OAH 11-2901-21783-1
Governor’s Tracking No. AR 593
STATE OF
OFFICE OF
ADMINISTRATIVE HEARINGS
FOR THE ENVIRONMENTAL QUALITY BOARD
|
In the Matter of the Proposed Amendments to Rules Governing the
Environmental Review |
REPORT OF THE ADMINISTRATIVE LAW JUDGE |
Administrative Law Judge Barbara
L. Neilson of the Office of Administrative Hearings conducted a hearing in this
rulemaking proceeding on Wednesday, March 9, 2011. The hearing commenced at 2:00 p.m. in the Minnesota
Pollution Control Agency Board Room,
The hearing and this Report are
part of a rulemaking process governed by the Minnesota Administrative Procedure
Act.[1] The Minnesota Legislature has designed this
process to ensure that state agencies have met all of the requirements that
Jon Larsen, Environmental
Quality Board, appeared at the rule hearing on behalf of the Environmental
Quality Board (Board). Also presenting
for the Board was Barbara Jean Conti, permit writer with the Minnesota
Pollution Control Agency. Approximately 30
people attended the hearing. In addition
to the Board’s representatives, ten members of the public made statements at
the hearing.
The Board and the Administrative
Law Judge received written comments on the proposed rules prior to the
hearing. After the hearing ended, the
Administrative Law Judge kept the administrative record open for another 20
calendar days – until March 29, 2011 – to permit interested persons and the Board
to submit written comments. Following
the initial comment period, the hearing record remained open for an additional
five business days—until April 5, 2011--to allow interested parties and the
Board an opportunity to reply to earlier-submitted comments.[2] Numerous comments were received during the
rulemaking process, and all of the comments received were read and considered.[3] To aid the public in participating in this
matter, comments were posted on the website of the Office of Administrative
Hearings shorter after they were received.
The hearing record closed for all purposes on April 5, 2011.
SUMMARY OF CONCLUSIONS
The Board has established that it has fulfilled all of the applicable
procedural and substantive requirements in this rulemaking proceeding and that
the proposed rules are needed and reasonable.
NOTICE
The Board must make this Report
available for review by anyone who wishes to review it for at least five
working days before the Board takes any further action to adopt final rules or
to modify or withdraw the proposed rules.
If the Board makes changes in the rules other than those recommended in
this report, 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 Board must submit them to the Revisor of Statutes for a
review of their form. If the Revisor of
Statutes approves the form of the rules, the Revisor will submit certified
copies to the Administrative Law Judge, who will then review them and file them
with the Secretary of State. When they
are filed with the Secretary of State, the Administrative Law Judge will notify
the Board, and the Board will notify those persons who requested to be informed
of their filing.
Based upon all the testimony, exhibits, and written comments, the
Administrative Law Judge makes the following:
FINDINGS OF FACT
Background and Nature of the Proposed Rules
1.
Pursuant to the Minnesota Environmental Policy Act
of 1973, the Board is authorized to adopt rules that establish standards for
the Minnesota Environmental Review Program.[4]
The Board’s rules relating to the
Minnesota Environmental Review Program are set forth in Minnesota Rules Chapter
4410.
2.
The Minnesota Environmental Policy Act and the
Board’s rules mandate the preparation of an Environmental Assessment Worksheet
(EAW) and/or an Environmental Impact Statement (EIS) under certain
circumstances.[5] As defined by statute, an EAW is “a brief
document which is designed to set out the basic facts necessary to determine
whether an [EIS] is required for a proposed action.”[6] An EAW is primarily used to “aid in the
determination of whether an EIS is needed for a proposed project” and to “serve
as a basis to begin the scoping for an EIS.”[7] In contrast, an EIS is a “detailed” written
statement that “describes the proposed action in detail, analyzes its
significant environmental impacts, discusses appropriate alternatives to the
proposed action and their impacts, . . . explores methods by which adverse
environmental impacts of an action could be mitigated” and “analyze[s] those
economic, employment and sociological effects that cannot be avoided should the
action be implemented.”[8] An EIS is used to “provide information for
governmental units, the proposer of the project, and other persons to evaluate
proposed projects which have the potential for significant environmental
effects, to consider alternatives to the proposed projects, and to explore
methods for reducing adverse environmental effects.”[9]
3.
Under the Board’s rules, preparation of an EAW is
mandatory for any project that meets or exceeds the thresholds of any of the
EAW categories listed in Minn. R. 4410.4300 or any of the EIS categories listed
in
4.
In this rulemaking proceeding, the Board seeks to
amend the portion of Part 4410.4300 that describes when a mandatory EAW must be
prepared for projects that increase the generation of air pollutants.
5.
Under the current provisions of Part 4410.4300, an
EAW must be prepared for projects that meet or exceed certain thresholds set
forth in subparts 2 to 37 for various categories of facilities.[15]
Subpart 15 of Part 4410.4300 relates to
the category of air pollution. The
existing rule requires that, “[f]or construction of a stationary source
facility that generates 250 tons or more per year or modification of a
stationary source facility that increases generation by 250 tons or more per year
of any single air pollutant after installation of air pollution control
equipment, the MPCA shall be the RGU [Responsible Government Unit].” The EQB’s rules do not define the term “air
pollutant.”[16]
6.
The MPCA issues air permits under the federal Clean
Air Act for facilities in
7.
In November 2010, the MPCA issued a Notice of Intent
to Adopt rules relating to air quality definitions and permits under the good
cause exemption set forth in Minn. Stat. § 14.388, subd. 1(2).[19] The MPCA indicated in its Notice of Intent to
Adopt that it was proposing to revise its rules to incorporate new federal
permit thresholds for GHGs as a regulated pollutant and to adopt a schedule for
permit applications to be submitted. The
MPCA also indicated that it was in the process of developing a permanent rule
to replace this temporary rule. The
MPCA’s proposed exempt temporary rules were approved for legality by the Office
of Administrative Hearings on December 13, 2010. The MPCA made minor modifications to the
rules after the approval. The rules as
adopted were filed with the Secretary of State on January 13, 2011. The MPCA rules were effective upon publication
in the State Register on January 24, 2011,[20]
and will remain in effect for a period of two years. Among other things, the MPCA rules define GHGs
in a manner consistent with the EPA’s rules[21]
and make it clear that GHGs are “not subject to regulation unless, as of July
1, 2011, the GHGs emissions are at a stationary source emitting or having the
potential to emit 100,000 tons per year (tpy) CO2 equivalent emissions.”[22]
8.
