On Thursday, the Office of Administrative Hearings issued its order and findings on the proposed Wild Rice Sulfate Rule, rejecting the proposal by the Minnesota Pollution Control Agency (MPCA). We are pleased that the order incorporated many of the arguments that MESERB and its members raised. It is apparent our collective efforts had an impact on the ruling. We will provide a more detailed analysis of the implications to our members in coming weeks, but here are a few aspects worth noting:

  • The administrative law judge (ALJ) rejected the proposed repeal of the 10 mg/L sulfate standard because the MPCA did not establish that the repeal was reasonable and because it would conflict with federal law.
  • The ALJ did not approve the proposed equation-based sulfate standard. She felt that the lack of certainty how the rule would be applied meant that proposal does not meet the definition of a rule.
  • The ALJ disapproved the proposed list of 1,300 wild rice waters.
  • The ALJ also walked through the requirements of rulemaking and found that the agency had failed to comply with those requirements in numerous ways. Her reasoning followed a number of arguments that MESERB made.
    • For example, the MPCA is required to identify the probable costs of complying with the proposed rules by certain categories of affected parties, including local governments. The ALJ found the MPCA’s analysis lacking.
    • Agencies are also required to assess the cumulative effect of the rule. In other words, they must assess the incremental impact of the proposed rule in addition to other rules. The MPCA claimed that means it needs to look at whether a rule is duplicative. The ALJ rejected that interpretation because the plain language clearly requires that the MPCA use the plain definition of the word cumulative and look at how it adds to the impact of other rules.
    • The ALJ also agreed that the MPCA had failed to perform the required consultation with the Minnesota Management and Budget (MMB) office. The ALJ noted that the MPCA did consult with MMB, but, as MESERB pointed out, so little information was provided to MMB that it was not a meaningful consultation. Therefore, the MPCA failed to meet its consultation requirements.

The MPCA must now decide how to respond to this ruling. It could make changes as identified by the ALJ. If it chooses not to do so, it would be required to submit its proposed rules to the relevant legislative commissions. The old 10 mg/l standard remains in effect until further MPCA action has been taken.

MESERB will be further analyzing the decision to determine the impact on our members, but in the short term members should be pleased that a number of our contentions were taken seriously by the ALJ and impacted the outcome.

Here is some of the news coverage on the OAH opinion rejecting the Sulfate Wild Rice amendments: