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MN lawmakers pull the plug on pollution-fighting citizens' panel

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Excel Dairy
The Minnesota Pollution Control Agency's Citizens' Board has weighed in on many agriculture decisions over the years, including the Excel Dairy case, in which the board denied to reissue the Thief River Falls dairy a permit after it was declared a public health nuisance.
Tom Robertson | MPR News 2008

The Minnesota Pollution Control Agency Citizens' Board was once one of the state's most powerful citizen bodies — the decision-making panel for the agency protecting Minnesota's air and water.

  Next week, though, it will be gone, the victim of a legislative deal reached during last week's special session.

  Most state lawmakers saw no compelling reason to keep the board. While some DFL senators put up a fight for it during the special session, GOP lawmakers argued the group, which fought pollution issues for nearly 50 years, was no longer useful and slowed down the process.

  "I think most people don't even know what they're losing," said Carolyn Sampson, a member of the citizens' board.

  For decades, the citizens' panel oversaw decisions like whether to require an in-depth environmental study for a project, or whether a new water quality rule was justified. That work will be done now by the MPCA commissioner and staff, "but I know for sure that it won't be done as well," said Dan Foley, who's been on the board for 30 years.

  Specializing in toxicology, Foley is one of dozens of Minnesotans who brought unique perspectives to the board and were paid a $55 per diem to attend monthly meetings. Foley says most board members spent hours poring over hundreds of pages of technical documents, scrutinizing them and asking project proposers and agency staff pointed questions.

  "That agency had a citizen board that was really well-informed and forced the best decisions for the citizens at a minimum cost," he said. "I knew we were making substantive decisions that were benefiting everybody."

  When the Legislature created the Minnesota Pollution Control Agency and board in 1967, parts of Minnesota and other states were plagued by industrial pollution.

  "Down by the river at the university, behind the student union, there used to be a sign that said 'water unfit for bodily contact,'" said retired University of Minnesota Professor Dean Abrahamson.

  The agency and its board were trailblazers in the early days, he added.

  The board's first significant action came when it weighed how much radioactive waste the Monticello, Minn., nuclear power plant should be allowed to discharge into the Mississippi River. Abrahamson brought his expertise to the case, which eventually went to court in a multi-state battle with the Atomic Energy Commission, the now defunct federal agency that oversaw nuclear power.

  "And Minnesota lost in the courts, but so much political pressure had been applied that the AEC then was forced to revise their standards to what Minnesota had proposed," Abrahamson said. "It had enormous implications for nuclear power in the U.S., and I'm sure it never would have happened had it not been for the citizen board."

  In Minnesota's environmental community, the board will be best remembered for the decisions where it stood up for the environment, even in the face of a local development opportunity. That included a 2005 board vote that led a proposed tire burning plant to abandon its plans.

HERC control room
The Hennepin County Energy Recovery Center (HERC) began operating in 1989 after the state revised its laws to prefer incinerators over landfills. Another incinerator was proposed for Dakota County, but in the early '90s, the MPCA Citizens' Board denied its permit.
Stephanie Hemphill | MPR News 2009

  In 2014, it required a proposed large dairy operation to conduct an environmental impact statement, reversing the recommendation of the agency commissioner.

  "When they decided they agreed with us, we were elated that the little guy, or the local person, was going to have a chance to have some input into how the decision was made affecting my own life," said neighbor Kathy DeBuhr of Chokio, Minn.

  The Baker Dairy decision, however, prompted state lawmakers to question the board's power.

  Earlier this year the Minnesota Chamber of Commerce testified in favor of giving the board more of an advisory role. Most of the concern stemmed from the uncertainty involved in the board process. The businesses proposing projects couldn't always predict how the board was going to rule, even after months of working with MPCA staff on permits and environmental analyses.

  Minnesota Farm Bureau lobbyist Kevin Paap says his group didn't take a position on whether to eliminate the board. But he says whatever the process, business owners need to know what they're facing up front.

  "Farmers invest a lot of money putting together their plans to obtain these permits, and we want to make sure we know what the rules are before we invest the money," he said.

  Cases like Baker Dairy were rare in the board's 47-year history. Most of the time, the board agreed with what the MPCA's scientific staff recommended. In that sense, the board was much more a public forum for decision-making than a group of citizens gone radical.  

  "Democracy is not very orderly sometimes, but it gives people an opportunity to be heard," said retired environmental lawyer Chuck Dayton. "I think if people believe they've had an opportunity to be heard, and someone in an objective position is making a decision, they can accept the decision."

  The board's last meeting will be June 23.

     

The MPCA Citizens' Board explained

 

What is the Minnesota Pollution Control Agency Citizens' Board? 

  A group of eight citizens who serve as the decision-making body for the MPCA. When the agency was created in 1967, the Legislature decided board members should have the ultimate say on various environmental matters rather than the agency's head. The structure and scope of the board has changed over the years, and under the current setup, the commissioner of the MPCA automatically chairs the citizens' board and is a voting member.

