Lost in translation
The Minnesota Pollution Control Agency has proposed a sea change in the issuance of water (pollution) discharge permits. It says it has been working on this for a long time; you can read more about that at a page on the MPCA website, and in a document known as a Statement of Need and Reasonableness (the “SONAR”), dated December 14, 2020, which is also linked on that web page.
There is an online hearing on the new proposed rules – that you can tune in to and even speak at, if you want – on February 4th; closing of the public comment period is February 24th at the end of the day, which is 4:30 PM. Here is a webpage with information about both the hearing and submitting written comments.
Eliminating numeric limits for pollution. In general, the MPCA proposed that numeric limits for most major ion pollutants be eliminated in favor of what it calls “narrative standards.” You can see the numeric standards side-by-side with the proposed narrative standards at page 12 of the SONAR. Obviously, narrative standards could be open to a lot more interpretation – more on that in a moment.
The rules proposed cover class 3 and class 4 waters in the state, waters for industrial use and cooling and agriculture (watering livestock and irrigation) and wildlife (but not aquatic life). They don’t explicitly cover class 2, which is aquatic life and recreation, or class 1, which is drinking water. You can see a chart of the water classes at present at page 8 of the SONAR. A water body may be covered by multiple classes, and in that case, the most stringent standard of whichever class applies. Most of the waters of the state are classified, in addition to anything else, as class 2. It seems clear, though, that the new narrative régime is probably intended to be applied to all classes ultimately. Removing numeric pollution limits of water bodies that are in the class 3 and class 4 would affect aquatic life and recreation as well as industry, agriculture, and wildlife. And that’s why the proposed rules have many environmentalists freaked out.
The Translator. MPCA’s new narrative standards would be put through something it calls a “translator,” which is really a flow chart for permit decision making. Here’s an example of a translator, one for surface water that might be drawn (“appropriated”) downstream for irrigation. You can see the translator really looks downstream at potential effects on downstream users, not the out-of-the pipe discharge by the source of pollution. What happens in and to the water body between the point of discharge and the first appropriator is of little concern.
The new rules would only apply any water tests at the point of large downstream appropriators, and they would freeze the state of downstream appropriators. Let’s say, just as an example, a new, small organic or aquaponics farm wanted to commence operation and appropriate water (without needing a permit because the appropriation would be in a small amount) below the polluter but above the first appropriator considered by the permit. But the water is contaminated by the polluter with a variety of salts that prevent the growing of lettuce or other vegetables. Under a permit that limits pollutants out of the pipe, it could probably operate. Under a permit that only worries about somebody many miles downstream, it probably couldn’t.
Parenthetically, the MPCA has analyzed the effects of its proposed translators on Minnesota polluters. Their own conclusion: under the new proposed industry and agriculture rules and their proposed translators, no discharger in the entire state of Minnesota would require effluent limits for pollution. The MPCA actually says this in its SONAR on pages 110-111. It makes one wonder what this is really all about, and perhaps be suspicious, too.
Misunderstanding the Clean Water Act. In a very real way, the proposed rules turns the Clean Water Act, for which the MPCA is the EPA’s delegated agent in issuing water discharge permits, on its head. It is virtually axiomatic that the Clean Water Act is intended to control the discharge of pollutants at their source. The MPCA says that the new rules will permit it to be much more nuanced than the current “one size fits all” rules, but the example I just cited suggests we might just be changing to a different size: one that permits more pollution.
If you combine the narrative standard and the translator, however, there are qualitative judgments (i.e., not the simple application of a numeric standard) at several steps along the way that screen out the need for any effluent limits on pollution. These wiggle-room judgments will be made by the MPCA, oftentimes with little transparency or scrutiny. The potential for a massive water quality deregulation is apparent: a loss that occurs in the “translation.”
One environmental nonprofit expert I spoke to expressed some reservation about whether the EPA would permit the implementation of these rules.
Negative Comments to the Proposed Rules. In comments already received, the MPCA tells us in the SONAR that some parties are enthusiastic about these proposed rules: industrial users, some Range mayors, and mining companies. Unsurprisingly, then, Minnesota’s Ojibwe bands and the environmental nonprofits such as Water Legacy, the Minnesota Center for Environmental Advocacy, and Friends of the Boundary Waters Canoe Area Wilderness are opposed to them.
From page 183 of the SONAR:
Grand Portage and GLIFWC [Great Lakes Indian Fish and Wildlife Commission] do not support the change from numeric to narrative standards proposed for Class 3 and Class 4A; they see narrative standards as less protective and less enforceable. Fond du Lac commented that MPCA has a history of not enforcing narrative or numeric standards, and that the replacement of numeric standards with narrative standards is not scientifically defensible.
And they are absolutely right. The MPCA responded, in effect, Well, sure that’s right, but we’re better now. However, there are really good reasons not to rely on the MPCA to just issue permits based on unenforceable standards, and the Ojibwe bands and the environmental nonprofits understand those reasons very well.
Industry Capture. One reason is industry capture of the MPCA. The state, and especially the Arrowhead, are littered with companies operating on expired MPCA permits. The notion that the agency is going to be transformed into a bunch of go-getters is laughable. In one recent egregious case, for example, U.S. Steel was operating its Minntac facility on a permit that expired in 1992, and the facility had been releasing wild-rice-killing sulfate pollution in many times the numeric standard for many years. The MPCA finally got around to issuing a new permit in 2018 – after some prodding by the EPA – but it was so toothless that the Minnesota Court of Appeals struck it down. The Timberjay had an excellent article on the case. The MPCA is not the Green Berets for the environment, my friends.
In the closing days of the Dayton administration, the MPCA likewise issued a water discharge permit to PolyMet Mining for its proposed copper sulfide mine. It did not have WQBELs, water quality-based effluent limitations – the out-of-the-pipe numerical standards – and it took a whistleblower staffer in the EPA’s regional office in Chicago to point out these deficiencies. The PolyMet water discharge permit is currently on hold in the Court of Appeals.
Permit Shield. Another reason to oppose the proposed rules is something called the “permit shield.” Under the Clean Water Act, a third party – an environmental nonprofit or an Indian tribe, for example – can sue for the violation of an issued permit by the permittee. Also under the Clean Water Act, and its state equivalents, if you are operating in compliance with the terms of your permit – regardless of how toothless and miserable it is, and regardless of how craven your regulators – you can’t be sued. Well, of course, you can be sued, but the case will be dismissed, as happened in the case of the activists who sued the Flambeau copper mine in Wisconsin for pollution discharges. As I have observed before, if you get the right regulators, they are not your regulators: they are you defenders.
A toothless permit regulatory régime, and a permit issued thereunder without WQBELs is unenforceable by the Ojibwe bands or the environmental nonprofits. And believe me, they are the ones looking out for the environment.
The MPCA and the polluters, especially the mining companies, would love to get rid of those pesky Indian tribes and the environmental nonprofits, and the MPCA proposed rules are a great way to do it. That’s the game that is really afoot.
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