Administrative Law Judge Kimberly Middendorf, on November 6, 2026[1], issued her report on the Minnesota Pollution Control Agency’s (MPCA’s) “Proposed Rules Governing Cumulative Impacts Analysis for Permit Decisions in Environmental Justice Areas.” The Report approved the proposed rules but also included recommendations for improvements. The burden now shifts to the MPCA, which must now consider what to do with those recommendations and, more importantly, how soon it will issue final versions of the rules.
Background
Minn. Stat. § 116.065, created in 2023, requires the MPCA Commissioner to promulgate rules "to implement and govern cumulative impacts analyses and issuance or denial of [major or state air] permits for facilities that impact environmental justice areas." Under the statute, facilities in or within one mile of an "environmental justice area" in the seven counties surrounding Minneapolis and St. Paul or in the cities of Rochester and Duluth must include within permit applications a data-supported determination of whether the permitted action is likely to impact the environment or the health of residents of the relevant environmental justice area.
The statute also requires the MPCA Commissioner to determine whether a permit action requires a "cumulative impacts analysis," whether it may substantially impact the environment or health of the residents of an environmental justice area, and whether a "community benefit agreement" may be necessary before the permit action can be approved. In adopting these requirements, Minnesota became only the second state in the nation (following New Jersey) to regulate air emissions based on "environmental justice" concerns.
The MPCA issued a draft set of the rules on May 18, 2026, which kicked off a 60-day public comment period. Judge Middendorf oversaw the administrative hearing on the rules on September 1, 2026. At the outset of the hearing, she also ordered a reopening of the public comment and rebuttal period, which concluded on September 28th.
Highlights of the ALJ’s Report
In short, Judge Middendorf approved MPCA’s proposed rules, finding they were necessary and reasonable, within the authority given to the MPCA under section 116.065, and promulgated pursuant to applicable administrative procedural requirements. She did, however, suggest improvements to the rules, based on public comments:
Minn. R. 7007.6050 (“Initial Assessment”): Rule 7007.6050 requires an applicant to prepare an initial assessment of its facility’s cumulative impacts as part of a permit application. This information will then be used by the MPCA to determine whether the applicant must prepare a more extensive Cumulative Impacts Assessment (CIA). Public commenters on both sides expressed confusion as to when the proposed rule required an applicant for a permit reissuance to conduct a CIA. Judge Middendorf approved the rule, as proposed, but suggested the MPCA consider modifying it to make it clearer that, for instance, a facility’s enforcement history is not the only consideration for mandating a CIA.
Consideration of “non-exhaustive factors” throughout the process: Although not tied to any specific proposed rule, Judge Middendorf “expressly recommended” the MPCA reconsider its rejection of suggestions by supporters and opponents to allow itself to consider non-exhaustive lists of factors throughout the process “to provide greater clarity and guidance to stakeholders, and preserve the MPCA’s ability to respond to community and industry initiatives and concerns with flexibility.” For instance, Judge Middendorf suggested the following language be included within the Community Benefit Agreement process (draft rule Minn. R. 7007.6110) but that it also be applied to other proposed rules to address this common criticism:
Eligible activities include, but are not limited to, the following examples: air quality improvements, public health infrastructure, urban canopy and green space expansion, or other benefits expected to improve conditions in the EJ area. The examples enumerated in this subsection do not constitute an exhaustive or restrictive list of compliant activities, and the omission of a specific category of project or benefit does not preclude its consideration or approval, provided it satisfies the primary criteria established in [Section X] of this Rule.
A copy of the full Report is available here.
Next Steps and Lingering Questions
The MPCA must wait at least five business days following the Report’s issuance before taking further action on the rules to allow affected individuals the chance to review the Report. Following that period, the MPCA may adopt final versions of the rules or it may modify or withdraw them. Any proposed modification to the rules must be submitted to the Chief Administrative Law Judge for review before final adoption. Once the Office of Administrative Hearings files certified copies of the adopted rules with the Secretary of State, the MPCA must give notice to all persons who requested to be informed.
Two big questions remain following the ALJ’s issuance of her Report. The first is what, if any, changes the MPCA will make to the proposed rules based on Judge Middendorf’s recommendations. The MPCA has no legal obligation to make further changes prior to adopting final versions of its proposed rules but may choose to do so to be responsive to the Report’s recommendations and the public comments on which those recommendations were made.
The second, related question is how soon the MPCA will adopt final versions of the rules. Opting to act on the Report’s recommendations will take at least some time and delay final issuance but how long that will take is unclear. Equally unclear is whether the current MPCA administration will act to ensure issuance of these rules before the end of this year or whether finalization will be left to Governor-elect Amy Klobuchar’s administration when it takes office on January 4, 2027. Stay tuned to this blog for developments on this front as they occur.
[1] The Report, dated November 6th, was posted on the Court of Administrative Hearings’s website on November 9th.