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1 This document contains the comments and public hearing requests the MPCA received during the public comment period for the proposed amendments to the Water Quality Variance Rules, November 9, 2015, through December 29, wq-rule4-04k

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11 Minnesota Center for Environmental Advocacy 26 East Exchange Street Suite 206 Saint Paul, MN December 29, 2015 VIA ELECTRONIC MAIL Mary H. Lynn Minnesota Pollution Control Agency 520 Lafayette Road North, St. Paul, MN Re: Proposed Permanent Rules Relating to Existing Water Quality Variance Procedures - Request for a Public Hearing and Comments of Minnesota Center for Environmental Advocacy Dear Ms. Lynn, This request for a public hearing and comments are submitted on behalf of the Minnesota Center for Environmental Advocacy (MCEA) on the Proposed Amendments to Rules Governing Water Quality Variances, Minnesota Rules, Chapter 7050 Waters of the State (specifically, part ), Chapter 7052 Lake Superior Basin Water Standards (specifically, part ) and Chapter 7053 State Wasters Discharge Restrictions (specifically, part ) and Repeal of Minnesota Rules, parts , subpart 3 and , subpart 3. MCEA is a Minnesota non-profit environmental organization whose mission is to use law, science and research to preserve and protect Minnesota s wildlife, natural resources and the health of its people. MCEA has a statewide membership with members who use Minnesota waters for drinking water and to fish, swim and enjoy wildlife observation and other forms of outdoor recreation. MCEA has been actively engaged in water quality standards revisions and application for a number of years, has made water quality a significant component of its work, and has participated in a number of related policy and legal matters. General Comments MCEA agrees that it would be beneficial to address inconsistencies in the Minnesota Rules governing water quality variances, and to better align Minnesota rules with federal requirements for variances. Unfortunately, the current draft of proposed changes to Chapter 7050, Chapter 7052 and Chapter 7053 has serious flaws and fails in numerous respects to incorporate safeguards and requirements contained in the new federal rule. This may be in large part due to the fact that the draft rules and the Statement of Need and Reasonableness (SONAR) appear to have been drafted prior to the final issuance of the new federal rules concerning variances from water quality standards, 80 Fed. Reg (August 21, 2015)(codified at 40 C.F.R ).

12 First, MPCA has failed to comply with state law because the SONAR does not contain an assessment of any differences between the proposed rule and existing federal regulations and a specific analysis of the need for and reasonableness of each difference. Minn. Stat (7), Instead MPCA is currently working with EPA to better understand the final federal rules and to determine whether the proposed rules will need to be modified. MPCA, wq-rule4-04h, October However information regarding the difference between MPCA s proposed amendments and the new federal water quality variance regulations must be made available for public review and comment for at least 30 days before adoption of those amendments. Minn. Stat , 14.23, Without such information it is impossible for the public to submit meaningful comments in support of, or opposition to, a proposed rule that is meant to better align state rules with federal regulation and policy. SONAR at 34. MPCA s failure to assess its proposed amendments for compliance with federal variance regulations is problematic for two additional reasons: 1) EPA must disapprove any state variance that is inconsistent with these federal requirements and 2) EPA will only approve state variance rules that comply with the new federal regulations. 40 C.F.R (a)(4), (b), ; 80 Fed. Reg. at Second, the proposed amendments to Chapters 7050 and 7052 require significant changes for clarity, to protect Minnesota waters properly and to comply with federal law. The proposed amendments to Chapter 7053 need to be completely reconsidered with a clear statement of the purpose of the proposed amendments and a clear understanding of the federal law requiring that National Pollution Discharge Elimination System (NPDES) permits prohibit discharges that may cause or contribute to violations of water quality standards, 33 U.S.C. 1312, 40 C.F.R (d), and the proper role of variances from water quality standards. Section by section comments on certain sections of the proposed language. PROPOSED AMENDMENTS TO Subpart 1. Applicability. A. Endangered species must be protected MCEA agrees that this condition is necessary. B. Variance can only be granted if standard will not be attained by effluent limitations required under 301(b) and 306 of the Clean Water Act or through reasonable best management practices (BMPs) for nonpoint sources under the permittee s control MCEA agrees that this limitation on variances is necessary and that a variance may not be granted if the standard can be achieved through technology-based requirements or reasonable BMPs. See also, 40 C.F.R (a)(4). MCEA, however, does not agree 1 MPCA, through reasonable efforts at further communications with EPA, and analysis of federal regulations, may certainly ascertain this information. See Minn. Stat (information must be included in the SONAR to the extent the agency, through reasonable effort, can ascertain this information. ) 2

