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Panel reacts to LWV study of MPCA's work

The Park Rapids League of Women Voters hosted a panel discussion last week, asking for reaction to a statewide LWV study on the Minnesota Pollution Control Agency (MPCA).

The study asked if the agency's actions match its charter and if it is providing adequate protection and enforcement on citizens' behalf.

The 25-page report gives mixed reviews.

From 1967 when the agency was created until 2005, the agency's mission was one of "monitoring and enforcing" regulations to protect the state's water, air and land resources. In 2005, the mission changed to "protecting and conserving" those resources.

The report concludes changes are needed if MPCA is going to carry out its environmental protection mission.

Participating on the panel were Chet Wilander, labor representative on the MPCA Citizens Board; Will Haapala, MPCA regional manager; Collie Graddick, agricultural consultant with the Minnesota Department of Agriculture; and Willis Mattison, former MPCA regional manager.

Each panel member brought a different perspective on how well the agency is performing.

Wilander, who lives in northern Hubbard County, has served on the Citizens Board since Gov. Arne Carlson appointed him.

When MPCA was created, a Citizens Board was established as the key decision-making body. The board consists of nine members, including the MPCA commissioner. All are appointed by the governor. The board sets policy and makes decisions on significant or controversial issues. Until 1997, the board elected a chairman from among its members. Now the commissioner serves as the chairman.

While Wilander gave the agency high marks for openness, organization and staff and defended the board's actions on some controversial decisions, he acknowledged that structural changes have brought political pressure that did not used to exist.

Wilander believes the board has done a good job finding alternatives to make projects work.

"I don't believe someone gets up in the morning and says, 'I'm going to pollute today," Wilander said.

Confident of the agency

According to Wilander, when projects come to the board, the board encourages changes and works with people. "You can improve situations without killing projects," he said.

"You might not like a project or a person, but you have to get away from those situations or let politics enter into these things," he explained. Mainly, he said, the board looks at the status of community support and whether or not a project follows state law and rules.

Feedlots have been a "very, very controversial issue," Wilander continued, citing one case the League study covered. Wilander concluded that in this case and several others subsequently challenged in court, the court either didn't understand the rules or caused unnecessary delays.

Wilander also said he disagrees with a court ruling that "cumulative impacts" should be considered. "I look at this as if I'm going to buy a car and have to look at the impact of what all cars are doing," Wilander said.

At the same time, Wilander acknowledged that under the Pawlenty administration "there has been more political leaning on our shoulder than any other" and said former commissioner Cheryl Corrigan allowed "political maneuvering."

Still, he said he is convinced that although Corrigan was a 3M employee when Pawlenty appointed her as commissioner and 3M may have known of pollutants that are now being investigated and cleaned up in the metro area, the agency did not know.

"We thought we were doing the right thing, but it might have come back to haunt us," he said. "Now those decisions will be made in the courts. I'm more comfortable with the agency than the courts."

Change of direction

Haapala acknowledged the change in the agency's mission could cause concern, but reflects a trend in the state and nation toward "risk management." This approach, Haapala explained, targets priorities to get measurable results when resources are limited.

Another change in the way the agency operates, Haapala explained, is to move away from public hearings to a more collaborative approach. "Now we have participative, collaborative meetings," he said. "You can't regulate in a vacuum."

Haapala said the changes represent the fact that the agency can't enforce all solutions, but can work with interested parties to find creative ways to address problems and elicit voluntary compliance.

The League study was critical of the MPCA's failure to fulfill its role in ensuring that the needs of minority and economically disadvantaged communities are met.

Haapala acknowledged that more needs to be done so all people are treated fairly. The Detroit Lakes office works with tribes in its jurisdiction, respects their sovereignty and cooperates with staff in management of shared natural resources although MPCA doesn't have the same regulatory role it has on non-tribal lands, Haapala said.

Better data and technology will allow the agency to match demographics with environmental issues, Haapala said.

In response to the League study's findings that the MPCA hasn't asked the Legislature for more money to carry out its mission, Haapala said the agency owes citizens "efficient and responsive service" and has found ways to complete projects "in ways that cost less.

"It seems that in budget shortfalls, we have not always been adequately funded," he said, explaining that makes setting priorities more difficult.

"It is human nature to let the budget drive the mission," he added.

Overall, Haapala said, public opinion affects the direction of public policy and the agency works best when there is good participation. "We need to be mindful of and prevent a misunderstanding regarding the chain of command and conflict of interest."

Haapala said he sees some signs of improvement.

'Partnering with polluters'

Mattson said he has seen a significant shift in priorities since he joined MPCA in 1972. In its early years, the agency "tackled fearlessly issues of the day" such as the Reserve Mining case.

The case, he said, underscored the philosophy of the agency at the time: "recognizing public health problems and using tools (rules and regulations) to address the problem and if the agency didn't have the tool, going to the Legislature with support from advocates tied to the agency at the time, to get it."

