SF 1027

as introduced - 88th Legislature (2013 - 2014) Posted on 03/05/2013 08:57am

A bill for an act
relating to environment; providing for permitting efficiency; modifying terms
for certain permits; creating a pollution control ombudsperson; modifying
environmental review petition requirements; appropriating money; amending
Minnesota Statutes 2012, sections 84.027, subdivision 14a, by adding a
subdivision; 116.03, subdivision 2b, by adding subdivisions; 116D.04,
subdivision 2a.

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

Section 1.

Minnesota Statutes 2012, section 84.027, subdivision 14a, is amended to read:

Subd. 14a.

Permitting efficiency.

(a) It is the goal of the state that environmental
and resource management permits new text begin for construction new text end be issued or denied within deleted text begin 150 deleted text end new text begin 40 new text end days
of the submission of a permit application new text begin , and that nonconstruction permits be issued or
denied within 90 days of submission of a permit application new text end . The commissioner of natural
resources shall establish management systems designed to achieve the goal.

(b) The commissioner shall prepare semiannual permitting efficiency reports that
include statistics on meeting the goal in paragraph (a). The reports are due February 1
and August 1 each year. For permit applications that have not met the goal, the report
must state the reasons for not meeting the goal. In stating the reasons for not meeting the
goal, the commissioner shall separately identify delays caused by the responsiveness of
the proposer, lack of staff, scientific or technical disagreements, or the level of public
engagement. The report must specify the number of days from initial submission of the
application to the day of determination that the application is complete. The report for
August 1 each year must aggregate the data for the year and assess whether program
or system changes are necessary to achieve the goal. The report must be posted on the
department's Web site and submitted to the governor and the chairs and ranking minority
members of the house of representatives and senate committees having jurisdiction over
natural resources policy and finance.

(c) The commissioner shall allow electronic submission of environmental review
and permit documents to the department.

(d) deleted text begin Beginning July 1, 2011, deleted text end Within 30 business days of application for a permit subject
to paragraph (a), the commissioner of natural resources shall notify the project proposer,
in writing, whether the application is complete or incomplete. If the commissioner
determines that an application is incomplete, the notice to the applicant must enumerate
all deficiencies, citing specific provisions of the applicable rules and statutes, and advise
the applicant on how the deficiencies can be remedied. This paragraph does not apply to
an application for a permit that is subject to a grant or loan agreement under chapter 446A.

Sec. 2.

Minnesota Statutes 2012, section 84.027, is amended by adding a subdivision
to read:

new text begin Subd. 14b. new text end

new text begin Continuation of permits. new text end

new text begin If, by July 1 of an odd-numbered year, a
biennial appropriation law has not been enacted to fund air, water, and land programs at
the department, existing permits shall not be terminated or suspended, provided the terms
and conditions of the permit and local, state, and federal laws and rules are met, regardless
of the state's ability to receive, review, or process fees, reports, or other filings.
new text end

Sec. 3.

Minnesota Statutes 2012, section 116.03, subdivision 2b, is amended to read:

Subd. 2b.

Permitting efficiency.

(a) It is the goal of the state that environmental and
resource management permits new text begin for construction new text end be issued or denied within deleted text begin 150 deleted text end new text begin 40 new text end days of
the submission of a permit application new text begin , and that nonconstruction permits be issued or denied
within 90 days of submission of a permit application new text end . The commissioner of the Pollution
Control Agency shall establish management systems designed to achieve the goal.

(b) The commissioner shall prepare semiannual permitting efficiency reports that
include statistics on meeting the goal in paragraph (a). The reports are due February 1 and
August 1 each year. For permit applications that have not met the goal, the report must state
the reasons for not meeting the goal. In stating the reasons for not meeting the goal, the
commissioner shall separately identify delays caused by the responsiveness of the proposer,
lack of staff, scientific or technical disagreements, or the level of public engagement. The
report must specify the number of days from initial submission of the application to the day
of determination that the application is complete. The report for August 1 each year must
aggregate the data for the year and assess whether program or system changes are necessary
to achieve the goal. The report must be posted on the agency's Web site and submitted to
the governor and the chairs and ranking minority members of the house of representatives
and senate committees having jurisdiction over environment policy and finance.

(c) The commissioner shall allow electronic submission of environmental review
and permit documents to the agency.

