August 27, 1995

 

Norma L. Coleman Air Quality Division Rules Coordinator Program Development Section Air Quality Division Minnesota Pollution Control Agency 520 Lafayette Road St. Paul     MN  55155-4194

 

RE:      Proposed Permanent Rules Governing the Removal of Lead Paint from Steel Structures Minn. Rule 7025.0200 to 7025.0380

Dear Ms. Coleman:

This letter will confirm the issues we discussed in our telephone conference of August 25, 1995.  Laws of 1995, Chapter 233, Article 2, Section 11 requires the agency to “solicit comments from the public on the subject matter of a possible rule making proposal under active consideration within the agency by causing notice to be published in the State Register” at least 60 days before publication of a Notice of Intent to Adopt or a Notice of Hearing.  This provision became effective May 26, 1995 and applies to Notices of Intent to Adopt issued on or after that date.  My review of the statutory amendment clearly indicates that it is intended to be jurisdictional. 

I have reviewed the Notice of Intent to Solicit Outside Information which was published by the agency in the State Register on March 2, 1992 and the Notice of Intent to Form Advisory Committee published in the State Register on December 21, 1992.  Neither of these notices comply with Section 11.  The Notice of  Intent to Solicit Outside Information was issued prior to a rule making proposal under active consideration within the agency. The  Notice of  Intent to Form Advisory Committee does not comply as it does not identify the types of groups and individuals likely to be affected and does not indicate where, when, and how persons may comment on the proposal.  Furthermore, these notices were issued back in 1992 which is too remote in time to be considered a substitute for the required notice in Section 11.  I have also looked at Section 11, subdivision 3, Effective Good Faith Compliance, and I am unable to apply that subdivision to this case because the agency has not issued any notice from which to evaluate whether its contents are insufficient or inaccurate.

Unfortunately, it is my decision that the agency has not complied with Section 11, subdivision 1 and, therefore, must publish the required notice before it can publish the Notice of Intent to Adopt or a Notice of Hearing.  To rule otherwise would make Section 11 meaningless.

 

Nancy L. Coleman

August 27, 1995

Page Two

 

Thank you for your cooperation.  If you have any other questions whatsoever, please feel free to contact me at the phone number listed below.

                                                                              Sincerely,

 

 

 

                                                                              PHYLLIS A. REHA

                                                                              Administrative Law Judge

 

                                                                              Telephone: 612/341-7611

 

PAR:mki