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3rd Engrossment - 87th Legislature (2011 - 2012) Posted on 02/11/2011 09:55am

A bill for an act
relating to environment; providing for permitting efficiency; modifying
environmental review requirements; amending Minnesota Statutes 2010, sections
84.027, by adding a subdivision; 115.07; 116.03, by adding a subdivision; 116.07,
subdivision 2; 116D.04, subdivisions 1a, 2a, 3a, 10; 116D.045, subdivisions 1, 3.

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

Section 1.

Minnesota Statutes 2010, section 84.027, is amended by adding a
subdivision to read:

new text begin Subd. 14a. new text end

new text begin Permitting efficiency. new text end

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

new text begin (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, steps that will be taken to complete action on
the application, and the expected timeline. 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 due
on August 1 must aggregate the data for the preceding fiscal 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 of the house
of representatives and senate committees having jurisdiction over natural resources
policy and finance.
new text end

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

Sec. 2.

Minnesota Statutes 2010, section 115.07, is amended to read:

115.07 VIOLATIONS AND PROHIBITIONS.

Subdivision 1.

Obtain permit.

new text begin (a) Except as provided in paragraph (b), new text end it deleted text begin shall be deleted text end
new text begin is new text end unlawful for any person to construct, install new text begin , new text end or operate a disposal system, or any part
thereof, until plans deleted text begin therefor shall deleted text end new text begin and specifications for the disposal system new text end have been
submitted to the agency new text begin , new text end unless the agency deleted text begin shall have waived the deleted text end new text begin waives new text end submission
deleted text begin thereof to it deleted text end new text begin of the plans and specifications new text end and a written permit deleted text begin therefor shall have been deleted text end
new text begin for the disposal system is new text end granted by the agency.

new text begin (b) If a person who discharges a pollutant into the waters of the state is required by
statute or rule to obtain a national pollutant discharge elimination system permit or a state
disposal system permit, the person may construct or install, prior to issuance of the permit,
at the person's own risk, a disposal system or any part thereof, unless the action taken is:
new text end

new text begin (1) prohibited by federal law or regulation;
new text end

new text begin (2) by a municipality constructing a wastewater system with a design capacity of 0.2
million gallons per day or less;
new text end

new text begin (3) subject to environmental review under Minnesota Rules, chapter 4410, and
prohibited from commencing construction until that process is completed;
new text end

new text begin (4) receiving funding under Minnesota Rules, chapter 7077;
new text end

new text begin (5) required to obtain a construction storm water permit under Minnesota Rules,
part 7090.2010; or
new text end

new text begin (6) required to be permitted as a subsurface sewage treatment system under
Minnesota Rules, part 7081.0040, subpart 1, item B or C.
new text end

new text begin The person is prohibited from operating such a system or discharging pollutants into
the waters of the state until a written permit for the discharge is granted by the agency
and until plans and specifications for the disposal system have been approved, unless the
agency waives the submission of plans and specifications.
new text end

new text begin (c) new text end For disposal systems operated on streams with extreme seasonal flows, the
agency must allow seasonal permit limits based on a fixed or variable effluent limit when
the municipality operating the disposal system requests them and is in compliance with
agency water quality standards.

Subd. 3.

Permission for extension.

new text begin (a) Except as provided in paragraph (b), new text end it
deleted text begin shall be deleted text end new text begin is new text end unlawful for any person to make any change in, addition to new text begin , new text end or extension of any
existing disposal system or point source, or part thereof, to effect any facility expansion,
production increase, or process modification which results in new or increased discharges
of pollutants, or to operate such system or point source, or part thereof as so changed,
added to, or extended until plans and specifications therefor shall have been submitted to
the agency new text begin , new text end unless the agency deleted text begin shall have waived the deleted text end new text begin waives new text end submission deleted text begin thereof to it deleted text end new text begin of
the plans and specifications new text end and a written permit deleted text begin therefor shall have been deleted text end new text begin for the change,
addition, or extension is new text end granted by the agency.

