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Again, judge nixes MPCA sulfate proposal

Legislature advances bill to overturn wild rice protections, but move would face near-certain federal lawsuit

Marshall Helmberger
Posted 4/18/18

REGIONAL— The state’s top administrative law judge has delivered another blow to the Minnesota Pollution Control Agency’s efforts to rewrite state regulations designed to protect wild rice. In …

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Again, judge nixes MPCA sulfate proposal

Legislature advances bill to overturn wild rice protections, but move would face near-certain federal lawsuit

Posted

REGIONAL— The state’s top administrative law judge has delivered another blow to the Minnesota Pollution Control Agency’s efforts to rewrite state regulations designed to protect wild rice. In a ruling issued April 12, Chief Administrative Law Judge Tammy Pust rejected the MPCA’s latest revisions to their proposal to establish an equation-based approach to regulating sulfate discharges into wild rice waters.

Back in January, another administrative law judge had disallowed a number of the MPCA’s proposed rule changes, for potentially violating state and federal law. Pust had confirmed that earlier ruling and ordered the MPCA to submit revisions to the rules or maintain the current ten milligrams-per-liter sulfate standard. The MPCA had submitted a lengthy response last month that argued it had made technical changes designed to address the judge’s concerns and asked the judge to revisit her order.

But in her latest ruling, Pust wrote that the changes had fallen short of what is necessary and refused to clear the way for the MPCA to continue its rule-making process with the current proposal. The order does allow the MPCA to consult with the Legislature for advice and comment. The Legislature would have the opportunity to consider its own proposal for changes to the law.

Indeed, a bill that would do just that continues to advance at the Legislature. House File 3280, co-sponsored by Reps. Jason Metsa and Rob Ecklund among others, would nullify the existing sulfate standard for wild rice and require the MPCA to begin a new rulemaking process if the agency opts to move forward with adoption of a new standard.

The measure has advanced past several committees in both the House and Senate in recent weeks. A second reading of the bill was approved in the House on April 12.

Yet the state faces an almost certain legal challenge if the legislation is signed into law.

“This is not a gray area,” said Paula Maccabee, chief legal counsel for Duluth-based Water Legacy. “If the Legislature goes ahead and adopts this, they will be inviting federal litigation,” she said.

Maccabee notes that under the federal Clean Water Act, states cannot weaken federally-approved discharge rules without a scientific basis for doing so. MPCA officials had advised legislators of that requirement back in 2011, which prompted the Legislature to approve funding for a new study of sulfate’s impact on wild rice.

The wild rice sulfate standard dates back to 1973 and was based on science dating back to the 1940s and 50s, so legislators had anticipated that new research would provide a basis for sweeping aside the earlier rule. But the science largely confirmed the link between sulfate discharges and toxicity to wild rice, although it confirmed that the sulfate was not toxic until bacteria in lake and stream sediments converted it to sulfide. The research also suggested that the presence of iron in the water could partially mitigate the effects of the sulfate and sulfide.

The MPCA initially proposed to maintain the standard as is, but under pressure from iron mining interests and Iron Range legislators, the agency eventually proposed its flexible, equation-based approach, which is the proposal that the administrative law judge disallowed earlier this year.

The federal Environmental Protection Agency would also have to weigh in on the question. Under federal law, the EPA would have to approve of any weakening of the state’s sulfate standard, and could only agree to the change if it was scientifically supported. Maccabee said the EPA under President Obama would never have allowed it, and she suspects that even under President Trump, the agency won’t grant its approval, mostly for fear of losing in federal court.

Maccabee said a federal legal challenge would be formidable. “This is a situation where the science is very strong and getting stronger all the time,” she said, noting that peer-reviewed research suggesting that iron may not provide much protection to wild rice is slated to be published soon.

Tribal officials have also voiced opposition to the proposed changes given the importance of wild rice in Ojibwe culture.

On the other side are the mining sector and wastewater treatment plant operators, who argue that the cost of treating sulfates in wastewater is too high. MPCA officials agree, and have noted that the expensive reverse osmosis process is the only currently available method of treating sulfate pollution.

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