Minnesota Priority Chemicals For Toxic Free Kids Act

The 2009 Minnesota Toxic Free Kids Act (Minn. Stat. 2010 116.9401 – 116.9407) requires the Minnesota Department of Health (MDH) to create two lists of chemicals: “Chemicals of High Concern” and “Priority Chemicals.” Under the Law, the Minnesota Pollution Control Agency (MPCA) is also required to make recommendations about mechanisms to reduce and phase out the use of priority chemicals in children’s products and to promote the use of safer alternatives.

The list of Priority Chemicals was required to be published no later than February 1, 2011, but MDH can update the list whenever a new priority chemical is designated.

On January 31, 2011, the MDH published its Priority Chemicals, which include:

Bisphenol A (BPA) (CAS 80-05-7)
Butyl benzyl phthalate (BBP) (CAS 85-68-7)
Cadmium (CAS 7440-43-9)
Decabromodiphenyl ether (decaBDE) (CAS 1163-19-5)
Dibutyl phthalate (DBP) (CAS 84-74-2)
Di (2-ethyhexyl) phthalate (DEHP) (CAS 117-81-7)
Formaldehyde (CAS 50-00-0)
Hexabromocyclododecane (HBCD) (CAS 3194-55-6)
Lead (CAS 7439-92-1)


In 2010, MDH released its list of “Chemicals of High Concern”. Click here for more information on Chemicals of High Concern.

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Minnesota EQB Proposes Mandatory Environmental Review Threshold For GHG

The Minnesota Environmental Quality Board (EQB) has published its intent to adopt rules without a public hearing that would add a specific threshold number applying to greenhouse gas (GHG) emissions to the mandatory EAW category for air pollutants at part 4410.4300, subpart 15. The level proposed is a combined total of 100,000 tons per year of GHGs, expressed as carbon dioxide equivalents. The gases to which this threshold would apply are carbon dioxide; methane; nitrous oxide; hydrofluorocarbons (HFCs); perfluorocarbons (PFCs); and sulfur hexafluoride. Written comments on the proposed rule amendment are being accepted by EQB until February 23, 2011.

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Updated Groundwater Contaminant Standards in Minnesota

The Minnesota Department of Health (MDH) has proposed some amendments to its Health Risk Limits, or HRLs. The proposed amendments to the Health Risk Limits rules for Groundwater (Minnesota Rules, Chapter 4717) are about health-based guidance called “health risk limits” (or HRLs) for contaminants found in groundwater that may be used for drinking purposes. The proposed rules will insert updated HRL values for groundwater contaminants in Part 4717.7860 and delete outdated HRL values from Part 4717.7500.

The proposed updated HRLs are for the following chemcials:

• Acetochlor ESA
• Acetochlor OXA
• Acetone
• Dichlorodifluoromethane
• 1,1‐Dichloroethene
• Ethylbenzene
• Ethylene glycol
• Metolachlor and s‐ metolachlor
• Metolachlor ESA
• Metolachlor OXA
• Perfluorobutane sulfonate (PFBS)
• Perfluorobutyrate (PFBA)
• Toluene
• Xylenes

Based on MDH recent review of HRL values for 27 of the contaminants listed in Minnesota Rules, part 4717.7500, MDH intends to repeal the outdated guidance promulgated in 1993‐1994. Of the 27 contaminants reviewed, updated guidance was promulgated for 15 contaminants in MDH’s 2009 rule revision and the current 2010 proposed rules include updated HRL values for 8 contaminants. MDH has issued alternate public heath‐protective guidance for the remaining 4 contaminants.

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Chemicals of High Concern List Under Toxic Free Kids Act

The Minnesota Department of Health (MDH) has published a list of almost 1,800 chemicals, and materials, such as diesel engine exhaust, soots, tars, and mineral oils, it has determined to be Chemicals of High Concern.