(d) deleted text begin Beginning July 1, 2011, deleted text end Within 30 business days of application for a permit
subject to paragraph (a), the commissioner of the Pollution Control Agency shall notify
the project proposer, in writing, whether the application is complete or incomplete. If the
commissioner determines that an application is incomplete, the notice to the applicant
must enumerate all deficiencies, citing specific provisions of the applicable rules and
statutes, and advise the applicant on how the deficiencies can be remedied. This paragraph
does not apply to an application for a permit that is subject to a grant or loan agreement
under chapter 446A.

(e) For purposes of this subdivision, "permit professional" means an individual not
employed by the Pollution Control Agency who:

(1) has a professional license issued by the state of Minnesota in the subject area
of the permit;

(2) has at least ten years of experience in the subject area of the permit; and

(3) abides by the duty of candor applicable to employees of the Pollution Control
Agency under agency rules and complies with all applicable requirements under chapter
326.

(f) Upon the agency's request, an applicant relying on a permit professional must
participate in a meeting with the agency before submitting an application:

(1) at least two weeks prior to the preapplication meeting, the applicant must submit
at least the following:

(i) project description, including, but not limited to, scope of work, primary
emissions points, discharge outfalls, and water intake points;

(ii) location of the project, including county, municipality, and location on the site;

(iii) business schedule for project completion; and

(iv) other information requested by the agency at least four weeks prior to the
scheduled meeting; and

(2) during the preapplication meeting, the agency shall provide for the applicant at
least the following:

(i) an overview of the permit review program;

(ii) a determination of which specific application or applications will be necessary
to complete the project;

(iii) a statement notifying the applicant if the specific permit being sought requires a
mandatory public hearing or comment period;

(iv) a review of the timetable established in the permit review program for the
specific permit being sought; and

(v) a determination of what information must be included in the application,
including a description of any required modeling or testing.

(g) The applicant may select a permit professional to undertake the preparation
of the permit application and draft permit.

(h) If a preapplication meeting was held, the agency shall, within seven business
days of receipt of an application, notify the applicant and submitting permit professional
that the application is complete or is denied, specifying the deficiencies of the application.

(i) Upon receipt of notice that the application is complete, the permit professional
shall submit to the agency a timetable for submitting a draft permit. The permit
professional shall submit a draft permit on or before the date provided in the timetable.
Within 60 days after the close of the public comment period, the commissioner shall notify
the applicant whether the permit can be issued.

(j) Nothing in this section shall be construed to modify:

(1) any requirement of law that is necessary to retain federal delegation to or
assumption by the state; or

(2) the authority to implement a federal law or program.

(k) The permit application and draft permit shall identify or include as an appendix
all studies and other sources of information used to substantiate the analysis contained in
the permit application and draft permit. The commissioner shall request additional studies,
if needed, and the project proposer shall submit all additional studies and information
necessary for the commissioner to perform the commissioner's responsibility to review,
modify, and determine the completeness of the application and approve the draft permit.

new text begin (l) The commissioner shall adopt rules to establish qualifications and training
requirements to certify permit professionals to approve permits for hazardous waste land
cleanup, above-ground storage tanks, sewer extensions, individual storm water, and
construction storm water. Permits approved by a certified permit professional shall be
deemed approved by the agency. The commissioner may audit the permitted sites and
remove certification for substantive oversights by the certified permit professional. The
commissioner may establish a fee schedule, by rule, for the certification and training
program. Rules adopted under this paragraph may be adopted under the expedited
rulemaking process, as provided in section 14.389, and are exempt from section 16A.1283.
Fee revenue collected under this paragraph shall be deposited in the special revenue fund
and is appropriated to the agency for the costs of permit professional certification.
new text end

Sec. 4.

Minnesota Statutes 2012, section 116.03, is amended by adding a subdivision to
read:

new text begin Subd. 2c. new text end

new text begin Continuation of permits. new text end

new text begin If, by July 1 of an odd-numbered year, a
biennial appropriation law has not been enacted to fund air, water, and land programs at
the agency, existing permits shall not be terminated or suspended, provided the terms and
conditions of the permit and local, state, and federal laws and rules are met, regardless of
the state's ability to receive, review, or process fees, reports, or other filings.
new text end

Sec. 5.

