HF 2095

2nd Engrossment - 87th Legislature (2011 - 2012) Posted on 03/07/2012 04:57pm

A bill for an act
relating to environment; providing for permitting efficiency; modifying
environmental review requirements; appropriating money; amending Minnesota
Statutes 2010, sections 14.05, by adding a subdivision; 41A.10, subdivision
1; 84.027, by adding a subdivision; 115.03, by adding a subdivision; 116.07,
subdivision 4a; 116J.035, by adding a subdivision; Minnesota Statutes 2011
Supplement, sections 84.027, subdivision 14a; 116.03, subdivision 2b; 116D.04,
subdivision 2a.

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

ARTICLE 1

PERMITTING

Section 1.

Minnesota Statutes 2011 Supplement, 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 be issued or denied within 150 days of the submission
of a deleted text begin substantially completed deleted text end permit application. 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 deleted text begin , steps that will be taken to complete action
on the application, and the expected timeline deleted text end . 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) Beginning July 1, 2011, 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, deleted text begin of whether or not the permit application is complete enough for
processing. If the permit is incomplete, the commissioner must identify where deleted text end new text begin whether
the application is complete or incomplete. If the commissioner determines that an
application is incomplete, the notice to the applicant must enumerate all new text end deficiencies deleted text begin exist deleted text end new text begin , new text end
new text begin citing specific provisions of the applicable rules and statutes, new text end and advise the applicant
on how deleted text begin they deleted text end new text begin the deficiencies new text end can be remedied. deleted text begin A resubmittal of the application begins
a new 30-day review period. If the commissioner fails to notify the project proposer
of completeness within 30 business days, the application is deemed to be substantially
complete and subject to the 150-day permitting review period in paragraph (a) from the
date it was submitted. deleted text end 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 2010, section 84.027, is amended by adding a subdivision
to read:

new text begin Subd. 14b. new text end

new text begin Irrevocability or suspensions 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 capability to receive, review, or process
fees, reports, or other filings.
new text end

Sec. 3.

Minnesota Statutes 2010, section 115.03, is amended by adding a subdivision to
read:

new text begin Subd. 8b. new text end

new text begin Permit duration; state disposal system permits; animal feedlots. new text end

new text begin State
disposal system permits that are issued without a national pollutant discharge elimination
system permit to animal feedlots shall be issued for a term of ten years.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 4.

Minnesota Statutes 2011 Supplement, 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 be issued or denied within 150 days of the submission of a
deleted text begin substantially completed deleted text end permit application. 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 deleted text begin , steps that will be taken to complete action
on the application, and the expected timeline deleted text end . 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) Beginning July 1, 2011, 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, deleted text begin of whether or not the permit application is complete
enough for processing. If the permit is incomplete, the commissioner must identify where deleted text end new text begin
whether the application is complete or incomplete. If the commissioner determines that an
application is incomplete, the notice to the applicant must enumerate all new text end deficiencies deleted text begin exist deleted text end new text begin ,
citing specific provisions of the applicable rules and statutes, new text end and advise the applicant
on how deleted text begin they deleted text end new text begin the deficiencies new text end can be remedied. deleted text begin A resubmittal of the application begins
a new 30-day review period. If the commissioner fails to notify the project proposer
of completeness within 30 business days, the application is deemed to be substantially
complete and subject to the 150-day permitting review period in paragraph (a) from the
date it was submitted. deleted text end This paragraph does not apply to an application for a permit that is
subject to a grant or loan agreement under chapter 446A.

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

new text begin (1) has a professional engineer license issued by the state of Minnesota; and
new text end

new text begin (2) has at least ten years of experience in the subject area of the permit.
new text end

new text begin (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:
new text end

new text begin (1) during the preapplication meeting, the applicant must submit at least the
following:
new text end

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

new text begin (ii) location of the project, including county, municipality, and location on the site;
new text end

new text begin (iii) business schedule for project completion; and
new text end

new text begin (iv) other information requested by the agency at least two weeks prior to the
scheduled meeting; and
new text end

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

new text begin (i) an overview of the permit review program;
new text end

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

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

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

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

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

new text begin (h) A permit application submitted by a permit professional shall be deemed
complete unless the terms and conditions in the application submitted by the permit
professional are clearly erroneous under statute or rule. The agency shall, within five
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.
new text end

new text begin (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 and public hearing, the
commissioner shall notify the applicant whether the permit is approved.
new text end

new text begin (j) Nothing in this section shall be construed to modify:
new text end

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

new text begin (2) the authority to implement a federal law or program.
new text end

new text begin (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 period. 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 end

new text begin (l) 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 capability to receive, review,
or process fees, reports, or other filings.
new text end

Sec. 5.