The fact that GHGs will be regulated under the Clean
Air Act beginning in 2011 raises the issue of whether GHG emissions that exceed
the existing mandatory EAW threshold of 250 tons per year will require
preparation of an EAW under the Minnesota Environmental Policy Act and the EQB
rules. In its Statement of Need and
Reasonableness (SONAR), the EQB indicated that it believes that the
250-tons-per-year threshold in the current rule is too low with respect to
GHGs. As a result, it proposes in this
proceeding to adopt a separate mandatory EAW threshold for GHGs which is
consistent with the new regulatory scheme for GHGs under the Clean Air Act.[23]
9.
The proposed rule would retain the requirement in
subpart 15 that the MPCA prepare a mandatory EAW for construction or
modification of a stationary source facility that will generate 250 tons or
more per year of any single air pollutant, but would limit the applicability of
that threshold to air pollutants other than GHG emissions. The proposed rules would add a new item B
that would set a different threshold for preparation of a mandatory EAW for
projects that involve the construction or modification of stationary source
facilities that emit GHGs. In such
instances, the proposed rules would require the MPCA to prepare a mandatory EAW
only if the facility would emit 100,000 tons or more of GHGs after installation
of air pollution equipment. The proposed
rule would define “greenhouse gases” to include carbon dioxide, methane,
nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur
hexafluoride. It would also specify that
their combined carbon dioxide equivalents shall be computed by multiplying the
mass amount of emissions for each of the six greenhouse gases in the pollutant
GHGs by the gas’s associated global warming potential (as published in the
Federal Register[24]) and summing the resultant
value for each.[25]
10.
The proposed rule amendments would make the
mandatory EAW requirements consistent with the federal and state air permitting
requirements. Because GHGs are now
defined as air pollutants under federal law, failure to amend the rule would
mean that the MPCA would be required to prepare an EAW for a stationary source
facility that generates 250 tons or more per year of GHGs even though state and
federal laws do not require air permits at such levels.
Rulemaking Legal
Standards
11.
Under
Minnesota law, the Administrative Law Judge must determine whether the agency
has statutory authority to adopt the rule; whether the rule is unconstitutional
or otherwise illegal; whether the agency has complied with the rule adoption
procedures; whether the proposed rule grants undue discretion to government
officials; whether the rule constitutes an undue delegation of authority to
another entity; and whether the proposed language meets the definition of a
rule.[26]
12.
To
support the need for and reasonableness of a proposed rule, an agency may rely
on materials developed for the hearing record, legislative facts (i.e., general
facts concerning questions of law, policy and discretion), interpretation of a
statute, or stated policy preferences.[27] The Board prepared a Statement of Need and
Reasonableness (SONAR) in support of its proposed rules. At the hearing, the Board primarily relied
upon the SONAR as its affirmative presentation of need and reasonableness for
the proposed rules. The SONAR was
supplemented by comments made by staff and witnesses who spoke on behalf of the
Board at the public hearing, and by the Board’s written post-hearing
submissions.
13.
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.
14.
Reasonable
minds might be divided about the wisdom of a certain course of action. An agency is legally entitled to make choices
between possible regulatory approaches so long as the alternative that is
selected by the agency is a rational one.
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.[32]
Procedural
Requirements of Chapter 14
15.
On October 4, 2010, the Board published in the State Register a Request for Comments on
its proposed amendment to Minn. R. 4410.4300, subp. 15, relating to the
mandatory EAW category for air pollution with respect to GHG emissions. The Request for Comments was published in the
State Register at 35 S.R. 545.[33]
16.
On January 4, 2011, the Board requested approval of
its Dual Notice of Intent to Adopt Rules With or Without a Hearing (Dual
Notice) and Additional Notice Plan and filed with the Office of Administrative
Hearings copies of the proposed Dual Notice, the proposed rules and a draft
Statement of Need and Reasonableness (SONAR).
17.
By letter dated January 7, 2011, the undersigned
Administrative Law Judge approved the Board’s Dual Notice and Additional Notice
Plan.[34]
18.
As required by Minn. Stat. § 14.131, by letter dated
January 6, 2011, the Board asked the Commissioner of Minnesota Management and
Budget (MMB) to evaluate the fiscal impact and benefit of the proposed rules on
local units of government.[35]
19.
In a memo issued February 14, 2011, MMB reviewed the
Board’s proposed rule and concluded that the proposed rule revision “will have
minimal fiscal impact on local units of government and the EQB has adequately
considered local government costs.”[36]
20.
On January 21, 2011, the Board e-mailed a copy of
the SONAR to the Legislative Reference Library as required by Minn. Stat. §§
14.131 and 14.23.[37]
21.
On January 21, 2011, the Board sent by
22.
On January 21, 2011, the Board provided additional
notice to persons who had previously contacted the EQB regarding the subject of
this rulemaking.[39]
23.
On January 21, 2011, the Board provided additional
notice, consistent with the Additional Notice Plan, by placing the Dual Notice
of Hearing in the January 24, 2011 issue of the EQB Monitor.[40]
24.
On January 21, 2011, the Board provided additional
notice, consistent with the Additional Notice Plan, by posting the Dual Notice
of Hearing, the proposed rules, and the Statement of Need and Reasonableness on
the EQB website.[41]
25.
On January 21, 2011, the Board sent a copy of the Dual
Notice of Hearing and the Statement of Need and Reasonableness to Legislators
as required by Minn. Stat. § 14.116.[42]
26.
On January 24, 2011, the Board issued a press
release regarding the rulemaking consistent with its Additional Notice
Plan. As part of its dissemination of
the press release, the Board posted the press release on the Board’s website at
www.admin.state.mn.us/documents/newscenter_110124_eqb_amendment.pdf.[43]
27.
The Notice of Hearing identified the date and
location of the hearing in this matter.[44]
28.
On January 24, 2011, a copy of the proposed rules
and Notice of Hearing were published in the State
Register.[45]
29.
At the hearing on March 9, 2011, the Board filed
copies of the following documents as required by Minn. R. 1400.2220:
a.
the Board’s
Request for Comments as published in the State
Register on October 4, 2010;[46]
b.
the
proposed rules dated January 3, 2011, including the Revisor’s approval;[47]
c.
the Board’s
SONAR;[48]
d.
the
certification that the Board mailed a copy of the SONAR to the Legislative
Reference Library on January 21, 2011;[49]
e.
the Dual
Notice of Hearing as mailed and as published in the State Register on January 24, 2011;[50]
f.
Certificate
of Mailing the Notice of Hearing and the proposed rules to the rulemaking
mailing list on January 21, 2011, and Certificate of Accuracy of the Mailing
List;[51]
g.
the
written comments on the proposed rule that the Board received during the
comment period that followed the Notice of Hearing;[52]
h.
the
written comments on the proposed rule that the Board received in response to
the preliminary Request for Comments;[53]
i.
