HF 2543

as introduced - 90th Legislature (2017 - 2018) Posted on 03/27/2017 10:03am

A bill for an act
relating to state government; providing for administrative review of certain agency
actions; providing a limitation on interpretive statements; amending Minnesota
Statutes 2016, section 116.07, by adding a subdivision; proposing coding for new
law in Minnesota Statutes, chapter 115.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

new text begin [115.051] REVIEWING PROPOSED AGENCY ACTIONS.
new text end

new text begin Subdivision 1. new text end

new text begin Definitions. new text end

new text begin (a) The definitions in this subdivision apply to this section.
new text end

new text begin (b) "Local government unit" means a statutory or home rule charter city, a county, a
local public utilities commission, a sanitary district, or an organization formed for the joint
exercise of powers under section 471.59.
new text end

new text begin (c) "Proposed action" means an action that:
new text end

new text begin (1) is being considered by the commissioner of the Pollution Control Agency or has
been undertaken by the commissioner but is not yet final; and
new text end

new text begin (2) would, once final, constitute:
new text end

new text begin (i) issuing, amending, modifying, or denying a water-quality standard under section
115.44, a water-related permit, a total maximum daily load (TMDL) study, or a watershed
restoration and protection strategy (WRAPS); or
new text end

new text begin (ii) another action or decision undertaken according to the commissioner's authority
under this chapter or chapter 114D that is or would be eligible for a contested case hearing
under chapter 14 or that would constitute rulemaking under chapter 14.
new text end

new text begin (d) "Requisite number" means five or more if the proposed action is rulemaking under
chapter 14 or one or more if the proposed action is one that is or would be eligible for a
contested case hearing under chapter 14.
new text end

new text begin (e) "Review petition" means a written petition of a local government unit adopted by
resolution of the applicable governing body that describes the need for review by an expert
review panel of the scientific basis of a proposed action that potentially affects the petitioner.
new text end

new text begin (f) "Review proceeding" means a proceeding under chapter 14 of the Office of
Administrative Hearings to review a proposed action.
new text end

new text begin Subd. 2. new text end

new text begin Review of scientific basis for proposed action. new text end

new text begin In any review proceeding, the
administrative law judge must examine the administrative record and, without deference to
the commissioner of the Pollution Control Agency, independently determine from the record
whether:
new text end

new text begin (1) the proposed action is based on reliable scientific data and analyses, as confirmed
by publicly available peer-reviewed literature;
new text end

new text begin (2) every test, measurement, or model the commissioner relied on in support of the
proposed action was used by the commissioner for the purpose for which the test,
measurement, or model was designed, consistent with generally accepted and peer-reviewed
scientific practice;
new text end

new text begin (3) the proposed action is consistent with the findings of any applicable external peer
review panel the commissioner convened under section 115.035; and
new text end

new text begin (4) the proposed action is based on a demonstrated, significant causal relationship between
the parameters of concern and the water-quality objective at issue, not the correlation alone.
When a causal relationship may be confounded by other factors, the administrative law
judge must determine whether the relevance and effect of those factors were assessed to
ensure the predicted causal relationship is valid.
new text end

new text begin Subd. 3. new text end

new text begin Effect of finding inadequate basis for proposed action. new text end

new text begin If an administrative
law judge determines that any of the conditions under subdivision 2, clauses (1) to (4), are
not satisfied, then:
new text end

new text begin (1) if the proposed action was a proposed rule, the administrative law judge must find
that the need for and reasonableness of the rule has not been established according to section
14.14, subdivision 2; and
new text end

new text begin (2) if the proposed action was before the Office of Administrative Hearings as part of a
contested case hearing, the administrative law judge must include this finding in the report
required by sections 14.48 to 14.56, which constitutes the final decision in the case.
new text end

new text begin Subd. 4. new text end

new text begin Expert review panel; when required; composition. new text end

new text begin The Office of
Administrative Hearings must convene an expert review panel to review the scientific basis
of a proposed action when the office receives the requisite number of review petitions and
finds, based on an independent review of the petitions, that the petitions demonstrate the
existence of a material scientific dispute regarding the scientific validity of the proposed
action. The Office of Administrative Hearings must issue an order granting or denying a
petition within 30 days of receiving the petition. A review panel must consist of three
independent experts with qualifications in the subject matter of the scientific dispute who
are employed neither by the Pollution Control Agency nor by a petitioner to the proceeding
and who are not directly or indirectly involved with the work conducted or contracted by
the agency. The composition of the panel must be determined as follows:
new text end

new text begin (1) the commissioner of the Pollution Control Agency must select one expert satisfying
the requirements of this subdivision;
new text end

