Controversial state water regulation slapped down

You know there’s something really questionable about a regulation when both industry and environmental activists strongly oppose it. But that’s what happened with a controversial water quality proposal from the Minnesota Pollution Control Agency that was shot down this week by an administrative law judge.

The Duluth News Tribune account portrays the ruling as a slam dunk that bordered on a rebuke.

A state administrative law judge has flatly rejected a plan by the Minnesota Pollution Control Agency to abandon the statewide 10 parts-per-million limit for sulfate pollution in wild rice waters in exchange for a lake-by-lake system with varying limits.

Administrative Law Judge LauraSue Schlatter, in an 82-page opinion approved by the state’s chief administrative law judge and released Thursday, considered 1,500 written comments on the proposed changes in state law and held five public hearings that drew a combined 300 people.

Schlatter ruled against repealing the existing, statewide 10 ppm limit due to the PCA’s “failure to establish the reasonableness of the repeal, and because the repeal conflicts” with the federal Clean Water Act.

The regulation was purportedly put forward to protect the wild rice crop but the mining industry contends the complicated new water standard was primarily aimed at them. Yet the state agency’s proposal failed to hold up under scrutiny, clashing with both federal law and state requirements.

Schalter even rejected the state’s preliminary list of 1,300 lakes and rivers where the agency believes viable wild rice stands exist, places where the new rules would have applied, because the list itself violated federal law.

“The MPCA has not presented facts adequate to support the reasonableness of the proposed repeal of the 10 (ppm) sulfate standard without a replacement standard that is equally or more protective of wild rice waters,” the judge concluded before warning the PCA against re-submitting a similar plan. “Because some of the defects in the rule are defects in foundational portions of the proposed rules, the Administrative Law Judge advises the Agency against re-submitting the rule for approval … unless it addresses the defects in the wild rice water sulfate standard and the list of wild rice waters.”

For now, the status quo remains in place, whatever that is.

 The judge’s ruling appears to leave the statewide 10 ppm limit for sulfate pollution in effect, but it remains unclear if or when that rule will ever be enforced. A current state law prevents the PCA from enforcing the limit in any pollution discharge permit. While the old sulfate law has been on the books since 1973, it has not been widely enforced, and several taconite iron ore operations and some municipal wastewater treatment plants upstream of wild rice stands are believed to be in violation.

Both mining and environmental groups applauded the decision for much different reasons. Environmentalists maintain the ruling supports the need for a sulfate standard. But mining interests say northern Minnesota families and communities just dodged a big bullet.

Iron Range leaders warned during comments on the rule change that enforcing sulfate limits could end mining as we know it, closing taconite plants and putting thousands of people out of work. Larry Sutherland, head of U.S. Steel’s Minnesota mining operations in Keewatin and Mountain Iron, which employ some 1,700 miners, testified in October that adding reverse osmosis treatment to remove sulfate at Keetac’s wastewater system could cost $200 million, a price tag that would be prohibitive for the plant to remain competitive in the global iron ore market. The implication is that the plant would close if sulfate limits are enforced.