If state administrative law Judge LauraSue Schlatter agrees that the Minnesota Pollution Control Agency proposal to protect wild rice from sulfate is officially "reasonable," she will be among the few people to publicly say so.
Schlatter's job in coming months will be to pore over testimony about the PCA sulfate standard and determine whether the proposal is legal, follows state rules and is needed and reasonable.
So far, after multiple public hearings, it seems almost everyone is saying it's not.
Mining supporters want no sulfate rule at all, saying there's no major crisis with wild rice downstream of where mines operate. Business and government groups say the rule would be too costly to meet.
"The rule being proposed raises significant technical, ecological and economic questions which must be addressed prior to moving forward," Marianne Bohren, executive director of the Western Lake Superior Sanitary District, testified last week at a public hearing on the rule.
Environmental groups want to stick with the current, statewide sulfate standard of 10 parts per million, saying it's simple and potentially effective at protecting wild rice if it's enforced. (So far, it hasn't been.)
"What WaterLegacy is saying, and what tribal leaders, both Chippewa/Ojibwe and Dakota are saying, is that we should keep the existing standard and enforce it consistently and rigorously in all wild rice waters," said Paula Maccabee, attorney for Minnesota-based WaterLegacy.
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, less sulfide with high iron). It's those sulfides that prevent wild rice from thriving in some areas; the proposed new rules would study the water chemistry of each wild-rice lake and river to determine what sulfate level they could handle and still grow wild rice.
Maccabee also noted that research appears to show that higher sulfate-sulfide levels increase toxic methyl mercury, a pollutant already targeted because of its potential impact on human health.
"The need to prevent sulfate loading from wastewater in Minnesota is driven by public health as well as environmental quality," she said. "The old rule, if it were enforced, already protects against mercury methylation. The new rule could make it worse .... That's not reasonable."
Iron Range leaders are warning that the new wild rice sulfate rule could end mining as we know it, closing taconite plants and putting thousands of people out of work. (That contrasts with PolyMet's guarantee that it will meet the state's current sulfate standard by using reverse osmosis treatment that's already included in its copper mining plan.)
Critics of the new rule say the PCA should delay any action until next year, when a cost analysis is completed on the rule's economic impact. Larry Sutherland, head of U.S. Steel's Minnesota mining operations in Keewatin and Mountain Iron, which employ some 1,700 miners, said 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 could close if the new rule is adopted.
"And you still can't guarantee any benefit" for wild rice, Sutherland said at the Virginia public hearing on the rule, adding that the PCA concedes the error rate for each water body's sulfate standard could be as high as 20 percent.
In testimony last week in Brainerd, the WLSSD's Bohren said the proposed sulfate-sulfide standard could cost the district millions of dollars to meet. Wastewater treatment plants simply aren't designed to remove sulfate, and Bohren said the cost of adding reverse osmosis treatment to remove sulfate - the only known method - could be $500 million and raise the plant's electric costs 600 percent.
Those extra costs could dramatically raise Duluth's monthly sewage rate for residents, from $40 to $75 per month and as high as $140 per month for homeowners if large industrial customers - namely Verso in Duluth and Sappi and USG in Cloquet - were forced to shut down. The Sappi mill already pays WLSSD about $10 million per year for its wastewater treatment. If reverse osmosis was required, that bill could hit $28 million, Bohren said.
"We're assuming the large industrial users would not continue to operate if that happened," she said, foretelling a major hit for Twin Ports jobs.
Bohren also noted that several scientists have raised questions about the PCA's conclusions on the relationship between sulfate, sulfide and wild rice.
"We're not saying wild rice shouldn't be protected. We're saying we don't think the PCA has had enough time to get to where they need to be," Bohren told the News Tribune.
PCA officials say Bohren's and other testimony critical of possible compliance costs is premature. The new sulfate rule wouldn't even apply to the WLSSD because the Duluth harbor, where the WLSSD releases its outflow, is not on the official state list of wild rice waters. (Upstream sections of the St. Louis River are considered wild rice waters but would not affect the WLSSD permit. Bohren countered that there's no guarantee other groups wouldn't petition to put the Duluth harbor on the wild rice list.)
"As it stands now the rule wouldn't apply to them," said Shannon Lothamer, the PCA official charged with ushering the wild rice sulfate rule through the process. "We understand their concerns, because the cost of what's out there for treatment now is so high. But these are really worst-case scenarios that are being thrown out there."
Protect wild rice, technology will follow
Lotthammer said the PCA is under legal obligation, under the Clean Water Act, to protect wild rice. It's also a social obligation, she said. The PCA plans to move ahead to develop a scientifically defensible rule to protect wild rice, then come up with affordable ways to meet that rule.
