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Why lawmakers want to fundamentally change how the Minnesota Pollution Control Agency does business

Some legislators don’t just want to tweak some of the MPCA’s more controversial regulations. They want to change the agency’s ability to set regulations in the first place.

Banning State Park river
At the center of it all are two controversial water regulations set by the PCA: the state’s new phosphorus standard for rivers and a looming decision on sulfate levels in water to protect wild rice crops.

If there were a contest to name the least popular state department at this year’s legislative session, there’s little doubt which would win: The Minnesota Pollution Control Agency

Over the years, the agency has often found itself in the middle of passionate disputes between environmental groups and business in its capacity as the state agency charged with setting and enforcing clean air and water standards.

But those long-simmering tensions have come bubbling to the surface in this year’s session. At the center of it all are two controversial water regulations set by the PCA: the state’s new phosphorus standard for rivers, which was put in place to prevent things like algae growth; and a looming decision on sulfate levels in water to protect wild rice crops. Both regulations have major implications for the mining industry and local governments that operate wastewater treatment facilities.

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Yet many of the legislative efforts aimed at the PCA go beyond tweaking specific rules. Members of the new Republican House majority, who campaigned on a pro-mining platform, are interested in limiting everything from the PCA’s power to set certain water quality standards to the influence of its citizen board. And they’ve found eager companions in many Senate Democrats, whose leader, Tom Bakk, hails from rural Cook on the Iron Range.

“Lawmakers are extremely frustrated with state agencies and are looking at how to rein in rulemaking that is costing businesses and local governments money,” said Marty Seifert, a former House Republican legislator who now lobbies on behalf of outstate interests for the Coalition of Greater Minnesota Cities, which is pushing some of the new legislation. “The PCA is going to have a tough slog in both the House and the Senate. Something is going to be done at the end of the day.”

History of the PCA 

The Minnesota Legislature established the PCA in the 1960s, after two oil-tank spills did major damage to Minnesota waterways. Minnesota was an early adopter of environmental regulations — at the time, the federal government hadn’t even created the U.S. Environmental Protection Agency (EPA), and the nation had yet to celebrate its first Earth Day.

The agency was charged with a big and broad responsibility: to protect Minnesota’s air, water and land from future damage. A charge came to the agency in the early 1970s to apply a universal standard to waters for wild rice, an economically and culturally significant state crop in northern Minnesota. Studies found wild rice could be damaged in waters with high sulfate levels. Those levels could be increased by runoff from nearby mining facilities or wastewater treatment plants.

That’s when the state set the so-called 10 standard: 10 milligrams of sulfate per liter. In 2011, however, a new Republican-controlled Legislature tried to change the standard, which business groups said was outdated and far too low. Facing opposition from the EPA, legislators instead passed funding for a study to reevaluate the standard, directing the PCA to designate wild rice waters across the state.

But the study, done in partnership with the University of Minnesota and released in January of 2014, only served to reinforce the 10 standard, finding that sulfate hurts wild rice when it turns into hydrogen sulfide. In response, the Minnesota Chamber of Commerce, a longtime opponent of the standard, questioned the study’s methodology and commissioned its own evaluation that suggested the real number should be closer to 1,600 milligrams of sulfate per liter.

State Rep. Carly Melin
State Rep. Carly Melin

The PCA has yet to set final rules related to the standard or designated specific bodies of water across the state for wild rice production, a move that has irked the Legislature’s Iron Range contingent, who say the 10 standard is still being applied in permits “erratically” across the state.

“Not knowing what standard applies to a particular body of water makes it impossible for municipalities and industry to properly plan at their treatment facilities,” said Rep. Carly Melin, DFL-Hibbing, who is a co-author on a bill to require the PCA to list all wild rice waters across the state. The proposal would also prevent the agency from using the 10 standard until it designates the waters. “It should not be the responsibility of these groups to research if nearby waters once grew wild rice in the last 50 years.”

The PCA says a list of wild rice waters and their decision on the sulfate level is due out during the early half of this year.

Concerns for local governments, businesses

But the brunt of the fire aimed at the PCA would do more than address particular concern about sulfates; it would go to the heart of the agency’s ability to set water regulations and rules in the first place.