13 that a variance may be granted in the case in which water quality standards could be met through implementation of BMPs that are not within the permittee s control. First, MPCA may not grant a variance that applies to a water body or waterbody segment without providing to EPA documentation including: Identification and documentation of any cost-effective and reasonable best management practices for nonpoint source controls related to the pollutant(s) or water quality parameter(s) and water body or waterbody segment(s) specified in the WQS variance that could be implemented to make progress towards attaining the underlying designated use and criterion. A State must provide public notice and comment for any such documentation. 40 C.F.R (b)(2)(A). Second, MPCA may not grant a subsequent variance for the water body or waterbody segment without providing documentation to EPA: of whether and to what extent best management practices for nonpoint source controls were implemented to address the pollutant(s) or water quality parameter(s) subject to the WQS variance and the water quality progress achieved. 40 C.F.R (b)(2)(B). Third, in an analogous situation under the federal antidegradation regulation, new or increased pollution cannot be allowed unless the State has assured that there shall be achieved the highest statutory and regulatory requirements for all new and existing point sources and all cost-effective and reasonable best management practices for nonpoint source control. 40 C.F.R (a)(2). Under Minnesota law the MPCA has both the authority and duty to prevent nonpoint source pollution (Minn. Stat , subd. 1), but it has failed to establish rules or requirements to abate agricultural nonpoint water pollution. The MPCA may not relieve itself of its duties under federal and state law to identify, document and implement reasonable and cost-effective best management practices for nonpoint sources before granting a water quality variance simply because these sources are not under a permittee s control. To the extent that MPCA wishes to include a variance eligibility showing by a permittee, it needs to define what is within the permittee s control, as this is susceptible of manipulation and interpretation and should be interpreted broadly. For example, if a municipal sewage department does not have control over nonpoint pollution from sources within the municipality but the municipality has the power to require such BMPs, the BMPs should be treated as being within the permittee s control. 3

14 C. The variance would not remove an existing use This language should be altered to make clear that no variance should be allowed that would not maintain and protect existing uses. MCEA understands that the term remove originates with 40 C.F.R (g) which addresses removal of use designations. However, the term is not entirely appropriate as to variances, which assume maintenance of use designations and are focused on reaching the highest attainable use during the period until all designated uses can be achieved. As stated in the new federal variance rules, a variance "shall not result in any lowering of currently attained ambient water quality" unless necessary to facilitate lake, wetland or stream restoration. 40 C.F.R (b)(1)(ii). Thus, except in the rare case of a variance needed for restoration activities, a variance should not be allowed that would degrade water quality or adversely affect an existing use. MCEA would propose that the language should specify that the variance maintain and protect all existing uses. The maintain and protect language appears at 40 C.F.R (a)(1) and is appropriate here. Subpart 4. Conditions for approval. B. Show that the variance conforms with parts and MCEA agrees that any variance must conform to state and federal antidegradation standards. MCEA petitioned the MPCA for changes in its antidegradation rules, Minn. R and , in April 2007 because the state rules did not satisfy the requirements of federal antidegradation law at 40 C.F.R The MPCA has been working on revisions to its rules since, but has not yet finalized them. As such, it is important that MPCA include compliance with federal antidegradation regulations in this variance rule. Subpart 4 B. should state show that the variance fully complies with parts , and 40 C.F.R It should be a very rare case in which a permittee that proposes a new or increased discharge would qualify for a variance. Subpart 6. Agency final decision; variance requirements. Public Participation - The proposed rule states that notice must conform to Rule MCEA notes that Minn. R does not require a public hearing, while the federal regulations do. 40 C.F.R (b). Rules at also specify a decision by the MPCA Board, which was abolished by the legislature in This section of the variance rule should state: final decision regarding the variance request that conforms to the procedural requirements in part and 40 C.F.R (b). A. effluent limitation representing currently achievable treatment conditions based on discharge monitoring or projected effluent quality that is no less stringent than that achieved under the previous permit; MCEA agrees with this provision insofar as it requires that the effluent limitation should certainly be no less stringent than that 4

15 achieved under the previous permit. However, the term currently achievable treatment is vague and could be interpreted to mean currently achievable using only the current pollutant control technology. The rule should provide that the effluent limitation should reflect the greatest pollutant reduction achievable using any feasible pollutant control technology that can be identified. 40 C.F.R (b)(1)(ii)(A). Further, the rule should make clear that the Agency in its ruling will document the relationship between pollutant control activities and the highest attainable use. 80 Fed. Reg. at B. Compliance schedule A Pollutant Minimization Program should also be required under certain circumstances. See 40 C.F.R (b)(1)(ii)(A). D. "A provision allowing the agency to reopen and modify the permit based on agency triennial water quality standards revisions applicable to the variance" MCEA agrees that such a reopener should be included in the permit. However, the permit should also contain a reopener provision allowing for tighter effluent limits if feasible pollutant control technology becomes available that would allow the receiving water body to attain a higher water quality condition. Subpart 7. Renewal. MCEA agrees that a renewal should only be granted for a variance under circumstances in which a new variance could be granted. Subpart 8. Term and expiration. MCEA agrees that a Minnesota variance should last no longer than ten years and that the variance must not last longer than is necessary. However, the rule must also incorporate the requirements of 40 C.F.R (b)(v) requiring a reevaluation of the highest attainable use at least every five years. Further, the rules must contain a provision that the variance will no longer be applicable if the State fails to conduct the necessary evaluation. 40 C.F.R (b)(vi); 80 Fed. Reg. at PROPOSED AMENDMENTS TO These rules must meet the "more stringent" of the rules provided at 40 C.F.R and those provided under the 1995 Great Lakes Water Quality Guidance (GLWQG). 80 Fed. Reg. at Subpart 1. Applicability. MCEA agrees that a variance should not be available to new dischargers for GLWQG covered pollutants, unless the proposed discharge is necessary to alleviate an imminent and substantial danger to public health and welfare. This restriction should also apply to recommencing discharges. 40 C.F.R. 132 App. F Procedure 2 A.1. 5

