Section 1 [Reviewing PCA actions]

            Subd. 11 [Judicial review] adds the following actions by the PCA as reviewable by the courts:

• Changes to water quality standards;
• Identifying or listing impaired waters;
• Granting or denying a site-specific water-quality standard; and
• Denying a request for reconsideration of actions that are appealable.

            Subd. 12 [Review of actions concerning water quality] provides that any reviewing authority under the administrative procedures act must examine the administrative record, without giving deference to the PCA commissioner, and independently determine whether:

1. The action is based on reliable scientific data and analysis;
2. The commissioner explained the action and answered relevant questions;
3. The test, measurement, or model used is consistent with generally accepted practice;
4. The action is consistent with the findings of an external review panel convened by the commissioner; and
5. The action is based on a demonstrated causal relationship.

If a reviewing authority determines that the action by the commissioner does not meet one or more of the five standards, the reviewing authority must invalidate the action.

            Subd. 13 [Expert review] directs the reviewing authority, under subdivision 12, to create a three-person, expert review panel when the reviewing authority finds that expert testimony contradicts the PCA commissioner’s approach. The PCA commissioner and the adverse party to the proceeding will each select one of review panel member. The third member is to be agreed to by the two selected members. If the selected members cannot agree on the third member, the reviewing authority must appoint the third member. The review panel must determine whether the commissioner’s approach is defensible, not defensible, or defensible with changes recommended by the panel. The costs of the expert review panel must be assessed the costs on the parties on an equitable basis, except that costs shall not be assessed against a local government.

Section 2 [Unadopted rules] directs the commissioner of the PCA to not enforce an unadopted rule. If an unadopted rule is challenged, the commissioner must overcome a presumption against the unadopted rule. The commissioner must show that it is an interpretation of statute or rule within the plain meaning, or it is a long-standing interpretation of an ambiguous statute or rule. This section also provides that any guideline, bulletin, criterion, manual standard, interpretive pronouncement by the PCA that is incorporated by reference into a rule must be revised only through rulemaking.

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