Arkansas Environmental, Energy, and Water Law
Author: Walter G. Wright
Co-Author: Andrew Nadzam
The Court of Appeals of Minnesota addressed the authority of the Minnesota Pollution Control Agency ("MPCA") to adopt a strategy to enforce Minnesota statute Â§473.848 which imposes restrictions on the disposal of unprocessed mixed municipal solid waste ("MMSW"). See Waste Mgmt. of Minnesota, In. v. Minnesota Pollution Control Agency 2014 WL 3892576 (Minn. Ct. App. Aug. 11, 2014).
The court reviewed an administrative law judge's ("ALJ") decision. The ALJ had determined that even though the MPCA violated the rulemaking provisions of the Minnesota Administrative Procedure Act ("MAPA") by adopting a strategy which constitutes a rule, the strategy is exempt from the MAPA's rulemaking procedures because it is only enforcing the Minnesota statute.
The statute establishes that a person cannot dispose of unprocessed MMSW generated in the metropolitan area at a facility unless the facility meets statutory standards. These include receiving county certification that the waste is unprocessible.
The statute requires MPCA to revise the metropolitan long range policy plan for solid waste management, and to provide for public comments to proposed revisions of the plan. MPCA adopted a "Revised Policy Plan" in 2011 which established quantifiable goals for the amount of MMSW handled by resource recovery facilities. The plan also recognizes a process for identifying when waste is unprocessible as described by the Minnesota statute.
MMSW is defined as unprocessible when resource recovery facilities are at 100 percent capacity. The counties then certify when MMSW is unprocessible because of a lack of processing capacity.
The MPCA in 2012 prepared a report on compliance with the Minnesota statute regarding disposal of MMSW. The report was critical of Waste Management stating that hundreds of thousands of tons of MMSW had bypassed resource recovery facilities moving to landfills. Waste Management filed a petition seeking a determination that MPCA was improperly implementing a strategy because it is actually making rules in violation of the applicable statute.
The ALJ dismissed the petition determining MPCA was not improperly implementing a strategy for complying with Minnesota statutes as if it was a duly adopted rule. Waste Management appealed the decision.
The Court of Appeals of Minnesota determined that the MPCA strategy is a rule. However, it determined that it is exempt because the MAPA rulemaking requirements do not apply because MPCA is merely implementing the statute. The court defined an agency rule as every agency statement of general applicability and future effect which is adopted to implement the law enforced by that agency.
The court then determined that the MPCA strategy is a rule because it includes a statement of general applicability and future effect. The court reasoned that the strategy applies to all resource recovery facilities that accept MMSW and that the strategy's purpose is to regulate the disposal of MMSW. The strategy also has a future effect because the MPCA intends to begin using permits to raise standards of compliance with the statute. Therefore, the court determined the MPCA strategy is an agency rule.
MPCA's strategy was then determined to be consistent with the statute. The MAPA rulemaking requirements were deemed inapplicable because the strategy and the statute are consistent. The strategy includes amending permits which reiterates the restrictions on disposal of MMSW included in the statute. The strategy's focus on defining unprocessible, requiring resource facilities to certify waste as unprocessible, and to require monthly reporting by the resource recovery centers are all authorized by Minnesota statutes. The MPCA strategy provisions were found expressly authorized by the statutes, which makes it exempt from rulemaking, and the entire strategy authorized by the statute. Therefore, the court held that the MPCA strategy is authorized by the Minnesota statute.
A copy of the opinion can be downloaded below.