15-1010-15180-1
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF COMMERCE
PETROLEUM TANK RELEASE COMPENSATION BOARD
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In the Matter of Proposed Rules Relating to Petroleum Tank Release Cleanup Fund, Minnesota Rules Chapter 2890 |
REPORT OF THE CHIEF ADMINISTRATIVE LAW JUDGE |
The above-entitled matter came on for review by the Chief Administrative Law Judge pursuant to the provisions of Minn. Stat. § 14.15, subds. 3 and 4. Based upon a review of the record in this proceeding, the Chief Administrative Law Judge hereby approves the Report of the Administrative Law Judge in all respects.
In order to correct the defects enumerated by the Administrative Law Judge, the agency shall either take the action recommended by the Administrative Law Judge, follow the procedure for adopting substantially different rules or reconvene the rule hearing if appropriate. If the agency chooses to reconvene the rule hearing, it shall do so as if it is initiating a new rule hearing, complying with all substantive and procedural requirements imposed on the agency by law or rule. The procedure for adopting substantially different rules is set out in Minn. Rule 1400.2110.
If the agency chooses to take the action recommended by the Administrative Law Judge, it shall submit to the Chief Administrative Law Judge a copy of the rules as initially published in the State Register, a copy of the rules as proposed for final adoption in the form required by the State Register for final publication, and a copy of the agency’s Order Adopting Rules. The Chief Administrative Law Judge will then make a determination as to whether the defects have been corrected and whether the modifications in the rules are substantially different.
Should the agency make changes in the rules other than those recommended by the Administrative Law Judge, it shall also submit the complete record to the Chief Administrative Law Judge for a review on the issue of substantial difference.
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Dated this |
22nd |
day of |
April, |
2003. |
For: KENNETH A. NICKOLAI
Chief Administrative Law Judge
By: ___________________________ ALLAN W. KLEIN Administrative Law Judge
I am approving the conclusions of Administrative Law Judge’s Report in all respects. In Finding 74, the Administrative Law Judge determined that a proposed rule was defective because it failed to specify criteria to guide the staff’s decision. Then, in Finding 75, the Administrative Law Judge suggested language to cure the defect. That language included a list of possible criteria. But the list was preceded with the phrase “including, but not limited to”. That phrase is objectionable as it allows the use of any number of criteria not in the rule. If the rule were returned to me with that phrase, I could not approve it.
In order to cure the defect in Finding 74, the Board should include a list of criteria in the rule, but without the phrase “including, but not limited to”. The Board is free to add to the suggested list, or modify it as it sees fit. The Board may preface the list with a phrase such as “if applicable to the particular proposal”. But it may not use the “including, but not limited to” language.
For: KENNETH A. NICKOLAI
Chief Administrative Law Judge
By: ___________________________
ALLAN W. KLEIN
Administrative Law Judge
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KENNETH A. NICKOLAI |
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Chief Administrative Law Judge |