By Betsy Lawton, MCEA Program Attorney
Earlier this month an Administrative Law Judge (ALJ) rightly told the Minnesota Pollution Control Agency (MPCA) that it could not adopt regulations that violate the federal Clean Water Act, which sets the minimum water quality requirements in all states. The ALJ’s decision acknowledges a basic tenet of the Clean Water Act: that decisions regarding how much pollution is too much, and when pollution control costs are too high to justify, must be based on the latest science, and economic and water quality considerations of the affected community. Blanket decisions exempting upgrades to pollution controls are not allowed by the Clean Water Act.
How Are Decision About Water Pollution Made?
Every five years the MPCA issues permits to sewage plants that treat human waste (and often industrial waste too). These permits include limits on the amount of pollution each facility can put into Minnesota’s streams and lakes. The limits, which are designed to limit pollution to levels that the MPCA deems “safe” for swimming, fishing, and drinking, also impact the types of pollution controls a facility uses to achieve “permitted” levels of pollution. Water pollution permits expire after 5 years for good reason: decisions about pollution must consider the latest science and technology. For example, a permit issued 5 years ago would not have considered limits to meet a more recently adopted clean-up plan for phosphorus pollution, and a permit issued today would not consider the science about safe level of pharmaceuticals that will be developed during the next 5 years. If, when a new permit is issued, the pollution controls needed to keep streams and lakes “safe” would create an undue economic burden on the community, additional time to install pollution control can be granted.
What Went Wrong (or Right)?
The faulty rule, required by a directive of the 2017 legislature, would have allowed municipal sewage treatment plants to avoid installing any new pollution controls to achieve needed pollution reductions for 16 years after its most recent upgrade. This is regardless of the impact of the pollution or the costs of the pollution controls. That means that for emerging pollutants (like pharmaceuticals), even if the state identified an unsafe level and technology to address it, a sewage treatment plant would not need to do anything to address it for nearly two decades. Or if new technology were developed to effectively address a pollutant, the permittee wouldn't have to use it for two decades.
How Did This Happen?
ALJs review most Minnesota rules before they take effect. The ALJ must find that the rules do not conflict with state and federal law. MCEA submitted comments to the ALJ explaining that the rule violates the Clean Water Act and is unnecessary because the MPCA can use a number of tools to be flexible in applying the law where treatment costs are prohibitive. It is yet to be seen whether this decision will be appealed to the Court of Appeals.