Minnesota Statutes 2012, section 116.03, is amended by adding a subdivision to
read:

new text begin Subd. 2d. new text end

new text begin Pollution control ombudsperson. new text end

new text begin (a) The commissioner shall appoint
a person to the position of pollution control ombudsperson. The pollution control
ombudsperson reports directly to the commissioner. The ombudsperson must be selected
without regard to political affiliation and must be qualified to perform the duties specified
in this subdivision.
new text end

new text begin (b) Powers and duties of the pollution control ombudsperson include, but are not
limited to:
new text end

new text begin (1) providing a neutral, independent resource for dispute and issue resolution between
the agency and the general public where another mechanism or forum is not available;
new text end

new text begin (2) gathering information about decisions, acts, and other matters of the agency;
new text end

new text begin (3) providing information to the general public;
new text end

new text begin (4) facilitating discussions or arranging mediation when appropriate; and
new text end

new text begin (5) maintaining and monitoring performance measures for the ombudsperson
program.
new text end

new text begin (c) The pollution control ombudsperson may not hold another formal position within
the agency. The pollution control ombudsperson may not impose a complaint fee.
new text end

Sec. 6.

Minnesota Statutes 2012, section 116D.04, subdivision 2a, is amended to read:

Subd. 2a.

When prepared.

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.
The environmental impact statement shall be an analytical rather than an encyclopedic
document which describes the proposed action in detail, analyzes its significant
environmental impacts, discusses appropriate alternatives to the proposed action and
their impacts, and explores methods by which adverse environmental impacts of an
action could be mitigated. The environmental impact statement shall also analyze those
economic, employment, and sociological effects that cannot be avoided should the action
be implemented. To ensure its use in the decision-making process, the environmental
impact statement shall be prepared as early as practical in the formulation of an action.

(a) 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. A mandatory environmental assessment worksheet shall not be required for the
expansion of an ethanol plant, as defined in section 41A.09, subdivision 2a, paragraph
(b), or the conversion of an ethanol plant to a biobutanol facility or the expansion of a
biobutanol facility as defined in section 41A.105, subdivision 1a, based on the capacity
of the expanded or converted facility to produce alcohol fuel, but must be required if
the ethanol plant or biobutanol facility meets or exceeds thresholds of other categories
of actions for which environmental assessment worksheets must be prepared. The
responsible governmental unit for an ethanol plant or biobutanol facility project for which
an environmental assessment worksheet is prepared shall be the state agency with the
greatest responsibility for supervising or approving the project as a whole.

A mandatory environmental impact statement shall not be required for a facility
or plant located outside the seven-county metropolitan area that produces less than
125,000,000 gallons of ethanol, biobutanol, or cellulosic biofuel annually, if the facility
or plant is: an ethanol plant, as defined in section 41A.09, subdivision 2a, paragraph
(b); a biobutanol facility, as defined in section 41A.105, subdivision 1a, clause (1); or a
cellulosic biofuel facility, as defined in section 41A.10, subdivision 1, paragraph (d).

(b) The responsible governmental unit shall promptly publish notice of the
completion of an environmental assessment worksheet by publishing the notice in at least
one newspaper of general circulation in the geographic area where the project is proposed,
by posting the notice on a Web site that has been designated as the official publication site
for publication of proceedings, public notices, and summaries of a political subdivision in
which the project is proposed, or in any other manner determined by the board and shall
provide copies of the environmental assessment worksheet to the board and its member
agencies. Comments on the need for an environmental impact statement may be submitted
to the responsible governmental unit during a 30-day period following publication of the
notice that an environmental assessment worksheet has been completed. The responsible
governmental unit's decision on the need for an environmental impact statement shall be
based on the environmental assessment worksheet and the comments received during the
comment period, and shall be made within 15 days after the close of the comment period.
The board's chair may extend the 15-day period by not more than 15 additional days upon
the request of the responsible governmental unit.

(c) An environmental assessment worksheet shall also be prepared for a proposed
action whenever material evidence accompanying a petition by not less than 100
individuals who reside or own property in the deleted text begin state deleted text end new text begin county or a contiguous county where
the proposed action will be located new text end , submitted before the proposed project has received
final approval by the appropriate governmental units, demonstrates that, because of the
nature or location of a proposed action, there may be potential for significant environmental
effects. Petitions requesting the preparation of an environmental assessment worksheet
shall be submitted to the board. The chair of the board shall determine the appropriate
responsible governmental unit and forward the petition to it. A decision on the need for
an environmental assessment worksheet shall be made by the responsible governmental
unit within 15 days after the petition is received by the responsible governmental unit.
The board's chair may extend the 15-day period by not more than 15 additional days upon
request of the responsible governmental unit.

