12-2901-17077-1
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
|
In the Matter of Proposed Amendments
to Rules Governing the Environmental Review Program, Minnesota Rules, chapter
4410. |
REPORT OF THE
ADMINISTRATIVE LAW JUDGE |
The rules proposed by the Environmental Quality Board (EQB or Board) in this proceeding clarify environmental review procedures and make some changes in the procedures affecting the Alternative Urban Areawide Review (AUAR) process. The proposed rules also revise the mandatory Environmental Assessment Worksheet (EAW) thresholds to reduce the number of mandatory EAWs required for the following types of projects: air pollution sources; wastewater systems; and historic places. For reasons set forth below, the Administrative Law Judge concludes that the EQB has demonstrated the need for and reasonableness of the proposed rules.
This Report is part of the rulemaking process that must occur under the Minnesota Administrative Procedure Act (APA) before an agency can adopt rules.[1] The legislature designed the process to ensure that state agencies — here, the EQB — meet the APA requirements for adopting rules. Agencies are required to demonstrate that their proposed rules are necessary and reasonable and that any modifications they later propose do not result in rules that are substantially different from those originally proposed.
Administrative Law Judge Steve M. Mihalchick
held a hearing concerning the above rules on March 30, 2006, at 2:00 p.m. and
again at 7:00 p.m. in the Fort Snelling History Center Auditorium,
Gregg Downing and Jon Larsen, of the EQB, appeared at the hearings to present the EQB’s justification for the rules and to respond to questions. Robert Roche, Assistant Attorney General, appeared on behalf of the EQB staff.
At the request of the EQB, the Administrative Law Judge extended the comment period to 20 days, until April 19, 2006, to allow interested persons and the Board to submit written comments. Through April 19, 2006, the Administrative Law Judge received two written comments from interested persons and groups.[2] An EQB Staff Reply was received from the EQB on April 19, 2006.[3] Two additional comments were received during the five-day response period.[4]
NOTICE
The EQB must make this Report available for review by anyone who wishes to review it for at least five working days before the EQB takes any further action to adopt final rules or to modify or withdraw the proposed rules. If the EQB makes changes in the rules, it must submit the rules, along with the complete hearing record, to the Chief Administrative Law Judge for a review of those changes before it may adopt the rules in final form.
After adopting the final version of the rules, the EQB must send the order adopting rules to the Administrative Law Judge. Provided that the agency has taken all of the required steps to adopt the rule, the Office of Administrative Hearings will request certified copies of the rule from the Revisor of Statutes and file them with the Secretary of State.
Based upon all the testimony, exhibits, and written comments, the Administrative Law Judge makes the following:
FINDINGS OF FACT
Rulemaking
Legal Standards
1. Under Minn. Stat. § 14.14, subd. 2, and Minn. R. 1400.2100, one of the determinations that must be made in a rulemaking proceeding is whether the agency has established the need for and reasonableness of the proposed rules by an affirmative presentation of facts. In support of a rule, an agency may rely on legislative facts, namely general facts concerning questions of law, policy, and discretion, or it may simply rely on interpretation of a statute, or stated policy preferences.[5] The EQB prepared a Statement of Need and Reasonableness (SONAR) in support of its proposed rules.[6] At the hearings, the EQB relied upon the SONAR as its affirmative presentation of need and reasonableness for the proposed amendments, supplemented by detail comments and answers by EQB staff at the public hearings and by the EQB’s written post-hearing submissions.
2.
The question of whether a rule has been shown to
be reasonable focuses on whether it has been shown to have a rational basis, or
whether it is arbitrary, based upon the rulemaking record.
3. An agency is legally entitled to make choices between possible approaches so long as its choice is rational. It is not the role of the Administrative Law Judge to determine which policy alternative presents the “best” approach, since this would invade the policy-making discretion of the agency. The question is, rather, whether the choice made by the agency is one that a rational person could have made.[11]
4. In addition to need and reasonableness, the Administrative Law Judge must also assess whether the rule adoption procedures were properly followed and whether any parts of the proposed rules are improper because a rule grants undue discretion, the agency lacks statutory authority to adopt a rule, a rule is unconstitutional or otherwise illegal, a rule constitutes an undue delegation of authority to another entity, or because the proposed language of a rule does not constitute a rule.[12]
Procedural Requirements
5. On February 14, 2005, the EQB published a Request for Comments at 28 State Register 81.[13] As required by that statute, the Request for Comments described the subject matter of the proposal, described the types of groups and individuals likely to be affected, indicated how persons could comment on the proposal, and indicated how drafts of any proposal could be obtained from the agency.[14] The Request for Comments stated that comments had to be submitted by April 18, 2005.[15] About fifty rule amendments were identified in the Request for Comments.[16] A number of comments were received and reviewed by the EQB.[17]
6. Copies of all the comments were distributed to the Board at its May 2005 meeting, posted at the EQB website, and presented at its June 2005 meeting.[18] At the August 2005 meeting, the Board was briefed by staff on recommendations for how proceed on each potential rule amendment in response to the comments. The Board agreed to delay or drop rulemaking for some of the amendments, and had the staff draft amendment language and the SONAR.[19]
7. The Board reviewed the draft proposed amendments and the SONAR at its September and October meetings, and authorized rulemaking at its December 15, 2005 meeting.[20] The proposed rulemaking affected 39 subparts of the Environmental Review rules in chapter 4410.[21]
8. The EQB filed a request with OAH for review and approval of its Additional Notice Plan. By letter of January 30, 2006, Administrative Law Judge Steve M. Mihalchick approved the Additional Notice Plan for the Request for Comments.[22]
9. As required by Minn. Stat. § 14.131, the EQB asked that the Commissioner of Finance help evaluate the fiscal impacts and benefits of the proposed rules upon local units of government. In a memorandum dated February 2, 2006, the Department of Finance noted that request and provided its evaluation that the proposed rules would not have a substantial fiscal impact on local units of government.[23] The EQB believes that the overall effect of the amendments to the rules will be a net reduction in the costs of doing environmental review.[24]
10.