According to Mattson, in the 1980s there was a "shift in the political winds" and an "outcry that environmental regulations were impeding economic development," and "employees were getting their ears pinned back.

"Employees who took the mission seriously...were pushed to the side, forced out or it was clear their star would not rise," Mattson said.

"The way to advance was to please the powers that be regardless of the outcome to the environment."

The latest change, he said, was when the commissioner began chairing the Citizens Board. Previously, the citizen board chairman could add to the agenda, but when the commissioner became chairman, she limit ed access and the agenda.

"The number of issues (coming to the board) are extremely limited now," Mattson said. Further, he indicated, matters that used to come to the board are now disposed of in meetings before and after the board meets.

Even more discouraging, Mattson said, is MPCA's new "business model." The agency was reorganized four times between 1980 and 2000, resulting in a "crippling effect. Nobody knew and couldn't tell you who was in charge. And I'm not sure it's done yet," he said.

The new "business model" also treats clients differently. Clients are permit holders - business, industry and agricultue - and now they must be at the table if they're going to be regulated."

Mattson said this is "bureaucratic language for saying they're in the driver's seat... It's telling the public we are partnering with our polluters."

Mattson said the MPCA should be "the conscience, not the partner" and "should represent the citizens of the state as they would expect their watchdog agency to look over them."

Keep regulation local

Collie explained he works in the pesticide-fertilizer division of the Department of Agriculture, specializing in the use of pesticides indoors.

"Some of the things Willis was saying are on my mind, too," Collie said.

The ag department's role is to regulate some type of industry based on laws, but it is the staff who interpret the laws and write the rules, he said. "When you look at it, it is the top person who decides if staff will be aggressive in an environmental direction or in an industry direction. People doing the enforcement, work based on their interpretation."

One of Collie's messages was it is up to people to hold agencies accountable, but people don't directly benefit from agency action.

For example, if aerial spraying results in drift and the department investigates and fines the applicator, the records become private and anyone impacted would have to take the matter to court to recover any damages.

"You will have to pull teeth to get that report," Collie said. "When you start looking at rules and laws, they aren't passed to protect people."

When the department writes rules for pesticides, Collie said, industry sits at the table.

Collie cited noxious weed rules as an example of how citizens have relinquished local control. "The townships hated it," Collie said. The law was written for townships to be the first line of enforcement and the county could only step in when the townships couldn't get people to comply. The state followed when the county needed help.

It didn't work because if people didn't want the weed law to be enforced, they could vote out the local officials. That's why townships "gave up their right" to enforce it.

"Laws are written for violators, not for the people who take care of them (the laws)."

Similarly, he said, counties were given the option of enforcing feedlot rules, but didn't have enough technical expertise so the state is deciding on permits now.

He said laws would work better if people did take local control, rather than relinquishing it to the state.

A different model

After the presentation, panel members fielded questions from League members and others in the audience.

"I may be an idealist but when you talk about risk assessment, I'm not impressed with the way it operates," Carol Ashley said, addressing Haapala's remarks. She said health concerns ought to outweigh economic interests.

Haapala replied it's "getting the risk right" and "assessing the risk and communicating it that are of extreme importance to the public and to our future. I know people worry about that," Haapala said.

He said often times, as is the case with water quality, science is lagging, for example, in declaring hazardous substances.

"I think people in the agencies care a lot, but don't always have the research needed to know the risk as well as we should. We would rather have certain knowledge on what's hazardous and what isn't."

Mattson said there is a more environmentally friendly alternative, known as "the precautionary principle."

The principle is used in Europe and states that "if an action or policy might cause severe or irreversible harm to the public, in the absence of a scientific consensus that harm would not ensue, the burden of proof falls on those who would advocate taking the action."

Use of this principle might have prevented the current issues surrounding 3M's disposal of chemicals and subsequent charges of conflict of interest related to former commissioner Corrigan, Mattson said.

"The public wasn't protected by her action" and would have been better served if the precautionary principle was used when the agency was doing a risk assessment.

In other words, Mattson said, "You can't put the horse back in the barn."

Haapala offered four recommendations as a follow-up to the LWV study: 1) help us by keeping the environment as a high priority, 2) advocate for support for more environmental research, 3) support the development of more and innovative ways to solve complex environmental problems, and 4) monitor our performance.

Mattson commented politics has no place in the agency's enforcement duties. "Fish are killed ...regardless of who is in office," he said.

He said citizens are forced to demand an environmental impact statement because the agency isn't doing its job. "The agency is designed to be an arm of the citizens and shouldn't have to be kicked in the pants by citizens."

Finally, he said, rather than excluding a representative of environmental groups from serving on the Citizens Board, the position should be added. "Why not invite them to the table?" he asked.