new text begin (2) the petitioners must jointly select one expert satisfying the requirements of this
subdivision; and
new text end

new text begin (3) the two experts selected under clauses (1) and (2) must mutually agree to a third
expert satisfying the requirements of this subdivision. If the two experts cannot agree on a
third expert, the Office of Administrative Hearings must make the appointment.
new text end

new text begin Subd. 5. new text end

new text begin Conduct of expert review panel. new text end

new text begin Upon granting a petition for independent
expert review, the Office of Administrative Hearings must, as soon as practicable thereafter,
issue an order establishing the independent expert review panel and identifying the
independent experts selected according to subdivision 4. The order must include a statement
of the specific scientific issues or questions in dispute to be submitted for review by the
panel. The commissioner of the Pollution Control Agency and all petitioners must agree on
the issues or questions in dispute to be submitted for review. If they cannot agree on one or
more issues or questions, the Office of Administrative Hearings must determine the issues
or questions to be submitted, giving substantial consideration to the questions raised in any
petitions the office receives. The panel must review the scientific evidence relevant to those
issues or questions as found in the petitions, the administrative record for the proposed
action, and the results of any external peer review conducted according to section 115.035,
in accordance with the guidance in the United States Environmental Protection Agency's
Peer Review Handbook. The panel must submit a written opinion on the scientific validity
of the commissioner's approach that is in controversy. If the panel finds deficiencies, the
panel must recommend how the deficiencies can be corrected. The written opinion becomes
part of the administrative record and must be submitted to the Office of Administrative
Hearings. The office must send a copy of the opinion to the commissioner of the Pollution
Control Agency, all petitioners, and the chairs and ranking minority members of the house
of representatives and senate committees having jurisdiction over environment and natural
resources policy and finance.
new text end

new text begin Subd. 6. new text end

new text begin Status of action pending review. new text end

new text begin Once the Office of Administrative Hearings
receives the requisite number of review petitions:
new text end

new text begin (1) the Office of Administrative Hearings must notify the commissioner of the Pollution
Control Agency of this fact;
new text end

new text begin (2) the commissioner must not grant or deny a contested case petition filed by a local
government unit on the proposed action that is the subject of the petition or otherwise
proceed toward finalizing the proposed action until the Office of Administrative Hearings
denies the petition for independent expert review or, if the petition is granted, the
commissioner receives and considers the written opinion required under subdivision 5; and
new text end

new text begin (3) the Office of Administrative Hearings must not conduct the review required by
subdivision 2 until the office receives the written opinion required under subdivision 5.
new text end

new text begin Subd. 7. new text end

new text begin Chapter 14 requirements. new text end

new text begin Nothing in this section shall be construed to abrogate
or otherwise repeal any of the procedural requirements of chapter 14. Upon receiving a
written opinion according to subdivision 5, the commissioner of the Pollution Control
Agency and the Office of Administrative Hearings must make the opinion available to the
public for review and continue to follow all applicable provisions of chapter 14, including
public comment and hearing requirements.
new text end

new text begin Subd. 8. new text end

new text begin Timing of review petition submission. new text end

new text begin A review petition submitted to the
Office of Administrative Hearings must be submitted within the period for filing a contested
case petition or before expiration of the public comment period as noticed in the statement
of intent to adopt the rule, as applicable.
new text end

new text begin Subd. 9. new text end

new text begin Supplementing other law. new text end

new text begin The duties and procedures in this section are
supplementary and applicable to those set forth in section 14.091.
new text end

Sec. 2.

Minnesota Statutes 2016, section 116.07, is amended by adding a subdivision to
read:

new text begin Subd. 13. new text end

new text begin Limitation regarding certain policies, guidelines, and other interpretive
statements. new text end

new text begin (a) The commissioner of the Pollution Control Agency must not seek to
implement or enforce against any person a policy, guideline, or other interpretive statement
that meets the definition of a rule under section 14.02, subdivision 4, if the policy, guideline,
or other interpretive statement has not been adopted as a rule according to chapter 14. In
any proceeding under chapter 14 challenging agency action prohibited by this subdivision,
the reviewing authority must independently and without deference to the agency determine
whether the agency violated this subdivision. The agency must overcome the presumption
that the agency action may not be enforced as a rule.
new text end

new text begin (b) If the commissioner incorporates by reference an internal guideline, bulletin, criterion,
manual standard, interpretive statement, or similar pronouncement into a statute, rule, or
standard, the commissioner must follow the rulemaking process provided under chapter 14
to amend or revise the guideline, bulletin, criterion, manual standard, interpretive statement,
or similar pronouncement.
new text end