MPCA has puzzling plan to change water rules

The Minnesota Pollution Control Agency wants to change the rules on water quality. The agency has been working on these rules for a few years and hopes to put them into effect this summer.

The plan looks like a sort of Rubik’s cube, eliminating subcategories, moving limits from one category to another, and doing away with many numeric pollution limits in favor of a narrative description requiring a “translator.” Structured like a flowchart, the translator asks a series of questions designed to determine whether a particular effluent is likely to contribute to an exceedance of the criteria set in the narrative.

The idea is now being studied by an administrative law judge, who is reviewing the agency’s technical documents along with written and oral comments submitted by interested parties. The judge will make a recommendation to the MPCA at the end of March. The comment period ended last week.

The plan has the support of several industry groups, notably taconite mining, and many Minnesota cities like it because their wastewater treatment plants face possible enforcement of what they describe as the “existing outdated standards.” Many environmental groups, including Clean Water Action, Friends of the Boundary Waters, the Izaak Walton League and the Sierra Club, and several tribal governments, including the Fond du Lac Band of Lake Superior Chippewa and the Grand Portage band are lined up against it; they charge that the MPCA is bowing to industry pressure.

First, it’s important to understand that the state applies rules to waters based on their defined beneficial uses:

• Class 1: Domestic consumption, drinking water

• Class 2: Aquatic life and recreation

• Class 3: Industrial use and cooling

• Class 4A: Crop irrigation

• Class 4B: Watering for livestock and wildlife

• Class 5: Aesthetics and navigation

• Class 6 Other uses

• Class 7 Limited resource value water

Most waters are assigned more than one beneficial use, and the standards that provide the highest level of protection apply. Most of Minnesota’s rivers and lakes are included in classes 3 and 4.

Currently, water quality rules include both narrative and numeric standards. A narrative standard prohibits unacceptable conditions, for example: for Class 3 (industrial) uses, the water quality “shall be such as to permit their use for industrial cooling and materials transport without a high degree of treatment being necessary to avoid severe fouling, corrosion, scaling, or other unsatisfactory conditions.”

Here’s an overview of what the MPCA is proposing to do:

• For Class 3: Consolidate three subclasses, remove numeric standards for hardness (calcium and magnesium) and update narrative standards.

• For Class 4A: (irrigation): Remove numeric standards for bicarbonate, conductivity and sodium, and update narrative standards.

• For Class 4B: (livestock and wildlife): Remove some numeric standards and add others.

It’s worth noting that the numeric standards being added are weaker than existing ones.

Another major change is that the standards apply not at the point of discharge, as currently, but at the point downstream where someone withdraws water for large-scale irrigation or industrial use.

Basis of the plan

The MPCA declined an interview for this story, saying it cannot discuss an active rulemaking process. The description here is based on documents associated with the plan. The agency says the reason for the plan is that the existing rules were created back in 1967, with some updating since then, and it cannot find documentation to show that the numeric values are scientifically valid.

Noting that waters of the state vary widely in their chemical and biological makeup, the agency says “the narrative standard provides flexibility … to consider what is needed in a specific location or for a specific use or process.” Also, it explains that “permittees have raised concerns about the reasonableness and legality” of the water quality testing the agency has been requiring. In fact, some permittees, notably U.S. Steel, have been pressuring the agency to relax the standards.

As for the plan to measure and control the discharge downstream rather than the usual end-of-pipe, the agency says: “Other Midwestern states (Ohio, Illinois, and Indiana) have public water supply standards that only apply at the location where water is withdrawn.”

The agency plans to design a “translator” to convert the narrative standards to a number that would indicate whether a facility has “reasonable potential” to violate the standard and, when the answer is yes, it will calculate limits for the facility to prevent a violation. This would need to be done on a case-by-case basis, which the agency acknowledges would be more labor-intensive than the current system. On the other hand, the MPCA expects the new standards would be better accepted by industry, resulting in fewer requests for variances and site-specific standards, saving the agency time.

Industry responses

Industries have commented freely on the plan, generally with positive remarks. Among them: the Iron Mining Association, Southern Minnesota Beet Sugar Cooperative, Minnesota Agri-Growth, and the Association of Greater Minnesota Cities.

Mining companies also generally support the plan, with some caveats. In its comments on the plan, Cleveland-Cliffs, with three mines in Minnesota, urged the agency to “take steps to ensure any rule or guidance document translating narrative standards into numeric criteria is legally defensible.” Cliffs also cautions that, because the translator would only be used at the point of downstream water withdrawal, the rules appear to protect only those waters where industries or irrigators have DNR permits to withdraw large amounts of water (one million gallons per year or 10,000 gallons per day).

Cliffs, which describes itself as “the largest merchant iron ore producer of pellets in North America, as well as one of the lowest cost producers in the world,” claims its facilities are “under the threat of having development stifled” if one of its plants were required to renew a water permit; “Cliffs thus implores the agency to continue moving forward with this rulemaking as quickly as the administrative process allows.”

Tribal responses

On the other hand, tribal and environmental commenters offer strong critiques of the plan. They warn of possible environmental harm and claim the MPCA is not following Clean Water Act rules governing standard-setting. It appears that industry and environmental groups share concerns about the legality of the MPCA process.

