The federal Environmental Protection Agency this week approved dramatic changes in Minnesota’s water quality rules.
The Minnesota Pollution Control Agency worked on the revisions for ten years and formally proposed the changes last winter. But the federal approval has left environmental activists reeling.
Minnesota has a set of rules that apply to industries, wastewater treatment plants, anyone who discharges significant quantities of wastewater into a stream or lake. The rules are designed to protect water quality, and they typically set numeric limits on such things as salts, pH, calcium, magnesium, chloride and other elements. The new rules eliminate many of the numeric limits and instead call for a narrative description, which typically describes the general conditions desired in the water body.
Paula Maccabee, advocacy director for Water Legacy, a nonprofit watchdog that follows environmental issues, said she can’t understand the approval. The organization sent detailed comments to the MPCA as it was developing the rules and to the EPA as it was considering the rule changes. “I simply believe it is not only dangerous for Minnesota but a violation of the Clean Water Act,” she said. “And why neither of those facts were salient to the EPA, I can’t fathom.”
In late August, just weeks after the posting of the new rules in the State Register, U.S. Steel applied for a revised permit for its mammoth taconite mine, Minntac. The company wants the MPCA not only to cut numeric limits, but also to eliminate monitoring requirements for many pollutants. These chemicals move from Minntac’s overflowing wastewater pond into the Dark River, Timber Creek, Little Sandy Lake, and Admiral Lake, and ultimately into Lake Superior.
Maccabee and others were expecting the EPA to disapprove the state’s new approach, which would make the permit application moot. But for now, the rules stand. “Minnesotans count on the state having rules, enforcing them, and the courts backing them up,” says Maccabee. “But in the case of U.S. Steel, what we’re learning is you can easily break that chain: just get rid of the numbers. Without the limits, there’s no law, no protection, no enforcement. That’s a pretty dark day for Minnesota.”
In its response to public comments, the MPCA said in March that it needed to eliminate the numeric standards because they were “not appropriate” for the designated uses and were based on “outdated” science. Industries have a wide range of requirements for intake water: gravel washing and chip manufacturing obviously have different needs. Similarly, the quality of water preferred for irrigation varies according to crop, soil, and other factors. The MPCA said the nation as a whole is moving toward more tailored and site-specific limits as new research shows the complexities of biochemical interactions.
The EPA took two months to review the state’s plan, eventually determining that the state followed all the applicable rules. Using the same language and reasoning as Minnesota used in its explanation of the new approach, the EPA concluded that the new rules would adequately protect the various uses of Minnesota’s lakes and rivers.
Tribal governments also forcefully critiqued the plan as it was being drafted. In an unprecedented joint statement [PDF], 11 tribal governments charged that the new rules “have the potential to significantly impair the health of Minnesota waters. That damage will be all the more severe for the state’s tribal citizens, who rely on wild rice, fish, and other treaty-protected resources for subsistence at rates higher than the rest of the population, and who are already subject to disparate impacts because of widespread water pollution.”
In designing the new rules, the MPCA concentrated its attention on industrial and agricultural uses of water. Failing to find research on safe levels of many pollutants for wildlife, the agency picked cattle as a surrogate for wildlife to set a sulfate standard, for example.
But as the tribal document points out, while establishing such limits might protect cows, it would not protect wild rice or aquatic insects. “Allowing increases in chloride and other salts in upstream … waters could kill the aquatic insects there — which also kills the fish that eat those insects,” it states. “The almost total lack of wildlife-specific data in MPCA’s record precludes any confidence in the agency’s assumption.”
One citizen commenter, biologist Stephanie Digby, questioned the science on which the MPCA based its new rules. “Standards that are based upon whether cattle can survive cannot, if any science is followed, be applied to the entire food chain. It is the antithesis of any science,” she wrote.
In its approval document [PDF], the EPA said the MPCA has shown the narrative standards will protect aquatic life and promised that research will help agencies set future standards. “EPA anticipates that using narrative standards will result in permits with more stringent limitations than those based on now-removed numeric criteria, to the extent that evolving science indicates much more stringent limits would protect aquatic life.”
Both the tribes and environmental groups complain that the rules revisions ignore the long-standing problem of mercury pollution. Sulfate in water helps release mercury in sediments and helps convert it to methylmercury, the neurotoxic form that accumulates in fish and in people who eat the fish. In a recent study, ten percent of newborns living along Minnesota’s north shore of Lake Superior had excess mercury in their blood. In responding to comments, the EPA said that mercury is a separate pollutant and the rules for sulfate should not incorporate concerns about mercury.
Another major change is that the standards apply not at the point of discharge, as currently, but at the point downstream where someone else withdraws water for large-scale irrigation or industrial use. The tribal groups vigorously opposed this idea. “The idea that compliance monitoring would or should occur at an industrial or agricultural intake that may be miles downstream of a discharge that is violating Minnesota water quality standards … does not provide protection of the existing uses of the water between one major industrial or agricultural discharge” and the next one downstream, notes the joint statement to MPCA.
In addition to many specific concerns about the revisions, the tribes complain that the state and federal agencies have not adequately considered their views. Through the years of work on this project, tribes have regularly provided comments that rarely result in a change.
In the end, MPCA says, its “choices, which may differ from Tribal comments, remain based in science and are reasonable. The rule as proposed is a reasonable path to achieving the goal of protecting water quality for industrial and agricultural/wildlife uses.”
The 11 tribal governments responded: “MPCA appears to have confused quantity of contacts with quality. This is not meaningful consultation.” And they urge that in the interests of environmental justice, “No change to any water quality standards should happen without analysis of impacts on treaty resources.”
The rules apply now to all the waters of Minnesota. It is too early to know what will happen next, but legal action seems likely. Meanwhile, the agency announced Tuesday that it is beginning work on another set of water quality rules revisions.