Legalectric

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:

14.101 ADVICE ON POSSIBLE RULES.

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 STATUTES ON RULES

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

Reports

• 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

Rulemaking

• 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

Information sources

• Air monitoring at Minnesota silica sand facilities
• General geospatial information on natural resources
• Silica sand mining and health

Other

• Federal – Compliance Assurance Monitoring
• Federal – State Implementation Plan for Minnesota (SIP)
• Minnesota – Emission Inventory Requirements
• Minnesota – Performance Testing

Existing rules

Environmental Quality Board

Minn. Rules 4410 – Environmental Review

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.

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:

nathan.cooley@state.mn.us

Jeff.Smyser@state.mn.us

wendy.turri@state.mn.us

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.

House Transportation Finance Committee
Thursday, Feb. 27, 2014 10:00 AM
Watch: Live Event | Enhanced version
Northstar Commuter Rail delays.
Informational hearing on oil freight and pipeline safety.

In the opening, Frank says that it will be continued on Tuesday, March 5.  He expects there will be a hearing on a bill on March 12, and it will also go to the Public Safety Committee.

Above is photo from Red Wing derailment, from Republican Eagle.

The U.S. Department of Transportation has ordered stricter standards for transportation of crude oil, stemming from the Bakken oil train disasters cross country.  It’s about time!

DOT – Emergency Restriction – Prohibition Order (Docket DOT-OST-2014-0025)

From the Order, it seems they’re getting it figured out:

Here in Minnesota, Rep. Frank Hornstein is holding an INFORMATIONAL hearing.  He’s the chair of House Transportation Finance, and if you want to testify (this is not about a specific bill, that’s pending), contact the Committee staff and let them know you’re interested in speaking out:

Administrator: Matt Scherer 651-296-3316

Legislative Assistant: Rachel Nelson 651-296-5486

You can also contact committee members and let them know what you think, here’s the Committee Page and emails are listed.

Now, back to the DOT Order — here are some specifics about misclassification leading to improper shipment:

And they specifically address the Lac Megantic explosion and found that the rail cars that had NOT exploded were correctly classified:

There are a lot of interesting links in this report, links to investigations, etc., including this page, about the investigation that really got the DOT rolling:

PHMSA Ongoing Bakken Investigation Shows Crude Oil Lacking Proper Testing, Classification

From this report, note the links to Notices of Proposed Violations, chump change, but nailing down some violations (note, for example the Hess Corporation one, with multiple violations, and there’s a sliding scale taking into account past violations, so will they be on them in the future?  We shall see.):

As a result of today’s findings, PHMSA has expanded the scope of Operation Classification to include testing for other factors that affect proper characterization and classification such as Reid Vapor Pressure, corrosivity, hydrogen sulfide content and composition/concentration of the entrained gases in the material.  PHMSA will also move forward with the Notices of Proposed Violations totaling $93,000 that were issued to Hess Corporation, Whiting Oil and Gas Corporation, and Marathon Oil Company, and will continue working with the rail and oil industry based on Secretary Foxx’s Call to Action, including sharing of additional data, and recommendations for future safety initiatives.

It’s like winter in Minnesota — will this rulemaking never end?  We’re pretty much ensconced in Minn. R. ch. 7850 now, siting.  PROGRESS!  Here’s where it stands:

January 22 Meeting Synopsis

February 13 Draft 7849

February 13 Draft 7850

The next meeting of the Rulemaking Advisory Committee is TOMORROW:

February 26, 2014 @ 9:30 – 11 30 a.m.

Rulemaking Advisory Committee

PUC Building, Basement (look for signs)

121 – 7th Place East

St. Paul, MN  55101

That’s old Steiner here, telling all you legislators that it’s time to adopt more than a cat or a dog!  Our legislative session starts on Tuesday, and now’s the time to adopt the Minnesota Companion Animal Protection Act.

The language: HF 391 Minnesota Companion Animal Protection Act

It was introduced last year in the House (HF 391) and Senate (SF 1204).  It was forwarded on to their respective Ag committes, and stalled out.