new text begin (b) If a person who discharges a pollutant into the waters of the state is required by
statute or rule to obtain a national pollutant discharge elimination system permit or a state
disposal system permit, the person may, prior to issuance of the permit, at the person's
own risk, act to change, add to, or extend an existing disposal system or point source,
or part thereof, unless the action taken is:
new text end

new text begin (1) prohibited by federal law or regulation;
new text end

new text begin (2) by a municipality constructing a wastewater system with a design capacity of 0.2
million gallons per day or less;
new text end

new text begin (3) subject to environmental review under Minnesota Rules, chapter 4410, and
prohibited from commencing construction until that process is completed;
new text end

new text begin (4) receiving funding under Minnesota Rules, chapter 7077;
new text end

new text begin (5) required to obtain a construction storm water permit under Minnesota Rules,
part 7090.2010; or
new text end

new text begin (6) required to be permitted as a subsurface sewage treatment system under
Minnesota Rules, part 7081.0040, subpart 1, item B or C.
new text end

new text begin The person is prohibited from operating such a change, addition, or extension to
an existing disposal system or discharging pollutants into the waters of the state until a
written permit for the additional or increased discharge is granted by the agency and until
plans and specifications for the disposal system have been approved, unless the agency
waives the submission of plans and specifications.
new text end

Sec. 3.

Minnesota Statutes 2010, section 116.03, is amended by adding a subdivision to
read:

new text begin Subd. 2b. new text end

new text begin Permitting efficiency. new text end

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

new text begin (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, steps that will be taken to complete action on
the application, and the expected timeline. 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 due
on August 1 must aggregate the data for the preceding fiscal 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 of the house of
representatives and senate committees having jurisdiction over environment policy and
finance.
new text end

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

Sec. 4.

Minnesota Statutes 2010, section 116.07, subdivision 2, is amended to read:

Subd. 2.

Adoption of standards.

new text begin (a) new text end The Pollution Control Agency shall improve
air quality by promoting, in the most practicable way possible, the use of energy sources
and waste disposal methods which produce or emit the least air contaminants consistent
with the agency's overall goal of reducing all forms of pollution. The agency shall also
adopt standards of air quality, including maximum allowable standards of emission of air
contaminants from motor vehicles, recognizing that due to variable factors, no single
standard of purity of air is applicable to all areas of the state. In adopting standards the
Pollution Control Agency shall give due recognition to the fact that the quantity or
characteristics of air contaminants or the duration of their presence in the atmosphere,
which may cause air pollution in one area of the state, may cause less or not cause any air
pollution in another area of the state, and it shall take into consideration in this connection
such factors, including others which it may deem proper, as existing physical conditions,
zoning classifications, topography, prevailing wind directions and velocities, and the fact
that a standard of air quality which may be proper as to an essentially residential area of
the state, may not be proper as to a highly developed industrial area of the state. Such
standards of air quality shall be premised upon scientific knowledge of causes as well as
effects based on technically substantiated criteria and commonly accepted practices. No
local government unit shall set standards of air quality which are more stringent than
those set by the Pollution Control Agency.

new text begin (b) new text end The Pollution Control Agency shall promote solid waste disposal control
by encouraging the updating of collection systems, elimination of open dumps, and
improvements in incinerator practices. The agency shall also adopt standards for the
control of the collection, transportation, storage, processing, and disposal of solid waste
and sewage sludge for the prevention and abatement of water, air, and land pollution,
recognizing that due to variable factors, no single standard of control is applicable to
all areas of the state. In adopting standards, the Pollution Control Agency shall give
due recognition to the fact that elements of control which may be reasonable and proper
in densely populated areas of the state may be unreasonable and improper in sparsely
populated or remote areas of the state, and it shall take into consideration in this connection
such factors, including others which it may deem proper, as existing physical conditions,
topography, soils and geology, climate, transportation, and land use. Such standards of
control shall be premised on technical criteria and commonly accepted practices.

new text begin (c) new text end The Pollution Control Agency shall also adopt standards describing the
maximum levels of noise in terms of sound pressure level which may occur in the outdoor
atmosphere, recognizing that due to variable factors no single standard of sound pressure
is applicable to all areas of the state. Such standards shall give due consideration to
such factors as the intensity of noises, the types of noises, the frequency with which
noises recur, the time period for which noises continue, the times of day during which
noises occur, and such other factors as could affect the extent to which noises may be
injurious to human health or welfare, animal or plant life, or property, or could interfere
unreasonably with the enjoyment of life or property. In adopting standards, the Pollution
Control Agency shall give due recognition to the fact that the quantity or characteristics
of noise or the duration of its presence in the outdoor atmosphere, which may cause
noise pollution in one area of the state, may cause less or not cause any noise pollution
in another area of the state, and it shall take into consideration in this connection such
factors, including others which it may deem proper, as existing physical conditions,
zoning classifications, topography, meteorological conditions and the fact that a standard
which may be proper in an essentially residential area of the state, may not be proper as to
a highly developed industrial area of the state. Such noise standards shall be premised
upon scientific knowledge as well as effects based on technically substantiated criteria
and commonly accepted practices. No local governing unit shall set standards describing
the maximum levels of sound pressure which are more stringent than those set by the
Pollution Control Agency.

