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:

• Encouraging agencies to negotiate rules before formally proposing them has made the formal public notice-and-comment process mandated by the APA less meaningful; and

• Since there are no requirements or guidelines governing the negotiation process, those people selected to help an agency draft rules have an unfair advantage over those who are not asked to participate.

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:

• The formal public notice mechanisms may be inadequate to ensure timely notice and meaningful participation in rulemaking; and

• The prohibition of “substantial changes” after rules are proposed is often misunderstood by agency staff and may inhibit them from incorporating public comments made through official mechanisms.

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 Legislature should consider amending the Administrative Procedure Act to require that agencies maintain a “rulemaking docket” that contains an up-to-date listing of the status of existing rules and impending rulemaking actions, to be submitted annually to the Legislature.

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:

• Rules not adopted within 18 months of their authorizing legislation should require reauthorization, which would replace the current requirement that new rules be published within 180 days;

• A single definition of “substantial change” should be incorporated into the APA;

• “Regulatory analyses” should be done on rules if requested by the Governor, the Legislative Commission to Review Administrative Rules, a political subdivision, another state agency, or 300 persons; and the current special rule justification requirements relating to agricultural land, small business, and fiscal impacts on local government should be eliminated;

• Agency efforts to notify all people potentially affected by a rule should be made part of the official rulemaking record and subject to external examination during the rules review process;

• Individuals requesting a public hearing should provide their address and phone number;

• Everyone who has requested a hearing should be notified when agencies negotiate to secure withdrawal of hearing requests, and agreements made in negotiations should be made a matter of public record and included in the official rulemaking record;

• Exempt rules should be reviewed for form, statutory authority, need and reasonableness, and consistency with legislative intent; and

• All rules should be reviewed by the Office of Administrative Hearings, thereby eliminating the Attorney General’s role in rules review.

… and …

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

• State agencies involved in rulemaking should make more efforts to broaden public participation in rulemaking.

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.

Photo from Red Wing Visitor and Convention Bureau – for more, go HERE!

Beginning TOMORROW, the DNR is hosting a series of hearing on rulemaking to amend Rules Relating to Engangered, Threatened, and Special Concern Species, Minn. R. 6134.0170, 6134.0200, 6134.0300, and 6134.0400.

DNR Rulemaking Notice

DNR Rulemaking Page – includes proposed rules

One by one, the rules at issue per the DNR:

Minn. R. 6134.0170 (DOES NOT EXIST?!?!)

Minn. R. 6134.0200

Minn. R. 6134.0300

Minn. R. 6134.0400

The hearings are beginning tomorrow evening in Rochester:

Yes, bald eagles are on this list, as are loggerhead shrike and trumpeter swans, all at issue in the Goodhue Wind project.  It seems to me that Golden Eagles ought to be acknowledged and added, they’ve been sighted in the area as well, and no take permits are allowed by USFWS.

CLICK HERE for some comments they received recently.

Gov. Mark Dayton rolled out the plan early in his term — GUT environmental review and protection.  What do Minnesotans think?  This week we got a chance to tell him.

Surprise!  The first meeting about the state’s environmental review was standing room only, when we got there a line started at the door going back and winding in.  They’d supposedly expected 30-40 but got about 200, 175 signed in and I’d bet quite a few didn’t.  Keep in mind that this was a meeting held at 9:30 a.m. on a weekday.  Suzanne found a spot with just enough room for us to stand.  As it was getting started, I noticed, DUH, that there was a white board behind me, so because there was no designated way to make comments other than holler, well, of course I did that too, particularly regarding FUNDING, because there was no mention of funding and how all the agencies are hurting to the point of being unable to regulate, anyway, a few of my comments (click photo for larger view):

There were meetings this week, and there are more the week of December 10 — SHOW UP AND LET THEM KNOW WHAT YOU THINK ABOUT THE STATE’S JOB ON ENVIRONMENTAL REVIEW:

December 10 – Worthington, Worthington High School 3:30pm – 6:00pm

December 12 – St. Cloud, Stearns County Service Center 5:30pm – 8:00pm

December 14 – Moorhead, Minnesota State University 3:00pm – 5:30pm

I’ve posted before about Gov. Dayton’s brown environmental initiatives — right off the bat he muzzled and prodded MPCA and DNR to ram permits through:

Dayton’s Executive Order 11-04

And then he announced plans to “streamline” environmental review, and we all know what “streamline” means”

Executive Order 11-32

So at these meetings ostensibly about “environmental review” we were funneled into a “multiple guess” exercise about the “Environmental Report Card” and nothing about “Improvement of Environmental Review” or “EQB Governance and Coordination” which were reports that, in addition to the “Environmental Report Card” were approved by the EQB on November 14, 2012.  There was a “comment” opportunity at the EQB, but there were maybe 5 people who commented, utterly ineffective solicitation.