Letter
to Minnesota Management and Budget and Response from Minnesota Management and
Budget fulfilling the requirements of Minn. Stat. § 14.131;[54]
j.
Certificate
of Giving Additional Notice to persons who responded to the preliminary Request
for Comments;[55]
k.
Certificate
of Giving Additional Notice Pursuant to the Additional Notice Plan by
publishing Dual Notice in the EQB Monitor;[56]
l.
Certificate
of Giving Additional Notice Pursuant to the Additional Notice Plan by posting
Dual Notice, proposed rules and SONAR on the EQB website;[57] and
m.
Certificate
of Mailing Notice of Hearing to Those Who Requested a Hearing.[58]
30.
On April 25, 2011, at the request of the
Administrative Law Judge, the Board supplemented the record as follows:
a. Certificate of Sending the Dual Notice and
the Statement of Need and Reasonableness to Legislators, along with a copy of
the cover letter to legislators, as required by Minn. Stat. § 14.116.[59]
b. Copy of press release dated January 24,
2011 as sent to the media and posted on the same date
on the Board’s website at www.admin.state.mn.us/documents/newscenter_110124_eqb_amendment.pdf.[60]
31.
The Administrative Law Judge finds that the Board
has met the procedural requirements set forth in applicable law and rules.
Additional
Notice Requirements
32.
Minn. Stat. §§ 14.131 and 14.23 require that an agency
include in its SONAR a description of its efforts to provide additional
notification to persons or classes of persons who may be affected by the
proposed rule or, in the alternative, the agency must detail why these
notification efforts were not made.
33.
On January 4, 2011, the Board submitted an
additional notice plan to the Office of Administrative Hearings for
approval. In addition to providing the
notice required by statute, the Board indicated that it would post the
rulemaking notices, the proposed rules, and the SONAR on the EQB’s website;
publish the rulemaking information in the EQB Monitor (a bi-weekly electronic
publication of the EQB concerning events in the environmental review program
which the EQB indicated was routinely reviewed by many persons and
organizations with a potential interest in environmental review activities);
and send a press release about the rulemaking to major circulation newspapers
throughout the state.[61] The proposed additional notice plan was
approved by the Administrative Law Judge on January 7, 2011.[62]
34.
During the rulemaking proceeding, the Board
certified that it had provided additional notice to persons who had previously contacted the
EQB regarding the subject of this rulemaking[63]
and posted the Dual Notice of Hearing, the proposed rules, and the SONAR on the
EQB website on January 21, 2011.[64] The Board also confirmed that it had disseminated a press release regarding this
rulemaking to the media and posted the press release on its website on January 24,
2011,[65] and had included the Dual Notice of Hearing in the
January 24, 2011, issue of the EQB
Monitor .[66]
35.
The
Administrative Law Judge finds that the Board has fulfilled its additional
notice requirements.
Statutory
Authority
36. The Board cites Minn. Stat. § 116D.04, subds. 2a(a), 4a and 5a, and Minn. Stat. § 116D.045, subd. 1, as sources of statutory authority for its adoption of these proposed rules.[67]
37. Section 116D.04, subd. 2a(a), requires that the Board “shall by rule establish categories of actions for which . . . environmental assessment worksheets shall be prepared. . . .” Section 116D.04, subds. 4a and 5a, provide additional authority for the Board to adopt rules identifying alternative forms of environmental review and establishing the form and content of EAWs.
38. Section 116D.045 provides authority for the Board to adopt rules regarding responsibility for costs associated with preparation and distribution of an EIS. Section 116D.045 is not directly applicable to this rulemaking, which addresses mandatory EAWs.
39. The Administrative Law Judge concludes that the Department has the statutory authority under Minn. Stat. § 116D.04 to adopt rules establishing a mandatory EAW threshold for greenhouse gas emissions.
Impact on
Farming Operations
40.
Minn. Stat. § 14.111 imposes additional
notice requirements when the proposed rules affect farming operations. The statute requires that an agency provide a
copy of any such changes to the Commissioner of Agriculture at least 30 days
prior to publishing the proposed rules in the State Register.
41.
The proposed rules do not impose restrictions or
have an impact on farming operations.
The Administrative Law Judge finds that the Board was not required to
notify the Commissioner of Agriculture of the proposed rules.[68]
Regulatory
Analysis in the SONAR
42.
The
Administrative Procedure Act obliges an agency adopting rules to address seven
factors in its Statement of Need and Reasonableness. Each of these factors, and the Board’s
analysis, are discussed below.
43.
The
first factor requires “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.” In its SONAR, the Board states that the
following groups will be affected by the proposed rules:
·
Under
these rules, EAWs will be required of proposers of new or expansion projects
with emissions of GHGs of more than 100,000 tons per year, expressed as carbon
dioxide equivalents. The kinds of
projects likely to be affected include power plants, petroleum refineries and
cement manufacturing plants. Many of
these projects would already be required to complete EAWs due to other existing
EAW mandatory categories in Minn. R.
4410.4300.
·
As a
result of these rules, proposers of development projects with GHG emissions
over 250 but less than 100,000 tons per year carbon dioxide equivalents will
benefit because they will not be required to prepare EAWs. This will include a great many types of
projects in the commercial, industrial and residential sectors, including
something as small as an office of 8,000 square feet.[69]
44. The second factor requires consideration of “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.” According to the SONAR, the costs to the Board associated with rule implementation and rule enforcement will be negligible. The only cost attributable to the Board will be the cost of editing guidance materials to reflect the amendment. The Board anticipates that there will be increased costs to the MPCA, which will be the Responsible Governmental Unit (RGU) for EAWs prepared pursuant to the rule amendment. The Board estimates that an additional five EAWs will be prepared each year due to the amendment.[70] Based on 2006 MPCA cost estimates, each additional EAW will cost approximately $9,400 in additional staff time, and the total estimated costs will be approximately $47,000 per year (in 2006 dollars).[71]
45. However, this cost is far less than it would be without the rule amendments. If the rule is not amended, and mandatory EAWs are required of all projects with an estimated 250 tons per year of GHGs, the Board estimates based on information provided by the EPA that there would be a 140-fold increase in permit applications per year. Because the current average annual number of EAWs required at the 250-tons-per-year threshold is only approximately two, the Board projects that an additional 280 EAWs would be required per year if GHGs were covered by the 250-ton threshold. If the 280 is multiplied by $9,400 per EAW, the increased cost would be in excess of $2.6 million dollars in added staff costs.[72]
46. Because the MPCA charges a fee of about $20,000 to an air permit applicant if an EAW is required for the project under the air pollutant mandatory EAW rule, there would be an increase in state revenues under these rules. Assuming an estimated five additional EAWs per year, there would be a total of approximately $100,000 per year in increased revenues as a result of this rule.[73]
47.