Minnesota Statutes 2010, section 116.07, subdivision 4a, is amended to read:

Subd. 4a.

Permits.

(a) The Pollution Control Agency may issue, continue in
effect or deny permits, under such conditions as it may prescribe for the prevention of
pollution, for the emission of air contaminants, or for the installation or operation of
any emission facility, air contaminant treatment facility, treatment facility, potential air
contaminant storage facility, or storage facility, or any part thereof, or for the sources
or emissions of noise pollution.

The Pollution Control Agency may also issue, continue in effect or deny permits,
under such conditions as it may prescribe for the prevention of pollution, for the storage,
collection, transportation, processing, or disposal of waste, or for the installation or
operation of any system or facility, or any part thereof, related to the storage, collection,
transportation, processing, or disposal of waste.

The agency may not issue a permit to a facility without analyzing and considering
the cumulative levels and effects of past and current environmental pollution from all
sources on the environment and residents of the geographic area within which the facility's
emissions are likely to be deposited, provided that the facility is located in a community in
a city of the first class in Hennepin County that meets all of the following conditions:

(1) is within a half mile of a site designated by the federal government as an EPA
superfund site due to residential arsenic contamination;

(2) a majority of the population are low-income persons of color and American
Indians;

(3) a disproportionate percent of the children have childhood lead poisoning, asthma,
or other environmentally related health problems;

(4) is located in a city that has experienced numerous air quality alert days of
dangerous air quality for sensitive populations between February 2007 and February
2008; and

(5) is located near the junctions of several heavily trafficked state and county
highways and two one-way streets which carry both truck and auto traffic.

The Pollution Control Agency may revoke or modify any permit issued under this
subdivision and section 116.081 whenever it is necessary, in the opinion of the agency, to
prevent or abate pollution.

(b) The Pollution Control Agency has the authority for approval over the siting,
expansion, or operation of a solid waste facility with regard to environmental issues.
However, the agency's issuance of a permit does not release the permittee from any
liability, penalty, or duty imposed by any applicable county ordinances. Nothing in this
chapter precludes, or shall be construed to preclude, a county from enforcing land use
controls, regulations, and ordinances existing at the time of the permit application and
adopted pursuant to sections 366.10 to 366.181, 394.21 to 394.37, or 462.351 to 462.365,
with regard to the siting, expansion, or operation of a solid waste facility.

new text begin (c) Except as prohibited by federal law, a person may commence construction,
reconstruction, replacement, or modification of any facility prior to the issuance of a
construction permit by the agency.
new text end

Sec. 6.

Minnesota Statutes 2010, section 116J.035, is amended by adding a subdivision
to read:

new text begin Subd. 8. new text end

new text begin Environmental permits coordinator. new text end

new text begin (a) The commissioner is designated
the environmental permits coordinator and shall coordinate the implementation and
administration of state permits, including:
new text end

new text begin (1) establishing a mechanism in state government that will coordinate administrative
decision-making procedures and related quasijudicial and judicial review pertaining to
permits related to the state's air, land, and water resources;
new text end

new text begin (2) providing coordination and understanding between federal, state, and local
governmental units in the administration of the various programs relating to air, water,
and land resources;
new text end

new text begin (3) identifying all existing federal, state, and local permits and other approvals;
compliance schedules; or other programs that pertain to the use of natural resources and
protection of the environment; and
new text end

new text begin (4) recommending legislative or administrative modifications to existing permit
programs to increase their efficiency and utility.
new text end

new text begin (b) A person proposing a project may apply to the environmental permits coordinator
for assistance in obtaining necessary state permits and other approvals. Upon request, the
environmental permits coordinator shall:
new text end

new text begin (1) provide a list of all federal, state, and local permits and other required approvals
for the project;
new text end

new text begin (2) provide a plan that will coordinate federal, state, and local administrative
decision-making practices, including monitoring, analysis and reporting, public comments
and hearings, and issuances of permits and approvals;
new text end

new text begin (3) provide a timeline for the issuance of all federal, state, and local permits and
other approvals required for the project;
new text end

new text begin (4) coordinate the execution of any memorandum of understanding between the
person proposing a project and any federal, state, or local agency;
new text end

new text begin (5) coordinate all federal, state, or local public comment periods and hearings; and
new text end

new text begin (6) provide other assistance requested to facilitate final approval and issuance of all
federal, state, and local permits and other approvals required for the project.
new text end