EARTH TO MARS!  With the EQB approving those reports November 14, BEFORE the public meetings, there was pretty much ZERO input into those reports.  Although it’s heartening to see that there’s been some pull-back from the overt gutting of the EQB laid out in the draft report, and maybe, MAYBE, pull back from reframing the whole intent of environmental review, it’s a problem where the fix is in and where the important policy documents are done before we’re invited to join the game.  Thanks, guys…

Here are the reports:

• Evaluation and Recommendations for Improving Environmental Review
• Recommendations for Environmental Governance and Coordination
• Minnesota Environment and Energy Report Card

I’ve said it before and I’ll say it again, someone like Bill Grant, formerly Izaak Walton League, now Dayton’s Deputy Commissioner in charge of Energy Facility Permitting, the guy who facilitated the CapX 2020 transmission buildout, and who promoted coal gasification, he has no business being involved in siting of utility permits.  He has an egregious conflict of interest, having been part of energy project promotional efforts, and needs to be fired.  Here’s Grant eing interviewed before the program started:

At two recent frac sand mining meetings in Red Wing and Wabasha, I handed out at least 270 flyers, , posted info on this blog and sent info out on lists.  I’m hoping that had something to do with so many turning out.  Frac sand was a major topic, I really stressed the need to fund the state’s regulatory agencies so they can do their job, and others way over across the room were not happy with how the discussion was an exercise in control of discussion.  It’s safe to say that they got an earful.

Rep. Denny McNamara came in and worked his way back to a tiny open spot by us, he ended up next to Alan, and Alan quietly said hello and noted that they’d first met at a meeting in Cottage Grove regarding the 3M incinerator, and he gives Alan a nasty look and makes a gratuitous snide comment about “Oh, did you get a haircut?” and looks at the back of his head.  EH?  Alan said something in his oh so nice way, and I piped up from behind, “At least he doesn’t dye his!”

Denny McNamara’s trainer better put a muzzle on him.  That guy is supposed to be representing the people in his district, and in that case he represented the interests of 3M, notorious polluter of the water and air, and he has the nerve to be a defensive jerk when there’s no need to be.  If mere mention of meeting him at a hearing regarding the 3M incinerator elicits that brand of obnoxiousness, oh my, he must be guilty of more offensive rolling to corporate interests than suspected!

A google pops up this article right at the top:

McNamara plans big refashioning of LCCMR projects

Rep. Denny McNamara tonight plans to take an axe to a swath of proposed environmental projects that are paid for by Minnesota Lottery money.

McNamara, R-Hastings, is planning to initiate a challenge to about $8 million worth of projects that were previously recommended by the Legislative-Citizen Commission on Minnesota Resources (LCCMR). The total bill recommends $52 million in projects that are paid over a two-year period out of the Environment and Natural Resources Trust Fund, which is built up by Lottery proceeds.

Check out that post… Hey Denny, how about addressing the extreme environmental issues around Hastings?  So glad he’s been ousted as Chair of the House Environment Committee.

The DNR has announced a Supplemental EIS for the Essar Steel project (f/k/a MSI).

THREE DAYS NOTICE!

March 25, 2010 from 5:30 – 7:30 pm

Nashwauk-Keewatin High School

400 2nd Street

Nashwauk, MN, 55769

Notice published 3/22 for a meeting on 3/25?

CLICK HERE for the DNR’s page for the MSI EIS.

Here’s the document that is open for comments until April 21, 2010:

Essar – SEIS Preparation Notice

From the original MSI proposal, here’s the chart of Potential To Emit from the Air Permit:

MSI Air Permit – Potential to Emit Chart

So for a 50% increase, multiply those numbers in the Potential to Emit Chart by 150%.  Take a look at those numbers and ask if that’s what you’d like in your lungs and fish.

