SF 695

1st Engrossment - 90th Legislature (2017 - 2018) Posted on 03/08/2017 08:39am

A bill for an act
relating to environment; changing the review process for certain water quality
decisions of the Pollution Control Agency; requiring an independent scientific
review of certain proposed rulemakings of the Pollution Control Agency and
contested cases before the agency; prohibiting the Pollution Control Agency from
enforcing unadopted rules; suspending enforcement of certain water quality rules;
appropriating money to cover costs of independent scientific reviews; amending
Minnesota Statutes 2016, sections 115.05, by adding subdivisions; 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 by adding a subdivision
to read:

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 pertain to:
new text end

new text begin (1) issuing, amending, or denying a total maximum daily load (TMDL) allocation,
watershed restoration and protection strategy (WRAPS), permit, license, or certification;
new text end

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

new text begin (4) granting or denying a variance or a site-specific water-quality standard;
new text end

new text begin (5) issuing an administrative order, except for an administrative penalty order issued
according to section 116.072;
new text end

new text begin (6) denying a contested case hearing on any of the matters listed in clauses (1) to (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 (b) In any proceeding to review a final decision of the commissioner under chapter 14,
the administrative law judge 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 administrative law judge must invalidate the action
and, if appropriate, remand the matter to the commissioner for further proceedings consistent
with this section.
new text end

Sec. 2.

Minnesota Statutes 2016, section 115.05, is amended by adding a subdivision to
read:

new text begin Subd. 13. new text end

new text begin Independent review of proposed rulemakings concerning water quality.
new text end

new text begin (a) The Office of Administrative Hearings must convene an expert review panel to review
the scientific basis of a proposed rule of the Pollution Control Agency if it receives petitions
from five or more local government units within 30 days after the issuance of a notice of
intention to adopt a proposed rule related to one or more of the following:
new text end

new text begin (1) water quality standards under section 115.44;
new text end

new text begin (2) impairment designations, total maximum daily load (TMDL) allocations, watershed
restoration and protection strategies (WRAPS), or water-related permits, licenses, or
certifications;
new text end

new text begin (3) identification or listing of impaired waters under section 114D.25; or
new text end

new text begin (4) the granting or denial of site-specific water quality standards or variances to water
quality standards.
new text end

new text begin (b) A petition submitted pursuant to paragraph (a) must be submitted in writing to the
Office of Administrative Hearings and must describe the need for the independent review.
The petition may include supporting expert opinion.
new text end

new text begin (c) Upon receipt of a petition complying with paragraph (b), the Office of Administrative
Hearings must convene an expert review panel regardless of whether an external peer review
was conducted under section 115.035. The office 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 Pollution Control Agency nor by any of the
petitioners to the proceeding and who are not directly or indirectly involved with the work
conducted or contracted by the agency. The composition of the panel must be determined
as follows:
new text end

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

new text begin (2) the petitioners must jointly 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 Office of Administrative Hearings must make the appointment.
new text end

new text begin (d) In its order establishing the expert review panel, the Office of Administrative Hearings
must include a statement of the specific scientific issues or questions in dispute to be
submitted for review. The commissioner and petitioners must mutually agree to the issues
or questions, except that if the parties cannot agree on one or more issues or questions, the
Office of Administrative Hearings must determine the issue or question to be submitted. If
the Office of Administrative Hearings determines the issue or question to be submitted, the
office must hold a public hearing on the issue or question.
new text end

new text begin (e) The expert review panel established by the Office of Administrative Hearings must
review the scientific evidence relevant to the issues or questions listed in the order of the
Administrative Office of the Court, 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. The panel must
submit a written opinion on the scientific validity of the commissioner's approach at issue.
If the panel finds deficiencies, the panel must recommend how the deficiencies can be
corrected. The written opinion must be submitted to the Office of Administrative Hearings,
which shall send a written copy of the opinion to the commissioner of the Pollution Control
Agency, the petitioners, and the chairs of the house of representatives and senate committees
having jurisdiction over environment and natural resources policy and finance.
new text end

new text begin (f) Once the Office of Administrative Hearings has received petitions from five or more
local government units pursuant to paragraph (a), it must notify the Pollution Control Agency
of this fact and the Pollution Control Agency shall not proceed to adopt the proposed rule
until the agency holds a hearing pursuant to section 14.14 at least 30 days after the agency
receives the written opinion required to be sent to it under paragraph (e). All of the
requirements that govern an initial hearing under section 14.14 shall apply to a hearing
under this paragraph.
new text end

new text begin (g) The Office of Administrative Hearings must convene an expert review panel that
complies with this subdivision if a petitioner in a contested case asserts in a petition to the
Office of Administrative Hearings that there is a dispute in the contested case as to any of
the items set forth in paragraph (a), clauses (1) to (4), and the office finds that such a dispute
exists. The contested case shall not proceed until the written opinion of the expert panel is
issued and considered by the Pollution Control Agency.
new text end

Sec. 3.

Minnesota Statutes 2016, section 115.05, is amended by adding a subdivision to
read:

new text begin Subd. 14. new text end

new text begin Definition of local government unit. new text end

new text begin For purposes of subdivision 13, "local
government unit" includes a statutory or home rule charter city, town, county, local public
utilities commission, sanitary district, soil and water conservation district, watershed district,
watershed management organization, an organization formed for the joint exercise of powers
under section 471.59, or other special purpose district or authority exercising authority in
water and related land resources management at the local level.
new text end

Sec. 4.

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

Sec. 5. new text begin SUSPENSION OF CERTAIN WATER QUALITY RULES.
new text end

new text begin Until July 1, 2019, the water quality standards or other water quality rule changes adopted
on or after July 2, 2014, that require a local unit of government to upgrade or update its
wastewater treatment facility or to construct a new wastewater treatment facility, are
suspended. Water quality standards and other water quality rules in effect on July 1, 2014,
are in effect until July 1, 2019. Any actions brought by the commissioner of the Pollution
Control Agency before, or contested cases under Minnesota Statutes, chapter 14, that are
pending on the effective date of this section, to enforce water quality standards or other
water quality rules adopted on or after July 2, 2014, are suspended until July 1, 2019.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment and
expires July 1, 2019.
new text end

Sec. 6. new text begin APPROPRIATION.
new text end

new text begin $100,000 in fiscal year 2018 is appropriated from the general fund to the Office of
Administrative Hearings to convene expert review panels according to Minnesota Statutes,
section 115.05, subdivision 13. The appropriation is available until expended.
new text end