16 A. Variance must not harm endangered species MCEA agrees that this condition is necessary. B. Standard will not be attained by effluent limitations required under 301(b) and 306 of the Clean Water Act or through reasonable best management practices (BMPs) for nonpoint sources under the permittee s control As with variances from statewide water quality standards discussed above, MCEA agrees that this condition is necessary and that a variance may not be granted if the standard can be achieved through technology based requirements or reasonable BMPs. See also, 40 C.F.R (a)(4). MCEA, however, does not agree that a variance may be granted in the case in which water quality standards could be met through implementation of BMPs that are not within the permittee s control. First, MPCA may not grant a variance that applies to a water body or waterbody segment without providing to EPA documentation including: Identification and documentation of any cost-effective and reasonable best management practices for nonpoint source controls related to the pollutant(s) or water quality parameter(s) and water body or waterbody segment(s) specified in the WQS variance that could be implemented to make progress towards attaining the underlying designated use and criterion. A State must provide public notice and comment for any such documentation. 40 C.F.R (b)(2)(A). Second, MPCA may not grant a subsequent variance for the water body or waterbody segment without providing documentation to EPA: of whether and to what extent best management practices for nonpoint source controls were implemented to address the pollutant(s) or water quality parameter(s) subject to the WQS variance and the water quality progress achieved. 40 C.F.R (b)(2)(B). Third, in an analogous situation under the federal antidegradation regulation, new or increased pollution cannot be allowed unless the State has assured that there shall be achieved the highest statutory and regulatory requirements for all new and existing point sources and all cost-effective and reasonable best management practices for nonpoint source control. 40 C.F.R (a)(2). Under Minnesota law the MPCA has both the authority and duty to prevent nonpoint source pollution, Minn. Stat , subd. 1, but it has failed to establish rules or requirements to abate agricultural nonpoint water pollution. The MPCA may not relieve itself of its duties under federal and state law to identify, document and implement reasonable and cost-effective best management practices for nonpoint sources before granting a water quality variance simply because these sources are not under a permittee s control. 6

17 To the extent that MPCA wishes to include a variance eligibility showing by a permittee, it needs to define what is within the permittee s control, as this is susceptible of manipulation and interpretation and should be interpreted broadly. For example, if a municipal sewage department does not have control over nonpoint pollution from sources within the municipality but the municipality has the power to require such BMPs, the BMPs should be treated as being within the permittee s control. C. The variance would not remove an existing use This language should be altered to make clear that no variance should be allowed that would not maintain and protect existing uses. MCEA understands that the term remove originates with 40 C.F.R (g) which addresses removal of use designations. However, the term is not entirely appropriate as to variances, which assume maintenance of use designations and are focused on reaching the highest attainable use during the period until all designated uses can be achieved. A variance should not be allowed that would lower ambient water quality or degrade any existing use. MCEA would propose that the language should specify that the variance maintain and protect all existing uses." The maintain and protect language appears at 40 C.F.R (a)(1) and is appropriate here. Subpart 2.Term. MCEA agrees that the term of variances under the GLWQG cannot be longer than five years. 40 C.F.R. 132 App. F Procedure 2 B; 80 Fed. Reg. at Subpart 3. Conditions for approval. B. Show that the variance conforms with parts and MCEA agrees that any variance must conform to state and federal antidegradation standards. MCEA petitioned the MPCA for changes in its antidegradation rules, Minn. R. Ch and , in April 2007 because they did not satisfy the requirements of federal antidegradation law at 40 C.F.R The MPCA has been working on revisions to its rules since, but has not yet finalized them. As such, it is important that MPCA include compliance with federal antidegradation regulations in this variance rule. Subpart 4 B. should state show that the variance fully complies with parts , and 40 C.F.R It should be a very rare case in which a permittee that proposes a new or increased discharge would qualify for a variance. Subpart 5. Agency final decision; variance requirements. Public Participation - The proposed rule states that notice must conform to Rule MCEA notes that Minn. R does not require a public hearing, while the federal regulations do. 40 C.F.R (b). Rules at also specify a 7