The
third factor requires “a determination of whether there are less costly methods
or less intrusive methods for achieving the purpose of the proposed rule.” The Board determined that there are no less
costly or less intrusive methods for achieving the purpose of requiring
preparation of EAWs for large sources of GHG emissions without requiring review
of too many smaller sources.[74]
48.
The
fourth factor requires 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.”
49.
The
Board identified two alternative methods to achieve the purpose of the proposed
rule, which is to require preparation of EAWs for large sources of GHG
emissions without requiring review of too many smaller sources. First, the EQB considered amending the rule
to exclude GHGs from coverage by the air pollution category. This could have been accomplished by amending
the category to state that it did not apply to GHGs or by defining the term “air
pollutant” in a manner that would exclude GHGs.
The Board rejected that option because it concluded that GHGs
should be covered by the mandatory EAW requirement at some appropriate
threshold because GHG emissions are recognized as contributing to important
environmental impacts.
50.
Second,
the Board considered achieving the purpose of the rule by establishing a
different threshold for GHGs than the one that has been established by the EPA
and the PCA. However, the Board has
historically tied its air pollution thresholds to those established by the EPA,
and it chose to continue to do so here.
The EPA currently has a dual-tier threshold, with a trigger of 75,000
tons per year applying in certain cases.
The Board chose the 100,000-tons-per-year threshold because that is
consistent with the generally applicable permitting threshold for GHGs set by
the EPA and the MPCA. The Board believes
that the 100,000-ton threshold will be the more generally applicable permitting
threshold for GHGs in the early phases of the regulation of GHGs under the
Clean Air Act. The Board also indicated
that it decided to propose adoption of a single tier system pegged to the
higher number to minimize confusion. The
Board noted that the EPA will likely refine its GHG thresholds in the future and
stated that the Board anticipates that its will amend its own mandatory EAW
requirements as it gains experience with these standards.[75]
51.
The
fifth factor specifies that the agency must assess “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.” The Board estimated that projects likely to
be affected by the 100,000-tons-per-year threshold would probably be
technically complex and projected that the costs of EAWs for such projects
would be “toward the high end of the range of EAW costs.” For purposes of this analysis, the Board
assumed that the cost would be between $25,000 and $50,000 per EAW, with most
of that cost borne by the project developer.[76]
52.
The
sixth factor requires a description of “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.”
The Board asserts that, if the amendments are not adopted, GHG emissions
would be subject to the existing threshold of 250 tons per year. This would likely result in the preparation
of hundreds of additional EAWs per year, at significant cost both to the
project proposers and to the State. MPCA
staff estimate that the lower threshold would require the developer of a
building of only about 8,000 square feet to prepare an EAW.[77]
53.
The
seventh and final factor requires “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.”
54.
In the
SONAR, the Board indicated that there are times when a particular project (typically
public projects such as highways, water resources projects, or wastewater
collection and treatment projects) requires environmental review under both the
federal National Environmental Policy Act and the Minnesota Environmental
Policy Act. The Board noted that the
federal process is similar in general outline to the state process and requires
environmental documents similar to the EAWs and EISs used in Minnesota, but is
not identical in every detail. In its
SONAR, the Board explained that Minn. R. 4410.1300 and 4410.3900 address situations
in which both federal and state environmental reviews are required by
permitting joint state and federal review or by allowing the federal
environmental document to be substituted for a state EAW. The proposed rule amendments will not affect
either of these provisions.[78]
55.
The
Administrative Law Judge finds that the Board’s SONAR adequately addressed the
regulatory factors required by Minn. Stat. § 14.131.
Performance-Based Regulation
56. The Administrative Procedure Act[79] also requires an agency to describe how it has considered and implemented the legislative policy supporting performance-based regulatory systems. A performance-based rule is one that emphasizes superior achievement in meeting the agency’s regulatory objectives and maximum flexibility for the regulated party and the agency in meeting those goals.[80]
57.
The Board
pointed out in its SONAR that these rule amendments do not alter the Environmental
Review procedures but merely adjust one of the thresholds at which review is
required. Therefore, the Board contends
that this rulemaking proceeding does not offer an opportunity for adopting
performance-based rules or providing procedural flexibility. Finally, the Board notes that Environmental
Review is not a regulatory program and there are no regulatory objectives in
this rulemaking.[81]
58.
The
Administrative Law Judge finds that the Board has met the requirements set
forth in Minn. Stat. § 14.131 for assessing the impact of the proposed rules,
including consideration and implementation of the legislative policy supporting
performance-based regulatory systems.
Consultation with the
Commissioner of
59.
Under Minn. Stat. § 14.131, the agency is also
required to consult with the Commissioner of
60. The Board provided the proposed rules and the SONAR to MMB on January 6, 2011. In a memo dated February 14, 2011, MMB concluded that local units of government would be impacted by the rule change if the local unit was a proposer of a new or expansion project with GHGs of more than 100,000 tons per year. MMB noted that the impact would be broader if the proposed rules were not adopted because proposers of projects would be required to prepare EAWs when the project generated GHG emissions of more than 250 tons per year. MMB concluded that the proposed amendments would have minimal fiscal impact on local units of government.[82]
61. The Administrative Law Judge finds that the Board has met the requirements set forth in Minn. Stat. § 14.131.
Compliance
Costs for Small Businesses and Cities
62. Minn. Stat. § 14.127, requires the Board to “determine if the cost of complying with a proposed rule in the first year after the rule takes effect will exceed $25,000 for: (1) any one business that has less than 50 full-time employees; or (2) any one statutory or home rule charter city that has less than ten full-time employees.”[83] The Board must make this determination before the close of the hearing record, and the Administrative Law Judge must review the determination and approve or disapprove it.[84]
63. The Board concluded that no small business or small city will be required to spend more than $25,000 in the first year after the rules take effect. The Board made this determination based on the probable costs of complying with the proposed rule. It projects that the 100,000-ton threshold would limit the application of the proposed rule to just a few very large projects, such as petroleum refineries, power plants or cement plants, annually.[85]
64. The Administrative Law Judge finds that the agency has made the determination required by Minn. Stat. § 14.127 and approves that determination.
Adoption
or Amendment of Local Ordinances
65.
Under
Minn. Stat. § 14.128, the agency must determine if a local government
will be required to adopt or amend an ordinance or other regulation to comply
with a proposed agency rule. The agency must make this determination
before the close of the hearing record, and the Administrative Law Judge must
review the determination and approve or disapprove it.[86]
66.
The Board
concludes that the proposed rules do not necessitate local government action
because only the MPCA will be required to perform any additional environmental
review due to the amendment.[87]
67. The Administrative Law Judge finds that the agency has made the determination required by Minn. Stat. § 14.128 and approves that determination.