In light of the changes proposed, a few issues:

* Does Essar now or anytime during the term covered by the supplemental EIS now being considered, and the term of the air permit currently issued, intend to use any amount of coal or metallurgical coke in any part of the mining, taconite or steel production processes or for energy at the Essar Steel Minnesota, LLC Nashwauk area facility, mine(s) or waste disposal and tailings sites.

* How many tons per day of coal/coke are projected be required for the facility during full operation in July, 2013, July, 2018, and July, 2023.”

* How many peak and average megawatts of electricity are now projected to be required for the facility in each year of operation, and specifically during peak operation in July, 2013, July, 2018, and July, 2023.

* How many peak and average million cubic feet per hour of natural gas are now projected to be required for the facility during full operation in July, 2013, July, 2018, and July, 2023.

* When will MPCA put air permit amendment out for review and comment?

And now for the Essar Supplemental EIS:

CLICK HERE for the DNR’s Supplemental EIS for Essar page.

Here’s their announcement from the March 22, 2010  EQB Monitor:

SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT

PREPARATION NOTICE

DNR will prepare a Supplemental EIS on a proposal by Essar Steel Minnesota to increase the production capacity of the Nashwauk facility’s crusher, concentrator, and taconite pellet plant from 4.1 million tons per year (mtpy) to 6.5 mtpy. This will require the addition of a crusher/concentrator line, and the installation of a larger pellet furnace, to the project evaluated in the original Minnesota Steel Project EIS.

Page 4 EQB Monitor Vol. 34, No. 6
Publication Date: March 22, 2010

The SEIS is designated to deal only with impacts, alternatives, and mitigation that are no longer adequately examined in the original EIS due to the changes in the project, information, or circumstances.

The DNR proposes that the following alternatives, impacts, and issues will be examined as part of the SEIS.

Alternatives: The SEIS will address four alternatives for the increased production in taconite pellets: 1) the Proposed Alternative (Increase taconite pellet production from 4.1 mtpy to 6.5 mtpy), which was not addressed in the original EIS; 2) the No-Action Alternative, which is the original “Build or Proposed Project” Alternative evaluated in the Minnesota Steel EIS; 3) a re-evaluation of best available control technology (BACT) for criteria pollutants whose emission are estimated to increase in amounts greater than the significant increase thresholds under 40 CFR Part 52, for any proposed changes to the BACT identified in the original EIS; and 4) air emissions control technology alternatives for mercury.

Impacts and Issues: surface water quantity and quality; wild rice; solid waste generation; air quality; contribution to global greenhouse emissions; mercury; cumulative air quality: Class I PSD Pollutants, Class I Acid Deposition and Ecosystem Acidification, and Class I Visibility Impairment; cumulative mercury; cumulative effects – climate change; and socioeconomics.

Special Studies or Research: updated mine plan; updated water quantity and water quality balance; wild rice; solid wastes generation estimates and disposal options; air emissions inventory; BACT evaluation for air emissions; Class I air quality analysis; Class II air quality analysis; mercury mass balance and control technology assessment; human health screening level risk assessment; screening level ecological risk assessment; greenhouse gas emissions inventory; cumulative effects on Class I air quality – PSD pollutants; cumulative effects on Class I air quality – acid deposition and ecosystem acidification; cumulative effects on Class I air quality – visibility impairment; cumulative health risk screening assessment; cumulative mercury; cumulative effects on climate change; socioeconomic effects.

The DNR will accept written comments on the Preparation Notice during a 21-day period beginning March 22, 2010. Comments must be received by 4:30 PM on April 12, 2010. Comments may be emailed to environmentalrev@state.mn.us with “Essar Steel” in the subject line.   If using the email address, please include a name and mailing address so that it can be added to the mailing list.

A public informational meeting will be held on March 25, 2010 at the Nashwauk-Keewatin High School, 400 2nd Street, Nashwauk, MN, 55769, from 5:30 – 7:30 PM.

A draft SEIS is tentatively expected to be released for public review between October to December, 2010. The contact person at the DNR is: Bill Johnson, Planning Director, 500 Lafayette Road, St. Paul, MN 55155; 651-259-5126; bill.johnson@state.mn.us.