On February 13, 2006, the EQB mailed the Dual
Notice of Hearing to all persons and associations included in the additional
notice plan.[25] Notice was also mailed to all individuals and
associations that had registered their names with the EQB for receiving notice
of the Department’s rulemaking efforts.[26] The Dual Notice contained the elements
required by Minn. R. 1400.2080, subp. 2.
Requests for a hearing had to be received by March 15, 2006. The Dual Notice stated that if the required
25 requests for hearing were received, a hearing would be held March 30, 2006
at the Fort Snelling History Center Auditorium,
11. The EQB received over 25 requests for a public hearing.[28]
12. At the first hearing on March 30, 2006, the EQB filed the following documents as required by Minn. R. 1400.2220:
A. The Department’s Request for Comments as published in the State Register on February 14, 2005.[29]
B. A copy of the proposed rules approved by the Revisor of Statutes.[30]
C. The Statement of Need and Reasonableness (SONAR);[31]
D. A certificate of mailing a copy of the SONAR to the Legislative Reference Library;[32]
E. The Dual Notice of Hearing as published in the State Register on January 17, 2006;[33]
F. A certificate mailing the Notice of Hearing and the proposed rules to all persons and associations who had registered their names with the agency for the purpose of receiving such notice;[34]
G. A certificate of posting notice of the rulemaking on the EQB’s website;[35]
H. A certificate of giving Additional Notice pursuant to the Additional Notice Plan: News Release.[36]
I. A certificate that the EQB published the notice of rulemaking in the EQB Monitor as described in the Additional Notice Plan;[37]
J. A certificate of mailing the Notice of Hearing and Statement of Need and Reasonableness to Legislators;[38]
K. A certificate of consulting with the Commissioner of Finance in compliance with Minn. Stat. § 14.131;
L. The certificate of the EQB Board authorizing resolution.[39]
M. Written comments and requests for hearing received by the EQB in response to the Dual Notice.[40]
N. The certification of mailing a Notice of Hearing to all persons who requested a hearing.[41]
13. In addition to the procedural documents, the EQB placed the following documents into the record on March 30, 2006:
A. A Fact Sheet on background of the air pollution source Environmental Assessment Worksheet (EAW) category revision;[42]
B. A Fact Sheet on background of the wastewater systems EAW category revision;[43]
C. A Fact Sheet on background on historical places EAW category revision;[44]
D. A Timeline diagram of the revised Environmental Impact Statement (EIS) scoping and cost agreement process; and[45]
E. A Timeline diagram of the proposed special AUAR process.[46]
14. The proposed rules will not affect farming operations. Therefore, no notice to the Commissioner of Agriculture was required under Minn. Stat. § 14.111.
15. The Administrative Law Judge finds that the EQB has complied with all the procedural requirements necessary for the adoption of the proposed rules met all of the procedural requirements under the applicable statutes and rules.
Statutory Authority
16. Minn. Stat. § 116D.04, subds 2a(a) states:
The board shall by rule establish categories
of actions for which environmental impact statements and for which
environmental assessment worksheets shall be prepared as well as categories of
actions for which no environmental review is required under this section.
The EQB has authority to adopt and amend rules governing EIS and EAW under this provision.[47]
17. Minn. Stat. § 116D.04, subd. 4a states:
The board shall by rule identify alternative forms of
environmental review which will address the same issues and utilize similar
procedures as an environmental impact statement in a more timely or more
efficient manner to be utilized in lieu of an environmental impact
statement.
The EQB has authority to adopt and amend rules governing the AUAR under this provision.[48]
18. Minn. Stat. § 116D.045, subd.1 states:
The board shall by rule adopt procedures to assess the proposer of a specific action for reasonable costs of preparing and distributing an environmental impact statement on that action required pursuant to section 116D.04. Such costs shall be determined by the responsible governmental unit pursuant to the rules promulgated by the board.
19. The EQB has demonstrated that it has the statutory authority to adopt the proposed rules.
Regulatory Analysis
20.
Under
A.
A description of
the classes of persons who probably will be affected by the proposed rule,
including classes that will bear the costs of the proposed rule and classes
that will benefit from the proposed rule.
B.
The probable
costs to the agency and to any other agency of the implementation and
enforcement of the proposed rule and any anticipated effect on state revenues.
C.
Whether there
are less costly methods or less intrusive methods for achieving the purpose of
the proposed rule.
D.
A description of
any alternative methods for achieving the purpose of the proposed rule that
were seriously considered by the agency, and the reasons why they were rejected
in favor of the proposed rule.
E.
The probable
costs of complying with the proposed rule, including the portion of the total
costs that will be borne by identifiable categories of affected parties, such
as separate classes of governmental units, businesses, or individuals;
F.
The probable
costs or consequences of not adopting the proposed rule, including those costs
or consequences borne by identifiable categories of affected parties, such as
separate classes of government units, businesses, or individuals; and the
probable costs or consequences of not adopting the proposed rule.
G.
An assessment of
any differences between the proposed rule and existing federal regulations and
a specific analysis of the need for and reasonableness of each difference.
H.
How the agency
considered and implemented the legislative policy supporting performance-based
regulatory systems set forth in section 14.002.
I.
The agency's
efforts to provide additional notification under section 14.14,
subdivision 1a, to persons or classes of persons who may be affected by the
proposed rule or must explain why these efforts were not made.
21.
In the
SONAR,[49] the EQB:
A.
Stated that the
proposed rules would directly affect persons who propose to develop projects
that have, or may have, potential for significant environmental effects.
B.
Described the
probable costs that the EQB will incur in the implementation of the rules as
minimal. The Pollution Control Agency
will experience a cost saving due to the raising or elimination of the
mandatory EAW thresholds. Responsible
Government Units (RGUs) will likely experience higher costs for review due to
some rule amendments, but in almost all cases the costs would be added to the
costs paid by the proposed users of the projects undergoing review. The additional procedures for the AUAR will
accrue in most cases to the proposer of the project that necessitated the
additional procedures. The amendments to
the mandatory EAW categories reduce the number of mandatory EAWs that have to
be prepared, resulting in some cost savings for some proposers of projects
covered by the three categories (air pollution sources, wastewater systems, and
historic places).