The Minnesota Toxic Free Kids Act of 2009 required that the MDH, after consultation with the Minnesota Pollution Control Agency (MPCA), generate a list of Chemicals of High Concern by July 1, 2010. The chemicals on the list must meet these criteria identified in Minn. Stat. 2009 116.9401:

"Chemical of high concern" means a chemical identified on the basis of credible
scientific evidence by a state, federal, or international agency as being known or suspected with a high degree of probability to:

• harm the normal development of a fetus or child or cause other developmental
  toxicity;
• cause cancer, genetic damage, or reproductive harm;
• disrupt the endocrine or hormone system;
• damage the nervous system, immune system, or organs, or cause other systemic toxicity;
• be persistent, bioaccumulative, and toxic; or
• be very persistent and very bioaccumulative
  

The law also instructed MDH to “consider chemicals listed as a suspected carcinogen, reproductive or developmental toxicant, or as being persistent, bioaccumulative, and toxic, or very persistent and very bioaccumulative by a state, federal, or international agency. These agencies included the California Environmental Protection Agency, the Washington Department of Ecology, US Department of Health, the US Environmental Protection Agency, the United Nation's World Health Organization, and European Parliament Annex XIV concerning the Registration, Evaluation, Authorisation, and Restriction of Chemicals (REACH)

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Minnesota EQB 60 Day Rule

With some exceptions, Minnesota Statute 15.99 requires that an agency must approve or deny within 60 days a written request relating to some specific types petitions. Failure of an agency to deny a request within 60 days is approval of the request. If an agency denies the request, it must state in writing the reasons for the denial at the time that it denies the request.

The “sixty day rule” (MN Statute 15.99) does not apply to projects that are going through the environmental review process. Because environmental review decisions can often take months (and in some cases years) to be reached, environmental review is one of the exceptions to the rule. The clock stops ticking on the “sixty day rule” until environmental review has been completed and, once environmental review has been completed, the clock is reset at 60 days.

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3 Year Look Back Rule For Environmental Review

The "Three Year Look Back Rule" under Minnesota Environmental Quality Board Environmental Review requirements addresses how to determine whether a proposed expansion of an existing project requires a mandatory EAW due to the combined size of the existing project and the proposed expansion. The existing project’s magnitude must be added to that of the proposed expansion under the following conditions:

• Construction of the existing project commenced less than three years ago; and
• The existing project was not reviewed through an EAW or EIS.
  

The purpose of the 3-year look-back rule is to identify phased actions that are subject to review. This provision does not require EAW review of any existing stages of the project. It only requires the RGU to include previous stages in the calculation to determine if the EAW mandatory threshold is exceeded, not to review completed construction.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address Environmental Review and Environmental Impact Assessment.

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EQB Mandatory Environmental Review Categories Proposed

The Minnesota Environmental Quality Board (EQB) is proposing amendments to environmental review rules adding several categories of projects that would require a Mandatory Environmental Assessment Worksheet (EAW) or a Mandatory Environmental Impact Statement (EIS). These amendments are in five areas:

• New mandatory EAW, EIS, and Exemption categories that would apply to certain projects located in the shoreland areas of lake and rivers;
• Amendments to how the rules handle treatment of “cumulative potential effects” in EAWs, EIS, and Alternative Urban Areawide Reviews (AUARs) in response to a 2006 Minnesota Supreme Court decision;
• Amendments to the Alternative Urban Areawide Review (AUAR) process with respect to how specific individual projects are treated or how they affect the review;
• A new mandatory EIS category for releases of genetically-engineered wild rice, in response to a legislative directive in the 2007 session; and
• Miscellaneous other amendments to clarify the meaning of certain rule provisions.

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Sixty Day Rule - Minnesota Environmental Review

With some exceptions, Minnesota Statute 15.99 requires that an agency must approve or deny within 60 days a written request relating to some specific petitions, including

• zoning,
• septic systems,
• watershed district review,
• soil and water conservation district review, or
• expansion of the metropolitan urban service area for a permit, license, or other governmental approval of an action.

Failure of an agency to deny a request within 60 days is approval of the request. If an agency denies the request, it must state in writing the reasons for the denial at the time that it denies the request.

The “sixty day rule” (MN Statute 15.99) does not apply to projects that are going through the environmental review process. Because environmental review decisions can often take months (and in some cases years) to be reached, environmental review is one of the exceptions to the rule. The clock stops ticking on the “sixty day rule” until environmental review has been completed and, once environmental review has been completed, the clock is reset at 60 days.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address Environmental Review and Environmental Impact Assessment.