Analysis of the Proposed Rule
Amendment
68. This Report is limited to discussion of the portions of the proposed rule that received critical comment or otherwise need to be examined. Accordingly, the Report will not discuss each comment or rule part. Persons or groups who do not find their particular comments referenced in this Report should know that all comments, including those made prior to the hearing, have been carefully read and considered.
69. The Administrative Law Judge specifically finds that the Agency has demonstrated the need for and reasonableness of all rule provisions not specifically discussed in this Report by an affirmative presentation of facts. The Judge also finds that all provisions not specifically discussed are authorized by statute and there are no other problems that would prevent the adoption of the rules.
Comments in Opposition to the Proposed Rule
Amendment
70.
Prior to the hearing, a number of individuals
and organizations submitted written comments in which they expressed opposition
to the proposed rules and requested that a hearing be held. Of the 125 requests for hearing received by
the Board, 117 were essentially identically-worded letters from members of the
Sierra Club. The remaining eight letters
included one on behalf of the
71.
During
and after the hearing, numerous individuals and organizations continued to
express opposition to the EQB’s proposed threshold.
72.
Sarah Risser testified at the hearing on behalf
of the Sierra Club, North Star Chapter.
She objected to the EQB’s proposed 100,000-ton threshold and indicated
that the Sierra Club would likely support establishing a 10,000-ton threshold
which, based upon preliminary analysis,
it believes would be sufficient to address the majority of GHG emissions and
also greatly reduce the number of mandatory EAWs that would need to be
completed. She emphasized that the goal
in Minnesota is to reduce statewide
GHG emissions across all sectors to a level at least 15 percent below 2005
levels by 2015, 30 percent below 2005 levels by 2025, and 80 percent below 2005
levels by 2050,[90]
and questioned how the EQB’s proposed rule is consistent with that commitment
or with the purposes of the Minnesota Environmental Policy Act. She asserted that EAWs provide an important
opportunity for citizens to know the impact that projects will have in their
communities and ensure that those who propose projects consider how
environmental impact can be reduced. She
contended that the EQB has not provided an adequate rationale for the proposed
increase in the threshold.[91]
73.
Stephen Gosala, who is the director of
operations for OCLT Company and a Sierra Club Volunteer, testified that the EAW
process provides
74.
Dick Ottman, a retired environmental electrical
engineer and member of the Sierra Club Clean Air Renewable Energy Committee,
commented that a 10,000-tons-per-year threshold would improve projects and save
money in the long run by requiring a valuable focus on GHG emissions beginning
at an early stage in the project.[93]
75.
Boise Jones, a member of the Environmental
Assessment Committee of the Twin Cities Metro Central Area Corps, urged the EQB
not to raise the threshold to 100,000 tons per year. He argued that there was no clear
identifiable need to do so and asserted that it would reflect a backward step
in the state’s progress on GHG reduction. He also expressed concern that the mandatory
EAW threshold in the proposed rule would cause current GHG reduction strategies
in
76.
Kathryn
Hoffman, Staff Attorney with the MCEA, provided hearing testimony and
post-hearing submissions on behalf of the MCEA, Fresh Energy, and the Midwest
Office of the Izaac Walton League of America.[95] Ms. Hoffman urged that the EQB’s proposed 100,000-ton
threshold be rejected, and recommended that the threshold instead be set at
10,000-25,000 tons per year, to ensure that environmental review is conducted
regarding each new
·
First,
she contended that the proposed rule is not rationally related to the objectives
of the Minnesota Environmental Policy Act and “sacrifices environmental
protection in the name of administrative convenience.” She maintained that the EQB’s proposed
100,000-ton threshold would exempt the vast majority of facilities that emit
GHGs in Minnesota from environmental review and is contrary to the Act’s
declaration that it is the policy of the State to “promote efforts that will prevent
or eliminate damage to the environment and biosphere” and “use all practicable
means and measures . . . to create and maintain conditions under which human
beings and nature can exist in productive harmony. . . .”[97] Ms. Hoffman also indicated that the Minnesota
Environmental Policy Act requires that environmental review take place where there
is “a potential for significant environmental effects resulting from any major
governmental action,”[98] and
asserted that GHG emissions pose a direct threat to the environment and public
health and welfare.[99]
·
Second,
Ms. Hoffman argued that the EPA’s tailoring rule under the Clean Air Act is
irrelevant to
·
Third,
Ms. Hoffman asserted that the EQB’s SONAR does not support the need for or
reasonableness of the proposed rule. She
pointed out that the SONAR does not assess the impact of GHGs, state the need
to steeply reduce emissions of those gases, or state that the purpose of
environmental review is to calculate, disclose and discuss ideas for mitigating
those emissions before the facility is built.
She also argued that the SONAR failed to discuss any alternatives other
than the 100,000-ton threshold or address the potential environmental
advantages of adopting a lower threshold.
She maintained that the threshold selected by the EQB is so high that it
will affect no projects other than those that would already have to undergo
environmental review.[101]
·
Finally,
Ms. Hoffman argued that state and federal law provide guidance for a threshold
of 10,000 to 25,000 tons, rather than the proposed 100,000 tons per year. She pointed out that Minn. Stat. §§ 216H.11
and 216H.021 require that the MPCA establish a system for reporting and
maintaining an inventory of GHG emissions that includes “facilities whose
annual carbon dioxide equivalent emissions . . . exceed a
threshold set by the commissioner [of the MPCA] at between 10,000 tons and
25,000 tons” and further require a reporting threshold at 10,000 metric tons or
more carbon dioxide equivalent for certain “high global warming potential”
GHGs. Ms. Hoffman also pointed out that the
federal Council on Environmental Quality (the EQB’s federal counterpart) has
indicated that a 25,000-ton threshold “provides comprehensive coverage of
emissions with a reasonable number of reporters, thereby creating an important
data set useful in quantitative analyses of GHG policies, programs and
regulations.”[102]
77.
Attorney
and former St. Paul City Council Member Paula Goodman Maccabee also objected to
the threshold set in the proposed rules.
In her view, the 10,000-ton threshold set in Minn. Stat. § 216H.11 for
high global warming potential GHGs should be considered the appropriate level
at which significant environmental effects could occur. She emphasized that only a few types of
projects are likely to have sufficiently high GHG emissions to meet the
threshold proposed by the EQB and argued that the proposed rule will have no
impact at all on the stated objective of environmental review. She also noted that requiring a mandatory EAW
at a lower threshold could allow developers, citizens and local governments to
negotiate project changes that will reduce the project’s carbon footprint.[103]
78.
