Cumulative Impacts Analysis

Background

The Minnesota Pollution Control Agency (MPCA) recently released its draft cumulative impact analysis rules for air permits, and explained the rules in a webinar (recording to be released later). The cumulative impacts analysis requirement was enacted in 2023, and is a new requirement applying to both new and reissued air permits. The process involves significant community engagement and extensive evaluation of potential environmental and community impacts associated with the air emissions source. See Minnesota Statute Section 116.065. The draft rules will be open for public comments for much of the summer before the public hearing in September. The final rules are not expected until the end of the year or early 2027.

Under the statute, any facility located within one mile of an environmental justice (EJ) area and in the seven-county metro, Duluth, or Rochester may have to complete a cumulative impacts analysis. For facilities in those areas, applicants will need to provide an initial assessment of the potential impacts with sufficient information for MPCA to determine if a full cumulative impacts analysis is required. As MPCA explained, the process starts broadly by requiring that air permit applications for stationary sources in the seven-county metro, Duluth, and Rochester contain the newly required initial assessment. That group of applications is then narrowed down to applications for projects that “may” have a “substantial impact,” and then further narrowed to applications for projects that would have a “substantial adverse impact.”

MPCA’s comments during the webinar and the newly released rules provide definitions and details for key terms and concepts.

Key Details from the Draft Rules

• Benchmarks: A cumulative impacts analysis is mandatory if the application meets or exceeds one of the benchmarks established in the new rules.
  • New construction – Any permit application that includes new construction will be required to complete a cumulative impacts analysis.
  • Facility expansions – A cumulative impacts analysis will be required if the expansion has an emission rate for a pollutant above a certain threshold.
  • Permit reissuance – Any facility that has had a local, state, or federal enforcement action in the three years prior to filing the application will have to conduct a cumulative impacts analysis.
• Substantial Impact: The cumulative impacts analysis is also mandatory if MPCA determines the stationary source “may” have a “substantial impact.” Whether the impact is substantial depends on the extent of the impact, especially in the context of other environmental stressors, whether the impact can be controlled, and, if so, what mitigation measures are in place either through control technology or other regulatory oversight.
• Initial Assessment: At the outset of the permitting process, applicants are now being asked to include an initial assessment of the potential environmental and community impacts, which will help MPCA determine whether the applicant will need to complete the cumulative impacts analysis. The details on the content for the initial assessment are outlined in the new rules. Each initial assessment will also be posted on MPCA’s website.
• Cumulative Impacts Analysis: If MPCA determines that the permit action “may” have a “substantial impact,” the next step is for the applicant to complete a cumulative impacts analysis to evaluate whether the permit action will have a “substantial adverse impact.” To that end, the cumulative impacts analysis is required to include information about the current conditions of the site, air modeling data, and an air risk analysis for human health risks. The protocols for the air modeling and the risk assessment will need to be approved by MPCA, and the approval process is outlined in the new rules.
• Community Benefits Agreement: A community benefits agreement is required under the statute when MPCA determines that the activities proposed in a permit application will result in a “substantial adverse impact,” a term now defined in the new rules. MPCA is required to conclude there is a substantial adverse impact based on:
  • Air modeling – If the results show that the stationary source’s emissions would be equal to or greater than 50 percent of any ambient air standard;
  • Air risk analysis – If the assessment includes exceedances of the acceptable risk levels, which include, for example, risk levels for cancer, inhalation, farmer, and urban gardener; or
  • Cumulative impacts analysis – If MPCA identifies a substantial adverse impact to the environment or health of the EJ area residents based on the contents of the cumulative impacts analysis.
• Public Involvement: One of the statute’s broad aims was to increase public involvement in the permitting process, which it accomplished through several mechanisms including public comment periods, public meetings, and community benefits agreements. The new rules provide additional details on the public involvement, including requiring applicants to submit public participation plans and specifying the information applicants are required to include in each public meeting presentation.

What Happens Next

• The initial comment period on the rules is open until July 17 at 4:30 pm.
• There will be a hearing on the rules on September 1 at 3 pm.
• Additional public comments will be accepted after the hearing from September 1 until September 21 at 4:30 pm.
• Rebuttal comments will be accepted until September 28 at 4:30 pm.

We recommend that companies seek legal advice when determining the applicability of the cumulative impacts analysis requirement or when evaluating participation in the public comment process. If you’d like to learn more about the cumulative impacts analysis requirement, please feel free to reach out to any member of our Environmental team.