Steven J.

Timmer
5348 Oaklawn Avenue
Edina, Minnesota 55424
stimmer@planetlawyers.com
February 18, 2021

Judge Eric L. Lipman

Office of Administrative Hearings Email filing only

Re: Proposed MPCA rules for class 3 and 4 waters in Minnesota

Dear Judge Lipman,

I submit this letter as my comments to the Minnesota Pollution Control Agency’s

proposed new rules for class 3 and 4 waters in Minnesota. I oppose the adoption of these
rules because they are harmful to clean water and wild rice in Minnesota, and because
they are unlawful.

I am a lawyer, retired a few years now; I was in private practice in the Twin Cities since
1975. I was not an environmental lawyer, but I have experience with administrative law,
and I am an environmentalist. I’ve followed issues of environmental regulation and
permitting keenly, especially in the mining sector, for about a decade.

The proposed rules violate the letter and the spirit of the Clean Water Act in at least a
couple of important ways. First, the elimination of numeric standards for polluting salty
ions and replacing them with a single narrative standard cannot be justified under the
CWA. Second, replacing out-of-the pipe pollution discharge measurement with remote
qualitative water evaluation cannot ensure that the non-degradation requirements of
the CWA and Minn. Stat. § 115.44 (2020) are met.

I - THE ELIMINATION OF NUMERIC STANDARDS

Page 12 of the MPCA’s Statement of Need and Reasonableness, dated December 14,
2020 shows a table of the proposed numeric and narrative standards, with the narrative
standards to be kept, with modification, and the numeric standards discarded. It seems
obvious that with narrative standards compliance is much more in the eye of the
beholder: the MPCA. That’s a problem that the Environmental Protection Agency has
identified, and it’s why the EPA counsels both narrative and numeric standards. Here is
a quote from the introduction to Chapter 6 of the current NPDES Permit Writer’s
Manual:
Judge Eric L. Lipman
February 18, 2021
Page 2

WQBELs are designed to protect water quality by ensuring that water quality
standards are met in the receiving water [emphasis added: not in the receiving
water some distance downstream]. On the basis of the requirements of 40 CFR
125.3(a), additional or more stringent effluent limitations and conditions, such as
WQBELs, are imposed when TBELs are not sufficient to protect water quality.

WQBELs are, of course, numeric standards. Numeric standards are objective standards
which can be enforced in a permit by a third party, such as a recognized Minnesota
Indian tribe or an environmental nonprofit. Narrative standards are more ambiguous
and more difficult for third parties to enforce in the face of the MPCA’s indifference, and
they give the MPCA “wiggle room.”

In fact, Your Honor, you have recognized this indirectly by your question to the MPCA
in your letter dated, January 26th, to the agency:

Mindful that proposed rule 7050.0222, subp. 6, proscribes “concentrations

sufficient to create the potential for significant adverse impacts,” are those
concentrations sufficiently described in the regulations so as to qualify as a rule
under Minn. R. 1400.2200 (F),(G) (2019)?

To paraphrase Your Honor, “Are we creating rules or licenses?” I believe these proposed
“rules” create licenses for the MPCA to act, not rules. I know that at the February 4th
hearing the MPCA declined to answer the question, and as I write this, I don’t know if it
has responded.

But I do know that the individuals representing municipal wastewater operations and
the lawyer lobbyists who testified in favor of the rules at the February 4th hearing believe
that the rules create licenses for the MPCA, not real administrative rules. They would
give the MPCA “needed flexibility” said your witnesses. I don’t think that is the purpose
of administrative rulemaking. The endpoint of rulemaking is supposed to a rule that was
proposed, aired, and discussed by the public, and which gives clear instruction to the
agency, not something that encourages subsequent opaque agency decision making,
which I think purely narrative standards and the “translators” lend themselves to.

At all events, I’m sure the “flexibility” that your witnesses were urging is to give the
MPCA discretion to make enforcement weaker, not stronger.

In a recent hearing before a Minnesota Senate environment committee, it was reported

that the MPCA has four people dedicated to water discharge permitting for mining.
Four. It seems obvious to me that water discharge permitting and compliance is a
Judge Eric L. Lipman
February 18, 2021
Page 3

subject on which citizen oversight is sorely needed. But if the MPCA has a license, not a
rule, then citizen oversight is of no use because of the permit shield that exists under the
CWA and Minnesota law; that is, if you are operating in compliance with a permit – no
matter how feckless or useless it is to the environment – the permittee is shielded from
liability.