new text begin (c) As necessary, the environmental permits coordinator shall negotiate a schedule
to assess the project proposer for reasonable costs that any state agency incurs in
coordinating the implementation and administration of state permits, and the proposer
shall pay the assessed costs to the environmental permits coordinator. Money received
by the environmental permits coordinator must be credited to an account in the special
revenue fund and is appropriated to the commissioner to cover the assessed costs incurred.
new text end

new text begin (d) The coordination of implementation and administration of state permits is not
governmental action under section 116D.04.
new text end

new text begin (e) For the purposes of this subdivision:
new text end

new text begin (1) "agency" means:
new text end

new text begin (i) a state department, commission, board, or other agency of the state, however
titled; or
new text end

new text begin (ii) a local governmental unit or instrumentality, only when that unit or
instrumentality is acting within existing legal authority to grant or deny a permit that
otherwise would be granted or denied by a state agency;
new text end

new text begin (2) "local governmental unit" means a county, city, town, or special district with
legal authority to issue a permit;
new text end

new text begin (3) "permit" means a permit, certificate, certification, approval, compliance schedule,
or other similar document pertaining to a regulatory or management program related to
the protection, conservation, or use of or interference with the natural resources of land,
air, or water that must be obtained from a state agency before constructing or operating a
project in the state;
new text end

new text begin (4) "person" means an individual, an association or partnership, or a cooperative,
municipal, public, or private corporation, including but not limited to a state agency
and a county; and
new text end

new text begin (5) "project" means a new activity or an expansion of or addition to an existing
activity, which is fixed in location and for which permits are required from an agency
prior to construction or operation, including but not limited to industrial and commercial
operations and developments.
new text end

ARTICLE 2

ENVIRONMENTAL REVIEW

Section 1.

Minnesota Statutes 2010, section 14.05, is amended by adding a subdivision
to read:

new text begin Subd. 5a. new text end

new text begin Review of environmental assessment worksheets and environmental
impact statements. new text end

new text begin By December 1, 2012, and every five years thereafter, the
Environmental Quality Board, Pollution Control Agency, Department of Natural
Resources, and Department of Transportation, after consultation with political
subdivisions, shall submit to the governor and the chairs of the house of representatives
and senate committees having jurisdiction over environment and natural resources a list
of mandatory environmental assessment worksheet or mandatory environmental impact
statement categories for which the agency or a political subdivision is designated as the
responsible government unit, and for each worksheet or statement category, a document
including:
new text end

new text begin (1) intended outcomes of each worksheet or statement within each category;
new text end

new text begin (2) the cost to state and local government and the private sector; and
new text end

new text begin (3) an explanation of what information provided on the mandatory worksheet or
statement within each category is not included in or provided for in an existing permit or
other federal, state, or local law.
new text end

Sec. 2.

Minnesota Statutes 2010, section 41A.10, subdivision 1, is amended to read:

Subdivision 1.

Definitions.

For the purposes of this section and section 103F.518,
the terms defined in this subdivision have the meanings given them.

(a) "Cellulosic biofuel" means transportation fuel derived from cellulosic materials.

(b) "Cellulosic material" means an agricultural new text begin or wood new text end feedstock primarily
comprised of cellulose, hemicellulose, or lignin or a combination of those ingredients
grown on agricultural lands new text begin or harvested timber lands new text end .

(c) "Agricultural land" means land used for horticultural, row, close grown, pasture,
and hayland crops; growing nursery stocks; animal feedlots; farm yards; associated
building sites; and public and private drainage systems and field roads located on any of
that land.

(d) "Cellulosic biofuel facility" means a facility at which cellulosic biofuel is
produced.

(e) "Perennial crops" means agriculturally produced plants that have a life cycle of at
least three years at the location where the plants are being cultivated.

(f) "Perennial cropping system" means an agricultural production system that
utilizes a perennial crop.

(g) "Native species" means a plant species which was present in a defined area of
Minnesota prior to European settlement (circa 1850). A defined area may be an ecological
classification province. Wild-type varieties therefore are regional or local ecotypes that
have not undergone a selection process.

(h) "Diverse native prairie" means a prairie planted from a mix of local Minnesota
native prairie species. A selection from all available native prairie species may be made so
as to match species appropriate to local site conditions.

(i) "Commissioner" means the commissioner of agriculture.

Sec. 3.

Minnesota Statutes 2011 Supplement, 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.
deleted text begin 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.
deleted text end

(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 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 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. new text begin 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).
new text end

(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 100
individuals who reside or own property in the state, 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.

(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.