Someone explain rulemaking to the MPCA

March 2nd, 2014

Pieter_Bruegel_the_Elder_(1568)_The_Blind_Leading_the_Blind

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

Rulemaking

Information sources

Other

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:

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.

 

Posted by Carol A. Overland
Filed in Fracking & Frac Sand, Legislative & Policy, mining
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