C.
Described consideration
of less costly and alternative approaches to the proposed rule. The EQB stated that most of the proposed
amendments are clarifications of the existing rules. Other amendments streamline the procedures
and change EAW thresholds, thereby lessening compliance costs. The amendments that allow for additional time
to be taken in the review process have to be agreed to by the project proposer,
which allows the proposer to control the extent of the additional time and
costs. The EQB did consider alternative
approaches to the proposed rule amendments in the AUAR process. The original amendment concept would have
prohibited removal of a project from an AUAR once started, and would have
prohibited use of the AUAR process to review specific development
projects. In response to public comments
opposing these prohibitions, the EQB modified the proposed amendment to create
additional opportunities for public input in the review process.
D.
Stated that the
proposed rule amendments were expected to reduce the overall cost of
environmental review because fewer EAWs would be prepared due to revisions of
the mandatory thresholds for some categories.
The beneficiaries of these reductions would be proposers of projects
within those categories, the Pollution Control Agency, which is the RGU for
most of the categories with revised thresholds, and local units of government
that no longer need to prepare EAWs for destruction of historic properties due
to revision of that mandatory EAW category.
E. Stated that, overall, the revision of the mandatory thresholds for some categories proposed rules would reduce the overall cost of environmental review because fewer mandatory EAWs would be prepared. The EQB estimates that the new EAW rule would result in perhaps two additional EAWs per year at a total cost of $10,000 to $20,000. Historically there have been about 150 EAWs prepared per year. The proposed amendment extending the period of time for gathering additional information after the EAW period is seldom expected to exceed $5,000 to $10,000. Although the rules do not currently authorize the practice, it is common for proposers and RGUs to informally agree to extend the time period for gathering more information. In these cases, the amendment has no cost impact. The amendments would permit proposers in some instances to avoid the need for ordering an EIS, which would result in considerable time and cost saving. The amendments related to the AUAR process could result in an additional cost estimated to range from $10,000 to $20,000, but these costs are no greater than the costs projects would experience if they had been reviewed through the EIS procedures. The amendment would require review of residential projects identified by annexation agreements. The EQB estimates that this will occur once or twice a year at a cost of $5,000 to $10,000 per occurrence.
F. Stated that if the proposed rule amendments were not adopted, the costs and consequences would affect three categories; those that would have to prepare mandatory EAWs that would not be mandatory under the amended rules; those affected by ineffective features in the current rules that would be corrected by the amendments; and continuing inefficiencies caused by confusion or misinterpretation that would be corrected by the proposed amendments. Based on numbers provided Pollution Control Agency related to the air pollution category, the EQB estimates not adopting revisions to the air pollution category would result in 1-2 extra EAWs being prepared per year at a cost of $5,000 to $10,000 for each EAW. Not adopting revisions to the wastewater systems category would result in an extra seven EAWS being prepared each year at a cost of $5,000 to $10,000 each. The EQB estimates that together the reductions in EAWs for the air pollution and wastewater systems categories would result in a cost savings to the Minnesota Pollution Control Agency of $78,000. Without the proposed AUAR changes, the EQB states that the potential will continue to exist for certain projects to avoid review of their environment consequences and may contribute to lawsuits over incomplete review of certain projects. However, the EQB cannot make a meaningful estimate of the costs associated with ambiguous or unclear rules.
G. Stated that the federal process prescribes environmental documents similar to Minnesota EAW and EIS but different in detail. In the instances where dual state-federal review is needed, specific provisions in the Environmental Review rules provide for joint review with one set of environmental documents. These provisions are not affected by the proposed amendments.
H. Stated that there were no opportunities here for new performance-based rules or providing procedural flexibility because most of the proposed amendments do not substantially affect the procedures of environmental review, and that few of the amendments related to the AUAR process add public notice, review and comment process,.
I. Described the EQB’s efforts to provide additional notice to persons who may be affected by the proposed rules as provided in its Additional Notice Plans that were approved by the Office of Administrative Hearings.
22. The Administrative Law Judge finds that the EQB has considered and satisfied the requirements of Minn. Stat. § 14.131.
Section 14.127
analysis
23.
Under
24. The Administrative Law Judge finds that the EQB has general statutory authority to adopt the proposed rules and rule amendments.
Analysis of the
Proposed Rules
The General Need for
the Proposed Rules
25. Most of the proposed rule amendments are minor “housekeeping” or technical amendments that are intended to clarify points of ambiguity or confusion in the existing rules or to correct some minor flaw or inefficiency in the environmental review procedures.
26. A few of the amendments require additional review procedures or steps in limited circumstances, primarily affecting the AUAR process and revisions to the EAW thresholds to reduce the number of mandatory EAWs required for three types of projects: air pollution sources; wastewater systems; and historic places.
Broad Issues
27. The primary concern raised by comments to the proposed rules were the provisions regarding the AUAR process, specifically the procedure to be followed in the event a parcel or project would be suggested for removal from the AUAR.[51] The AUAR process was established as an alternative form of environmental review similar to but used in lieu of an EIS.[52] The AUAR is intended to be a comprehensive review of a broader geographic area.
Minn. R. 4410.0200.
Minn. R. 4410.0200, subp. 1a.
28. EQB amended this subpart to delete the reference to the State Planning Agency, which was abolished in 1991. No comments were received on this editorial change and it is reasonable and necessary.
Minn.