18 decision by the MPCA Board, which was abolished by the legislature in This section of the variance rule should state: final decision regarding the variance request that conforms to the procedural requirements in part and 40 C.F.R (b). A. An effluent limitation representing currently achievable treatment conditions based on discharge monitoring or projected effluent quality that is no less stringent than that achieved under the previous permit; MCEA agrees with this provision insofar as it requires that the effluent limitation should certainly be no less stringent than that achieved under the previous permit. However, the term currently achievable treatment is vague and could be interpreted to mean currently achievable using only the current pollutant control technology. The rule should provide that the effluent limitation should reflect the greatest pollutant reduction achievable using any feasible pollutant control technology that can be identified. 40 C.F.R (b)(1)(ii)(A). Further, the rule should make clear that the Agency in its ruling will document the relationship between pollutant control activities and the highest attainable use. 80 Fed. Reg. at D. "A provision allowing the agency to reopen and modify the permit based on agency triennial water quality standards revisions applicable to the variance" MCEA agrees that such a reopener should be included in the permit. However, the permit should also contain a reopener provision allowing for tighter effluent limits if feasible pollutant control technology becomes available that would allow a higher condition of the receiving water body to be attained. E. MCEA agrees that for BCCs, a pollutant minimization program should be required. PROPOSED AMENDMENTS TO This proposed section is extremely unclear and apparently improper. It should be reconsidered and perhaps deleted from the final draft for the following reasons: - It is unclear how this proposed section fits with the balance of the proposal and the relationship between this proposal and the proposed language at The SONAR indicates that this provision relates to minimum performance criteria (p.10) and, thus, arguably relates to technology-based requirements required under federal or state law. The provision, however, does not provide for consideration of the types of factors that would possibly justify waiving technology-based requirements. - The Effluent rules include compliance with water quality based effluent limits (WQBELs) as one of their conditions. Accordingly, this proposed rule could be read to allow MPCA to grant a variance from water quality standards so as to allow a discharger to have a less restrictive WQBEL, or no WQBEL at all, without the variance being approved by U.S.EPA. This would be illegal. 40 C.F.R

19 - All NPDES permits must prevent discharges that cause or contribute to violation of water quality standards. 40 C.F.R (d); See also, 80 Fed. Reg. at If it is intended through this provision - that allows variances from discharge effluent limits or treatment requirements - to allow dischargers to obtain permits that would otherwise violate the federal law against allowing discharges that cause or contribute to violations of water quality standards, a variance obtained under this Section would clearly be a variance from water quality standards. Contrary to the statement in the proposed rule (subp. 4), such a variance could not be effective without approval from U.S. EPA. The federal regulations make plain that variances from water quality standards are subject to review and approval whether proposed by a permittee for a particular discharge or proposed for a water body. 40 C.F.R (a); 80 Fed. Reg. at Any variance that allows changes in water quality standards, whether adopted for a permittee to make the applicable WQBEL less stringent or for a water body/water body segment, is a water quality standards variance that is subject to EPA review and approval under Section 303(c) of the Clean Water Act. Fla. Pub. Interest Research Group Citizen Lobby, Inc. v. U.S. EPA, 386 F.3d 1070 (11th Cir. 2004)(law looks to practical effect of change in rules affecting standards, not labels.) Conclusion In sum, the proposed changes to Sections 7050 and 7052 should be strengthened must be completely rewritten to make clear what is intended and properly limited so as to comply with federal law and properly protect Minnesota waters. MPCA must make these revisions to the proposed rules available for public comment prior to adopting amendments to Minnesota s water quality variance rules. In addition, a revised SONAR that contains an assessment of any differences between the proposed rule and existing federal regulations and a specific analysis of the need for and reasonableness of each difference, must be made available for public comment before amendments to Minnesota s water quality variance rules can be adopted by MPCA. Finally, MPCA must submit any final revisions to its water quality variance rules to EPA for review and approval. 40 C.F.R ; 48 Fed. Reg , (November 8, 1983) (it is important for the public to understand that adoption of optional policies that impact application and implementation of water quality standards, such as variance policies, are subject to EPA review and approval); Iowa League of Cities v. E.P.A., 711 F.3d 844, 857 (8th Cir. 2013)(recognizing that general policies affecting application and implementation of water quality standards are subject to review by EPA); See also 33 U.S.C. 1313(e). 9

20 For all of the above reasons MCEA believes it is improper to proceed with the current rule proposal. However, should the agency choose to do so, attached is a written request, including the requisite 25 signatures, pursuant to Minn. Stat , subd. 1, for a public hearing before an administrative law judge, currently slated for February 4, Sincerely, Kris Sigford Water Quality Director Betsy Lawton Water Quality Associate Albert Ettinger Of Counsel 10

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24 PRO^ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 5 77 WEST JACKSON BOULEVARD CHICAGO. IL DEC REPLY TO THE ATTENTION OF: WQ-16J Mary H. Lynn Minnesota Pollution Control Agency 520 Lafayette Road North St. Paul, MN Dear Ms. Lynn: On November 9 th, 2015, the Minnesota Pollution Control Agency (MPCA) published a public notice of its "Proposed Amendments to Rules Governing Water Quality Variances, Minnesota Rules, Chapter 7050 Waters of the State (specifically, part ), Chapter 7052 Lake Superior Basin Water Standards (specifically, part ), and Chapter 7053 State Waters Discharge Restrictions (specifically, part ), and Repeal of Minnesota Rules, parts , subpart 3; and , subpart 3," in the Minnesota State Register. The U.S. Environmental Protection Agency strongly supports MPCA's effort to update Minnesota's variance rules and to make the Minnesota rules parallel the federal requirements. EPA reviewed the public notice and supporting materials and offers the following comments on parts and (enclosed). These comments are limited to variances affecting Minnesota's water quality standards program under section 303(c) of the Clean Water Act and do not address revisions to as those fall outside the scope of section 303(c). Please note that these comments are preliminary in nature and do not constitute an EPA action under section 303(c) of the Clean Water Act. We look forward to continuing to work with MPCA throughout the remainder of MPCA's rulemaking process. If you or your staff would like to discuss this matter further, please do not hesitate to contact me at (312) or David Pfeifer at (312) Sincerely, Enclosure Linda Hoist, Chief Water Quality Branch Recycled/Recyclable» Printed with Vegetable Oil Based Inks on 100% Recycled Paper (100% Post-Consumer)