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Changes To Mandatory Environmental Review Criteria

The Minnesota Environmental Quality Board (EQB) is proposing amendments to environmental review rules adding several categories of projects that would require a Mandatory Environmental Assessment Worksheet (EAW) or a Mandatory Environmental Impact Statement (EIS). These amendments are in five areas:

• New mandatory EAW, EIS, and Exemption categories that would apply to certain projects located in the shoreland areas of lake and rivers;
• Amendments to how the rules handle treatment of “cumulative potential effects” in EAWs, EIS, and Alternative Urban Areawide Reviews (AUARs) in response to a 2006 Minnesota Supreme Court decision;
• Amendments to the Alternative Urban Areawide Review (AUAR) process with respect to how specific individual projects are treated or how they affect the review;
• A new mandatory EIS category for releases of genetically-engineered wild rice, in response to a legislative directive in the 2007 session; and
• Miscellaneous other amendments to clarify the meaning of certain rule provisions.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address Environmental Review and Environmental Impact Assessment.

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Environmental Quality Board Cumulative Impacts Definition

The Minnesota Environmental Quality Board (EQB) is currently proposing amendments to its rules governing environmental reviews, Environmental Assessment Worksheets (EAW) and Environmental Impact Statements (EIS). The proposed amendments address a number of different aspects regarding mandatory environmental review.

One of the important amendments being proposed is under the definitions relating to “cumulative impacts”, as cumulative impacts need to be addressed in environmental review. Under current rules, cumulative impact is defined as:

“Cumulative impact" means the impact on the environment that results from incremental effects of the project in addition to other past, present, and reasonably foreseeable future projects regardless of what person undertakes the other projects. Cumulative impacts can result from individually minor but collectively significant projects taking place over a period of time.

The amendment adds a definition for “cumulative potential effects”;


"Cumulative potential effects" means the effect on the environment that results from the incremental effects of a project in addition to other projects in the environmentally relevant area that might reasonably be expected to affect the same environmental resources, including future projects actually planned or for which a basis of expectation has been laid, regardless of what person undertakes the other projects or what jurisdictions have authority over the projects. Significant cumulative potential effects can result from individually minor projects taking place over a period of time. In analyzing the contributions of past projects to cumulative potential effects, it is sufficient to consider the current aggregate effects of past actions. It is not required to list or analyze the impacts of individual past actions, unless such information is necessary to describe the cumulative potential effects. In determining if a basis of expectation has been laid for a project, an RGU must determine whether a project is reasonably likely to occur and, if so, whether sufficiently detailed information is available about the project to contribute to the understanding of cumulative potential effects. In making these determinations, the RGU must consider: whether any applications for permits have been filed with any units of government; whether detailed plans and specifications have been prepared for the project; whether future development is indicated by adopted comprehensive plans or zoning or other ordinances; whether future development is indicated by historic or forecasted trends; and any other relevant factors.

EQB has scheduled public hearings on the proposed amendments to be held around the State.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address Environmental Review and Environmental Impact Assessment.

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Minnesota EQB Environmental Review Summary - RGU

In Minnesota, any environmental review begins by determining what organization will serve as the Responsible Government Unit, or RGU. This includes Environmental Assessment Worksheets (EAW) and Environmental Impact Statements (EIS). Minnesota rules list what organizations serve as the RGU for all projects that must undergo some sort of mandatory review. State organizations that serve as RGUs include the Environmental Quality Board (EQB), Minnesota Pollution Control Agency (MPCA), Dept. of Natural Resources (DNR), Dept. of Transportation (MDOT) and the Dept. of Health (MDH). The Metropolitan Airports Commission (MAC) serves as the RGU for some types of airport projects. Local units of government serve as the RGU for many smaller scale projects.

If a unit of government orders some form of discretionary environmental review, that unit of government also serves as the RGU. In some instances, the EQB has the authority to change the RGU. The EQB can make this change only if the newly appointed RGU has greater expertise in analyzing the potential environmental impacts of a proposed project.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address Environmental Review and Environmental Impact Assessment.

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