  The board is responsible for approving new or revised water quality standards, deciding whether in-depth environmental review is needed for certain projects and approving certain types of project permits.

 

Why is the board being eliminated?

  It was part of legislation considered during the recent budget negotiations at the Capitol. The GOP-controlled House originally had proposed taking away much of the board's decision-making authority and giving it more of an advisory role. The DFL-led Senate had no such language in its environment budget bill. After bill negotiations and on the last day of the regular session, an environment budget bill was posted that eliminated the board entirely.

  GOP proponents argued the board's time had passed and that the MPCA would be far more efficient and scientifically focused without the Citizens' Board. DFLers countered that the board played an important role in keeping the process open and transparent, providing an additional check on the agency. Environmental groups argued there would be less scrutiny and oversight over projects.

  While DFL Gov. Mark Dayton listed the board's elimination as reason to veto the environment budget bill, the language remained after negotiations with House Speaker Kurt Daudt. A group of DFL senators tried to save the board during the special session but were unsuccessful. The board's last meeting will be June 23.

 

Did one decision — to require an environmental impact statement for a proposed large dairy — lead to the board's elimination?

  Yes and no. In August 2014, the board voted to disagree with MPCA staff and require an environmental impact statement for the proposed Baker Dairy in western Minnesota. The decision forced the dairy owners to look elsewhere to establish the business. Discussions about stripping the board of its power followed. But it wasn't the first time lawmakers had talked about taking such action.  

Agribusiness groups and the Minnesota Chamber of Commerce have complained for years about the uncertainty the board adds to the permitting process. So support for eliminating the board had existed before, but the Baker Dairy decision likely added momentum to that cause.

 

Will eliminating the MPCA Citizens' Board save the state money? 

  There will be some savings but it's hard to say how much. Board members were basically volunteers who received a $55 per diem to attend monthly meetings. Proponents of eliminating the board argued the biggest savings from eliminating the board would be time spent by MPCA staff preparing for board meetings. On the other hand, with less opportunity for public comment and airing of disagreements, it's possible more cases could end up in court, which can also be costly for the state.  

Did the board take a lot of actions the MPCA wouldn't have on its own?

  Certainly there were cases in which the board reversed a staff decision or required more environmental review than recommended by staff. But those cases were more the exception than the rule, and some environmentalists contend the board was generally conservative when it came to requiring extra analysis or mitigation of project proposers. But the controversial decisions are the ones people will remember.

Timeline

  1967: The Minnesota Pollution Control Agency and board are created. At the time, the U.S. Environmental Protection Agency did not exist and neither did modern environmental laws, including the Clean Water Act and Clean Air Act. The agency's early charge was protecting water, but it later became the state enforcer of federal air and water protection laws.

  Late 1960s to early 1970s: The MPCA's first significant decision is on how much radioactive waste the Monticello nuclear power plant should be allowed to discharge into the Mississippi River. One of the citizen board members questioned what the company proposed, and experts were brought in to testify. Eventually the board required a much lower limit than the federal Atomic Energy Commission's standard, prompting a court fight. While Minnesota and the other states that joined the suit lost in court, the dispute forced the AEC to reconsider its standards.

  1970s: The biggest case brought before the MPCA board involved Reserve Mining, an Iron Range company that was dumping taconite tailings into Lake Superior, threatening drinking water supplies. The documents involved in the complicated legal case take up 138 boxes at the Minnesota Historical Society.

  1980s: Much of the board's work in the '80s focused on water quality problems, especially as they related to livestock operations. In southeastern Minnesota, the board also weighed in on a dispute over sewage treatment in an area of the state known for its sinkholes.

  1990s: The decade of the garbage burner. The board weighed in on one proposed for Dakota County that in the end was never built. The '90s also saw a lot of discussion about ethanol plants, especially the quantity of water they were using.

  2000s: The board spent significant time on the problems with east metro water supplies caused by industrial chemicals manufactured in the past by 3M. The company and the MPCA came up with a consent agreement to clean up the mess, and that agreement had to be approved by the board. In 2005, the board voted to require an environmental impact statement for a proposed tire burning facility in Preston. The move prompted the company to abandon its plans.

  2010s: The board approved revised water quality standards related to the nutrient phosphorus in Minnesota's lakes and streams. Several cities that operate wastewater treatment plants sued, and the case is still pending. The board also voted in August 2014 to require a proposed dairy operation in western Minnesota to conduct an environmental impact statement.

  Future? The citizens' board was eliminated by the Minnesota Legislature in 2015. Had it lived on, the board would have faced many important decisions, including new water quality standards aimed at protecting wild rice from sulfate releases. In addition, permits needed for the proposed copper-nickel mine likely would have come before the board. And large livestock facilities, becoming more common on Minnesota's landscape, would have also faced the panel of citizens. Instead, decisions about permits and environmental review will fall to the MPCA commissioner and staff.