Reed
Aronow emphasized the detrimental economic impact of climate change and suggested
that a lower threshold between 250 and 100,000 tons per year could create jobs
and save the state billions of dollars in the future.[104] Amy Blumenshine also urged that the EQB’s
100,000-ton threshold be rejected in favor of a lower threshold that will
better protect the environment.[105]
79.
In his
testimony at the hearing, and in his post-hearing submission, Christopher
Childs stressed the serious environmental implications of rising global carbon
dioxide emissions and climate shift. He
indicated that the proposed threshold of 100,000 tons is unjustifiable, and recommended
that a 250-ton threshold be set for GHGs, similar to the threshold applicable
to non-GHGs.[106] Andy Pearson also suggested that the
threshold be set below 100,000 tons per year, in keeping with Minnesota’s
recognized leadership role on climate change issues.[107]
80.
Don
Arnosti, Policy Director of Audubon
81.
Several
other individuals submitted post-hearing comments in which they objected to the
proposed rules and supported designating a lower threshold. For example, David Howd, a retired architect,
filed a post-hearing comment in which he opposed the proposed 100,000-ton
threshold and urged that the threshold instead be set at no higher than 10,000
metric tons of carbon dioxide equivalent.
In his view, the lower threshold would confirm the state’s commitment to
address climate change and ensure that new sources of emissions are reasonably
mitigating their carbon footprint.[109] Elanne Palcich commented that the proposed
100,000-ton threshold flies in the face of climate change concerns and
suggested that a 10,000-ton threshold would be a reasonable starting point.[110] Carol Greenwood also supported a 10,000-ton
threshold for mandatory EAWs and argued that the costs associated with
accumulated GHG emissions vastly outweigh the costs that businesses would incur
by having to complete an EAW.[111] Alan Muller[112] and
Theresa McNamara[113]
similarly objected to the threshold proposed by the EQB and suggested that the
threshold be set at 10,000 tons per year or lower. Jan Greenfield also submitted written
comments recommending that the threshold be set at 10,000 tons or lower if
possible.[114]
Comments in Support of the Proposed Rule
Amendment
82.
In
contrast, a number of organizations and corporations expressed support for the
EQB’s proposed rule amendments and the 100,000-ton threshold. For example, a joint comment filed by the Minnesota
Asphalt Pavement Association, the Associated General Contractors of Minnesota,
and the Aggregate and Ready Mix Association of Minnesota on behalf of
approximately 700 affiliated companies noted that the current EQB rule
thresholds match those set in federal rules for other air pollutants and supported
the EQB’s proposed 100,000-ton threshold because it is consistent with the
major source level set in the federal GHG tailoring rule. These organizations were critical of
proposals to reduce the threshold to 10,000 tons per year. They indicated that many commercial
establishments, such as “big box” stores, strip malls, and schools, could have
heating and ventilation equipment burning natural gas that would meet or exceed
that threshold. They also emphasized
that the MPCA rules[115]
provide that potential emissions of carbon dioxide equivalents of 10,000 tons
per year or less are “insignificant activities” for permitting purposes.[116]
83.
Similar
post-hearing comments expressing support for the EQB’s proposed 100,000-ton
threshold for mandatory EAW applicability and opposing thresholds of 10,000-tons
or lower were filed by Allete, Incorporated,[117] The
Toro Company,[118]
the Metropolitan Airports Commission,[119]
Northstar Agri Industries,[120]
Spectro Alloys Corporation,[121] the Minnesota
Soybean Processors (on behalf of more than 2,350 members),[122] and the
Minnesota Chamber of Commerce (on behalf of more than 2,600 Minnesota
businesses).[123]
84.
The
MPCA supported the EQB’s proposal to change the EAW threshold to be consistent
with the permit threshold adopted by the MPCA under its exempt temporary
rules. During the rulemaking hearing,
Barbara Jean Conti of the MPCA testified that approximately 42 states have now
implemented new permit thresholds following the lead of the EPA tailoring
rule. She acknowledged that the EPA rule
is being challenged, but indicated that it will take a lengthy period of time
to resolve these challenges, and due diligence requires that state agencies
work with the EPA rule as it currently exists.
Ms. Conti noted that the EPA found that it would not be feasible to
issue permits to facilities emitting 100 or 150 tons per year of GHG carbon
dioxide equivalents. She pointed out
that a 3,200 square foot structure would require a major source permit under
such an interpretation, and indicated that the Clean Air Act was not intended
to regulate buildings of that size. The
MPCA agrees with the EQB’s view that the Environmental Review Program serves as
a support function for permitting, and believes that there is no reason to
extend a mandatory EAW requirement to smaller sources of carbon dioxide
equivalent emissions when such projects are not subject to permitting
requirements. In response to questions,
Ms. Conti indicated that approximately 100 facilities in
EQB’s Response to Comments
85.
In its
SONAR, during the hearing, and in its post-hearing response, the EQB maintained
that it is appropriate to amend the rule to trigger preparation of a mandatory
EAW when construction or modification of a stationary source facility generates
a combined 100,000 tons or more per year of GHG carbon dioxide
equivalents. The EQB emphasizes that
environmental review in
86. In its post-hearing response, the Board stressed that the general policies set forth in the Minnesota Environmental Policy Act (for example, to “promote efforts that will prevent or eliminate damage to the environment and biosphere” and “use all practicable means and measures . . . to create and maintain conditions under which human beings and nature can exist in productive harmony”)[126] are directed to all of state government. The Act does not require that the EQB itself implement those policies, regulate GHGs in any way, or enforce the statutory requirements. The Board believes that many of those objecting to the proposed rules misunderstood the basis of this rulemaking and confused the MPCA’s regulation of GHG emitters with the EQB rules. It underscored that the Environmental Review Program, and review by EAW, is not a monitoring, incentive, or prevention program.[127]
87.
The
Board indicated that individual EAWs are merely designed to suit the
environmental information needs of specific projects, and are not intended to fulfill
overarching policy objectives. It also
asserts that environmental review in
88. The Board further argues that it has demonstrated the need for and reasonableness of the 100,000-ton threshold for mandatory EAWs by showing that that threshold is commensurate with the permitting requirements adopted by the EPA and the MPCA. It asserts that it “need not engage in original science or elaborate scientific review to determine what level of GHG is ‘significant’” and points out that it has never done so for any other threshold it has established under the Environmental Review Program.[131]
89. Finally, the Board argues that it would not be appropriate to apply the lowest reporting threshold cited in Minn. Stat. § 216H.021 (the 10,000-ton threshold for certain GHGs) to its mandatory EAW rule. The Board contends that it would be contrary to the purposes of the environmental review program to require new sources that simply have to report their emissions to also complete a mandatory EAW.[132]
Conclusion of Administrative Law
Judge
90. Based upon a careful review of the statutes, rules, and entire record of this rulemaking proceeding, the Administrative Law Judge concludes that the Board has shown that it has statutory authority to adopt the proposed amendment to Minn. R. 4410.4300 and that the proposed amendment has a rational relationship to the objectives set forth in the Minnesota Environmental Policy Act. The Administrative Law Judge finds that the Board has also adequately demonstrated the need for and the reasonableness of the proposed amendment in its SONAR, testimony at the rule hearing, and post-hearing response.
