An August Weds & Thurs at MPCA

September 10th, 2012


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:


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

List of Exhibits
· Final Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule, 40 CFR Parts 51, 52, 70, and 71. EPA, docket number EPA–HQ–OAR–2009–0517; FRL–9152–8. (75 FR 31514-31608), June 3, 2010. Follow this link:
· Regulatory Impact Analysis for the Final Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule, Final Report (May 2010); Linda M. Chappell, EPA, Office of Air Quality Planning and Standards. Follow this link:
· Deferral for CO2 Emissions From Bioenergy and Other Biogenic Sources Under the Prevention of Significant Deterioration (PSD) and Title V Programs, 40 CFR Parts 51, 52, 70, and 71. EPA, docket number EPA–HQ–OAR–2011–0083; FRL–9431–6. (76 FR 43490-43508) July 20, 2011. Follow this link:
· Standards of Performance for Stationary Spark Ignition Internal Combustion Engines and National Emission Standards for Hazardous Air Pollutants for Reciprocating Internal Combustion aq-rule4-05b 38 June 2012
Engines, 40 CFR Parts 60, 63, 85, 90, 1048, 1065, and 1068. EPA, docket number EPA-HQ-OAR-2005-0030, FRL-8512-4. (73 FR 3567-3614) January 18, 2008. Follow this link:
· Adopted Exempt Rule Relating to Greenhouse Gas Permit Requirements (chapters 7005 to 7007). (35 SR 1097-1108) January 24, 2011. Follow this link:
· Insignificant Activities Assessment – Spreadsheet. MPCA staff (file attached):

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)


Excelsior Energy’s Mesaba Project, the coal gasification plant that will not die, is returning to the Minnesota Public Utilities Commission on August 14, 2012.

Notice – August 14, 2012 PUC Meeting

At that time, they’ll address whether the original project’s permits apply to this project, and whether this one, under Minn. Stat. 216B. 1694, requires additional environmental review:

**6.     E6472/GS-06-668 Excelsior Energy, Inc.
In the Matter of the Joint LEPGP Site Permit, HVTL Route Permit and Pipeline (Partial
Exemption) Route Permit Application for the Mesaba Energy Project in Itasca County.
Should the Commission find, pursuant to Minnesota Statutes 216B. 1694 subdivision 3, that the
site and route permits issued on March 12, 2010 for the Mesaba Energy Project are deemed valid
for a natural gas fired plant located at the same site and that no additional environmental review
is required under applicable state rules?

This docket has been one of the longest strangest trips ever, a coal gasification plant that wasn’t needed yet fed by state and federal money, using CO2 capture and storage that does not, can not, and will not exist.  Here’s some history:

Health Benefits of Coal (ya gotta read this one, HILARIOUS!)

Mesaba – Extend the Hearing! (the hearing was a farce)

And why are we here on the 14th?  The PUC granted a Site Permit to the project f/k/a Mesaba Project, the coal gasification plant:

ALJ Recommendation – Mesaba Site Permit

PUC Order and Site Permit – March 2010

Then it starts getting complicated, Excelsior sends PUC letter saying it wants confirmation that the permits issued for the Mesaba Project coal gasification plant are valid for a natural gas plant, and that it would require no further environmental review:

Excelsior Energy Request – May 31, 2012

Notice of Comment Period

Comment –

Commerce CommentsSierra Club Comment

And then Excelsior chimes again disclosing not much of anything about their “plan” for this gas plant:

Excelsior’s Response to Commerce IRs June 26, 2012

And then the Comment period is extended and we get another bite:

MCGP Reply Comment

And now we’re off to the races…

In the Duluth News Tribune:

Feds say no more money for Iron Range Excelsior Power Plant