25 EPA Comments on Minnesota's Proposed Variance Rule Revisions Disagreement between Minnesota's proposed revisions and 40 CFR (g)(5). 40 CFR (g)(5) states, "Physical conditions related to the natural features of the waterbody, such as the lack of a proper substrate, cover, flow, depth, pools, riffles, and the like, unrelated to water quality, preclude attainment of aquatic life protection uses." [emphasis added] The corresponding provisions in Minnesota's proposed rules in 7050 states, "physical conditions related to the natural features of the waterbody, such as the lack of a proper substrate cover, flow, depth, pools, riffles, and the like, unrelated to chemical water quality, preclude attainment of water quality standards." [ , subpart 4] EPA recommends that Minnesota revise , subpart 4 to be consistent with 40 CFR (g)(5). Minnesota's proposed rules at 7052 do not need to be revised because Minnesota's rules at 7052 are consistent with the federal regulations at 40 CFR 132, Appendix F, Procedure 2. Should Minnesota decline to make the recommended change and submit a variance based on natural features precluding attainment of the use for a use other than aquatic life, EPA would be unable to approve such a variance. Variances for new Great Lakes dischargers are prohibited by 40 CFR 132, Appendix F, Procedure 2. With certain limited exceptions, water quality standards (WQS) variances are not allowed under the Water Quality Guidance for the Great Lakes System at 40 CFR Part 132 for "new Great Lakes dischargers." "New Great Lakes discharger" is defined at 40 CFR as "any building, structure, facility, or installation from which there is or may be a "discharge of pollutants" (as defined in 40 CFR 122.2) to the Great Lakes System, the construction of which commenced after March 23, 1997." Minnesota's proposed rule revisions at , subpart l.c. prohibit variances where granting a variance would result in removal of an existing use. While this provision is likely to lead to variance decisions by Minnesota that are compatible with the requirements of 40 CFR 132 in most cases, it is possible that Minnesota's proposed rule could lead to a decision to grant a variance where such are variance would be prohibited under 40 CFR 132. Should this occur, EPA would be unable to approve such a variance. To prevent such an outcome, EPA recommends that Minnesota revise the applicability requirements in to be consistent with the requirements of 40 CFR 132 with regards to variances for new Great Lakes dischargers. Public participation requirements for WQS rulemaking. New and revised WQS include variances from WQS. Consistent with 40 CFR (b), States and Tribes must hold a public hearing consistent with the requirements of 40 CFR Part 25 as part of each triennial standards review and prior to adopting any new or revised WQS. The requirements of 40 CFR Part 25 include: Public notice of the hearing at least 45 days prior to the date of the hearing; Materials available to the public at least 30 days prior to the date of the hearing; Hearings shall be held at times and locations to maximize participation; The State or Tribal agency holding the hearing shall schedule witnesses in advance to ensure adequate time for all and shall include time for unscheduled testimony; The State or Tribal agency holding the hearing shall provide an introduction at the hearing informing those present of the issues involved in the decision to be made, the considerations the agency will take into account, the agency's tentative determinations (if any), and the information which is particularly solicited from the public; and

26 EPA Comments on Minnesota's Proposed Variance Rule Revisions The agency holding the hearing shall prepare a transcript, recording or other complete record of public hearing proceedings and make it available at no more than cost to anyone who requests it and make a copy available for public review. Compatibility of Minnesota's proposed revisions with EPA's variance regulations at 40 CFR On August 21, 2015, EPA published new regulations covering variances at 40 CFR There are a number of requirements in these regulations that Minnesota was not able to include in its proposed rules because of when the new federal regulations were published. Any variance submitted to EPA by Minnesota must comply with the requirements of 40 CFR to be approved. EPA reviewed Minnesota's proposed rules against the new federal regulations and identified the requirements below that do not appear to be addressed by Minnesota's proposed rules (b), Requirements for Submission to EPA: This new section includes specific requirements for what must be included in a submission of a variance to EPA for approval. The requirements applicable to discharger-specific variances are identified in (b)(1) and include the following: (i) Identification of the pollutant(s) or water quality parameter(s), and the waterbody/waterbody segment(s) to which the WQS variance applies. Dischargersspecific WQS variances must also identify the permittee(s) subject to the WQS variance. (ii) The requirements that apply throughout the term of the WQS variance. The requirements shall represent the highest attainable condition of the waterbody or waterbody segment applicable throughout the term of the WQS variance based on the documentation required in (b)(2) of this section. The requirements shall not result in any lowering of the currently attained ambient water quality, unless a WQS variance is necessary for restoration activities, consistent with paragraph (b)(2)(i)(a)(2) of this section. The State must specify the highest attainable condition of the waterbody or waterbody segment as a quantifiable expression that is one of the following: (A) For discharger(s)-specific WQS variances: (1) The highest attainable interim criterion, or (2) The interim effluent condition that reflects the greatest pollutant reduction achievable, or (3) If no additional feasible pollutant control technology can be identified, the interim criterion or interim effluent condition that reflects the greatest pollutant reduction achievable with the pollutant control technologies installed at the time the State adopts the WQS variance, and the adoption and implementation of a Pollutant Minimization Program. (iii) A statement providing that the requirements of the WQS variance are either the highest attainable condition identified at the time of the adoption of the WQS variance, or the highest attainable condition later identified during any reevaluation consistent with (b)(l)(v) of this section, whichever is more stringent. (iv) The term of the WQS variance, expressed as an interval of time from the date of EPA approval or a specific date. The term of the WQS variance must only be as long as 2

