"Governor...would you be willing to speak about the sulfate levels and the controversy that exists, and shed some light on where your position is in defending and maintaining the 10 milligrams of sulfate in the water standards?"
Dayton was clearly thrown off by the unexpected question. He wasn’t expecting someone to bring up Article 4, Section 47, Wild Rice Rulemaking and the issue of sulfide levels. Regaining his composure, Dayton responded:
"I'd have to defer to Paul Aasen who's Commissioner of the Pollution Control Agency and he's been talking with the EPA in Chicago about a common approach that will protect the waters and protect the citizens and also continue the mining operations in Northeastern Minnesota where the iron ore extraction and taconite have been crucial to the economy. So it's trying once again to find a reasonable balance and Commissioner Aesen will be proceeding to do that."
Dayton was obviously unaware of the convoluted activity that happened on May 13, the day that the House Conference Committee pushed through Article 4, Section 47 - Wild Rice Rulemaking and Research. If Dayton thought that the EPA was going to have a common approach answer regarding the wild rice/sulfate standard, then he didn’t see the EPA’s letter to Sen. Bakk and Rep. Dill.
On May 9, the Conference Committee was scheduled convene a meeting on H.F 1010. The meeting was cancelled and rescheduled for May 10. On the day that the meeting was originally scheduled, Sen. Bakk and Rep. Dill sent an inquiry letter to Tinka Hyde, EPA Director, Water Division, in Chicago. According to the EPA letter, the two legislators requested that the EPA “provide its views of two draft bills, which would alter the Minnesota Pollution Control Agency’s implementation of the current, federally-approved water quality standard of 10 mg/L sulfate for wild rice waters.”
On May 13, Bakk and Dill received EPA’s response. A Conference Committee on H.F. 1010 was scheduled for 8:15 a.m. on May 13. The meeting as rescheduled for 6:00 p.m. in the evening. The delay could very well been due to the EPA letter.
The EPA letter stated: “To the extent that any legislation changes the EPA-approved water quality standards for Minnesota, such revised water quality standards must be submitted to EPA for review and approval…”
At the time Bakk and Dill submitted their letter, both the House version, H.F. 1010 and the Senate version, S.F. 1029, had yet to be melded into one. Thus, the EPA response covered two primary issues in both bills.
The EPA wrote: “As you know, H.F. 1010 and S.F. 1029 propose to modify or suspend the current, federally-approved water quality standard for wild rice waters of 10 mg/L, and H.F. 1010-3 specifically sets 50 mg/L as the numeric criterion for sulfate in wild rice waters until a new standard is developed.”
The EPA then pointed out that 33 USC §1313 (c)(2)(A) / CWA §303 (c)(2)(A) – whenever the State revises or adopts a new standard, such revised or new standard shall be submitted to the Administrator – “are not effective for CWA purposes, including National Pollutant Discharge Elimination Permits (NPDES) permits, unless and until approved by EPA.”
Further: “Should Minnesota wish to submit these to EPA as changes to Minnesota’s water quality standards…40 CFR §131.6 provides the submittal requirements. These include…the methods and analyses conducted to support the water quality standards revisions, including how the revised water quality criteria are sufficient to protect the designated uses.”
To make a change in the water quality standard, there would have to be, among other things, a “scientifically defensible basis” as cited under 40 CFR §131.5, 131.11, and 131.2. Lacking such evidence, the EPA “would be unable to approve a revised standard as cited in 40 CFR §131.6 (b)."
The EPA then tackled the issue of the suspension of the wild rice/sulfate standard found in both S.F. 1029 and H.F. 1010 – “both of which generally prevent MPCA from including sulfate limitations in [NPDES] permits until a new standard is developed.”
The EPA wrote: “A state with a federally authorized NPDES program is required to issue permits that ensure the protection of federally approved water quality standards," citing 33 USC §1311 (b)(1)(C) / CWA §301 (b)(1)(C); and, 40 CFR §123.25 (a)(1), 40 CFR §122.4 and §122.44 (d)(1).
