Minn. R. Ch. 7849 and 7850 (Certificate of Need and Siting/Routing).  AAAAAAAAAAAACK!

For example, from the Summary:

One unintended consequence of negotiated rulemaking is that the public participation process mandated by the APA has become less important because the content of rules is largely decided during the negotiation phase. As a result, by the time a rule is formally published in the State Register with a request for public comments, an informal agreement between an agency and parties to the negotiation may already have been reached. Those groups and individuals not consulted often are left out. Nearly 70 percent of the affected parties who responded to our survey said they hear about rules too late for their input to make a difference. People who live outside the Twin Cities area were much more likely to feel unable to influence the rulemaking process and to express dissatisfaction with agency rulemaking performance generally.

For example, in the PUC Rulemaking for 7849 and 7850 (PUC Docket 12-1246), it’s been an over two-year-long process, and few are showing up anymore.  We weigh in, some things are taken into account in the drafts, and then that disappears from the next draft.  How can it feel like anything but a colossal waste of time?  Yet if we weren’t there, the utilities would get everything they want.  And as with the utility Certificate of Need and Siting/Routing processes, rulemaking has the same notice and public participation problems.  It’s all the same, deja vu all over again.


… and also from the report …

Furthermore, the rule negotiation process is not part of the official rulemaking record nor subject to statutory controls or legal review that would guarantee equal access. Therefore, it can easily be dominated by those groups and organizations with more resources. In the absence of formal guidelines or standards, agency practices vary, and some agencies are better than others at obtaining broad-based input.

We also conclude that:

Does this sound familiar?

Once more with feeling:  … the rule negotiation process is not part of the official rulemaking record nor subject to statutory controls or legal review that would guarantee equal access. Therefore, it can easily be dominated by those groups and organizations with more resources.


So what is the bottom line of this report?

Therefore, we recommend that:

The Legislature should consider amending the Administrative Procedure Act to require that a “notice of regulatory action” be published in the State Register and mailed to all affected parties when an agency begins drafting a rule.

We also recommend that:

The recommendations we make are designed to revitalize the formal rulemaking process, ensure more equitable access to agencies at a time when comments can reasonably be considered, and strengthen public accountability over agency rules. We think that replacing the current “notice to solicit outside opinion,” which is published for 62 percent of all rules, with a mandatory “notice of regulatory action” will not represent an undue burden on agencies. The current notice is not widely distributed and does not contain enough information to enable interested parties to respond. Therefore, we recommend that the new notice should contain more information about the rule and the process to be used in drafting it, and that it should receive wider distribution than the current notice. A mandatory rulemaking docket, to be submitted to the Legislature and made available to the public upon request, should help the Legislature monitor rulemaking and provide better oversight.

Also, we recommend the following additional changes to the Administrative Procedure Act:

… and …

In addition to changing the APA and other statutes that govern agency rulemaking, we recommend that:

For example, they should make a greater effort to educate the public about how to receive direct information about rulemaking actions and make greater use of agency-held public hearings or widely publicized public meetings early in the rulemaking process. They should also include circulation of rule drafts and “statements of need and reasonableness” earlier and more widely among all parties affected by rules. Finally, agencies should terminate the negotiation process when it fails to make progress toward resolving issues and either proceed more quickly to an official public hearing, employ the services of a professional negotiator or mediator, or return to the Legislature for guidance.

Adopting these recommendations should shorten the informal process, broaden public input in the early stages of rulemaking, and make rules more responsive to the Legislature.






Air Permits at the MPCA!  Time to sit right down and write a Comment to the MPCA about the Titan Lansing sand processing and loading facility in North Branch.  Scroll down for the primary documents.

Send Comments, by Friday, August 28, 2015, to:

Andrew Luberda   
      email: andrew.lubera@state.mn.us
Air Quality Permits Section Industrial Division 
MN Pollution Control Agency  
520 Lafeyette Road North
St Paul MN 55155

The notice does not list an email for Luberda or a MPCA comment url, so I called him up to get his email.  I asked if they’d correct this omission, and got a non-responsive response.

Tiller Sand transloading facility… If you recall, this was that Tiller Sand facility that they built and started operating WITHOUT ANY PERMITS, just went ahead and did it.  That said, their history isn’t exactly as pristine as… well… as pristine as frac sand!

January 25, 2013 – Tiller Corp. is penalized for air-quality violations

November 20, 2014 – Tiller Corporation penalized for air-quality violations

Then it was sold to Titan Lansing in November 2014 (see comments about air quality and permits in this article).

In the Chisago County Press here’s the poop about the MPCA Air Permit and info on how to file a Comment, great info about various Comment and administrative options (not that the MPCA ever does contested cases):

Comments sought to amend air quality permit

Here’s the scoop from the Minnesota Pollution Control Agency:

Open for public comment through Friday, August 28, 2015.  Send Comments to:

Andrew Luberda   
      email: andrew.lubera@state.mn.us
Air Quality Permits Section Industrial Division 
MN Pollution Control Agency  
520 Lafeyette Road North
St Paul MN 55155


Today was the Save the Bluffs sponsored “Conference for Frac Sand Activists: Networking, Learning, Advocating.”  Katie Himanga did a tremendous job organizing this, great turnout, and I came back energized!

Here’s my presentation on “Opportunities for Legal Intervention” (as opposed to not so legal??? hmmmmm):

Overland Handout

LOBBYISTS ‘R’ US (this is OLD!)

People were VERY interested in both Intervention in a permitting and proceeding and in Application for a change in Zoning Ordinance.  Both of these are important because they put “the people” in the driver’s seat, through becoming a party in the proceeding, or through becoming the applicant.


Intervention in a permitting proceeding is authorized under Minn. Stat. 116B.09, Subd. 1.  This is useful where a project has been proposed and applied for, because it gives you a seat at the table:

Here’s an example where a party has intervened, in this case in a City of Minneapolis permitting proceeding:

Friends of the Riverfront, et al., Relators, vs. DeLaSalle High School, Respondent, City of Minneapolis, Respondent

Here’s an example of a simple Petition (I’d recommend adding more narrative and supporting documents):

City of Scandia – Notice of Intervention (Final – 7-21-09)


Pretty much anyone can apply for a Zoning Ordinance change.  It was done to get the Goodhue County Wind Ordinance moving, and got a county Wind Study Committee started under the Planning Advisory Committee to put the Ordinance together.  The same thing happened with Silica Sand mining, a Silica Sand study committee was formed, but it wasn’t utilized in this instance nearly as much as it was for the Wind Ordinance.

Here’s the Application for Goodhue County, which also explains how the process works, what to do, etc.  It’s pretty simple, apply and the process begins slowly grinding forward.  Most Counties will have their application online:

Goodhue County_2015 Change of Zone_201501090914372783

Here’s the Save the Bluff’s Petition for a Goodhue County Zoning change that got StB a seat at the table:

Binder-Zoning Change Application-FINAL

Here are a few of posts from PAC and County Board meetings during that time as it slowly went through the county process:

Silica Sand Mining 1,000 ft setback from Public Waters – August 19th, 2014

Monday 6p – Silica sand at Goodhue PAC Meeting  -November 16th, 2013

Most interesting Goodhue PAC meeting – August 20th, 2013

Goodhue County extends moratorium – August 6th, 2013

Save the Bluffs files Application for Zoning Ordinance Change – July 15th, 2013