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:


Subd. 2.Advisory committees.

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.


CLICK HERE FOR RULES ON RULES (don’t worry, it’s not a mobius strip), 1400.2000 – 1400.2570.

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):

The Role of the Advisory Committee.

-          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



Information sources


Existing rules

Environmental Quality Board

HTML ContentMinn. Rules 4410 – Environmental ReviewExternal Link

Air: State and federal

 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.

D-R-A-F-T   L-A-N-G-U-A-G-E!

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.


Caucus day today

February 4th, 2014

Minnesotans – CLICK HERE TO Find out where to attend your precinct caucus.

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:

Subdivision 1.Definitions.

(a) Unless otherwise specified in law, “eligible energy technology” means an energy technology that generates electricity from the following renewable energy sources:
(1) solar;
(2) wind;
(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.


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.


The DNR and the DNT are tag teaming in a PR effort that is so offensive.  And in writing this, I’m reminded of my past life working at HCMC, where DNR was “Do Not Resuscitate” and DNT meant “Do Not Treat.”

Apparently the DNR has been touring Minnesota setting up the scene for the PolyMet hearings on the Environmental Impact Statement, and based on DNR handling of the public at a previous hearing.  Remember where they held a “hearing” and rather than have a public comment session, they ushered people off behind the curtain to testify to ONLY a court reporter, who took down their testimony?  WOW.  And now it appears that they’re afraid of what’s coming at the hearings Thursday and through the rest of the month.

This is looking bizarre to me:

“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.

Looks like Minnesota should put Landwehr in charge of nuclear waste!

… and the Duluth News Tribune “view” is more than a little offensive, foreshadowing in the first sentence is disgusting…  “The coming chaos” … “expected to feature busloads of high-volume opposition,” … oh, really…

When I google “PolyMet Hearings January” what is the first thing to pop up:

PolyMet backers plan bus convoy to hearing January 16

So it sounds like the big push in process is by PolyMet for “busloads of high-volume” BACKERS.

Get it right, Duluth News Tribune.  Your “Insist on civility” sounds more to me like a pre-emptive attempt to quash constitutionally protected comments and dissent!

Here are the hearing times and places:

Thursday, January 16, 2014
DECC – Duluth Entertainment Convention Center
350 Harbor Dr, Duluth, MN 55802
5:00 p.m. – open house
6:45 – 10:00 p.m. formal presentation and public comment period

Wednesday, January 22, 2014
Mesabi East High School
601 N 1st St W, Aurora, MN 55705
5:00 p.m. – open house
6:45 – 10:00 p.m. formal presentation and public comment period

Tuesday, January 28, 2014
Saint Paul RiverCentre
175 West Kellogg Blvd, Saint Paul, MN 55102
5:00 p.m. – open house
6:45 – 10:00 p.m. formal presentation and public comment period

I just sent this LTE in response to their editorial below:

Get it right, Duluth News Tribune.  Your “Insist on civility” editorial was offensive on so many levels, baiting and fear-mongering included.  Beginning with the first sentence, you foreshadow opposition to PolyMet and with “Minnesota not-so-nice” you attempt to quash it and delegitmize constitutionally protected speech.  You show fear of “busloads of high-volume opposition” but when I googled “PolyMet hearings January” the first thing to pop up is an article entitled “PolyMet backers plan bus convoy to hearing Jan. 16.”  Just who is rounding up the volatile busloads of high volume people?  An editorial like yours is irresponsible, with an impact of lighting a match and throwing gas on it.  A more responsible approach would be to urge people to exercise their right to a hearing and their right to speak their mind.  Attempts to quash speech and opinions usually has the opposite effect.

Here it is, the Duluth News Tribune editorial, with the PolyMet backers plan bus convoy to hearing January 16 article below:

Our view: Insist on civility at PolyMet hearings

The coming chaos, fueled by years of pent-up emotions and expected to feature busloads of high-volume opposition, has been fully expected, ever since the trio of public hearings was announced to gather comments on the environmental review of a proposed PolyMet copper-nickel mine on the Minnesota Iron Range.

So who could blame Minnesota Department of Natural Resources Commissioner Tom Landwehr for making the rounds last week to urge civility and calm and to try to set a positive, productive tone for the meetings, the first of which is scheduled Thursday at the Duluth Entertainment Convention Center? Landwehr and staffers met with MPR, TV news reporters, Iron Range editors, the News Tribune and anyone else, it seemed, who’d listed to a plea for peace.