In my more cynical moments, I believe this is the game that is afoot.

II – TESTING WATER REMOTELY FROM THE POINT OF DISCHARGE WILL PERMIT DEGRADATION
OF WATER BODIES

The MPCA’s proposed rules would test or evaluate the water body, not at the site of the
pollution discharge, but remotely, say downstream at the site of a licensed appropriator,
for irrigation or industrial use, for example. It shouldn’t surprise anybody that the
amount of pollutants in the waterbody remote from the discharge will be less.

But that doesn’t mean that the polluter polluted less. It just means that the environment
absorbed some of the pollution in the intervening distance. Salty ions are conservative,
that is, they are persistent in the environment, leaching into groundwater or settling in
sediment. Additional inflows to the waterbody above the appropriator might also help
dilute the pollution, but it’s still there, degrading the water and the bed of the
waterbody.

I live near Minnehaha Creek. Periodically, I get messages from the watershed district
and the city reminding me that a teaspoon of salt on my sidewalk can pollute five gallons
of water permanently.

One salty ion, sulfate, precipitating into stream- or lakebed sediments, acted on by
sulfate-reducing anaerobic microorganisms and combined with mercury from the
environment also in the sediment, produces methylmercury: MeHg. See, e.g., Microbial
Mercury Methylation in Aquatic Environments: A Critical Review of Published Field and
Laboratory Studies. The abstract even includes this graphic:
Judge Eric L. Lipman
February 18, 2021
Page 4

It seems that the methylation process is well understood for fresh water. The MPCA
pussyfoots around this, but the science seems hard to ignore, unless you are dedicated to
ignoring it.

Methylmercury, MeHg, is the organic form of mercury that is taken up and

bioaccumulated by fish, and the predators who eat them, including birds of prey, various
mammals, and humans. Methylmercury has well-known adverse effects on everything
up the food chain, including serious neurological effects on developing brains.

Methylmercury is also a conservative pollutant; it doesn’t just vaporize.

In the SONAR, the MPCA says several times that it isn’t touching, at least for the
moment, the wild rice standard: 10 mg/L of sulfate, in class 4A. But we know that the
wild rice standard is not being enforced. I think it is also fair to say, because of political
pressure – pressure heedless of the environment – that the standard will continue to be
under threat. Aside from the wild rice rule, what protection does wild rice have?

Primarily because of incorporation of EPA standards by reference, class 1 (drinking

water) is subject to a limit of 250 mg/L, twenty-five times the limit under the wild rice
rule. I haven’t looked it all up, but most wild rice water is not class 1. There is no
numeric sulfate limitation in class 2. That leaves us with just classes 3 and 4, practically.
But the MPCA wants to get rid of any numeric limitation of conductivity in these classes,
a measure of salty ions, including sulfate.

III – CONCLUSION

The MPCA promises nuanced, site-specific consideration of water discharge permits in

the SONAR. There are two instances that I am aware of where it tried that: the Minntac
permit, issued after one that had been expired more than a score of years, and the
PolyMet Mining permit. The Mintac pemit was struck down by the Court of Appeals in
Judge Eric L. Lipman
February 18, 2021
Page 5

2019, and the PolyMet permit is currently stayed. These are not hopeful developments
for what the MPCA proposes.

I have thought long and hard about why you’d choose to measure or describe pollution
remotely and inferentially rather than directly. And try as I did, I could not think of a
reason, a good reason, anyway.

In the SONAR, the MPCA makes multiple bald assertions – naked allegations as we call
them in the law – of necessity and reasonableness of the proposed rules. The proposed
rules clearly aren’t necessary; I cannot see how there is any difference in the amount of
effort to measure or evaluate pollution at the point of discharge or at some remove,
unless the object is not to find pollution.

I believe the proposed rules are unreasonable, too; they are an abdication of the agency’s
responsibility to the environment and to the public. They ought to be rejected as a
dereliction of duty.

Respectfully submitted, I remain,

Very truly yours,

/s/ Steven J. Timmer

/sjt