91. The Minnesota Environmental Policy Act authorizes the EQB to adopt rules which, among other things, establish the categories of actions for which EAWs shall be prepared and prescribe the required form and content of EAWs.[133] The Act and the existing rules adopted by the EQB contemplate that environmental review will be conducted when governmental decisions regarding proposed projects are involved.[134] And the thresholds adopted by the Board in the past for non-GHG air pollutants have been based upon the levels at which permits are required under the Clean Air Act. For these reasons, the Board’s proposal to use the GHG emission level at which Clean Air Act permits will be issued by the EPA and the MPCA to establish the threshold for mandatory EAWs involving GHG emissions is consistent with the Minnesota Environmental Policy Act and the Board’s rules under that Act. The reporting requirements set forth in Chapter 216H do not require a contrary approach.
92.
Contrary
to the contentions of the MCEA and others, it is not accurate that the
Minnesota Environmental Policy Act requires that environmental review take
place where there is “a potential for significant environmental effects.” This assertion was drawn from the initial
sentence in Minn. Stat. § 116D.04, subd.2a.
That sentence provides in its entirety:
“Where there is potential for significant environmental effects
resulting from any major governmental action, the action shall be preceded by a
detailed environmental impact statement prepared by the responsible governmental
unit.” Based on the plain language of
the statute, it appears that this standard applies only to the preparation of
an EIS, and not the preparation of a mandatory EAW. In any case, in instances where a permit is
not required to be issued under the Clean Air Act, it is doubtful that
environmental effects could properly be viewed as “resulting from any major
governmental action” within the meaning of the statute.[135]
93.
The
rule amendment was prompted by significant changes in the interpretation of the
Clean Air Act and federal and state permitting levels. Because GHG emissions are now to be treated
as “air pollutants” under the Clean Air Act and the EPA and the MPCA have adopted
permitting levels for GHG emissions that are much higher than those applied to
other types of air pollutants, the Board has shown that it is needed and
reasonable to amend its existing rule to provide for a separate, higher
threshold for preparation of a mandatory EAW for GHG emissions. The Board’s selection of a threshold that coincides
with the Clean Air Act permitting levels is consistent with its interpretation
of the Minnesota Environmental Policy Act and the existing EQB rules adopted
under that Act, as well as the Board’s past practice. The Board has explained its reliance on the
EPA and MPCA permitting levels and has shown a rational relationship between
that information and the approach it has chosen to take in the proposed
rules. It is important to note that projects involving lesser GHG emissions may
still be subject to discretionary EAWs.
94.
As noted
above, an agency is legally entitled to make choices between possible regulatory
approaches so long as the alternative that is selected by the agency is a
rational one. Although it is evident from the record in
this proceeding that reasonable minds
are divided about the wisdom of the approach selected by the Board, it is
equally apparent that the choice made by the Board is one that a rational
person could have made. Accordingly, the
Administrative Law Judge concludes that the Board has fulfilled all of the applicable
procedural and substantive requirements in this rulemaking proceeding and that
the proposed rules have been shown to be needed and reasonable.
Based on the Findings of Fact, the
Administrative Law Judge makes the following:
CONCLUSIONS
1.
The
Board gave proper notice of the hearing in this matter. The Board has fulfilled the procedural
requirements of Minn. Stat. § 14.14 and all other procedural requirements of
law or rule.
2.
The
Board 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).
3.
The
Board 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).
4.
Any Findings that might properly be termed
Conclusions and any Conclusions that might properly be termed Findings are
hereby adopted as such.
5. A Finding or Conclusion of need and reasonableness with regard to any particular rule subsection does not preclude and should not discourage the Board from further modification of the proposed rules based upon this Report and an examination of the public comments, provided that the rule finally adopted is based on facts appearing in this rule hearing record.
Based on these Conclusions,
the Administrative Law Judge makes the following:
RECOMMENDATION
IT IS
RECOMMENDED that the proposed rule amendment be adopted.
Dated: May 9, 2011.
_/s/
Barbara L. Neilson___________________
BARBARA
L. NEILSON
Administrative
Law Judge
Transcript Prepared by Barbara J. Carey, RPR, Kirby A. Kennedy &
Associates (one volume).
[1] See
[2] See Minn. Stat. § 14.15, subd. 1.
[3] Public Exhibits 1-3 were received into the record during the hearing. The post-hearing submissions from members of the public have been marked and received into the record as Public Exhibits 4-21.
[4]
[5]
[6]
[7]
[8] Minn. Stat. § 116D.04, subd. 2a; Minn. R. 4410.0200, subp. 26.
[9] Minn. R. 4410.2000, subp. 1.
[10]
[11] Exemptions are set forth in Minn. R. 4410.4600.
[12] Minn. Stat. § 116D.04, subd. 2a(e);
[13]
[14]
[15]
[16] SONAR at 2.
[17] The EQB explained in its SONAR that the federal 75,000 ton-per-year threshold will apply until June 30, 2011, only to facilities already requiring a Prevention of Significant Deterioration (PSD) permit due to emissions other than GHGs; if they exceed the 75,000 ton-per-year threshold, they will be required to go through additional analysis of GHG emission controls. After June 30, 2011, expanding facilities that increase GHG emissions by at least 75,000 tons per year will require PSD permits even if their increased emissions of other air pollutants would not otherwise require PSD review. The 100,000 ton-per-year threshold will apply to newly-constructed projects with GHG emissions above that figure and to operating permits for existing facilities. The EQB indicated that the higher, 100,000 ton-per-year threshold will be the more generally applicable permitting threshold for GHGs at least in the early phases of the regulation of GHGs under the Clean Air Act. SONAR at 8.
[18] SONAR at 2.
[19] The proposed rules amended Minn. R. 7005.0100 and Minn. R. 7007.0150, .0200, .0400, .0500, .1105, .1107, .1110, .1125, .1130, .1141, .1146, .1300, and .1450.
[20] 35 State Reg. 1097-1108 (Jan. 24, 2011).
[21]
[22]
[23] SONAR at 2.
[24] 74 Fed. Reg. 56395-56396, as amended, to be codified as Table A-1 to subpart A of 40 C.F.R. Part 98 (Global Warming Potentials), as amended.