new text begin (d) new text end The Pollution Control Agency shall adopt standards for the identification of
hazardous waste and for the management, identification, labeling, classification, storage,
collection, transportation, processing, and disposal of hazardous waste, recognizing
that due to variable factors, a single standard of hazardous waste control may not be
applicable to all areas of the state. In adopting standards, the Pollution Control Agency
shall recognize that elements of control which may be reasonable and proper in densely
populated areas of the state may be unreasonable and improper in sparsely populated
or remote areas of the state. The agency shall consider existing physical conditions,
topography, soils, and geology, climate, transportation and land use. Standards of
hazardous waste control shall be premised on technical knowledge, and commonly
accepted practices. Hazardous waste generator licenses may be issued for a term not to
exceed five years. No local government unit shall set standards of hazardous waste control
which are in conflict or inconsistent with those set by the Pollution Control Agency.

new text begin (e) new text end A person who generates less than 100 kilograms of hazardous waste per month is
exempt from the following agency hazardous waste rules:

(1) rules relating to transportation, manifesting, storage, and labeling for
photographic fixer and x-ray negative wastes that are hazardous solely because of silver
content; and

(2) any rule requiring the generator to send to the agency or commissioner a copy
of each manifest for the transportation of hazardous waste for off-site treatment, storage,
or disposal, except that counties within the metropolitan area may require generators to
provide manifests.

Nothing in this paragraph exempts the generator from the agency's rules relating to on-site
accumulation or outdoor storage. A political subdivision or other local unit of government
may not adopt management requirements that are more restrictive than this paragraph.

new text begin (f) In any rulemaking proceeding under chapter 14 to adopt standards for air quality,
solid waste, or hazardous waste under this chapter, or standards for water quality under
chapter 115, that are more stringent than any similar federal standard adopted under
the Clean Air Act, United States Code, title 42, section 7412(b)(2); the Clean Water
Act, United States Code, title 33, sections 1312(a) and 1313(c)(4); or the Resource
Conservation and Recovery Act, United States Code, title 42, section 6921(b)(1), the
statement of need and reasonableness must include documentation that the federal
standard does not provide adequate protection for public health and the environment and
a comparison of the proposed standard with standards in border states and states within
Environmental Protection Agency Region 5.
new text end

Sec. 5.

Minnesota Statutes 2010, section 116D.04, subdivision 1a, is amended to read:

Subd. 1a.

Definitions.

For the purposes of this chapter, the following terms have the
meanings given to them in this subdivision.

(a) "Natural resources" has the meaning given it in section 116B.02, subdivision 4.

(b) "Pollution, impairment or destruction" has the meaning given it in section
116B.02, subdivision 5.

(c) "Environmental assessment worksheet" means a brief document which is
designed to set out the basic facts necessary to determine whether an environmental
impact statement is required for a proposed action.

(d) "Governmental action" means activities, including projects wholly or partially
conducted, permitted, assisted, financed, regulated, or approved by units of government
including the federal government.

(e) "Governmental unit" means any state agency and any general or special purpose
unit of government in the state including, but not limited to, watershed districts organized
under chapter 103D, counties, towns, cities, port authorities, housing authorities, and
economic development authorities established under sections 469.090 to 469.108, but not
including courts, school districts, new text begin Iron Range resources and rehabilitation, new text end and regional
development commissions other than the Metropolitan Council.

Sec. 6.

Minnesota Statutes 2010, 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.
No mandatory environmental impact statement may be required for an ethanol plant,
as defined in section 41A.09, subdivision 2a, paragraph (b), that produces less than
125,000,000 gallons of ethanol annually and is located outside of the seven-county
metropolitan area.

(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.

(b) The responsible governmental unit shall promptly publish notice of the
completion of an environmental assessment worksheet in a manner to be 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 25
individuals, 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.

(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.

new text begin (i) An environmental impact statement prepared by a project proposer is not
adequate unless all data collected, created, maintained, or received, or disseminated related
to the preparation of the environmental impact statement is submitted to the responsible
governmental unit or board with the proposed statement. This paragraph does not require
submission of data that was not used to prepare the statement, or data that constitutes a
trade secret, is proprietary in nature, or otherwise is protected by law.
new text end

Sec. 7.