27 EPA Comments on Minnesota's Proposed Variance Rule Revisions necessary to achieve the highest attainable condition and consistent with the demonstration provided in paragraph (b)(2) of this section. The State may adopt a subsequent WQS variance consistent with this section. (v) For a WQS variance with a term greater than five years, a specified frequency to reevaluate the highest attainable condition using all existing and readily available information and a provision specifying how the State intends to obtain public input on the reevaluation. Such reevaluations must occur no less frequently than every five years after EPA approval of the WQS variance and the results of such reevaluation must be submitted to EPA within 30 days of completion of the reevaluation. (vi) A provision that the WQS variance will no longer be the applicable WQS for purposes of the Act if the State does not conduct a reevaluation consistent with the frequency specified in the WQS variance or the results are not submitted to EPA as required by (b)(l)(v) of this section. In addition, new 40 CFR (b)(2)(h) requires: (ii) Documentation demonstrating that the term of the WQS variance is only as long as necessary to achieve the highest attainable condition. Such documentation must justify the term of the WQS variance by describing the pollutant control activities to achieve the highest attainable condition, including those activities identified through a Pollutant Minimization Program, which serve as milestones for the WQS variance. To be approved by EPA, variances submitted by Minnesota to EPA must address all of the requirements of 40 CFR

28 December 29, 2015 Mary Lynn Minnesota Pollution Control Agency 520 Lafayette Road North St. Paul, MN VIA AND US MAIL Re: Proposed Permeant Rules Relating to Existing Water Quality Variance Procedures. Dear Ms. Lynn: Thank you for the opportunity to comment on the above-referenced proposed rules. The following comments are offered on behalf of the Minnesota Environmental Science and Economic Review Board (MESERB), a joint powers organization of 42 Minnesota cities, public utilities commissions and sanitary sewer districts. MESERB has worked since 1997 to ensure that regulations affecting wastewater treatment are reasonable and based on sound scientific research. The first section of our comments focuses on our general policy concerns regarding variances and their applicability to the current regulatory scheme. The second section contains our specific and technical comments to the proposed rules governing variances. I. Overarching Policy Concerns Since the advent of the Clean Water Act in 1972, wastewater treatment efforts have led to major improvements of water quality. MESERB members have proudly done their fair share to further these efforts, and have spent millions of dollars cleaning and improving Minnesota s waters. Despite these improvements and major efforts by MESERB members, many of Minnesota s waters remain impaired, and the important work to improve and protect Minnesota s waters must continue. However, MESERB members are concerned that the regulation of wastewater treatment facilities (WWTFs) is now reaching a point of diminishing return.

29 Mary Lynn, MPCA December 29, 2015 Page 2 The current regulatory scheme as applied to WWTFs generally amounts to a fine tuning of present treatment efforts. These small adjustments can cost millions of dollars to implement, and sometimes provide insignificant improvements to underlying water quality. In short, the tremendous expense of scarce local resources often results in minimal measurable environmental benefits. As it stands, WWTFs and the communities that support them are currently faced with an onslaught of actual and potential regulations dealing with water quality standards (WQS) for phosphorus, chloride, sulfate, ammonia, nitrates etc. To further complicate matters, this regulatory playing field may change for MESERB members with each five-year permitting cycle. As these regulations take effect we foresee two problematic situations: (1) where either the standards imposed on WWTFs will be unachievable using current cost-effective treatment technology; or (2) where a WWTF meets a specific water quality based effluent limit (WQBEL) related to a total maximum daily load (TMDL), but the quality of the protected water fails to improve as a result of non-point sources of pollution or otherwise. This is where a flexible approach to variances becomes an essential regulatory tool. During MESERB s December 9, 2015 meeting with the MPCA, Assistant Commissioner Rebecca Flood recognized this fact. The Assistant Commissioner acknowledged that the Agency has granted few variances in the past (5 currently active), but that it intends to use a more flexible approach in the future necessitated by the technological and economic limitations faced by WWTFs. MESERB supports the MPCA s intention to use variances more liberally in the shortterm. However, variances should not be treated as a long-term solution to fix implementation problems within the current regulatory scheme. Instead, the Agency must develop standards and compliance mechanisms that more accurately account for implementation costs, and emphasize cumulative benefits to water quality. This includes the increased use of trading, creative and effective offsetting measures, and targeted enforcement of non-point sources of pollution. In so doing, water quality will be improved more efficiently and fewer variances will be required. II. Comments on the Proposed Amendments to Minnesota Rules Chapters 7050, 7052, and MESERB has two principal concerns regarding the MPCA s proposed amendments to the variance rules. The first is that the costs associated with seeking a variance will prevent cities and sanitary districts from applying. The second is that the proposed standard is more restrictive than necessary, and inconsistent with the applicable federal regulations.