(d) Except in an environmentally sensitive location where Minnesota Rules, part
4410.4300, subpart 29, item B, applies, the proposed action is exempt from environmental
review under this chapter and rules of the board, if:

(1) the proposed action is:

(i) an animal feedlot facility with a capacity of less than 1,000 animal units; or

(ii) an expansion of an existing animal feedlot facility with a total cumulative
capacity of less than 1,000 animal units;

(2) the application for the animal feedlot facility includes a written commitment by
the proposer to design, construct, and operate the facility in full compliance with Pollution
Control Agency feedlot rules; and

(3) the county board holds a public meeting for citizen input at least ten business
days prior to the Pollution Control Agency or county issuing a feedlot permit for the
animal feedlot facility unless another public meeting for citizen input has been held with
regard to the feedlot facility to be permitted. The exemption in this paragraph is in
addition to other exemptions provided under other law and rules of the board.

(e) The board may, prior to final approval of a proposed project, require preparation
of an environmental assessment worksheet by a responsible governmental unit selected
by the board for any action where environmental review under this section has not been
specifically provided for by rule or otherwise initiated.

(f) An early and open process shall be utilized to limit the scope of the environmental
impact statement to a discussion of those impacts, which, because of the nature or location
of the project, have the potential for significant environmental effects. The same process
shall be utilized to determine the form, content and level of detail of the statement as well
as the alternatives which are appropriate for consideration in the statement. In addition,
the permits which will be required for the proposed action shall be identified during the
scoping process. Further, the process shall identify those permits for which information
will be developed concurrently with the environmental impact statement. The board
shall provide in its rules for the expeditious completion of the scoping process. The
determinations reached in the process shall be incorporated into the order requiring the
preparation of an environmental impact statement.

(g) The responsible governmental unit shall, to the extent practicable, avoid
duplication and ensure coordination between state and federal environmental review
and between environmental review and environmental permitting. Whenever practical,
information needed by a governmental unit for making final decisions on permits
or other actions required for a proposed project shall be developed in conjunction
with the preparation of an environmental impact statement. When an environmental
impact statement is prepared for a project requiring multiple permits for which two or
more agencies' decision processes include either mandatory or discretionary hearings
before a hearing officer prior to the agencies' decision on the permit, the agencies
may, notwithstanding any law or rule to the contrary, conduct the hearings in a single
consolidated hearing process if requested by the proposer. All agencies having jurisdiction
over a permit that is included in the consolidated hearing shall participate. The responsible
governmental unit shall establish appropriate procedures for the consolidated hearing
process, including procedures to ensure that the consolidated hearing process is consistent
with the applicable requirements for each permit regarding the rights and duties of parties to
the hearing, and shall utilize the earliest applicable hearing procedure to initiate the hearing.
The procedures of section 116C.28, subdivision 2, apply to the consolidated hearing.

(h) An environmental impact statement shall be prepared and its adequacy
determined within 280 days after notice of its preparation unless the time is extended by
consent of the parties or by the governor for good cause. The responsible governmental
unit shall determine the adequacy of an environmental impact statement, unless within 60
days after notice is published that an environmental impact statement will be prepared,
the board chooses to determine the adequacy of an environmental impact statement. If an
environmental impact statement is found to be inadequate, the responsible governmental
unit shall have 60 days to prepare an adequate environmental impact statement.

(i) The proposer of a specific action may include in the information submitted to the
responsible governmental unit a preliminary draft environmental impact statement under
this section on that action for review, modification, and determination of completeness and
adequacy by the responsible governmental unit. A preliminary draft environmental impact
statement prepared by the project proposer and submitted to the responsible governmental
unit shall identify or include as an appendix all studies and other sources of information
used to substantiate the analysis contained in the preliminary draft environmental impact
statement. The responsible governmental unit shall require additional studies, if needed,
and obtain from the project proposer all additional studies and information necessary for
the responsible governmental unit to perform its responsibility to review, modify, and
determine the completeness and adequacy of the environmental impact statement.