Legalectric

Wednesday, August 29th and Thursday, August 30th at the MPCA were days focused on the Range.  (yes, it’s taken forever to get this posted)

Wednesday, August 29th was the “Haze Day” at the MPCA, a hearing held by the federal Environmental Protection Agency because it wants to take back the MPCA’s haze regulatory authority and adopt rules.  The MPCA has had a very, very long time to deal with this, and hasn’t done the job.   Here’s the MPCA page:

MPCA’s Minnesota Regional Haze Plan

Comments are due

Meanwhile, in a different venue, there’s a federal lawsuit afoot:

Lawsuit challenges wilderness haze plan

And then on Thursday, August 30, it was all about greenhouse gas emissions, but for only a handful of facilities, taconite plants on the range.  This one was really bizarre.  It started with the MPCA’s Ass. A.G. running down the “jurisdictional” exhibits to enter into the record.  Alan and I were the last in, and signed on page 3 of the sign in sheet.  They had much needed coffee, and some great macadamia nut white chocolate cookies.  The Asst. A.G. noted in his presentation (and he seemed to have zero familiarity with the exhibits) that it did not meet the notice requirements but that he regarded it as harmless error and wanted a finding from the judge to that effect.  I was in the back of the room, and noted more empty chairs than there were the day before, and got to wondering…

Starting at the beginning, here is the MPCA page for the greenhouse gas rules for taconite plants on the Range:

Air Quality Rules; the MPCA Proposes to Adopt Permanent Rules Implementing Federal Air Permit Thresholds for Greenhouse Gases (GHG — Temporary Rules in Effect Since January 24, 2011)

When I testified, I had a few questions, and learned that the Notice and list of those receiving notice, and some of the other “jurisdictional” documents were not available online.

If notice was not adequate, as the Asst. A.G. stated, twice, maybe more, then they’ve got a problem under Minnesota’s admnistrative law:

Subd. 1a.Notice of rule hearing.

(a) Each agency shall maintain a list of all persons who have registered with the agency for the purpose of receiving notice of rule proceedings. Persons may register to receive notice of rule proceedings by submitting to the agency:

(1) their electronic mail address; or

(2) their name and United States mail address.

The agency may inquire as to whether those persons on the list wish to remain on it and may remove persons for whom there is a negative reply or no reply within 60 days. The agency shall, at least 30 days before the date set for the hearing, give notice of its intention to adopt rules by United States mail or electronic mail to all persons on its list, and by publication in the State Register.

…oops… and not only that:

14.50 HEARINGS BEFORE ADMINISTRATIVE LAW JUDGE.

All hearings of state agencies required to be conducted under this chapter shall be conducted by an administrative law judge assigned by the chief administrative law judge or by a workers’ compensation judge assigned by the chief administrative law judge as provided in section 14.48. All hearings required to be conducted under chapter 176 shall be conducted by a compensation judge assigned by the chief administrative law judge. In assigning administrative law judges or compensation judges to conduct hearings under this chapter, the chief administrative law judge shall attempt to utilize personnel having expertise in the subject to be dealt with in the hearing. It shall be the duty of the judge to: (1) advise an agency as to the location at which and time during which a hearing should be held so as to allow for participation by all affected interests; (2) conduct only hearings for which proper notice has been given; (3) see to it that all hearings are conducted in a fair and impartial manner. Except in the case of workers’ compensation hearings involving claims for compensation it shall also be the duty of the judge to make a report on each proposed agency action in which the administrative law judge functioned in an official capacity, stating findings of fact and conclusions and recommendations, taking notice of the degree to which the agency has (i) documented its statutory authority to take the proposed action, (ii) fulfilled all relevant procedural requirements of law or rule, and (iii) in rulemaking proceedings, demonstrated the need for and reasonableness of its proposed action with an affirmative presentation of facts.

Oops again!

Anyway, here is what they sent me in response to my request for the Exhibits (particularly the notice exhibits, 6 and 7):

Minnesota PCA Jurisdictional Document Title Table of Comments

Exhibit 1: Request for Comments Notice (aq-rule4-05a)

Exhibit 2: Revisor’s Extract of Proposed Rules (aq-rule4-05d)

Exhibit 3 – the SONAR and links

Exhibit 4:

Exhibit 5:

Exhibit 6 – Subscribers of Rulemaking: Federal Air Permit Thresholds for Greenhouse Gases Rule:

MPCA Notice List 2 – 5172625

Exhibit 7? – Subscribers of Air Regulatory and Technical Information, Rulemaking: Federal Air Permit Thresholds for Greenhouse Gases Rule:

MPCA email notice list I – 4702381

Exhibit 8: Comments received on proposed Greenhouse Gas Rule (aq-rule4-05r)