“When a state proposes to issue a permit that fails to apply, or to ensure compliance…the EPA has the authority to review and to object to such permit issuance…under 40 CFR §123.44.”
If the EPA objected to a state-proposed permit, “the state or any interested person… would have 90 days to request a public hearing," as cited in 40 CFR §123.4 (e)-(f).
“Pursuant to 40 CFR §122.4 (c), the state may not issue a permit over EPA’s objection.”
In ending, the EPA noted that “should the EPA determine that a state is not administering its federally approved NPDES program in accordance with…the CWA, EPA has the authority to require the state to take corrective action, and if necessary, to withdraw authorization of the program, pursuant to 33 USC §1342 (c)(2)-(3).”
On May 18, a day before final House passage on May 19, MPCA stepped into the fray. In a memo from Rebecca Flood, Assistant Commissioner of MPCA, to Steve Morse, Executive Director of Minnesota Environmental Partnership, MPCA’s position was clarified. Flood wrote: “As you may be aware, there have been several bills and legislative proposals regarding sulfate and the state water quality standard for the protection of wild rice…we want to be clear about MPCA’s objectives as things move toward the conclusion of the legislative session.”
The memo stated that “the state has an existing standard of 10 mg/L of sulfate for the protection of waters used for the production of wild rice” and that MPCA was “committed to implementing that standard as required by the Clean Water Act.” Further, the MPCA was “committed to conducting research to evaluate whether the current standard should be changed.” And lastly, “some legislative language may pose a threat to retaining MPCA’s NPDES permit program delegation, and that MPCA was attempting to suggest language changes to address it.”
One would think that the preponderance of EPA CWA rules and regulations cited in the EPA letter would have deterred any legislative attempt to pass a policy to change the wild rice/sulfate standard. The EPA made it clear that CWA would trump any attempt by the state to legislatively change or suspend the current 10 mg/L wild rice/sulfate standard. Additionally, the state could not legislatively suspend MPCA’s NPDES permit process until a new sulfate standard was developed.
The MPCA memo emphasized their commitment to implement the current 10 mg/L standard in accordance with CWA. They also stressed the threat to undermine the NPDES permit program.
The MPCA memo also mentioned research to evaluate the current standard. This was a reference to MPCA’s current study that is part of their 2008-2012 Triennial Review. Every three years the federal Clean Water Act requires states to obtain public comment on, and revise as needed, their water quality standards. The wild rice/sulfate water quality standard is part of the review.
Legislators decided they wanted a more in-depth study, one that would include scientific analysis. In H.F. 1010, Article 3, Environment and Natural Resources Trust Fund, $1,000,000 was slated for a new study by MPCA. Of course, the thinking behind this was such a study would result in a change in wild rice/sulfate water quality standard – one more suitable for the needs of Polymet and other nonferrous mining companies.
The proposed study was connected to Article 4, Statutory Changes, Sec. 47 – Wild Rice Rulemaking and Research. Apparently, the strategy of the legislators was to suspend the wild rice/sulfate standard while the study was conducted. However, as the EPA letter shows, the state can’t change or suspend the wild rice/sulfate standard unless there is a scientifically defensible basis that meets EPA’s criteria.
Perhaps that is why Bakk, the senator from the Iron Range, decided to vote against H.L. 1010 in its House passage on May 19. But Dill, who was on the Conference Committee, apparently decided to be a man of his convictions – regardless of how haphazard and misguided – and voted for H.L. 1010.
Should the budget deadlock be broken and should Dayton pass H.L. 1010, the convoluted wild rice legislation, as it now stands, is doomed to fail. Given what we now know – via the EPA letter - the legislators will have to compromise. Their best move on a checkmated board is to take out Section 47 altogether and leave in the $1,000,000 for a study. Of course, there is no guarantee that a new study will change the wild rice/sulfate standard. It could, in fact, lower the standard from 10 mg/L to 8 mg/L or 5 mg/L.
Mii sa go