30 Mary Lynn, MPCA December 29, 2015 Page 3 A. Variances Are Potentially Cost Prohibitive for Cities and Sanitary Districts. Pursuant to the MPCA point system, an application for a variance is valued at 35 points, which equals $10,850. This application fee, in addition to the professional costs associated with demonstrating eligibility, serves as an actual and potential bar for communities and sanitary districts to apply for variances. It is unreasonable to expect a WWTF from a community of 2,000 citizens to pay the same application fee as the Metropolitan Council, or a large industrial concern. The MPCA should consider a sliding scale in establishing fees to make the process accessible. In the statement of need and reasonableness (SONAR), the Agency estimates that the cost to apply for a variance is less than $25,000. There is no basis given for this estimate. The combined legal and engineering costs to apply for a variance could easily exceed $15,000, especially because the variance seeker carries the burden to prove eligibility. Thus, combined with the filing fee, we do not believe this is an accurate estimate and the Agency should revisit this calculation in the event it does not change the present approach. The MPCA should also consider ways to share the technical and professional costs/burden with communities and sanitary districts as a means of providing greater accessibility to the process. B. The Proposed Amendments are More Limiting than Necessary and Inconsistent with Federal Regulations. The proposed amendments to Minnesota Rule, Chapters 7050, 7052, and 7053, conflict with the Agency s declared intentions to (1) implement a more flexible approach to variances; and (2) promote consistency with federal variance regulations. Federal law currently elucidates two approaches to WQS variances. The first approach found at 40 C.F.R applies broadly to variance requests outside the Great Lakes System. The second standard, found at 40 C.F.R 132, Procedure 2 of Appendix F narrowly applies to the WQS for the Great Lakes System (GLS) and is already applicable to Minnesota waters within the Lake Superior Basin (LSB). See Minn. R (1) The Great Lakes System standard for variances should not extend to Minnesota waters outside the Lake Superior Basin. The proposed Minn. R currently superimposes elements of the GLS standard to apply to non LSB waters. This attempt to apply the federal GLS standard to all of Minnesota s waters in the name of consistency is concerning, because it is inconsistent with federal regulations. The GLS standard is distinct because the EPA recognizes the Great Lakes face unique challenges. Good water policy often requires differing standards for application to distinct circumstances. To expand the application of the GLS standard

31 Mary Lynn, MPCA December 29, 2015 Page 4 in Minnesota is like taking the WQBEL s related to a specific TMDL, and applying them to a WWTF outside the watershed coved by the TMDL. Such an approach is unreasonable, unsupported, varies from the federal approach, and is excessively strict and unduly burdensome. Moreover, the Agency fails to address in its SONAR the reasonableness of this proposal in light of its inconsistency with the applicable federal rules. Therefore, to address the unnecessary application of the GLS standard and to promote flexibility and consistency with the federal standard, the following changes should be made to the Agency s proposed rules: a. Proposed Minn. R , subp. 1. A, requiring an applicant to show that a variance would not jeopardize endangered... or threatened species... or critical habitat should be deleted. This language is inconsistent with the applicable federal rule and is unnecessarily limiting when applied to waters outside of the LSB. See 40 C.F.R b. Proposed Minn. R , subp. 1. C, requiring the applicant to show the variance would not remove an existing use should be deleted. This requirement lacks consistency with the applicable federal rule on variances and is duplicative as the bar against removing existing uses exists elsewhere in both state and federal statutes. See Minn. R ; 40 C.F.R c. In light of the above deletions to proposed Minn. R , subp. 1. A and C, the last sentence of proposed Minn. R , subp.1, referring to the aforementioned subparts should be stricken for internal consistency. d. Proposed Minn. R , subp. 4. B, requiring an applicant to demonstrate that a variance conforms to Minnesota s non-degradation rules should be deleted because it fails to comport with the applicable federal rule for non LSB waters. See 40 C.F.R e. Proposed Minn. R , subp. 4. C, requiring the applicant to characterize the extent of any increased risk to human health and the environment associated with granting the variance should be deleted. This language is inconsistent with the applicable federal rule for non LSB waters, and is unduly restrictive. See 40 C.F.R f. Proposed Minn. R , subp. 6. A-B dealing with terms and conditions incorporated into permits that receive variances should be deleted and replaced with the applicable language from 40 C.F.R (b)(1).

