Minnesota Legislature
HF 702
as introduced - 90th Legislature (2017 - 2018) Posted on 02/01/2017 11:10am
Bill Text Versions
| Engrossments | ||
|---|---|---|
| Introduction | Posted on 02/01/2017 |
Current Version - as introduced
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A bill for an act
relating to environment; providing for review of agency actions; prohibiting use
of unadopted rules; amending Minnesota Statutes 2016, sections 115.05; 116.07,
by adding a subdivision.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1.
Minnesota Statutes 2016, section 115.05, is amended to read:
115.05 deleted text begin JUDICIAL REVIEWdeleted text end new text begin REVIEWING AGENCY ACTIONSnew text end .
Subd. 11.
Judicial review.
Any person aggrieved by any final decision of the deleted text begin agency
or of thedeleted text end commissioner new text begin of the Pollution Control Agency new text end may obtain judicial review thereof
pursuant to sections 14.63 to 14.69 if the final decision is made pursuant to the deleted text begin agency's or
thedeleted text end commissioner's authority under section 115A.914, this chapter, chapter new text begin 114D or new text end 116,
or the rules adopted thereunder, and if the decision is a final decision pertaining to:
(1) deleted text begin issuance, amendment, or denial ofdeleted text end new text begin issuing, amending, or denyingnew text end a new text begin total maximum
daily load (TMDL) allocation, watershed restoration and protection strategy (WRAPS),
new text end permit, license, or certification;
new text begin
(2) issuing, amending, or modifying a water-quality standard according to section 115.44;
new text end
new text begin
(3) identifying or listing impaired waters according to section 114D.25;
new text end
deleted text begin (2)deleted text end new text begin (4)new text end granting or deleted text begin denial ofdeleted text end new text begin denyingnew text end a variancenew text begin or a site-specific water-quality standardnew text end ;
deleted text begin (3) issuance ofdeleted text end new text begin (5) issuingnew text end an administrative order, except for an administrative penalty
order issued deleted text begin pursuantdeleted text end new text begin accordingnew text end to section 116.072; deleted text begin or
deleted text end
deleted text begin (4) denial ofdeleted text end new text begin (6) denyingnew text end a contested case hearing on any of the matters listed in clauses
(1) to deleted text begin (3)deleted text end new text begin (5); or
new text end
new text begin (7) denying a request for reconsideration in any action identified in clauses (1) to (6)new text end .
new text begin Subd. 12. new text end
new text begin Review of actions concerning water quality. new text end
new text begin
(a) This subdivision applies to
final decisions of the commissioner of the Pollution Control Agency that are related to water
quality.
new text end
new text begin
(b) In any proceeding to review a final decision of the commissioner under subdivision
11 or in any proceeding under chapter 14, the reviewing authority must examine the
administrative record and, without deference to the commissioner, must independently
determine from the record whether:
new text end
new text begin
(1) the commissioner's action is based on reliable, scientific data and analyses, as
confirmed by available peer-reviewed literature that the commissioner made publicly
available for review before any applicable public comment period;
new text end
new text begin
(2) the commissioner explained the action and substantively answered relevant and
significant public comments in writing before taking the action;
new text end
new text begin
(3) any test, measurement, or model the commissioner relied on in support of the 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
(4) the action is consistent with the findings of any external peer review panel the
commissioner convened according to section 115.035; and
new text end
new text begin
(5) the action is based on a demonstrated, significant causal relationship between the
parameters of concern and the water-quality objective at issue, not correlation alone. When
a causal relationship may be confounded by other factors, the reviewing authority 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
(c) Upon determining that a challenged action does not meet one or more of the
requirements of this subdivision, the reviewing authority must invalidate the action and, if
appropriate, remand the matter to the commissioner for further proceedings consistent with
this section.
new text end
new text begin Subd. 13. new text end
new text begin Expert review. new text end
new text begin
(a) In a review required under subdivision 12, whenever the
reviewing authority finds that there is expert opinion, expressed through testimony or written
submission, that specifically contradicts the scientific validity of the commissioner's approach,
including cases in which an external peer review was conducted according to section 115.035,
the scientific evidence and the adequacy of the commissioner's response to the evidence
must be reviewed with the assistance of qualified independent experts according to this
subdivision.
new text end
new text begin
(b) The reviewing authority must establish by order an expert review panel of three
independent experts with qualifications in the subject matter of the scientific dispute who
are employed neither by the agency nor by any adverse parties 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 is determined as follows:
new text end
new text begin
(1) the commissioner must select one expert satisfying the requirements of this paragraph;
new text end
new text begin
(2) the adverse party or parties to the proceeding must select one expert satisfying the
requirements of this paragraph;
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 paragraph; and
new text end
new text begin
(4) if the two experts selected under clauses (1) and (2) are unable to mutually agree on
a third expert, the reviewing authority must make the appointment.
new text end
new text begin
(c) In the order establishing the expert review panel, the reviewing authority must include
a statement of the specific scientific issues or questions in dispute to be submitted for review.
The parties must mutually agree to the issues or questions, except that if the parties cannot
agree on one or more issues or questions, the reviewing authority must determine the issue
or question to be submitted.
new text end
new text begin
(d) The expert review panel established by the reviewing authority must review the
scientific evidence relevant to the issues or questions listed in the reviewing authority's
order, including the results of any external peer review conducted according to section
115.035, in general accordance with the guidance in the United States Environmental
Protection Agency's Peer Review Handbook and must make written findings supported by
at least two of the panel members. For each issue or question submitted, the panel must
make a finding that:
new text end
new text begin
(1) the commissioner's approach with respect to the issue or question submitted is
scientifically defensible;
new text end
new text begin
(2) the commissioner's approach with respect to the issue or question submitted is not
scientifically defensible; or
new text end
new text begin
(3) the commissioner's approach with respect to the issue or question submitted is
scientifically defensible with conditions developed by the expert review panel.
new text end
new text begin
(e) For each scientific issue or question submitted to the expert review panel, the
reviewing authority must consider the panel's written findings together with the record
evidence and arguments of the parties and finally determine the scientific issues or questions
submitted by applying a preponderance of the evidence standard.
new text end
new text begin
(f) The reviewing authority must assess the cost of the expert review panel against the
parties to the proceeding on an equitable basis, except that no costs may be assessed against
a party that is a local government.
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 Unadopted rules. new text end
new text begin
(a) The commissioner of the Pollution Control Agency
must not enforce or attempt to enforce an unadopted rule. For the purposes of this subdivision,
"unadopted rule" means a guideline, bulletin, criterion, manual standard, interpretive
statement, or similar pronouncement, if the guideline, bulletin, criterion, manual standard,
interpretive statement, or similar pronouncement meets the definition of a rule as defined
under section 14.02, subdivision 4, but has not been adopted according to the rulemaking
process provided under chapter 14. If an unadopted rule is challenged under section 14.381,
the commissioner must demonstrate the following to overcome a presumption against the
unadopted rule:
new text end
new text begin
(1) the challenged unadopted rule is an agency interpretation of a statute or agency rule
properly adopted under chapter 14 that is consistent with the plain meaning of the statute
or rule the agency seeks to interpret; or
new text end
new text begin
(2) the challenged unadopted rule is a long-standing interpretation of an ambiguous
statute or agency rule properly adopted under chapter 14.
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 any such guideline, bulletin, criterion, manual standard, interpretive
statement, or similar pronouncement.
new text end