To revive it, I think the best thing to do is to contact those listed as authors and the chairs of House and Senate Ag Committees that you want to see the Companion Animal Protection Act, HF 391 and SF 1204, passed this year.  Emails of authors and Chairs here to cut and paste:

rep.john.benson@house.mn (House author)

rep.paul.rosenthal@house.mn (House author)

rep.jeanne.poppe@house.mn (Chair – House Agriculture Policy Committee)

sen.julie.rosen@senate.mn (Senate author)

sen.jeff.hayden@senate.mn (Senate author)

sen.matt.schmit@senate.mn (Senate author)

sen.foung.hawj@senate.mn (Senate author)

sen.dan.sparks@senate.mn (Chair – Senate Jobs, Agriculture & Rural Devo Committee

Looking at the bill, I’ve got a few comments, and I’m making them as a member of the Board of the Humane Society of Goodhue County, where I’ve learned a few things about Companion Animal Protection, though to be clear, I am NOT speaking for HSGC, nor do my comments reflect the policies of HSGC:

First, in the Definitions, lines 2.8 – 2.15,  the Private and Public sheltering agency should mention requiring licensure of the agencies and to acknowledge that licensure includes a limit the number of animals they may hold.

Line 2.11, I think “has” should be “have.”

Still in Definitions, lines 2.20 – 2.22, “stated” should be deleted, and paragraph should say:

Subd. 10. Rescue group.  “Rescue Group” means a collaboration of individuals organized as a Minnesota non-profit or designated by IRS as a nonprofit under section 501 (c)(3), and whose primary purpose is animal rescue and adoption.

For consistency, I’d lock in all holding periods to five (5) days, and not two or three depending on circumstances (see lines 3.12, 3.16, 3.20, 4.2, et al.)

Line 3.29, should add, at the end of line, “and public.”  Shelters do move animals between them to give animals a new venue to increase adoption opportunities.

Sec. 4, lines 4.1 – 4.9 should be expanded to include specifically prohibiting euthanasia of owner relinquished animals unless irremediably suffering and/or non-rehabilitable.  The MCAPA should also include language requiring that shelters provide owners wanting to surrender their animals with information on training and behavior options prior to accepting the animal.  Owners often dump animals at shelters who are perfectly good, healthy animals “to be put to sleep.”  Not acceptable.

Lines 5.1 – 5.2 need clarification — if animals are not candidates for redemption, transfer, or adoption, how will they “leave the shelter in reasonable condition?”  This sounds like a mandate for palliative care to limit suffering, but the intent and language of these two lines is not clear.

Lines 5.24 – 5.31 — How will we know if “any of the organization’s current directors, officers, staff or volunteers have been convicted..”  A registry?

Add to Sec. 7, line 6.32: microchips, identification tags, and licenses.  All animals adopted or transferred out of public and private sheltering agencies shall be microchipped.

Add to Sec. 7, at end of line 7.1, before line 7.2: The holding period does not begin until the photo and description have been posted.

ADD an animal abuse registry.  Animal abuse, neglect, and hoarding isn’t a one time thing, it’s a pattern of behavior and by tracking those abusing animals, we can prevent adoptions into environments that are dangerous for these animals we’re working to protect:

Sec. 8. [346.67] ADOPTION OR TRANSFER CRITERIA.

Subd. 1 (language in lines 7.12 – 7.15)

Subd. 2.  The state Department of Agriculture shall maintain a publicly accessible online registry of individuals, business, and organizations convicted of animal abuse, neglect and/or hoarding for reference by public or private sheltering agencies and rescue groups, which shall include name of offender, current address, other known addresses, date of conviction with statutory citation, and summary of offense(s).  Public or private sheltering agencies and rescue groups, kennels, and individuals shall be prohibited from adopting, selling, or giving animals to those on the registry and members of their households.

Add to Sec. 9, l. 7.20: (1) there are no empty cates, kennels, or other living environments in the shelter, or the shelter is filled to its licensed capacity.

Add to Sec. 12, ENFORCEMENT, line 10.12: A public or private sheltering agency, rescue group, or individual may compel a public or …

Those are the thoughts off the top of my head, and this is a work in progress.  Now, on to the House and Senate authors and Committee chairs!  Once more with feeling, here they are:

rep.john.benson@house.mn (House author)

rep.paul.rosenthal@house.mn (House author)

rep.jeanne.poppe@house.mn (Chair – House Agriculture Policy Committee)

sen.julie.rosen@senate.mn (Senate author)

sen.jeff.hayden@senate.mn (Senate author)

sen.matt.schmit@senate.mn (Senate author)

sen.foung.hawj@senate.mn (Senate author)

sen.dan.sparks@senate.mn (Chair – Senate Jobs, Agriculture & Rural Devo Committee