R. 4410.0200, subp. 9b.
29. Existing Minn. R. 4410.0200, subp. 9b defines three relationships that can constitute “connected actions.” The EQB proposes to clarify the second of the three relationships that can constitute connected actions as follows (new text in proposed rule underscored):
Subp. 9b. Connected actions. Two projects are “connected actions” if a responsible governmental unit determines they are related in any of the following ways:
B. one project is a prerequisite for the
other and the prerequisite project is not justified by itself;
30. The EQB observes that when a prerequisite project is justified on its own, it should be considered on its own rather than as an inseparable portion of any project. This principle is not reflected in the current language. No comments were received on this change and it is reasonable and necessary.
Minn. R. 4410.0200, subp. 69.
31.
The EQB amended this definition to replace the term “protected
waters” with “public waters” to be consistent with the Legislature’s amendment
of Minn. Stat. § 103B.005. The
editorial change is reasonable and necessary.
Minn.
R. 4410.0200, subp. 70.
32.
The EQB amended this definition to replace the term “protected
wetland” with “public waters wetland” to be consistent with the Legislature’s amendment of
Minn. Stat. § 103B.005. The
editorial change is reasonable and necessary.
Minn.
R. 4410.0200, subp. 81.
33.
The EQB proposed to modify the definition of “sewered
area” as follows (new text in proposed rule underscored):
Sewered area” means an area: A. that is serviced by a wastewater treatment
facility or a publicly owned or homeowner owned, operated, or supervised
centralized septic system servicing the entire development;
34.
Commentators suggested that the EQB add the phrase “or other
privately owned” along with “homeowner owned.”[53] The EQB responded that the proposal would be
contrary to the intent of the amendment, which was to simply make EQB’s
intention, as reflected in the 1982 SONAR, consistent with the rule.[54] The excerpt from the 1982 SONAR specifically
indicates that the EQB did not intend at that time to cover systems that were
privately managed, and that the suggested change had not been discussed by the
EQB Board.[55]
35.
After reviewing comments, the EQB withdrew its proposed amendment
to Minn. R. 4410.0200, subp. 81.
36.
Proposed rules withdrawn by the Agency are not
subject to review in this proceeding.
Minn.
R. 4410.0200, subp. 92.
37.
The EQB amended this subpart to delete a reference to “on-site
treatment facilities.” The EQB notes
that the common usage of the phrase has changed over time. The phrase originally meant wastewater treatment facilities, other
than municipal facilities, built by the proposer “on site” to serve a
particular development. Today, the
phrase has come to refer to septic tank/drainfield systems or other small-scale
treatment systems serving an individual residential lot. There were no comments and the change is
reasonable and necessary.
Minn.
R. 4410.1000, subp. 5.
38.
The EQB proposes to amend the subpart to create a criterion for
determining if a new EAW should be prepared if there is a change after the EAW review
but before the project is approved or built, as follows (new text in proposed
rule underscored):
Subp. 5. Change in proposed
project; new EAW. If, after a
negative declaration has been issued but before the proposed project has
received all approvals or been implemented, the RGU determines that a
substantial change has been made in the proposed project that or has
occurred in the RGU’s circumstances, which change may affect the potential
for significant adverse environmental effects that were not addressed in the
existing EAW, a new EAW is required.
39.
The EQB modification provides guidance when there is a
substantial change in circumstances which results in significant adverse
impacts that were not addressed in the existing EAW. The EQB’s amendment represents a necessary and reasonable choice.
Minn.
R. 4410.1000, subp. 6.
40.
Minn. R. 4410.1000 establishes rules for the EAW Petition
Process. The existing rule did not
address whether the RGU should consider mitigation and regulation applicable to
a project when deciding if a project may have the potential for significant
environmental effect. The EQB proposed
to amend Subpart 6 to add a provision about taking mitigation and regulation
into account when the RGU considered an EAW petition. The amended rule directs RGUs to take into
account the factors lists in Minn. R. 4410.1700, subp. 7.
41.
Comments received in response to the Request for Comments expressed
concern that consideration of mitigation and regulation would give an RGU yet
another reason to dismiss a petition when at least four out of five petitions
are already dismissed under the present criteria.
42.
While the EQB recognized that adding a provision about
consideration of mitigation and regulation could be used by an RGU as another
reason to deny a petition, the Agency believes that it is important for an RGU
to take mitigation measures into account and that the amended rule creates
uniform standards to direct the decision of the RGU.
43.
The EQB has demonstrated that the proposed rule is reasonable and
necessary and provides needed standards for RGUs considering EAW petitions.
44.
Minn. R. 4410.1200 lists information that must be addressed in
an EAW. The existing EAW content
requirements do not address the compatibility of a project with plans that have
been approved by local units of government.
At least one interested party has pointed this out to the EQB. While the actual EAW worksheet has included a
question that addresses whether or not a project is compatible with local
approved plans, the existing rule does not. The amended rule adds a new item H
that addresses this issue.
45.
The EQB has demonstrated that the proposed rule is reasonable and
necessary and provides a needed standard for EAWs.
46.
Existing Minn. R. 4410.1400 requires RGUs to “promptly”
determine whether a proposer has submitted a complete EAW. The EQB believes the “promptly” standard is
vague and can be
the subject of disputes between RGUs and proposers. The amended rule establishes that RGUs shall make
a determination within 30 days unless the RGU and the proposer agree to a
different time period.
47.
The EQB has
demonstrated that the proposed rule adding a time period for review is
reasonable and necessary and provides a needed standard for RGUs to review
EAWs.
48.
Minn. R. 4410.1500 is a list of entities that shall
receive copies of EAWs from the RGU. The
list is out of date.
49.
The EQB amended this subpart to remove institutions that no longer want to
receive EAWs and added other institutions in order to achieve a wider
distribution of EAWs for review. This
change is necessary and reasonable.
50.
51.
The EQB amended this subpart to permit the RGU and the proposer
to agree to extensions for longer than 30 days. This change
is necessary and reasonable.
Minn. R. 4410.1700, subp. 3.
52.
Minn. R. 4410.1700, subp. 3, provides that when RGUs order a
positive declaration, i.e., orders preparation of an EIS, the RGU must at the
same time develop a draft EIS scope. The
EQB observes that it has been very difficult for RGUs to develop a proposed EIS
scope. The amended rule deletes the requirement that
the proposed EIS scope must be prepared at the same time as the
declaration. The amended rule
coordinates with changes to Minn. R. 4410.2100, subp. 4 to create a more
workable process for the scoping of an EIS ordered after completion of an EAW.
53.
Subpart 3, as amended by the EQB, is necessary and reasonable.
Minn. R. 4410.2100, subp. 4.
54.
Minn. R. 4410.2100, subp. 4, contains provisions regarding the timing
of notice of a public meeting regarding the scoping of an EIS that has been
ordered after the preparation of an EAW and the issuance of a “proposed
declaration.” The EQB proposed
amendments to Subpart 4 to coordinate with amendments to Minn. R. 4410.1700,
subp. 3, that are designed to improve the transition from the decision to
prepare an EIS into the scoping of an EIS.
55.
The amended rule starts the timeframe for scoping at 15 days from the date
the proposer pays the RGU for the estimated scoping costs, rather than from the
date the RGU made its “positive declaration.”
The amendment requires notice of the public scoping meeting within 15
days after the proposer pays the scoping cost and further requires the RGU to
issue its final decision within 15 days after the public scoping meeting. These changes only affect the starting point
of the timeframe for the scoping decision and do not change the meeting
schedule.
56.
Subpart 4, as amended by the EQB, is necessary and reasonable.
57.
Minn. R. 4410.2100, subp. 8, provides that notice must be given
in the EQB Monitor whenever the scope of an EIS is revised
by the RGU. The amendment permits the
notice of a revised EIS to be incorporated with notice of availability of the
draft or final EIS.
58.
Subpart 8, as amended by the EQB, is necessary and reasonable.
Minn. R. 4410.2100, subp. 9.
59.
Minn. R. 4410.2100, subp. 9, establishes time periods for publication
of an EIS preparation notice.
60.
Subpart
9, as amended by the EQB, is necessary and reasonable.
Minn. R. 4410.3100, subp. 1.
61.
62.
Subpart 1, as amended by
the EQB, is necessary and reasonable.
Minn. R. 4410.3610, AUAR
process.
63.
Most of the comments received by the EQB concerned proposed
amendments to the Alternative Urban Areawide Review Process (AUAR).[57]
Minn. R. 4410.3610, subp. 1.
64.
Minn. R. 4410.3610 provides that certain types of industrial
projects cannot be reviewed through the AUAR process. In 1997, the EQB amended Subpart 1 to define
“light industrial” projects and list a number of industrial projects that were
not “light industrial.” The EQB has found
this classification system confusing because the term “light industrial” is
used differently in other contexts. The
existing rule also eliminated wastewater systems, sewage treatment systems and
industrial wastewater treatment systems from the AUAR process. The amended rule eliminates the definition of
“light industrial” and simply provides a list of industrial project types. It also allows for review of sewer systems in
an AUAR.
Subpart
1. Applicability. A local unit of government may use the
procedures of this part instead of the procedures of parts 4410.1100 to
4410.1700 and 4410.2100 to 4410.3000 to review anticipated residential,
commercial, warehousing, and light industrial development and associated
infrastructure in a particular geographic area within its jurisdiction, if the
local unit has adopted a comprehensive plan that includes at least the elements
in items A to C.
For purposes of this part, “light industrial development,
facility, or project” includes a development, facility, or project engaged in
the assembly of products from components that are not produced at the site, but
does not include any development, facility, or project, including an assembly
development, facility, or The procedures of this part may not be used to review any
project, meeting the requirements for a mandatory EAW in part 4410.4300,
subparts 2 to 13, 15 to 17, 18, item B or C, or 24, or a
mandatory EIS in part 4410.4400, subparts 2 to 10, 12, 13, or 25.
65.
Subpart 1, as amended by the EQB, is necessary and reasonable.
Minn. R. 4410.3610, subp 2.
66.
Existing Minn. R. 4410.3610, subp. 2, sets forth standards
regarding relationship of residential, commercial, warehousing, and light
industrial developments within AUAR boundaries.
The EQB proposed to delete some language and add new language to subpart
2.
67.
The EQB withdrew the amendment to Minn. R. 4410.3610, subp. 2,
after receiving public comment.[58]
68.
Proposed rules withdrawn by the Agency are not
subject to review in this proceeding.
Minn. R. 4410.3610, subp. 5 A.
69.
The EQB proposed to require preparation of a
draft version of mitigation plan by the RGU.
70.
Subpart 5 A, as amended by the EQB, is necessary and reasonable
Minn. R. 4410.3610, subp. 5 B.
71.
Minn. R. 4410.3610, subp. 5B,contains several
editorial changes to a draft AUAR analysis document. Responding to
comments by the Builders Association of the Twin Cities, following the public
hearing, the EQB suggested modifications as follows (new text added after the public
hearing underscored):
B. Reviewers shall have 30
days from the date of notice of availability of the draft environmental
analysis in the EQB Monitor to submit written comments to the RGU. Reviewers that are governmental units shall
be granted a 15-day extension by the RGU upon a written request for good
cause. A copy of the request must be
sent to the EQB. Comments may address the
accuracy and completeness of the information provided in the draft analysis and
the draft mitigation plan, potential impacts that warrant further analysis,
further information that may be required in order to secure permits for
specific projects in the future, and mitigation measures or procedures
necessary to prevent significant environmental impacts within the area when
actual development occurs, and the need to analyze additional development
scenarios as required by this part.[59]
72.
The editorial changes to Subpart 5 B are necessary and reasonable. The modifications do not create a substantial
difference from the proposed subpart 5B.
Minn. R. 4410.3610, subp. 5 D.
73.
The EQB amendment to Minn. R. 4410.2610, subp. 5D adds the
reference to the inclusion of the mitigation plan to the AUAR and adds a new
justification, consistent with the new provision in Minn. R. 4410.2610, subp. 5a, for filing objections by
a state agency or the Metropolitan Council.