Rep. Dan Fabian, R-Roseau, has introduced a bill that would require the PCA to get legislative approval for any new water-quality rule if it’s expected to cost a business $5 million or a number of businesses a combined $50 million. Under the proposal, the PCA would also need to get an economic impact analysis for most new water-quality rules.

A companion bill would require an “independent peer review” of any regulation developed by a state agency. Similar legislation is being carried by Sen. Kent Eken, DFL-Twin Valley, in the state Senate.

State Rep. Dan Fabian
State Rep. Dan Fabian

“I have a lot of cities in my district and in neighboring districts that are facing huge expenses to upgrade their sewage treatment systems and the water that’s discharged,” Fabian said. “When they talk about having to spend $40 million, a small city like East Grand Forks … I have some serious questions about the cost benefit to that project.”

Eken said the new phosphorus river standard could cost the city of Moorhead, which lies in his district, $10 million to comply with. He also doesn’t think the proposals are “anti-environmental.”

“We all want to have a clean environment and a safe environment; we also want to have a strong and healthy and vibrant economy. You have to be looking at things in a totality,” he said. “It’s also about making sure you are putting dollars for environmental protection where you will get the most bang for your buck.”

Politicizing science? 

Not surprisingly, environmental groups don’t feel the same way, and they worry that the Legislature’s pro-industry tilt will politicize a process that should be based on science. “We don’t feel there is great leadership throughout the Legislature on these clean water issues and clear air issues, and we are concerned they could short-circuit the process,” Steve Morse, executive director of the Minnesota Environmental Partnership, said. “There’s a lot of pressure to protect big mining interests.”

Morse says the bills could delay or block the process for setting standards. “The PCA is charged with taking the best science and taking the rules and procedures and putting them into practice,” Morse said. “This browbeats the agency to do things that are politically expedient.”

For its part, the PCA is taking a cautious approach when it comes to addressing how it operates. Shannon Lotthammer, director of the environmental analysis and outcome division at the PCA, says they are open to discussing the costs and processes that go into the agency’s work, but they are concerned the bills will slow things down.

“I have concerns about the ability to do things in a timely manner,” said Lotthammer. “Some of these bills require that standard to be submitted to the Legislature for approval. There’s already a lot of public input and a lengthy process that goes into developing these standards, but we also recognize that there are often divided opinions on many facets of water quality.”

But she also says the agency must be able to let science dictate its approach. “The standards themselves should be focused on what the science is and what the state should be doing to achieve a healthy and clean Minnesota. Minnesotans have said we want clean water, we want water that is drinkable and we want water we can swim in. We really use environmental science to inform our decisions.”

Citizens’ Board targeted

A nine-member Citizens’ Board is charged with addressing some of the agency’s most controversial decisions. The board includes the current commissioner of the PCA and eight other members appointed by the governor. Generally, the members have a scientific background, and one is required to have expertise in agriculture.

At a recent House Environment and Natural Resources Policy and Finance Committee hearing, lawmakers had tough questions about the board, particularly about the level of public input into its decisions, and how businesses are notified when projects come before the board. Legislators asked if board members ever rejected recommendations from the agency and how the membership is broken up across the state geographically.

“There’s this message that, ‘Well, you don’t care enough [about the environment], and we just want to have some voice in the process here,’” Fabian said of the board. “You could say [the process is] already political, the Citizens’ Board … what role does the Legislature have in appointing them?”

There are no official proposals introduced yet to deal with the makeup of that board, but Rep. Denny McNamara, a GOP legislator from Hastings and chair of the committee, signaled that he didn’t think the current system is working.  “I don’t think this process is serving the state correctly today,” McNamara said. “We need to fix this; this is broken.”

PCA Commissioner John Linc Stine, who has worked with the board since he joined the agency in 2012, defends the board’s role, saying it adds value to the agency’s deliberations. Members only occasionally go against the agency’s recommendations, he said, but they often make changes that make PCA decisions better.

“Board members come with a very serious attention to the work that they are doing,” Stine said. “It hasn’t been my experience that the board members take off on tangents.”