REGIONAL— Think of the state Pollution Control Agency’s proposed new sulfate standard for wild rice waters as a kind of Rorschach test, with interpretation subject to the eye of beholder. To some, like Steve Georgi, the executive director of the Range Association of Municipalities and Schools, or RAMS, or John Arbogast, with the Steelworkers Local 1938, it’s a harbinger of economic doom for the Iron Range— a new water quality rule that will force the closure of most of the region’s taconite mines and push small cities into bankruptcy.

To others, like Nancy Schuldt, water program director for the Fond du Lac Band, it appears to be little more than the same pattern of delay that has kept the MPCA from enforcing the existing wild rice rule for more than 40 years. She sees the draft standard, issued by the MPCA in August, as so complicated to enforce that it almost guarantees many more years of political and legal wrangling before any action is taken to protect a resource that she says is increasingly endangered.

In the middle are local wastewater treatment facility operators who don’t know what to make of the new proposal, but find the uncertainty unsettling.

The proposed new rule, which is now open for public comment through Nov. 9, calls for a flexible sulfate standard that would be determined on a case-by-case basis depending on the chemical and bacterial makeup of the sediments of any lake or river receiving discharges from an industrial facility, wastewater treatment plant, or any other source. MPCA officials say it has the potential to provide better protection for wild rice where conditions warrant, while not over-regulating where it isn’t necessary. The new rule would replace the existing standard, of 10 milligrams per liter, which has been in effect, but unenforced, since the 1970s.

Several years ago, under pressure from tribes, environmental groups, and the federal Environmental Protection Agency, the MPCA began attempting enforcement of the existing standard on taconite mines on the Iron Range, which are significant dischargers of sulfates. But the agency’s efforts faced political pushback from Iron Range legislators and the mining industry. In the end, the Legislature and Gov. Mark Dayton agreed that the agency should conduct more research on the merits of the state’s standard and offer up a possible change based on their findings. In the meantime, the Legislature gave the MPCA until 2019 to revise the standard through a new rulemaking process and prohibited them from enforcing the existing standard until then. In effect, it bought the mining industry more time.

So when the agency issued a draft rule in August of this year, some Iron Range officials suggested the MPCA was moving too quickly. “I think the concern is that the MPCA is being premature with the rulemaking hearings,” said Georgi, of RAMS. “In the last legislative session, Rep. Ecklund pushed through a delay until 2019. We’re curious as to why there is a rush.” Georgi said that the MPCA is supposed to issue a report next year on the estimated costs of compliance with their proposed new standard, and he said any public comments on the new rule should wait until after that report is issued. “As it is, we can’t testify knowledgably,” he said.

MPCA officials say such concerns reflect a misunderstanding of the process. “Part of the panic you’re hearing is that people don’t know how long the rule-making process actually takes,” said Shannon Lotthammer, director of the MPCA’s Environmental Analysis and Outcomes Division. At their current pace, Lotthammer said, the agency would not expect to issue a final rule before mid-summer of next year. “And it then still has to be approved by the EPA,” noted Lotthammer. “It takes time.”

Lotthammer said the concerns about the potential economic costs of implementing the new standard are legitimate, but not for this stage of the process. “Under the Clean Water Act, costs cannot be a factor in deciding what the standard needs to be,” she said. “Where costs come into play is in the implementation stage,” according to Lotthammer, and that’s where most wastewater dischargers are likely to discover the new standard is nowhere near as onerous as some are currently suggesting. “If a facility has the potential to impact a wild rice water, and addressing it is too costly, federal law allows the state to issue a variance. The idea of the variance is to try to improve the situation, while recognizing that full compliance is not financially viable.”

Lotthammer acknowledged that the only currently available technology for effectively treating sulfates is reverse osmosis, which is very expensive both to purchase and operate. Georgi said that Hoyt Lakes recently received a cost estimate for a reverse osmosis system of $4-$7 million, with annual operating costs of between $450,000 and $900,000, depending on the system. “That would triple their rates,” he said.

While that might sound frightening to city officials, Lotthammer said such calculations will help make the case that variances are warranted. “We know that for virtually all wastewater treatment facilities, the technology is unaffordable. So they would very likely apply for variances,” she said.

Assistant MPCA Commissioner Rebecca Flood made a similar point in a recent letter to the editor in the Mesabi Daily News, submitted in response to warnings from Arbogast and others that the new wild rice standard would devastate the region.

“When a new wild rice standard is finalized and the MPCA begins setting requirements for permitted facilities (like mines and wastewater treatment plants), we are committed to ensuring that requirements don’t cost too much,” wrote Flood. “The law allows the granting of variances (like a waiver or exception) in cases where enforcement of a rule causes ‘undue economic or social harm.’”

While those might be reassuring words to local officials, they simply confirm the fears of Fond du Lac’s Schuldt, who sees the proposed new rule as another opportunity for the state to delay enforcement of a standard that it ignored for decades. “You know that this will be challenged by industry,” said Schuldt.

