Minnesota Lawyer
Sand has a unique tendency to linger, and it is not uncommon to still be brushing the stuff off clothing and car seats long after a trip to the lake. It’s also pretty effective as an irritant.
Such is the case, still, with the silica sand mine debate in the Minnesota Legislature. The issue, which came to dominate portions of the 2013 legislative session, has resurfaced in a more subdued manner this year, and it remains to be seen if any substantive legislation might come up for consideration.
But nerves are still raw, and the first protest from environmental advocates took place before a word had even been uttered in a Tuesday afternoon committee hearing.
The House Mining and Outdoor Recreation Policy Committee had planned to receive an update on the practice from industry representatives and state agencies, which are still fine-tuning a set of environmental guidelines for use by local governments. But a letter from the Land Stewardship Project accused the committee’s chairman, Rep. Tom Hackbarth, R-Cedar, of shutting out citizen testifiers in favor of mining interests.
Members of the same organization staged a protest outside Tuesday’s meeting, demanding equal time be given to their side.
Hackbarth issued a pre-emptive statement describing the proceedings as “an overview for panel members,” and said citizens would get their chance when necessary.
“If, and when, we do hear legislation on silica sand mining or any other form of mining, we welcome and encourage public testimony,” Hackbarth said.
As it was, the committee’s time was heavily weighted toward mining players, whose combined testimony took up the first hour of Tuesday’s hearing. That compressed an update from representatives from three state agencies to a total of about 15 minutes; a similar amount of time was reserved for public testimony.
Larkin Hoffman lobbyist Pedr Larson, testifying on behalf of the Minnesota Industrial Sand Council, called 2013 a “very busy session” on the issue, and passed out the conference committee report as a refresher for returning members or a crash course for new legislators.
Legislation passed in 2013 tasked the Department of Natural Resources (DNR), the Minnesota Pollution Control Agency (MPCA) and the Environmental Quality Board (EQB) with drafting new state rules on frac sand mining. Though the practice has existed for more than a century in Minnesota, demand has risen in recent years with the sand’s use in hydraulic “fracking” efforts to extract shale oil and gas.
Activists and local government officials, especially those in southeastern Minnesota, have raised concerns about the effect mining could have on air and water quality in surrounding areas.
Larson testified that he and others had spent the previous 20 months working with state agencies, and were frustrated with parts of the process.
“We’ve got some issues that we really think we need to deal with, with the agencies and their rulemaking,” Larson said.
Aaron Scott, an area manager for Shakopee Sand, testified that his firm understood the need for “appropriate regulation,” but expressed concern about the potential for unduly strict rules.
“We do not object to that regulation,” Scott said, “provided that it is clear and predictable in its application, and most importantly that it is based on sound science, not on fear or misinformation.”
Later, as the hearing shifted its focus to the state agency perspective, MPCA legislative coordinator Catheryn Neuschler gave a walk-through of draft rules under consideration, and attempted to summarize the divergent responses that agency had heard to date.
On the prospect of monitoring mining’s effect on air quality, Neuschler said: “Cities and citizens largely are supportive of requiring monitoring, while industry expressed concerns that the monitoring being envisioned is excessive, and unlike anything done for other sorts of industries … in Minnesota.”
In a typical case, rules would have been in place within an 18-month period, but the 2013 law specifically exempted the sand mining rules from that timetable. Agencies anticipate their draft rules will be finished sometime this summer, though the regulations could then be subject to additional public comment and a potential legal challenge.
Sen. Matt Schmit, DFL-Red Wing, chief Senate author of the 2013 legislation, said the lengthy route to new rules is appropriate.
“On the timing [of rulemaking], it depends on who you ask,” he said. “The industry would like this process to be concluded, and I’m sure those concerned citizens would just as soon not see silica sand mining take place at all.”
Sen. John Marty, DFL-Roseville, chair of the Senate Environment and Energy Committee, said he has no imminent plans to call a hearing for an update on the agency rulemaking, and would prefer to “let the process play out.” Marty also said mining interests were the cause of the delay in setting new guidelines.
“It’s kind of hard when you push really hard on something in ways that may slow it down, then say you’re frustrated it’s taking a long time,” Marty said.
In an interview prior to Tuesday’s hearing, Nathan Cooley, who has coordinated the MPCA’s work on setting rules for silica mining, said the drawn-out process is partly due to the entrenched positions on either side of the debate. Cooley added that in the past, legislators have revisited rules after the fact.
“The people involved on this are active, and the interested parties are active, politically,” Cooley said. “I wouldn’t be surprised to get some revised direction from the Legislature.”
In fact, one element of the House Republicans’ House File 1 bill authored by Rep. Ron Kresha, R-Little Falls, would amend the existing rulemaking statute to increase legislative authority on agency regulations.
Under the current language — which has since been broken out into a separate bill, also authored by Kresha — proposed or enacted rules could be stricken if they are found to have a “substantial economic impact” or are not based on “sound, reasonably available scientific, technical, economic or other information.”
Through a spokesman, Kresha declined to comment on how his bill might affect regulation of the silica sand mining industry, citing both the sensitivity of that debate and the fact that his proposal was still in draft form.
For his part, Marty said he would prefer to leave the task of regulation in the hands of expert scientists and engineers at state agencies instead of lawmakers.
“Let’s see how it would work,” Marty said of Kresha’s proposal. “I’m not so eager to say the Legislature should intervene in every one of those things.”
Marty’s opposition was more strident than that of his caucus leader. Speaking in generalities, Senate Majority Leader Tom Bakk said he looks forward to a discussion about state agency rules and permitting, explaining that the imposition of strict standards before a project can start will eventually reach a point of “diminishing returns.”
“I have always supported the idea of taking a look at, ‘What is the benefit of the new regulation?” Bakk said. He added: “It’s something I’m interested in, but talking about it and getting it into law are two different things. Oftentimes soundbites can sound very attractive, but when you actually try to implement them, it becomes problematic.”
