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PCA loses appeal on wild rice sulfate rule

Wild rice harvested on Perch Lake on the Fond du Lac Reservation gleams in the sunlight. (News Tribune file photo)

Minnesota's chief administrative law judge has backed an earlier ruling and decided against the Pollution Control Agency on the proposed new rule for sulfate pollution limits for lakes and rivers that hold wild rice.

The PCA in late March appealed the January decision by Judge LauraSue Schlatter, who said the PCA's proposed new sulfate rule failed to meet the definition of a state rule and failed to meet the federal Clean Water Act. Schlatter also said the PCA didn't properly consider concerns raised by tribal groups.

But Chief Administrative Law Judge Tammy Pust has ruled that Schlatter's decision disapproving the PCA sulfate standard was correct. In a 16-page response to the PCA filed Thursday, Pust said the sulfate rule "remains disapproved,'' and that the PCA has not corrected the defects raised by Schlatter's original decision.

A PCA spokesman Monday said the agency was aware of Pust's decision but had no comment.

The PCA has proposed ending a decades-old standard of 10-parts-per-million for all sulfate pollution into wild rice lakes and rivers. Instead, the agency wants to replace it with a sulfate limit based on the chemistry of each waterway.

Schlatter ruled against repealing the existing statewide 10-parts-per-million 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. She said the PCA plan to develop "equation-based" limits for specific lakes and rivers that hold wild rice "fails to meet the definition of a rule" under state law "and is unconstitutionally void for vagueness."

Schlatter also rejected the PCA'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.

In filing their appeal in March, PCA officials said the judge simply erred in applying the Clean Water Act, noting that using equations to determine limits is a common practice in rulemaking for pollution standards. "We think the law judge misread the Clean Water Act," said John Linc Stine, PCA commissioner, at the time the appeal was announced.

Industry groups have panned the PCA prospal as too strict. Environmental groups say it doesn't protect wild rice enough.

It's not clear what the PCA's next move is. The agency could either rework the proposed sulfate rule to satisfy the administrative law judge's concerns or bypass the administrative law judge decision and take the issue to the state Legislative Coordinating Commission.

But, already, some state lawmakers have sought to stop the agency from enforcing any new rule as well as eliminate the old sulfate rule, saying they are too costly and could cripple the state's taconite iron ore industry as well as cost some water treatment plants millions of dollars to comply with.

Scientists have found that sulfate — which can come from sewage effluent, mine discharges and other industrial processes — is converted to sulfides in the sediment of many wild rice lakes and rivers. The rate of that conversion changes depending on the amount of carbon and iron in the water (generally, more sulfides with high carbon, fewer sulfides with high iron). It's those sulfides that harm wild rice in some areas; the proposed new rule would study the water chemistry of each wild rice lake and river to determine what sulfate pollution level they could handle and still grow wild rice.

The PCA says about 135 facilities are within 25 miles upstream of wild rice waters and would be the most likely ones affected by any sulfate rule enforcement.

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