While MPCA officials tout the flexible standard as a means of tailoring discharge allowances on an individualized basis, tribal officials and environmentalist see the potential for endless delay by mining companies. Under the proposal outlined by the MPCA, agency staff would need to assess the chemical and bacterial composition of downstream sediments whenever they determine a standard for a facility. But Schuldt and others worry that the mining companies will simply conduct their own testing and dispute any determinations made by the MPCA as long as the agency tries to set a standard that would require costly clean-up. If the MPCA doesn’t yield to the company’s own science, the issue would likely play out in the courts, most likely for years, say wild rice advocates. The MPCA is already being sued by US Steel over its decisions and actions related to sulfate.

“There’s nothing about this rule that gives me any confidence that the state will be protecting wild rice through its standards,” said Schuldt.

That’s a view shared by Paula Maccabee, of Duluth-based Water Legacy.

“One of the concerns we have raised, is to what degree is this just a method of delay to avoid enforcement,” said Maccabee. “Whenever there is pressure on the agency, it seems the response is, ‘don’t worry our whole strategy is to find ways that you don’t have to do anything.’”

But Lotthammer said just because many wastewater dischargers are likely to receive variances doesn’t mean there’s no benefit to enforcing the wild rice standard, whether it’s the existing rule or the proposed flexible version. “Even when issuing a variance, we need to have the facility look at what’s the best that they can do,” she said. “There are some things that can be done to help that aren’t as costly. So there is still some improvement that happens even when variances are issued. It still moves the ball forward in the short term. In the longer term, it encourages the development of better treatment technologies. And as they become more affordable, then we can start to better enforce the standard.”

For many wastewater treatment facilities, it’s likely to be years, possibly as much as a decade, before variances would actually be needed, and that’s true even if the facilities are discharging into wild rice waters. The Tower-Breitung wastewater facility, for example, currently operates on a general five-year permit. If the new wild rice standard were to take effect in 2019, the first step would be to require that the facility begin testing for sulfates once its permit came up for renewal. “We haven’t tested for sulfates before,” said Matt Tuchel, who manages the Tower-Breitung facility. Only at the following renewal stage, five years later, would the MPCA determine if the facility’s discharges were out-of-compliance with the standard. And that would require additional analysis by the MPCA to test sediments in Lake Vermilion. Given the relatively limited scale of the Tower-Breitung facility and the significant dilution capacity of Lake Vermilion, it is entirely possible, if not likely, that the facility would be required to take no additional action.

Tuchel is watching the issue with concern, but not panic. He said he recognizes some of those sounding the alarm are probably resorting to scare tactics to some degree. “I take some of the claims out there with a grain of salt,” he said. “We don’t know if this is going to apply to everybody,” he said. “I think the MPCA has done a fairly good job of trying to do it right, in understanding the cost of it and the nature of what you’re trying to accomplish,” he said.

Tuchel said it’s an improvement over the implementation of the mercury standard, which is proving costly for some facilities that discharge into the Lake Superior watershed. “I think the mercury standard is what scared people,” said Tuchel.

While Tuchel recognizes that his facility would likely qualify for a variance if it ultimately needs to reduce its sulfate discharge, he noted that variances do still come with a cost.

“It’s not simple. There’s extra work that goes into that. Some smaller facility operators have to hire consultants to do the paperwork,” he said.

Longtime facility operator Terry Jackson said the focus on sulfates isn’t as new as some people think. “The whole issue has been around for at least ten years,” he said. That’s back when he operated Ely’s wastewater facility, and he remembers some of the tribes were pushing the issue then out of concern for the decline of wild rice beds.

These days he’s managing Crane Lake’s wastewater treatment plant and isn’t overly concerned with the push for greater enforcement. Crane Lake already tests for sulfates, and averages about 25 milligrams per liter in its discharge. That’s higher than the current 10 mg/l standard, but it remains unclear when the facility would be in compliance under the new flexible standard the MPCA is proposing. “The question is what impact does it have on wild rice way down the lake.”

And that’s the question that continues to weigh on Schuldt, who notes that wild rice used to grow across much of the eastern two-thirds of the country, but has largely disappeared, except in Minnesota.

“It’s a unique and very sensitive ecological resource,” said Schuldt. “It deserves the same kind of extraordinary protections as trout waters or calcareous fens.” And while wild rice, or mahnomen as it’s known to the Ojibwe, continues to hang on in parts of northern and central Minnesota, Schuldt said it continues to decline in the state. “How many water bodies are named Rice Lake or Rice River that have none left?” she asked. “It’s been wiped out from human development, water quality changes, agriculture, and changes in land use.” And Schuldt doesn’t see that trend changing as a result of the latest MPCA proposal. “They’re walking a really fine line between fulfilling their charge from the Legislature, and walking within the legal intent of the Clean Water Act, and I’m afraid that the line that they found is not going to protect mahnomen,” she said.