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� --� Attachment A Status of Application Pending MPCA Environmental Review We were also asked at the September 27`" City Council to give our opinion as to whether the City can proceed with the application of Bituminous Roadways while the MPCA environmental review pertaining to the project is pending. As a result of our review of the applicable rules, statutes and case law, we have determined as follows: Minnesota Statutes § 116D.04, Subd. 2b, and Minnesota Administrative Rules Section 4410.3100, Subpart 1, provide that if an Environmental Assessment Worksheet ("EAW") or Environmental Impact Statement (`'EIS'') is required for a governmental action, a project may not be started and a final governmental decision may not be made to grant a permit, approve a project, or begin a project, until: A. A petition for an EAW is dismissed; B. A negative declaration on the need for an EIS is issued; C. An EIS is determined adequate; or D. A variance has been granted from making an EIS by the Environmental Quality Board. 2. The Minnesota Court of Appeals in the case of Allen v. Citv of Mendota Heights, App. 2005, 694 N.W.2d 799, stated that the Minnesota Environmental Policies Act requires an environmental review process to occur before a City acts on a written request for action on a proposed development. The Court referenced the need for a governmental entity to consider economic, technical and environmental considerations before reaching a decision on matters before it which involve environmental review. The information provided by the environmental review which is being conducted by the MPCA will provide relevant environmental information which the City will need to consider when it acts on the Bituminous Roadway Application. Based upon the foregoing the City should not proceed with the Bituminous Roadways Application until the environmental review process currently pending with the MPCA has been completed. Minnesota Administrative Rules Section 4410.46, Subpart 2, which was referenced in the letter given to the City Council by Tam McGehee, does provide the following exceptions to the Minnesota Environmental Policy Act: A. Projects for which no governmental decisions are required; B. Projects for which all governmental decisions have been made; C. Projects for which, and so long as, a governmental unit has denied a required governmental approval; D. Projects for which a substantial portion of the project has been completed and an EIS would not influence remaining construction; and E. Projects for which environmental review has already been completed or for which environmental review is being conducted pursuant to part 4410.3600 or 4410.3 700. The only exemption which could apply to the pending Bituminous Roadways application is subparagraph C. However, it would be inappropriate for the City to act on the Bituminous Roadways application at this time since the information elicited in the pending environmental