In its comments, the federal Environmental Protection Agency points out that removing numeric limits for various pollutants in Class 3 and Class 4 waters strips those protections from all waters, because they are not currently mentioned in the standards for any other class.

Another commenter, engineer Bruce Johnson, retired from DNR and MPCA, dismisses the proposal to move water quality testing to just upstream of an industrial withdrawal: “The idea of limiting protection to waters with DNR withdrawal permits is outrageous.”

Environmental advocacy group Water Legacy comments that the plan would in effect remove designated protected uses from state waters, which is prohibited by the Clean Water Act without detailed analysis on the specific water body. “MPCA hasn’t done (that analysis) for a single body of water. But its proposed rules will remove water quality protections from tens of thousands of waters designated for class 2 aquatic life, class 3 industrial use, and class 4 agricultural and wildlife use,” according to Water Legacy.

The Fond du Lac Band says MPCA has not done the science to justify eliminating numeric limits or moving them from class to class. It points out the state plans to move limits for one pollutant, chloride, from Class 3 to Class 2 waters, but not limits for salts, sulfate, and hardness. Perhaps not coincidentally, hardness (a measure of dissolved minerals) is one of the chief problems in waters impacted by taconite mining. As the band puts it, waters in the mining district “exhibit hardness well in excess of the Class 3B hardness criteria precisely because industry has not been required to treat their polluted discharge to meet one of the very few numeric limits in their outdated … permits.”

The Fond du Lac Band also charges that the MPCA “has completely disregarded the need to address the known effects of sulfate on mercury contamination of fish,” as well as failing to address mercury directly. In their comments, they point to recent research, including some by the MPCA itself, which shows that high levels of sulfate can lead to increased production of methylmercury, the biological kind of mercury that builds up in fish and the primary cause of fish consumption advisories in Minnesota waters.

In a 2006 study of the St. Louis River, which receives effluent from U.S. Steel’s huge Minntac mine, researchers measured conductance (related to hardness) rising downstream from the plant. This appeared to affect life in the water: “Richness of invertebrates diminished 18-23%,” and the number of individual animals in the studied stretch was reduced dramatically. The authors observed that these high levels may persist many miles downstream.

Further, the band says the proposed rule ignores anti-degradation provisions of the Clean Water Act, which require states to protect existing water quality and not allow it to deteriorate. This applies particularly to Outstanding Resource Value Waters, which is the designation for waters in the Lake Superior Watershed.

According to the Band, MPCA’s own data show the numeric limits currently in Class 3 and Class 4 standards are “not stringent enough to protect sensitive aquatic insects and fish.” Far from removing numeric standards, the Band says, the agency should strengthen them. “Having numerical standards in place is much easier to enforce than narrative criteria. MPCA’s history of not enforcing narrative or numeric standards does not bode well for future enforcement of more narrative standards.”

Responding to the band’s comments in the rulemaking document, the MPCA acknowledges “the past history of MPCA and other government entities making promises and not fulfilling them.”

Nevertheless, the agency continues to make promises, and apparently expects the Bands to trust in their fulfillment.

In its comments, the Grand Portage band notes that the federal Clean Water Act requires each state to make sure its rules allow downstream jurisdictions to attain their own water quality standards. “Both Grand Portage and Fond du Lac waters would be adversely impacted by the planned amendments,” the band observes, because the MPCA is putting off consideration of aquatic life standards, leaving that to a separate rulemaking “to be completed at a later date.”

Timing

As slowly as the MPCA typically acts, it is worth asking: Why these rule changes, and why now? We can trace a path that appears to have led us to this point.

U.S. Steel’s Minntac plant is the largest taconite mine on the Iron Range. For at least 20 years, the Pittsburgh-based company has been pressing the MPCA to relax the standards that apply to the waters that receive its mineral-heavy effluent. The 13-square-mile tailings pond straddles the Laurentian divide, sending massive wastewater flows both to the Boundary Waters and to Lake Superior.

MPCA resisted the company’s pressure until 2018, when the two sides agreed to drop their court fight and concentrate on “proceedings to address the water quality standard changes requested by U.S. Steel, proceedings related to issuance of the Permit [expired for 30 years], and/or the Class 3 and 4 standards rulemaking.”

With this history in mind, the current proposal to drop and reduce numeric water quality limits and rely on narrative standards appears to be a result of that agreement.

“This is the big lie,” said Paula Maccabee, advocacy director for the environmental group Water Legacy. In an interview, Maccabee charged the MPCA with trying to camouflage a major downgrade of water protections in a confusing and unmanageable new approach. “Instead of making a small change at one mine, which would be easy for people to understand and get stopped, this is so overarching and so much more complicated, it makes people just throw up their hands and wonder what it all means,” she said. Maccabee calls the proposed rule a “gift to the mining industry,” but points out it wouldn’t impact mines alone. All the waters of the state would be affected.

But people appear not to be throwing up their hands. A hearing to take public comments lasted nearly six hours, with more than 100 people commenting.

The majority of speakers opposed the plan, and many commenters lamented the idea that Minnesota, the “Land of 10,000 Lakes,” far from being a leader in water quality protection, seems ready to permit more pollution.

This article from news partner MinnPost was originally published by Agate, an online magazine about nature, science and conservation in Minnesota and the surrounding Great Lakes Region. MinnPost is a nonprofit, nonpartisan media organbization whose mission is to provide high-quality journalism for people who care about Minnesota.