32 Mary Lynn, MPCA December 29, 2015 Page 5 g. Proposed Minn. R , subp. 7, dealing with renewal of a variance should be deleted, and replaced with language consistent with 40 C.F.R (b)(iii)-(vi). Likewise, proposed Minn. R , subp. 7 should also be amended for internal consistency. (2) The proposed amendments unnecessarily place a 10-year maximum duration on variances. MPCA s proposed rule applies a 10-year limit to the duration of a variance outside the LSB. This is inconsistent with the federal rule, and contravenes the Agency s desire for flexibility. See 40 C.F.R (b)(vi). The federal rule does not impose a maximum duration for a variance, but instead requires re-evaluation of a variance every five years. Id; see 80 Fed. Reg (August 21, 2015) (stating that the EPA concluded that the reevaluation requirements... eliminate the need to specify a maximum WQS variance term ). Furthermore, the proposed rule uses limiting qualifying language when addressing the duration of the variance, stating that the term of a variance must be as short as possible. Proposed Minn. R , subp. 8. This language is inconstant with the federal regulation and the Agency s stated objectives regarding flexibility. The applicable federal rule states that [t]he term of the WQS variance must only be as long as necessary. 40 C.F.R (b)(vi). Therefore, to promote flexibility and consistency with the federal standard, proposed Minn. R , subp. 8, and proposed Minn. R , subp. 8 should be deleted and replaced with language consistent with 40 C.F.R (b)(vi)-(v). (3) The language of 40 C.F.R (g) should be adopted as is to promote consistency and clarity within the proposed rules. In proposing to adopt the language of 40 C.F.R (g) into Minn. Rules , subp. 4, the Agency failed to incorporate all of the operative language from the federal rule. The Agency s proposed rule requires meeting one of the six-factors found at 40 C.F.R (g)(1)-(6) in order to qualify for any WQS variance. The federal rule clearly places the disjunctive word or after every factor. See id. In contrast, the proposed rule only uses the disjunctive between factors (5) and (6). This omission should be corrected to align with the federal rule, and improve clarity regarding the rule s application. Additionally, when incorporating 40 C.F.R (g)(1)-(6) into the proposed rule, the MPCA substituted the phrase use from the federal language, to water quality standard(s). See proposed Minn. Rules , subp. 4. A. (1)-(6). This change

33 Mary Lynn, MPCA December 29, 2015 Page 6 should be reversed because it creates potential internal inconsistencies within the proposed rule, and fails to align with the federal standard. (4) The proposed amendments fail to distinguish between a section 101(a)(2) use and a non-101(a)(2) use. The federal standard distinguishes between variances for uses specified under section 101(a)(2) (fishable, swimmable goals) and non-101(a)(2) uses. 40 C.F.R (b)(2)(A); (b)(2)(b). The federal rule only requires the demonstration under 40 C.F.R (g) for section 101(a)(2) uses, whereas the MPCA s proposed rule extends this requirement to other non-101(a)(2) uses. By failing to make this distinction the Agency s proposed rule does not equate with the federal rule and is unjustifiably strict. III. Summary The Agency s intent in this rulemaking was to develop a variance standard that maintains consistency with the applicable federal rules, and promotes flexibility in the standard s application. MESERB believes that the Agency fell short of achieving these objectives, and offers the above revisions to bring the proposed rules in line with the Agency s intent. As illustrated above, the proposed rules are more restrictive than required, and are substantively inconsistent with the applicable federal rules. The application of the federal GLS standard to all of Minnesota s waters is particularly troubling. Furthermore, by failing to offer a specific analysis of the need and reasonableness of each difference between the proposed rule and the applicable federal standards, the Agency failed to meet its statutory burden under Minn. Stat (7). For these reasons, MESERB objects to the proposed amendments in their entirety. The MPCA should withdraw the current rulemaking and revise the proposed rules and the SONAR, and re-issue them for public comment. In so doing, the Agency should incorporate the above comments, and better align the proposed rules with the applicable federal rules. The Agency should also include amendments to its fee structure, and address our concerns over the cost prohibitive nature of the application fee when combined with the professional/technical expenses necessary to apply for a variance. Lastly, MESERB notes that the Agency scheduled a public hearing on the proposed rules for February 4, MESERB agrees that a hearing is necessary, and we plan to attend the hearing to further address our concerns. Thank you for your time and consideration of our comments.

34 Mary Lynn, MPCA December 29, 2015 Page 7 We request that any responses to the foregoing be provided in writing to me at andy.bradshaw@ci.moorhead.mn.us and copied to MESERB s attorney, Chris Hood, at cmhood@flaherty-hood.com. Yours truly, MINNESOTA ENVIRONMENTAL SCIENCE AND ECONOMIC REVIEW BOARD Andy Bradshaw, Utilities Engineer Moorhead Waste Water Treatment Facility MESERB President City of Moorhead 500 Center Avenue, Box 779 Moorhead, MN cc: John Linc Stine, Commissioner, MPCA Rebecca Flood, Assistant Commissioner, MPCA Mark Schmitt, Division Director, MPCA Shannon Lotthammer, Division Director, MPCA Katrina Kessler, Water Assessment Section Manager, MPCA Christopher M. Hood, Flaherty & Hood, P.A. MESERB members

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