“The thing I want people to understand is this is not a referendum on mining. If you want to make your opinion known about mining, the capitol is the right place to do that. This is an analysis of the project, and what we’re looking for are people’s thoughts on the analysis,” Landwehr said during his meeting with the News Tribune, including members of the editorial board. “If you want to bring a bunch of people here to get up and say, ‘I hate mining,’ it’s not really going to help the process. … We want people to understand what the project is. I would argue that’s the primary purpose of these meetings, just to educate people on what the project is.”

Read the rest of this entry »


Bubble in the natural gas fracking world?  Is the fracking boom about to go BOOM?  From AlterNet:

Is Natural Gas the Next Bubble? Has Fracking Promised More Than It Can Deliver?

In this weekend’s Red Wing Republican Eagle — they edited my headline, this is the original, because my view of this is that those writing about how he is being abused, it’s a lynching, etc. are ignoring the crucial fact that he had the choice to disclose but he did not.  Let’s see what happens today:

It’s about disclosure!

It’s almost April Fools’ Day, the day Mayor Dennis Egan said he’d resign. Just last week, he was very visible, advocating for frac sand mining at the Rochester Chamber of Commerce’s “Public Affairs Series: Mining in Minnesota,” appearing on MPR’s Daily Circuit — and who knows what else – perfect examples of what the mayor of Red Wing should not be doing.

Meanwhile, there have been a number of painfully contorted letters to the editor, a comment at a City Council meeting supporting Egan and his actions, even a statement reported by a council member, saying “There are ways to recuse ourselves and move past that.”

Mayor Dennis Egan had his chance to disclose. He made his choice, and his choice was to be silent, his choice not to inform the Council or citizens of Red Wing. We learned about his employment as a frac sand lobbyist by reading about it in a Politics in Minnesota report.

Egan’s problem is magnified by number of people who condone his failure to disclose, his deception by omission and his steadfast failure to acknowledge the impropriety of his ethical breaches and the incompetence at conducting an internal examination of the situation. What does this say about our community’s moral base?

On with the special election. Hopefully we can find a mayor with a grounded sense of ethics who takes the oath of office seriously, understands the obligation to disclose, and respects those who trusted with their vote.

Carol A. Overland

Red Wing

Not only is it Hizzonor’s Birthday today, but he now says he lives in Red Wing!  Imagine that!  Maybe he’s learning something in his old age?

More importantly, today both the Minnesota Pollution Control Agency and the Minnesota Department of Health said in Comments to Winona County that a full blown Environmental Impact Statement is needed for the Dabelstein Yoder frac sand mine proposed in Winona County.

Minnesota Dept of Health Comment Letter February 6, 2013

Minnesota Pollution Control Agency Comment Letter February 4, 2013

This snippet from the MPCA letter pretty much says it all:

The Minnesota Pollution Control Agency (MPCA) staff believes that the information provided in the EAWs is insufficient to fully identify and assess the environmental effects of the projects.  The MPCA believes the necessary information can be obtained and evaluated most effectively by preparing an Environmental Impact Statement (EIS).  Consequently, we respectfully recommend that Winona County make a positive declaration on the need for an EIS for both projects and include within the scope of each EIS appropriate studies to abtain the lacking information as provided in Minn. R. 4410.1700, Subp. 2a, Item A.

The MPCA focused on “phased and connected actions,” looking at the multiple projects in the immediate area, operated by Minnesota Sands, LLC, and “cumulative potential impacts” addressing other projects that may interact with this one.  MPCA also listed many items where there was “insufficient” information.  What’s particularly surprising is that the applicants didn’t address air emissions, something that is so obvious, and which was an issue in the North Branch mining processing plant that was fined and shut down for operating without a permit.

The Dept. of Health was particularly interested in water,  including wells and groundwater quality, and again, air quality.  The MDH recommended a “Health Impacts Assessment” which would be a good way to characterize the issues and impacts on human health — as a part of the larger EIS — not in place of it.

This is an encouraging start.  Two state agencies have recognized the potential for significant impacts associated with frac sand mining.  Now let’s get to work and “do some digging.”  Can ya dig it?