[25] Hearing Exhibit (Ex.) 3, p. 1.
[26] Minn.
Stat. § 14.14, subd. 2;
[27] Mammenga v. Dept. of Human Services, 442
N.W.2d 786 (
[28] In re Hanson, 275 N.W.2d 790 (
[29] See Mammenga, 442 N.W.2d at 789;
[30] Mammenga, 442 N.W.2d at 789-90; Broen Mem’l Home v.
[31] Manufactured Hous. Inst. v. Pettersen, 347 N.W.2d at 244.
[32]
Federal Sec. Adm’r v. Quaker Oats Co.,
318
[33] Ex. 1.
[34] Ex. 5.
[35] Ex. 10.
[36] Ex. 10.
[37] Ex. 4. The SONAR was e-mailed to sonar@lrl.leg.mn and sonars@lrl.leg.mn.
[38] Ex. 6.
[39] Ex. 11. Notice to this group of people was not in the Additional Notice Plan, but was an appropriate addition to it.
[40] Ex. 12.
[41] Ex. 13.
[42] Ex. 15. The Board inadvertently omitted this Exhibit from the Hearing Exhibits entered into evidence on the day of the hearing. The Board supplemented the record on April 25, 2011, at the request of the Administrative Law Judge, with evidence demonstrating that it did provide timely notice to legislators as required by Minn. Stat. § 14.116. The documentation provided by the Board was received into the rulemaking record as Exhibit 15.
[43] Ex. 16. The Board inadvertently omitted this Exhibit from the Hearing Exhibits entered into evidence on the day of the hearing. The Board supplemented the record on April 25, 2011, at the request of the Administrative Law Judge, with evidence demonstrating that it did disseminate the press release. The documentation provided by the Board was received into the rulemaking record as Exhibit 16.
[44] Ex. 7.
[45] Ex. 7; 35 State Reg. 1083 (January 24, 2011).
[46] Ex. 1.
[47] Ex. 2.
[48] Ex. 3.
[49] Ex. 4.
[50] Exs. 5 and 7.
[51] Ex. 6.
[52] Ex. 8.
[53] Ex. 9.
[54] Ex. 10.
[55] Ex. 11.
[56] Ex. 12.
[57] Ex. 13.
[58] Ex. 14.
[59] Ex. 15. See footnote 42, above.
[60] Ex. 16. See footnote 43, above.
[61] See SONAR at 6.
[62] Ex. 5.
[63] Ex. 11.
[64] Ex. 13.
[65] Ex. 16.
[66] Ex. 12.
[67] SONAR at 2.
[68] The Board noted in the SONAR that the current Chair of the EQB is also the Commissioner of Agriculture, so the Commissioner was in fact aware of this rulemaking proceeding. SONAR at 6.
[69] SONAR at 3.
[70] SONAR at 3.
[71] SONAR at 5.
[72]
SONAR at 5.
[73] SONAR at 4.
[74] Ex. 3 at 4.
[75] SONAR at 4, 8-9.
[76] Ex. 3 at 5.
[77] SONAR at 5.
[78] SONAR at 6.
[79]
[80]
[81] Ex. 3 at 6.
[82] Ex. 10.
[83]
[84]
[85] Ex. 3 at 3, 4 and 7.
[86] Minn. Stat. § 14.128, subd. 1. Moreover, a determination that the proposed rules require adoption or amendment of an ordinance may modify the effective date of the rule, subject to some exceptions. Minn. Stat. § 14.128, subds. 2 and 3.
[87] Ex. 3 at 7.
[88] Ex. 8, MCEA letter (Feb. 23, 2011) at 2.
[89] Ex. 8. Similar comments were submitted by Bradley Sagen, Julia Frost Nerbonne, Paul Thompson, and Raymond Schmitz.
[90]
[91] Hearing Transcript (T.) at 60-66.
[92] T. at 36-38; Public Hearing Ex. 1.
[93] T. at 29-31.
[94] T. at 32-36.
[95] T. at 38-54; Public Exs. 2, 16.
[96] T. at 52-53; Public Ex. 2, attachment 1; Public Ex. 16.
[97]
[98] Ms. Hoffman relied on Minn. Stat. § 116D.04, subd. 2a, for this proposition. As discussed in more detail below, this portion of the Act discusses only when an EIS must be prepared, and does not address when an EAW must be prepared.
[99] T. at 45-48; Public Ex. 16 (Outline of Oral Remarks) at 1-2.
[100] T. at 48-49; Public Ex. 16 (Supplemental Remarks) at 1-3; Public Ex. 16 (Outline of Oral Remarks) at 3.
[101] T. at 49-50; Public Ex. 16 (Outline of Oral Remarks) at 3-4.
[102] T. at 50-52; Public Ex. 16 (Outline of Oral Remarks) at 4. Minn. Stat. § 216H.10, subd. 7, defines “high global warming potential” GHGs to mean “hydrofluorocarbons, perfluorocarbons, sulfur hexafluoride, nitrous trifluoride, and any other gas the agency determines by rule to have a high global warming potential.”
[103] T. at 54-60.
[104] T. at 65-71.
[105] T. at 78-80.
[106] T. at 71-77; Public Ex. 4.
[107] T. at 82.
[108] Public Ex. 20.
[109] Public Ex. 6.
[110] Public Ex. 19.
[111] Public Ex. 18.
[112] Public Ex. 15.
[113] Public Ex. 14.
[114] Public Exs. 5, 21.
[115]
[116] Public Ex. 10.
They also indicated that they supported the remarks contained in
November 3, 2010, letter from the Minnesota Asphalt Pavement Association and
the Aggregate and Ready Mix Association of Minnesota regarding the proposed
rules. That letter suggested as a
further alternative that the term “air pollutant” be defined in a manner that
excludes GHGs and expressed the opinion that it would be unreasonable and
contrary to the purpose of the environmental review program to apply
“incredibly low” limits such as 250 tons per year to GHG emissions.
[117] Public Ex. 17.
[118] Public Ex. 9.
[119] Public Ex. 8.
[120] Public Ex. 7.
[121] Public Ex. 11.
[122] Public Ex. 12.
[123] Public Ex. 13.
[124] Hearing Transcript at 22-29.
[125] Hearing Transcript at 17-20; SONAR at 8.
[126]
[127] Board’s April 4, 2011, Post-Hearing Submission at 1-3, 5.
[128]
[129]
[130]
[131]
[132] Id at 4-5.
[133]
[134] See, e.g., Minn. R. 4410.0300, subp. 3 and 4.
[135] “Governmental action” is defined in Minn. R. 4410.0200, subp. 33, to mean “activities including projects wholly or partially conducted, permitted, assisted, financed, regulated, or approved by governmental units, including the federal government.”