In January, a state administrative law judge disapproved the Minnesota Pollution Control Agency’s proposed repeal of the existing 10 mg/L sulfate standard and proposed adoption of a new equation based standard. On March 28, the MPCA responded to the judge’s report and order by attempting to correct the deficiencies the judge identified and proposing some additional amendments to the proposed rules. Based on MPCA changes and response, MPCA requested that the judge reverse her previous decision disapproving the rule.

On April 12, the judge responded to the MPCA, stating that it had failed to correct the deficiencies originally identified. The judge then issued an updated order upholding her previous decision disapproving the proposed rules.

At this point, MPCA has two options to pursue repeal of the 10 mg/L standard and adoption of the new equation based standard as a part of this rulemaking effort:

  1.  Correct the outstanding deficiencies identified by the judge; or
  2.   Submit the proposed rule to the Legislative Coordinating Commission and the legislative policy committees with primary jurisdiction over state governmental operations for advice and comment.

If MPCA elects not to correct the deficiencies identified by the judge and submits the proposed rule to the Legislature, MPCA may not adopt the rule until it has either: received and considered the advice of the Legislature; or 60 days have passed following the MPCA’s submission of the rule to the commission and committees.

In addition, there is legislation currently moving forward that would repeal the 10 mg/L standard and prevent MPCA from adopting the equation without initiating a new rulemaking effort.

Assuming the legislation does not pass, MPCA can still adopt the proposed rules without addressing the concerns identified by the judge. However, if MPCA fails to correct the deficiencies, it will create a higher risk of having the rule overturned in any future litigation. It is unclear how MPCA intends to proceed, but we will continue to update you as the process unfolds.

The new order from the administrative law judge can be found here.