There were no objections to this change.
74.
Subpart 5D, as amended by the EQB, is necessary and reasonable.
Minn. R. 4410.3610, subp. 5 E.
75.
The EQB proposed changes to Minn. R. 4410.2610, subp. 5 E, to
clarify that the plan for mitigation is part of the AUAR analysis document. The EQB received no objection to this change.
76.
Subpart 5 E, as amended by the EQB, is necessary and reasonable.
Minn. R. 4410.3610, subp. 5 F.
77.
The EQB amendment to Minn. R. 4410.2610, subp. 5 F, removes some
of the prescribed material RGU would currently have to provide in response to an objection. The EQB received no comment on the amendment.
78.
Subpart 5 F, as amended by the EQB, is
necessary and reasonable.
Minn. R. 4410.3610, subp. 5 H.
79.
The EQB amendment to Minn.
R. 4410.3610, subp. 5 H, revised the rule to parallel the revisions to Minn. R. 4410.2610, subp. 5 D. Responding to comments by the Builders
Association of the Twin Cities, following the public hearing, the EQB suggested
modifications as follows (new text added after the public hearing underscored):
H. If the matter is referred
to the EQB under item G, the EQB shall determine whether the environmental analysis
document and its plan for mitigation is adequate, conditionally adequate, or
inadequate. If the EQB find the document
conditionally adequate or inadequate, the EQB shall specify the revisions
necessary for adequacy. The EQB shall
only find the document inadequate if the EQB determines that it contains
inaccurate or incomplete information necessary to the identification and
mitigation of potentially significant environmental impacts, that the review of
development scenarios is not in compliance with this part, or that the
proposed plan for mitigation will be inadequate to prevent the occurrence of
potentially significant environmental impacts.
80.
Subpart 5 H, as amended by the EQB, is necessary and reasonable. The modifications to Subpart 5H do not create
a substantial difference from the proposed rule.
Minn. R. 4410.3610, subp. 5a.
81.
The EQB
proposed amendment to add a new subpart 5a that would read as follows:
Subp. 5a. Additional procedures required when certain
specific projects are reviewed. The
procedures in this subpart must be followed in addition to those in subpart 5
if a specific project will be reviewed under the procedures of this part rather
than under the EAW or EIS procedures and the project itself would otherwise
require preparation of an EIS under part 4410.4400 or will comprise at least 50
percent of the ground area covered by the alternative urban areawide review.
A. Prior to the approval of the order for review under subpart
3, the RGU must conduct a public comment process to assist it in identifying
appropriate development scenarios and relevant issues to be analyzed in the
review. The RGU shall prepare a draft
order for review and distribute it and provide notice of its availability in
the same manner as for an EAW under part 4410.1500. The draft order for review must include the
information specified in subpart 3.
B. Government units and interested persons shall participate in
the public comment process according to part 4410.1600, except the comments
shall address suggested additional development scenarios and relevant issues to
be analyzed. Comments may suggest
additional development scenarios, including development at sites outside of the
proposed alternative urban areawide review boundary, if the additional
scenarios would likely minimize or avoid potentially significant environmental
impacts that may result from development of the scenarios based on or
incorporating the plans for the specific project or projects that require use
of the procedures of this subpart. The
comments must provide reasons why a suggested additional scenario is
potentially environmentally superior.
C. The RGU must consider all timely and substantive comments
received when finalizing the order for review. The RGU shall apply the criteria for excluding
an alternative from analysis found in part 4410.2300, item G, in determining if
a suggested alternative scenario should be included or excluded. If the RGU excludes a suggested additional
development scenario, it must document its reasons for excluding the scenario
in a written record of decision.
D. The RGU shall adopt the final order for review within 15 days
of the end of the comment period. A copy of the order and the RGU’s record of
decision for the order’s adoption must be sent within ten days of the decision
to the EQB and to anyone who submitted timely and substantive comments.
82.
After reviewing comments it received, the EQB withdrew the
proposed amendment to subpart 5a.[60]
83.
Proposed rules withdrawn by the Agency are not
subject to review in this proceeding.
Minn. R.
4410.3800.
Minn.
R. 4410.3800, subp. 5.
84.
The EQB amends Minn. R. 4410.3800, subp. 5, to add three
additional criteria that the EQB may consider when determining whether a
Generic EIS should be ordered. The additional criteria came to the EQB’s
attention when it considered the Generic EIS on Animal Agriculture and from
language used in legislative bills regarding Animal Agriculture.[61] The EQB received no comments on the proposed
amendment.
85.
Subpart 5, as amended by the EQB, is necessary and reasonable.
Minn. R. 4410.3800, subp. 8.
86.
The EQB proposed to delete references to generic EIS material. The EQB observes that the existing rule has been
the subject of litigation and has caused administrative problems. Although the EQB requested comments on this
specific subpart, no one responded.[62] The EQB then decided to delete the second
sentence of subpart 8.
87.
Subpart 8, as amended by the EQB, is necessary and reasonable.
Minn. R. 4410.4300, subp. 15.
88.
89.
The
90.
The EQB responded that the MCEA’s concern was primarily with
ethanol and mineral mining, both of which are mandatory EAW categories.[65] Furthermore, the EQB notes that in the event
a project does not require a mandatory review the public can petition for
environmental review.[66]
91.
Subpart 15, as amended by the EQB, is necessary and reasonable.
Minn. R. 4410.4300, subp. 18.
92.
Minn. R. 4410.4300, subp. 18, establishes thresholds for
wastewater systems. The EQB amended the
wastewater threshold for mandatory environmental review from 50,000 gpd to
200,000 gpd.[67] The MPCA believes that the revised thresholds
are appropriate.
93.
WSB and Associates suggested that the RGU for sewer trunk lines
and lift stations should be the municipality rather than the MPCA.[68] WSB argued that the existing process has been
cumbersome, time consuming and results in duplication of efforts since the
municipalities provide the EAW information to the MPCA and the MPCA then
reviews the EAW.
94.
The EQB continues to believe that the MPCA is the appropriate
RGU for the whole wastewater systems category.
Creation of two categories of RGUs would create confusion. The MPCA has the authority to issue sewer
permits. Approval of sewer extension
depends upon wastewater treatment plant capacity which is determined by the
MPCA. For these reasons, the EQB
rejected WSB’s suggestion.[69]
95.
Subpart 18, as amended by the EQB, is necessary and reasonable.
Minn. R. 4410.4300, subp. 19.
96.
97.
The Builders Association of the Twin Cities questioned whether
this amendment would
use annexation of a portion of a township as a trigger for mandatory review.[71] The EQB responded that relative proportional
size affected by the annexation agreement was immaterial; that it was being
used as an indicator of future residential development.[72]
98.
The Builders Association also suggested that the amendment to
this rule be restricted to an “annexation agreement specific to the residential
development.” The EQB rejected this
suggestion because restricting annexation agreements to those specific to
residential development would defeat the purpose of the amendment, which was to
include any annexation agreement within a geographic scope.[73]
99.
The EQB
has considered the Builders Association and Township Association objections to
Subpart 19.[74] Following the hearing, the EQB modified the
amendment to read as follows (stricken text and new text underline added after
the public hearing).
Subp. 19 Residential development. An [EAW/EIS]
is required for residential development if the total number of units that may
ultimately be developed on all contiguous land owned or under an option to
purchase by the proposer, and that is zoned for residential development or
is identified for residential development except land identified by
an applicable comprehensive plan, ordinance, resolution or annexation
agreement of a local governmental unit for a future use other than residential
development, equals or exceeds a threshold of this subpart. [Remainder of
subparts as proposed before.]
100. The EQB modified the rule to
incorporate the annexation by ordinance process.[75]
101. Subpart 19, as amended by the
EQB, is necessary and reasonable.
Minn. R. 4410.4300, subp. 27.
102. The EQB amends Minn. R.
4410.4300, subp. 27, to replace the term “protected waters” with “public
waters” consistent with changes in relevant legislation.
103. This editorial change to
Subpart 27 is necessary and reasonable.
Minn. R. 4410.4300, subp. 31.
104. The EQB proposes to revise
Minn. R. 4410. 4300, subp. 31, descriptions of historic places. The revisions were made in conjunction with the Minnesota Historical
Society’s State Historic Preservation Office.[76] The EQB received no comments regarding
changes to the historical places rule.
105. Subpart 31, as amended by the EQB, is
necessary and reasonable.
Minn. R. 4410.4300, subp. 33.
106. The EQB amends Minn. R. 4410.4300,
subp. 33, to replace the term “protected waters” with “public waters”
consistent with changes in relevant legislation.
107. The editorial change to Subpart 33 is
necessary and reasonable.
Minn. R.
4410.4400.
Minn.
R. 4410.4400, subp. 5.
108.
109. Subpart 5, as amended by the
EQB, is necessary and reasonable.
Minn. R. 4410.4400, subp. 14.
110. The EQB amended subpart 14 to
include reference to annexation agreements consistent with Minn. R. 4410.4300,
subp. 19.[77]
111. Subpart 14, as amended by the EQB, is
necessary and reasonable.
Minn. R. 4410.4400, subp. 19.
112. The EQB amended subpart 19 to
change terminology to public waters consistent with Minn. R. 4410.4300, subp.
19.
113. Subpart 19, as amended by the EQB, is
necessary and reasonable.
Minn. R. 4410.4400, subp. 20.
114. The EQB amended subpart 20 to
change terminology to public waters consistent with Minn. R. 4410.4300, subp.
20.
115. Subpart 20, as amended by the EQB, is
necessary and reasonable.
Minn. R.
4410.4600.
Minn.
R. 4410.4600, subp. 2.
116. The EQB amended Minn. R.
4410.4600, subp. 2, to clarify when some projects are exempt.
117. Subpart 2, as amended by the
EQB, is necessary and reasonable.
Minn. R. 4410.4600, subp. 19.
118. The EQB amended Minn. R.
4410.4600, subp. 19, to change the thresholds for construction of animal feed
lots consistent with an exemption created by the
119. Subpart 19, as amended by the EQB, is
necessary and reasonable.
Minn. R. 4410.5200, subp. 1.
120. The EQB amended Minn. R.
4410.5200. subp. 1, to delete publication provisions related to pesticides, and
added provisions to include notices pertaining to the AUAR process in the EQB Monitor.
121. Subpart 1, as amended by the
EQB, is necessary and reasonable.
Minn. R. 4410.5600, subp. 2.
122. The EQB amended Minn. R.
4410.5600. subp. 2, to authorize the EQB to distribute the EQB Monitor by electronic means only.
123. The MCEA expressed concern that the
elimination of mailed paper copies of the EQB
Monitor would hinder public participation because not everyone has ready
access to the internet.[78]
124. The EQB responded that it has
statutory authority to establish by rule a procedure for providing early notice
of actions that may have significant environmental effects.[79] The EQB stopped offering subscriptions to
paper copies of the EQB Monitor in
July 2005.[80] The EQB believes that the EQB Monitor and
other electronic notices are reasonably available through computers at any
public library. For these reasons the EQB
believes the electronic, web based publishing provides adequate access to
environmental actions proposed by the EQB.[81]
125. Subpart 2, as amended by the
EQB, is necessary and reasonable.
Minn. R. 4410.6100, subp. 1.
126. EQB amended Minn. R.
4410.6100, subp. 1, to be consistent with Minn. R. 4410.2100, subp. 9.
127. Subpart 1, as amended by the EQB,
is necessary and reasonable.
Minn. R. 4410.6200, subp. 1.
128. The EQB amended Minn. R.
4410.6100, subp. 1, to allow an RGU to waive the charge of staff-related costs of preparing an
EIS.
129. Subpart 1, as amended by the EQB, is
necessary and reasonable.
Minn. R.
4410.6500.
Minn.