Only when the rule is adopted and specific sulfate-sulfide limits are set for each lake and river where wild rice exists, and then only as pollutant discharge permits are renegotiated to meet the rule, would businesses or municipalities have to make changes.
PCA officials say if those changes are too expensive, the state will include variances in specific discharge permits for municipalities and companies that discharge sulfate. The closing of a plant and the community upheaval that would cause clearly meets the state's criteria for variances, Lotthammer noted.
"That's where we certainly plan on issuing permit variances. But first we have to find that point (for each waterway) where we think wild rice is protected," she said.
Several municipal wastewater plants have variances for phosphorus removal because of the high cost of treatment, Lotthammer added. And the WLSSD already has a discharge permit variance for mercury pollution because it proved there was no feasible way for it to meet the mercury standard for discharge into Lake Superior. The WLSSD already is discharging water with less mercury than the rain that falls on Duluth. The PCA realized that, and granted the variance in the agency's operating permit, Lotthammer noted.
Critics counter that the variance process can take years, is expensive and isn't guaranteed because variances also require federal agency approval.
PCA officials note that there are myriad examples of how regulation inspired technical breakthroughs that make pollution control more affordable than naysayers predicted. Coal-fired power plant operators said they couldn't affordably reduce acid rain- and smog-causing pollutants like sulfur dioxide and nitrogen oxides, yet have done exactly that with so-called smokestack scrubbers. They also have moved to reduce mercury.
Reserve Mining Co. argued that it wasn't feasible to stop dumping taconite tailings into Lake Superior, that on-land disposal was too costly. Now, Northshore Mining is thriving at the Silver Bay site decades after moving to on-land disposal.
Minnesota's wild rice sulfate rule will help push development of new, less expensive sulfate-removing technology, Lotthammer said. (The University of Minnesota Duluth's Natural Resources Research Institute already is developing bacteria that can eat eliminate sulfate, testing it in Iron Range mine pit lakes in a process where, if successful, sulfate treatment would be dirt cheap.)
"We really think that there will be innovation to help us get to where we need to protect wild rice," she said. "Until those innovations happen, until their are options out there that are affordable, we're not going to force anyone out of business."
What's the rule?
The Minnesota Pollution Control Agency in August unveiled details of the new wild-rice sulfate standard - years in the works, developed after an old sulfate standard was deemed too vague and too difficult for the industry to meet. A law in place since 1973 limited sulfate pollution in all Minnesota waters that hold wild rice to 10 parts per million. The rule was rarely enforced until tribal and environmental groups began pushing the PCA to include sulfate in pollution discharge permits.
State lawmakers tried to stifle the sulfate rule but failed, as did court challenges. So the state funded research to find out what it was about sulfate that harms wild rice.
Studies found that it's not sulfate that directly harms wild rice. Instead, wild rice is inhibited when sulfate converts into sulfides (but because the sulfate pollution leads to sulfides, sulfate is still the target of the regulation.)
Because that conversion is different in each lake and river (depending on water chemistry, carbon and iron), the PCA proposed eliminating the old, statewide sulfate limit and instead studying the water chemistry of each wild-rice lake and river to determine what sulfate level they could handle and still grow wild rice. The new rule, if enacted, would limit sulfides to 120 parts per billion. Ultimately pollution discharge permits for wastewater plants, mines and other sulfate-emitters would be changed to limit sulfates with the goal of keeping sulfides below the benchmark of 120 parts per billion and protecting wild rice.
There are about 1,300 lakes and rivers listed so far on the statewide list of wild-rice waters. About 350 of those wild-rice waters are downstream of industries or cities that discharge sulfate and are the most likely to be affected by the changes.
If state administrative law Judge LauraSue Schlatter rules the wild rice sulfate rule unreasonable, the PCA has to go back to the drawing board and start over (although the old sulfate rule would remain in effect). If she finds it reasonable, it will be up to PCA Commissioner John Linc Stine to decide when and how to move forward.
Any legal challenges to the PCA rule would be heard in the Minnesota Court of Appeals.
Then, it will be up to the federal Environmental Protection Agency to decide if the state rule meets the Clean Water Act standard to protect wild rice.
Public comments on the wild rice rule will be accepted through Nov. 22, with comments sent to: minnesotaoah.granicusideas.com/discussions or mail to Office of Administrative Hearings, P.O. Box 64620, St. Paul, MN 55164-0620 (Docket 80-90030-34519).