Legalectric

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.

That’s the Coal Creek plant, a photo I took on a tour.  If you’re an electric co-op member in Minnesota (elsewhere too?), they offer tours regularly, and it’s something you should do!  Check your co-op’s newsletter for info.

State Register Notice:

MPCA_StateRegister_Pages from 40_05

Just released FEDERAL Clean Power Plan:

Clean Power Plan Final Rule (PDF)(1560 pp, 3.3 MB, About PDF) – August 2015

Look at how the “adjusted” Minnesota’s baseline levels due to Sherco 3 being out for nearly 2 years:

The EPA examined units nationwide with 2012 outages to determine where an individual unit-level outage might yield a significant difference in state goal computation. When applying this test to all of the units informing the computation of the BSER, emission performance rates, and statewide goals, the EPA determined that the only unit with a 2012 outage that 1) decreased its output relative to preceding and subsequent years by 75 percent or more (signifying an outage), and 2) could potentially impact the state’s goal as it constituted more than 10 percent of the state’s generation was the Sherburne County Unit 3 in Minnesota.  The EPA therefore adjusted this state’s baseline coal steam generation upwards to reflect a more representative year for the state in which this 900 MW unit operates.

Clean Power Plan Final Rule (PDF p. 796 of 1560).

And from the state, which acknowledges imminent release of FEDERAL Clean Power Plan Final Rule , also released today, just in from the MPCA (direct quote):

The Minnesota Pollution Control Agency (MPCA) has issued a request for comments on possible rule amendments to bring Minnesota into compliance with the U.S. Environmental Protection Agency’s (EPA’s) Clean Power Plan. You can read the full request in the August 3, 2015, edition of the State Register, available at www.comm.media.state.mn.us/bookstore/mnbookstore.asp?page=register.

The amendments we are considering will help Minnesota meet standards established by the Clean Power Plan, which sets state-specific carbon dioxide emission targets and requires each state to submit a plan detailing its strategy for meeting the targets. As of State Register press time, we have not yet started drafting a plan because the EPA has not yet published the standards that Minnesota’s plan will need to meet, so the MPCA requests public input to help guide our considerations of methods for meeting the EPA’s targets, as well as any other objectives that the state’s plan might include.

Stakeholder meeting agendas, notes, and other related documents are posted on the website for this rulemaking at www.pca.state.mn.us/w9y3awr.

To access information about a particular Minnesota rulemaking, visit the Public Rulemaking Docket.

Rebuttal comments were due on the Greenhouse Gas Rule.

Out of the entire state of Minnesota, the only rebuttal comments filed were filed by Alan Muller and moi.

Rebuttal Comments as of September 26, 2012

Pathetic – and proof that the MPCA’a notice was deficient, which the agency admits, and that the “usual suspects” in all things CO2 have abdicated and sat back, thumbs implanted, doing nothing.

From the OAH site:

Public Comments

Public exhibits that were received at the August 30, 2012, hearing, and comments that have been received by Judge Cervantes since August 30, 2012, will be posted below.

• Public Comments Received During the Public Comment Period July 9 – August 10, 2012
• Public Comments as of September 18, 2012
• Public Comments as of September 19, 2012 Batch 1
• Public Comments as of September 19, 2012 Batch 2
• Public Comments as of September 19, 2012 Batch 3
• Rebuttal Comments as of September 26, 2012

Agency Comments

• Transcript of Hearing – via Wayback Machine
• PCA Response to and Rebuttal of Comments
• Letter from Revisor of Statutes
• 7007.1450 Revision Line 61.9
• Adopted Permanent Rules Relating to Greenhouse Gas Permit Requirements
• Responses to Comments Received During Public Comment Period July 9 – August 10, 2012
• Rebuttal Comments as of September 26, 2012

Agency Exhibits

• Table of Jurisdictional Document Exhibits and Exhibit 1
• Exhibit 2
• Exhibit 3
• Exhibit 3.1
• Exhibit 3.2
• Exhibit 3.3
• Exhibit 3.4
• Exhibits 3.5-5
• Exhibit 6
• Exhibit 7
• Exhibit 8
• Exhibits 9-11

Photo of Maiden Rock frac sand mining operation across the river

The MPCA has announced a frac sand mining air permit comment period for the mine proposed in Scott County near Shakopee.

I believe this is the first frac sand mining permit to go through MPCA air permitting (I’ll check). Here’s the MPCA’s Frac Sand Mining Page.

If you write comments, there are specific things that have to be included, it says “must” in the Notice and “shall” in the rules, so I think they mean it.  Here’s what the rules say about comments:

Subp. 2. Contents of written comments.

A person who submits comments under subpart 1 shall include in the comments the following:

A. a statement of the person’s interest in the permit application or the draft permit;

B. a statement of the action the person wishes the agency to take, including specific references to sections of the draft permit that the person believes should be changed; and

C. the reasons supporting the person’s position, stated with sufficient specificity as to allow the commissioner to investigate the merits of the person’s positions.

You may request a contested case, and that must be done under Minn. R. 7000.1800 Petition for Contested Case.  If you plan to do that, also check out Minn. R. 7000.1900 Criteria to Hold Contested Case Hearing.

Send Comments and Petitions by August 27, 2012 to the MPCA:

Steve Gorg, Air Quality Permits Section

Industrial Division, MPCA

520 LaFayette Road North

St. Paul, MN  55155

steven.gorg@state.mn.us

Here are the primary documents from the MPCA site:

Intent to Issue Air Emission Permit to Great Plains Sand LLC, Shakopee – Notice Full Text

Draft Air Emission Permit

Technical Support Document

“Streamline” is code for “ram it through.”

Another one of those “change!” moments — look at what we’re getting:

Daytons Executive Order 11-04

So do tell, was this done to help push approval of Paul Aasen as Commissioner of MPCA?  Show that Dayton will roll for big business over environmental review?  There are such horrendous projects in the pipeline, ones that require a serious look, and ones that shouldn’t be permitted, period.  P-O-L-Y-M-E-T! Need I say more?  Oh, OK, how about 3M’s Cottage Grove Incinerator?   Hennepin County’s HERC Incinerator?

Here’s his Press Release:

Dayton Issues Executive Order to Speed Permitting Process

Dayton is right in line with Rep. Drazkowski — how scary can it get?

Drazkowski pitches regulatory reduction