Minnesota Statutes 2010, section 116D.04, subdivision 3a, is amended to read:

Subd. 3a.

Final decisions.

Within deleted text begin 90 deleted text end new text begin 30 new text end days after final approval of an
environmental impact statement, final decisions shall be made by the appropriate
governmental units on those permits which were identified as required and for which
information was developed concurrently with the preparation of the environmental impact
statement new text begin , except that, for a permit request subject to section 15.99, a final decision
must be made within 60 days after final approval of an environmental impact statement new text end .
Provided, however, that the deleted text begin 90-day deleted text end new text begin 30-day new text end period may be extended where a longer period
is required by federal law or state statute or is consented to by the permit applicant. The
permit decision shall include the reasons for the decision, including any conditions under
which the permit is issued, together with a final order granting or denying the permit.

Sec. 8.

Minnesota Statutes 2010, section 116D.04, subdivision 10, is amended to read:

Subd. 10.

Review.

Decisions on the need for an environmental assessment
worksheet, the need for an environmental impact statement new text begin , new text end and the adequacy of an
environmental impact statement may be reviewed by deleted text begin a declaratory judgment action in
deleted text end the district court of the county wherein the proposed action, or any part thereof, would be
undertaken new text begin when a permit from a local unit of government is required for the proposed
action or by the Court of Appeals when no local permits are required for the proposed
action. The Court of Appeals shall, whenever possible, conduct its proceedings near where
the project has been proposed new text end . new text begin The filing of a writ of certiorari shall not automatically
stay further action by the responsible governmental unit, but the Court of Appeals may
order a stay upon such terms as it deems proper. new text end Judicial review under this section shall be
initiated within 30 days after the governmental unit makes the decision, and a bond may be
required under section 562.02 unless at the time of hearing on the application for the bond
the deleted text begin plaintiff deleted text end new text begin petitioner new text end has shown that the claim has sufficient possibility of success on
the merits to sustain the burden required for the issuance of a deleted text begin temporary restraining order deleted text end new text begin
stay new text end . deleted text begin Nothing in deleted text end deleted text begin this section shall be construed to alter the requirements for a temporary
restraining order deleted text end deleted text begin or a preliminary injunction pursuant to the Minnesota Rules of Civil
Procedure for district deleted text end deleted text begin courts. deleted text end The board may initiate judicial review of decisions referred
to herein and may intervene as of right in any proceeding brought under this subdivision.

Sec. 9.

Minnesota Statutes 2010, section 116D.045, subdivision 1, is amended to read:

Subdivision 1.

Assessment.

The board shall by rule adopt procedures to new text begin authorize
the proposer of a specific action to prepare a draft environmental impact statement of that
action required pursuant to section 116D.04 for submission to and review, modification,
and determination of completeness and adequacy by the responsible governmental unit or
new text end assess the proposer of a specific action for reasonable costs of preparing new text begin , reviewing, new text end and
distributing deleted text begin an deleted text end new text begin the new text end environmental impact statement deleted text begin on that action required pursuant to
section 116D.04 deleted text end . Such costs shall be determined by the responsible governmental unit
pursuant to the rules promulgated by the board.

Sec. 10.

Minnesota Statutes 2010, section 116D.045, subdivision 3, is amended to read:

Subd. 3.

Use of assessment.

new text begin As necessary, new text end the responsible governmental unit shall
assess the project proposer for reasonable costs new text begin that the responsible governmental unit
incurs new text end in preparing new text begin , reviewing, new text end and distributing the environmental impact statement and
the proposer shall pay the assessed cost to the responsible governmental unit. Money
received under this subdivision by a responsible governmental unit may be retained by the
unit for the same purposes. Money received by a state agency must be credited to a special
account and is appropriated to the agency to cover the assessed costs incurred.

Sec. 11. new text begin RULE AMENDMENT.
new text end

new text begin The commissioner of the Pollution Control Agency shall amend Minnesota Rules,
part 7001.0030, to comply with the amendments made under section 2. The commissioner
may use the good cause exemption under Minnesota Statutes, section 14.388, subdivision
1, clause (3), to adopt the amendment under this section, and Minnesota Statutes, section
14.386, does not apply except as provided under Minnesota Statutes, section 14.388.
new text end