WHERE'S THE DRAFT RULE?

Dear Friends and Neighbors,

  Although most of you have requested only action alerts, this info reminds us to not let up in our efforts.

Wishing you well,

Bonita

The question/demand participants in the Advisory Committee should have for the MPCA is simple:
        WHERE'S THE DRAFT RULE?

The work of an Advisory Committee is to review and comment on the draft, which moves through various iterations before going to the agency board & Commissioner for release as a draft rule for comment.  Can't do the work if the draft isn't there.
It's that simple...
Carol

The people expect regulation!

A year later, there's been lots of talk, but little action.  Enforceable regulation?  HA!  ... yet it's anything but funny...

Last year's legislation has proven to be lots of wishful thinking and little enforceable regulation of silica sand mining.  The state did not enact a moratorium, there's no Generic Environmental Impact Statement, nor a requirement for an Environmental Impact Statement for individual sand mine permit applications, and we're waiting for the nominal narrow rules and the optional model Standards and Criteria.  Now another legislative session is upon us, legislators are touring their districts and preparing for elections, so now's the time to let the legislators know that last year's placating "compromise" doesn't cut it, that it's compromised the public interest, and we deserve and expect better.  The people expect reasonable regulation of silica sand mining.

Find links to primary documents and statutes here on Legalectric:

Someone explain rulemaking to the MPCA

The Minnesota legislature has begun, a short session this year, and a budget session, not policy.  Where are the laws and regulations we expected to regulate silica sand mining?  Stalled out.  We've been to meeting after meeting, and there are no Standards and Criteria, and these were only models anyway, optional examples for local governments to adopt.  It's been taken off the EQB agenda, and I'm reminded of the way the EQB didn't want to address nuclear waste in Florence Township and took it off the agenda, and then just stopped holding meetings!  Deja vu all over again?  Will this really be on the next EQB Agenda and will action be taken?

And then there's rulemaking!  Oh my...  There were only three narrow areas to enact rules, it's not like they have to reinvent the wheel, but the effort, lead by the MPCA, has been one of resistance and failure to produce.  First they objected to expectations to form an Advisory Committee for input into the draft.  Then, once ordered to form Advisory Committee, rather than be prepared to talk turkey and produce a draft to discuss, they lead the group on a wild goose chase with literally TONS of "background information" that's enough to gag a policy wonk (background info and links here:Someone explain rulemaking to the MPCA)

I've participated in more than a few rulemakings over the last 20 years, including very intense ones reworking two chapters of utility regs, a decade ago and another now ongoing, and this silica sand rulemaking does not cut it.  We need draft language to discuss now, at the beginning, with fresh iterations after input at Committee meetings.

The MPCA has produced two process flow charts in their "background information," neither of which even show "Advisory Committee" as part of the process.  What??  Although that perspective is not really surprising, given the MPCA staff argued in comments to the EQB that they couldn't imagine what benefit an Advisory Committee could provide.  Get a clue -- Advisory Committees are authorized by statute and the purpose is to get the public involved at the front end and have a purpose -- to gather input on a draft and work towards consensus so the agency can then release for comment a workable rule (rulemaking law says that an agency can't adopt something that's substantially different from what's been released for comment, hence the need to do the work up front, before the draft is released).  The Advisory Committee has met once, and is soon meeting again.  I've checked with staff and they have no intention of bringing draft language to this SECOND meeting for discussion.  WHAT?  Draft language should be distributed before the first meeting to give folks time to chew on it and be productive right out the gate.  Revised draft language should be presented at every Committee meeting for  review and comment.

The MPCA apparently doesn't do rulemaking the way other state agencies do (for example, in the Greenhouse Gas rule, they didn't even give proper notice and admitted it on the record!).  The agency should encourage input, understand the concern, and seriously consider whether and how to address it in the proposed rules.  It's to their advantage to do so to come up with an acceptable rule.  MPCA, get with it and open this process up to MEANINGFUL public participation.

Unfortunately, it looks to me as if they're going to manipulate the process -- take their sweet time, as invited to by the legislative exception to Minn. Stat. 14.125, and then, if the law isn't changed this session to eliminate the rulemaking and they then do have to move rules forward, that they'll continue to hold these nonproductive kaffee-klatsches, and yammer a bit, and then having dodged public input, MPCA will bring the draft directly to the MPCA Board for release for comment, without getting any substantive on-point feedback from the Advisory Group beforehand regarding the draft.  Then the "rule" will be released for comment, it will be horrible, there will be lots of public push-back, and everyone throws up their hands and says, "See, we couldn't and shouldn't try to regulate silica sand!"  That's the trajectory I see, and I don't like it one bit.

Hey, MPCA, prove me wrong!  I hope that you'll decide to do it differently and utilize the Advisory Committee as you should.  Enough of the "make work" meetings -- bring draft language on the three narrow issues for rulemaking to the Committee for review.  Disclose your draft rules!  Get substantive feedback on what rules you're proposing!

And for those of you in Minnesota and Wisconsin -- don't forget -- now is the time to tell your legislators that you expect regulation of silica sand mining operations.  Hold their feet to the fire.  Enough of this dodging and weaving!

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-"Our lives begin to end the day we become silent
about the things that matter."  Dr. Martin Luther King, Jr. 


Carol A. Overland
Attorney at Law
Legalectric - Overland Law Office
1110 West Avenue
Red Wing, MN  55066

612-227-8638

overland@legalectric.org

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