R. 4410.6500, subp. 1.
130. The EQB amended Minn. R.
4410.6500. subp. 1, to clarify when a proposer must pay an RGU for the estimated scoping
costs.
131. Subpart 1, as amended by the
EQB, is necessary and reasonable.
Minn. R. 4410.6500, subp. 6.
132. The EQB amended Minn. R. 4410.6500,
subp. 6, to clarify procedures for notification of final payment by a proposer.
133. Subpart 1, as amended by the EQB, is necessary and reasonable.
1.
The EQB gave
proper notice in this matter.
2.
The EQB has
fulfilled the procedural requirements of Minn. Stat. § 14.14 and all other
procedural requirements of law and rule.
3.
The EQB has
demonstrated its statutory authority to adopt the proposed rules, and has
fulfilled all other substantive requirements of law or rule within the meaning
of Minn. Stat §§ 14.05, subd. 1; 14.15, subd. 3; and 14.50 (i) and (ii).
4.
The EQB has
demonstrated the need for and reasonableness of the proposed rules by an
affirmative presentation of facts in the record within the meaning of Minn.
Stat. §§ 14.14, subd. 4, and 14.50 (iii).
5.
The EQB
initially considered revising about fifty rules. It reduced its proposed revision to
thirty-nine. After reviewing comments the
EQB withdrew proposed amendments to Minn. R. 4410.0200, subp. 81; 4410.3610,
subp. 2; and 4410.3610, subp. 5a. The EQB modified the proposed amendment to
Minn. R. 4410.4300, subp. 19 and 4410.4400, subp 14.
6.
The final proposed
rules are not substantially different from the proposed rules and, thus, do not
violate Minn. Stat. § 14.05, subd. 2.
7.
A Finding or
Conclusion of need and reasonableness in regard to any particular rule
subsection does not preclude and should not discourage the EQB from further
modification of the proposed rules based upon an examination of the public
comments, provided that the rule finally adopted is based upon facts as
appearing in this rule hearing record.
Based upon the foregoing Conclusions, the
Administrative Law Judge makes the following:
IT IS HEREBY RECOMMENDED that the proposed rules, as modified by the EQB, be
adopted.
Dated: May 18, 2006
/s/ Steve M. Mihalchick
|
STEVE
M. MIHALCHICK Administrative
Law Judge |
Reported: Transcripts of both hearings were prepared by Kirby A. Kennedy & Associates.
[1]
[2] Exs. 22 and 23.
[3] Ex. 21.
[4] Exs. 24 and 25.
[5] Mammenga v. Dept.of Human Services, 442
N.W.2d 786 (
[6] Ex. 3.
[7] In re Hanson, 275 N.W.2d 790 (
[8] Greenhill v. Bailey, 519 F.2d 5, 19 (8th Cir. 1975).
[9] Mammenga, 442 N.W.2d at 789-90; Broen Mem’l Home v. Dept. of Human Services, 364 N.W.2d 436, 444 (Minn. Ct. App. 1985).
[10] Manufactured Hous. Inst. v. Pettersen, 347 N.W.2d at 244.
[11] Federal Sec. Adm’r v. Quaker Oats Co.,
318
[12]
[13] Ex. 1.
[14] Ex. 3 (the SONAR) at 3.
[15] Ex. 1.
[16] Ex 1; Testimony of Gregg Downing, Tr. 10.
[17] Ex 3 at 2; Testimony of G. Downing, Tr. 10.
[18]
[19]
[20]
[21] Ex. 16.
[22] Ex. 20.
[23] Ex. 10.
[24] Testimony of G. Downing, Tr. 11.
[25] Ex. 6; 30 S.R. at 869 – 879.
[26]
[27]
[28] Ex. 12.
[29] Ex. 1, 29 S.R. 950-951, February 14, 2005.
[30] Ex. 2.
[31] Ex. 3.
[32] Ex. 4.
[33] Ex. 6, 30 S.R. 869, February 6, 2006.
[34] Ex. 7.
[35] Ex. 8C.
[36] Ex. 8B.
[37] Ex. 8A.
[38] Ex. 9.
[39] Ex. 11.
[40] Ex. 12.
[41] Ex. 13.
[42] Ex. 14 A.
[43] Ex. 14 B.
[44] Ex. 14 C.
[45] Ex. 15 A.
[46] Ex. 15 B.
[47] Ex. 16.
[48] See also Minn. Stat. § 116D.04, subd. 5a.
[49] Ex. 3.
[50] Testimony of G. Downing, Tr. 11.
[51] Testimony of G. Downing, Tr. 12.
[52] Testimony of G. Downing, Tr. 33.
[53] Testimony of G. Downing, Tr.19 – 20 ; Testimony of Lloyd Grooms, Tr. 44-46; Ex. 12, letter of L. Grooms.
[54]
[55]
[56] Ex. 15 B.
[57] Testimony of G. Downing, Tr. 10.
[58] Ex. 25.
[59] Ex. 21.
[60] Ex. 25.
[61] Ex. 3 at 31.
[62] Ex. 3 at 32.
[63] Ex. 3 at 35; Ex. 14A.
[64] Testimony of J. Brimmer, Tr. 41; Ex. 23.
[65] Ex. 25.
[66]
[67] Ex. 3 at 36; Ex. 14B.
[68] Ex. 12, Letter of Andrea Moffatt dated March 13, 2006.
[69] Ex. 25.
[70] Ex. 3 at 39; Testimony of G. Downing, Tr. 23 – 24.
[71] Testimony of L. Grooms, Tr. 46.
[72] Testimony of G. Downing, Tr. 47- 48.
[73] Ex. 21.
[74] Exs. 12, 21 and 25.
[75] The EQB also revised the parallel provision in Minn. R. 4410.4400, subp. 14.
[76] Ex. 3 at 40; Ex. 14C.
[77] See Findings 96 – 101; Ex. 25.
[78] Testimony of J. Brimmer, Tr. 41- 42.
[79]
Citing
[80] Ex. 21.
[81]